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          • Autor: Marko Drajić
          • Serbia and Hungary: Hammering Democracy

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        • The Security Sector in a Captured State
          • Publications

          • Autor:
          • The Security Sector in a Captured State

          • Report on state capture in Serbia is BCSP genuine and pioneering work aiming to document and deconstruct ongoing process of state capture in the security sector through presentation of mechanisms, actors and consequences of this process.

        • The Security Sector in the State of Emergency: Testing Democracy
          • Publications

          • Autor: Isidora Stakic, Jelena Pejic Nikic, Katarina Djokic, Marija Ignjatijevic, Sasa Djordjevic
          • The Security Sector in the State of Emergency: Testing Democracy

          • This analysis by the Belgrade Centre for Security Policy (BCSP) concludes that during the 52 days it spent in a state of emergency, Serbia failed the test of democracy, thanks to a series of failings and irregularities in the conduct and control of the security sector.

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          • Autor: Isidora Stakic, Maja Bjelos, Marko Drajić
          • The Masks Have Slipped: Serbia in a Geopolitical Pandemic

          • Masks have slipped and the interests of Serbia’s foreign policy were exposed during the COVID-19 pandemic. These interests are not based on the principles of common goods, but on mechanism for preserving the existing internal order. This is one of the conclusions in the foreign policy analysis ...

        • Crime in the Western Balkans Six at the Time of Coronavirus: Early Findings
          • Publications

          • Autor: Sasa Djordjevic
          • Crime in the Western Balkans Six at the Time of Coronavirus: Early Findings

          • Did organized crime groups continue with their activity at the time of Coronavirus, which trends in the criminal activities in the Western Balkans can be noticed in the first six weeks of the pandemic and which scenarios can be envisaged for the future, analyzed BCSP Researcher Sasa Djordjevic.

        Serbia and Hungary: Hammering DemocracyThe Security Sector in a Captured StateThe Security Sector in the State of Emergency: Testing DemocracyThe Masks Have Slipped: Serbia in a Geopolitical PandemicCrime in the Western Balkans Six at the Time of Coronavirus: Early Findings
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          Protection of an individual against the intrusion of privacy is proclaimed to be a fundamental, legally protected human right. Starting from the Universal Declaration of Human Rights, adopted in 1948, a number of regulations in new international documents have been dedicated to this right, particularly Article 8 of European Convention for Protection of Human Rights and Fundamental Freedoms. Not all of these regulations are negative to the possibilities of wiretapping in the interest of public and national security but were based on the idea of establishing a democratically acceptable balance between the society’s need for security and the need to protect an individual and his right to privacy.

          Wiretapping of telephone communication and sound recording of conversations outdoors, in flats and other premises, is part of the old and widely spread police procedure, which managed to stay out of legal restrictions for a very long time. Beside the classic police, this has also been the manner of civilian and military intelligence services (secret police). Due to the spread of terrorism, organised and other new forms of crime (new challenges for public security) it is difficult to say today who is a greater follower of the wiretapping practice: classic or secret police. Historically speaking, wiretapping has been a monopoly of secret police for a long time and it has been justified by the state security reasons and later it rooted in the practice of classic police (public security reasons).

          Nowadays, modern techniques are used for wiretapping, supported by the industry of wiretapping devices. They enable surveillance and picture and sound recording of numerous communications. Criminals have also modernised their own modus operandi since new technical equipment have become available to them also. From the point of view shared by police and secret services, the development of technical capabilities for surveillance and recording of telephone and other conversations or communications by other technical means, replace to a certain degree the need for "live sources" and therefore leads to more efficient and more rational work. But, at the same time, this development makes the question of protection of privacy far more significant.

          First attempts to enforce more precise legal restrictions of the state’s freedom to wiretap cozens through the secret services and police have been reduced to prescribing the conditions and procedure of getting the approval for wiretapping, as well as to the creation of mechanism for control of these activities once they have been approved. Such efforts date back only to 1970’. The first states in this process were Western democracies, while in the state members of the Communist block no one even thought of the real restrictions of the state’s freedom in this field since preservation of the communist regimes depended to a great extent on thorough control of the citizens, on suffocating their anti-regime (democratic) struggle and preserving false legitimacy (communist idea includes fabricated wide people’s support to the regime). The dimensions are clearly proved by the amazing quantity of the files made by secret service, among which some have been opened after the fall of communism in a number of courtiers in Central and East Europe (but not in our country). The similar affinity for same kind of activities has also been shown, as well as dependence from them, in authoritarian regimes with different forms.

          Two subjects, interested in wiretapping (classic and secrete police) are directed by two goals, which are different to an extent. Classic police use the data collected through wiretapping in order to prevent "non-political" crime while secret police use them in defending the state order ("political crimes"), state security and protection of other national interests. These two goals are sometimes intersected (that is the reason for a reserved relative differentiation) and this is exactly the moment that makes the states not very eager to easily accept precise legal limitation of their "right" to wiretap. Basically, the states would accept more easily the idea of submitting classic police’s wiretapping to legal regulations than would they accept the same in referring to secret police.

          There is one more important difference that can be underlined when difference between classic police and secret police wiretapping is concerned. Classic (normal) police wiretap subjects - first of all - in order to enable processing cases before the court, which is to collect evidence so the criminal case can be started for the crimes already committed. On the other side, the goal of secret police (services), when wiretapping subjects, is rarely connected to the need of processing the cases and much more often to the need to prevent activities of extremists, terrorists or foreign countries, directed against the protected values (institutions of the state order, defence and security, vital economic and other national interests). Based on data collected in such a way, secret police analyses and assesses information, estimates the level of danger for protected values and carries out preventive measures or sends its assessments to the decision makers in foreign affairs or other state departments.

          According to the differences listed above, one more conclusion can be made of importance for this topic: "the subjects" of classic police are "classic" criminals, while secret police is interested in the activities of possibly dangerous persons and organisations which do not necessarily belong to the world of crime. Therefore, the information collected by wiretapping for the needs of classic police become mainly available - and subject of control - to a prosecutor office or a court, as well as to a convict, and after the trial has been completed there is no need to keep such information secret. Different is the situation with the information collected by secret police: such information are rarely forwarded to prosecutor office or a court and much more often they are kept in the archives of secret police.

          Starting from the characteristics of wiretapping, listed above, the judiciary of transitional countries should establish acceptable rules for harmonising the evident conflict of interest that occurs between the right of an individual to privacy and legal interests of a society to protect itself against dangers. This is not very easy to do but it is certain some attitudes and principles may help, particularly those developed in European laws and practice of Article 8 of the mentioned European Convention for Human Rights, which can be considered as European standard in this issue.

          Namely, Article 8 line 2 of the Convention prescribes there shall be no interference by a public authority with the exercise of the right to privacy except "such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others". The analysis of the bases for possible interference with the right to privacy brings us to the conclusion that they have been described in the cited article in a very general and unspecified way. This is exactly why new developments in the laws of European countries and in the practise of the European Court for Human Rights should be studied comparatively, where the cases when wiretapping may be permitted must be regulated by the law in order to make them predictable for the citizens and the procedure for applying wiretapping as a measure must be regulated by the law. The court or other organ will decide on any application of this measure in each particular case, on its start and maximum period when it is applied. Basic rules, also, prescribe that sanctions must be defined for the case of abuse or misuse of the measure, that the procedure for protection of citizens must be regulated by the law and that it must include the possibility of court protection, as well as the right of a citizen to be informed about the measure and the results of its application (the data collected).

          Existing legal regulations of wiretapping in our country have not been harmonised yet with the requirements listed above, particularly with some of these requirements, although the laws have been recently adopted. Namely, in the laws in effect there are two separate models of rules for wiretapping, one based on the Criminal Code  (2001) and closer to the European standard, while the other is based on the Law on Security Intelligence Agency (of Serbia) adopted in 2002, and far from the European standard. The first model includes also one sub-model, which is based on the Criminal Code, but differs in certain elements. This is the part regulating wiretapping according to the Law on Security Services in the FRY (2002). It is worth mentioning that unchanged Law on Interior Affairs is still in effect in Montenegro, still containing the rules for approval of wiretapping from the previous period. Those are the same rules included in the Law on Interior Affairs of Serbia, which has been abolished in the meantime.

          The Criminal Code regulates in details (Art. 232) the procedure for getting approval (order) for surveillance and recording of telephone and other conversations or communications through other technical means, as well as the crimes (cases) for which this measure can be taken. Investigative judge is authorised to give such an order. The order must include the data on the individual against which the measure will be taken, as well as the range and time of measure (three months make the longest period, which can also be expanded for three months more). The measure is taken by police, which is to forward the report and the records to the investigative judge. If data collected in this way are not necessary for the criminal case or are collected in illegal way or against the order given by the judge, all material collected is to be destroyed. Important obligation of giving information on collected data to the person who was wiretapped is the only issue that has not been clearly regulated by the law.

          Sub-model of the one explained above, adapted to the needs of secret services, is included in the Law on Security Services of the FRY (now Serbia and Montenegro). Beside the procedure for issuing order for wiretapping by the court, this law also regulates the right of the court to control the application of the measure, the obligations of the services in connection with carrying out the order, the right of the citizen wiretapped to be informed on that, as well as the authority of the parliamentary commission to control the steps taken by the service in this field.

          On the other side, the Law on BIA (Art. 13 to 15) prescribes the wiretapping or any other exception of the principle of protected privacy of letters and other means of communication is to be ordered by the head of the Security Intelligence Agency, after the decision has previously been brought by the court. "The court" is considered to be the president of the Supreme Court of Serbia, or the judge acting as the president, and not the court chamber or the individual judge leading the chamber. This is, in fact, the revival of the previous solution used in the Law on Interior Affairs of Serbia, Art. 13, which has been widely disputed and finally determined to be contrary to the FRY Constitution in 2001. Questionable is also the possibility that the president of the Supreme Court may decide on these issues, since the president (according to the changes and amendments of the Act on Judges ("Off. Gazette of RS", No 42/2002) may not perform the judge’s duties. Even worse, the Law on BIA (Art. 15) gives to the head of the Agency authority to order wiretapping himself, in the case of emergency. The same law contains no authority for the court or some other organ to control the measures applied nor does it regulate any obligations BIA might have toward the citizens, in connection with the information collected.

          The model of the rules for wiretapping performed by the BIA, which has been described here, basically differs from the one regulated by the Criminal Code and the Law on the Security Services of the FRY and is not in harmony with European standard. The creators of the BIA Law obviously strived for absolutising another nature of wiretapping performed by secret police, which must not however be so rigid in legal expressions nor may it stay free from exterior control, nor may deprive citizens of the legal protection of their privacy. The carriers of the executive and judicial power, elected on December 28th, are obliged to check existing regulations and to change them, where the model from the Law on Security Services of the FRY may be used as an example.

        • Tags: wiretapping, human rights, human security, Serbia, security services, FRY
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