Milatović returned the Law on the NSA to Parliament due to disputed provisions on secret surveillance measures: The key issue is the abolition of judicial authorization for covert monitoring

The President of Montenegro Jakov Milatović returned the Law on the National Security Agency for reconsideration, which was adopted at the parliamentary session on March 6. He stated that certain provisions are not aligned with the EU General Data Protection Regulation (GDPR) and the EU Law Enforcement Directive (LED), which, as he emphasized, was officially noted by the European Commission.

- Although the European Commission leaves room for subsequent harmonization until the closing of negotiations, from the perspective of the interests of Montenegrin citizens and the protection of their fundamental rights, it is of crucial importance that the legal framework in this sensitive area be immediately harmonized with the highest European standards, rather than postponing that process without providing clear reasons for doing so - Milatović assessed.

According to him, the key controversial provision of the law lies in abolishing prior judicial authorization for the application of secret surveillance measures that include monitoring, observation, and electronic searches in public places using technical means for documentation.

- This is a measure that enables the secret and systematic recording of an individual’s movements, contacts, behavior, and habits. Although these measures are carried out in public spaces, their nature and scope show that they may allow deep and systematic insight into an individual’s private life, all without prior court authorization - Milatović pointed out.

Incompatibility with the Constitution and international standards

Such a solution, he believes, must be viewed in light of constitutional and international guarantees of the right to privacy.

- Article 40 of the Constitution of Montenegro stipulates that „the right to respect for private and family life is guaranteed“. This constitutional guarantee obliges the legislator to regulate measures that may seriously interfere with the private sphere of citizens in a restrictive manner and with appropriate protective mechanisms, which is not the case here - Milatović stated.

Protection of privacy is also confirmed, he said, in international human rights instruments binding on Montenegro. Article 12 of the Universal Declaration of Human Rights states that no one shall be subjected to arbitrary interference with their privacy, family, home, or correspondence.

- The same principle is contained in Article 17 of the International Covenant on Civil and Political Rights, which prohibits unlawful or arbitrary interference with private life and guarantees the right to legal protection against such interference. At the European level, Article 8 of the European Convention on Human Rights guarantees the right to respect for private and family life, home, and correspondence, with the rule that public authorities may interfere with the exercise of this right only if such interference is prescribed by law and necessary in a democratic society for the protection of legitimate aims, including national security and public safety - Milatović emphasized.

From these constitutional and international standards, he assessed, it follows that it is not sufficient for a law merely to provide the possibility of secret surveillance.

- When a measure allows systematic collection of data about a person’s movements, contacts, and behavior, the law must simultaneously ensure effective mechanisms for protection against arbitrariness and abuse. By abolishing prior judicial authorization, precisely this protective mechanism is weakened, because the decision to interfere with privacy remains solely in the hands of the executive authority that proposes and implements the measure, without prior control by an independent body of the judicial branch - Milatović stated.

Disregard for European Court rulings on the limits of privacy in public spaces

Secret surveillance measures, he noted, by their nature necessarily interfere with the right to privacy.

- For that very reason, international standards do not start from the premise that their use is always prohibited, but from the premise that there must be a clear balance between the state’s interest in protecting security and the individual’s right to privacy. This balance is ensured through protective mechanisms, and one of the most important among them is independent oversight over the application of such measures. For this protective mechanism to make sense at all, it must first be clear that the measure in question falls within the scope of the right to privacy. This is precisely confirmed by the practice of the European Court of Human Rights. The Court has clearly shown that the fact that certain actions, such as monitoring and observation, take place in a public place does not mean that they fall outside the protection of Article 8 of the European Convention - Milatović said.

He noted that in the case of Uzun v. Germany, the European Court of Human Rights determined that GPS tracking also constitutes interference with private life, even though it takes place in a public space. The Court, he added, emphasized that visual and audio surveillance are even more sensitive because they can reveal more information about a person’s behavior.

- The judgments of the European Court lead to a clear conclusion: such measures are not in themselves impermissible, but precisely because they interfere with the right to privacy they must be accompanied by effective safeguards. In this particular case, the problem is not that the law provides the possibility for their application, but that it removes one of the key safeguards for their application - prior judicial oversight. This disrupts the balance between the legitimate interest of the state in safeguarding national security on one hand and the protection of citizens’ right to privacy on the other, which is not in line with the standards of the European Court of Human Rights - Milatović stated.

Removal of judicial oversight without a valid reason

Additionally, he said, it is concerning that no convincing or logical reason has been given for abolishing prior judicial authorization.

- The previous legal solution already allowed urgent action in cases where consequences were imminent, whereby the Agency’s director could immediately order the application of the measure, with the obligation to submit a request for authorization to the court without delay. The court then had to decide within 48 hours. If authorization was not granted, the measure had to be suspended and the collected material destroyed. The very existence of such a model shows that it was possible to simultaneously ensure operational efficiency and independent oversight - Milatović said.

For this reason, he added, the complete removal of the court from the procedure cannot be justified by practical reasons and represents a weakening of the existing protection of the constitutionally guaranteed right to privacy.

- It is particularly important that the measure in question may last up to two years, while the law does not clearly prescribe what happens to the collected data after the measure ends, which further strengthens the need for prior judicial oversight - Milatović stated.

Need for additional review of other disputed solutions

In addition to the stated reasons, he believes it is also important to note that the law was not prepared and adopted with a sufficiently inclusive approach and legal certainty, even though it regulates particularly sensitive issues relating to privacy, the work of the Agency, the use of public funds, and the status of employees.

- The need for additional review was also pointed out by the United Nations Special Rapporteur on the right to privacy, who expressed concern about certain solutions and the absence of adequate protective guarantees. Similar remarks also came from the domestic professional and interested public, not only regarding secret surveillance measures but also regarding issues of public procurement and the establishment and termination of employment. By returning this law for reconsideration, I am enabling the proposer of the law to remove the stated normative shortcomings and to propose to the Parliament of Montenegro a law that will be fully in line with the Constitution and European standards - Milatović stated.

Accordingly, he said, he believes that the Parliament of Montenegro should reconsider the law in question.

He noted that, as President of Montenegro, he fully supports improving the normative framework in the security sector, as well as the reform activities carried out by the current leadership of the National Security Agency, and in that sense welcomes the adoption of legal solutions that will contribute to improving the work of that institution.

- The nature of the relations regulated by this law, as well as the justified increased sensitivity of the public, require a special degree of caution and responsibility. Negative practices from the past, which resulted in numerous criminal proceedings against former heads of the Agency precisely in relation to the Agency’s competencies, serve as a permanent warning that legal powers must be precisely defined and independent oversight strict and effective. Bearing this in mind, and guided by the principle of full alignment with European standards, I consider it necessary to point out the disputed provisions of the adopted law - the President said.

As he added, these concerns were rightly raised by the European Commission as well as non-governmental organizations dealing with this field (MANS, Institute Alternative, HRA and others).