Centre for Civic Education (CCE) calls on the Ministry of Health and the Agency for Personal Data Protection and Free Access to Information (AZLP) to proactively get involved in the process of informing citizens about the manner the new system of issuing and using National Digital COVID Certificates works. Adequate informing of citizens is the only way to ensure that the new Government’s measures for suppressing the coronavirus do not lead to discriminatory treatment of any subject or violations of the provisions of the Personal Data Protection Law, which could reopen the door for the misuse of personal data of citizens.
On 30 July 2021, the Government of Montenegro passed the Decision on amendments to the Decision on conducting temporary measures due to the outbreak of the epidemic of COVID 19 infectious disease as a major epidemiological threat. These amendments envisage the obligation of possessing one of the four certificates from the National Digital COVID Certificate to enter inside catering facilities or nightclubs. Thus, to enter these facilities, citizens must possess proof that they are fully vaccinated, or that they got first Covid-19 vaccine dose, negative PCR test not older than 72 hours, or proof they have recovered from COVID-19 or negative rapid antigen test not older than 72 hours. This Decision also stipulates the obligation for owners of catering facilities to have a person who will control possessing of proofs of vaccination or the negative test. In addition, there is a measure that stipulates that one of these conditions must be met by all employees in the catering.
CCE considers that it was the obligation of the Government to prescribe this condition primarily in all in medical institutions, educational institutions, state administration, as well as other bodies that, in various ways, provide services of public interest and pose a risk of spreading coronavirus. By the omission of doing this, the Government of Montenegro discriminates against caterers.
We remind that CCE has publicly supported compulsory vaccination several times so far. Such an approach is advisable in democratic societies in such situations, which confirmed the European Court of Human Rights in Strasbourg. However, CCE is against any kind of discrimination when it comes to the application of actual measures. Measures must be equal for all, in accordance with international human rights treaties and European practice.
On the other hand, the efforts of the competent institutions which enabled citizens of Montenegro to possess Digital COVID Certificate, based on the EU Digital COVID Certificate, should be commended. However, we also consider that it is inadmissible that caterers check the health status of guests – without having the same previously done by the national services in charge, through the system of reinforced inspection control, with focus on touristic destinations of the country, as well as check when crossing borders, in customs zones, trough opening COVID-19 on-site rapid testing at several city locations, etc.
Almost all four types of COVID certificates contain personal data that include first name, last name and date of birth, unique identity number (JMBG), and hence provide insight into the health condition or its history. The provision stipulating the obligation to appoint persons from the catering facility who would control the possession and content of these certificates is also disputable, as persons employed in catering do not have any public authority, i.e. they do not work in any of the public services, such as police, inspection or health sector, therefore, there are no legal preconditions for this data to be provided to these persons.
Considering this, the Ministry of Health of Montenegro should have provided more precise information for both citizens and owners of catering facilities about the manner of functioning of the National Digital COVID19 Certificate, in order to completely avoid disclosure of any personal data. It was necessary to clarify that citizens are obliged to possess only the Quick Response Code (QR Code), which can be stored in a mobile phone or in paper form, and whose scanning would display the name and surname and date of birth of the user, as well as the status of any National Digital COVID19 certificate.
The Ministry of Health of the Government of Montenegro, precisely for those reasons, was obliged to make a real assessment of the necessity of these measures in coordination with the AZLP before taking such a decision, and thereafter to ensure its implementation without interfering with privacy and personal data of users of catering services.
CCE recalls that, so far, during the COVID-19 pandemic, citizens’ personal data have been disproportionately exposed or misused many times, which must have imposed an obligation to the Government to demonstrate special sensibility in these issues.
Tamara Milaš, Human Rights Programme Coordinator