ĆALOVIĆ v. MONTENEGRO

SECOND SECTION

DECISION

Application no. 18667/11
Vanja ĆALOVIĆ
against Montenegro

The European Court of Human Rights (Second Section), sitting on 11 July 2017 as a Chamber composed of:

Robert Spano, President,

Julia Laffranque,

Işıl Karakaş,

Nebojša Vučinić,

Paul Lemmens,

Valeriu Griţco,

Stéphanie Mourou-Vikström, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 14 March 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Vanja Ćalović, is a Montenegrin national who was born in 1978 and lives in Podgorica. She is an executive director of MANS, a Montenegrin NGO. Its avowed aim is, inter alia, “to increase the transparency and responsibility of institutions and improve the civil control thereof”. The applicant was represented by Mr V. Radulović, a lawyer practising in Podgorica.

2. The Montenegrin Government (“the Government”) were represented by their Agent, Mrs V. Pavličić.

A. The circumstances of the case

1. The impugned agreement

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 4 September 2006 the Government adopted an Action Plan for the Fight against Corruption and Organised Crime (“the Action Plan”). The Action Plan, inter alia, provided for “ensuring connection to the databases of telecommunication services providers for the purposes of collecting data, in accordance with police powers (ovlašćenjima) as provided for by the Criminal Procedure Code”.

5. On 27 September 2007, in accordance with this Action Plan, the Montenegro police (Uprava policije Crne Gore) concluded an agreement with M-tel, one of the telecommunication providers operating in Montenegro, which allowed them direct and uncontrolled access to M-tel’s entire database through an adequate interface “whenever possible and necessary”, including access to lists of all calls and their duration, messages, location, date, and time.

6. On 2 July 2008 the applicant, who was subscribed to M-tel’s services, filed a constitutional appeal with the Constitutional Court. She maintained that the police could obtain all the information on her telephone calls without any judicial control; that the police could directly access the computer network and database of mobile telephone operators; and that the scope of the police authority was unknown, given that the agreement was classified as “top secret” (strogo povjerljivo). In doing so, she relied on, inter alia, Article 8 of the Convention and the relevant case-law of the Court.

7. On 24 June 2010 the Constitutional Court rejected the applicant’s constitutional appeal as inadmissible, as it had not been lodged against any individual decision relating to her own rights. The decision was served on the applicant on 13 September 2010.

2. Additional information obtained

8. On 5 April 2016 the application was communicated to the respondent Government. In their observations dated 26 July 2016 the Government informed the Court of the following.

(a) The Data Protection Agency

i) Inspection at M-tel

9. On 21 January 2011 the Data Protection Agency (“the Agency”) carried out an inspection at M-tel of its own motion. In a report of 4 February 2011 the Agency stated that the impugned agreement, concluded on the basis of Article 230 of the Criminal Procedure Code 2003 in force at the time (see paragraph 23 below), was contrary to certain sections of the Data Protection Act.

10. On 28 March 2011 the Agency, acting upon an objection by M-tel to the previous report, issued a decision ordering M-tel to discontinue providing data contrary to the Data Protection Act, a decision which was upheld by the Agency’s Council on 20 April 2011. The Agency’s Council also cited Article 8 of the Convention and some of the Court’s case-law in its decision, such as Malone v. the United Kingdom (2 August 1984, Series A no. 82), and Copland v. the United Kingdom (no. 62617/00, ECHR 2007‑I). None of the parties initiated a further administrative dispute before the Administrative Court.

11. On 17 April 2011 M-tel deactivated the login by which the police could access its data.

ii) Inspection at police offices

12. On 14 June 2011 the Agency carried out an inspection at the police offices. In a report of 20 June 2011 it stated that no irregularities had been found. In particular, M-tel had complied with the Agency’s decision and had deactivated the interface through which the police had direct access to its data.

iii) Relevant statistical data related to the Agency

13. Between an unspecified date in 2010 and 30 June 2016 the Agency received 106 protection requests, in relation to which it issued twenty decisions, eight of which were in favour of those who had submitted the requests. Apparently, in the remaining eighty-six cases, the Agency issued reports with recommendations which were complied with, thus no separate decision was necessary, and the proceedings were consequently terminated.

(b) First set of civil proceedings

14. On an unspecified date the applicant and two of her colleagues instituted civil proceedings, seeking that the impugned agreement be declared null and void. They did not seek compensation.

15. On 19 July 2013 the Court of First Instance (Osnovni sud) in Podgorica ruled in favour of the applicant and her colleagues. It found that the agreement was contrary to, inter alia, Article 8 of the Convention and the Court’s case-law, and was thus null and void. The court analysed the agreement in detail and found that it had enabled the police to obtain direct and unrestricted access and recover all of M-tel’s data, without defining the scope of those measures or the method of their implementation, or against whom those measures could be applied or for which reasons. All of this, in the court’s opinion, represented an interference with citizens’ privacy and was not necessary within the meaning of Article 8 § 2 of the Convention. It also found that the provider’s clients had no means of establishing if any measures were in place or had been applied in the past in respect of them, nor did they have any “effective control” at their disposal, which also represented a violation of Article 8. The court cited Niemietz v. Germany (16 December 1992, Series A no. 251‑B); Halford v. the United Kingdom (25 June 1997, Reports of Judgments and Decisions 1997‑III); Lambert v. France (24 August 1998, Reports of Judgments and Decisions 1998‑V); and Malone (cited above).

16. That judgment became final on 5 August 2013.

(c) Second set of civil proceedings

17. On an unspecified date in 2011 the applicant and twenty-four colleagues filed a compensation claim against the police in relation to having their electronic communication put under surveillance in connection with the publication of a certain video on YouTube.

18. On 16 October 2014 the Court of First Instance in Podgorica ruled in their favour and awarded them 1,500 euros (EUR) each under section 207 of the Obligations Act (see paragraph 25 below). The court found that, on the basis of all the evidence, there was a reasonable probability that the communications of the applicant and her colleagues over the internet had been put under police surveillance for the purposes of identifying an IP address from which the said video had been put on YouTube, and that the applicant and her colleagues had never obtained the data thereby collected, even though they had explicitly asked for it. The court held that, even if the police action had been lawful, it did not meet the criterion of necessity in Article 8 § 2. It found a violation of Article 8 of the Convention and relied on the Court’s case-law, notably Gaskin v. the United Kingdom (7 July 1989, Series A no. 160), and Niemietz, Copland, and Halford (all three cited above).

19. On 2 March 2015 the High Court (Viši sud) in Podgorica reduced the damages awarded to EUR 500 each and upheld the remainder of the previous judgment.

(d) Proceedings before the Constitutional Court

20. On 2 July 2008 and 25 November 2011 MANS filed proposals for the assessment of the constitutionality of Article 230 of the Criminal Procedure Code 2003 and Article 257 § 2 of the Criminal Procedure Code 2009 (see paragraphs 23 and 24 below).

21. On 18 July 2013 and 23 July 2014 the Constitutional Court found the relevant part of those Articles unconstitutional and contrary to Article 8 of the Convention, namely the part which enabled the police to ask a telecommunication provider “to check if telecommunication addresses which established a connection at a certain time [were] identical” (see paragraph 23 below). In doing so, the Constitutional Court cited the Court’s case-law, such as Rotaru v. Romania [GC] (no. 28341/95, ECHR 2000‑V); Klass and Others v. Germany (6 September 1978, Series A no. 28); Kruslin v. France (24 April 1990, Series A no. 176‑A); Malone; and Copland (both cited above).

B. Relevant domestic law and practice

1. The Data Protection Act (Zakon o zaštiti podataka o ličnosti, published in the Official Gazette of Montenegro (OGM) nos. 079/08, 070/09, 044/12, and 022/17)

22. In accordance with this Act, a person who believes that his or her rights under this Act have been violated can file a request for protection with the Agency, an independent supervisory body, which has to make a decision on the request within sixty days (section 47(1) and (2), and sections 49-50). Those who collect, store, change, use, publish, erase or destroy information will be responsible for any damage caused by a violation of the rights provided for by this Act, in accordance with the general rules on compensation (sections 4a, 9 and 48). The Agency carries out an inspection (nadzor) of its own motion, but anybody else can also file a proposal for an inspection (section 65).

2. The Criminal Procedure Code 2003 (Zakonik o krivičnom postupku, published in the Official Gazette of the Republic of Montenegro nos. 71/03, 07/04 and 47/06)

23. Article 230 provided, inter alia, that if there was a reasonable suspicion that a criminal offence prosecuted ex officio had been committed, the police had a duty to implement the necessary measures in order to find the perpetrator, ensure that the perpetrator or an accomplice did not flee or hide, uncover and secure the traces of the criminal offence and objects which could serve as evidence, and collect all the information which could be useful in criminal proceedings. Paragraph 2 of the same Article provided that, in order to fulfill their duties under paragraph 1, the police could ask a telecommunication services provider to “check if telecommunication addresses which established a connection at a certain time [were] identical” (zatraži provjeru identičnosti telekomunikacijskih adresa koje su u određenom vremenu uspostavile vezu)[1]. No court order was needed in this regard.

3. The Criminal Procedure Code 2009 (Zakonik o krivičnom postupku, published in the OGM nos. 057/09, 049/10 and 047/14)

24. This Code entered into force on 1 September 2011 and thereby repealed the previous Code (except for Chapter XXIX, which is not relevant to the present case). The relevant part of Article 257 § 2 corresponded to Article 230 § 2 of the previous Code.

4. The Obligations Act 2008 (Zakon o obligacionim odnosima, published in the OGM nos. 47⁄08 and 04⁄11)

25. Section 151(1) provides that anyone is entitled to ask a court or another competent body to order the termination (prestanak) of an action violating his or her personal integrity, personal and family life and other personal rights (prava njegove ličnosti). Section 166(1) provides that a legal entity, including the State, is liable for any damage caused by one of “its bodies”. Sections 206-207 provide that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of personal rights (prava ličnosti) is entitled to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary relief. This Act entered into force on 15 August 2008.

5. Domestic case-law

26. Between 6 June 2013 and 2 October 2015 the High Court in Podgorica issued four judgments (Gž.br. 2182/13, Gž.br. 3884/13, Gž.br. 4669/14 and Gž.br. 4259/15-12) awarding damages to various plaintiffs for violations of their reputation, honour and personal rights (see paragraph 25 above). Two of the judgments were against the State, one against the city of Podgorica and one against a private person.

COMPLAINT

27. The applicant complained under Article 8 of the Convention about the powers of the police to access directly all the data of her mobile telecommunication provider, and thus data relating to her, pursuant to an agreement concluded between the police and the provider.

THE LAW

28. The applicant complained under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

29. The Government contested the applicant’s allegations.

A. The parties’ submissions

30. The Government maintained that the applicant had failed to use all effective domestic remedies, notably she had failed to file a request for protection with the Agency or to lodge a compensation claim. They also maintained that the matter had been resolved or, alternatively, that the applicant was no longer a victim, given that the implementation of the impugned agreement had been discontinued, the agreement itself had been declared null and void, and the relevant Criminal Procedure Codes’ provisions had been declared unconstitutional and were no longer in force (see paragraphs 9-21 above). The Government submitted all the relevant documents in this regard and averred that it was the applicant who ought to have informed the Court of these developments.

31. The applicant submitted that she had exhausted the domestic remedies by lodging a constitutional appeal, and the constitutional appeal had not even been an effective remedy at the time. She maintained that no other remedy was available, given that the impugned agreement had been confidential. In particular, a protection request to the Agency could not be regarded as available and effective, as the Agency had only started up in 2010, and in any event that remedy did not allow either herself or anybody else the effective control to which they were entitled. She submitted that the Agency had stated that M-tel had complied with its decision, but that statement had not been proved by a single piece of evidence. The Constitutional Court decisions additionally confirmed that she had no other remedy at her disposal.

32. The applicant contested that she had abused the right of petition.

B. The Court’s assessment

33. The Court notes the Government’s objections relating to non‑exhaustion of domestic remedies, resolution of the matter, and the applicant’s victim status, but it does not consider it necessary to examine them, as it finds the present case inadmissible in any event for the following reasons.

34. The Court reiterates that, in accordance with Rule 47 § 7 of the Rules of Court, applicants shall keep the Court informed of all circumstances relevant to an application. It further reiterates that incomplete and therefore misleading information may also amount to abuse of the right of petition, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see, for example, Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).

35. Turning to the present case, the Court notes that in her application lodged on 14 March 2011 the applicant complained regarding a violation of her rights under Article 8 of the Convention as a result of an agreement concluded between the police and her mobile telecommunication provider enabling the police to access directly the provider’s database in an uncontrolled manner. On 5 April 2016 the Court communicated the applicant’s complaint to the respondent Government. In their observations submitted on 26 July 2016 the Government informed the Court, inter alia, that: (a) the implementation of the impugned agreement had been discontinued pursuant to inspections conducted by the Agency of its own motion at both the telecommunication provider and the police offices; (b) the impugned agreement had been declared null and void pursuant to the applicant’s civil claim to that effect; and (c) the relevant part of the Criminal Procedure Codes’ provisions, on which the said police powers had been based, had been declared unconstitutional by the Constitutional Court pursuant to, inter alia, a proposal by MANS, whose executive director was the applicant. The applicant omitted to inform the Court of any of these developments. In her letter of 13 September 2016, sent in response to the Government’s observations, she expressed certain doubts as to whether the implementation of the impugned agreement had actually been discontinued. However, she did not deny any of the other information provided by the Government.

36. Even assuming that the applicant was not aware of the inspections conducted by the Agency, she failed to provide the Court with any explanation whatsoever for her failure to disclose the information about the outcome of the civil proceedings in which the impugned agreement had been declared null and void, or the proceedings before the Constitutional Court. She was fully aware of both sets of proceedings, given that they had been initiated either by her or by the NGO run by her.

37. In the light of the new developments brought to its attention, and given the importance of the information in issue for the proper determination of the present case, the Court considers that it is appropriate to reject the application as a whole as contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention (see Margaryan v. Armenia (dec.), no. 72733/10, § 34, 4 June 2013, and, mutatis mutandis, Gross, cited above, § 33), and pursuant to Article 35 §§ 3 and 4 of the Convention (see, mutatis mutandis, Pejović v. Montenegro (dec.), no. 22668/08, §§ 28-33, 29 September 2015; Milošević v. Serbia (dec.), no. 20037/07, § 43, 5 July 2011; and Tatalović and Ɖekić v. Serbia (dec.), no. 15433/07, 29 May 2012).

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 14 September 2017.

Hasan BakırcıRobert Spano
              Deputy RegistrarPresident

[1]. Direct translation of the relevant part of the statutory provision.

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