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          Predrag Petrović, Research Coordinator in the Center for Civil- Military Relations

           

           

          After (unwilling) independence obtained in 2006, the Republic of Serbia got a chance to modify the system of national security (and within it the security-intelligence system) in a holistic way, and in accordance with Serbia’s capabilities and needs, thus in the accordance with the present challenges, risks and threats. Instead, at the end of 2007, in order to hold the elections for the President of the Republic“[1] the National Parliament adopted the Law on basis of organization of the intelligence services of the Republic of Serbia.  This law defined position of functioning of the Council of the National Security, security services of the Republic, and prescribed the ways of direction and coordination of the work of security-intelligence services, as well as the mechanisms of their control[2].

           

          However this law foresees that functioning, tasks and competencies are going to be prescribed later as the other questions important for the functioning of the intelligence services, with the separate laws on civil and military intelligence services.[3] According to the words of the creator of the Draft in this way “the specific status of the civil and military intelligence services is respected”[4].  Therefore, after nearly two years from the adopting the Law on basis of organization of the intelligence services of the Republic of Serbia and seven years after adopting the Law on Intelligence Services of the FRY, the Ministry of Defense made a Draft of the Law on Military Intelligence Agency (hereinafter: MIA) and Military Security Agency (hereinafter: MSA) thus offered it to the public discussion.

           

          The following text, as a result of the “first reading” of the Draft of the Law, is a contribution to the public discussion. Our aim is to point the most important changes that the new Law will introduce, in comparison with the old solutions from the Law on Security Services of the FRY, as well as to highlight the provision which should be improved. Furthermore, we shall present to the reader some dilemmas for which there are no final solutions, in hope that the public discussion would help to find them.

           

          Two military agencies instead of one

           

          The Draft of the Law kept the present organizational structure of the military security-intelligence system. Thus there are still two military agencies: the MSA which is responsible for the counterintelligence and security protection of the Ministry of Defense and of the Army of Serbia, and the MIA, responsible for the intelligence services and for issues of importance for the functioning of the system of defense. Therefore, the idea to merge functions of the MIA and the MSA and to form one agency was dismissed, which the Strategic Review of Defense (2007) foresaw to realize in the period 2008 - 2010. [5]

           

          The idea of merging intelligence and the counterintelligence functions in one agency (civil and military) was present for many years in the professional public. Moreover, many of the Governments of the former post communist countries applied these solutions as a universal recipe in the process of reform of security services. For example, Slovenian SOVA (Slovenska obveščevalno-varnostna agencija), Croatian SOA ((Sigurnosno-obavještajna agencija) and VSOA (Vojna sigurnosno-obavještajna agencija), Bosnian OSA/OBA (Obavještajno sigurnosna/bezbjednosna agencija) and others were formed in such manner. Proponents of this solution consider that the merging of intelligence and counterintelligence services represent an optimal solution for the smaller countries which have an expressive defensive strategy of national security.  Furthermore, this model surpasses former problems of coordination of two services during their work, deriving from transnational nature of modern challenges, risks and threats. For example, in the case when the suspect leaves the country, it also leaves the responsibility area of the counterintelligence service, thus becoming the responsibility of the intelligence service. In such case we could witness the problems in the coordination of the services.

           

          Although intelligence and counterintelligence fields have much in common, they demand relatively different skills and knowledge from their employees, thus causing the profile of the members of the intelligence and counterintelligence services to be different, what is the main weakness of this model? Because of that many of the opponents of this solution (especially those who worked in the security-intelligence services) consider that it would not be good to merge these agencies, pointing out that that is the reason why some states which already adopted this solution are considering splitting again counterintelligence and intelligence service.

           

          In this case there is no ideal solution - the success of one model depends on the concrete conditions and heritage of the country where the model is applied. Because of that the working practice of the military services and intelligence will show whether the merging of the MIA and the MSA was wrong.

           

          Proactive audio surveillance and monitoring

           

          One of the great novelties of the Draft of the Law is that now the MSA collects the data using special measures and procedures “exclusively in proactive purposes, i.e. with a goal to prevent the threats which are directed towards the Ministry of Defense and the Army of Serbia....”.[6] The MSA can use following special measures and procedures in proactive purposes: secret cooperation with the private individuals; operational penetration into organizations, groups and institutions; secret obtaining and  purchase of documents and objects; secret insight in records of personal and related data; secret following and surveillance in open space and public places with the usage of technical equipment; secret electronic surveillance of the telecommunication and information systems in purpose of obtaining data about the telecommunication traffic and the location of the user, without insight in its content; secret recording and storage of conversations in open and closed spaces with usage of technical equipment;  secret surveillance of letter content and of other means of communication, including the secret surveillance of the content of telecommunication and information systems; secret surveillance and recording of the interior of facilities, closed spaces and objects. As the last three measures of secret obtaining of data are seriously endangering human rights, the approval of the Supreme Court of Serbia is needed for the application. The maximum length of such measures is six months with the right of one extension.

           

          We can assume that the aim of the writers of the Draft of the Law is to overcome weaknesses of the current Law on Security Services of the FRY according to which the MSA does not have the right to apply special measures and procedures in proactive purposes, but only with a goal of processing before the court of certain legally prescribed criminal offenses.  The part of the professional public as well as the representatives of the MSA expressed their opinion in few occasions that it is unthinkable that one security-intelligence agency does not have the right of proactive audio surveillance. Without an intention to deny this argument we should mention why so called proactive audio surveillance is disputable from the standpoint of human rights.

           

          Namely, there are two main purposes of the secret collecting of data which is in present times one of the activities of the numerous security-intelligence services.  The first assumes that the security agencies are collecting the data in order to help processing criminal offenses before the courts, or more precisely to identify the suspects and to collect the evidences for criminal proceedings[7]. The data collected in such way is available both to courts and to suspect, and often after the case is closed, they also should not be archived. The second purpose of the secret collecting of data is rarely connected with the proceeding of cases. More often it is connected with the need of the security agencies to prevent eventual threats of the terrorist and extremist activities and/or the activities of foreign states. Based on the data collected in such a manner, the security agencies could prevent or eliminate security threats and risks, without launching the process before the court. However, the problem lies in the fact that this data are also unavailable to the courts, but in most of the cases are stored in the archives security services and hidden from any control.[8]

           

          Therefore, proactive audio surveillance and following would give much larger autonomy in functioning of the MSA and more in accordance with the quintessential purpose of the security-intelligence service. But, from the other hand there is a possibility of the violation of human rights since it is implied that the services are forming data bases which are possible to archive even when there is no more real purpose for it. [9]

           

          The MIA is also allowed to work secretly even within the borders of Serbia

           

          The MIA is an intelligence service within the Ministry of Defense; therefore it is responsible to perform the intelligence activities important for defense of the country. As every other agency its field of work is out side of the country proper, in other words it collects the data abroad. However, according to the Draft, the MIA got the right to collect the data within the borders of Serbia, what is not usual solution for one intelligence agency. Hence the MIA collects data from the “state bodies, organizations and services, bodies of the autonomous provinces, bodies of the local self-governance, municipalities, towns, city of Belgrade and the organizations with the public authorization” (Article 26). Moreover, this Agency is allowed to secretly collect the data using the special measures and procedures, such as “collecting the data from the telecommunication operators regarding the traffic, location of the user and other data of importance from their jurisdiction” (Article 28).  The application of such measures is in competence of the director of the MIA or of the person authorized by him.

           

          Beside, the State bodies of the Republic of Serbia, legal entities or private individuals have an obligation to give all necessary help to the official of the MSA or the MIA in purpose of execution of the tasks from the competence of the MSA or the MIA (Article 34).  Therefore, these solutions extended the competencies of the MSA so that this Agency can collect data also in Serbia and from its citizens and (state) institutions; nevertheless its primary mission is to collect data of potential and real threats, activities and plans or intentions of foreign states and their defense forces, international organizations, groups and individuals (comment P.P.). However, what concerns even more is that the authorization for this type of data collecting gives the Director of the MIA and not of court bodies, what could seriously endanger human rights and freedoms of the citizens of the Republic of Serbia.

           

          Possibility of conversation recording between agents and citizens - is it a good solution?

           

          One of the important methods in which security services collect data is conversations that their officials perform with the citizens. Thus this Draft foresees that the MSA can collect data from the citizens with their approval. Moreover, “with the written approval of the person in question, the conversation could be audio and video recorded. Private individual with its signature approves the voluntarily aspect of the recorded conversation and its completeness”.

          Although such solution that the person in question has the possibility to choose whether the conversation would or would not be recorded seems as a “democratic” option, the experience of the neighboring Croatia tells us that this is not necessarily the case. Namely, there is a well known “affair Puljiz” - the case when the agents of the Croatian civil counterintelligence service talked with the journalist Helena Puljiz for few hours[10]. The talks between the agents and the journalist were recorded, although she did not give her authorization as it was prescribed by the Law on Security Services of the Republic of Croatia from 2002. Because of this case, the new Law on Security-Intelligence System from 2006 prescribed that all conversations between agents and citizens have to be recorded and kept by the security services, and be available to the legal and control bodies.

           

          Without an intention to make parallels between Croatia and Serbia and without pretensions to give an answer to the mentioned dilemma, we can ask ourselves whether the better solution is to record all conversations between agents and citizens, and to allow them to be available to the legal and control bodies in charge. Would we in such a way prevent potential misuses of the content of these conversations and protect the rights of the citizens?

           

          Who names the directors of the Agencies: President of the Republic and/or the Government of Serbia

           

          The important novelty in comparison to the present Law represents the fact that now the President of the Republic of Serbia has an important role in the process of naming of directors of military agencies. Thus, “the directors of the MSA and the MIA and their deputies are named and released from duty by the President of the Republic with decree, on the proposal of the Minister of Defense”[11], i.e. the Government, on the proposal of the Minister of Defense. However, from this formulation the role of the Government is not clear. Does the Government name the directors of the Agencies when there is no decision by the President, or perhaps when he is unable to do it? If we read the document more freely we can ask ourselves whether the president names the director of the MSA, and the Government the Head of the MIA. This ambiguity probably would mean nothing when the President and the Prime Minister come from the same political party. But, in the case of cohabitation, the ambiguities related to this issue could initiate an important political crisis and affect the functioning of the security-intelligence system of the Republic of Serbia.

           

          It is possible to find an explanation to this dilemma if we interpret this provision as following: the president appoints the directors when they are military officials, and the Government appoints the directors of the agencies when they are civilians. However, the problem with this interpretation is that the Draft of the Law prescribed that “ as directors of the MSA and MIA and their deputies could be appointed only those persons who had finished the General Stuff  specialization and have at least 9 years of working experience in the intelligence-security task within the system of defense” (Article 38, provision 6). It is not known to us if any civil person has finished the General Stuff specialization, consequently such person cannot become the director of the MSA or MIA.  That would mean that it is the President of Republic who can appoint the directors of the agencies by decree. In any case, it would be good to eliminate these ambiguities, and to clearly proscribe the duties of both the President and the Government in appointing military agencies’ directors.

           

          Finance matters of the military agencies are secret

           

          The article 59 of the Draft says that the data on financial and material activities of the MSA and of the MIA “represent secret data in accordance with the regulations which are organizing the field of protection of the secret data”. This provision do not exist in the Law on Security Services of the FRY, and since 2006 the budget of Serbia also include the budgets (certain parts) of the military security agencies, thus in this way they are available to the public. It is not known to us whether the transparency of the budgets of the MSA and of the MIA caused any negative consequences for their work, hence it is not clear why the writers of the Law have chosen this solution. Since the work of these agencies is financed from the State Budget of the Republic of Serbia (Article 59, Provision 1) there is a need for certain level of transparency in terms of money expenditure. For example, it is necessary to know which part of the budget is used for the functioning of the military agencies, and which are the principal expenses (e.g. the payments in comparison to activities etc.). We do consider that it is needed to present to the public a detailed budget which reflects all the incomes and expenditures of the security services, but we think that it is needed to present general budget items which would allow visibility of the expenditures.

           

          General Inspector’s hands are tide up?

           

          It is not possible to determine every single detail that is connected with the work of the security-intelligence agencies. Something like that also would not be good, because it would allow insight to too much data to the public about the ways in which agencies function. Therefore it is absolutely necessary to foresee good mechanisms of internal control. The most reliable information on illegal practices of some security or intelligence service would probably come from the agency itself. Because of obligation of reporting and correction of the illegal practices is very important. “In the same time it strengthens the position of the officials in the agency since it abets their care for the illegal performance”.[12]

           

          It is foreseen by the Draft that if the members of the agencies (but also citizens) perceive that there was a violation of constitutionality and legality, human rights and freedoms, professionalism, ratio in application of the competences and political and ideological neutrality, they can directly appeal to the General Inspector, without any consequences to their status. General Inspector is the main instance of executive and internal control of the agencies’ functioning. He is appointed by the Government on the proposal of the Minister of Defense, with the opinion of the Council for National Security, on the period of five years. He reports for his work to the Minister of Defense[13]. Duties of the General Inspector are, among others, to monitor: practical application of the principle of political and ideological neutrality in the work of the MIA and the MSA and their members; the legality of special measures and procedures applied during secret collecting of data; the legality of budget and other assets expenses; he determines the facts about perceived illegitimacies and malfunctions in the work of the MSA and the MIA and their members (Article 55). However, it is not clear how the General Inspector would manage to fulfill all of these prescribed duties. 

           

          Namely, in order to fulfill effectively all of the above mentioned tasks, it is necessary for the General Inspector to have a full insight in all reports and documents of the agencies, as well as to have the right of conversation with the heads and officials of the security-intelligence agencies thus to oblige the agencies to allow mentioned procedures and acts of control. However, the Draft of the Law, does not foresee something like this, hence it is justified for us to ask ourselves whether the General Inspector would be able to work in a effective manner. Indeed, the Draft of the Law says that “ the method of internal control of the MSA and the MIA, as well as the other issues important for General Inspector’s work, are prescribed by the Minister of Defense”[14]. This provision has left an open space for the possible solving of this problem. But, if we keep in our mind the comparative practice [15](for example the case of Croatia) it would be good to define solution to this issue by the Law.

           

          A step towards filling a gap in security-intelligence system

           

          Like the current Law on Security Services of the FRY, the Draft of the MSA and the MIA does not have any crucial drawbacks. The above presented negative sides of the Draft Proposal are rather dilemmas than essential problems. Important objections on this Draft Proposal are related to the lack of financial transparency, to extension of the competences of the MIA, competences of the General Inspector, as well as the lack of clarity who appoints the agencies’ directors - President or the Government. This Draft should be “dressed up” in technical-practical manner; hence it would be also good to remedy these four limitations. Furthermore, it would be also good that the proposing body of this Draft extends the deadline for the public discussion now limited on one month[16]. That would allow to considerate in more detail all limitations and dilemmas initiated by the public discussion, thus help to offer the better solutions.

           

          Adopting Law which regulates the military security-intelligence agencies would help filling the gap in the current security-intelligence system of Serbia, created with its partial regulation in 2007. It is still necessary to also adopt a new Law on the Security-Intelligence Agency and the new Law on Data Secrecy Protection, in order to complete the legal aspects of the Security-Intelligence System of Serbia. We hope that we would not wait few more years for these laws.

           

          References and the author’s notes

          [1]  Head V of the  of the explanation of the Draft of the Law on Foundation of basis of organizations of Security Services Regulation, Internet: http://www.parlament.sr.gov.yu/content/lat/akta/akta_detalji.asp?Id=583&t=P#

           

          [2] Law on Foundation of basis of organizations of Security Services Regulation, „Sl. glasnik RS“, no. 116/07.

           

          [3] Provisions of the Law on Security Services of the FRY and the Law on the Security-Intelligence Agency not opposite to the Law on Foundation of Security Services Regulation remained in power beside they were brought during existance former common state of Serbia and Montenegro.

           

          [4] Head III of the explanation of the Law on Foundation of basis of organizations of Security Services Regulation, Internet, http://www.parlament.sr.gov.yu/content/lat/akta/akta_detalji.asp?Id=583&t=P#

           

          [5] Strategic Review of Defense, pp.10-11, internet:  http://www.ccmr-bg.org/upload/document/strategija_odbrane_rs.pdf

           

          [6] Article 11 of the Draft of the Law, internet: http://www.mod.gov.rs/cir/aktuelno/nacrt_zakona/Nacrt_zakona_VBA_VOA.pdf

           

          [7] Often the purpose of this secret collecting of data is also called “police purpose”, since it is inherent to the work of police. However, because of the changed nature of present challenges, risks and threats, or in other words because of interconnection between organized crime, terrorism and extremism the security-intelligence services are today collecting data for both preventive acting and for processing of the criminal offenses before the courts

           

          [8] More about this topic in Bogoljub Milosavljević, Ovlašćenja policije i drugih državnih organa za tajno prikupljanje podataka: domaći propisi i evropski standardi, in Miroslav Hadžić i Predrag Petrović (eds.), Demokratski nadzor nad primenom posebnih ovlašćenja, CCVO, Beograd, 2008.

           

          [9] According to the Article 33 of the Draft of the Law “the types of registries, collections of personal data and the archive of the MSA or the MIA, the way of their management, approach, handling and protection, period of keeping, archiving and destroying, is regulated by the Minister of Defense, on the proposal of the director of the MSA or the MIA after the acquired opinion of the Council for National Security”.

           

          [10] At the time it was called Counterintelligence Agency (CIA).

           

          [11] The Article 38 of the Draft Proposal of the Law on the Military Security Agency and the Military Intelligence Agency.

           

          [12] Hans Born i Ian Leigh, Pravni standardi i najbolji načini nadzora obaveštajnih službi, DCAF, Oslo, 2005, p. 46..

           

          [13] Article 55 of the Draft Proposal of the Law

           

          [14] Article 57 of the Draft Proposal of the Law

           

          [15] See for example the Law on Security-Intelligence System of the Republic of Croatia, (Narodne novine 79/06), Article 107, internet: http://www.morh.hr/images/stories/morh_sadrzaj/pdf/zakon%20o%20sigurnosno-obavjestajnom%20nn79-06.pdf, retrieved: 01.07.2009.

           

          [16] In comparison, the public discussion on forming of the Serious Anti Organized Crime Agency in the UK lasted for more than a year. More about this: Segell, M.G., “Reform and Transformation: The UK's Serious Organized Crime Agency,” International Journal of Intelligence and CounterIntelligence, Volume 20, Issue 2 (2007), 217-239; Harfield, C.,  “SOCA-A Paradigm Shift in British Policing,” British Journal of Criminology, no. 46, (2006), 743-761.

          Translated by Igor Novakovic, CCMR Intern

        • Tags: draft of law, military intelligence, security agency, military, voa, vba, procedures, internal control
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