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Human Rights Ombudsman Lodges a Challenge to the Constitutionality of the Amended Financial Administration Act

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On 2 March 2023, the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) lodged a challenge to the constitutionality of Article 18a of the Financial Administration Act (ZFU). This article regulates the new mandate of the Financial Administration of the Republic of Slovenia, by which the head of the Financial Administration can decide for the use of technical aids for the acquisition of data about the position and movement of goods (GPS tracking devices) while conducting a financial investigation. “The amendment’s proposer stated that the need to track goods exists in practice because shipments are frequently transferred onto another means of transportation and all traces of these goods are lost. According to Article 18a of the ZFU, a tracking device would be attached to the exterior of a vehicle, meaning that goods subsequently transferred into another vehicle could not be traced since covert GPS tracking does not detect that the goods are in another vehicle. Thus, the new mandate cannot be appropriate for the achievement of the set goal of the amendment’s proposer,” explains Ombudsman Svetina.

After the careful study of the Act, the institution of the Human Rights Ombudsman determined that the mentioned mandate is not in accordance with no fewer than five articles of the Constitution of the Republic of Slovenia. It is a violation of Articles 2, 15, 23, 35, and 38 of the Constitution.

It derives from Article 2 of the Constitution that regulations must be clear and precise. However, in Article 18a of the ZFU, especially in defining the conditions for the use of the mentioned mandate of the Financial Administration, the legislator used semantically extremely open concepts, such as the most serious violation, serious offences, seriousness of the offence, etc. As the institution of the Ombudsman believes, it is thus not completely clear when and who could be subject to such control. According to the Act’s amendment, the measure could be ordered only based on grounds for suspecting that the most serious violations of tax regulations have occurred. “The institution of the Human Rights Ombudsman believes that such undemanding standard of proof is too low in relation to the content of the intervention, which can include long-lasting tracking of a vehicle and acquisition of data about the location and movement of the vehicle and goods and people in it, not only in public places but also in places not open to the public. Hence, the Act includes no safety mechanisms that would prevent the recording of data when a vehicle is in a private place, such as fenced parking lots and parking lots inaccessible to the public, closed private parking houses, or private paths which can be accessed only by unlocking fences or gates,” clarifies Peter Svetina.

Furthermore, judicial overview is not envisaged in the ordering of the mentioned measure. “Namely, the amendment to the Financial Administration Act does not envisage that individuals who were followed would subsequently be informed of that and be given the possibility to familiarise themselves with the collected data. This means that they cannot learn about the fact that they were monitored and thus cannot use possible legal remedies due to possible illegal intervention into their rights. Then, an important safeguard is missed against the illegal execution of secret surveillance or intervention into the privacy by the authority,” adds the Ombudsman.

As also accrues from Article 18a of the ZFU, the competent authority secretly places the tracking GPS device on the exterior of a vehicle, which makes it possible to track the position and movement of a vehicle precisely and for a longer period, and with this also of people in the vehicle. The Act does not clearly state how long such a measure can last. Thus, the mentioned regulation would strongly deviate from the regulation of similar interventions in other legal procedures, such as the criminal procedure. The Act also does not predict any safeguards that would prevent the arbitrary execution of the mandate, such as the demand that prior to the ordering of the measure it needs to be proven that the goods in question are actually in a certain vehicle, for which covert tracking is foreseen.

“According to the Ombudsman’s estimate, Article 18a of the Financial Administration Act presents an invasion of privacy which is a constitutionally guaranteed human right. Considering the stated concerns and doubts about the constitutional suitability of the Act, the Human Rights Ombudsman thus lodged the challenge to the constitutionality and proposed that until the decision is final, the Constitutional Court of the Republic of Slovenia withhold the implementation of the challenged part of the Act,” Svetina further clarifies his decision.

During the term of Peter Svetina so far, the institution of the Human Rights Ombudsman of the Republic of Slovenia has lodged two challenges to constitutionality, the first in January of this year regarding the Criminal Procedure Act and the second one now regarding the amendment of the Financial Administration Act. During his term, Ombudsman Svetina also lodged a constitutional complaint in 2021 due to the handing over of an unsuccessful asylum seeker to the Republic of Croatia.