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SECURITY SECTOR /
Statement
EMC demands Articles of the Law on Counterintelligence Activities be recognized as unconstitutional
Human Rights Education and Monitoring Center (EMC) appeals to the Constitutional Court and request that the norms, based on which it is possible to implement following counterintelligence activities without judge’s permission, be declared as unconstitutional:
- Secret video and audio recording, movie and photo recording, using TV cameras and other electronic devices;
- Also, electronic surveillance (inter alia, secretly listening to and recording phone conversations, obtaining and fixating information from communication channels) with the written consent by one of the parties.
EMC considers that the given legal regulation contradicts the person’s right to develop their own personality, right to private life and right to apply to the court guaranteed by the constitution (articles 16, 20 and 42 of the Constitution). EMC believes that the absence of court’s control while using secret methods bears the risks of arbitrariness and abuse of power by the relevant governmental bodies and makes constitutional rights pointless.
Counterintelligence is a special form of activities in the process of ensuring state security and its aim is to reveal and prevent threats to the state security. Thus, this counterintelligence activity is different from criminal investigation since its main purpose is not to investigate, but to obtain information, process, analyze it and preclude dangers. Consequently, Law on Counterintelligence Activities regulates those forms of secret audio and video recording and surveillance that are used for counterintelligence and not for investigative purposes.
Under the current legislation, in the absence of the judge's permission, any person can become a victim of violation of fundamental rights, as far as counterintelligence services have no obligation to justify the measure before the event. It must be noted that in the event of secret activities, a person is unaware that an act restricting his rights is being used, thus he or she is unable to apply to the court in order to protect his rights. Thus, a person is left without basic legal guarantees.
