How Croatia pushed back on COVID-19 mobile phone tracking (for now)
In Croatia, the government has been introducing substantial restrictions of freedom of assembly, freedom of business activity and freedom of movement from the beginning of the pandemic. Despite these, they have not declared a State of Emergency. The government based its restrictive decisions on the Constitutional Article 16 that stipulates “freedoms and rights may only be restricted by law in order to protect the freedoms and rights of others, public order, public morality and health“ and that “every restriction of freedoms or rights shall be proportional to the nature of the necessity“. It was a convenient situation, since the government could enact restrictions and decisions by a simple majority in the Parliament. Such procedural maneuver itself was met with serious criticism and controversy by some constitutional legal experts and the opposition. However, the government’s communication strategy concerning emergency measures at the beginning was clear and citizens received it well. Importantly, media freedoms have not been restricted. Civil society organisations remained active and vigilant from the start; they initially supported the necessary measures and contributed to providing aid and self-organizing around communities in need.
At the peak of the pandemic, the government proposed a fast-tracked draft legislation that caused outrage among civil society, experts, opposition and the media alike. Changes to the Law on Electronic Communication proposed to give government the right to track the movements of all citizens by using geolocation through mobile phones, with no time limitation. Critics vigorously rejected this proposal as a dangerous repressive measure and ECNL helped provide legal arguments and international standards to the debate. Forty-four Croatian CSOs signed an open letter asking the government to withdraw the draft legislation. Constitutional legal experts publicly debated whether such measure, highly restrictive on human rights, should and could be adopted without resorting to the constitutional requirement for declaring a State of Emergency and processing all related restrictive legislation with 2/3 of parliamentary majority. Fierce discussions were held in all media, including social networks and expert law journals, on the necessity, potential effectiveness and proportionality of such measure, as well as the procedural requirements for its adoption. At the same time, the European Commission and the Council of Europe began to develop their positions on the issue of surveillance for the purpose of tracking the pandemic spread. ECNL made sure these were fed into the public discourse and decision-making process, amplifying the messages that restrictive tracking of citizens en large without time limits is not a policy approved by the regional institutions.
As a result of public pressure, rapid regional standards setting and a lowering number of infections, the government quietly shelved the draft legislation, for now. The strong reaction from civil society, respected legal experts and the public, combined with well-established arguments, together with the opposition requesting amendments to the draft legislation, have bought time to push back against these fast-tracked restrictions. However, the government did leave the possibility for some kind of tracing application – in line with privacy requirements to be set out by the EU – open in the future. Therefore, the public needs to remain vigilant and keep addressing potential similar restrictions with concrete facts, standards and legal safeguards.