The Ministry of Interior (MoI) issued a statement on 26 of November 2015, stating that Belgrade Center for Security Policy (BCSP) made a number of misstatements about the draft Law on Police. Statement was signed by the Special Adviser to the Minister, Amadeo Watkins, and was released several hours after the presentation of the BCSP’s research on the integrity and accountability of the police in the Media Centre.
The BCSP emphasize that the polemics based on charges of “biased” criticism narrows the right of civil society to participate in the discussion of matters of public concern such is the responsibility of the police. This is the third time this year that Mr. Watkins, as the representative of the MoI, critics through media BCSP’s proposals to improve the Law on Police and police work, without any invitation to dialogue.
Behind the report “Assessment of police integrity in Serbia” are 18 years of BCSP’s experience in research of security sector reform, and in-depth monitoring of police work. Findings from the research are based on an analysis of documents, consultations with employees at the MoI (October 15th and November 25th, 2015) and the police unions (October 16th and 24th, 2015).
In accordance with the commitment that the dialogue should be conducted based on the arguments and evidence below, we provide to the public the answers to questions asked by Mr. Watkins in the statement.
The BCSP’s answers to questions and comments from statement of Amadeo Watkins
1. Which version of the law was read by BCSP?
The BCSP’s research team has analyzed the latest version of draft of Law on Police which was sent to European Commission and available on MoI’s website: LINK
2. Is the Minister allowed the opportunity to influence the staffing of the highest level of professional managers in the Police Directorate?
In a statement of the Adviser to the Minister of Interior, a question was raised where is in the draft of the Law on Police stated that the Minister has the discretion to appoint and dismiss the heads of police departments.
According to the draft Law on the Police (Article 149, paragraph 2), the Minister of Interior allocates and dismisses heads of strategic and high-level Police Directorate after the completion of the internal competition, on the proposal of the Director of Police. Good novelty compared to the existing Law on Police is the obligation to conduct an internal competition. Since it is not explicitly stipulated that the Minister must choose the candidate with the best results at the completion of the internal competition, there is a possibility that a second or third placed candidate can be chosen, which can make the internal competition meaningless.
In addition, the BCSP points out that leaving the initiative for the dismissal to the Minister, and not to the Director of the Police, means that the power on deciding upon a professional structure of police force remains in the hands of politicians. An additional problem is the solution which prescribes that the entire system of human resource management in the Ministry is to be regulated by bylaws (Article 9, paragraph 2) rendered by the Minister, where there is no requirement for these bylaws to be public and transparent.
Article 149 (originally)
Allocation and dismissal of managers of strategic and high-level of Police Directorate
Managers of strategic and high-level of Police Directorate are appointed i.e. allocated after the completion of the internal competition in the manner specified by regulations referred to in Article 9, paragraph 2 of this Law.
Managers described in paragraph 1 of this Article shall be allocated and dismissed by the Minister on the proposal of the Director of Police, on the basis of the report and ranking of candidates after the completion of the internal competition.
Manager described in paragraph 1 of this Article shall be dismissed if does not perform within the competence of the workplace.
The Minister may request of the Director of Police a proposal for allocation of a manager described in paragraph 1 of this Article in case there was a position vacant for more than six months, or a motion to dismiss the Manager referred to in paragraph 1 of this Article in case he does not perform within the competence of the workplace.
The proposal referred to in paragraph 4 of this Article, Director of the police is obliged to submit to the Minister within three months.
3. Is the independence of Internal Affairs Sector secured in accordance with best European practices?
Mr. Watkins asked the BCSP to reference the article of Law on Police according to which the Minister has the option to stop the investigation of internal control.
Minister of Interior can still influence and indirectly prevent an investigation of Internal Affairs Sector (IAS) and assign it to another organizational unit of the police. Unlike the existing Law on Police in which this is explicitly stated, the influence of the Minister of Interior on IAS’s is regulated more ’elegantly’ in the draft on Law on Police (Article 228, paragraph 5). Specifically, the Minister may designate another competent organizational unit to carry out internal control of the police if it exceeds the possibilities of IAS, which is, according to the draft the Law (Article 223), responsible to carry out internal control of police and other employees in the Ministry. The problems are as follows.
First, by not stipulating that the demand for this type of assistance should be given by the head of the IAS, there is a possibility for Minister’s discretionary decision on cases in which he shall include other organizational unites in the work of the IAS, which means that IAS is not completely independent in its work.
Secondly, the wording of paragraph 5 of Article 228 of the draft new Law “if the object of exercising the internal control surpasses the capabilities of IAS” is very broad and it can not be concluded which are the situations that surpass the capabilities of IAS. Consequently, Minister’s authorization to include other organizational units in IAS’s work is very broad. This solution is based on the assumption that the IAS will not be able to investigate individual cases, which differs from the announced goal of strengthening the IAS, in the fight against corruption in the police and in order to implement new responsibilities, such as control over all employees of the Ministry of Interior, control of police manager’s property, the introduction of the test of integrity.
Third, in the draft of the Law there is only a recommendation the other organizational unit, which essentially takes over the role of the IAS, is not obliged to do so.
There is a missed chance to strengthen the position of IAS in accordance with best European practices, by prescribing the possibility that IAS regularly and directly reports to the Government and the relevant committee of the National Assembly on its work, as is the case in Belgium and the UK, but the Minister reports on IAS’s work and only at the request of these two bodies (Article 223).
In the end, the current draft on Law on Police introduces a new instrument of control of the head of IAS and the persons employed in IAS (Article 231), and that is the Commission appointed by the Minister. The proposal did not specify which profile of people shall be in this Commission, and on basis on which information shall the Commission act, but it is left to be resolved by a bylaw. This leaves the possibility that the Minister through the Commission affects the workflow IAS and its independence. Finally, the OSCE report points out that the ability of the Minister to give directions, instructions and orders for work of IAS disables its independence in work (p. 33).
Article 228 (originally)
In conduction control, police officers of internal control cannot influence the course of specific police actions or in any other way disturb the work and jeopardize the confidentiality of police action.
Justification of jeopardizing of confidentiality of a police action is explained to the competent public prosecutor which renders a final decision.
If there is a reasonable risk that the performance of internal control of the police on using its police powers established by this Law or otherwise, would make it impossible or substantially more complicate the application of police powers or endanger the lives and health of people who apply them, a police officer, can, before the the decision of the public prosecutor, temporarily to deny access to documentation, inspection of premises and submission of certain data and information, to the police officer in internal controls.
A police officer, in the event of refusal of orders of Internal Affairs Sector, given the reasons set out in paragraph 4 of this Article, shall, without delay, make a report and submit it to the Minister, as well as the assigned prosecutor who made the decision to execute the action.
If the subject matter of the conducting the internal control surpases the possibilities of the Internal Affairs Sector, Minister can appoint the competent organization unit which will continue the mutual work with the Internal Affairs Sector.Article 231 (originally)
Control over the work of head of Internal Affairs Sector and police officers of internal control is being conducted by the Commission appointed by the Minister.
For its work and for the Internal Affairs Sector’s work, the head of the Sector is responsible to the Minister.
All organization units of the Ministry, if they, during their work, receive information and data that the employee in the Ministry committed a crime, on the work or in connection to their work, are obliged to, without any delay, inform the competent public prosecutor and deliver data they have to the Internal Affairs Sector, within 24 hours since they found out, the latest.
The form and the manner of conduction the control as described in paragraph 1 of this Article is prescribed by bylaws.
In its statement, the Ministry stated the argument that, when drafting the new Law on Police, the best practices of members of the European Union were taken into account, a and that they had several months of public debate in which all relevant institutions have participated, and many critical comments were adopted. The BCSP had, at the Media Centre conference, commended the inclusion of the public into the revision of several versions of the Law on Police, but emphasized the need to publish all commentaries and the reasons of its adoption or refusal on the MOI website, which would be in accordance with the best European practices.
Similar findings to BCSP’s research team pointed out in the report “Assessment of police integrity in Serbia”, are those in the Serbia 2015 Progress Report of the European Commission, as well as in the Opinion on the draft Law on Police by the OSCE .
The European Commission recommends that it is necessary to remove any political influence on the work of the police, and that there is no clear criteria for recruitment, promotion, development and evaluation of employees in the police (p. 16). Also, one of the recommendations of the European Commission is to strengthen the functioning and enable the independence of the IAS (p. 15) because it is concluded that today “Internal Affairs Sector of the Police is not independent nor able to take special investigative measures without the involvement of intelligence agencies. There is a lack of resources, legislative authority and general political support from the Government, the National Assembly and the leadership of the police” (p.17).
The OSCE report noted that there is confusion in respect of the executive power (ie the Ministry) and the police, and it is recommended that it is necessary to make a clear division of roles between the Government/Ministry that is primarily tasked to create a policy, supervises and evaluates the work police (p. 7). It is recommended to identify the role of the Minister of the Interior because of the possibility of its impact on operational policing (p. 13).
Original statement of the Ministry of Interior
No. 1021/15
26 of November 2015
Available on the LINK
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