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          • Year: 2017
          • Comments on the Draft Amendments and Supplements to the Law on Security Information Agency (BIA)

          • This article is (unfortunately) part of the series on the amended amendments to the Law on BIA, which approaches the partial and reactive way in the regulation of this important area, emphasizes the BCSP Executive Director Predrag Petrovic, pointing to the remaining controversial positions of the aforementioned draft law.

        • Alignment with the new-old Law on Police in the area of human resources

          At the end of August, the Law on Amendments and Supplements to the Law on Security Information Agency, regulating the employment status of members of the Agency, was submitted to the National Assembly of Serbia to be adopted by use of urgent procedure. The changes were caused by the fact that the still-valid Law on Security Information Agency doesn’t regulate this area in detail, instead referring to the Law on Police: “Provisions applicable to the employees of the ministry in charge of internal affairs shall also apply to the rights, duties and responsibilities arising from employment of the members of the Agency” (Article 20, paragraph 1). At the beginning of February 2016, the new Law on Police came into force, regulating human resources management in a more transparent manner. This was not in line with the principles of operation of security and intelligence services, causing the need for different regulation of this area.

          The security of Serbia has been vulnerable for a year and a half?

          While the above reasons for the changes are not disputable in and of themselves, what is problematic is the fact that we had to wait a year and a half for them. After this period, the current Draft was submitted for adoption by urgent procedure, on the grounds that otherwise the Agency would not be able to effectively protect the constitutional order and the security of the Republic of Serbia, which could have detrimental consequences for the safety of citizens and the exercise and protection of their freedoms and rights. If we accept this argument, it means that in the past year and a half the citizens of Serbia suffered adverse consequences because the Law on Security Information Agency was not amended on time. Moreover, although the Draft Law was submitted to the Assembly for adoption by emergency procedure on 30 August 2017, it has not yet been adopted - as of 13 December 2017.

          Even more important criticism of this Draft Law concerns the fact that the approach of the decision-makers in regulating this area is reactive, forced by external circumstances. The immediate reason for this was the adoption of the new Law on Police. When the Law on Security Information Agency was previously amended, in June 2014, this was done because it had to be aligned with the decision of the Constitutional Court of Serbia. Instead of regulating the security and intelligence system in a comprehensive way, or at least normatively regulating the most important security service - the Security Information Agency - in accordance with the needs of the security of citizens and the state, Serbia had resorted to mending the Law on Security Information Agency. Examples of comprehensive statutory regulation of this area could have been found in both the countries in the region and the developed democracies. In addition, last year BCSP drafted a Model Law on Serbian Security Services to assist the decision-makers in Serbia in the normative regulation of this area, or at least urge them to think in that direction.

          Although we believe that it is necessary to adopt a comprehensive law, in the remainder of the text we will put forward suggestions for improving the existing Draft Law on Amendments and Supplements to the Law on Security Information Agency. However, we will also offer draft solutions that were not covered by the current Draft Law, regarding the area that is the main subject of the amendments: human resources.


          Comments on individual provisions of the Draft Law


          No possibility to establish individual responsibility

          Article 1 of the Draft Law on Amendments prescribes that the Act on Internal Organisation and Classification of Job Positions in the Security Information Agency is passed by the Director of the Agency, with the prior approval of the Government. Paragraph 2 specifies in detail what this Act regulates. However, the significant deficiency of this provision is that the legislators have failed to clearly provide that the Act must regulate these issues in such a way that individual responsibility in the performance of duties can always be established. Such a provision is present, for example, in the Croatian Law on Security and Intelligence System (Article 67, paragraph 1).

          Unconstitutional secrecy

          Furthermore, paragraph 3 of the same Article stipulates that all the information contained in the aforementioned Law represent classified information, which in fact renders immediately this entire document secret. Said solution, however, is not in accordance with the Data Secrecy Law, which clearly stipulates that data and information may be marked as confidential, but that their carriers may not. Documents cannot be marked as secret in advance, and in their entirety. Furthermore, a single document can contain both secret and public information at the same time. This provision of the Draft Law is therefore redundant, since the person authorised to determine the confidentiality of the data will establish, in the process of adoption of this Law, which information contained in said document are secret and what level of secrecy they are to be assigned, in accordance with the Data Secrecy Law. The Data Secrecy Law establishes a uniform system of determining and protecting data that are of interest to Serbia's security, and any solutions that do not comply with said Law undermine the unity of the system.

          The Security Information Agency is stronger than the courts

          Article 20v paragraph 1 stipulates that to gain employment in the BIA or be returned to work based on a final [unappealable] decision a person must first undergo security vetting. The fact that the final decisions of the state authorities are conditioned by the Agency's security vetting is highly controversial, as it places the Security Information Agency above the courts. Final decisions may be challenged, but this may be done only by way of extraordinary legal remedies in court proceedings, not by administrative, operational actions of state agencies. It is therefore necessary to delete the part of the provision that governs the return of a person to work and his/her security vetting.

          Unregulated security vetting

          Article 20v paragraph 2 stipulates that security vetting shall be carried out with the prior written consent of the person involved, which is provided by filling out and signing the questionnaire on identification data, using the form defined by the Director of the Agency. This provision of the Draft Law is unconstitutional because the Constitution of the Republic of Serbia, in Article 42 paragraph 2, prescribes that the collection, keeping, processing and use of personal data are governed by law.

          There are three possible solutions to this issue. First, in this provision it is possible to refer to The Data Secrecy Law, i.e. to prescribe that security vetting required for employment shall be carried out within the procedure envisaged for access to classified information marked as “top secret.” If this does not correspond to the specificities of the Agency, then the Draft Law must define the content of the questionnaire on identification data, that is, what personal information is to be collected, in what way, and from which sources. For example, this solution is present in the Law on Police (Articles 140-144), but it is not completely regulated because the Law on Police requires that content of the Questionnaire on Identification Data be prescribed by the Law on Records and Data Processing in the Area of Internal Affairs, which has not yet been adopted.

          Of course, we should not ignore the fact that the best solution for Serbia would be to regulate security vetting in a single law, as Croatia has done a long time ago.


          Human resources issues that are not regulated by the Draft Law


          The untouchable Director of the BIA

          Although the Draft Law on Amendments and Supplements to the Law on Security Information Agency focuses on the human resources in the Agency, it fails to regulate this area in a comprehensive manner. In the Security Information Agency, the Director of the Agency is at the very top of the human resource management system, i.e. he is granted enormous powers within this system. He performs the following activities:

          - Adopts the Act on Internal Organisation and Classification of Job Positions in the Agency, with the prior approval of the Government;

          - Decides on any person's commencement of employment in the Agency, in a decision;

          - Decides on the form used to determine the content of the questionnaire on identification data used for security vetting;

          - Establishes the procedure, programme and method of attending vocational training, professional development and special professional examination;

          - Defines the procedure, criteria and method of performance evaluation of the members of the Agency;

          - Determines the salary calculation coefficients, with the prior approval of the Government.

          While these solutions are not unusual for security and intelligence agencies in the region, or in developed democracies, what is unusual is the fact that important issues pertaining to the

          Director of the Agency are not prescribed by law. If the law prescribes the details of the requirements that must be fulfilled by persons who are seeking employment in the Agency and the manner of promotion of members of the Security Information Agency, it would be logical to expect that it would also specify requirements that must be met by persons that may be appointed to the position of Director of the Agency. This solution is present in the Law on Military Security Agency and Military Intelligence Agency, which stipulates that directors of the Military Security Agency and the Military Intelligence Agency and their deputies may be persons who have completed their general staff specialisation and have at least nine years of experience in intelligence and security work in the defence system. Therefore, it should be prescribed that the Director of the Security Information Agency must also have 9 years of experience in intelligence and security work, or in other activities involving the security sector.

          Likewise, most of the laws governing civil security and intelligence agencies of the countries of the region, as well as the EU states, contain provisions stipulating that the executive must consult the parliamentary committee charged with security services oversight prior to appointing a Director. In addition to the above, in Croatia it is also stipulated that the appointment of the Director of civilian security service (SOA) requires the approval of the President and Prime Minister of Croatia, which serves to respect the nature of the Croatian political system. In the Model Law on Security Services, BCSP envisaged that, in addition to obtaining the opinion of the relevant parliamentary committee, it would also be necessary to obtain the opinion of the President of the Republic. Introduction of a higher or several instances whose opinion or approval must be obtained prior to the appointment of the Director of the Agency assigns additional importance to the job position and reduces the possibility of arbitrary appointments. It is important to also indicate the length of the mandate of the Director of the Agency (which usually lasts 4 to 5 years), and whether he or she can be re-elected to the post. The law must also define the time frame within which a Director is to be appointed. The laws on civil security services in the EU states also provide an itemised list of Director's professional duties, which actually clarifies what it is that supervisory bodies can, and need to, control in regard to Director performance.

          Furthermore, neither the existing Law on Security Information Agency nor this Draft Law on Amendments and Supplements contains any provision on Deputy Directors of the Security Information Agency. The requirements and procedure for the appointment of Deputy Director are usually the same as in the case of the director, while certain countries - such as Croatia - also have an additional requirement that the appointment of a Deputy should be made on the proposal of the Director of the Agency. Finally, it is common practice in the laws on security services to specify the terms and procedures for dismissal of both the Director and his Deputy.

          Graduates of the National Security Academy are still without jobs

          Although this Draft Law focuses on human resources and contains general provisions on the professional development of members of the Security Information Agency (Article 20g), it does not include a single provision concerning the Academy for National Security. Thus, the following question arises: what is the connection between the Academy i.e. its graduates and the Security Information Agency? According to the Acting Director of the Academy, Dragan Simeunović, the Academy is a professional institution that has been created in response to the “specific needs of the Security Information Agency”, which serves to provide “BIA with expertly trained staff”. It seems, however, that the fate of the graduates of the Academy is quite uncertain, as it was pointed out by the Director of BIA Bratislav Gašić, who greeted this year’s freshmen with the following words: “...I hope (italics: P.P.) that the best students will find their place in the security sector of the Republic of Serbia, as well as in our house.” If the Director of the Security Information Agency is hoping that only the best graduates will find employment in the Security Information Agency and other institutions of the security sector, the question arises as to why the state keeps financing this educational institution, and for whom is it doing so? And what will happen with the rest of the graduates - those that are not the best? If the employment of graduates of the Academy is not resolved in advance - in regulations, and therefore in a systemic way - then they will share the fate of the graduates of the Criminal Police Academy: their employment will depend on the will of politicians.

          If the graduates are to be employed in both the police and the army, what is the purpose of having both a Criminal Police Academy and a Military Academy? In addition, there are a large number of higher education institutions and faculty programmes in Serbia that offer security courses; why do we, then, need another institution that educates people so they can spend time at the country’s National Employment Service? The Academy was founded by the Government of Serbia on 30 April 2013, as a higher education institution of special national interest. Funds required for its founding and commencement of the work were provided from the budget of the Republic of Serbia, within the resources assigned to the Security and Information Agency for the education purposes.

          The fact that these changes to the Law on Security Information Agency do not bring anything new, representing instead the legalisation of the existing practice in the Security Information Agency, is a cause for concern because in situations where the oversight and control mechanisms and bodies do not work effectively, there is enormous room for arbitrary decisions. This is especially true if we link these changes with the announced increase in the BIA budget for 2018 by RSD 680 million, i.e. 15%.

          It is reasonable then to ask whether this increase in the budget and the changes to the Law on Security Information Agency in the area of human resources will actually enable the unhindered settlement of political party members and sympathizers by providing them with employment in the Agency.

        • Tags: law on Bia
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