Statement on Publishing the Data on Secret Surveillance Measures in Criminal Procedures

Draft Law on Amendments to the Criminal Procedure Code (CPC) which is now in parliamentary procedure, introduces changes to the extension of the measures of secret surveillance, the circle of persons whom these measures may apply to and the authority that can determine them.

Even though, in principle, we are not against expanding the possibilities of secret surveillance measures (SSM), because we believe that the aim is preventing the most serious offenses, we are obliged to point out that the state authorities have not made an effort to bring more accountability and transparency into this area.

After several years of application of SSM, there is not one analysis that deals with the implementation of the CPC in this area, the previous results in implementing measures or the problems in practice. Since 2012 the Institute alternative continuously warns that even the most basic data essential for the assessment of the results of the measures is not available – total of:

  • number of proposals submitted to investigative judges for the application of SSM by type,
  • number of approved proposals,
  • number of proposals for extending the measure,
  • number of cases in which SSM were applied,
  • number of proposals received and measures approved for the application of SSM by the Police Directorate,
  • number of individuals who were under SSM and the type of SSM applied,
  • number of individuals processed based on the evidence gathered via SSM,
    criminal offences of which the individuals are accused,
  • number of initiated criminal procedures on the grounds of information obtained via SSM application,
  • number of legally-binding decisions based partly on the information gathered via SSM application,
  • information about the initiated procedures of determining responsibility in cases of administrative shortcomings and unlawful procedures and misuses, especially after excluding the evidence from the court case, as well as about the controls carried out at all levels of oversight,
  • number of individuals informed about the application of SSM,
  • number of complaints of the citizens to the competent institutions on this issue, etc.

On the basis of these data, it could be reasonably argued that there is a need for Amendments initiated by the proponent of the draft. Particularly controversial is the lack of practice of determining accountability for violations of the provisions of the CPC due to which part of the collected data was exempt from court records – which means that it is not insisted on full accountability of officials who have committed violations of the provisions of the CPC in the application of MTN – although it is a criminal offense.

Regarding that, parallel with the amendments to the CPC, should initiate the amendments to the Criminal Code in order to prescribe the violations of the new measures (or the new, more precise formulations of the CPC) which require an approval of investigative judges – as a criminal offence.

When it comes to transparency, there is an uneven practice of state authorities regarding the data on how much of SSM is applied and other related data. Part of the state authorities insists on the secrecy of all the data related to the SSM, even though it is absurd for the number of the applied measures to be secret, because it certainly does not threaten the process. The other part of the state authorities does not find it necessary to even compile information on this issue.

The claim of the secrecy of the data has been disproved by the state authorities themselves, considering that the part of the data could be found in publicly available reports of the Tripartite Commission. However, it was only data for part of the applied measures for the offence of corruption and organized crime, which is not enough. Nor this kind of reporting was regularly, because some reports state that the representative of the Supreme Public Prosecutor’s Office did not provide information on the applied measures.

Therefore, we believe that promoting accountability and transparency are prerequisites for justified adoption of amendments related to the expansion of SSM.

The control over SSM applying in the criminal procedure should be improved, especially bearing in mind that in 2013 the report of the European Commission expert, Mauricio Varaneze has confirmed that the technical possibilities for establishing abuse are not fulfilled, retrieving data is not recorded properly and that it is “possible to misuse the entire system and avoid any control”. Since the improvement of the system requires financial resources, in the meantime it is necessary more serious reporting on the implementation and results of the implementation of the measures, the obligation that the state authorities are ignoring for years.

Dina BAJRAMSPAHIĆ
Public Policy Researcher

Press Release in regard to the negative assessment of the cooperation of the Police and the Prosecution in the Council for National Security Report

It is devastating that the insufficiently good cooperation, lack of communication and coordination between the Police and the Public Prosecution Office remains the key problem for achieving results in the field of organized crime even five years after the Meeting of the Security and Defence Committee, dedicated to the case “Balkan Warrior”, when this problem has been ascertained.

Unfortunately, misunderstanding of the prosecutorial investigation by the large number of state prosecutors and other relevant stakeholders in our legal system, who continues to see the role of the prosecutors only in evaluating the evidence gathered by the police contributes to this problem. This has two consequences – passive and disinterested role of prosecutors during the investigation they should lead and their constant waiting for the police to do the job. On the other hand, it creates a dissatisfied police, which cannot understand what the “prosecutorial management of the investigation” consists of if they are left to do themselves. In such an atmosphere, the only thing left to both sides is to shift responsibility for the lack of the results to another side.

During 2014, Institute alternative has conducted the research on the cooperation of the Police and Prosecutor’s Office, based on 27 interviews with judges, prosecutors and police inspectors. The research has demonstrated a series of indications on the problems in practice:

  • The prosecutors are insufficiently present at the scene during the preliminary investigation and in the work with the suspects;
  • In the work of the Prosecution, there is a tendency of speeding up the investigative process at the expense of obtaining evidence;
  • The communication between the prosecutors and police officers is difficult, due to the prosecutors’ imprecise orders, and is often reduced to phone calls only;
  • Prosecutors demonstrate uneven practice in handling similar cases, as well as a lack of interest for clarifying all circumstances of the cases, which renders meaningless significant part of police officers’ work;
  • Detention for up to 12 hours and interrogation in the capacity of a citizen have significantly reduced the ability of the Police to achieve better results, especially considering the fact that the statements given before the Police bear no legal validity;
  • When there is a danger of reoffending, a court cannot order detention in the summary proceedings;
  • There is an evident lack of proactiveness and independence in the work of the prosecutors, as well as an overall closeness of the Prosecution.

Aforementioned circumstances result in an inefficient framework within which neither of the state bodies can work properly.

However, what contributes the most to the passivity of public prosecutors is the lack of practice of establishing the responsibility and sanctions for poor performance. Inflating statistics by the cases of minor social significance is being tolerated, even though many of those cases do not result in a conviction by a court decision.

Dina BAJRAMSPAHIĆ
Public Policy Researcher

Meeting with the Deputy Minister of Foreign Affairs of the Netherlands

President of the Managing board, Stevo Muk, has participated in a meeting with the representatives of the Dutch Ministry of Foreign Affairs organized as a part of their official visit to Montenegro. The delegation of the Kingdom of Netherlands was led by Mr Robert de Groot, Director General for European cooperation and Deputy Minister for European Affairs and H.E. Laurent Stokvis, the ambassador of the Kingdom of the Netherlands to Serbia and Montenegro.

The main topic during the meeting was the role of civil society in the process of Montenegrin negotiation for membership in the EU, as well as the current state of the progress in chapters in regard to the rule law, judiciary and fight against the corruption.

Next to the President of the Managing Board, the meeting was attended by Daliborka Uljarević, Executive Director of the Center for Civic Education and Tea Gorjanc-Prelević, Executive Director of the Human Rights Action.

Who Listens to Auditors and do They Stand More Chance United?

Today we held a conference that, for the first time, got together representatives of almost every unit of the internal audit on one side, and representatives of the State Audit Institution (SAI) on the other. We talked about how they could establish better cooperation than the existing which consist of reporting and control of the internal audit by the SAI.

Our panelist were PhD Branislav Radulović, the member of Senate and Ms Ana Krsmanović, Director of Directorate for Central Harmonization at Ministry of Finance, and the discussion included the participation of the other representatives of State Audit Institution, Ministry of Finance and directors of Internal Audit from Various ministries, municipalities, funds.

Today, there are 34 internal audit units in public sector and a total of 61 internal auditors. In the period of 2011 – 2014, internal auditors have conducted 342 audits and issued 1214 recommendations, which, according to representatives of the Ministry of Finance, are being implemented significantly.

All the capacity of an internal audit must be used in order to provide a legal, rational, cost – effective and efficient spending of taxpayers’ funds by the public administration.

In order to achieve that, the closer and more efficient connection of State Audit Institution and internal audit is required.

The Institute alternative has prepared a comparative overview of practices of cooperation between supreme audit institutions and internal audits, as a basis for discussion. The examples of cooperation are ranging from the existence of special protocols and agreements on cooperation, through the exchange of information and submission of the reports of the internal audit, to the common audit and approval of the annual internal audit plan by the supreme audit.

Internal auditors have highlighted the problems plaguing their work. The directors’ frequent misunderstanding of the role of internal audits, “backfilling” the auditors by control orders, inability to complete the missing, systematized places – those are examples of the Ministry of Interior or the University of Montenegro, large systems, having only one internal auditor.

The problems of internal auditors’ independence, their relation with directors and the problem of their lack of protection in the case of a conflict on the findings or work, as well as low income that, according to the participants, do not motivate existing auditors or attract new staff, were particularly highlighted.

We have also discussed if the internal auditors monitor the work of the State Audit Institution and how they use the audit reports, as well as the quality of reports produced by the internal auditors themselves and if they are useful to the State Audit Institution.

We believe that we have laid the groundwork for future cooperation between the State Audit Institution and the internal control system in the public sector by organizing this meeting. The participants from the Ministry of Finance and the State Audit Institution announced that they will try to turn this kind of meetings into a practice.

As a contribution to the further development of this subject, we will prepare a summary of today’s discussion with the key topics that have been discussed, as well as the proposals for strengthening cooperation from the comparative practice.

The Conference “Strengthening public finance oversight – How can the state and internal auditors cooperate better?” is the part of the project “Together towards accountability – strengthening the impact of the state audit in Montenegro”, supported by the Royal Norwegian Embassy in Belgrade. The goal of the project is to increase the level of the implementation of SAI’s recommendations, as well as strengthening ties between the SAI and the Parliament of Montenegro, civil society organizations and internal auditors in the public sector.

CEU Conference on Accession of Montenegro and Serbia to the EU

Our research coordinator, Jovana Marović, has participated in a conference “Serbia and Montenegro: A Step Closer to Reaching EU Accession?” organized by Center for EU Enlargement Studies (CENS), located at Central European University (CEU) in Budapest. Jovana has spoken about the process of Montenegrin negotiations for EU membership and the civil society involvement in this process, but also about the specific model of direct participation of the NGO in working groups for negotiating chapters. Part of her presentation referred to the EU conditionality policy within the framework of negotiation Chapter 23 which includes a reform of the judiciary, fight against corruption and human rights. Since the panel was committed, among other things, to the migration and unemployment as a key challenges, part of her presentation included preparation for opening the negotiations for Chapter 19, which refers to social policy and employment. The other panelists on this topic were Marija Vuksanović from Centre for Democracy and Human Rights (CEDEM) and Marko Savković from Belgrade Fund for Political Excellence.

Joint Press release: Introduce Additional Regulation in Electronic Media Market

The member of the Working group for the creation of Draft Law on the Amendments to the Law on Electronic Media, Goran Đurović in cooperation with NGOs Centre for Civic Education (CCE), Centre for the Development of Non-governmental Organisations (CDNGO), Centre for monitoring and research (CEMI), Institute Alternative (IA) and Juventas, submitted proposals of amendments to the Ministry of Culture regarding this legal text. These proposals relate to measures that introduce order in electronic media market and respond to the interest of public to be better informed on issues of significance for the life of citizens.

Uvesti red na tržištu elektronskih medija

NGOs proposed the prescription of minimum percentage of 25% of production for all electronic broadcasters who want to get the broadcasting licence. In that manner, sustainable providers of audio-visual services would function and contribute to better informing of citizens, thus the realization of media pluralism as well. This prevents unfair competition, as well as the possibility of media, which basically do not have their own production and employees, to benefit from marketing thanks to content of questionable quality. This requirement is underpinned in Article 59, paragraph 4, of the existing Law which prescribes: “The broadcaster is obliged to dedicate at least 10% of weekly programme for the purposes of publishing news and information regarding the area it covers”. If broadcasters already have the obligation based on the actual Law, which relates to production of its news programme, there is no reason why not to introduce the obligation for additional 15% of content which satisfies the public interest.

Also, a group of NGOs proposes to oblige the Director of the Agency to revoke the broadcasting license if the broadcaster fails to comply with the authorization, i.e. if not implemented the program obligations in accordance with the submitted application to tender or request for authorization. Namely, if the broadcaster does not produce as many programs as promised in a public competition, he loses broadcasting license. This will force broadcasters to carefully propose their own productions, as well as other contents, and enable the Agency to, regarding the public interest, give the authorization to those broadcasters that can really contribute to media pluralism.

Additionally, NGO group proposed the solutions that lay the conditions for the functioning of Fund for the support of media pluralism. Proposals elaborated on the procedure of allocation of resources to broadcasters for the production of content of public interest. Fund resources can be used by electronic media that have the working licence issued by the Agency, which cover specific local, regional territory or operate on the territory of state and that have significant production (more than 25% within the total production). This ensures that electronic media, which actually produce programme in Montenegro, have the possibility of improving their content in order to better inform the public. Council of AEM makes the final decision on the allocation of resources, but based on the proposal of independent experts. It is basically the model already in use in the EU, when assessing project proposals financed by the European Commission. Fund should be financed with compensation paid by the providers of AVM services on the request (cable operators), that have about 170,000 users, which in the proposed percentage should ensure about 800,000 EUR on annual level. From another source, budget of Montenegro with fix allocation of 0,005% of GDP, it is possible to ensure approximately 200,000 EUR on annually. This amount would not burden the budget of Montenegro additionally, but it could significantly contribute to better informing of citizens when it comes to questions of public interest.

Amendments suggested by NGOs also contain the introduction of mandatory six-months analysis on the application of programme standards, that would clearly indicate which media meet legal obligations as well as the obligations that stem from the licence for the work of electronic media (its own production, etc). Failure to meet legal provisions represents the condition for the revocation of licence of work of a broadcaster or dismissal of director of Agency if s/he fails to respect legal norms. Amendments also introduced new competence and obligation of Agency to, at least once a year, conducts a research of public opinion that relates to trust of viewers and listeners, viewership/listenership of electronic media.

Finally, group of NGOs proposed series of measures which regulate the manner of using the resources from budget, or the prohibition of use of public resources for commercial contents (cross-subsidisation), running a special (separated) accounting and return of resources unless they are spent for the production of content of public interest. Proposals of NGOs entirely comply with the Communication of European Commission regarding the application of rules of state aid for public broadcasting services (2009/C 257/1), but that does not imply the obligation that these issues are only regulated with a contract, as the only form of regulation of international rights and obligations of public broadcasters and their founders. These proposals also contain the measures that increase the transparency of work of Agency for electronic media.

On behalf of non-governmental organisations Centre for Civic Education (CCE), Centre for Development of Non-governmental organisations (CDNGO), Centre for monitoring and research (CEMI), Institute Alternative (IA) and Juventas,

Goran Đurović, member of the Working group for the creation of Draft Law on the Amendments to the Law on Electronic Media.