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    • The proposed solutions are a step backward in the legal regulation of the security sector

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    • Date: 01 February 2018

      Proposed changes to the law on defense, military, police and BIA introduce worse solutions than existing ones and if adopted they can lead to the collapse of the security system and jeopardize Serbia's European integration, it was concluded at the public debate organized by the Belgrade Center for Security Policy (BCSP) on February 1st 2018, in the Media Center in Belgrade. The reason for the public hearing was a series of proposed legal solutions that entered the parliamentary procedure in the previous few months, primarily the draft amendments to the Law on Police, the Law on BIA, the Law on Defense and the Law on the Army of Serbia, as well as the Draft Law on the protection of personal data.

      "By proposing these legal solutions we are taking a step backwards and tearing down what has been painstakingly achieved so far. There is a lot of bad trends that we noticed: the growth of discretionary powers of persons in the leading positions in the security sector, the strengthening of security institutions to the detriment of citizens' rights and blurting of their competencies, and the reduction of transparency reflected in the proposed legal solutions, as well as in the manner of their adoption. Laws are adopted speedily, without room for adequate public debate, in which the proposed solutions would be thoroughly examined," said Executive Director of the BCSP Predrag Petrovic.

      BCSP researcher Katarina Djokic assessed that it was positive thing that the state recognized the need to amend the laws on the army and defense, but that the proposed solutions were bad and potentially could be harmful. One of the controversial proposed amendments to the Law on Defense is also the determination of the confidentiality of a wide range of data.

      "We are talking about a lot of data and this proposal includes basically all the measures and procedures of the Ministry of Defense. Extending the scope of classified information is also problematic from the aspect of combating corruption, as previous research has shown that the risk of corruption increases, mostly due to insufficient competence of staff, " Djokic emphasized, without disputing the need of the defense system to protect certain data.

      Private security from the public budget?

      According to the BCSP researcher, there is a controversy in the fact that the Military Police will no longer have to hand over the civilians it captured to the civilian police, without delay.  One of the bad and potentially harmful solutions is the expansion of the military police powers in the civil domain and the strengthening of the discretionary powers of the Minister of Defense.

      "The Law on the Army proposes the extension of the Military Police powers, which, according to the Minister of Defense, will be able to provide security to persons outside the army system. By such a solution there is a risk that the Military Police will be turned into a private security that we all pay for, "Djokic emphasized.

      Djokic also referred to Articles 71 and 71a of the Law on Defense, for which the civil society started the abolition initiative. The controversial provisions of the law broadly determine the scientific-research areas of importance for defense, which does not favor the development of scientific-research activity in Serbia and is not practical from the point of loading capacity of the Ministry of Defense, Djokic assessed.

      Foto: Media centar
      Foto: Media centar

      Bad solutions can also be noticed in the amendments to the Law on Police, BCSP researcher Sasa Djordjevic said, reminding that the current Law on Police was adopted two years ago, when the Minister of the Interior announced serious changes, but now there is no explanation as to what happened in that period to justify such rapid changes.

      "Amendments to the Law on Police extend the discretionary right of the Minister to decide who can be employed, with no regards to the competition. Additionally, a circle of persons which can, without notice, be under a security check is spreading, Finally, the changes did not establish the functional subordination of the police to the prosecution, which is why the prosecution does not in practice control the course of pre-investigative and investigative proceedings," Djordjevic pointed out.

      In the field of human resources management, which was announced as a key aspect of the legal reforms that followed in 2016, a step back has been made, Djordjevic said. With new legal proposals, by the act on systematization, which is confidential and issued by the minister without explanation, it can be stipulated that there is no vacancy for a certain position.

      Security checks without notice

      Djordjevic also spoke about the problem of extending the circle of persons who can be subject to security checks, without notice.

      "The proposed solutions make it possible for the police to check the persons who are close to the persons that are under security protection, which means basically everyone. The regulation already prescribes who are the persons enjoying security protection, but nevertheless, the Bureau for the Coordination of Security Services, managed by the current Minister of the Interior, can also recommend the security protection of some people. A major flaw is the lack of obligation to inform the persons that they are under the security checks. In addition, the security and data protection service, directly subordinate to the minister, can perform security checks of employees in the Internal Control Sector. Members of this service are selected by a commission appointed by the minister. In this way, the independence of security sector is endangered," Djordjevic concluded.

      On the issue of functional subordination of the police to the prosecution, Djordjevic spoke about problematic aspects of the practice, where police officers are receiving different orders - from the superior and from the public prosecutor, and most often they comply with the order of the superior. Research has shown that the public prosecutor had to intervene in most cases in order for the policemen to act upon his order, with delays for which, in most cases, no justified reason was provided. Djordjevic concluded that the public prosecutor still does not conduct an investigation in practice de facto, which is why the BCSP proposes that article 18  should clearly state that the orders of the public prosecutor are binding and that the police act exclusively on his orders in the criminal proceedings.

      In addition to the Law on Police, Djordjevic underlined that the Law on BIA is another missed opportunity to regulate an important area in a comprehensive manner, and he believes that it is still the worst law in the security sector.

      Djordje Krivokapicfrom the SHARE Foundation praised the fact that the draft of the new Law on Personal Data Protection is largely in line with EU regulations. However, he pointed out that as many as 59 of the 89 articles of the law provide the exceptions to the rules relating to criminal proceedings and the protection of national security. As a result, it is almost impossible to fully discern what is to be applied in which case, Krivokapic assessed.

      "In this context, the question is how will we monitor the implementation of the Personal Data Protection Act. In any case, if we do not regulate this issue in a satisfactory manner, it can significantly impede the path of Serbia towards EU membership," Krivokapic stressed.

      Milan Lipovacfrom the Center for Applied Security emphasized that it’s all about regulating a specific area with principles that are often conflicted, such as the principles of legality and effectiveness, and conspiracy and transparency. He pointed out that many of the introduced regulations made the work of the security sector more difficult and that members of the security institutions themselves were able to regulate certain issues by sub-legal acts.

      "The security system does not function in a vacuum, it is in the real environment, and it needs to be analyzed in that environment. Although I agree that legal changes have certain shortcomings, I do not think that we should underestimate civil servants that are working in the security system," Lipovac said.

      Alongside with the representatives of the diplomatic corps, media and civil society organizations, the public discussion was attended by representatives of the Military Trade Union of Serbia, the Office of the Commissioner for Information of Public Importance and parliamentary parties, who drew attention to the problematic aspects of the draft Law on the Army in the field of human resources and the professional soldier’s right to strike, the issue of party affiliation and the need for video surveillance.

      The BCBP drew public attention to the lack of legal regulation of the security sector in Serbia and contributed to the debate on constitutional reforms, which has so far been focused exclusively on the judiciary.

      The next public debate on this topic, entitled "Why is the Security System a Place in the Constitution?" will be organized by BCSP on February 13, 2018, also in the Media Center.

       

      Translated by BCSP Intern Mijat Kostic

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