BackAs one of the preventive measures against the spread of coronavirus, especially because of those who frequently violate the self-isolation measure, the Government has proposed amendments to the Electronic Communications Act to monitor citizens’ movements. It would allow location data to be collected, which may restrict citizens’ rights to freedom of movement and privacy.
According to the Constitution, rights and freedoms can be restricted only by law, in order to protect the freedoms and rights of others, as well as the legal order, public morality and health, but any such restriction must be proportionate to the nature of the need for restriction in each individual case.
In the proposal, the Government stated that the restriction refers to narrow, clearly and precisely defined situations, only when the health and lives of citizens could not be effectively protected otherwise. It also states that it fulfils the criterion of proportionality, since the processing of data is considered to be proportionate to the need to protect health and life, and exclusively in situations where that need has reached such a level of threat that the minister responsible for health has declared an epidemic of an infectious disease, or a danger of an epidemic of an infectious disease. However, exactly in order to ensure proportionality, it is of utmost importance to secure protective mechanisms designed to avoid arbitrariness in their implementation.
Ombudswoman Lora Vidović therefore submitted amendments to the Committee on the Constitution, Standing Orders and Political System, as well as the Committee on Human and National Minority Rights of the Croatian Parliament, stating that clear criteria should be explicitly defined in the law, which will ensure that the measure is implemented only over precisely defined categories of citizens, for example, those who have been officially determined to self-isolation by the competent bodies.
It is also necessary to inform the citizens over whom the data collection measure is being implemented, in writing. Such written information should contain the beginning and the duration of the implemented measure, with an explicit prohibition on retroactivity.
The Constitution also guarantees both, the security and secrecy of personal data, as well as the supervision over the functioning of information systems in the country, so it is of utmost importance to closely specify the control system over the collected data. It is also necessary to define the time limits within which the collected data is stored, for example, in a fixed period of 30 days, with the possibility to extend it, or the longest for the duration of a natural disaster, disaster, epidemic or epidemic risk.
It is important that the proposals to the Electronic Communications Act include all of the above, so that the restriction of fundamental rights and freedoms of citizens is proportional to the nature of the need for restriction, which in this case is the protection of the health and life of citizens, in the context of an epidemic caused by a coronavirus.
Source: Office of the Ombudswoman, Croatia
