Year: 2012

Negotiating chapter 24 covers a broad spectrum of areas regarding, inter alia, asylum and migration policies, fight against organised crime, control of external borders, as well as judicial, police and customs cooperation.

This chapter regulates the area of justice, freedom and security by efficiently interconnecting the judicial, prosecutorial, police and other relevant bodies of the member states with a view to protecting the external borders while simultaneously guaranteeing security to the citizens within the EU.

Some of the key questions addressed under this chapter concern the application of the European arrest warrant, as well as the principle of mutual recognition of court decisions in member states. The acquis in this area stipulates the establishment of direct communication between the judicial bodies inside the EU, as well as the possibility of carrying out investigations by joint teams cooperating in the fight against organised crime. It is precisely due to the strategic role of this chapter in the EU legal framework that Montenegro is urged to fulfill the key priorities related to the fight against corruption and organised crime.

Based on the dynamics, time-frame and the problems Croatia encountered during the negotiation process on Chapter 24, the goal of this analysis is to identify the potential obstacles in Montenegro’s negotiations, as well as to provide recommendations to overcome them.

In accordance with the EU recommendation from the Spring report on progress achieved in implementing reforms, the European Council should approve opening of negotiation talks between Montenegro and EU in late June. With this decision, the most challenging phase of accession process, which will be opened with most difficult chapters, should begin.

The goal of this analysis is to, based on Croatian experience in the negotiation process in the framework of Chapter 23 and evaluations of the European Commission in Montenegrin progress reports, as well as the dynamics of reforms conducted so far, point at possible obstacles during in negotiating this chapter, and to offer recommendations to overcome them.

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.

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.