HRA: Urgently withdraw draft laws on internal affairs and ANB, they are contrary to human rights standards

Following the announcement by the EU Delegation to Montenegro that the Government's proposals for amendments to the Law on Internal Affairs and the Law on the National Security Agency are not aligned with the EU acquis, in particular with the General Data Protection Regulation (GDPR) and the Law Enforcement Directive (LED), Human Rights Action (HRA) appeals for the withdrawal of these draft laws from the parliamentary procedure until they are fully aligned with the EU acquis, which includes human rights guarantees.

HRA emphasizes that these are human rights of Montenegrin citizens, which the responsible government, in a key phase of European integration, should protect at the same level as in the European Union, instead of pandering to interests that oppose it.

"Given that the EU Delegation has stated that the laws are not in line with the GDPR and LED, and that 'the EC specifically expects the competent authorities to implement merit-based recruitment in the police' and, in this regard, 'establish appropriate procedural guarantees', the HRA reiterates that the automatic termination of employment of Police Directorate officers, or the withdrawal of police officer status due to security concerns without disciplinary proceedings, as proposed in the amendments, is not in line with the EU acquis," the statement reads.

They state that Article 41 of the EU Charter of Fundamental Rights - Right to good administration - as well as the established case law of the Court of Justice of the EU, guarantee the right to be heard and the right to a defence as general principles of EU law, which must be respected before any decision of an administrative authority that may adversely affect the rights or interests of a person is taken.

"In other words, the automatic termination of employment based on a Commission decision on security concerns, without conducting a procedure in which the police officer would have the opportunity to state his/her views on these concerns, is not in line with EU law. It should not be forgotten that the directives, to which the DEU specifically referred, also require these guarantees in the context of the processing of personal data, which include security concerns."

The Court of Justice of the EU, they add, has stressed in several judgments that persons affected by such potentially adverse administrative decisions must have a real opportunity to express their views and challenge the elements on which the state authority intends to base the decision. The Court has also found that a violation of this right may lead to the annulment of the administrative decision.

"These standards, which form part of the acquis communautaire, imply that decisions that seriously affect the professional status of officers must be taken after conducting an individual procedure in which the person is allowed to be heard and to exercise the right to a defense. However, contrary to this, the Government insists on the complete elimination of disciplinary proceedings for security reasons, and allows the termination of employment of police officers even retroactively, in procedures that have not been completed, based on the decision of a commission formed by the Minister of the Interior and in relation to which there are no guarantees against political influence, which is also a specific problem that the European Commission has already pointed out."

HRA once again strongly protests that the proposed amendments to both the Law on Internal Affairs and the Law on the National Security Agency were bypassed by a public debate, in which the proposed amendments to the laws that threaten human rights and their compliance with European and international standards would have been discussed openly, and with the presence of foreign experts.

"We would like to remind you that in relation to the proposals for amendments to the Law on the National Security Agency, both the UN Human Rights Committee and the Special Rapporteur on the Right to Privacy have made explicit remarks to Montenegro due to the lack of judicial control of access to databases maintained by both natural and legal persons, but that their suggestions have not been taken into account by the Government. Also, one of the proposed solutions, that accessing data on the location of a mobile phone user also does not require judicial approval, is contrary to the current practice of the Constitutional Court of Montenegro and the standards of the European Court of Human Rights on secret surveillance of communications. The Government must protect the general interest of Montenegro in having its legal order based on respect for human rights and European standards, especially in this crucial phase of our country's integration into the EU," the statement reads.