A 11 – Initiative for Economic and Social Rights submitted to the Constitutional Court an Initiative to initiate proceedings to assess the constitutionality of the Law on Social Card due to its incompatibility with the Constitution, ratified international treaties and the principle of unity of the legal order.
The Law on Social Card processes exactly 135 data on citizens who are beneficiaries of rights from the social protection system or those citizens who want to exercise these rights. The processing of such a large amount of personal data does not exist in any other life situation in the Republic of Serbia and indicates a violation of one of the basic principles of personal data protection – the principle of data minimization and restrictions on the purpose of processing. At the same time, the provisions of the Law on Social Card do not clearly prescribe the manner in which this processing is performed, and leave room for violating the rights of the poorest citizens of Serbia.
All this indicates that the intention of the legislator is to use new technologies for the purpose of stricter control of the poor and those who are trying to exercise their rights from the social protection system, and not to improve the social protection or improve the work of already overburdened centers for social welfare.
Of particular concern is the fact that Art. 17 of the Law on Social Card provides for automated processing of personal data which is in conflict with the provisions of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. Provision of this article of the Law stipulates that on the basis of an algorithm that automatically checks the fulfillment of conditions for exercising the right to social assistance, social protection institutions only inform that it is necessary to take certain actions regarding the rights of persons whose personal data are contained in the Social Card. Contrary to the guarantees from Art. 9 of the mentioned Council of Europe Convention, the user of the social protection system is prevented from taking into account his / her views in relation to this automated processing of personal data.
The Social Card is in contradiction with Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as with Art. 9 of the International Covenant on Economic, Social and Cultural Rights, which guarantees the right to social security. Better achievement of targeted provision of the right to cash benefits in the social protection system and reduction of abuse of rights are certainly legitimate goals for every state. However, in order for the Social Card system to reduce alleged abuses in the exercise of these rights, it is necessary that there be any data on the degree of abuse in the social protection system.
In the absence of data on alleged abuses and with a huge amount of personal data that is automatically processed on the basis of a non-transparent algorithm, the Social Card system was established as opposed to the proclaimed goal. As the system is in conflict with the basic constitutional guarantees and guarantees from ratified international treaties, an urgent reaction of the Constitutional Court and determination of its unconstitutionality is necessary.