Who controls the wiretapping?

The Committee for Security and Defense of the Parliament of Montenegro will only control the implementation of secret surveillance measures (MTN) in the ANB or MUP in the second half of this year. In the previous two years, the Department of Internal Control of the Ministry of Internal Affairs had no cases in which it controlled the application of the MTN, and since 2017, the Ombudsman had only one report from citizens on this topic.

Does this mean that the state is eavesdropping on us strictly in accordance with the law?

Before any answer, it should be reminded that it is against Dejan Peruničić, the former head of the secret police, several indictments were brought and confirmed precisely because of the illegal use of MTN. 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. This court process, apart from the practical consequences, also opens, it seems, a much more significant question about the control of the application of secret surveillance measures. Because the "Peruničić case", but not only it, also practically shows what can happen in the absence or insufficiently effective control of procedures and individuals who decide and implement MTN.

The Security and Defense Committee of the Assembly should have a central role in the control of the security services.

As provided for in Article 3 of the Law on Parliamentary Supervision in the Field of Security and Defense, the Board exercises parliamentary supervision over the work of the Ministry of Defense, the Army of Montenegro, the National Security Agency, the Police Directorate, the Ministry of Internal Affairs and Public Administration, as well as other bodies and institutions that deal with the affairs security and defense. The Board can initiate certain issues and perform parliamentary supervision at the proposal of the Assembly, the President or members of the Board, other authorities or institutions.

Authorities and institutions from paragraph 1 of this article are obliged to, at the request of the Committee or its member, submit data and information from the scope of the Committee, except for those that, in accordance with a special law, they cannot provide.

Parliamentary oversight plan

At the sixth session of the Committee, held on January 26, 2024, the Parliamentary Oversight Plan for 2024 was adopted, which, the president explains, Miodrag Laković, provided for continuous review of reports on the application of MTN by authorities and institutions from Article 3 paragraph 1 of the Law on Parliamentary Oversight in the Field of Security and Defense, which temporarily limit rights and freedoms guaranteed by the Constitution. ​

Laković points out that, in accordance with the Board's decision, visits to bodies and institutions in the field of security and defense are planned for direct insight into the functioning of the security system in individual areas.

"The Committee for Security and Defense will, in the near future, set a date and arrange a visit to a security authority, the ANB or the Police Directorate, which applies MTN, for the direct insight of Committee members into the procedures implemented by the authority, to determine the regularity of work in the context of compliance regulations that regulate the subject area and assessments of the legality of the actions of members of the service", Laković told "Vijesti".

A significant instance in the control of the implementation of secret surveillance measures is the Department for Internal Police Control of the MUP of Montenegro. As told to "Vijesti", last year and during this year, the Department for Internal Control did not have cases in which it controlled the application of secret surveillance measures.

In the MUP, they see the supervision and control of the implementation of the MTN as an obligation, above all, of the prosecutor's offices and the courts.

"Given the fact that the Code of Criminal Procedure establishes that the MTNs established in Article 157 of that code are determined by the order of the investigating judge, that is, the state prosecutor, and that the authorized police officer who carries out the measure of secret surveillance keeps records of every action taken, which the state submits periodic reports on the execution of measures to the prosecutor and the judge for investigation, it indisputably follows that these measures are, first of all, implemented under the direct supervision and control of these authorities", the MUP states.

The Ministry of Internal Affairs emphasizes that this year and last year, there were no cases of citizens' complaints being submitted to the Department for Internal Police Control regarding the application of MTN, nor did the internal control of the police have operational knowledge that in certain cases of execution of MTN and either unprofessional or illegal behavior of police officers.

In the indicated period, they claim in the MUP, there were no requests or orders from the state prosecutor's office to take measures and actions within the competence of the internal control of the police in connection with the execution of MTN.

The basis for carrying out internal control in connection with the execution of MTN would be acquired in circumstances of suspicion that in a certain (concrete) case in which MTN are executed, unprofessional or illegal actions are being taken by the police officers who are responsible for the execution of these measures.

There was no illegal action

In the Institution of the Protector, they point out that since 2017, they had one complaint, in 2018, which was related to the application of MTN, that is, the obligation to inform the person whether measures were taken to collect data about him.

"In the specific case, the Protector conducted the examination procedure and concluded that there was no illegal action by the authorities and that the rights of the complainant were not violated, and he pointed out to ANB that in further work, due to the interest of legal security and respect for the general principle of legality in work, it is necessary to respect deadline for informing citizens from Article 18 of the Law on the National Security Agency, and in accordance with the authorizations from Article 9, and in connection with Article 14 of the Law", the Deputy Protector told "Vijesti". Tatjana Radovic.

"The institution of the Protector has the capacity to respond to all citizen complaints, and therefore also to complaints related to the application of MTN. When it comes to legal powers, we will point out that the provision of Article 36 of the Law on the Protector of Human Rights and Freedoms of Montenegro prescribes that the elder, that is, the person who manages the body, is obliged to put the Protector on his/her request disposing of all data from the authority of the authority it manages, regardless of the degree of secrecy; enable immediate access to official files, documents and data, as well as provide him with copies of requested files and documents, regardless of the degree of secrecy, and provide him with free access to all premises. The protector does not have the authority to change, cancel or annul the acts of the authorities, but in those cases, citizens must use regular and extraordinary legal remedies before the competent courts, she said.

In the Supreme State Prosecutor's Office, they emphasize that persons participating in the decision-making process on MTN receive permission to access secret data from the Directorate for the Protection of Secret Data, and secret data are kept in accordance with the provisions of the Data Secrecy Act.

"In this way, the possibility of misuse of the information at their disposal is excluded", they conclude in the VDT.

And in the Supreme Court, when it comes to secret surveillance measures, they have a similar position.

"Persons who participate in decision-making about MTN receive permission to access secret data from the Directorate for the Protection of Secret Data, and secret data is kept in accordance with the provisions of the Data Secrecy Act. In this way, the possibility of misuse of the information at their disposal is ruled out", "Vjesti" was told in the Supreme Court.

Lawyer Andrijana Razić considers that the existing control of the implementation of MTN is not sufficient.

"From all this comes a more than clear conclusion that, not that the control of the implementation of MTN is not sufficient and effective, but that it does not exist at all", said Razić.

Her claim is supported by several examples that have been publicized in the last few years.

Former Minister of Justice Andrej Milović at one time complained that he was "on measures". At that time, only a deputy and a member of the Presidency of the "Europe Now" Movement, he said, during a guest appearance on "A Plus" television, that ANB was eavesdropping on him and his family.

"They are eavesdropping on me, they are eavesdropping on my family. I'm being followed and I know it. I notice some things and know when I say something how it is later interpreted in a way that is only possible by eavesdropping. And I have information from ANB. That institution is not loyal to this system, that institution has professionals," MP Milović said at the time a year ago.

When he became a minister, he did not, as far as is known, take any measures to shed light on this situation.

Among the latest cases in this area is an example Nebojša Jušković who was a candidate of the Coalition "For the Future of Montenegro" for a member of the Council of the Civil Aviation Agency (ACV).

According to Jušković, the former Minister of Transport and Maritime Affairs Filip Radulović ultimately demanded that the ZBCG coalition replace the proposal with the explanation that it did not pass the "security check".

After that, an unsuspecting member of the CAA Council sent a letter to the director of the ANB, in accordance with Article 18 of the Law on National Security, with a request to inform him whether measures were being taken to collect data about him and whether the ANB keeps records of his personal data, and that show them to him.

After sending the request, the ANB replied negatively to Jušković that "in the process of the said request, it was established that complying with the same could make it difficult or impossible to perform certain tasks within the competence of the Agency".

"I demanded twice from Prime Minister Spajić to make a statement about the letter of the director of the ANB, Mr. Milić, dated March 5, 3, and to date I have not received any answers, and from the reply of the director of the ANB, Mr. Boris Milić it is unequivocally indicated that I am under the measures of secret surveillance by ANB", said Jušković for "Vijesti".

These cases, as well as some others, have reached the public, however, in Montenegro, some very important segments from this area are hardly mentioned at all. For example, in June 2022, the Serbian president Aleksandar Vučić he informed the public that he was wiretapped. As he stated, the competent authorities confirmed more than 1.600 illegal wiretapping of the head of state's phone, and announced a further investigation. However, it was never revealed who allegedly "listened" to Vučić. It will turn out that the president of Serbia actually talked to people who were on the measures and the competent services recorded that, but they did not announce who Vučić actually talked to.

What is "intrusion into measures"

She mentioned the so-called "intrusions into measures" in Montenegro Vesna Medenica, in the show "Nachisto" Petar Komnenić.

"For 13 years, by law, I was solely in charge of signing MTNs that came from ANB. And I also proposed some measures when I was a prosecutor. It will be interesting one day because I am a witness to all of this, so that I can say something about what I have seen. When that time will come is a matter of my decision. "Interestingly, someone who is now burning and burning with this judiciary got caught up in those measures," said Medenica.

What Medenica calls "fishing" is actually this "intrusion into the measures", a situation in which the conversation with the person under the measures is recorded in the body that implements the MTN.

What happens to the data and material collected due to the so-called intrusion into the measures, that is, conversations and contact with persons who are under MTN?

Sergej Sekulovic, lawyer, former minister of the interior, sees two situations in such cases. In the first case, when the application of MTN leads to information and notification that another person has committed or is preparing to commit one of the criminal offenses enumerated, i.e. outside of the criminal offense for which secret surveillance measures were initially introduced, then these data and notices, with the selection of that part of the material, can be used to initiate criminal proceedings against that person, that is, they can be used as evidence only for criminal offenses from Article 158 of the CPC, Sekulović points out.

"The second situation, in which private conversations and in that sense 'miscellaneous' information between the person who is the subject of measures and other persons who are in no way connected with the preparation and execution of criminal acts, creates the possibility of misuse of this data. In this case, everything that is not important for the criminal procedure, for example, when drawing up the indictment, is removed and this data must not be publicly available in any way. As far as I know, the method of destruction of this material is not precisely prescribed, but I do not see a problem in destroying the material without notification", explains Sekulović.

Theoretically, Sekulović is right, but the problem is that, as far as is known, at least in the two and a half years that "Vijesti" investigated, there has not been a case where in such situations any of the citizens were informed that they had spoken to a person who either on secret security measures, or that the material was destroyed.

That's why, instead of trusting the competent institutions, it might be a better solution for citizens to question suspicious interlocutors anyway:

"Are you on the measurements?"

Novović plans to implement secret surveillance measures beyond the ANB

Vladimir Novović, special state prosecutor, guesting on Petr Komnenić's "Clean" show on December 22, 2022, expressed undisguised dissatisfaction with the cooperation with ANB.

"Regarding the current cooperation with the National Security Agency, I have to disappoint you that the day before yesterday, it seems to me, I met the acting director of the National Security Agency for the first time. We have recently received one or two pieces of information related to certain events. I think that this is a very small amount of information and that the exchange of information with the National Security Agency should be significantly improved," said Novović at the time.

According to him, the ANB is an agency of an intelligence nature and it should also supply the Special State Prosecutor's Office with intelligence data related to possible criminal acts that are under the jurisdiction of the Special State Prosecutor's Office.

"So, to periodically submit such reports in the part related to criminal acts of organized crime, high corruption, money laundering, terrorism, and now we are talking about war crimes, but these are the main criminal acts that occurred in an earlier period", he explained is a special state prosecutor.

Novović said that the initiative must be "theirs", referring to ANB, because the Special State Prosecutor's Office does not deal with nor has instruments for conducting intelligence work.

"In that future period, if it really happens, we will equip the special police department with all the devices that are necessary for the implementation of secret surveillance measures," Novović said.

It is somewhat surprising that there was no reaction to Novović's announcement, and it is not known to this day whether the relations between SDT and ANB have improved and whether the special state prosecutor has decided to organize his own service within the SPO, which would conducted by MTN.

They're bugging me, they're bugging my family. I'm being followed and I know it. I notice some things and I know when I say something how it is later interpreted in a way that is only possible by eavesdropping, said Andrej Milović

"On white" and "ringing"

In Serbia, there was a lot of talk about abuses in the wiretapping system called "white stripping". It is about the illegal transfer of certain contents obtained while listening to the phone to paper, without markings and any signature, and delivering it to certain structures and individuals instead of the judge for investigation. It was speculated that in this way Nebojša Stefanović, the former Serbian Minister of Internal Affairs, provided himself with a peaceful sleep after Aleksandar Vučić excommunicated him from political life.

The phenomenon known in security circles as "ringing" is also interesting. The eavesdropping system in Serbia is such that, in addition to the conversation itself, five to six seconds before the person being monitored answers, the conversation in the room where the phone is located is also recorded. In this way, allegedly, very important information was obtained.