Revealing identity of persons in self-isolation in Montenegro unconstitutional, experts claim

Prime Minister of Montenegro Duško Marković; Photo: Prime Minister of Montenegro

PODGORICA – The National Coordination Body for the Suppression of Infectious Disease, founded by the Government of Montenegro, introduced 17 recommendations and 60 measures since 28 February until 22 March due to COVID-19 pandemic, one of them being to digitally publish identity of persons who were ordered into obligatory 14-day self-isolation.

“Let every citizen know which of his neighbors and fellow citizens puts them at risk,” the Montenegrin government wrote on Twitter. The National Coordination Body started publishing names, surnames as well as addresses of persons in self-isolation on Saturday and as of yesterday, more than 1800 identities have been published.

Many experts and civil society organizations, such as Human Rights Action (HRA) based in Podgorica, claim that this act violates the Constitution of Montenegro, as well as international standards of the right to privacy and called upon the Government to end this practice.

“HRA is worried about the stigmatization of people and children, whose identities and addresses had been revealed in such a way by the Government, which may ultimately lead to violence. HRA especially warns that it may be expected that people, who feel the symptoms of the virus, will not seek medical help promptly or at all, fearing that their identity may also be disclosed in the same way,” stated the organisation in a press release.

Jovana Marović, Executive Director of the Politikon network, a Podgorica-based think tank and a member of Balkans in Europe Policy Advisory Group (BiEPAG), says that the Government explained the decision with the intention to familiarize the disciplined citizens, i.e. those who follow the prescribed measures, with the undisciplined ones which put them at risk.

“Namely, the Government was faced with the problem of non-compliance with the decision on mandatory self-isolation of persons who had recently returned from abroad, the competent authorities could not punish and control all those who endanger public health, and the National Coordination Body therefore decided to make such a radical move. Nevertheless, the effect of such a measure is questionable”, explains Marović and adds that the crnagorakorona.com app has already been created, which, based on geolocation, allows users to locate people on the list in their immediate vicinity, because of their pre-released addresses.

“For the time being, there are only speculations about who created this portal, and this move indicates possible directions for misuse of the published information. In addition, stigmatization can cause people on the list to be a subject of judgement by other people and exposed to inconvenience. The government has endangered the right to privacy of everyone, not just those who failed to comply with the prescribed measures,” highlights Marović and says that public reactions are divided.

“On social media, both positive and negative comments can be seen from citizens. Civil sector almost unanimously condemned such a decision by the Government, and some media, such as Vijesti, did not want to publish a list of persons who were required to carry out mandatory self-isolation”, concludes Marović.

It seems that Montenegro’s example was followed by the Herzegbosnian County in Bosnia and Herzegovina when the identities of all persons in area who have been ordered to stay in self-isolation were published online three days ago. However, Personal Data Protection Agency in Bosnia and Herzegovina subsequently banned publishing such information.

“Violation of international standards and the Constitution of Montenegro”

Measures like this one have been enforced in situation where a state of emergency had not been declared by the Parliament, therefore experts claim that a measure like revealing identities does not have legal basis and represents a dangerous precedent.

Marović explains that although the National Coordinating Body has informed the public that the Agency for Personal Data Protection and the Free Access to Information’s prior consent have been obtained, disclosing the identity of persons in mandatory self-isolation violates the Law on Personal Data Protection and the Montenegrin Constitution, which does not prescribe any restriction on the right to privacy and protection of personal data and such a restriction is only possible during the state of emergency.

“The Prime Minister himself explained this decision as follows: “The right to health and life is above the right to unconditional protection of personal data. We will discuss possible failures when all this is behind us. And to talk at all, we need to survive, so this is not the time for legal nuances, but for saving lives”, which is in some way an admission that they did not comply with the law and the constitution”, underlines Marović.

HRA stressed that the Montenegrin Law on Health Care (Article 11) and Constitution of Montenegro have been violated reminding that the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data stipulates that personal data relating to health belong to a special category of data that can only be processed if their proper protection is ensured. They added that the Article 8 of the European Convention on Human Rights outlines the right to protection of privacy and family life and that this right may be restricted for the protection of health, but only to the extent necessary in a democratic society.

“The European Court of Human Rights held that “the right to privacy applies especially when it comes to protecting the confidentiality of data relating to viruses, since disclosure of such information can have detrimental effects on the private and family life of the individual and his or her social and professional situations, including exposure to stigma and possible exclusion from the community”, HRA reminds.

HRA notified the UN Special Rapporteurs on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and right to privacy about the measure of publicly announcing personal data of persons who have been ordered to stay in self-isolation in a letter yesterday.

“The supervision of persons in self-isolation needs to be secured in another manner, without expecting from the public to do police work”, concluded HRA.