Proposed amendments to the Law on Agency for the National Security “at a little door” extend the jurisdiction of civil servants and institutions contrary to the provisions of the Constitution of Montenegro and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
We invite the members in the Parliament to amend the proposed amendments to the Law on the ANS in order to protect human rights from the arbitrariness of any individual.
The Government has proposed amendments to the Law on ANS which among other things envisage that all legal entities are obliged to the Agency official,
which proves the official identification card,to provide access to all data via direct insight. On this basis, each officer of ANS can independently, arbitrary and without limitations access to all citizens’ personal data, including medical records, banking data and any other information that all other legal entities have in their possesion in the country. This stipulates that any legal entity including the media, NGOs and even political parties must allow to any officer of ANS, which has legitimation, to without any restriction or measures of protection review all of their data, records and other documentation.
At the same time, the proposed law does not even prescribe a reason to suspect that someone has committed a crime, that could interfere with its rights.
In addition, to the legal entities is not left any possibility for protection if they believe that the legitimized officer should not access the registries or collections of data held. It is not regulated any complaint mechanism that could delay the implementation of oral command of the ANS officials and data access.
The law does not provide for mechanisms to control and verify why some ANS officer access to this information and for what purposes they are used.
The Constitutional Court of Montenegro in its previous practice concluded that collecting this type of data enjoys constitutional protection of the inviolability of secrecy, and found that the inviolability of these data can be waived only based on a court decision, to conduct criminal proceedings or for the security of Montenegro.
The Constitutional Court of Montenegro in its decisions in July last year, brought on the initiative of MANS, found that the provision of the Code of Criminal Procedure is unconstitutional under which the police without a court order from the service provider collects so-called phone listings. The Constitutional Court found that such a stipulation is contrary to the Constitution and the European Convention for the Protection of Human Rights and Fundamental freedom, and that such authority that allows arbitrarily behavior of the police, without judicial review, is not in accordance with the standards of the European Court.
In this sense, the Constitutional Court referred to the case Rotaru v Romania, where the European Court expressed the view that the control of these measures must follow the value of a democratic society as faithfully as possible, especially Rule of Law:
“Although the Court recognizes that intelligence services may legitimately exist in democratic society, it reiterates that powers of secret surveillance of citizens can be tolerated under the Convention only to the extent strictly necessary for the protection of democratic institutions. “
The Constitutional Court indicated that the protection of the individual against unauthorized interference with its privacy is proclaimed in international law as
a fundamental human right that enjoys legal protection, and only the court may allow deviations from the secrecy imposed by the provisions of the Constitution.
Mentioned attitudes the Constitutional Court took in decisions in which it found that the provisions of the Code of Criminal Procedure are unconstitutional, by which the police were able to obtain so-called listings of telephone communications of mobile operators. The proposed law gives even more power to the ANS officials, who could obtain any other information that any organ or entity collects, they can do that by arbitrary assessment and without any control toward any person, without any restrictions.
Therefore we invite the members of the Parliament from all political parties to submit amendments the to proposed amendments to the Law on the ANS, and ensure compliance of citizens’ rights guaranteed by the Constitution and international conventions.
Tea Gorjanc-Prelevic, Action for Human Rights
Stevo Muk, Institute Alternative
Daliborka Uljarevic, Center for Civic Education
Vanja Calovic, MANS
