The proposed amendments to the Law on ANB expand the existing powers of the Agency's director and enable unlimited arbitrary monitoring, while no means of protection is available to citizens against such arbitrary interference with their rights, according to the joint statement of the Action for Human Rights HRA, Center for Civic Education CGO and the Network for the Affirmation of the Non-Governmental Sector MANS.
As stated, the proposed changes stipulate that the ANB collects data on the location and movement of any individual only on the basis of the order of the director of that service, while the current legal solution provides that such data can only be collected on the basis of the decision of the President of the Supreme Court, on the basis of a reasoned , of the Agency's written request, which is submitted for each individual case.
"This means that the amendments to the Law envisage the abolition of judicial control and written explanations for each individual case. The new solution proposed by the Government defines that only on the basis of the decision of its director, ANB can collect data on the movement of an unlimited number of people, without any control and without explanation "Such a secret registry of the ANB could contain data on the movement of an unlimited number of citizens, which would undoubtedly violate their privacy, but the Government's explanation of the proposed changes to the law does not contain the reasons for proposing such solutions," these non-governmental organizations explain .
They invite the deputies to submit amendments that would suggest the deletion of these norms because they are not in accordance with the Constitution of Montenegro and the European Convention on Human Rights.
"The essential goal of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is to protect the individual from arbitrary action and interference in private life. According to the judgments of the European Court, that provision imposes an obligation on the state to refrain from such interference and obliges it to make it available to citizens means of protection (among others: Powell and Rayner v. the United Kingdom).
The European Court emphasized "that storing information about the private life of individuals in a secret register falls within the scope of Article 8, paragraph 1." (Judgment Leander v. Sweden, dated March 26, 1987, Series A No. 116, p. 22, paragraph 48)," the statement added.
The proposed changes to the law, as further stated, allow unlimited arbitrary collection and automatic processing of information about the location and movement of any individual, and such collection and processing of data undoubtedly fall within the scope of the concept of private life (judgment Amann v. Switzerland), and the files that the intelligence services collected about a particular person fall within the scope of Article 8, even when the information was not collected by covert or visible methods (Judgment Rotaru v. Romania, paragraphs 43-44).
"The proposed law does not provide a clear basis on which the director of ANB would be enabled to use equipment for secret monitoring of the movements of any individual. The European Court of Human Rights considers that "the absence of any clear legal basis for the use of equipment for secret monitoring on private facilities is not in in accordance with the requirements of legality" (judgment Malone, Halford and Khan). The proposed changes to the law do not provide any effective guarantees of protection against abuse, as the director of the ANB is enabled to secretly, arbitrarily and indefinitely monitor any individual. The proposed law does not comply with the basic principle of the European Court that domestic law should provide protection against arbitrariness and abuse in the use of secret surveillance techniques (judgment PG and JH v. the United Kingdom)," the three NGOs state.
According to the views of the European Court of Human Rights, the law must be adequately accessible, that is, the citizen must be able to have an indication that is appropriate in the circumstances of the legal regulations applicable to the given case.
"Also, a norm cannot be considered a "law" unless it is formulated with sufficient precision, that it is possible for the citizen to coordinate his behavior, i.e. the citizen must be able, if necessary and with appropriate advice, to predict, as much as is reasonable possible in the given circumstances, the consequences that the given activity may entail (among others the judgment of Sunday Times v. United Kingdom).The European Court underlines that the law granting a certain discretionary right must also indicate the scope of that right (Judgment Silver and others, paragraph 88).
In the specific case, the proposed norm does not even meet the minimum precision and no one can know how to coordinate their behavior in such a way that the director of ANB does not learn to follow his movements. Moreover, the proposed law does not prescribe any limitation for the discretionary authority of the director of ANB to monitor citizens," the statement clarifies.
They remind that the Code of Criminal Procedure, as part of secret surveillance measures, stipulates that the monitoring measure "secret monitoring and technical recording of persons and objects" is determined by a judge deciding on the reasoned proposal of the state prosecutor, precisely because of the suitability of that measure to threaten the right to privacy, in contrast to some other measures of secret surveillance which are prescribed to be determined by the state prosecutor himself.
"Because of all of the above, we invite representatives of all political parties to submit amendments to the proposed amendments to the law and ensure respect for the Constitution and the European Convention on Human Rights," the announcement concludes.
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