Crime-fighting tool sparks legality issues

27/06/2012

To fight crime and corruption, countries in the region are turning to wiretapping. However, the legal issues surrounding the action are becoming muddled.

By Ivana Jovanovic for Southeast European Times in Belgrade -- 27/06/12

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Wiretapping is not always carried out legally. [Nada Bozic/SETimes]

The number of people who are wiretapped in Serbia and the Southeast European region has increased over the years, mainly due to countries' desire to fight organised crime and corruption. However, the crime-fighting tool is not always being implemented legally.

The increasing number of people who are being wiretapped illegally in Serbia sparked Ombudsman Sasa Jankovic and Information Commissioner Rodoljub Sabic to urge the Constitutional Court last month to issue an interim measure to prohibit police from collecting information on citizens' communications without a court order.

Jankovic and Sabic said their offices receive numerous complaints daily from citizens whose telephone and internet communications are being illegally monitored.

"The number of encroachments on private internet and telephone communication by the security services is several thousand," Jankovic told daily Danas after filing the request.

They also filed an initiative to assess the constitutionality of the Criminal Procedure Code, which came into force two months ago. The disputed provision of the code allows police to obtain listings, locations and other information about the telephone traffic of citizens with the approval of just a prosecutor, not the court.

Monitoring electronic communications is regulated by the constitution, and by the laws governing the work of the security services and police, as well as by the Law on Criminal Procedure.

"The first fundamental requirement to monitor communications -- which is prescribed in the Constitution (Article 41) --is that [wiretapping] can be carried out only by court decision. The second condition is that the measure must be necessary to protect the country's security or criminal proceedings. The third condition is that these measures can only be taken for a determined period," Vladimir Djeric, a member of the Serbian legal team at the International Court of Justice, told SETimes.

Representatives of the police however said they will collect data as usual until the court rules that the criminal code guidelines must be changed.

"The aim of this action is state safety and stability -- it must have continuity … all steps here are in accordance with the relevant services," Svetlana Gogic, general-secretary of the Serbian Police Union, told SETimes.

Other countries in the region have somewhat stricter laws.

According to Vesna Skare Ozbolt, a former Croatian judiciary sector employee, the subjects of wiretapping are individuals or groups engaged in terrorist activities and organised crime.

The criteria for eavesdropping are specified by the constitution and the Strategy for National Security and Law of the Security and Intelligence Systems.

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"The law does not allow anything. There are procedures that must be respected. So, if the services want to eavesdrop on a conversation of an individual, they must obtain permission from the Supreme Court," Ozbolt told SETimes.

In Bosnia and Herzegovina (BiH), the Intelligence and Security Agency can only perform wiretapping with approval from the president of the court or a judge designated by the president. The agency has to submit information justifying surveillance -- and must inform the citizen who was tapped about the action within 30 days.

But last spring, the Bosnian daily newspaper Nezavisne Novine published a list of 5,000 mobile numbers it said were illegally tapped by the Intelligence and Security Agency and State Investigation and Protection during last three years.

"Bearing in mind the laws, it would mean that the courts, in the last three years, approved 5,000 special investigative actions, or about five approvals daily -- which calls into question the legality of these actions," Petar Kovacevic, the director of the Agency for Protection of Personal Data in Bosnia and Herzegovina, told SETimes.

This content was commissioned for SETimes.com.
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