Supreme Court judges requested that the Constitutional Court review the provision of the Law on the Prevention of Corruption that relates to the obligation to report personal data for public officials, members of a common household, and related persons.
The initiative for the review of constitutionality, which the Government of Montenegro also responded to two days ago, states that the judges believe that this is a violation of the right to privacy guaranteed by the Constitution of Montenegro.
The government responded to the Constitutional Court that the initiative should not be accepted.
"We believe that the constitutionally guaranteed right to respect for private and family life has not been violated, and that in this case the provisions of the Law must be viewed in the context of the fight against corruption, which is crucial for maintaining trust in institutions and the rule of law, and that there is no excessive violation of rights because the goal is to preserve the integrity of the system and prevent illegal actions," they stated in their response.
Judges: Gross violation of privacy
The initiative to review the constitutionality of Article 26, paragraph 1, item one was submitted by the judges of the Supreme Court Vesna Vuckovic, Vesna Jocic, Radojka Nikolić, Milenka-Seka Žižić, Seka Piletić, Tatjana Ljujic, Zoran Scepanovic, Nevenka Popović, Katarina Đurđić, Ana Vuković i Ranko Vukić.
They claim that this provision is contrary to the provisions of the Constitution which guarantee the right to respect for private and family life, as well as the protection of personal data, prohibiting
use of such information outside the purpose for which it was collected. The judges also refer to paragraph 3 of Article 43 of the Constitution, according to which everyone has the right to be informed of the data collected about him or her and the right to judicial protection in the event of misuse.
They believe that the circle of persons prescribed by the Law on the Prevention of Corruption, for whom data must be submitted, does not only represent the immediate family but also the wider family, which is why these provisions "represent a gross infringement of the right to privacy and violation of the confidentiality of personal data", because the anti-corruption regulation emphasizes that the official in the report also submits data for related persons, i.e. for relatives in the direct line and collateral up to the second degree of kinship, relatives by in-laws up to the first degree of kinship, married and unmarried spouses, partners in a same-sex life partnership, adoptive parents and adopted children, members of a common household, but also other natural or legal persons with whom he or she establishes or has established a business, political and personal relationship.
It is specified that the name and surname, unique identification number, place of residence, or residence and residential address, level of educational qualification and title, and for a public official, the father's name, mother's name and mother's maiden name must be submitted.
Government: Functions are not private, but public interest
The government, as announced on its website two days ago, is of the opinion that there are no grounds for accepting the submitted initiative.
In an opinion signed by the Prime Minister Milojko Spajic, the Government refers to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which regulates the right to respect for private and family life, whereby “the authorities shall not interfere with the exercise of this right except in accordance with the law and such interference as 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”.
They also remind that the Constitution gives the legislator the authority to regulate the manner of establishment, organization and jurisdiction of government bodies and other issues of interest to Montenegro, which include issues related to the prevention and suppression of corruption.
"In accordance with the aforementioned constitutional powers, the Parliament of Montenegro adopted the Law on the Prevention of Corruption, which is systemic in the field of corruption prevention, the disputed provisions of which have a clearly defined goal - preventing corruption and ensuring
transparency in the work of public officials. In order to achieve this goal, we emphasize that it is important to collect all relevant information, including data on extended family and close ties, because corruption can be linked to family or other relationships that can influence the decisions and behavior of public officials. Given the role that public officials play in making key decisions that can have broad social consequences, the prescribed provisions have a deeply rooted legal and moral function, "the Government says.
They also emphasize that these measures do not only serve as preventive provisions, but also enable legal certainty and stability of the system - the identification and prevention of potential abuses or illegal actions that may jeopardize trust in public institutions, and are proportional to the purpose sought to be achieved.
"The law broadly defines related parties. This means that it is left to the public official and his professional ethics to assess whether to consider a person as a related party. Although in this case there are objective indicators of connection, such as contracts, which can help in determining the existence of a conflict of interest, the emphasis is primarily on the conscience of the individual who knows best whether a conflict of interest exists in a given situation or not. This approach creates additional responsibility for public officials and helps them to act in accordance with the law, while at the same time ensuring accountability and transparency," the Government's opinion stated.
They also pointed out that the data from the report is kept in the register of income and assets of public officials, which is part of the unified information system of the Agency for the Prevention of Corruption.
"Data from the register are published on the Agency's website, except for data relating to: personal data referred to in Article 26, paragraph 1, item 1 of the Law, except for the name and surname; the address where the immovable property is located; children of public officials up to the age of 16; alimony and other income, or benefits based on social and child protection. Also, when it comes to protecting privacy, it is necessary to take into account that public officials perform functions in the public interest, not in their personal interest, and therefore their actions and property are of interest to the wider community. Transparency in this context is not only a matter of citizens' right to information, but also a matter of protecting the integrity of the government system, which must be based on the principles of accountability, impartiality and ethics. In addition, the provisions of the Law relating to public officials and their obligations to declare assets and income provide clear guidelines for the prevention of corruption, while at the same time protecting key aspects of personal data," the Government's opinion concludes.
Bonus video:
