On Friday evening, the Parliament of Montenegro adopted amendments to the Law on Internal Affairs and the Law on the National Security Agency (NSA) with 63 votes in favour, cast by the governing majority and part of the opposition.

The adopted amendments fail to introduce the necessary human rights safeguards and do not incorporate the key recommendations of international bodies, including the UN Human Rights Committee and the UN Special Rapporteur on the Right to Privacy, nor those of Montenegro’s national institutions, namely the Agency for the Prevention of Corruption and the Protector of Human Rights and Freedoms (Ombudsperson). Both laws remain misaligned with the EU acquis, including the General Data Protection Regulation (GDPR).

The fundamental deficiencies of the security vetting and covert surveillance framework remain unaddressed. The amendments are extremely limited in scope: they do not remedy the core shortcomings of the Law on Internal Affairs and fail to resolve all of the key issues in the Law on the National Security Agency.

The fact that political consensus has been reached around such solutions does little to inspire confidence in the forthcoming public debate on constitutional amendments in Montenegro.

Both laws have already been challenged before the Constitutional Court, and there is no reason to withdraw those challenges. Human Rights Action (HRA) has filed an initiative challenging the Law on the National Security Agency, while five Members of Parliament have submitted a motion for constitutional review of the Law on Internal Affairs.

We expect the Constitutional Court to assess these cases through the lens of constitutional guarantees and international human rights standards, to take into account the criticism expressed by domestic and international experts, and to protect the rights to privacy and to a fair procedure.

The following is a commentary on the adopted amendments to the Law on Internal Affairs and the Law on the National Security Agency.

Law on Internal Affairs: the composition of the Commission changes, but the unfairness of the procedure remains

The core problem has not been addressed. Police officers continue to have no right to be informed of the reasons for the alleged security impediment attributed to them, nor are they given an opportunity to respond before a decision is made. As long as this remains the case, the composition of the Commission determining such impediments is of secondary importance.

The adopted amendments deal exclusively with the Commission’s composition. The Commission will now be established by the Government, rather than by the Minister, following consultation with the Parliamentary Committee on Security and Defence. Its membership has been increased from five to six by adding one prosecutor. However, this solution does not provide even a minimum degree of independence because:

• An even number of members does not guarantee decision-making, while the law fails to prescribe the required majority for adopting decisions or specify the consequences of a tied vote (3:3)—whether the proposal is rejected, adopted, or the proceedings must be repeated—even though the outcome directly affects a police officer’s employment. Rules governing decision-making are matters that should be regulated by law.
• The prosecutor’s role is merely symbolic. The prosecutor holds only one of six votes, without any special authority or veto, and the remaining members—who are Ministry of Interior officials—may simply outvote the prosecutor. As a result, the prosecutor’s participation serves as a cosmetic feature rather than a genuine safeguard of legality. Had the law required decisions to be reached by consensus, the prosecutor’s participation would have carried meaningful weight. It does not.

Through its proposed amendments, HRA advocated precisely for what remains absent: a mixed, depoliticised seven-member commission applying fair procedural guarantees—principles that are not mentioned anywhere in the law. On the contrary, the Commission retains the power to withhold from candidates the reasons for determining the existence of a security impediment, thereby effectively preventing them from challenging such findings. The Ombudsperson has criticised this power on three separate occasions in formal opinions.

None of these proposals was accepted. The Commission remains a body dominated by the executive branch, operating without clear and fair decision-making rules, thereby continuing to enable arbitrary selection and dismissal of police officers.

Law on the National Security Agency: limited progress, while the essence of surveillance remains unchanged

The same pattern—piecemeal amendments without genuine structural reform—is evident in the amendments to the Law on the National Security Agency.

It is welcome that the Government introduced judicial authorisation for access to the most sensitive categories of personal data held by legal entities (including genetic and biometric data and profiling) as well as location data, thereby removing the NSA Director’s previous power to authorise such access unilaterally. This implements part of Montenegro’s obligations arising from the Constitution, Constitutional Court case-law, and international human rights standards.

However, the most problematic elements of the covert surveillance regime remain intact.

The NSA may still apply the most intrusive covert surveillance measures without prior judicial authorisation for up to 48 hours, subject only to subsequent judicial review. HRA proposed harmonising the law with the Criminal Procedure Code, under which, in genuinely urgent cases, a judge issues an oral warrant before the measure begins and confirms it in writing within 12 hours. Failing that, the surveillance must cease immediately and all collected data must be destroyed. Retaining a 48-hour window without even prior oral judicial authorisation means that serious interferences with privacy—including interception of communications—may still occur without effective judicial oversight.

Article 18 of the Law on the National Security Agency, which regulates recording, tracking and surveillance measures, has not been amended at all. Although these measures are formally conducted in public spaces, they enable long-term and systematic collection of data on individuals’ movements, contacts and behaviour, thereby interfering with the very essence of the right to privacy. HRA proposed subjecting these measures to prior judicial authorisation as well. It should be recalled that it was precisely because of Article 18 that the President of Montenegro returned the previous version of the law to Parliament for reconsideration. That issue remains entirely unresolved.

The amendments to both the Law on the National Security Agency and the Law on Internal Affairs were supported by MPs from the Democratic Party of Socialists (DPS), the European Alliance, the Croatian Civic Initiative (HGI), the Democratic Union of Albanians (DUA), and independent MPs Dragan Bojović and Nikola Janović.

Concerns also raised at the European Parliament level

The problematic nature of these legislative solutions was also raised in a timely manner at the European Parliament.

MEP Vladimir Prebilič (Greens/European Free Alliance Group) submitted a parliamentary question to the European Commission expressing concern that the draft Law on Internal Affairs and the draft Law on the National Security Agency were not compatible with EU fundamental rights standards, the EU Charter of Fundamental Rights, the General Data Protection Regulation (GDPR), and the Law Enforcement Directive (LED). His concerns focused particularly on the possibility of dismissing police officers on the basis of secret “security impediments” without an effective opportunity to challenge such decisions, as well as on the NSA’s powers to access citizens’ personal data without prior judicial authorisation.

In June this year, the Commission replied that the data protection provisions of both laws were not yet fully aligned with the GDPR and the Law Enforcement Directive, and stressed that police recruitment must be merit-based, accompanied by robust procedural safeguards, while dismissals must be duly reasoned and subject to full judicial review. These are precisely the issues that HRA considers remain unresolved.

HRA expects the Constitutional Court to give priority to the constitutional review of these laws and to require the Government and Parliament to introduce the necessary judicial safeguards for the protection of the right to privacy, as well as at least minimum guarantees of procedural fairness in proceedings before the Government-appointed Commission responsible for determining security impediments.