Proposed amendments to the Law on National Security Agency (NSA) expand existing authorities of the Agency Director and allow unlimited arbitrary surveillance, while citizens are not provided with any means of protection from such arbitrary interference into their rights.

Namely, the proposed amendments envisage that NSA collects information on location and movement of any individual based on the order of the Director of that service, while the existing legislative solution envisages that these information can be collected only based on the decision of the President of the Supreme court, on the grounds of reasoned, written request from the Agency, submitted for each case separately.

That means that the proposed amendments to the Law envisage abolition of the court control and written explanation for each individual case. The new solution, proposed by the Government, defines that the NSA can collect information on the movement of unlimited number of people only based on directors’ decision, without any control and explanation. Such a secret register of the NSA could contain information on the movement of unlimited number of citizens, thereby directly violating their privacy, but the Government’s explanation of proposed amendments to the law does not contain reasons for proposing such solutions.

We call upon MPs to submit their amendments that would propose deletion of these norms since they are not in line with the Constitution of Montenegro and the European Convention on Human Rights.

The essential objective of the Article 8 of the European Convention for protection of human rights and fundamental freedoms is the protection of an individual from arbitrary acting and intervention into private life. According to the case law of the European Court, that provision implies that the state should restrain from such interference and commit to provide citizens with means of protection (amongst other judgments: Powell and Rayner vs UK). European court emphasized that “storing the information on private life of individuals in secret register is within the scope of Article 8, paragraph 1” (judgment Leander vs Sweden, 26 March 1987, Series A No. 116, page 22, paragraph 48).

Proposed amendments to the law allow unlimited arbitrary collection and automatic processing of information on the location and movement of any individual. Such collection and processing of information undoubtedly lie within the scope of term private life (judgment Amann vs Switzerland), and files that intelligence agencies collect concerning specific person are within the scope of Article 8, even when these information are not collected by secret or visible methods (judgment Rotaru vs Romania, paragraphs 43-44).

The proposed law does not provide clear grounds based on which the NSA director should be allowed to use the equipment for secret surveillance of movement of any individual. European court for human rights assesses that “the absence of any evident legislative framework for the use of equipment for secret surveillance on private objects is not in accordance with legal demands ” (judgment Malone, Halford and Khan).

Proposed amendments to the law do not secure any of the efficient guarantees of protection from misuse, because the NSA director is allowed to follow any individual in a secret, arbitrary and unlimited manner. Proposed law is not in accordance with basic principle of the European court that national law should provide protection from arbitrariness and misuse in the use of techniques of secret surveillance (judgment P.G and J.H vs UK).

According to case law of the European court of human rights, the law must be adequately available, or the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Also, the norm cannot be viewed as “law” unless it is formulated with adequate precision, in which way the citizen is able to harmonize his/her behaviour accordingly, or citizen must be able, if necessary, with appropriate advice, to predict, to the reasonable extent possible in the circumstances, the consequences which a given action may entail (among other the judgment Sunday Times vs UK). European court stresses out that the law which provides specific discretion right has to highlight the extent of that right (judgment Silver and others, paragraph 88).

In particular case, the proposed norm does not meet the minimum of precision and nobody could know how to harmonize his/her behaviour in a manner in which the NSA director would not decide to monitor his/her movement. Moreover, the proposed law does not prescribe any sort of limitation for discrete authorisation of NSA director to monitor citizens.

We remind that the Criminal Procedure Code, under secret surveillance measures, stipulated that the surveillance measures “secret surveillance and technical recording of persons and objects” is determined by a reasoned proposal of state prosecutor on which the judge decides, precisely because of the suitability of that measure to jeopardize the right to privacy, unlike some other secret surveillance measures for which it was stipulated that can be decided upon by the very state prosecutor.

Due to all of the aforementioned we call upon MPs rof all political parties to submit amendments on proposed changes of the law and to secure the respect of the Constitution and European Convention on human rights.

Human Rights Action

Centre for Civic Education (CCE)

MANS