Special measures for covert data collection infringe upon fundamental rights and therefore it is vital that they are implemented only under the circumstances defined by law. To this end, it is necessary to establish a comprehensive external oversight of implementation of special measures is. ...
The coalition prEUgovor has been monitoring Serbia’s progress in regard to the adherence to political criteria for EU membership and policies covered under Chapters 23 (Judiciary and Fundamental Rights) and 24 (Justice, Freedom and Security) of the European acquis in the negotiation process.
BCSP researchers Maja Bjelos and Isidora Stakic in this paper analyse the future of the Civil Protection units in North Kosovo that, according to the Agreement reached on 26 March 2015 between Belgrade in Prishtina, are to be dismantled and their personnel integrated into Kosovo’s institutions.
Parsimonious legal framework and parliamentarians’ reluctance to utilise their powers have impeded parliamentary oversight of police work. Hence, the parliament does not have a significant role in building police integrity in Serbia.
Increasing the transparency and accountability of the police is not viable if the Serbian public are made aware of current crime rates and the effectiveness of the police only by the Minister of Internal Affairs.
For better understanding of civil democratic control in France, we should certainly remember the specific historic circumstances in which its system and institutional frame were established. After the Second World War, at the end of ‘40s and beginning of ‘50s, France entered the era of disintegration of its colonial imperium and rapid erosion of its economic and political power and influence on the main streams of international relations. At the same time, particularly with its useless efforts to resist or at least control the decolonisation process, specially in the Middle East and in the north of Africa, France experienced severe economic and social conflicts and political disturbances which, together with disloyalty of its colonists in Algeria and irregular actions of the French armed forces, led the country to the state of permanent political instability during the second half of the ‘50s. De Gaulle’s becoming president, the new Constitution which was passed on October 4th, 1958 and the announcement of the Fifth Republic were the historical moments regarding the establishment of the basic preconditions for legal state, regularity of elections, the actions of all authorities and their substitution and establishing full, efficient civil and democratic control of the armed forces, within this frame.
We should also remember the fact that France had been integrated in all economic and military-political structures of Euro Atlantic states and, in the meantime, became one of its most powerful and influential member, in terms of economy and politics. However, it stayed out of the NATO military structure and remained, to this day, devoted to the de Gaulle’s concept of autonomous use of the armed forces as well as to the project of European security and defence. Starting from these key determinants, as well as from drastically changed geopolitical and military strategic in Europe at the beginning of the 1990s, France began radical questioning and redefining its national strategy of defence and reform of the armed forces.
Since the publishing of the famous White Book at the end of 1994 and passing the first Programming of Armed Forces Act 1997-2002 and the second Programming of Armed Forces Act 2003-2008, France has already carried out the professionalization of the army and other large reforms in the system of national defence and the armed forces, in the structure of commanding, training and using the armed forces, in modernisation their equipment and the reconstruction of its military industry. France expects to create independent, respective, up-to-date equipped and highly trained armed forces until 2015, forces which will be compatible to security challenges in the modern world as well as to the country’s own strategic interests and global ambitions.
I LEGAL FRAMEWORK OF THE CONTROL OVER THE ARMED FORCES
The Constitution of the Fifth Republic adopted in 1958 and the Law (Ordonnance) No 59-147 adopted on January 7th 1959, regulating the global organisation of defence, founded the basic legal framework for the mechanism of civil democratic control of the armed forces in France. Great number of laws and other acts, contemporary reforms included, brought certain adjustments and modification referring to the names and functions of some instruments or institutions, but the bases and the framework of the control mechanism were not significantly changed. Moreover, they kept the supremacy of the civil authority over the army as a crucial prerequisite of civil democratic control. The Constitution (Art. 15) defines the President of the Republic as the Supreme Commander of the Armed Forces (le Chef des Armees). The President of the Ministers Council (Prime Minister) is, again according to the Constitution, entitled to "dispose of the armed forces" (Art 20) and to "be responsible for the national defence" (Art 21). Therefore, the government has the constitutional authority to create the policy of the national defence and the Defence Minister is responsible for carrying it out, under the Prime Minister’s authority. Finally, the French Parliament (consisting of the National Assembly and the Senate), has the constitutional authority to pass the laws referring to defence and the armed forces, vote for the acts on the state of war and control the government’s actions in the defence sphere, which provides all essential prerequisites of the real democratic control of the armed forces.
II INSTITUTIONAL MECHANISM - SEPARATION OF JURISDICTION
French Constitution defines the President, Prime Minister and Parliament as the main centres of the mechanism of civil democratic control of defence and the armed forces. The Constitution, the Law No 59-147 passed in 1959 and other acts define the institutional basis, instruments and separation of the authority which enable these main centres to fulfil their functions and responsibilities efficiently. The President, as the Supreme Commander, "chairs the high councils and committees for national defence" (Art.15 of the Constitution), in the case of close and serious risk for the country he "takes over the necessary measures..." (Art.16 of the Constitution), which includes supreme command over the armed forces.
Taking these responsibilities, the President relies on high councils and committees for defence, as well as on his Special Headquarter of the President, consisting of high generals, admirals and special officers from all branches of the armed forces. The President chairs the High Defence Committee (consisting of: the Prime Minister, ministers of Foreign Minister, Interior Minister, Defence Minister, as well as the ministers of finance and economy; the others can also be invited by the President) and the Defence Committee (which, basically, includes all members of the High Defence Committee), when the decisions are brought on the fundamental basis of the general organisation of defence and on the most important questions of commanding armed forces in wartime or in the operations abroad within the international mission.
The Prime Minister can, also, chair the Defence Committee (or he can deputize the President) when it decides on the general questions of defence, and particularly on the issues of general organisation of defence. When the military aspects of defence are being decided on (for example, defining of the defence goals, general distribution of forces, plans of their use or equipment), the Prime Minister is exclusively authorised by the law to call and chair the Core Defence Committee, which can make daily, operative decisions and solutions about all important issues of the organisation and the use of the armed forces.
The Prime Minister has the continuous oversight, control and the influence over the armed forces through the Defence Ministry, first of all, but through several other government and defence institutions such as: the General Secretariat of the National Defence, Ministers’ Committee for Intelligence, International and Strategic Affairs, State Protection and Security Agency, Technology and Delicate Transfer Agency, Central Service for Information Systems Security and others.
The Prime Minister has the most direct and complete control through the Defence Ministry, in charge for the government policy in this sphere, which means through Defence Minister who has authority de jure and de facto over all commands, units and institutions of the armed forces. The Defence Minister is responsible for their security as well as for their functions and tasks, as stipulated by the regulations. Directly responsible before the Defence Minister are: the Commander of the United General Staff of the Armed Forces, General Delegate for the Arms, commanders of all branches of the armed forces (Infantry, Navy and Air Forces), General Director of the National Gendarmerie and the Chief of the General Inspection of the Armed Forces.
Beside these, most important institutions, the Defence Minister relies on other institutions in direct end efficient control of the performance in the government’s measures and actions referring to defence and the armed forces. Those are the managing and counseling institutions of the Defence Ministry, such as: the General Foreign Intelligence Agency, Defence Protection and Security Agency, Ministers’ Delegation for Defence Restructuring, Delegation for Strategic Affairs, High Council for Military Service and Economic Council of Defence. In a word, there is no significant defence topic or the function of any component of the armed forces which are out of permanent, direct or indirect, control of the Defence Ministry.
Finally, speaking about the Parliament, its position and the role in the mechanism of civil democratic control of defence and the armed forces are, basically drawn from its constitutional authority: adopting laws regulating defence and the armed forces on one, and control of the government activities and measures in this sphere, on the other side. For legislative authority of the Parliament, it is certainly important that it does not mean bare voting for the laws regulating defence or the armed forces, as prepared by the government. Both chambers of the Parliament - the National Assembly and the Senate are institutionally equipped (beside the standard MPs’ questions, the Ministry’s replies and the government’s reports) in order to: discuss draft laws prepared by the government - competently, patiently and in details (which happened with the laws on programming the armed forces, the laws on the defence budget, etc.; the chambers can also propose draft laws (Art. 39 of the Constitution) based on the initiative given by the deputies of the Assembly or by the members of the Senate). The Parliament also has other institutions which it uses for its legislative function and as means of control and getting information: Commission for Defence and the Armed Forces (of the National Assembly); Commission for Foreign Affairs, Defence and the Armed Forces (of the Senate) and Special Parliament’s Envoy for the Defence Budget. Both Parliament commissions have a very wide authority, guaranteed by the law, in gaining relevant data and information important for their work. Let us emphasise particularly so called hearings of the responsible officials from the Defence Ministry or the chiefs of the general staffs before the commissions, or "the investigation on the ground" which is the means of getting information commissions use for their efficient work, not only in the legislative activities but as a permanent control of the government’s and Defence Ministry’s measures and activities in this sphere. Special Envoy for the Defence Budget has very wide authorities in gaining all the necessary information from all government institutions, the Defence Ministry or the Armed Forces. He formally enables the Parliament to control and have influence over all vital issues of the organisation, equipping, setting and the use of the armed forces in the country and abroad, within the international missions.