These days, wiretapping has been brought up again by the former special state prosecutor Milivoje Katnic who suspected that he was being watched in his prison cell. The basic state prosecutor rejected his criminal complaint after, as it was said, he inspected the premises in the Administration for the Execution of Criminal Sanctions.
On the other hand, against Dejan Peruničić, the former head of the secret police, several indictments were brought and confirmed precisely because of the illegal application of secret surveillance measures. The trial was closed to the public, and dozens of people were allegedly illegally wiretapped and monitored from the end of 2019 until the last days of August 2020.
Citizens can be legally eavesdropped in two ways. In the first case, secret surveillance measures (MTN) are approved by the investigating judge, based on the reasoned proposal of the state prosecutor's office. Another possibility is that on the proposal of the director of the National Security Agency (ANB), the Supreme Court makes a decision on the application of MTN.
Last year and in 2022, 775 secret surveillance measures were implemented in Montenegro, at the suggestion of state prosecutors' offices, which led to the indictment of a total of 34 persons. However, this is not the final number of those who were "listened to" in the previous two years, because the information on the number of citizens who were "under the measures" of the National Security Agency (ANB) is still, by the decision of the Supreme Court, marked with the degree of secrecy.
On the other hand, although the law foresees this possibility, in the same period, in the basic and higher courts, no citizen was invited to inspect the collected material by implementing secret surveillance measures, and the ANB, from January 2020 to July 1, 2024, only provided a citizen of Montenegro with access to documentation and secret surveillance measures.
In 2023, the state prosecutor's offices in Montenegro proposed 241 MTNs, of which the investigating judges adopted 176 proposals. 99 cases were established, and MTN led to the indictment of eight persons.
Flat right of the state
In the previous year, in 2022, the state prosecutions instituted 102 cases and proposed as many as 599 measures which, as stated in the Report on the work of the Supreme State Prosecutor's Office, led to the indictment of 26 persons.
"The incomplete and imprecise normative definition of these measures in the procedural code - which, in my opinion, was neither accidental nor unconscious, greatly contributes to the fact that it is difficult to even guess, let alone determine, the scale of these abuses against the citizens of this country. Hence the disproportion in the number of certain MTNs (because it is public information), in relation to the number of processed cases based on them and the number of citizens who received information that they were once under the attack of these measures. It is a very ingenious legal provision that, if you receive information that you have been subject to measures, you have the right to inspect the collected material. The trick is that Article 162 of the Code of Criminal Procedure gives the state a completely flat-rate right to simply never communicate that information to you, which right it of course uses to its full capacity," the lawyer points out. Andrijana Razić.
For the sake of comparison, in Montenegro, from January 1, 2010, after the possibility of applying MTN was introduced that year through legal amendments, until November 11, 2016, there were 2.328 citizens on MTN, it was reported to the "News" from the Police Administration at the time.
The Institute of Alternatives published the data that from 2009 to 2015, there were 846 citizens under the MTN, of which only 19 were convicted.
On the other hand, the number of secret surveillance measures on which, on the proposal of the director of the National Security Agency (ANB), is decided by the Supreme Court is still unknown because this judicial instance marked that information with a degree of secrecy.
We remind you that this information was published for the first time, after 2009, in "Vijesti" at the end of January 2021. As announced at the time, ANB requested approval from the Supreme Court for 2020 cases of secret surveillance in 42.
"During 2020, 42 proposals were submitted to the Supreme Court. All cases have been marked as 'secret' by the Agency, so we cannot provide you with any other information except for the number, and in accordance with the provisions of the Data Secrecy Act", "Vijesti" was told at the time.
It was, at the same time, the first official publication of data after 13 years after the ANB declared secret the information on the approval of requests for the implementation of these measures. The first, and until today the last, because when asked by "Vijesti", the Supreme Court said that "the data on the number of persons who are under secret surveillance measures adopted by the Supreme Court is marked with the degree of secrecy".
MTN, which includes, among other things, covert surveillance and recording of telephone conversations and other remote communications, interception, collection and recording of computer data, entry into premises for covert photography and video and audio recording in premises and covert monitoring of both video and audio -recording of faces and objects, can be applied on two grounds.
The Criminal Procedure Code (CPC) defines the competences for determining MTN. The CPC prescribes situations in which the MTN, with the reasoned proposal of the state prosecutor, is determined by a written order by the investigating judge. This means that the state prosecutor has an obligation to explain the proposal for the determination of measures, that reasoned proposal is submitted to the investigating judge, who in situations where he accepts the reasoned proposal of the state prosecutor issues a written order on the determination of MTN.
On the other hand, as stated in the Law on ANB, the Director of the Agency issues a written order for monitoring and observation based on the previous decision of the President of the Supreme Court of Montenegro.
The Montenegrin public is permanently engaged in secret surveillance measures. Although four years have passed since the overthrow of the DPS authorities, it cannot be said that this area has been fundamentally reformed. A large number of unknowns still remain.
As already mentioned, the data on the implementation of MTN within the ANB are still secret, but it seems that one of the key unknowns is what happens to the data and information that was collected in this way and was not used in the criminal prosecution of citizens who were on measurements.
The law in these cases, when it comes to state prosecutions, provides for the destruction of that material but, before that, "informing the person against whom the measure of secret surveillance has been taken in the event that criminal proceedings are not initiated". That person has the right to inspect the collected material, unless the investigating judge assesses that there is a well-founded fear "that notifying the person or inspecting the obtained material could pose a serious danger to the life and health of people or could jeopardize one of the ongoing investigations or for other justified reasons", as stated in Article 162 of the CPC.
"The entire system that recognizes our CPC, which needs to be further upgraded, also has its dark side. We would define the possibility of misuse, exceeding the determination and the like as the danger of violation of human rights, especially the right to privacy. In search of this balance, our legislator prescribed the norm you mention. It is clear that in case of non-initiation of criminal proceedings, the rule is that the person who was the subject of these measures should be informed and inspected before destroying the material, while non-notification is an exception to this rule. The first two reasons are clearly stated and undoubtedly often have their justification in practice. For 'other justifiable reasons' is a rubber stipulation under which we can bring anything. To answer your question specifically: it is not defined and allows the exception to become the rule, which the statistics clearly prove. This part of the norm should not be changed, but deleted," the lawyer told "Vijesti". Sergej Sekulovic, former Minister of Internal Affairs in the Government Zdravka Krivokapića.
ANB also has the obligation to destroy the material, but only in the case of "special justification and urgency", which requires that the means and methods be applied even before the decision of the President of the Supreme Court. If the President of the Supreme Court, or the judge who replaces him, does not approve the application of that means and method within 48 hours, the Agency is obliged to suspend its application, and destroy the data and documents on which that data was recorded. Also, the Law states that the ANB's registers and data collections cannot contain personal data, the collection of which is not within the competence of the Agency. If the Agency comes into possession of such data, it is obliged to destroy them immediately.
Destruction of material only in nine cases
In the reports of the Supreme State Prosecutor's Office, it is stated that in 2022, in 27 cases, and in 18 cases last year, the investigating judge was informed to destroy the collected materials by implementing the MTN. In the "Vijesti" research, however, it was shown that, at least in the basic and higher courts in Podgorica and Bijelo Polje, which responded to inquiries sent on the basis of the Law on the Availability of Information, the collected data and information were destroyed until July 1 of this year. year, in only nine cases.
"Vijesti", with the help of the MANS application, asked all basic and higher courts in Montenegro to provide data on the number of approved MTNs, passed in 2022, 2023 and 2024 based on Article 159 of the Criminal Procedure Law, and information on whether and how many times, before the material collected was destroyed, the MTN notified persons that a measure had been taken against them, as well as information on how many persons Article 162 paragraph 2 of the CPC was applied to, according to which the MTN was applied but not initiated criminal procedure.
In the basic court in Danilovgrad, as stated, from the beginning of 2020 until today, one case was established at the proposal of the Basic State Prosecutor's Office in Podgorica for the implementation of the MTN. After the implementation of the MTN, the collected material was destroyed, and the person against whom the measure was taken was not notified.
The basic court in Cetinje approved five MTN in 2022. In the following year and in 2024, there were no MTNs approved in this court. During the years 2022, 2023 and 2024, there were no orders issued for the destruction of information and data collected through secret surveillance measures, and therefore there were no persons who would have been informed that MTNs were conducted against them or that it was concluded that for legal reasons these persons they do not inform.
In the same period, the Basic Court in Pljevlje ordered a measure of secret surveillance against two persons. There was no destruction of information collected through the implementation of MTN.
In the High Court in Bijelo Polje in 2022, 2023 and 2024, 26 MTNs were approved, two orders were issued for the destruction of information and data collected by the implementation of MTNs, in two cases the collected material was destroyed without notifying the persons against whom the MTNs were undertaken, and it was not there were cases in which persons had the right to view the material collected by MTN.
The High Court in Podgorica issued 2022 orders in 56, 2023 orders in 61, and 2024 orders by the judge for investigation for the implementation of the MTN in 10, until July 47. In this court instance, there was no destruction of data and information collected using MTN during this period.
"Given the duration of the measures, many of them are still in use, and in relation to those that are not applied, the decision of the competent prosecutor's offices is expected as to whether the collected material will be used to initiate criminal proceedings or not," the answer states. Zoran Radović, president of the High Court in Podgorica.
For 'other justifiable reasons' is a rubber stipulation under which we can bring anything. To answer your question specifically: it is not defined and allows the exception to become the rule, which the statistics clearly prove. This part of the norm should not be changed, but deleted, says Sergej Sekulović
In the Basic Court in Berane in 2022 there was no MTN, in 2023 one measure was determined, and in 2024 three. There was no destruction of data and information collected during the implementation of MTN.
Six destructions in Bar
The basic court in Bar is one of the few courts in which seven MTNs were approved in this period, in six cases, as he states Tamara Spasojevic, president of the court, it was established that there is a well-founded fear that by notifying the person or viewing the obtained material or other justified reasons, based on Article 162 paragraph 2 of the CPC, according to the obtained opinion of the state prosecutor, the investigating judge would decide not to notify the person against whom the measure and not to allow him to see the obtained material.
The basic court in Žabljak has not approved any MTN in the last two and a half years, so there was no destruction of any material collected.
Basic courts in Plav and Herceg Novi did not respond to the request, in Kolašin they do not have the requested data, and their colleagues in Rožaje, Podgorica and Kotor refused the request for access to information of public importance.
From January 1, 2022 to the first days of July 2024, therefore, in nine Montenegrin courts, seven basic and two higher, investigative judges approved the application of 210 MTNs, there were nine cases of destruction of data and information collected using MTNs. On the other hand, in the period 2022/23. year, according to the reports of the Supreme State Prosecutor's Office, the destruction of materials was ordered in 45 cases.
There is no explanation for why this apparent disparity occurs because, as the Supreme State Prosecutor's Office told "Vijesti", "according to the provisions of the Code of Criminal Procedure that regulate the procedure related to secret surveillance measures (VDT), it is not authorized to give an opinion at the request of a judge for investigation in terms of Art. 162 of the Civil Code". They add that they are not obliged to keep records of the destruction of material collected by the application of secret surveillance measures, if also of other actions undertaken by the investigating judge and acting prosecutor.
"Now the second key question arises, how is supervision carried out? Is sufficient protection what the investigating judge decides, consulting the prosecutor? As the parliamentary supervision in this part cannot, due to the nature of the matter, show full effectiveness, I think that additional mechanisms should be introduced. One idea would be to involve the Supreme Court in supervision, through the president or the council, the Law on ANB can provide certain guidelines, or the Constitutional Court, which would be a more elegant solution from the aspect of human rights protection, but the question arises whether in that case it was necessary to change the Constitution", asks Sergej Sekulović.
In any case, the illegal retention of data and information collected through the application of MTN increases the risk that this material will be used for other purposes against the person who was under the measures, and against whom no criminal proceedings have been initiated.
The question of what happens to the data and information collected by ANB by implementing MTN with the permission of the President of the Supreme Court is also open. Article 16 of the Law states that if ANB obtains personal data, the collection of which is not within the competence of the Agency, it is obliged to destroy it without delay.
ANB establishes and maintains registers and collections of personal and other data collected in the performance of tasks within its competence, as well as documents on such data and organizes their use and storage.
Without the presence of citizens
Article 16 of the Law on ANB states that registers and data collections cannot contain personal data whose collection is not within the competence of the Agency or which do not relate to the purpose for which the data were collected.
Such data and documents are destroyed by the Agency without delay after inspection by the President of the Supreme Court, i.e. the Council of Judges of the Supreme Court. The destruction of data and documents is carried out by a commission formed by the director of the Agency, a record is drawn up and signed by the members of the commission who are present at the destruction of data and documents. The Agency submits the record on the destruction of data and documents to the President of the Supreme Court, that is, to the Council of Judges of the Supreme Court.
Until now, the public and citizens have not been able to access data on the destruction of material collected by the ANB, but that is why they are left with another option. Article 18 of the Law on the National Security Agency states that "The Agency (is) obliged to inform the citizen, upon his written request, whether data collection measures have been taken on him and whether the Agency keeps records of his personal data and that, upon his written request, make the document on the collected data available for inspection" within 30 days of receiving the request. In paragraph 3, it is explained that ANB is not obliged to provide this information "if the notification would make it difficult or impossible to carry out the work of the Agency or could lead to endangering the safety of another person, about which the applicant will be notified in writing within 15 days".
It is interesting that ANB, in the information obtained under the Law on Free Access to Information, states that in December 2020, a request was submitted from the Bar, which asked to answer whether it keeps records of this person's personal data, and to provide him with " complete documentation from registers and data collections on data collection measures taken according to it". ANB, however, after three and a half years, emphasizes that "the matter is still being worked on".
These data are not at all surprising and they confirm my long-established position that the use of MTN is predominantly about massive abuse by state authorities, for some not so noble and moral purposes, Andrijana Razić believes.
In 2021, to 35 requests, the ANB replied that it did not take measures to collect data, and in four cases the Agency referred to Article 18, paragraph 3. The ANB allowed one person, living in Podgorica, to view the documents on the collected data, while according to the request from Belgrade, as stated, was not decided, but no reason was given.
It is interesting that only one woman from Podgorica appears among the applicants to the ANB.
Already the following year, 23 women were interested in whether they were "on measures", but, as against 43 members of the opposite sex, according to ANB data, no data collection measures were undertaken. In 2022, the ANB informed three citizens that it "cannot comply with their request because it could complicate the execution of certain tasks under its jurisdiction." And from 2022, one case is still in the works, according to one request, no reason is given, no action was taken. At the request from Subotica, regarding the deceased Ž. Z. it was answered that ANB is not in possession of the requested data.
Insight to one person only
In 2023, there were 17 requests, and by July 1 this year there were 12 more requests. Out of 29 requests, 14 were answered practically by admitting that the applicants were on measures, but that their request cannot be granted... To the lawyer Igor Ćetković from Ulcinj it was said that the person he represents, "from the Republic of Kosovo with temporary residence in Ulcinj", is in the records of the Agency "on the basis of giving an opinion for obtaining a permit for temporary residence in Montenegro in the previous period, about which the competent authority forwarded positive opinion".
Thus, from January 2020 to July 1, 2024, the ANB allowed only one citizen of Montenegro to view the documentation and MTN. On the other hand, during the same period, no citizen was allowed to inspect the collected material regarding the MTN, which is carried out at the suggestion of the state prosecutor's offices, with the approval of the judges for the investigation.
Lawyer Andrijana Razić points out that it is not necessary to emphasize, nor can it be emphasized enough, why it is important for the citizen who was subjected to these measures to receive information about it and to inspect the obtained material before its destruction.
"The very fact that someone violated your most important and most protected human rights for months, and it turned out that he did not have sufficient reasons or a quality legal basis for this, indicates a huge potential danger that you were not even aware of and that can happen again at any time without you still don't know that. Just knowing that you were the object of interest of the police and judicial authorities and for what reasons, as well as the content of the collected material, can make you aware of a lot, point out and warn you," Razić points out.
She says that it has long since become an "open secret" that in Montenegro the mentioned measures are used often and mostly without a legitimate legal basis.
"In the majority of cases, secret surveillance measures do not even aim to detect and prove criminal acts and perpetrators, but some completely different motives and agendas. In that sense, these data are not at all surprising and they confirm my long-established position that the use of MTN is predominantly about massive abuse by state authorities, for some not so noble and moral purposes," Razić points out.
(In tomorrow's issue: Who controls the wiretapping)
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