Following the statement by the EU Delegation to Montenegro that the Government’s draft 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Regulation (GDPR) and the Law Enforcement Directive (LED), Human Rights Action (HRA) calls for these draft laws to be withdrawn from parliamentary procedure until they are fully aligned with EU law, including its human rights guarantees.

This concerns the human rights of the citizens of Montenegro, which a responsible government, at this crucial stage of European integration, should protect at the same level as in the European Union, rather than accommodating interests that run counter to those standards.

In light of the statement by the EU Delegation that the draft laws are not aligned with the GDPR and the LED, as well as the European Commission’s expectation that “the competent authorities ensure merit-based recruitment in the police” and, in that regard, “establish appropriate procedural safeguards”, HRA reiterates that the proposed automatic termination of employment of police officers, that is, the withdrawal of police officer status due to alleged security impediments without a disciplinary procedure, as envisaged by the proposed amendments, is not in line with the EU acquis.

Specifically, Article 41 of the Charter of Fundamental Rights of the European Union – the right to good administration, as well as the settled case-law of the Court of Justice of the European Union, guarantees the right to be heard and the rights of the defence as general principles of EU law. These principles must be respected before any administrative decision is adopted that may adversely affect the rights or interests of an individual. In other words, the automatic termination of employment on the basis of a decision of a Commission on security impediments, without conducting a procedure in which the police officer would have the opportunity to respond to those allegations, is not compatible with EU law. It should also be recalled that the directives to which the EU Delegation particularly referred likewise require such safeguards in the context of the processing of personal data, which includes security-related assessments (GDPR, recital 22; LED, recitals 38, 45 and 46).

The Court of Justice of the European Union has emphasised in several judgments that individuals subject to such potentially adverse administrative decisions must have a genuine opportunity to express their views and challenge the elements on which the public authority intends to base its decision (Sopropé – Organizações de Calçado Lda v Fazenda Pública, paras. 36–38; M.M. v Minister for Justice, Equality and Law Reform, paras. 87–88; Boudjlida v Préfet des Pyrénées-Atlantiques, paras. 36–37). The Court has also held that the violation of this right may lead to the annulment of the administrative decision (Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV, paras. 38 and 79).

These standards, which form part of the acquis communautaire, require that decisions significantly affecting the professional status of public officials be adopted only after an individual procedure has been conducted in which the person concerned is given the opportunity to be heard and to exercise the rights of defence.

Contrary to these standards, the Government insists on completely eliminating disciplinary proceedings in cases involving alleged security impediments and enables the termination of employment of police officers even retroactively in proceedings that have not yet been concluded, on the basis of a decision of a commission established by the Minister of Interior and without guarantees against political influence – an issue that the European Commission has already identified as a particular concern.

HRA once again strongly protests the fact that public consultation was bypassed in relation to the proposed amendments to both the Law on Internal Affairs and the Law on the National Security Agency. Such consultation should have provided an opportunity for an open discussion, including with the participation of international experts, on legislative proposals that affect human rights and on their compliance with European and international standards.

We recall that, with regard to the proposed amendments to the Law on the National Security Agency, both the UN Human Rights Committee and the UN Special Rapporteur on the right to privacy raised explicit concerns about the absence of judicial oversight over access to databases held by both natural and legal persons, yet their recommendations were not taken into account by the Government. Furthermore, one of the proposed solutions – allowing access to location data of mobile phone users without judicial authorisation – runs counter to the established case-law of the Constitutional Court of Montenegro as well as the standards of the European Court of Human Rights concerning secret surveillance of communications.

The Government must safeguard the general interest of Montenegro by ensuring that its legal order is grounded in respect for human rights and European standards, particularly at this crucial stage of the country’s integration into the European Union.