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          In July of this year, the Yugoslav Parliament and the Legislature of the Republic of Serbia adopted laws on the federal and the republican security services in a matter of only 16 days. The passage of both laws, regardless of their quality, is an important landmark. These laws signified a final break with the undemocratic practice that has lasted for several decades. Namely, since the end of World War II till now, the federal and the Serbian secret police functioned in an almost complete legal vacuum. The Yugoslav Law on the Bases of the State Security System adopted in 1984 was the only legal regulation governing this domain. That law was a typical off-shoot of the communist era in every respect; it regulated only "general (read unessential) issues" and left it to the executive authority and the security services' top officials to regulate this entire domain of the law with their internal (i.e. secret) instructions.

          The Law on the Security Intelligence Agency, which the Legislature of the Republic of Serbia adopted on 18th July, was published in the "Official Gazette of the Republic of Serbia", No. 42, 19th July, and it came into effect on 27th July 2002. This law provides for the formation of a Security Intelligence Agency (hereafter: BIA) and the present Department of State Security, till now a section of the republic's Ministry of the Interior, will separate from that ministry within 90 days and become the BIA. The only activity covered by the earlier Department of State Security the ministry will deal with in future is to provide personal security (i.e. of certain republic state officials).

          The BIA has the status of a special republic organisation and is under the full jurisdiction of the government of the Republic of Serbia. Its director is appointed and recalled by the government and he is authorised to issue internal instructions to define more closely certain questions regarding the BIA's internal organisation and method of functioning (Article 5. to 7 of the law).The activities of the BIA are grouped in three units: (1) the protection of the Republic of Serbia and the discovery and prevention of activities aimed at undermining or overthrowing the constitutionally established order of the Republic of Serbia; (2) investigating, collecting, processing and evaluating security and intelligence data and information that is important for the security of the Republic of Serbia, and informing the relevant state organs about this data; and (3) other activities defined under the law (cooperation with the organs, organisations and services of other states and so on).

          As for the manner of carrying out the tasks of the BIA, the law offers only a few solutions (Articles 9. to 16); each of which can be subjected to serious criticism.

          Firstly, the law prescribes that in performing the tasks within its authority, the BIA applies "the appropriate operative methods, measures and actions, as well as the appropriate operative and technical means" for collecting data and information (Article 9), in which it does not state which methods, measures, actions and means these are, nor how or under what conditions they can be applied.

          Secondly, Article 10 establishes the authority of the BIA members "to seek and obtain intelligence, data and professional assistance that are important for clarifying facts connected with the performance of activities within the domain of the Agency's business" from the state and other organs. Next, it says that no one can be forced into giving assistance, providing information or data, but that "the withholding of or refusal to give assistance, information or data must be based on reasons established by the law". This solution obviously deviates from the principle of voluntariness because it binds not only the state organs but also legal entities and citizens to cooperate with the BIA, which is obviously in collision with private interests and notions of the freedom of individuals.

          Thirdly, the BIA is obliged to process, keep and use the collected information and documentation and keep appropriate records of the activities within its authority, and the government is authorised to prescribe the manner of keeping these records, processing, keeping, using, protecting and handling the information and documentation (Article 11). As one can see, the legal definition of the kind of records the BIA can keep is missing, there are no provisions governing what is to be done with personal data, nor the right of citizens to be informed about this data, nor who will supervise the methods of the BIA's work in this sensitive area.

          Fourthly, the members of the BIA have been given all the powers of a classical police force when working on the discovery, surveillance, documentation, prevention, suppression and breaking off of acts with the intent of organised crime and criminal offences with a foreign element, internal and international terrorism and the most serious forms of crimes against humanity and international law, and against the constitutionally established order and security of the republic. To put it mildly, this solution is questionable not only when one compares it to foreign experience (according to which the secret police cannot perform police duties, nor apply physical coercion), but also from the aspect of confusing the authorities of the police and the BIA.

          The fifth and most controversial point is the authority to take measures that depart from the principle of the inviolability of the privacy of letters and other means of communication (Articles 13 to 15). It is envisaged that the director of the BIA orders measures, like wiretapping or other digressions from the said principle, on the basis of a prior court decision. However, in this case, the word court implies the President of the Supreme Court of Serbia or the judge who deputises for him, and not a judicial council or an individual judge who works in court. This is, in fact, a revival of the earlier solution from the Law on Internal Affairs, which was, and still is, broadly contested. This way, the Law on Criminal Procedure is neglected, which in Article 232 prescribes in detail the procedure of granting approval for surveillance and tapping telephone and other conversations or communication by other technical means and authorises the investigating judge to give such approval. Still worse, in the event of an emergency, Article 15 of the law on the BIA, empowers the director of this agency to disregard Article 14 of the law and issue an order for the same measure, himself.

          The sixth point, the provisions of Article 16 make it possible for the BIA to take over and perform tasks within the domain of the Ministry of the Interior's powers "when special reasons of the security of the Republic of Serbia require this".

          Supervision of the BIA's work boils down to an obligation to submit two (half-yearly) reports on its work to the Serbian Legislature and government (Article 17), as well as the obligation of the BIA to abide by the government's principled stands and guidelines (Article 18). Provisions on the methods of government and legislature supervision have been omitted so one can assume that government and parliamentary control will be performed in the hitherto manner, about which one can say nothing good. There is no mention of any role public influence might play in the work of the BIA.

          The law mentions only a few things in connection with the members of the BIA, whose rights, duties and responsibilities are governed by the regime that is valid for employees of the Ministry of the Interior (Articles 20 to 23). Besides that, it is clearly underlined that they cannot be members of political parties that they do not have the right to trade union organisation, or the right to strike. The only real exceptions are the clauses under Article 25, according to which an active and former member of the BIA, as well as a co-worker of this agency (informant or other associate) have the right to free legal assistance when criminal procedure is being conducted against them "for applying the appropriate measures, i.e. applying means of coercion". With respect to this clause, one may say that in the countries that recognise the institution of providing legal assistance to accused policemen and members of secret services it is not customary for those who have violated the law and overstepped their competences to enjoy such assistance without reservation so that this question is approached with far more caution, in view of the public's reaction and what can be referred to as good taste and measure regarding the responsibility of the public services. What is even more striking is that the law says nothing about the responsibilities of the members and co-workers of the BIA, nor about the right of citizens, who suffer damage as a result of their illegal acts, to compensation and court protection.

          The law on the BIA was passed in a hasty procedure and without consulting the non-governmental sector or anyone else outside the government. The government unilaterally abandoned its earlier cooperation with NGO's and experts in the phase of preparing the preliminary draft of this law, so that the law was drafted by people from the Department of State Security and government services, obviously according to their own standards and feeling for the needs of the citizens and civil society. It is a law that clearly favours the public interest as opposed to the interest of the individual and it largely remains on the track of previous secret police practice. Furthermore, the BIA has taken over the legacy of all its predecessors: the OZNA, UDBA and the SDB, because it has retained their files and archive, as well as their personnel and network of associates. It is simply amazing that the members of the government and the legislature deputies did not glance at the 16-day older text of the Law on the Security Services of the Federal Republic of Yugoslavia, which is of incomparably better quality and more suited to the situation in which the institutions of civil society and democracy should be built. At the same time, the officials and deputies of the federal and republic authorities are mostly the same people.

           

          Belgrade, July 30th 2002

        • Tags: security services, Law, FRY, Serbia, parliament, intelligence services, bia, law on Bia
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