Digital Surveillance vs. Privacy in Serbia

This page contains information on digital surveillance carried out by state authorities for the purposes of criminal proceedings or the protection of national security, digital privacy rights in relation to such surveillance and criminal offenses against digital privacy

Digital Surveillance >> 

Digital Privacy >>

DIGITAL SURVEILLANCE

Digital surveillance implies the use of means and technologies for:

  • disclosure
  • monitoring
  • interception
  • collecting
  • processing
  • interpretation
  • analysis
  • preservation
  • transfer 
  • retention

of personal data and communication of individuals and groups

Penetration into digital privacy of citizens is an inevitable consequence of such surveillance

Most digital surveillance technologies are highly invasive to human rights and freedoms, and are particularly intrusive in relation to digital privacy. 

Is existence of digital surveillance state justified?

States around the world have come under severe public criticism for using digital surveillance technologies to collect vast amounts of information on citizens. Contrary to the declarative determination and justification by ever-existing (new-old) threats, there is little evidence that this kind of mass surveillance is effective in achieving the interests of criminal proceedings or national security.

Is Serbia the state of digital surveillance?

In Serbia, as in other countries, the law prescribes the powers of state authorities to implement digital surveillance for the purpose of conducting criminal proceedings or protecting national security. The exercise of these powers limits the rights of Serbian citizens. 

In order to access the relationship between digital surveillance and digital privacy in Serbia

we consider

  • which state authorities are authorized to conduct digital surveillance
  • what legislation regulates the powers of state authorities to carry out digital surveillance
  • koja ovlašćenja za sprovođenje digitalnog nadzora imaju državni organi

STATE AUTHORITIES

Which state bodies are authorized to conduct digital surveillance?

For the purpose of protecting security

  • Security Intelligence Agency (SIA)
  • Military Security Agency (MSA)
  • Military Intelligence Agency (MIA)
  • Police

For the purpose of conducting criminal procedure

  • Security Intelligence Agency (SIA)
  • Military Security Agency (MSA)
  • Military Intelligence Agency (MIA)
  • Police

Their powers, conditions, duration and use of the results of those powers are regulated by law

Legislation

What legislation regulates the powers of state authorities to carry out digital surveillance?

  • This law established SIA as a special organization
  • The organization and control of its work is regulated
  • The tasks and the way of performing them are determined:
  1. protection of the security of the Republic of Serbia
  2. detection and prevention of activities aimed at undermining or overthrowing the order established by the Constitution of the Republic of Serbia
  3. research, collection, processing and assessment of security-intelligence data and knowledge of importance for the security of the Republic of Serbia 
  4. informing competent state authorities about these data
  5. other tasks determined by law
  • Jedan od “drugih” poslova utvrđen zakonom je sprovođenje posebnih dokaznih radnji za potrebe krivičnog postupka, u skladu sa Zakonikom o krivičnom postupku

Link

  • This law regulates the competences, tasks, powers, supervision and control of the Military Security Agency (MSA) and the Military Intelligence Agency (MIA), cooperation, as well as other issues of importance for their work.
  • MSA and MIA are administrative bodies within the Ministry of Defense
  • They perform security-intelligence tasks of importance for defense

MSA is responsible for security and counter-intelligence protection of the Ministry of Defense and the Serbian Army, within which it performs security, counter-intelligence and other tasks and tasks of importance for the defense of the Republic of Serbia, and within that it performs, among other things, the following tasks :

  • discovers, investigates and collects evidence for criminal acts endangering secret data and criminal acts against the security of computer data, prescribed by the Criminal Code, the law regulating the secrecy of data, as well as other laws when the said criminal acts are directed against the Ministry of Defense and the Serbian Armed Forces

  • detects, monitors and disables intelligence activities, subversive and other activities of foreign countries, foreign organizations, groups or persons directed against the Ministry of Defense and the Serbian Armed Forces;

  • detects, monitors and disables internal and international terrorism, extremism and other forms of organized violence directed against the Ministry of Defense and the Serbian Army;

  • discovers, investigates and collects evidence for criminal offenses against the constitutional order and security of the Republic of Serbia, criminal offenses against humanity and other goods protected by international law, criminal offenses of organized crime, criminal offense of money laundering, as well as criminal offenses of corruption (abuse of official position, trading in influence , accepting bribes and giving bribes) and if they are not the result of the actions of an organized criminal group, within the Ministry of Defense and the Serbian Army.

If these activities and acts towards the Ministry of Defense and the Serbian Armed Forces are undertaken by persons who are not members of the Serbian Armed Forces and employees in the Ministry of Defense, MSA carries out its activities and measures with mandatory cooperation with SIA or police, with whom it jointly determines the way of further action.

Also, the VBA participates in the implementation of special evidentiary actions for the purposes of criminal proceedings, in accordance with Criminal Procedure Code

In addition, it cooperates and exchanges data with services, organizations and institutions dealing with security affairs, as well as with the security services of other countries.

 

MIA is responsible for performing intelligence tasks of importance for defense, which relate to the collection, analysis, assessment, protection and delivery of data and information about potential and real threats, activities, plans or intentions of foreign states and their armed forces. forces, international organizations, groups and individuals.

Performs, among other things, the following tasks:

  • collects and checks data and information, processes, analyzes, evaluates and submits them to competent authorities;
  • cooperates and exchanges information and data with services, organizations and institutions of the Republic of Serbia that deal with security and intelligence affairs, as well as with services of other countries and organizations in accordance with established security and intelligence policy, international agreements and assumed obligations;
  • stores collected data and information in accordance with the law, by-laws and protects them from unauthorized disclosure, disclosure, use, loss or destruction;
  • requests from the competent security services security checks of legal and natural persons when it is necessary to perform tasks within the competence of the MSA determined by this law

 

MSA and MIA cooperate with each other and exchange data, in a manner regulated by the Minister of Defense

 

MSA and MIA cooperate and exchange data with the competent authorities, organizations, services and bodies of the Republic of Serbia, as well as with the security services of other countries and international organizations, in accordance with the Constitution, the law, other regulations and general acts. determined by the security and intelligence policy of the Republic of Serbia and confirmed international agreements

 

Link

This law regulates internal affairs, the organization and competence of the Ministry of the Interior, the organization and competence of the Police, police affairs (and the method of investigation), police measures and actions and police powers, as well as other issues of importance for the work of the Police and the Ministry.

Police affairs are part of the internal affairs performed by the Police, by using police powers, measures and actions, in order to achieve security protection of lives, rights and freedoms of citizens, property protection, as well as support for the rule of law:

1) crime prevention and improvement of safety in the community;

2) detection and investigation of criminal acts, provision of evidence, their analysis, criminal forensic expertise using modern forensic methods and records and discovery of property resulting from a criminal act;

3) detection and investigation of misdemeanors and economic offenses;

4) detection and arrest of perpetrators of criminal acts, misdemeanors and other wanted persons and bringing them to the competent authorities;

5) maintaining public order and peace, preventing violence at sports events, providing assistance in executions in accordance with the law;

6) regulation, control, provision of assistance and supervision in road traffic and other tasks from regulations on traffic safety;

7) security of certain public gatherings, persons, facilities and spaces;

8) security protection of certain persons and facilities;

9) state border control, affairs related to the movement and residence of foreigners, asylum affairs, cross-border crime, irregular migration and readmission;

10) execution of tasks determined by the regulations on weapons, private security and detective work;

11) security protection of the Ministry;

12) execution of other police duties and tasks determined by the law and by-laws of the Ministry adopted on the basis of authorization from the law

  • Police powers are more closely regulated by Rulebook
  • The tasks of detecting and investigating criminal acts and uncovering and arresting perpetrators are performed on the basis of this law and on the basis of and in accordance with Criminal Procedure Code

Link

  • Regulates the jurisdiction of the court and the public prosecutor's office, the powers of the police for the purposes of criminal proceedings, the rights and duties of the defendant and participants in the proceedings
  • Contains the rules on gathering evidence and the rights of the person in relation to whom these actions are taken

Special evidentiary actions are extremely invasive to the rights of the suspect (and third parties affected), and the following are the powers to implement digital surveillance:

  1. Covert Supervision of Communication (Art. 166-170)
  2. Covert Surveillance and Recording (Art. 171-173)
  3. Computer Data Search (Art. 178-180)

These special evidentiary actions are carried out by:

  • police
  • Security Information Agency (SIA)
  • Military Security Agency (MSA)

Link

POWERS

What powers do state authorities have to conduct digital surveillance?

SIA

Based on LSIA

It applies appropriate operational methods, measures and actions, as well as appropriate operational-technical means which ensure the collection of data and notifications (Article 9)

  • the decision on the application of measures and methods is made by the Director of the Agency or a person authorized by him
  • regarding these measures and methods nothing else is regulated by law

Among the powers to carry out digital surveillance are special measures that deviate from the inviolability of the secrecy of letters and other means of communication

 

1) secret surveillance and recording of communications, regardless of the form and technical means through which the communication is carried out, or surveillance of electronic or other addresses

  • under this measure, covert surveillance and recording of places, premises and objects may be authorized, including automatic data processing devices and equipment on which electronic records are stored or may be stored

2) secret surveillance and recording of communication in public places and places to which access is restricted or in premises

  • under this measure, covert surveillance and recording of places, premises and objects may be authorized, including automatic data processing devices and equipment on which electronic records are stored or may be stored

 

3) statistical electronic monitoring of communication and information systems in order to obtain data on communication or the location of used mobile terminal equipment;

 

4) computer search of already processed personal and other data and their comparison with data that were collected using the previous measures

  • Special measures can be determined for a person, group or organization for which there are grounds for suspicion of undertaking or preparing actions directed against the security of the Republic of Serbia, and the circumstances of the case indicate that otherwise those actions could not be detected, prevented or proven or it would caus disproportionate hardship or great danger
  • When deciding on the determination and duration of special measures it will be especially appreciated whether the same result could be achieved in a way that less restricts the rights of citizens, to the extent necessary to the purpose of limitation is satisfied in a democratic society

The reasoned proposal of the Director of the Agency contains

  • the name of the special measure
  • available data on the person, group or organization to which it will be applied
  • existence of conditions for its determination and
  • duration

The proposal is decided by:

  • president of the High Court in Belgrade, or
  • the judge he designates among the judges who are assigned to the Special Department of that court, which is determined by law to deal with criminal cases of organized crime, corruption and other particularly serious crimes.

The decision on the proposal is made within 48 hours from the time of submission of the proposal

 

The Order on determining a special measure contains:

  • the name of the special measure
  • available data on the person, group or organization to which it will be applied
  • reasons
  • method of application
  • extent
  • duration

 

  • The special measure can last three months (this is how it is determined)
  • Due to the necessity of detection, prevention or collection of evidence, it can be extended a maximum of three more times for a duration of three months each (Art. 15a)

 

 

If during the application of a special measure it becomes known that a person, group or organization (in relation to which the measure was determined) is using

  • drugo sredstvo komunikacije,
  • electronic or
  • other address, or
  • that communication is carried out in other places where access is restricted, or
  • or in other places

the director of the Agency is immediately informed about this, who can order the extension of special measures

 

The Director of the Agency, within 48 hours from the passing of the order, then submits a proposal for subsequent approval of the extension of the application of the special measure, on which is decided within 48 hours from the time of receipt of the proposal, by:

  • president of the High Court in Belgrade, or
  • the judge he designates among the judges who are assigned to the Special Department of that court, which is determined by law to deal with criminal cases of organized crime, corruption and other particularly serious crimes.

 

If he rejects the proposal, the material collected until then is destroyed, in the presence of the judge, who draws up a report on it

The collected data and notifications are used for the purpose of eliminating and preventing the undertaking or preparation of actions directed against the security of the Republic of Serbia

  • Nothing more specific is written in the law

 

If, during the application of special measures, material about a criminal offense was collected, in relation to which special evidentiary actions can be determined (Art. 162 of the CPC), the material is submitted to the competent public prosecutor's office

  • The material is further handled in accordance with the CPC

Based on CPC

An order on the implementation of special evidentiary actions for the purpose of collecting evidence for criminal proceedings may determine that the action is carried out by SIA

 

  1. Covert Supervision of Communication (Art. 166-170)
  2. Covert Surveillance and Recording (Art. 171-173)
  3. Simulated Deals
  4. Computer Data Search (Art. 178-180)
  5. Controlled Delivery
  6. Undercover Investigator

Special evidentiary actions can be determined against a person for whom there are grounds of suspicion of having committed one of the criminal acts from Art. 162, and

  • otherwise, evidence for prosecution cannot be gathered or it would
  • their collection would be much more difficult

Special evidentiary actions exceptionally can also be determined against a person for whom there are grounds for suspicion of preparation one of the criminal acts from art. 162, and the circumstances of the case indicate that

  • otherwise the crime could not be detected, prevented or proved, or it would
  • cause disproportionate hardship or great danger

 

Special evidentiary actions can be determined for the following criminal acts:

1) for which a special law has determined that the public prosecutor's office of special jurisdiction acts;

2) for criminal act listed in detail

3) prevention and obstruction of evidence (Art. 336 para. 1 CC) if it was committed in connection with the criminal offense referred to in points 1) and 2) 

An undercover investigator can only be appointed for criminal offenses from item 1)

Secret surveillance of communications can also be ordered for certain criminal offenses against the security of computer data

On the reasoned proposal of the public prosecutor, the order is issued by the court (except for controlled delivery, which is ordered by the public prosecutor of the Republic, that is, the public prosecutor of special jurisdiction)

 

Monitoring and recording of

  • communication carried out by telephone or other technical means, or
  • surveillance of the electronic or other address of the suspect, or
  • confiscation of letters and other shipments

subsequent extension is possible - if during the course of enforcement it is found out that the suspect uses another phone number or address

 

Duration:

  • three months
  • due to the necessity of further collection of evidence, it can be extended by a maximum of three months
  • for criminal offenses for which the special prosecutor's office is responsible - it can exceptionally be extended a maximum of two more times for a duration of three months each

Postal, telegraph and other companies, legal entities and persons registered for the transmission of information are obliged to enable monitoring and recording of communication to the authority executing the order and, with confirmation of receipt, deliver letters and other parcels

It is performed for

1) revealing contacts or communication of the suspect in public places and places where access is limited or in premises, except in an apartment;

2) determining the identity of a person or locating a person or thing

Places or premises and means of transport of other persons may be subject to secret surveillance and recording only if it is likely that the suspect will be present there or use those means of transport

Duration:

  • three months
  • due to the necessity of further collection of evidence, it can be extended by a maximum of three months
  • for criminal offenses for which the special prosecutor's office is responsible - it can exceptionally be extended a maximum of two more times for a duration of three months each

A computer search of already processed personal and other data is performed and their comparison with data related to the suspect and the criminal offense

 

Duration:

  • three months at most
  • due to the necessity of further collection of evidence, it can exceptionally be extended a maximum of two more times for a duration of three months each

 

MSA

Based on LMSAMIA

Among the powers to perform digital surveillance, the following stand out:

1.

Data collection (Art. 7-9)

1) from public sources;

2) from natural and legal persons;

3) from state bodies, organizations and services, as well as from holders of public authority

  • State bodies, organizations and services, bodies of autonomous provinces, local self-government units, organizations that exercise public powers and legal entities (all legal entities) are obliged to provide authorized officials of the MSA with access to:
  • registers
  • databases
  • electronic databases and other official documentation
  • as well as access to other data of importance for the application of the powers of the MSA, except for the security services and the police, with which the data exchange is carried out in accordance with the laws regulating the security services and the police

2.

secret collection of data using special procedures and measures (Art. 10-21)

  • Postal, telegraph and other public companies, companies and persons registered for telecommunication operator jobs, other means of information transmission and postal delivery jobs are obliged to provide conditions and enable the MSA to apply measures of secret data collection and execution of special procedures

1) operative penetration into organizations, groups and institutions;

2) secret acquisition and purchase of documents and objects;

3) secret inspection of data records, in accordance with the law;

secret monitoring and surveillance of persons in open spaces and public places with the use of technical means

5) secret electronic surveillance of telecommunications and information systems in order to collect retained data on telecommunications traffic, without insight into their content;

6) secret recording and documenting of conversations outdoors and indoors using technical means;

7) secret surveillance of the content of letters and other means of communication, including secret electronic surveillance of the content of telecommunications and information systems;

8) secret surveillance and recording of the interior of buildings, closed spaces and objects

Data

  • cannot be collected in any other way, or
  • their collection is related to a disproportionate risk to life and health of people and property, i.e. with disproportionate costs.

In the event that there is a possibility of choosing between several special procedures and measures, the measure that least encroaches on human rights and freedoms guaranteed by the Constitution will be applied.

On the basis of the written and reasoned order of the director of the MSA or an authorized official of the MSA authorized by him, the following is undertaken:

  1. operative penetration into organizations, groups and institutions;
  2. secret acquisition and purchase of documents and objects;
  3. secret inspection of data records, in accordance with the law;
  4.  secret monitoring and surveillance of persons in open spaces and public places with the use of technical means

 

Secret electronic surveillance of telecommunications and information systems in order to collect retained data on telecommunications traffic, without insight into their content, is approved by the competent high court, on the proposal of the director of MSA or an authorized official of MSA authorized by him, which contains

  • the name of the special procedure and measure
  • data about the person, group and organization to which it will be applied
  • the reasons for which a special procedure and measure is implemented
  • place and duration

 

Based on the written and reasoned decision of the Supreme Court of Cassation, and on the proposal of the director of the MSA, the following are implemented:

  1.  secret recording and documenting of conversations outdoors and indoors using technical means;
  2.  secret surveillance of the content of letters and other means of communication, including secret electronic surveillance of the content of telecommunications and information systems;
  3.  secret surveillance and recording of the interior of buildings, closed spaces and objects

These are applied as long as there are reasons for their application:

  • operative penetration into organizations, groups and institutions;
  • secret acquisition and purchase of documents and objects;
  •  secret inspection of data records, in accordance with the law;
  •  secret monitoring and surveillance of persons in open spaces and public places with the use of technical means

These are applied for six months, and based on the new proposal, they can be extended one more time, for a maximum of six months:

  • secret electronic surveillance of telecommunications and information systems in order to collect retained data on telecommunications traffic, without insight into their content;
  • secret recording and documenting of conversations outdoors and indoors using technical means;
  • secret surveillance of the content of letters and other means of communication, including secret electronic surveillance of the content of telecommunications and information systems;
  •  secret surveillance and recording of the interior of buildings, closed spaces and objects

 

MSA uses the collected data for preventive purposes, i.e. with the aim of preventing threats directed at the Ministry of Defense and the Serbian Armed Forces.

 

Collected data cannot be used as evidence in criminal proceedings

  • if the data indicates the preparation or execution of a criminal offense for which is prosecuted ex officio, MSA informs the competent public prosecutor's office of the grounds for suspicion
  • the notification does not contain data on the applied special procedures and measures
  • MSA can propose to the competent prosecutor's office the application of measures for criminal offenses of organized crime, corruption and other extremely serious criminal offenses, under the conditions and in the manner prescribed by the CPC

Towards person, group and organization:

  • employees of the Ministry of Defense and members of the Serbian Armed Forces

Towards other natural persons - with duty to inform SIA or the police, with whom it jointly determines the method of further action, MSA can apply:

secret monitoring and surveillance of persons in open spaces and public places with the use of technical means

  1. secret electronic surveillance of telecommunications and information systems in order to collect retained data on telecommunications traffic, without insight into their content;
  2.  secret recording and documenting of conversations outdoors and indoors using technical means;
  3. secret surveillance of the content of letters and other means of communication, including secret electronic surveillance of the content of telecommunications and information systems;
  4. secret surveillance and recording of the interior of buildings, closed spaces and objects

 

An authorized official of MSA has access to all places in order to install devices to apply special procedures and measures

 

 

Based on CPC

An order on the implementation of special evidentiary actions for the purpose of collecting evidence for criminal proceedings may determine that the action is carried out by MSA

 

  1. Covert Supervision of Communication (Art. 166-170)
  2. Covert Surveillance and Recording (Art. 171-173)
  3. Simulated Deals
  4. Computer Data Search (Art. 178-180)
  5. Controlled Delivery
  6. Undercover Investigator

Special evidentiary actions can be determined against a person for whom there are grounds of suspicion of having committed one of the criminal acts from Art. 162, and

  • otherwise, evidence for prosecution cannot be gathered or it would
  • their collection would be much more difficult

 

Special evidentiary actions exceptionally can also be determined against a person for whom there are grounds for suspicion of preparation one of the criminal acts from art. 162, and the circumstances of the case indicate that

  • otherwise the crime could not be detected, prevented or proved, or it would
  • cause disproportionate hardship or great danger

 

Special evidentiary actions can be determined for the following criminal acts:

1) for which a special law has determined that the public prosecutor's office of special jurisdiction acts;

2) for criminal act listed in detail

3) prevention and obstruction of evidence (Art. 336 para. 1 CC) if it was committed in connection with the criminal offense referred to in points 1) and 2) 

An undercover investigator can only be appointed for criminal offenses from item 1)

Secret surveillance of communications can also be ordered for certain criminal offenses against the security of computer data

On the reasoned proposal of the public prosecutor, the order is issued by the court (except for controlled delivery, which is ordered by the public prosecutor of the Republic, that is, the public prosecutor of special jurisdiction)

 

Monitoring and recording of

  • communication carried out by telephone or other technical means, or
  • surveillance of the electronic or other address of the suspect, or
  • confiscation of letters and other shipments

subsequent extension is possible - if during the course of enforcement it is found out that the suspect uses another phone number or address

 

Duration:

  • three months
  • due to the necessity of further collection of evidence, it can be extended by a maximum of three months
  • for criminal offenses for which the special prosecutor's office is responsible - it can exceptionally be extended a maximum of two more times for a duration of three months each

Postal, telegraph and other companies, legal entities and persons registered for the transmission of information are obliged to enable monitoring and recording of communication to the authority executing the order and, with confirmation of receipt, deliver letters and other parcels

It is performed for

1) revealing contacts or communication of the suspect in public places and places where access is limited or in premises, except in an apartment;

2) determining the identity of a person or locating a person or thing

Places or premises and means of transport of other persons may be subject to secret surveillance and recording only if it is likely that the suspect will be present there or use those means of transport

Duration:

  • three months
  • due to the necessity of further collection of evidence, it can be extended by a maximum of three months
  • for criminal offenses for which the special prosecutor's office is responsible - it can exceptionally be extended a maximum of two more times for a duration of three months each

A computer search of already processed personal and other data is performed and their comparison with data related to the suspect and the criminal offense

 

Duration:

  • three months at most
  • due to the necessity of further collection of evidence, it can exceptionally be extended a maximum of two more times for a duration of three months each

 

DIGITAL PRIVACY

The laws should be in accordance with the Constitution and international standards for the protection of human rights, especially with regard to the right to digital privacy

A socially responsible model of digital surveillance carried out on citizens by state authorities for the stated purposes is necessary to exit

Although the State's need for digital surveillance is somewhat indisputable, the procurement of surveillance technologies, conditions, cases and authorizations for their use must be in accordance with the Constitution and international legal standards for the protection of human rights, and therefore strictly prescribed by law

The law should be consistently applied in each and every individual case, respecting the conditions for the restriction of human rights guaranteed by the Constitution

Legel rules for transparent procurement and responsible use of digital surveillance technologies must be designed and folowwed respectfully

This is the only way to ensure that digital surveillance in Serbia is socially responsible.

Otherwise, there is a real danger that the use of digital surveillance technologies is indiscriminate, unjustified by important interests in a democratic society, with a continuous threat and violation of human rights, and without the necessary supervision.

There is a particular risk if unregulated and/or unchecked surveillance is aimed at unwanted, subversive elements, such as government critics or journalists.

In creating such a model, it is necessary to actively involve the following actors:

  • legislator
  • executive authority
  • judiciary

to design/improve mechanisms, implement and control acquisition and use surveillance technologies in a transparent and responsible manner, so that digital surveillance does not turn into an instrument of undermining and making digital privacy meaningless

  • general public
  • expert public
  • academia

to monitor and gain insight into the procurement and use of surveillance technologies and to make recommendations for minimizing the possibilities of endangering and violating digital privacy

In order to access the relationship between digital privacy and digital surveillance in Serbia

starting from the Constitution, the following is demonstrated

DIGITAL PRIVACY RIGHTS

By exercising the authority for digital surveillance, the competent authorities encroach on the rights of digital privacy

The Constitution guarantees human rights that are considered elements of the right to privacy, although it does not use this term

Inviolability of the apartment (Art. 40)

1)

The apartment is inviolable.

 

2)

No one can enter someone else's apartment or other premises against the will of their holder, nor search them without a written decision of the court. The owner of the apartment and other premises has the right to attend the search by himself or through his representative and with two other adult witnesses. If the owner of the apartment or his representative is not present, the search is allowed in the presence of two adult witnesses.

 

3)

Without a court decision, entry into someone else's apartment or other premises, exceptionally and searches without the presence of witnesses, are allowed if it is necessary for the immediate deprivation of freedom of the perpetrator of a criminal offense or the elimination of immediate and serious danger to people or property, in the manner provided by law.

The Constitution guarantees the right to inviolability of the apartment as one of the privacy rights

Against the will of the owner of the apartment, no one can

  • enter the apartment, or
  • search it

Ustavnopravna zaštita stana “proteže se” i na računar.

The right applies directly upon the Constitution

The right can be limited according to the conditions and according to the procedure prescribed by the Constitution

Restriction possible only for the purpose of criminal proceedings

Cases when limitation is possible:

  1. by court decision (para. 2)
  2. without court decision (para. 3)

In both cases, the limitation of rights, i.e. entering someone else's apartment and searching the apartment is done in the manner prescribed by law

Secrecy of letters and other means of communication (Art. 41)

1)

The secrecy of letters and other means of communication is inviolable.

 

2)

Deviations are allowed only for a certain period of time and based on a court decision, if they are necessary for conducting criminal proceedings or protecting the security of the Republic of Serbia, in the manner provided by law.

The Constitution guarantees the right to secrecy of communication as one of the rights to privacy

 

Persons who are not participants in the communication cannot find out the content of the means of communication

The right applies directly upon the Constitution

The right can be limited under the conditions and for the reasons prescribed by the Constitution:

  1. only based on a court decision
  2. for a limited time
  3. if the restriction is necessary for conducting criminal proceedings, or
  4. if the restriction is necessary to protect national security

The restriction is carried out in the manner prescribed by law:

  • CPC - for the purpose of criminal proceedings
  • LSIA and LMSAMIA - for the purpose of protecting national security

Personal data protection (Art. 42)

1)

Protection of personal data is guaranteed.

2)

Collection, storage, processing and use of personal data are regulated by law.

3)

The use of personal data outside the purpose for which it was collected in accordance with the law, is punishable and prohibited, except for the purposes of conducting criminal proceedings or protecting the security of the Republic of Serbia, in the manner provided by law.

4)

Everyone has the right to be informed about the collected data about their person, in accordance with the law, and the right to judicial protection due to their misuse.

The Constitution guarantees the protection of personal data as one of the rights to privacy

The person about whom the personal data is collected, kept, processed and used has:

  • certain rights arising from the Personal Data Protection Act
  • the right not to have personal data used outside of the purpose for which it was collected, in accordance with the law
  • the right to be informed about data collected about his person, in accordance with the law
  • the right to judicial protection due to misuse of personal data, in accordance with the law

The law is not applied directly, but Personal Data Protection Act governs the collection, holding, processing and use of personal data

The right of a person not to have his personal data used outside of the purpose for which it was collected, in accordance with the law, may be limited in the manner provided by the law only

  • for the purposes of conducting criminal proceedings - CPC and LP
  • protection of the security of the Republic of Serbia - LSIA and LMSAMIA

EXERCISING THE RIGHTS

Human rights guaranteed by the Constitution are directly applicable - anyone can refer directly to the Constitution.

The law does not prescribe how the right is exercised.

The law can determine only the way of exercising individual rights, so that the essence of the rights is not affected, and only if:

  • The Constitution gives the legislator express authority for that particular right, or
  • due to the nature of the right, it is necessary for the law to regulate the manner in which it is realized
  1. The right to inviolability of the apartment is applied directly on the basis of the Constitution
  2. The right to secrecy of letters and other means of communication applies directly on the basis of the Constitution
  3. The right to protection of personal data is applied in the manner prescribed by Personal Data Protection Act (PDPA)

Exercising the right to protection of personal data

The processing of personal data through the exercise of digital surveillance powers is, in the sense of the Personal Data Protection Act, is referred as data processing for special purposes

It is about the processing carried out by the competent authorities for the purposes of

  • prevention, investigation and detection of criminal acts,
  • prosecution of perpetrators of criminal acts, or
  • enforcement of criminal sanctions,
  • prevention and protection against threats to public and national security

The person to whom the data refers has certain rights, which correspond to the obligations of the operator

With regard to the processing of data for special purposes, the person to whom the personal data refers has the following rights:

Right to information and access

The person to whom the data refers has the right to gain the following from the operator:

  • information on whether his personal data are processed by the operator,
  • access to that data,
  • following informations:

1) on the purpose of processing and the legal basis for processing;

2) on the types of personal data that are processed;

3) about the recipient or types of recipients to whom the personal data was disclosed, especially recipients in other countries or international organizations;

4) on the expected period of storage of personal data or, if this is not possible, on the criteria for determining that period;

5) on the existence of the right to request from the operator the correction or deletion of his personal data, that is, the right to limit the processing of such data;

6) on the right to submit a complaint to the Commissioner, as well as the contact details of the Commissioner;

7) information about personal data being processed, as well as available information about their source.

The right of access can be restricted

  • in whole or in part
  • only to that extent 
  • for the duration in which such partial or total limitation is necessary
  • if it represents a proportionate measure in a democratic society
  • while respecting the basic rights and legitimate interests of the person whose data is being processed
  • in order to:

1) avoid interference with official or legally regulated collection of information, investigations or procedures;

2) facilitate the prevention, investigation and detection of criminal acts, the prosecution of perpetrators of criminal acts or the execution of criminal sanctions;

3) protection of public safety;

4) protection of national security and defense;

5) protection of the rights and freedoms of other persons.

 

The operator is obliged to:

  • to notify the person to whom the data refer in writing that access to his personal data has been refused or restricted, as well as the reasons for the refusal or restriction, without undue delay, and at the latest within 15 days (but he does not have to do so, if this would brought into question the achievement of the purpose for which access was denied or restricted) 
  • documents the factual and legal reasons for making a decision on the restriction of rights, which must be made available to the Commissioner, upon his request
  • without undue delay, and within 15 days at the latest, in the event that the request for data access determines that the requester's personal data is not processed, inform the requester in writing that the check has established that there is no personal data in connection with which the rights provided for by law can be exercised, as well as that a complaint can be addressed to the Commissioner, that is, a lawsuit can be filed with the court.

 

  • The request is submitted to the operator
  • The rights of the person to whom the data refer can also be exercised through the Commissioner, in accordance with his powers prescribed by this law
  • The operator is obliged to inform the person to whom the data refer that he can exercise his rights through the Commissioner
  • If the rights of the person to whom the data refer are exercised through the Commissioner, the Commissioner is obliged to inform that person at least that the check and supervision of the processing of his personal data has been carried out, as well as the right to apply to the court for the protection of his rights
  • How and to whom to address?

Right to rectification, amendment, deletion, limitation and portability

If the processing is carried out by the competent authorities for special purposes, the person to whom they refer has the right to have his personal data deleted by the operator

 

The operator is obliged to delete this data without undue delay

If by the processing are violated the provisions of

  • Art. 5 (processing is against the principles)
  • Art. 13 (the processing is illegal - it is not necessary for the performance of the work of the competent authorities or is not prescribed by law, which determines at least the goals of the processing, the personal data that are processed and the purposes of the processing)
  • Art. 18. (special types of data were processed contrary to the law)
  • if personal data must be deleted due to the fulfillment of the legal obligation of the operator

The operator is obliged to limit the processing, instead of deleting the personal data, if it is one of the following cases:

1) the accuracy of personal data is disputed by the person to whom the data relates, and their accuracy or inaccuracy cannot be determined;

2) personal data must be preserved in order to collect and secure evidence.

 

If the processing is restricted, the controller is obliged to inform the data subject about the termination of the restriction, before the restriction ceases to be valid

 

1.

The operator is obliged to:

  • inform the person to whom the data refer in writing
  • about refusing to correct or delete his personal data, i.e. limiting processing
  • on the reasons for that refusal or limitation

In that case, he is obliged to inform the person to whom the data refer that he can file a complaint with the Commissioner, that is, file a lawsuit with the court.

 

2.

The operator is completely or partially released from the obligation to notify

  • to the extent that such limitation represents a necessary and proportionate measure in a democratic society,
  • while respecting the basic rights and legitimate interests of the person whose data is being processed
  • in ordert to

1) avoid interfering with official or legally regulated collection of information, investigation or procedures;

2) enable prevention, investigation and detection of criminal acts, the prosecution of perpetrators of criminal acts or the execution of criminal sanctions;

3) protect public safety;

4) protect national security and defense;

5) protect the rights and freedoms of other persons.

 

In that case, he is obliged to inform the person to whom the data refer that he can file a complaint with the Commissioner, that is, file a lawsuit with the court.

 

 

  • The request is submitted to the operator
  • The rights of the person to whom the data refer can also be exercised through the Commissioner, in accordance with his powers prescribed by this law
  • The operator is obliged to inform the person to whom the data refer that he can exercise his rights through the Commissioner
  • If the rights of the person to whom the data refer are exercised through the Commissioner, the Commissioner is obliged to inform that person at least that the check and supervision of the processing of his personal data has been carried out, as well as the right to apply to the court for the protection of his rights
  • How and to whom to address?

The right to object to the automated making of individual decisions

If he considers it justified in relation to his particular situation, the data subject has the right to submit an objection to the controller at any time to the processing of his personal data, including profiling based on those provisions

The controller is obliged to stop processing the data of the person who filed the complaint, unless he has presented that there are legal reasons for the processing that prevail over the interests, rights or freedoms of the person to whom the data refer or are related to the submission, exercise or defense of legal demands

It is forbidden to

  • make a decision solely on the basis of automated processing carried out by competent authorities for special purposes, including profiling, if such a decision can produce harmful legal consequences for the person to whom the data refer or significantly affect the position of that person, unless the making of that decision is based on the law and if that law prescribes appropriate measures to protect the rights and freedoms of the person to whom the data refer, and at least the right to ensure the participation of a natural person under the controller's control in making a decision - however, such a decision cannot be based on special types of data about persons, unless appropriate measures are applied to protect the rights, freedoms and legitimate interests of the persons to whom the data refer.
  • profile that leads to discrimination of natural persons based on special types of personal data 

LIMITATION OF RIGHTS

How regulation and enforcement of digital surveillance limit digital privacy rights?

Constitution in Art. 20 stipulates that rights can be limited ONLY

  • by law (not in by-laws, such as the rulebook)
  • if the Constitution allows such limitation
  • for the purposes for which the Constitution allows limitation
  • to the extent necessary to satisfy the constitutional purpose of the restriction in a democratic society
  • without encroaching on the essence of the guaranteed right

Digital privacy rights can only be limited by a law containing powers to implement digital surveillance

Limitation of the inviolability of the apartment

Entry and search are only possible based on a court decision

  • In accordance with CPC (Art. 155-157)

Exceptionally - without a court decision and without the presence of witnesses, if this is necessary for the immediate deprivation of freedom of the perpetrator of the criminal offense or the elimination of immediate and serious danger to people or property, in the manner provided by law

  • In accordance with CPC (čl. 158-160)

Restriction of secrecy of letters and other means of communication

Obtaining records of telephone communication, used base stations and locating the place from which the communication is carried out

  • according to CPC (Art. 286 para. 3-5)

Special evidentiary action secret surveillance of communication 

  • according to CPC (Art.166-170 + 161-165)

Special measures deviating from the inviolability of the secrecy of letters and other means of communication on the basis LSIA (Art. 13-15g):

  • secret surveillance and recording of communications, regardless of the form and technical means through which the surveillance of electronic or other addresses is carried out - in addition, secret surveillance and recording of places, premises and objects, including devices for automatic data processing and equipment on which electronic records are or may be stored
  • secret surveillance and recording of communications in public places and places to which access is restricted or in premises - in addition, secret surveillance and recording of places, premises and objects, including devices for automatic data processing and equipment on which they are stored or can be keep electronic records
  • statistical electronic monitoring of communication and information systems in order to obtain data on communication or the location of used mobile terminal equipment;

Special procedures and measures of secret data collection based on LMSAMIA (Art. 12-18)

  • secret electronic surveillance of telecommunications and information systems in order to collect retained data on telecommunications traffic, without insight into their content
  • secret recording and documenting of conversations outdoors and indoors using technical means
  • secret surveillance of the content of letters and other means of communication, including secret electronic surveillance of the content of telecommunications and information systems

Limitation of protection of personal data

Data collection is carried out in accordance with CPC through the numerous powers of the public prosecutor, the police and the court, and especially through the special evidentiary action computer data search (Art. 178-180)

Based on LSIA 

  • SIA applies appropriate operational methods, measures and actions, as well as appropriate operational and technical means to ensure data collection and notification (Art. 9-10)
  • apply a special measure that departs from the inviolability of the secrecy of letters and other means of communication: computer search of already processed personal and other data and their comparison with the data collected by applying the measures from point 1)–3) (secret surveillance of communication) (Art. 13-15g)

Based on LMSAMIA MSA

  • collects data (Art. 7-11)
  • applies a special procedure and measure of secret data collection: secret inspection of data records (Art. 12-18)

Constitution in Art. 20 stipulates that when restricting human and minority rights, all state authorities are obliged to take care of:

  • the essence of the right that is being limited
  • importance of the purpose of the restriction
  • the nature and extent of restrictions
  • the relationship of restrictions with the purpose of restrictions
  • on whether there is a way to achieve the purpose of the limitation with a lesser limitation of rights

When approving and implementing digital surveillance, state bodies authorized by law are obliged to respect the law and these constitutional principles as well in every individual case

VIOLATIONS OF RIGHTS

What if, during the implementation of digital surveillance, there is an excess or action contrary to or beyond the powers specified by law?

If, during the implementation of digital surveillance, an authorized official exceeds or acts contrary to or beyond the powers specified by law, he might comit a misdemeanor or a criminal offense.

As far as misdemeanors are concerned, it primarily refers to the violation of the rules from PDPA, which bind state bodies (and their officials) who process personal data for special purposes (for the purpose of preventing, investigating and detecting criminal offenses, prosecuting perpetrators of criminal offenses or committing criminal offenses sanctions, including prevention and protection against threats to public and national security)

If they did not act according to the established obligations, these legal or natural persons would commit a violation of the ZZPL.

 

Violations are prescribed in the penal provisions of this law.

With respect to other digital surveillance powers, there is no tort liability as the laws governing them do not contain penal provisions for misdemeanors.

In other words, there could only criminal responsibility, for the criminal offense prescribed in Criminal Code.

MISDEMEANORS

Article 95 of the PDPA prescribes offenses and penalties for violating certain provisions of this law

Violations that can be committed by authorities that process data for special purposes are shown

  • process personal data not respecting the principles of processing from Art. 5
  • process personal data for purposes different from the purpose for which the data was collected, and contrary to Art. 7
  • do not clearly separate personal data that is based solely on the factual situation from personal data that is based on personal assessment, contrary to Art. 10
  • by applying reasonable measures, do not ensure that inaccurate, incomplete and unupdated personal data are not transmitted, that is, that they are not available, contrary to Art. 11
  • process special types of personal data, contrary to Art. 18
  • process personal data in connection with criminal judgments, punishable offenses and security measures, contrary to Art. 19
  • do not make the data available to the person to whom the data refer or do not provide the necessary information, contrary to Article 25 para. 1 and 2
  • do not provide the requested information to the person, do not provide access to the data, that is, if they do not provide a copy of the data they are processing, contrary to Art. 27
  • partially or fully restrict the right to access data to the person to whom the data refer contrary to Art. 28 para. 1
  • do not correct incorrect data or complete incomplete data, contrary to Art. 29.
  • do not delete personal data, contrary to Art. 32
  • they do not inform the person to whom the data refer about the decision to refuse correction, deletion, or restriction of processing, as well as the reason for the refusal, contrary to Art. 34 para. 1
  • do not stop data processing after the person has filed a complaint, contrary to Art. 37 para. 1
  • make a decision that produces legal consequences for the person to whom the data refer exclusively on the basis of automated processing, contrary to Art. 39
  • do not take appropriate technical, organizational and personnel measures when determining the method of processing, as well as during processing, contrary to Art. 42
  • the relationship between the joint operators regulate contrary to Article 43 para. 2-4
  • entrust the processing of personal data to the processor contrary to Art. 45
  • data is processed without an order or contrary to the operator's order, contrary to Art. 46
  • do not notify the Commissioner of a breach of data security, contrary to Art. 52
  • do not notify the person to whom the data refer about the violation of data security, contrary to Art. 53
  • fail to assess the impact on data security protection, contrary to Art. 54
  • do not notify the Commissioner, i.e. do not request the opinion of the Commissioner before starting the processing operation, contrary to Art. 55 para. 3
  • do not designate a person for the protection of personal data, contrary to Art. 56 para. 2
  • did not fulfill obligations towards the person for the protection of personal data, contrary to Art. 57 para. 1-3 (does not apply to processor)
  • transfers personal data to other countries and international organizations contrary to Art. 63, paragraph 2, 64, 66, 68 and 70
  • do not ensure the implementation of effective mechanisms for confidential reporting of cases of injury, contrary to Art. 80
  • process personal data for the purposes of archiving in the public interest, for the purposes of scientific or historical research or for statistical purposes, contrary to Art. 92

Sanctions:

  • operator, i.e. processor that has the status of a legal entity - with a fine of 50,000 to 2,000,000 dinars
  • a natural person, that is, a responsible person in a legal entity, state body, body of territorial autonomy and local self-government unit - with a fine from 5,000 to 150,000 dinars
  • during the transfer of personal data, they do not inform the recipient of the special conditions for processing personal data in accordance with the applicable law and his obligation to fulfill those conditions, contrary to Art. 11 para. 5
  • do not deliver the reasoned decision to the person to whom the data refer, i.e. do not inform the person that access to his personal data has been denied or limited, contrary to Art. 28 para. 3 and 5
  • do not record processing operations, contrary to Art. 48
  • do not publish the contact details of persons for the protection of personal data and do not submit them to the Commissioner (Art. 56, para. 11)

Sanctions:

  • operator, i.e. processor that has the status of a legal entity - a fine in the amount of 100,000 dinars
  • a natural person, that is, a responsible person in a legal entity, state body, that is, body of territorial autonomy and local self-government unit - a fine in the amount of 20,000 dinars

CRIMINAL OFFENCES

Criminal acts against the freedoms and rights of man and citizen (Chapter XIV CC)

Notes:

The perpetrator of these crimes can be anyone. In that case, criminal prosecution is undertaken by private action.

 

However, if the action was taken by an official, there will be a more serious form of crime, for which a more severe punishment is prescribed. In that case, criminal prosecution is carried out ex officio, that is, a criminal report is submitted to the competent public prosecutor.

 

An official is:

  • A person discharging official duties in government authority;
  • Elected, appointed or assigned person in a government authority, local selfgovernment body or a person permanently or periodically discharging official duty or office in such bodies;
  • A notary public, a public enforcer or arbitrator, as well as a person in an institution, enterprise or other entity who is assigned discharge of public authority, who rules on rights, obligations or interests of natural or legal persons or on public interest;
  • An official shall also be a person who is in fact assigned discharge of official duty or tasks;
  • A member of the military.

(Art. 112 para. 1 it. 3 CC)

These criminal acts are prosecuted by private action - the injured party submits it to the basic court, according to the rules on determining the local competent court

 

But, if the perpetrator is the perpetrator, the prosecution is undertaken ex officio (prosecuted by the public prosecutor) - a criminal report is submitted to the competent public prosecutor.

 

The basic public prosecutor would be in charge.

 

However, these crimes could be under the jurisdiction of the Prosecutor's Office for high-tech crime, that is, they could be considered high-tech crime:

  1. due to the method of execution or the means used
  2. computers, computer systems, computer networks and computer data, as well as their products in material or electronic form are a means of committing a criminal offense

 

Therefore, if the perpetrator of these criminal acts was an official, due to the method of execution or the means used, it could be high-tech crime, and the Prosecutor forhi-tech crime would be responsible for the prosecution.

Violation of Privacy of Letter and other Mail (Art. 142)

“(1) Ko neovlašćeno otvori tuđe pismo, telegram ili kakvo drugo zatvoreno pismeno ili pošiljku ili na drugi način povredi njihovu tajnost ili ko neovlašćeno zadrži, prikrije, uništi ili drugom preda tuđe pismo, telegram ili drugu pošiljku ili ko povredi tajnost elektronske pošte ili drugog sredstva za telekomunikaciju,
shall be punished by fine or imprisonment up to two years.

(2) The penalty specified in paragraph 1 of this Article shall be imposed also to whoever communicates to another the content of another’s closed mail, telegram or consignment acquired by violating the privacy thereof, or makes use of such contents.

(3) Ako delo iz st. 1. i 2. ovog člana učini službeno lice u vršenju službe,
kazniće se zatvorom od šest meseci do tri godine.“

There are two basic (para. 1 and 2) and one more severe form determined by the properties of the perpetrator (para. 3)

  • Anyone - any person who violates the secrecy of communication without authorization (para. 1 and 2)
  • An official who, in the performance of official duties, violates the secrecy of communication without authorization (para. 3)

An official is:

A person discharging official duties in government authority;

Elected, appointed or assigned person in a government authority, local selfgovernment body or a person permanently or periodically discharging official duty or office in such bodies;

A notary public, a public enforcer or arbitrator, as well as a person in an institution, enterprise or other entity who is assigned discharge of public authority, who rules on rights, obligations or interests of natural or legal persons or on public interest;

An official shall also be a person who is in fact assigned discharge of official duty or tasks;

A member of the military.

For the first basic form (para. 1) – in several ways:

  1. unauthorized opening of someone else's letter, telegram or any other closed letter or shipment
  2. unauthorized violation of secrecy of someone else's letter, telegram or any other closed letter or shipment in another way
  3. unauthorized retention of someone else's letter, telegram or other shipment
  4. unauthorized concealment of someone else's letter, telegram or other shipment
  5. unauthorized  destruction  of someone else's letter, telegram or other shipment
  6. unauthorized handing over to another other person's letter, telegram or other shipment
  7. unauthorized breach of electronic mail secrecy
  8. unauthorized breach of secrecy of another means of telecommunications

For the second basic form (para. 2)

  1. communicating to another content that he learned by violating the confidentiality of someone else's letter, telegram or any other closed letter or shipment
  2. using this content

The prerequisite is that the act referred to in para. 1 is performed - if the deed was committed by the same perpetrator, only this second deed exists

For the more severe form (para. 3) – the same as for para. 1 and 2 – only the perpetrator is an official in the performance of official duties

The action is taken unauthorized

  • without the knowledge, or consent of the participants in the communication
  • without legal authority

The Constitution guarantees that the secrecy of letters and other means of communication is inviolable, and that deviation from this inviolability is possible only

  1. for a set amount of time
  2. on the basis of a court decision (determining the limited duration of the permitted deviation)
  3. if it is necessary for conducting criminal proceedings or protecting the security of the Republic of Serbia
  4. in the manner provided by law:
  • the method of deviation for the purposes of criminal proceedings is regulated in the CPC (acquiring records of telephone communication and used base stations or locating the place and a special evidentiary action, secret surveillance of communication)
  • the method of deviation for the purposes of protecting the security of the Republic of Serbia is regulated in LSIA (special measures that deviate from the inviolability of the confidentiality of letters and other means of communication) and in LMSAMIA (special procedures and measures)

In other words:

  • any violation of the secrecy of letters and other means of communication is unauthorized (and constitutes a criminal offense), except for officials who act according to legal authority to implement the aforementioned actions and measures
  • official person who does not have the authority or acts contrary to the authority or exceeds the authority, is the perpetrator of the more severe form of this criminal act

Secrecy of letters and other means of communication (Art. 41 Constitution)

Others (the perpetrator is not a participant in the communication)

  • letter
  • telegram
  • other sealed letter or shipment
  • electronic mail
  • another means of telecommunication

 

 

Can only be done intentionally (not negligently)

If the offender is any person (para. 1 and 2): 

  • fine or imprisonment for up to 2 years

If the offender is an official (para. 3): 

  • imprisonment from 6 months to 3 years

If the perpetrator is a non-official person (for the offense from para. 1 and 2):

    • private lawsuit
    • the injured party submits it to the basic court, according to the rules on determining the local competent court

If the perpetrator is an official (for the offense from para. 3)

  • ex officio (prosecuted by the public prosecutor)
  • criminal report is filed to the competent public prosecutor
  1. bacis public prosecutor, or
  2. prosecutor for high-tech crime - if a computer, computer system, computer network was used as a means of execution 

 

 

How and to whom to file a criminal complaint? >>

Unauthorised Wiretapping and Recording (Art. 143)

“(1) Ko posebnim uređajima neovlašćeno prisluškuje ili snima razgovor, izjavu ili kakvo saopštenje koji mu nisu namenjeni,
kazniće se novčanom kaznom ili zatvorom od tri meseca do tri godine.

(2) The penalty specified in paragraph 1 of this Article shall be imposed also on whoever enables an unknown person to be informed with the conversation, statement or announcement obtained through unauthorised tapping or audio recording.

(3) Ako je delo iz st. 1. i 2. ovog člana učinilo službeno lice u vršenju službe,
kazniće se zatvorom od šest meseci do pet godina.”

There are two basic (para. 1 and 2) and one more severe form determined by the properties of the perpetrator (para. 3)

  • Anyone - any person who violates the secrecy of communication without authorization (para. 1 and 2)
  • An official who, in the performance of official duties, violates the secrecy of communication without authorization (para. 3)

An official is:

A person discharging official duties in government authority;

Elected, appointed or assigned person in a government authority, local selfgovernment body or a person permanently or periodically discharging official duty or office in such bodies;

A notary public, a public enforcer or arbitrator, as well as a person in an institution, enterprise or other entity who is assigned discharge of public authority, who rules on rights, obligations or interests of natural or legal persons or on public interest;

An official shall also be a person who is in fact assigned discharge of official duty or tasks;

A member of the military.

For the first basic form (para. 1):

1.

unauthorized eavesdropping with special devices of

  • conversations,
  • statements or
  • announcements

which are not intended for him

 

2.

unauthorized recording with special devices of

  • conversations,
  • statements or
  • announcements

which are not intended for him

 

For the second basic form (para. 2):

allowing an uninvited person

to get acquainted with

  • conversation
  • statement
  • announcement

which have been wiretapped or recorded without authorization

 

The prerequisite is that the act referred to in para. 1 is performed - if the deed was committed by the same perpetrator, only this second deed exists

 

Uninvited person is the one who did not participate in the communication, i.e. to whom the statement/announcement is not intended

 

For the more severe form (para. 3) – the same as for para. 1 and 2 – only the perpetrator is an official in the performance of official duties

 

Action is taken unauthorized

  • without the knowledge, or consent of the participants in the communication
  • without legal authority

 

The Constitution guarantees that the secrecy of letters and other means of communication is inviolable, and that deviation from this inviolability is possible only

  1. for a set amount of time
  2. on the basis of a court decision (determining the limited duration of the permitted deviation)
  3. if it is necessary for conducting criminal proceedings or protecting the security of the Republic of Serbia
  4. in the manner provided by law:
  • the method of deviation for the purposes of criminal proceedings is regulated in the CPC (special evidentiary action secret surveillance of communication)
  • the method of deviation for the purposes of protecting the security of the Republic of Serbia is regulated in LSIA (special measures that deviate from the inviolability of the confidentiality of letters and other means of communication) and in LMSAMIA (special procedures and measures)

In other words:

  • any violation of the secrecy of letters and other means of communication is unauthorized (and constitutes a criminal offense), except for officials who act according to legal authority to implement the aforementioned actions and measures
  • official person who does not have the authority or acts contrary to the authority or exceeds the authority, is the perpetrator of the more severe form of this criminal act

The private sphere of the individual

Secrecy of letters and other means of communication (Art. 41 Constitution)

  • Someone else's conversation - the perpetrator is not a participant in the communication
  • A statement or announcement that is not intended for the perpetrator

Can only be done intentionally (not negligently)

If the offender is any person (para. 1 and 2): 

  • fine or imprisonment from 3 months to 3 years

If the offender is an official (para. 3): 

  • imprisonment from 6 months to 5 years

If the perpetrator is a non-official person (for the offense from para. 1 and 2): private lawsuit

But, if the perpetrator is an official, the prosecution is undertaken ex officio (prosecuted by the public prosecutor) - a criminal report is submitted to the competent public prosecutor:

  1. bacis public prosecutor, or
  2. prosecutor for high-tech crime - if a computer, computer system, computer network was used as a means of execution  

 

 

How and to whom to file a criminal complaint? >>

Unauthorised Collection of Personal Data (Art. 146)

“(1) Ko podatke o ličnosti koji se prikupljaju, obrađuju i koriste na osnovu zakona neovlašćeno pribavi, saopšti drugom ili upotrebi u svrhu za koju nisu namenjeni,
shall be punished by fine or imprisonment up to one year.

(2) The penalty specified in paragraph 1 of this Article shall also be imposed on whomever contrary to law collects personal data on citizens and uses data so collected.

(3) Ako delo iz stava 1. ovog člana učini službeno lice u vršenju službe,
shall be punished with imprisonment of up to three years.“

There are two basic (para. 1 and 2) and one more severe form determined by the properties of the perpetrator (para. 3)

  • Anyone - every person (para. 1 and 2)
  • An official, in the performance of official duties (para. 3)

An official is:

A person discharging official duties in government authority;

Elected, appointed or assigned person in a government authority, local selfgovernment body or a person permanently or periodically discharging official duty or office in such bodies;

A notary public, a public enforcer or arbitrator, as well as a person in an institution, enterprise or other entity who is assigned discharge of public authority, who rules on rights, obligations or interests of natural or legal persons or on public interest;

An official shall also be a person who is in fact assigned discharge of official duty or tasks;

A member of the military.

For the first basic form (para. 1) alternatively several actions:

unauthorized

  • obtaining
  • communicating to another, or
  • use for a purpose for which they are not intended

personal data that are collected, processed and used on the basis of the law (if it would be about data that cannot otherwise be collected, processed and used by law - it could be an offense from paragraph 2 - but only if it was about collecting data against the law)

 

The action is taken unauthorized - without legal authority, against or by exceeding the authority

 

For the second basic form (para. 2):

  • collection of personal data of citizens against the law
  • use of personal data of citizens that were collected against the law (if data collected in accordance with the law were used against the law - this criminal offense would not exist)

 

For the more severe form (para. 3) – the same as for para. 1:

 

If an official data that is collected, processed and used on the basis of the law:

  1. obtain
  2. communicate to another, or
  3. use for a purpose for which they are not intended

unauthorized (without or against or by exceeding authority)

 

If an official collects data against the law or uses illegally collected data - does not constitute a more serious form of criminal offense (because a more serious form does not exist if an official undertakes actions from para. 2)

 

Note:

The Constitution proclaims that the use of personal data beyond the purpose for which it was collected is prohibited and punishable, in in accordance with the law, except for the purposes of conducting criminal proceedings or protecting the security of the Republic of Serbia, in the manner provided by law

In other words, in order to realize these interests, it is allowed to use the data outside the purpose for which it was collected, in the way that it is

  • provided by CPC and LP, for the purposes of criminal proceedings 
  • provided by LSIA and LMSAMIA, for the purpose of national security 

In other words, only the officials of the police, SIA, MSAA and MIA have the authority to use the data outside the purpose for which it was collected, but if they do so contrary to or without authority, they can be the perpetrators of this criminal act 

Protection of personal data guaranteed by the Constitution (Article 42 of the Constitution)

Personal data

 

U smislu Zakona o zaštiti podataka o ličnosti (čl. 4), “podatak o ličnosti” je svaki podatak koji se odnosi na individual

  • whose identity is determined or determinable,
  • directly or indirectly, in particular on the basis of an identity mark, such as name and identification number, location data, identifiers in electronic communication networks or one or more features of his physical, physiological, genetic, mental, economic, cultural and social identity

Can only be done intentionally (not negligently)

If the offender is any person (para. 1 and 2): 

  • fine or imprisonment for up to 1 year

If the offender is an official (para. 3): 

  • imprisonment for up to 3 years

If the perpetrator is a non-official person (for the offense from para. 1 and 2):

  • private lawsuit
  • the injured party submits it to the basic court, according to the rules on determining the local competent court

If the perpetrator is an official (for the offense from para. 3)

  • ex officio (prosecuted by the public prosecutor)
  • criminal report is filed to the competent public prosecutor
  1. bacis public prosecutor, or
  2. prosecutor for high-tech crime - if a computer, computer system, computer network was used as a means of execution  

 

 

How and to whom to file a criminal complaint? >>

PROTECTION OF RIGHTS

How and from whom to seek protection of rights, if rights are violated as a result of overstepping or acting contrary to or beyond the powers specified by law?

Constitution in Art. 22 stipulates that everyone has

  1. the right to judicial protection if a human right has been violated or denied, and
  2. the right to removal of the consequences caused by the violation

Citizens have the right to turn to international institutions for the protection of their freedoms and rights guaranteed by the Constitution.

Violation of the inviolability of the apartment

There is no misdemeanor protection

  • the regulations regulating the powers to limit this right do not contain penal provisions
  • it is not possible to submit a misdemeanor report or a request to initiate misdemeanor proceedings against an official who acts without authorization, beyond or contrary to authorization 
  • A disciplinary report could be filed against the official
  • In a criminal proceeding in which the evidence resulting from a contested search would be used as evidence, the mechanisms prescribed by the CPC could be used (exclusion of illegal evidence, objection, legal remedies).
  • The Protector of Citizens protects the rights of citizens and controls the work of administrative bodies, but not the work of courts and public prosecution offices
  • Citizens can turn to him only after they have previously used other protection mechanisms
  • Regarding this right, the only mechanism is criminal law protection - filing a criminal complaint against an official

How to address the Protector of Citizens? >>

A constitutional appeal is submitted in accordance with Act on the Constitutional Court against an individual act, or an action of a state body or an organization entrusted with public authority, if a person believes that that act or action violates or denies him the right to the inviolability of secrecy of letters and other means of communication guaranteed by the Constitution - but only after they have been exhausted or no other legal means have been provided against that disputed act or action, or the right to judicial protection of rights has been excluded by law

 

 

How and to whom to submit a constitutional appeal? >>

The European Court of Human Rights (ECtHR) can be addressed by any person who believes that a right guaranteed by the European Convention on the Protection of Human Rights and Fundamental Freedoms or its protocols has been violated.

 

 

How to address the ECtHR? >>

Violation of secrecy of letters and other means of communication

There is no misdemeanor protection

  • the regulations regulating the powers to limit this right do not contain penal provisions
  • it is not possible to submit a misdemeanor report or a request to initiate misdemeanor proceedings against an official who acts without authorization, beyond or contrary to authorization 
  • A disciplinary report could be filed against an official who acts without authorization, beyond or against authorization.
  • In a criminal proceeding in which the evidence resulting from a contested action would be used as evidence, the mechanisms prescribed by the CPC could be used (exclusion of illegal evidence, objection, legal remedies).
  • a criminal complaint for a criminal offense could be filed against an official who acts without authorization, beyond or contrary to authorization
  1. Violation of Privacy of Letter and other Mail (Art. 142)
  2. Unauthorised Wiretapping and Recording (Art. 143)

How and to whom to report a crime? >>

  • The Protector of Citizens protects the rights of citizens and controls the work of administrative bodies, but not the work of courts and public prosecution offices
  • Citizens can turn to him only after they have previously used other protection mechanisms
  • Regarding this right, the only mechanism is criminal law protection - filing a criminal complaint against an official

How to address the Protector of Citizens? >>

A constitutional appeal is submitted in accordance with Act on the Constitutional Court against an individual act, or an action of a state body or an organization entrusted with public authority, if a person believes that that act or action violates or denies him the right to the inviolability of secrecy of letters and other means of communication guaranteed by the Constitution - but only after they have been exhausted or no other legal means have been provided against that disputed act or action, or the right to judicial protection of rights has been excluded by law

 

 

How and to whom to submit a constitutional appeal? >>

The European Court of Human Rights (ECtHR) can be addressed by any person who believes that a right guaranteed by the European Convention on the Protection of Human Rights and Fundamental Freedoms or its protocols has been violated.

 

 

How to address the ECtHR? >>

Violation of personal data protection

Administrative legal protection of personal data is achieved primarily before the Commissioner in accordance with PDPA

A person can submit to the Commissioner:

  • complaint if he considers that the processing of personal data was carried out contrary to the provisions of the ZZPL (Art. 82)
  • request to exercise rights related to the processing of personal data
  • a request for the exercise of rights due to the performed inspection

How to address the Commissioner? >>

Against the decisions of the Commissioner, a person can initiate an administrative dispute before the administrative court (Art. 83)

Regarding the complaint - if the Commissioner

  • within 60 days from the date of submission of the complaint does not act on the complaint,
  • does not inform you about the course of the proceedings, the results of the proceedings, as well as the right to initiate court proceedings

(“ćutanje uprave”)

Against other decisions of the Commissioner:

  • within 30 days from the date of receipt of the decision

How to address the Administrative Court? >>

Civil protection is achieved before the court, in civil proceedings - unrelated to the proceedings before the Commissioner and in parallel with him.

A person who believes that his right prescribed by PDPA has been violated, can file a lawsuit for the protection of personal data .

How and to whom to file a lawsuit for the protection of personal data? >>

 

Misdemeanor protection of rights is achieved in misdemeanor proceedings - unrelated to the proceedings before the Commissioner and in parallel with him.

Protection is achieved by submitting a request to initiate misdemeanor proceedings before a misdemeanor court in accordance with Law on Misdemeanors, if the person believes that the handler/processor has violated the rules from PDPA.

How and to whom to submit a request for initiation of misdemeanor proceedings? >>

A criminal complaint could be filed against an official who acts without authorization, beyond or against authorization for the criminal offense of unauthorized collection of personal data (Art. 146 CC)

How and to whom to file a criminal complaint? >>

  • The Protector of Citizens protects the rights of citizens and controls the work of administrative bodies, but not the work of courts and public prosecution offices
  • Citizens can turn to him only after they have previously used other protection mechanisms
  • With respect to this right, the previous mechanisms are described above 

How to address the Protector of Citizens? >>

A constitutional appeal is submitted in accordance with Act on the Constitutional Court against an individual act, or an action of a state body or an organization entrusted with public authority, if a person believes that that act or action violates or denies him the right to the inviolability of secrecy of letters and other means of communication guaranteed by the Constitution - but only after they have been exhausted or no other legal means have been provided against that disputed act or action, or the right to judicial protection of rights has been excluded by law

How and to whom to submit a constitutional appeal? >>

The European Court of Human Rights (ECtHR) can be addressed by any person who believes that a right guaranteed by the European Convention on the Protection of Human Rights and Fundamental Freedoms or its protocols has been violated.

How to address the ECtHR? >>

How and to whom to address?

Report!