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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