MANS submitted to the Minister of the Interior comments on the Draft Law on Internal Affairs because the proposed text contains solutions that are controversial in terms of compliance with the Constitution of Montenegro, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the views of the European Court of Human Rights. Specifically, the proposed text of the law gives the Police Director power to arbitrarily decide on implementation of observation and monitoring activities, without any effective control to which citizens have the right. In comments submitted to the Minister, MANS pointed out concrete verdicts and views of the European Court of Human Rights that indicate that this is an arbitrary interference with the rights of citizens contrary to the European Convention, and that effective human rights compliance obliges the state to make the means of protection available to citizens. Also, in accordance with the basic principle of the European Court, domestic law should provide protection against arbitrariness and abuse in the use of secret surveillance techniques.
Director’s discretionary authority has no limit in the Draft Law and every citizen can be observed and monitored “for operational purposes”, only if so decided by the Police Director. The Draft Law does not prescribe under what conditions the police can observe and monitor citizens, and thus enable a high level of arbitrariness of the police in implementation of these actions. Moreover, the Draft Law prescribes that data collected this way, for operational purposes of the police, can be used in the criminal procedure.
In comments submitted to the Minister, MANS pointed out that such provision is contrary to the views of the Constitutional Court of Montenegro. Referring to the views of the European Court of Human Rights, in its practice, the Constitutional Court of Montenegro took a stance that it is preferred to entrust the control of the interference with the human rights of an individual to the court, since judicial control provides the best guarantees of independence, impartiality and respect for the procedure.
Contrary to the provisions of the Constitution, the European Convention for the Protection of Human Rights and Fundamental Freedoms and contrary to the views of the European Court of Human Rights and the Constitutional Court of Montenegro, the Draft Law on implementation of observing and monitoring measures does not prescribe any limitations or means of protection against arbitrariness. As a condition for implementation of these measures and interference with fundamental human rights, according to the decision of the Police Director, even the basis of suspicion that someone committed a criminal offense is not prescribed. Therefore, such law would allow the Police Director to apply these measures to all citizens.
As we have already had cases of violation of fundamental human rights in the exercise of police powers in practice, of which some have been backed up by final court decisions, the Draft Law in this part would have to be amended in a way that would provide effective protection against arbitrary interference with fundamental human rights.
In addition, the Draft Law prescribes that the Ministry of Interior will provide legal assistance to any police officer in any case when he/she is being prosecuted for using coercive means or undertaking other actions in the conduct of police work. We believe that the law must send a clear message that anyone who exceeds police powers will be sanctioned. Instead, the Draft Law stipulates that the Ministry will help all those against whom the procedure is initiated due to exceeding of powers. To make it more absurd, this help to the persons who exceeded the use of coercive means while performing police tasks would be paid from the budget, which means that the citizens who were victims of police torture would also pay legal aid, lawyers etc. for the bullies from the police. Such proposal is especially problematic bearing in mind the fact that the examples of excessive use of force and gross violations of fundamental human rights by the police officers are becoming increasingly frequent.
Finally, due to the importance of this legal text, we point out that the debate on the Draft Law must not be limited to two-day consultations in total duration of 8 hours. In preparation of this law, the Ministry of the Interior only published a notice on public consultations held on February 15 and 16 in total duration of 8 hours. The Ministry did not publish the name of the person responsible for coordination, the place and address for submitting initiatives, proposals, suggestions and comments, as well as the deadline for their submission. Therefore, we invite the Minister to ensure full participation of the interested public in the adoption of this law so that the final text is harmonized with the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
NGO MANS Legal representative
Veselin Radulović, lawyer
