Proposed amendments to the Law on the Agency for the National Security, extend existing powers of Agency’s Director, and allow unlimited arbitrarily tracking, while citizens are not available any means of protection against such arbitrary interference with their rights.
In fact,with the proposed amendments is anticipated that the ANS collects information about the location and movement of any individual on the basis of the order of Director of the Agency, while the current legal solution provides that such data can be collected only by the decision of the Supreme Court, on the basis of a reasoned, written request of the Agency, submitted for each case individually.
This means that the amendments to the Law provides the abolition of judicial control and the written explanation for each individual case. The new solution proposed by the Government defines that only based on a decision of its Director the ANS can collect data on the movement of an unlimited number of people, without any control and without explanation. Such a secret registry of the ANS could contain information on the movement of an unlimited number of citizens, which would clearly violate their privacy, but the Government’s explanation of proposed amendments do not contain the reasons from which such solutions have been proposed.
We invite the members of the Parliament to submit amendments which would suggest deletion of these standards because they are not in accordance with the Constitution and the European Convention on Human Rights.
The essential goal of Article 8 of the European Convention for Protection of Human Rights and Fundamental Freedoms is the protection of the individual against arbitrary action and interference in private life. According to the judgment of the European Court, that provision imposes an obligation on the State to abstain from such interference and is obligated to make available to the citizens means of protection (among other judgments: Powell and Rayner v United Kingdom).
The proposed law does not give clear basis on which the Director of the Agency for the National Security was able to use the equipment to secretly track the movement of any one individual. European Court of Human Rights considers that “the absence of any clear legal basis for the use of equipment for surveillance on private premises is not in accordance with the requirements of legality” (judgment Malone, Halford and Khan).
Proposed changes to the law do not provide any effective guarantees for protection against abuse, because it is possible for the director of the ANS to secretly, arbitrary and without limitation to monitor any individual. The proposed law is inconsistent with the fundamental principle of the European Court, that national law should provide protection against arbitrariness and abuse in the use of secret surveillance techniques (judgment P.G and J.H. v United Kingdom).
Based on the positions of the European Court of Human Rights law must be adequately accessible or citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Also, a norm can not be regarded as a “law” unless it is formulated with sufficient precision, to the citizen is possible to regulate behavior, actually that the citizen must be able, if necessary and with appropriate advice, to foresee, to the reasonable extent reasonable in such circumstances, the consequences which a given action may include (among other judgments Sunday Times v United Kingdom). European Court emphasizes that law that gives some discretion must indicate the scope of that law (judgment Silver and Others, paragraph 88).
In the present case the proposed standard does not meet even the minimum precision and no one can know how to coordinate own behavior in such a way that the Director of the ANS does not decide to monitor its movements. Moreover, the proposed law does not provide any limitation on the discretion of Director of the ANS to monitor citizens.
We remind that is by the Criminal Procedure Code, under secret surveillance measures, stipulated that the monitoring measure “secret surveillance and technical recording of persons and objects” is determined by a reasoned proposal of the state prosecutor and decided by the judge, exactly by a reason of suitability of that measure to violates the right to privacy, unlike some other secret surveillance measures which stipulates that they may be assigned by the state prosecutor.
For all these reasons we invite the members of the Parliament from all political parties to submit amendments to the proposed amendments to the law and to ensure respect for the Constitution and the European Convention on Human Rights.
Action for Human Rights
Center for Civic Education
MANS
