Dangerous precedent and missed opportunities
Transparency – Serbia (official chapter of Transparency International) believes that Parliamentary Committee for Control of Security Services missed the opportunity to determine serious violation of the Law on Ombudsman by the Ministry of Defense and Military Security Agency. Although in the past ten years there haven’t been many cases of obstruction of independent state organs work, this situation represents especially dangerous precedent. Namely, Parliamentary Committees advocated so far at least declaratively for respecting of regulations, even when they haven’t held executive authority accountable for their violation.
Committee in its Conclusion[1], left the decision on whether one Ministry and one security agency will respect provisions of the Law on Ombudsman, to senior public prosecutor and to its good will, to state its opinion on this matter, although public prosecutor is unauthorized for interpretation of that Law, nor implements it in practice. If the politicians do not want Ombudsman supervision over administrative organs in certain cases, they can change that practice by amending the Law. We think that even damaging amendments to the Law would be much better for rule of law than tolerating of law violation in individual cases.
Committee’s sitting was held just fourteen days after the Ombudsman declared to public alarming information on missing to deliver requested data for performing of control[2]. Committee concluded that the intention was not "to disrespect effective legal regulation, but different interpretations of it". Right after, Committee de facto accepted one of the "interpretations" - stated by the Ministry and MSA: "Preferably authorized public prosecutor, being a manager of preliminary investigation, issued specific orders to MSA on the occasion of Ombudsmans request, after which that agency and Ministry of Defence would proceed according to such order“. Normally, according to claims of Ministers on this sitting, public prosecutors have many times ignored so far similar requests of the Ministry.
From all above stated, it is not possible to determine the origin of conflict of laws or factors of different interpretations. If the MSA and Ministry were requested data by the Ombudsman, and statements of the Minister and Director of MSA show they did, then they were obliged to deliver them, regardless of the fact that public prosecutor is in possession of the same data for the purpose of leading criminal procedure. If they weren’t in possession of requested data, then, which is understandable, they could not deliver them, but the reason in that case is not „conflict of laws“, but by the nature of situation. That is the fact, by the opinion of Transparency - Serbia, that Committee should have determined primarily, and on the basis of it to create the chance, to resolve all of the related problems, before initiating of other questions ("tapping", "abuse" etc.), that cannot be properly judged on, before the control occurs.
Transparency – Serbia
Belgrade, 29.1.2015.
[1] http://www.parlament.rs/13._%D1%81%D0%B5%D0%B4%D0%BD%D0%B8%D1%86%D0%B0_%D0%9E%D0%B4%D0%B1%D0%BE%D1%80%D0%B0_%D0%B7%D0%B0_%D0%BA%D0%BE%D0%BD%D1%82%D1%80%D0%BE%D0%BB%D1%83.24169.43.html
[2] http://www.zastitnik.rs/index.php/lang-sr/2011-12-25-10-17-15/2011-12-25-10-13-14/3644-2015-01-14-10-58-56
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