The Centre for Civic Education (CCE), ahead of today’s announced vote by MPs on the controversial amendments to the Law on Internal Affairs and the Law on the National Security Agency (ANB), warns that insisting on such proposed solutions represents a form of subversion of Montenegro’s European path. Those who persist in this approach are effectively legitimising themselves as veto players in the process of European integration and the democratisation of the state.
Resolution 428 (1970) of the Parliamentary Assembly of the Council of Europe states that the right to privacy implies the right of every individual to live their life with minimal interference from the state. This means the possibility to develop one’s personality without undue pressure and influence from state authorities. The protection of privacy is not a statistical category but an indicator of respect for human dignity, which is the foundation of individual freedom as well as of a society based on the rule of law.
In this context, CCE warns that the adoption of the proposed amendments to the Law on the National Security Agency would grant this body broad powers for data collection without an adequate system of judicial oversight. Such solutions may lead to serious violations of the right to privacy and other human rights. Among other things, the proposed amendments would allow the tracking of citizens’ locations, including places where they have stayed and the duration of their stay, without precise legal safeguards. It is particularly problematic that the law does not prescribe a minimum level of probability, such as “reasonable suspicion”, that a person has committed a criminal offence as a condition for accessing personal data. The case law of the European Court of Human Rights emphasises that national courts must be able to verify the existence of reasonable suspicion against the person subject to surveillance in order to justify interference with privacy (Roman Zakharov v. Russia, 47143/06). If such a threshold does not exist, it cannot be said that surveillance is necessary in a democratic society (M.N. and Others v. San Marino, 28005/12). In addition, the proposed amendments stipulate that the ANB may be exempted from the obligation to conduct public procurement procedures, that the director may independently decide on the early retirement of employees, and that officers may access personal data without the consent of competent authorities. At the same time, these proposals were developed without conducting a public debate, which is a fundamental standard of democratic decision-making.
The proponents have stated in public appearances that the rights of individuals cannot stand above the security of the state, which is a wrong and dangerous interpretation. State security and the protection of human rights are not opposing goals, but complementary ones, and together they form the foundation of a stable and democratic system. To achieve this, amendments must include accountability mechanisms and guarantees for the protection of privacy.
Numerous relevant actors have already pointed out the need to withdraw these amendments from the procedure, both at the international and national levels. Criticism has been expressed by the United Nations Special Rapporteur on the right to privacy, the spokesperson of the European Commission, as well as civil society organisations dealing with the protection of human rights in Montenegro. Within the expert community there is broad consensus that the proposed solutions are contrary to the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the Council of Europe Guidelines for Civil Participation in Political Decision-Making.
At the same time, the amendments to the Law on Internal Affairs introduce problematic procedures according to which the determination of so-called security obstacles automatically results in the termination of employment for a police officer, without a procedure in which that officer would have the opportunity to respond to such allegations. This constitutes a violation of the convention-based right to an effective remedy. It is also envisaged that a police officer who comes to work under the influence of alcohol, consumes alcohol during working hours or refuses testing would automatically lose their job, without a clearly defined procedure and guarantees of fair decision-making. The composition of the commission responsible for verifying security obstacles does not include representatives of the Ombudsman institution, the Bar Association or non-governmental organisations, which further reduces the level of transparency and impartiality. These amendments were also harmonised solely within the competent Ministry, without a public debate that would enable the participation of experts and the interested public.
CCE also notes with concern that the Minister of Interior misled the public by claiming that the proposed amendments were “the result of months-long harmonisation with the directorates of the European Commission” and that Montenegro “will not be able to close negotiating Chapter 24 unless this law is adopted”. A statement by the EU Delegation to Montenegro refutes this claim. Namely, the European Commission assesses that the Law on the National Security Agency and the Law on Internal Affairs are not aligned with the EU acquis and recommends their alignment before adoption or before the closing of accession negotiations. In doing so, the EU has effectively publicly legitimised some of the veto players and exposed their manipulations. It has also been indicated that the possible adoption of these amendments could be short-lived, given the announcement of the imminent closing of negotiations.
In its latest Montenegro Report, the European Commission also emphasised that clear procedural guarantees against undue political influence must be ensured when recruiting new police officers and initiating disciplinary proceedings. This confirms earlier concerns of the Commission that such legal solutions could be used as instruments for politically motivated restructuring of police personnel.
CCE also recalls that representatives of the parliamentary majority had previously proposed legislative solutions that raised serious concerns, such as amendments to the Law on Free Access to Information that would limit access to public data, as well as the idea of introducing a so-called foreign agent’s law, which was perceived as an attempt to intimidate critically oriented civil society organisations.
All this points to a worrying trend that leads towards the creation of an environment resembling dystopian scenarios from the novel 1984, where freedoms are restricted, privacy is suppressed, and the concentration of power becomes the dominant model of governance. Such legalisation of political arbitrariness represents an entry point to autocracy.
Therefore, CCE calls on the Parliament of Montenegro to withdraw from the procedure the proposed amendments to the Law on the National Security Agency and the Law on Internal Affairs, urges the Minister of European Affairs to use her authority to warn MPs of the majority about the harmful consequences of insisting on such legislative amendments for Montenegro’s European path, and calls on the Government to open an inclusive and transparent process for drafting new solutions aligned with European standards and the EU acquis, including the General Data Protection Regulation (GDPR) and the Law Enforcement Directive (LED).
Dr Ivan Vukčević, Human Rights Programme Coordinator