A Look Back and a Glance Forward at the Occasion of the First Anniversary of the Special Public Prosecutor Office:
The Urgency of the UBK Related Reforms
Apart from policy changes and concrete action in the institutional practice, legislative interventions are required in order to ensure the basic principles of a democratic and European state are observed in the functioning of the UBK. The excessive power of the UBK and its interference in the work of “the leader of investigation” (SEGR, 5) undermines the country’s compliance with the Copenhagen criteria by way of compromising the independence of the judiciary (i.e., the prosecution). For these purposes, a minimum consensus along different party lines in the Parliament is indispensable as the precondition for reform processes in terms of legislation revision.
The legislation contradicts itself among a number of articles in two related laws or, at least, displays vagueness which permits arbitrariness in the actions of UBK. Namely, articles 9 and 10 of the Law on interception of communication* require a valid court order for a definite period of time for an interception process to be initiated. However, the Law on electronic communication** enables unrestricted access of UBK to constant mirroring and direct capturing of signal intimates practical total absence of oversight which can invite arbitrariness in action on the part of UBK. The articles 175 and176 of the Law on electronic communication, as noted in the Senior Experts’ Group Report, allow that ”the three national telecommunications providers to equip the UBK with the necessary technical apparatus, enabling it to mirror directly their entire operational centres. As a consequence, from a practical point of view, the UBK can intercept communications directly, autonomously and unimpeded, regardless of whether a court order has or has not been issued in accordance with the Law on Interception of Communications.” (SEGR, 6)Thus, the Senior Experts’ Group urges Republic of Macedonia to divest UBK from its power to directly intercept communications and requires that “proprietary switches” are “moved to the premises of the telecommunication providers.” Legal interception should be enabled only by way of diverting signal to the competent law enforcement agencies by the telecommunication providers upon the receipt of a valid court order. This implies that intervention in legislation is required, namely addressing issues raised by the Senior Experts’ Group, in particular with regard to the articles 175 and 176 of the Law on electronic communication.
Undertaking action in addressing the UBK related recommendations in the Senior Experts’ Group report is the first and necessary step to guarantee commitment by all parties-signatories of the June/July Agreement of 2015 (or the so-called “the Pržino Agreement) to engage in effective reforms aiming at dismantling the system that enables state capture. Adopting changes in legislation to ensure such a commitment will be the material proof of will of the parties to do something more than merely maintain or establish change in power after the early elections in December 2016.
In conclusion, we recommend:
- Change in legislation in reference to articles 175 and 176 of the Law on electronic communication that will enable for the proprietary switches to be moved back to the telecommunications providers and for UBK to be divested of the technical capability to directly capture signal, as proposed in the Senior Experts’ Group Report.
- Revision of the legal provisions concerning parliamentary oversight of the UBK that will circumvent the issue of conflict of interest which is permitted by the vagueness and contradicting stipulations of the current legislation (as noted in the Senior Experts’ Group Report).
- Legislative interventions to be carried out by the Parliament should be coupled by bylaws to be adopted by the law enforcement agencies endorsing policies of transparency and rule of law.
* "Amendment to the Law on Interception of Communications" [Закон за изменување и дополнување на законот за следење на комуникации], Official Gazette of the Republic of Macedonia 116 (2012) [Сл. Весник на Р. Македонија, 116 (2012)].
** "Law on Electronic Communication" [Закон за електронските комуникации ] Official Gazette of the Republic of Macedonia 39 (2014) [Сл. Весник на Р. Македонија 39 (2014)].