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Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the right to privacy in the Constitution of Montenegro

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Abstract

The subject of this paper is a comparative analysis of the right to respect for private and family life in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to privacy in the Constitution of Montenegro. To this end, the paper presents relevant provisions in these documents along with a critical approach to their (in) compliance, both in the determination of specific rights and in cases of their restriction. The paper seeks to offer an answer to the question on whether this right is adequately implemented in the Constitution of Montenegro, as well as whether its different content, analyzed on the concrete example, requires direct application of international law. The author also seeks to provide information on whether insufficient harmonization of the provisions of international and national law in this area may affect more complete protection of this right. To this end, the paper analyzes one of the cases in which the European Court of Human Rights ruled on the violation of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in relation to Montenegro. Starting from the presented subject matter, at the end of the paper, appropriate conclusions are drawn about possible directions of improvement of existing solutions and practices in which they are realized. Author primarily used normative and comparative law method together with the case-law analysis.
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Ivan M. Vukčević* Original scientic paper
UDC: 342.2(497.16)
doi: 10.5937/spz64-29350
ARTICLE 8 OF THE CONVENTION FOR THE PROTECTION OF
HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS AND THE
RIGHT TO PRIVACY IN THE CONSTITUTION OF MONTENEGRO
International protection of human rights can be discussed only once
international jurisdiction manages to impose itself and t in with the
national jurisdictions and when the transition is made from guarantees
within the state, prevalent at present stage, to guarantees against the state.
(Bobio, 2008, p. 41)
Abstract
e subject of this paper is a comparative analysis of the right to respect for private and
family life in the European Convention for the Protection of Human Rights and Fundamental
Freedoms and the right to privacy in the Constitution of Montenegro. To this end, the paper
presents relevant provisions in these documents along with a critical approach to their (in)
compliance, both in the determination of specic rights and in cases of their restriction. e
paper seeks to oer an answer to the question on whether this right is adequately implemented
in the Constitution of Montenegro, as well as whether its dierent content, analyzed on the
concrete example, requires direct application of international law. e author also seeks to
provide information on whether insucient harmonization of the provisions of international
and national law in this area may aect more complete protection of this right. To this end,
the paper analyzes one of the cases in which the European Court of Human Rights ruled on
the violation of Article 8 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms in relation to Montenegro. Starting from the presented subject
matter, at the end of the paper, appropriate conclusions are drawn about possible directions of
improvement of existing solutions and practices in which they are realized. Author primarily
used normative and comparative law method together with the case-law analysis.
Keywords: right to respect for private life, the Convention for the Protection of
Human Rights and Fundamental Freedoms, the Constitution of Montenegro, court practice.
*
Master of Law (MLS), Program director of the Center for Monitoring and Research (CeMI), Podgorica,
Montenegro, e-mail: ivan.vukcevic@yahoo.com
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1. Introduction
e process of internationalization of human rights raises a number of questions on
the relationship between international and domestic law. is is signicant to the extent that
special legal disciplines, such as International human rights law have developed out of the
study of this relationship, or traditional disciplines (constitutional law, criminal law) have
been substantially upgraded with new dimensions of human rights. ese developments
are particularly signicant in the European legal area which with its ramication of
institutions of protection of human rights, their design and practice, represent the most
eective mechanisms for their protection at the international level. At the same time, it
has inuenced the expansion of the area of legal dialogue, which is important for relations
arising in the process of applying the standards of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (hereinaer the Convention) and
its impact on constitutional systems and case law of state signatories to the Convention.
Consequently, it is important for the relationship between the European Court of Human
Rights (hereinaer ECtHR) and national courts (constitutional and regular) on this issue,
which are characterized by relations of approximation of the systems, their unication
and homogenization, all in order to strengthen values and principles, which shape them
(De Vergottini, 2015, p. 47).
Such legal, more precisely normative challenges, also apply to the consideration
of the normative regulation of certain rights in the Convention and the constitutions of
the signatory states, and the analysis of one of those rights (right to respect for private
and family life, i.e. the right to privacy) are the focus of this paper. More specically, the
subject of analysis is a comparison of the manner in which the right to respect for private
and family life is determined (Article 8 of the Convention) and content-wise identical
right in the provisions under the respective section on right to privacy (Article 40 of the
Constitution of Montenegro) and other essential elements that complement it (Art. 41
- inviolability of the apartment, Art. 42 - secrecy of letters and Art. 43 - personal data).
Bearing in mind that the mentioned rights shape the right to privacy as a collective right,
they are observed in the paper separately, to the extent that their content and systematics
are presented.
In answering this question, normative and comparative law method is primarily
used, together with the analysis of cases from court practice.
2. Right to privacy (term)
eoretical considerations on the respect for human integrity and dignity, as
primary social and legal values each, preceded the constitutionalization of the right to
privacy and its establishment in international legal acts. To this end, “right to one’s own
world” has been materialized in dierent ways as it originates from medieval charters on
the protection of individuals from the arbitrary actions of state ocials. is form will
be further shaped in the modern age through armation the idea of subjective rights,
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and later by the rst written constitution (USA, 1787), more precisely in Amendment 4
from 1791, which set forth: “e right of the people to be secure in their persons, houses,
papers, and eects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall be issued, but upon probable cause, supported by Oath or armation,
and particularly describing the place to be searched, and the persons or things to be seized”.
e interpretation of this provision in accordance with the changed social circumstances,
and especially the technical development, has broadened the scope of this right and the
procedures for its protection. Along with that, theoretical views on the nature of this right
were developed, starting with the traditional theory of the right to privacy heralded in Waren
and Brandeis’ article e Right to Privacy, published in the Harvard Law Review in 1890s.
e development of industrial society, and subsequently information society would
bring about increase in the number of modalities by which the right to privacy could be
violated and extended beyond the originally protected violation of the right to home. In
that direction, the advancement of information technologies would result in the creation
of various databases about individuals, and in the possibility of their abuse. In addition,
various dimensions of this right would emerge and acquire the character of a collective
right that is broad enough to cover violations of human rights and freedoms that could not
otherwise be subsumed under their traditional classication. is is because it consists of
several individual rights (right to home, right to secrecy of correspondence and other means
of communication, right to protection of personal data etc.) and their number increases
in proportion to the eorts to protect the intimacy of individual as eectively as possible.
e framework of this right would get its nal shape once it is embedded in the
acts of international and domestic law, more specically, once it is dened as a standard
in: 1) international treaties; 2) constitutions and 3) human rights laws and (or) 4) special
laws whose subject matter is the right to privacy, as well as numerous bylaws.
e stated features of this right also result in the complexity of its conceptual
determination and denition. is generated dierences in its content and systematics as
found in the acts focused on the subject. is especially refers to the dierences that exist
between its denition in international treaties and in national law, which is why this paper
focuses on the dierence in its standardization in the Convention and the Constitution
of Montenegro respectively. is relationship is not considered and analysed at scientic,
professional or nomotechnical level only, but also in a broader range that determines the
scope of protection of this right, and eectiveness of legal remedies used for this purpose.
3. Relevant provisions on the right to privacy in international law
Several international documents at universal and regional level contain the right
to privacy, under such or similar names.
Article 12 of the Universal Declaration of Human Rights states that: “No one shall
be subjected to arbitrary interference with his privacy, family, home or correspondence,
nor to attacks upon his honor and reputation. Everyone has the right to the protection of
the law against such interference or attacks”.
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Article 17 of the International Covenant on Civil and Political Rights prescribes
this right in a substantively identical manner, with a dierence in legal eect, since the
provisions of the Covenant, unlike the Universal Declaration, are binding.
is right is also the subject of the Charter of Fundamental Rights of the European
Union in the way that Article 7 stipulates that: “Everyone has the right to respect for his/
her private and family life, home and communications, while Article 8 of the Charter
regulates the protection of personal data.
Resolution of the Parliamentary Assembly of the Council of Europe no. 1165 of
1998 broadens the scope of the right to privacy and states that it enables every person
“not only to be protected from interference by the authorities, but also from interference
by other individuals and institutions, including the media.
4. Right to respect for private and family life in the Convention and in the
Constitution of Montenegro (comparative analysis)
e basic requirement for any “country in transition” in the implementation of
the acquis communautaire is respect for legal values, standards and relevant provisions.
However, this does not mean mere replication of legal regulations, but their adaptation to
the social context of the member states of the Council of Europe. is is especially true in
the eld of human rights and as such it is contained in the recommendations for draing
domestic law, especially the Constitution as the highest legal act, and is the most oen
emphasized in the EU accession process.
Such commitments were declared in relation to Montenegro,
1
i.e. recommendation
was that the human rights enshrined in the Constitution of Montenegro should correspond
in content and systematics to those embedded in the Convention. On a quantitative level,
this has been fullled given that human rights’ provisions are stipulated in 63 articles out of
158 articles of the Constitution. However, the question remains if this was achieved in the
qualitative (content) level,2 and if the names of some human rights and their systematics
are fully aligned with the provisions of the Convention.3 Such a challenge also arises when
analyzing the right to privacy and related rights in the Constitution of Montenegro and
their compatibility with the relevant provisions of the Convention.
1 Such a practice existed in the activities, opinions and recommendations of the Commission for Democracy
through Law (Venice Commission) in the process of draing and adopting the current Constitution of Mon-
tenegro, such as Opinion of the Venice Commission.
2 e conceptual and substantive discrepancy between the provisions of the Constitution and the ECtHR has
been pointed out by the scientic community and professionals in the process of its draing and to that end
the contributions of M. Šuković and N. Vučinić at the CANU scientic conference on the dra Constitution
of Montenegro were published in the collection of papers from this conference from 2007. See: Šuković (ed.),
2007, pp. 28, 63, 64.
3
ere are several cases in which the names (not normative and essential meaning) of human rights and
freedoms from the ECtHR and the Constitution of Montenegro do not match), such as the ECtHR (Article
2) establishes the right to life, while the Constitution of Montenegro prohibits the death penalty (Article 26),
the ECtHR (Article 6) establishes the right to a fair trial, while the Constitution of Montenegro contained in
several articles (Article 21 - the right to legal aid, Article 35 - presumption of innocence, etc.).
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In the European Convention for the Protection of Human Rights and Fundamental
Freedoms, this right is enshrined in Article 8,4 entitled “Right to respect for private and
family life. e rst paragraph states that “Everyone has the right to respect for his private
and family life, his home and his correspondence”, while paragraph 2 contains restrictions
on this right under which: “ere shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the economic
wellbeing 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.
In the internal legal order of Montenegro, the right to privacy is primarily regulated
by the Constitution of Montenegro, 2007, within the framework of personal rights and
freedoms, in Article 40, under the rubric of the same name, and is dened by the provision
that “Everybody shall have the right to respect for his/her private and family life. In this
way, the rubric and the mentioned provision of the Convention do not correspond, since
they are not synonyms, given that the term “privacy” has a narrower meaning than the
term “private life” established in the Convention, and “refers to all types of intrusions into
the private life of an individual” (Beširević et al., 2017, p. 162).
e next three articles of the Constitution are regulated as special rights: inviolability
of the apartment (Art. 41), condentiality of correspondence (Art. 42) and personal data
(Art. 43), and at the same time, they are, according to already mentioned opinion, integral
parts of the right to private life. Within these three articles, the limitations of certain
segments of the right to privacy have been determined, i.e. the conditions under which
the guarantees of this right can be waived.
Relevant provisions of the Constitution of Montenegro related to the subject of
this paper are the following:
•
e provision of Article 9 governing the primacy of international law over domes-
tic law, according to which: “e ratied and published international agreements
and generally accepted rules of international law shall make an integral part of
the internal legal order, shall have the supremacy over the national legislation and
shall be directly applicable when they regulate the relations dierently from the
internal legislation“.
•
e provision of Article 16 according to which the law in accordance with the
Constitution regulates “the manner of exercise of human rights and liberties, when
this is necessary for their exercise.
• e provision of Article 24 which regulates the limitation of human rights and
freedoms in such a way that they may be “limited only by the law, within the scope
permitted by the Constitution and to such an extent which is necessary to meet the
purpose for which the limitation is allowed, in an open and democratic society”.
• e provision of Article 28 which determines the protection of the dignity and
inviolability of the person, more precisely, the provision of paragraph 2 of this
4 Art. 8 was analyzed in detail in Gutić, 2010.
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Article which guarantees the “physical and mental integrity of a man, and privacy
and personal rights”.
e dierences presented in relation to the Convention should not be seen as
purely terminological and nomotechnical issues, but as a challenge to the full and eective
protection of human rights. is is due to the fact that prima facie it can be noted that the
Convention (Article 8) regulates the “right to respect for private and family life” and the
Constitution of Montenegro (Article 40) prescribes the “right to privacy” which acquires an
essential dimension only if viewed together with the next three articles of the Constitution
which determine the inviolability of the apartment, the secrecy of letters and personal
data. In this way, the right to privacy, metaphorically speaking, on the example of the
Constitution of Montenegro, has the characteristics of a “constitutionally uncodied right”.
erefore, the subject of this paper is the relationship between the cited articles
of the Convention and the Constitution of Montenegro and the analysis of their (non)
complementarity, as well as of a case in which the ECtHR adjudicated on the open issues
pertaining to the relationship thereof.
4.1. Relationship between Article 8 of the Convention and the segments of privacy rights
contained in Articles 40, 41, 42 and 43 of the Constitution of Montenegro
Art. 8, par. 1 of the Convention guarantees the right to respect for private and family
life whose holder is “every citizen”, and it consists of four elements, i.e. protected good,
and they are: 1) private life, 2) family life, 3) home and 4) correspondence. According to
the Convention, all of them have the characteristics of autonomous terms i.e. the ECtHR
interprets them in its authentic way, dierent from what is established in the legal systems
of the signatory states
e breadth of the approach in shaping this right stems from the fact that it can
be violated in several ways, by endangering various goods, four of which are explicitly
mentioned. However, this does not exhaust the list of goods and legal values whose violation
means a violation of an individual’s privacy, but in practice, their broader interpretation,
protects everything that may violate these rights by arbitrary interference by the state and
other entities. eoretical views go in the same direction, according to which the elements
of this right include the right to personal identity, i.e. all forms of personal autonomy and
those contacts that are maintained in social ties (Popović, 2012, p. 293). is is conrmed
in practice by the fact that the provision on private life from Article 8 of the Convention
is given a residual character, i.e. it covers factual situations that cannot be supported by
other articles of the Convention.
In that sense, the denition from the Convention is more appropriate and
comprehensive than the one known in the Constitution of Montenegro, since it does not
state two out of the four elements of this right contained in the Convention (respect for
home and respect for correspondence) but the constitution creators, as we have already
stated classify it as special articles of the Constitution under the titles “inviolability of
apartment” (Art. 41) and “condentiality of correspondence” (Art. 42).
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e disadvantages of such constitutional engineering lie in the fact that the term
“apartment” in Article 42 of the Constitution is etymologically narrower than the term
“home”5, just as the term “secrecy of letters” is narrower than the term “correspondence”,
to the extent that it sounds archaic in the age of modern IT achievements. is observation
has not only a legal-technical but also a substantive dimension, because, in one case, it
narrows the content of the type of object being protected (“apartment” instead of “home”),
and in another, the type of communication by which rights may be violated (violation
of secrecy of “letter” instead of secrecy of “correspondence”). is narrows the sphere of
privacy that is protected, on both grounds.
e advantage of the wording from the Convention is reected in the fact that its
four constituent elements oen overlap in practice, so e.g. violation of privacy subsumes
violation of correspondence or violation of personal data. Since such examples of overlap
may also apply to the three mentioned articles of the Constitution of Montenegro (Articles
41, 42 and 43) in deciding on the violation of the rights, national judges in each case must
weigh “predominance” in the violation of these rights, i.e. certain parts of the same right,
as regulated by the Convention. erefore, in specic cases it is more dicult to determine
the relevant law and apply the appropriate norm.
e right to respect for private and family life enshrined in the Convention is not an
absolute right, but has precisely stated limitations in its second paragraph. e limitations
thereof are set by the provision that public authorities shall not interfere in the exercise of
this right unless “it is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for
protection of the rights and freedoms of others” (art. 8, par. 2).
e reason for such a normative approach is, on the one hand, the conrmation of
the rule on narrow interpretation of exceptions, in order to more fully protect the elements
of privacy from paragraph 1. On the other hand, it shows that it is a “qualied convention
law”, in which public authorities may only interfere under certain conditions. Such rights
contain optional restrictions, as the government decides whether to apply them or not. For
that reason, they are, as a rule, prescribed by general assumptions and not by the method
of enumeration (Maganić, 2016, p. 25).
In domestic law, the mentioned restrictions are not contained in Article 40 of the
Constitution, the basic article that regulates this right. ey are set out in Articles 41 and
42 of the Constitution, but in such a way that they do not fully follow the content of the
restrictions under art. 8, par. 2 of the Convention. For example, the provision of Article
41 which reads “the apartment is inviolable” is by its nature a statement which is not
normatively rounded, since the apartment is in practice “vulnerable” and it is therefore
to be protected under the right of privacy. ere is no provision in the Convention that it
[the apartment] may be “vulnerable” under the exceptions set out in Art. 8, par. 2 of the
Convention.
5 For more details: Rid, 2007, pp. 407-410.
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Instead, Art. 41 sets out guarantees of the inviolability of the apartment relating
to the conditions under which a search may be conducted without the consent of the
holder, while Art. 42 sets out derogations from the inviolability of the secrecy of letters,
telephone conversations and other means of communication. Limitations are also established
indirectly in Art. 43 by establishing a ban on the use of personal data beyond the purpose
for which they were collected.
is normative approach does not directly respect the standards from Art. 8 of
the Convention, but they are divided into several constitutional provisions related to
the right to privacy. In such a situation, restrictions for arbitrary interference with the
right to privacy are found in the provision of Art. 24 of the Constitution, which is placed
within the common provisions on human rights. However, the provision of Art. 24 of the
Constitution does not fully cover the limitations set out in Art. 8, par. 2 of the Convention
because the Convention explicitly refers to the prohibition according to which public
authorities cannot interfere with the exercise of the right to respect for private and family
life, while in the abovementioned article of the Constitution it is done in a general way
and refers to all human rights.
Furthermore, the Convention states the reasons for derogations from the violation
of the right to respect for private and family life (interest of national security, public safety
and economic well-being of the country, prevention of disorder or crime, protection of
health or morals, protection of rights and freedoms of others). ey are in accordance
with the law and are necessary in a democratic society. e term “in accordance with
the law” includes other acts that are not essentially law (bylaws), as well as case law and
standards from the Convention, and nally the quality of legislation in accordance with
European standards. e term “necessary” implies that interference in private and family
life can be achieved if there is a proportional connection with the legitimate aim. All this
is not contained in the Constitution, and the mentioned sub-regulation can, in practice,
among other things, be conducive to the non-implementation of the proportionality test.
e presented normative inconsistency may result not only in inconsistency of
jurisprudence and ineciency in the protection of this right, but, ultimately, in violation
of the (conventional and constitutional) right to a trial within a reasonable time.
For these reasons, we will analyze the scope of domestic constitutional solutions,
their impact on respect for the privacy of individuals, as well as the adequacy of the
resulting legal reasoning, using the case law of the European Court of Human Rights in
the application of Article 8 of the Convention to Montenegro.
4.2. e case law of the ECtHR in relation to Montenegro in application of Article 8 of the
Convention (Antović and Mirković v Montenegro)
e stated ambiguity of the constitutional text in the part related to the right
to privacy can be partly seen in the procedure and decision in the case of Antović and
Mirković v Montenegro, as well as in the judgment of the Basic Court and Higher Court
in Podgorica that preceded it.
109
e judgment in the present case concerns the determination of whether the
unlawful installation of video surveillance violated the right to respect for private life under
Art. 8 of the Convention. Namely, the applicants (university professors) alleged a violation
of their right to respect for private life, which was violated by placing video surveillance in
teaching amphitheaters, which endangered their integrity and dignity. e management of
the Faculty and the University disputed that respectively, stating that it was done in order
to secure property and persons.
Acting on the lawsuit of the mentioned persons, the Basic Court in Podgorica
(Application No. 180/12 from 27 December 2012) rejected the lawsuit for damages on
the grounds the violation of the right to respect for private life against the University of
Montenegro, the Agency for Personal Data Protection and the state of Montenegro. is is
explained by the fact that the University is an institution of public interest, that its activities
are conducted publicly, that the work of a university professor is open to public, and that
individual rights cannot be violated in the described manner (installation and use of video
surveillance). e High Court in Podgorica upheld the cited decision, stating that the
decision of Basic Court was provided with a “suciently related the ECtHRs case-law to
the case at issue” and found that the applicant’s
allegations “did not justify ruling otherwise
in the present case” (Judgment Gž. No. 882/13 from 17 July 2013). ECHR case-law was
cited in general manner, without describing the relationship between cases in detail. 6
Acting on the applicants’ application, the ECtHR cited the relevant articles of
domestic law and noted that the articles of the Constitution cited diered from those
cited in other judgments of Montenegrin courts relating to Art. 8 of the Convention.7
is is the testimony to the fact that the constitutional inconsistency in shaping the
right to privacy leads to their dierent evaluation and “weighing” when interpreting the
disputed relationship, both in international and national law. It also makes it harder to
determine the “margin of appreciation” or to have it invoked by the Government before
the ECtHR, or to determine positive obligations for the state, as in the case in Mijušković
v Montenegro. It has an eect on the absence of a proportionality test in those cases where
there is interference with private life, which should be justied by the notion of “necessity
in a democratic society”.
In the case of Antović and Mirković v Montenegro, the Court also made reference
to the principles developed through the ECtHRs case law, and the Court emphasized the
broad scope of the term „private life“ which cannot be reduced to the term “inner circle
in which an individual can live his personal life how he chooses and excludes from it the
whole outside world not included in that circle. In contrast, the national court did not
treat the lecture halls as a space where the right to privacy could be violated, which in this
case intersects in a broader context with the right to inviolability of the home.
e one-sided approach and rigidity in the application of law in this case is reected
in the fact that neither Basic Court nor the High Court considered the compliance of
6 For more details about citing desicions in this manner: Cozzi et al, 2016, pp. 99-102.
7
Various constitutional grounds are found in other judgments challenged before the ECtHR, such as Mijušković
v Montenegro, Milićević v Montenegro, Drašković v Montenegro.
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the actions of the “educational authorities” (Universities and faculty) with the Law on
Personal Data Protection which in the general provisions, among other things, stipulates
that “personal data may not be processed to an extent greater than necessary to achieve
the purpose of processing or in a manner inconsistent with their purpose” (art. 2, par. 2
of the Law). us, the provision of art. 8, par. 2 of the Convention that respect for “private
life” and “home” can be limited only “in accordance with the law” was not respected as a
relevant right.
Also, the opinion of the Council of the Agency for Personal Data Protection of
28 April 2011 was not taken into account either, as the Council stated in its decision that
the conditions for the introduction of video surveillance provided by law were not met,
primarily because there was neither evidence of danger to safety of people and property
in amphitheaters, nor to condential information. Based on that, the Council stated that
video surveillance of lectures was not a legitimate basis for installing equipment in that
direction, invoking the provisions of art. 35-40 of the Law.8 An analysis of this and other
privacy cases shows that national courts did not focus at all or did not suciently focus
on the proportionality test.
e distinction between the “right to privacy” and the “right to private life” in the
way that these are two rights, and not a relationship between a part and a whole, is also in
favor of constitutional sub-regulation. Based on such normative inconsistency, the decision
of the Basic Court established that the right to privacy is related to the “strictly private
and intimate sphere of life as the right of everyone to live their own life, while the “right
to private life” is qualied as a restrictive right “to the extent that the individual himself
brings his private life into contact with public life. However, this is one of the principles of
interpretation of the Convention in relation to this article, because “the right to privacy”
implies a more restrictive approach and eld of action that limits the traditional notion
of privacy, while “private life” has a very broad meaning and is more similar to the notion
of personal autonomy.
Based on that, it was concluded that in the amphitheater, “the professor does not
perform any private work, nor can he at any time feel the privacy in that capacity, which
could be violated in connection with the performance of work duties”. us, the violation
of private life is related to the nature of work (work engagement or private work), which is
a feature of narrow interpretation that is not inherent in the modern concept of application
of human rights provisions. In contrast, the ECtHR in the case of Nemec v Germany
concluded that “there is no sucient reason to exclude professional or business activities
from the concept of private life“.9
In addition to considering Art. 8 of the Convention and constitutional provisions
directly related to the right to privacy (Art. 40, 41, 42, and 43), the lack of direct application
of Art. 9 of the Constitution, which determines the primacy of international law over
domestic law, should be pointed out. Recognizing the fact that the Convention establishes
derogations from privacy in a more complete and at the same time dierent way, there was
8 For more information: Braithwaite, Harby & Miletić, 2017, p. 27.
9 For more details: Krstić & Marinković, 2016, p. 170.
111
room for the Basic and Higher Courts to directly apply art. 8, par. 2 of the Convention,
as was done in the jurisprudence of the Supreme Court of Cassation of Serbia (Supreme
Court of Serbia, No. 336/2017 from 25 January 2018).
All of the above may be a consequence of constitutional inconsistency in the
formulation of this right and combined with insucient application of ECtHR’s case law
it may aect the quality of human rights protection in internal legal order. In support of
(non)application of the ECtHR’s case law goes the fact that the decision of the Basic Court
incompletely and supercially cites its [ECtHR’s] case law, without quoting the name and
reference number of the cases in which the ECtHR ruled.
5. Concluding remarks
Content of the paper and analysis of the topic proved that the selected topic does
not include only nomotechnical level. Contrary to that, this topic includes and has impact
on wider legal phenomena, especially protection of the human rights and eectiveness of
legal remedies used for that purpose.
Starting from the complexity and challenge that the process of implementation of
international law into domestic law opens, especially in the part related to human rights
and the application of the Convention, it is necessary to take normative and other measures
to enable full realization of the right to privacy.
More specically, in order to expand the scope of the right to privacy, it is necessary to:
•
propose a revision of the provisions of the Constitution of Montenegro, in the part
related to the right to privacy, in a way that merge those articles of the Constitution
(40, 41, 42 and 43), which individually regulate certain segments of this right. In
the new constitutional solutions, the name and constituent elements of this right
should be consistently aligned with the provisions of art. 8 of the Convention, namely
stipulate right to respect for private and family life protecting: private life, family
life, correspondence and home. Having in mind the complexity and duration of
the procedure of constitutional changes, it is necessary, until the adoption of new
solutions, to fully apply the case law of the ECtHR in relation to the protection
of this right, as well as to dra legal positions of the Supreme Court that would
facilitate the process of law enforcement;
• in accordance with art. 8, par. 2 of the Convention, to supplement and specify the
grounds for restricting this right in order to avoid arbitrary interference of the
state in its exercise and any action that is not “in accordance with the law” and
not “necessary in a democratic society”;
•
to intensify the activities of institutions and organizations that, besides the courts,
employ various activities to promote and protect numerous segments of right to
privacy (Protector of Human Rights and Freedoms, Montenegro’s Representative
before the ECtHR, Parliamentary Committee on Human Rights, NGOs, profes-
sional associations of lawyers, etc.);
Ivan M. Vukčević - ARTICLE 8 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS...
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112
• undertake activities so that in the teaching process (law faculties), at professional
conferences, as well as in the initial and continuous training delivered by the Cen-
ter for Education of Personnel in the Judiciary and State Prosecutor’s Oce, this
topic is represented in proportion to its importance. To this end, it is necessary to
conduct multidisciplinary research in order to consider all aspects of the right to
privacy, especially those that are the product of new dimensions of IT development.
References
Beširević, V. et al. 2017. Komentar Konvencije za zaštitu ljudskih prava i osnovnih sloboda.
Službeni glasnik: Beograd.
Bobio, N. 2008. e Age of Rights – twelve essays on human rights. Belgrade.
Cozzi, A. et al. 2016. Comparative review of the implementation of European Court for
Human Rights. Council of Europe: Belgrade.
De Vergottini, G. 2015. Uporedno ustavno pravo. Translated by Ljiljana Grubač. Službeni
glasnik: Beograd.
Gutić, S. 2010. Pravo na privatnost u Evropskoj konvenciji za zaštitu ljudskih prava i
osnovnih sloboda. Strani pravni život, 54(2), pp. 335-346. Available at: http://www.
stranipravnizivot.rs/index.php/SPZ/article/view/578.
Krstić, I. & Marinković, T. 2016. Evropsko pravo ljudskih prava. Beograd: Savet Evrope.
Maganić, A. 2016. Praksa Evropskog suda za ljudska prava i pravo na dom. In: Barbić, J.
(ed), Pravo na dom. Zagreb: Hrvatska akademija znanosti i umjetnosti, pp. 19-54.
Popović, D. 2012. Evropsko pravo ljudskih prava. Beograd.
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Case law
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Ivan M. Vukčević, MLS
Programski direktor Centra za monitoring i istraživanje (CeMI), Podgorica, Crna Gora
e-mail: ivan.vukcevic@yahoo.com
ČLAN 8 KONVENCIJE O ZAŠTITI LJUDSKIH PRAVA I OSNOVNIH SLOBODA I
PRAVO PRIVATNOSTI U USTAVU CRNE GORE
Sažetak
Predmet rada je uporedna analiza prava na poštovanje privatnog i porodičnog života
u Evropskoj konvenciji za zaštitu ljudskih prava i osnovnih sloboda i prava na privatnost
sadržanog u Ustavu Crne Gore. U tom cilju vrši se prezentacija relevantnih odredbi u
ovim dokumentima, uz kritički pristup njihovoj (ne)usaglašenosti, kako u određenju
konkretnih prava, tako i slučajevima njihovih ograničenja. Rad treba da ponudi odgovor
na pitanje - da li je u Ustavu Crne Gore na primjeren način implementirano ovo pravo, kao
i da li njegov drugačiji sadržaj, na konkretnom primjeru, zahtijeva neposrednu primjenu
Ivan M. Vukčević - ARTICLE 8 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS...
Strani pravni život, god. LXIV, br. 4/2020
114
normi međunarodnog prava. Istovremeno, cilj autora je da pruži saznanja da li nedovoljna
usklađenost odredaba međunarodnog i nacionalnog prava na ovom planu može uticati
na potpuniju zaštitu ovog prava. U tom cilju u radu je analiziran jedan od predmeta u
kojima je Evropski sud za ljudska prava odlučivao o povredi člana 8 Evropske konvencije
o zaštiti ljudskih prava i osnovnih sloboda u odnosu na Crnu Goru. Polazeći od izložene
materije, na kraju rada, izvedeni su odgovarajući zaključci o mogućim pravcima dogradnje
postojećih rješenja i prakse u kojoj se ona ostvaruju. U radu su korišćeni normativni i
komparativni metod, zajedno sa analizom sudske prakse.
Ključne riječi: pravo na privatnost, Konvencija za zaštitu ljudskih prava i osnovnih
sloboda, Ustav Crne Gore, sudska praksa.
Article history:
Received: 11 November 2020
Revised: 7 December 2020
Accepted: 20 January 2021
ResearchGate has not been able to resolve any citations for this publication.
Komentar Konvencije za zaštitu ljudskih prava i osnovnih sloboda. Službeni glasnik
  • V Beširević
Beširević, V. et al. 2017. Komentar Konvencije za zaštitu ljudskih prava i osnovnih sloboda. Službeni glasnik: Beograd.
The Age of Rights - twelve essays on human rights
  • N Bobio
Bobio, N. 2008. The Age of Rights -twelve essays on human rights. Belgrade.
Comparative review of the implementation of European Court for Human Rights
  • A Cozzi
Cozzi, A. et al. 2016. Comparative review of the implementation of European Court for Human Rights. Council of Europe: Belgrade.
Uporedno ustavno pravo. Translated by Ljiljana Grubač. Službeni glasnik
  • G De Vergottini
De Vergottini, G. 2015. Uporedno ustavno pravo. Translated by Ljiljana Grubač. Službeni glasnik: Beograd.
Pravo na privatnost u Evropskoj konvenciji za zaštitu ljudskih prava i osnovnih sloboda
  • S Gutić
Gutić, S. 2010. Pravo na privatnost u Evropskoj konvenciji za zaštitu ljudskih prava i osnovnih sloboda. Strani pravni život, 54(2), pp. 335-346. Available at: http://www. stranipravnizivot.rs/index.php/SPZ/article/view/578.
Evropsko pravo ljudskih prava
  • I Krstić
  • T Marinković
Krstić, I. & Marinković, T. 2016. Evropsko pravo ljudskih prava. Beograd: Savet Evrope.
Praksa Evropskog suda za ljudska prava i pravo na dom
  • A Maganić
Maganić, A. 2016. Praksa Evropskog suda za ljudska prava i pravo na dom. In: Barbić, J. (ed), Pravo na dom. Zagreb: Hrvatska akademija znanosti i umjetnosti, pp. 19-54.
Evropsko pravo ljudskih prava
  • D Popović
Popović, D. 2012. Evropsko pravo ljudskih prava. Beograd.
Council of Europe, Parliamentary Assembly. Resolution of the Parliamentary Assembly of the Council of Europe no. 1165 of 1998. International Covenant on Civil and Political Rights, Adopted and opened for signature
  • K Rid
Rid, K. 2007. Evropska konvencija o ljudskim pravima (vodič za praktičare), knjiga 2. Beograd. Šuković, M (ed.). 2007. Prilog javnoj raspravi o nacrtu Ustava Crne Gore. Podgorica: Crnogorska akademija nauka i umjetnosti. Legal sources Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391-407. Constitution of Montenegro, Official Gazette of Montenegro, No. 1/07. Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950. Available at: https://www.echr.coe.int/Documents/Convention_ENG.pdf. Council of Europe, Parliamentary Assembly. Resolution of the Parliamentary Assembly of the Council of Europe no. 1165 of 1998. International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16
Freedom of expression and its relationship with the right to respect for private life and the right to a fair trial (case law of the European Court of Human Rights). Tirana: The AIRE Centre and Civil Rights Defenders
  • B Braithwaite
  • C Harby
  • G Miletić
Braithwaite, B., Harby, C. & Miletić, G. (eds). 2017. Freedom of expression and its relationship with the right to respect for private life and the right to a fair trial (case law of the European Court of Human Rights). Tirana: The AIRE Centre and Civil rights defenders. Available at: https://rolplatform.org/wp-content/uploads/2018/03/ free_expression_guide-eng.pdf, (11. 11. 2020).