Constitutional Court in MANS case: Even surveillance data must be subject to control
In the repeated proceedings, the Supreme Court should conduct the process in accordance with the standards established by the European Court of Human Rights, which does not necessarily mean that the court must reach a different decision or resolve the administrative dispute differently - the Constitutional Court stated
The Constitutional Court of Montenegro upheld the constitutional complaint filed by the Network for the Affirmation of the NGO Sector (MANS) and annulled the Supreme Court’s judgment in a dispute with the National Security Agency regarding the number of wiretapped individuals, finding that the right to freedom of expression guaranteed by the European Convention on Human Rights had been violated.
As stated in the announcement, the Constitutional Court determined that the Administrative Court and the Supreme Court of Montenegro failed to examine whether it was justified to classify the requested data on the number of wiretapped individuals as confidential, nor did they carry out an analysis of proportionality between the protection of national security and the public’s right to free access to information.
- The NGO MANS requested information on the number of individuals who were wiretapped from 2018 to 2021. The National Security Agency rejected the request, stating that the data was classified as „secret“, and the courts upheld that decision. According to the Administrative and Supreme Courts, the requested information contains security-sensitive data of particular importance to national security, the disclosure of which would have harmful consequences for the functioning of the Agency - the Constitutional Court stated.
MANS argued, as added, that the judgments were unclear and incomplete because they did not provide reasons why a numerical figure regarding the number of wiretapped and monitored individuals was classified, especially since no information was requested about the identities of those individuals, the duration of surveillance, or the content of the collected data.
- The panel of the Constitutional Court found that the lower courts merely noted the „secret“ classification of the requested data without examining it, and failed to conduct a detailed proportionality analysis between the right to national security and the right to free access to information. The Constitutional Court emphasized that courts have a legal obligation to review whether a public authority has correctly classified data, and that they must be granted access to such data during decision-making - the statement said.
The Court particularly stressed that even in matters concerning national security, effective judicial oversight must exist, including an assessment of whether restrictions on human rights are justified.
- The Constitutional Court is not convinced that the reasons provided by the lower courts for denying access to the requested information were relevant or sufficient under the given circumstances - the decision states.
In the repeated proceedings, the Supreme Court should conduct the process in line with the standards established by the European Court of Human Rights, which does not necessarily imply that the court must issue a different ruling or resolve the administrative dispute differently.