Human Rights Action (HRA) has submitted to the Parliament of Montenegro, the Government and the Delegation of the European Union to Montenegro proposed amendments to six articles of the Law on the National Security Agency (ANB), aimed at introducing independent, primarily judicial, oversight of those Agency powers that most seriously interfere with the right to privacy of citizens.

HRA maintains its position that a fundamental, comprehensive reform of the ANB Law – and of the Agency itself – is necessary, and that the forthcoming ad hoc amendments cannot be a substitute for such reform.

The model of operation and oversight of ANB must be re‑established from the ground up so as to ensure genuine democratic, parliamentary and judicial control, clearly defined powers, accountability, and effective protection of human rights.

Nevertheless, in view of the current situation, HRA considers it most urgent to secure at least a minimum level of independent control over those Agency powers that most severely interfere with the right to privacy of everyone who falls within the scope of ANB’s activities. It is precisely because of these provisions that HRA has previously submitted an initiative for the review of constitutionality to the Constitutional Court of Montenegro.

HRA recalls that, under the Agreement on Overcoming the Parliamentary Crisis of 7 July, the government and the opposition committed themselves to adopt, by 31 July, amendments to the Law on Internal Affairs and the Law on ANB, and that, according to that document, the amendments to the ANB Law are specifically aimed at strengthening mechanisms of judicial oversight over the Agency’s work. The amendments proposed by HRA give concrete effect to that commitment.

Through the proposed amendments to six articles, HRA calls for access by the Agency to all records, registers and datasets held by state authorities, local self‑government bodies, legal entities and other actors, including electronic databases, to be allowed exclusively on the basis of a prior, reasoned decision of the competent court, adopted upon a written, reasoned request of the Director of ANB. A court decision would also be a necessary precondition for any electronic access to such data, while separate agreements with the relevant authorities and entities would regulate only the technical modalities of access. In this way, ANB would no longer be able to enter other institutions’ databases solely on the basis of bilateral agreements, without judicial control.

HRA further proposes abolishing the power of the Director of ANB to unilaterally authorise the use of surveillance and observation measures, which enable detailed mapping of individuals’ movements, contacts and patterns of behaviour. Instead, the Director would be required to submit a reasoned proposal to the President of the Supreme Court of Montenegro, or to the judge acting in his or her stead, who alone would be authorised to approve the application of such measures. In truly urgent, exceptional cases, where any delay would pose a risk, the judge could authorise the measure orally, but would then be obliged to issue a written decision within the shortest possible time, and in any event within a strictly prescribed time‑limit. If such a decision is not issued, or if the measure is not confirmed, the Agency would have to immediately terminate its implementation and destroy all data collected.

The amendments also propose that all of ANB’s most intrusive powers – interception of electronic communications and postal consignments, access to information‑communication systems, covert surveillance of vehicles, objects, premises and enclosed spaces – be placed under a single, uniform judicial regime, without carve‑outs for specific sub‑paragraphs. In other words, all forms of secret surveillance that deeply interfere with privacy would be subject to the same level of prior judicial control, regardless of the technical means used.

A particularly problematic aspect of the current framework is the provision that allows the Director of the Agency, in so‑called emergency situations, to unilaterally authorise the application of secret surveillance measures before any court decision is issued, without any clear statutory definition of what constitutes an emergency and within what limits this power may be used. HRA proposes abandoning this model and replacing it with a system in which, even in urgent cases, the decision to initiate a measure is taken by a court, by way of an oral order that must swiftly be confirmed in writing, coupled with an obligation to terminate the measure and destroy the data if such confirmation is not given.

HRA specifically calls for the deletion of the provision that currently enables ANB, solely on the basis of the Director’s approval and without any judicial control, to collect location data of citizens through electronic communications. HRA recalls that the Constitutional Court of Montenegro has already established that both traffic and location data form an integral part of the right to the confidentiality of communications and that any interference with such data is permissible only on the basis of a court decision. For this reason, HRA proposes that this provision be entirely removed and that the collection of location data be subjected to the same judicial regime that applies to other forms of surveillance of electronic communications.

All of these amendments are aimed at limiting the arbitrariness of the executive branch and ensuring independent, primarily judicial oversight of ANB’s most intrusive powers, in line with the Constitution of Montenegro, international human rights treaties and the case law of the European Court of Human Rights, as well as the recommendations of United Nations bodies and the UN Special Rapporteur on the right to privacy.