The proposed provisions completely deprive police officers of the opportunity to be informed of the allegations made against them, to present their “defence” in response, and to have the possibility to protect their rights during the procedure.
Institute Alternative addressed the President and members of the Committee on Political System, Judiciary and Administration, pointing out the numerous shortcomings contained in the Draft Law on Amendments to the Law on Internal Affairs, scheduled for discussion before the Committee today.
From a procedural standpoint, we believe it is necessary to criticise the circumvention of the regular government procedure for preparing and adopting amendments to the Law on Internal Affairs. In this case, the draft amendments, which are clearly a proposal of the Government or the Ministry of Interior, are being submitted by a member of parliament from the ruling majority. We are not aware that the Government has given its opinion on these amendments, which further indicates a blurring of formal and actual roles. We have repeatedly criticised such practices of bypassing the regular government procedure, as this trend has become particularly visible in the work of this Government and parliamentary majority.
Institute Alternative supports measures and procedures based on the Constitution and the law that aim to remove from police service those officers who have broken the law, who cooperate with organised criminal groups, or with the services of other states.
1.
However, provisions regulating the implementation of security checks, disciplinary procedures based on the opinion of the Commission for Security Checks, and possible decisions on termination of employment of police officers must be prescribed in a way that ensures predictability and legal certainty, judicial protection – including a reasoned decision – and the right to a defence based on accessible information. We believe that the proposed amendments to the Law on Internal Affairs, formally submitted by MP Duško Stjepović, will not contribute to a lawful procedure.
The current Law on Internal Affairs (Article 128, paragraph 4) stipulates that the Commission for Security Checks shall obtain an opinion from the National Security Agency (NSA) regarding the existence of security impediments, in accordance with the law regulating national security. On the other hand, the current Law on the National Security Agency merely provides that the Agency carries out security checks and other tasks of interest for national security, in line with the law.
The current Law on Internal Affairs also prescribes that established security impediments constitute a serious breach of official duty, prosecuted by a disciplinary prosecutor and adjudicated by a disciplinary commission. One of the sanctions for a serious breach of duty is termination of employment. The decision of the disciplinary commission can be appealed before the Appeals Commission.
The proposed amendments delete the provision that security impediments constitute a serious breach of duty and introduce them instead as grounds for termination of employment by operation of law, once the Security Checks Commission establishes the existence of such impediments.
It is important to note that the current Law on Internal Affairs specifies that a police officer shall be informed of the existence of a security impediment, but there is no obligation to inform the officer of the reasons on which the finding is based (Article 162). An identical provision is contained in the Draft Law on the National Security Agency, currently in parliamentary procedure, which prescribes that in cases where a security check establishes the existence of impediments, the Agency informs the person concerned, but is not obliged to provide the reasons for its finding (Article 84).
Previously, the Law on the National Security Agency did not classify security impediments as disciplinary offenses. However, the Draft of the new Law on the National Security Agency introduces a procedure for reviewing such impediments, in a manner determined by the Agency’s Director. The new Draft also introduces established impediments as grounds for termination of employment by operation of law.
We conclude that detailed regulation of the procedure for establishing security impediments is absent both from the Law on Internal Affairs and the Law on the National Security Agency, and that there is no special law regulating this matter. It is possible that the procedure is partially prescribed by NSA’s internal acts, but this does not provide sufficient grounds for legal certainty.
It should also be stressed that Montenegro, unlike for example the Republic of Croatia, does not have a solid legal basis for conducting security checks. In Croatia, there is a special law – the Law on Security Checks (Narodne novine 85/08, 86/12).
It appears that the professional fate of an individual – in this case, a police officer – is placed in the hands of an anonymous NSA official, who, in accordance with internal acts (or even without them), conducts a procedure and issues an opinion on the existence (or non-existence) of a security impediment. The reasoning (grounds) for such an opinion is not made available to the Security Checks Commission (or only in a way that is unknown and unverifiable), nor to the police officer concerned. On the basis of such an unreasoned opinion, a decision on termination of employment is automatically adopted.
We are concerned that the proposed provisions deprive police officers of the possibility to be informed of the allegations against them, to present a defence, and to protect their rights in the procedure. The attempt to address challenges in the implementation of current provisions, through amendments proposed by MPs, including provisions with retroactive effect, not only attempts to resolve past issues but may also create new ones, as explained in this review.
2.
Regarding the provision proposing that all police officers undergo a security check every five years (Article 13), we believe it remains incomplete with respect to designating the responsible authority to implement this provision and ensure that each officer undergoes such checks. The current Law provides that the procedure for establishing security impediments is initiated by the immediate superior. If this provision is to be implemented through the procedure involving the Security Checks Commission and NSA checks, there is a serious question of administrative capacity to carry out the checks for the expected large number of officers.
3.
Furthermore, we point out that the proposed amendments requiring officers recruited as constables to remain in this rank for at least seven years are inconsistent with the conditions for career advancement. The rank of constable is foreseen as the lowest police rank, followed by the rank of police officer. The requirements for promotion to police officer include completion of Level V of education, a completed traineeship, passing the civil service examination, and passing the special police examination. As prescribed in the proposed amendments, constables would not be able to advance to the rank of police officer even if they acquire the required education in the meantime, despite the fact that the requirements for that rank do not include work experience. The inability to advance for seven years may discourage prospective candidates and hinder staffing capacities, which runs contrary to the purpose of the amendments.
Stevo Muk
President of the Managing Board