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Secret Surveillance Measures in Criminal Procedure – Neglected Control

Secret surveillance measures (SSM), applied in criminal procedure, represent a temporary curtailment of rights guaranteed by the Constitution of Montenegro and by the European Convention on Human Rights. They are applied in dealing with serious criminal offences and are used as an instrument for the fight against corruption and organised crime. Nevertheless, having in mind the possibilities for misuse of SSM, it is especially important to exercise continuous control and to develop oversight mechanisms for their application. Despite their importance, SSM applied in criminal procedure fall outside the sphere of interest of all levels of institutional control and, therefore, elude all forms of accountability.

SSM in criminal procedure are applied with the aim of providing evidence for precisely defined criminal offences for which these measures can be ordered. SSM are prescribed by the Criminal Procedure Code (CPC), stipulating that, based on the ‘written order by the investigative judge at the motion of the State Prosecutor containing a statement of reasons’, the following measures can be applied: 1. secret surveillance and technical recording of telephone conversations, i.e. other communication carried out through devices for distance technical communication, as well as private conversations held in private or public premises or at open; 2. secret photographing and video recording in private premises; 3. secret supervision and technical recording of persons and objects. Based on the motion of police authorities containing a statement of reasons, the following measures can be applied via a written order by the State Prosecutor: 1. simulated purchase of objects or persons and simulated giving and taking of bribe; 2. supervision over the transportation and delivery of objects of criminal offence; 3. recording conversations upon previous informing and obtaining the consent of one of interlocutors; 4. use of undercover investigators and collaborators.

Forms of control over the application of SSM in criminal procedure are: 1) ex ante: judicial/prosecutorial in the form of approving measures; 2) during the application of measures: the Internal Control of the Police possesses the most important oversight mechanisms; 3) ex post: control of the procedure before the courts; parliamentary oversight; civilian control of the police; independent institutions: Personal Data Protection Agency and the Ombudsman.

By analysing the legal framework and practice, the intent of the author of this research report is to indicate the shortcomings in exercising democratic and civilian control over the application of SSM, thereby providing recommendations for enhancing the oversight of their application.

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National Security Agency and Secret Surveillance Measures – Is there any control?

The state needs efficient intelligence and security services with special powers to protect itself from threats to national security and to be more efficient in the fight against organized crime. Secret surveillance measures (SSM) allow the state to act preventively, to detect and to eliminate various forms of threats early. However, apart from being an instrument of protection, they are a powerful lever of the state, susceptible to abuse. Such abuse causes serious damage to the pivotal values of a democratic society which is why continuous control needs to be exercised and oversight mechanisms of its application developed.

SSM applied by the National Security Agency (NSA) include those measures of covert data collection which require higher level of authorization: 1. surveillance over electronic communication and mail deliveries approved by the president of the Supreme Court; and 2. surveillance of facility’s interior, closed spaces and objects, with the use of technical means, approved by the Panel of Judges of the Supreme Court, upon written proposal by the NSA director. Measures are applied when there is a well-founded suspicion of threat to national security. There are three modes of control for applying the measures: judicial, internal and parliamentary control.

By analyzing the legal framework and the application of SSM, the author’s goal is to indicate the provisions which are not in line with the standards and best practice in this area, and to identify the possibilities and limits for overseeing the use of these measures at all three levels of control, with an emphasis on parliamentary oversight.

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Parliamentary Inquiry in Montenegro – Oversight Tool Lacking Political Support

The constitutional provision for proposing and implementing parliamentary inquiries in Montenegro is scarcely ever applied. In the last ten years, this oversight tool has not been used, while the proposal for opening parliamentary inquiry was submitted only in two occasions from the adoption of the current Rules of Procedure of the Parliament, regulating the parliamentary inquires issue.

In Montenegro, the opening of parliamentary inquiries suffers from the lack of both the political will of parliamentary majority and the opposition’s confidence in its effectiveness. Furthermore, the opposition is not unanimous in using this tool.

Normative gaps in the current regulation of parliamentary inquiries in Montenegro are additionally overburdening the overall situation.

In implementing parliamentary inquires, the Inquiry Committee might be confronted with difficulties in reference to the data collection, due to: imprecisely defined investigative competences; inability to access classified information; absence of legal obligation of government officials, civil servants and other persons to be heard before the Committee, under the threat of imposing sanctions for the failure to respond and perjury.

Unlike Montenegro, opting for regulating the parliamentary inquiry issue by the Parliament’s Rules of Procedure, a vast majority of the EU countries have adopted an umbrella law, commonly the special Law on Parliamentary Inquiries.

The establishment of a special legal framework governing this oversight tool aims at its strengthening, as well as guaranteeing the absolute obligation of adhering to the legal provisions regulating this issue. The adoption of a special Law in Montenegro would result in regulating specific issues related to the scope of work and actions of the Inquiry Committee, as well as the penalty provisions, enabling adequate implementation of this tool in practice.

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New research: Secret Surveillance Measures in Criminal Procedure – Neglected Control

New research conducted by Institute Alternative “Secret Surveillance Measures in Criminal Procedure – Neglected Control” was presented on Wednesday, 4 April 2012 at a press conference.

This research is supported by the Parliament of Montenegro, through its Committee for the distribution of funds to NGOs.

It represents the second part of the project entitled Democratic and Civilian Control of the Application of Secret Surveillance Measures in Montenegrin Legislation and Practice – Possibilities and Limitations.

Most important findings of the analysis:

– Legal framework for the application of secret surveillance measures (SSM) in criminal procedure, through the new Criminal Procedure Code, has been mostly aligned with the case-law of the European Court of Human Rights (ECtHR). Insight into call lists, not defined as an SSM in Montenegrin legislation but rather as an operative data-gathering and police authority during investigation, is not in line with the case-law of the ECtHR.

– Absence of practice of determining responsibility for illegal procedures, administrative and procedural shortcomings in the application of SSM, is a cause of concern. By enhancing communication and coordination between the Police Directorate and the National Security Agency, the number of individuals kept under SSM twice, should be reduced to a minimum.

– Although all levels of control have certain mechanisms of oversight of the SSM application at their disposal, they are all characterized by passivity in exercising their duties prescribed by law. Internal control is not performing its oversight duty, allegedly because the data are secret. Judicial inspectorates do not control prescribed record-keeping of SSM. Committee for political system, judiciary and administration, and the Committee for Security and Defense did not use their control mechanisms for overseeing the application of SSM in criminal procedure. Complaints mechanism is not developed, while the Ombudsman did not perform any controls of the application of SSM in criminal procedure.

– Availability of information is very limited, and the annual performance reports of the state institutions competent for applying the measures do not include information on SSM. In the last report submitted by the Tripartite Committee, responsible for gathering data in the field of corruption and organized crime, it is stated that ‘during 2011, SSM were approved for 113 individuals in 18 cases.’ However, the number of individuals processed and the number of legally enforced decisions based partly on the evidence gathered through the application of SSM, which would indicate the results achieved through this method, is not available.

– It is necessary to regulate the legal framework for insight into call lists more precisely; to allow the Internal Police Control to exercise continuous oversight of the application of SSM in criminal procedure; courts, prosecutorial authorities and the police should deliver special reports on the application of these measures to the Committee for Security and Defense.

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Strategy for Public Administration Reform – First Year of Implementation

Implementation of the Strategy for Public Administration Reform and the accompanying Action Plan has started a year ago. As a result of its regular research activity, Institute Alternative followed the implementation of this strategy and its action plan during this period.

In addition to modernization, rationalization and professionalization of the public administration system, the Strategy for Public Administration Reform recognized the need for strengthening the rule of law and enhancing the accountability of public administration; business environment; quality of public services and institutional stability and flexibility of the public administration system. These goals, as recognized in the Strategy, should be accompanied by increased transparency and ethical behavior in public administration, which would contribute to further integration of the country in the European administrative area.

However, in the hitherto implementation of the Strategy, numerous problems can be observed. Namely, although the Strategy foresees regular six-monthly reporting, this obligation has not been met. One year since the implementation of the Strategy began, not a single report on the implementation of the foreseen activities has been published.

The Council for regulatory reform and business environment improvement, a body responsible for coordinating the activities of this Strategy, held only two meetings since the adoption of this document without even discussing the relevant activities. Therefore, a special body, whose mission would be to coordinate the process of public administration reform, should be formed. Such a body already exists at the local level – Coordination Committee for Local Self-Government Reform.

Unclear division of responsibility and authority between the Interior Ministry and Finance Ministry in terms of key tasks for implementing the Strategy is one of the main problems.

What has been accomplished so far at the level of public administration reform in Montenegro? Everything that has been achieved in 2011 is a result of public administration’s involvement in meeting the seven key priorities of the European Commission which require high level of harmonization with the membership criteria. Therefore, within the framework of the Action Plan for fulfilling the recommendations of the European Commission, a set of new laws were adopted: Law on Public Administration, Law on Civil Servants and State Employees, Law on Territorial Organization of Montenegro and a Regulation on the organization and manner of work in the public administration which placed certain state agencies within the relevant ministries. Also, centralization of inspection surveillance is foreseen as well as the establishment of a single inspectorate which is a significant novelty compared to the previous legal framework according to which inspection surveillance was left to relevant line ministries. Directorate for Inspection Tasks will be operational as of May this year, while inspection tasks will be gradually brought under a single authority with the deadline set for the end of 2013.

Strategy for Development of Inter-Municipal Cooperation in Montenegro covering the period from 2011 to 2015 has been adopted. At the end of December, legal-institutional analysis of the public administration system has been adopted along with the proposal of future provisions aiming to identify problems in the administration functioning (in terms of human, material and technical resources).

In contrast to the already achieved goals, numerous tasks foreseen by the Action Plan for implementing the Strategy have not been fulfilled. Some of them include establishing obligatory training programs for certain categories of civil servants/state employees, enhancing human resources management through central personnel record-keeping, as well as regular assessment of civil servants and state employees’ performance.

At the very end, it is necessary to highlight the need to adopt the Law on Government in order to legally define the organization of the executive, rather than relying on regulations adopted by the government itself.

Having in mind the importance of public administration reform as an ‘umbrella’ for all other reforms in the country, it is extremely important to have a strictly defined institutional coordination of the process in order to avoid ‘poor communication’ and overlapping of authority between the Ministries of Finance and Interior, as well as greater authority of the Finance Ministry than foreseen by the Regulation on Public Administration Organization of Work.

In the forthcoming period, Institute Alternative will continue monitoring the public administration reform in Montenegro in line with principles operating in the European administration area, thereby contributing to the evaluation of the entire process which has been neglected at the government level.

Stevo MUK

President of the Management Board Institute Alternative