Non-governmental organizations (NGOs) Human Rights Action (HRA), the Center for Civic Education (CCE) and the Center for Women's Rights (CŽP) have sent a letter to Prime Minister Milojko Spajić, Chairman of the Committee on Security and Defense Miodrag Laković, as well as all members of that Committee, in which they once again call for the withdrawal of the ANB Law Proposal from parliamentary procedure and the opening of space for expert and public debate until the autumn session of the Parliament.
The continuation of the session of this Committee is scheduled for today at 8.30:XNUMX am.
These NGOs believe that this law poses an extreme risk to the human rights of citizens, and as such requires an appropriate process of harmonization with international human rights treaties that bind Montenegro.
"Given that we are in the process of joining the European Union and that the implementation of European standards and best practices in the field of human rights is one of the key conditions for that, we appeal to
"Enable the European Commission to conduct a thorough analysis of the proposed legal solutions. The United Nations Special Rapporteur on the right to privacy has also been informed of the draft Proposal and we urge you to await her opinion. The general interest in the security of citizens from threats to their rights requires that space be left for the assessments of international experts on the protection of the right to privacy by state security services," the letter states.
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The aforementioned NGOs praised the willingness to take their comments into account to some extent and to amend the original Bill. However, they added that they had noticed the following shortcomings in the amendments adopted by the Government last night at an electronic session, which were sent to the Parliamentary Committee on Defense and Security:
"1) AMENDMENT 1: In relation to the authorization of the ANB from Article 13 of the Proposal to access data from written and electronic records of state bodies, state administration bodies, local self-government, legal entities and other entities that keep written and electronic records without a court decision, the current solution has been returned, according to which this access requires a written agreement and consent of the Agency for Personal Data Protection and Free Access to Information (AZLP), instead of adopting the recommendation of the Human Rights Committee from April 2025 and providing for judicial supervision over the application of this authorization, which is the only appropriate one1, as announced by Minister of Justice Božović at yesterday's committee session.
By insisting on the existing solution, ANB officers are given greater powers than those held by state prosecutors, or police officers, while investigating the grounds for suspicion that very specific criminal acts have been committed, as opposed to the indefinite prevention of threats to national security, which is what the ANB does. In order to gain access to data on citizens' bank accounts in criminal proceedings, for example, a court decision is necessary (Art. 257b of the Criminal Procedure Code). In criminal proceedings, state authorities may also refuse to show or issue their files and other documents if they believe that publishing their contents would harm the public interest, in which case the decision is made by the judicial panel (Art. 86 of the Criminal Procedure Code), etc. At the same time, judging by the case law of the European Court of Human Rights (see, for example, Klass v. Germany, 1978, 42-49) with regard to the risk of arbitrariness, i.e. The risk of misuse of citizens' personal data is greater from the executive branch, embodied by the ANB, than from state prosecutors, who are autonomous in relation to the executive branch.
2) AMENDMENTS 4 AND 5 IN RELATION TO AMENDMENT 2: In relation to the secret collection of data on users' electronic communications, which includes traffic and location data, as well as data on unsuccessful establishment of electronic communications prescribed in Article 15, item 4 of the Bill, Amendment 2 splits the original indent b) into two, and stipulates that a court decision is required for "b) data on traffic in electronic communications and unsuccessful establishment of communications" and "d) international telecommunications connections", while judicial supervision is not provided for "c) data on location in electronic communications relating to the user."
Although the desire to subject this authority to at least partial judicial control is commendable, it is overlooked that the Constitutional Court, in a 2014 decision, found that the unconstitutional provision of the Criminal Procedure Code (CPC) under which the police, without a court order, can obtain from the provider of the service a certificate of service is unconstitutional. 1/2 (Concluding observations on the second periodic report of Montenegro, Human Rights Committee, Geneva, UN, May 7, 2025, points 40 and 41): 7. ... However, the Committee is concerned about allegations of unlawful surveillance ordered by a former director of the National Security Agency, and the inadequacy of the existing privacy safeguards in the Law on the National Security Agency, noting that article 2025 of that the law allows access to databases held by legal persons, including banks and non-governmental organizations, without court authorization (art. 40). (The Committee expresses concern at the allegations of unlawful surveillance by order of the former Director of the National Security Agency, as well as at the insufficient mechanisms for the protection of the right to privacy in the Law on the National Security Agency, bearing in mind that article 41 of that law allows access to databases of legal entities, including banks and non-governmental organizations, without judicial authorization (art. 40). 8. The State party should continue its efforts to raise awareness of data protection and privacy rights and expedite the adoption of the draft law amending the Law on the National Security Agency, ensuring that it contains legal and procedural safeguards to prevent the misuse of surveillance powers, in full compliance with the Covenant and relevant international standards. (The State party should continue its efforts to raise awareness of data protection and privacy rights and expedite the adoption of the draft law amending the Law on the National Security Agency, ensuring that it contains legal and procedural safeguards to prevent the misuse of surveillance powers, in full compliance with the Covenant and relevant international standards.) telecommunications services obtained so-called telephone listings, and concluded that location data also falls within the protected right to privacy of correspondence, which should be subject to judicial review17.
AMENDMENT 4: We note an obvious technical oversight - the resolution, among other things, stipulates that the ANB, if it cannot obtain data by reviewing the information and communication systems of state and local authorities and legal entities exercising public powers (Article 15, paragraph 1, item 5), may do so by reviewing those same systems, with a prior court decision (again Article 15, paragraph 1, item 5). Such errors are not allowed when it comes to standardizing measures that deeply infringe on the right to privacy and when prescribing powers for security services. Therefore, amendments to the law require maximum precision, attention and comprehensive expert review before adoption," the address to Spajić and the Committee states.
In addition, the aforementioned NGOs add that they believe that special attention should be paid to the method of destroying all data collected by the ANB that proves unnecessary for the possible conduct of criminal proceedings (according to the Draft Law, data collected on the basis of Article 13 are not subject to destruction, nor are those from Article 15, paragraph 1, points 2 and 4 for which the Supreme Court does not grant permission).
"We also highlight the unjustified lack of reporting on the work of the Agency in relation to other state bodies, and the unjustified separation of the ANB from the public procurement system. Precisely for the above reasons, we once again appeal to you to withdraw the Draft Law and thereby demonstrate your willingness to resolve national security issues in accordance with constitutional principles, international obligations and human rights protection standards," the statement concludes.
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