A number of journalists and representatives of media contacted the Commissioner for the Information of Public Importance regarding the Republic Agency of Telecommunications Decision stipulating „Technical Conditions for Sub-systems, Devices, Equipment and Installations“. In this context, and acting on request of BETA Agency to comment on public reaction to the adoption of this document, the Commissioner, Mr. Rodoljub Šabić, said the following:
“It would be good if RATEL immediately entered into a document regulating “Technical Conditions for Sub-systems, Devices, Equipment and Instalations“an explicit provision, stating that the same shall be applied based on Court order only.
The reactions of experts and the public to the above mentioned Technical Conditions, adopted by the Republic Agency of Telecommunications, should in any case be welcomed. Such reactions, even if too brisk for some, nevertheless show that there is a civil self-respect in our society and that there is readiness to stand up for protection of human rights; these are things indispensable for a democratic society.
Without questioning the independent position of the Republic Agency of Telecommunications as a regulatory body in this field, it would be necessary for RATEL to duly address all these reactions and show readiness to revise and change some of the terms of the Technical Conditions articulated so that they cause misunderstanding and dilemmas, and to asses once again if some of the solutions (such as the obligation to periodically submit user data base, at the request of the Service, or that the appointment of a person in charge for communication with the Service is subject to the approval of the Service) belong to the sphere of Technical Conditions at all, or even if such matters are to be regulated, and only if possible, by the law.
A word of professor Jovan Radunovic, the director of RATEL, saying that the implementation of „Technical Conditions“ is possible based on court order only, should be greeted as a reassuring one. However, in a country based on the rule of law, such guarantees must be based not on a word of officials, but on the explicit and consistent legal norms; here, in this case, we have problem.
The “Technical Conditions” were adopted to ensure the implementation of provisions of Article 55 of Telecommunications Law. But, from the viewpoint of its relation with the corresponding provisions of the Constitution of Serbia, this provision of the law is, to put it mildly, controversial.
The Constitution of Serbia, in Article 41, guarantees the confidentiality of mail and other means of communication, and it stipulates that the departure from this guarantee is possible, under certain conditions, but based on court decision only. However, Article 55 of Telecommunications Law does not provide identical solution; it envisages, though, possible departures “if these activities are maintained in accordance with the law or court order.” Such wording, the term “or”, opens the possibility for the interpretation that court decision is not the one and only bases for the implementation of Technical Conditions, in other words, for the interception of Internet communication, and that the implementation is allowed even without it “if these activities are performed in accordance with the law.“ Such possibility represents a risk of a threat to human rights and should be eliminated. It is therefore necessary, until and before Telecommunications Law is harmonized with the Constitution, to include into the Technical Conditions document an explicit provision which rules out any dilemma. “
