II. Surveillance policies
National security, government surveillance and law enforcement
Wiretapping, access to, and interception of communications
As reported above, Article 17 of the Constitution of the Republic of Macedonia guarantees the freedom and confidentiality of correspondence and other forms of communication.1 In 2003, the article was amended in order to regulate wiretapping and other surveillance authorities. The revised Article 17 allows the violation of the confidentiality of correspondence and other forms of communication only in cases where it is indispensable to prevent or discover a crime, to a criminal investigation, or required in the interests of the defence of the Republic. Search of homes and personal search and seizure are regulated in the Law on Criminal Procedure.2 In general, a judge's warrant must be issued prior to such searches.
Even though wiretapping is regulated and unauthorised wiretapping is prohibited, the wiretapping cases initiated in the past have not reached closure in court. The most notable example is the case against the State initiated by 17 journalists who were subject to surveillance in the "Big Ear" affair of 2001.3 Over seven years, four different judges unsuccessfully presided over this trial; it was finally resolved at a retrial in June 2007. The State was found guilty, but the 17 plaintiffs remain dissatisfied with their compensation and the whole process.4 Their representatives stated that they won't discontinue the trial based on their complaint that is already underway at the European Court of Human Rights in Strasbourg. The Appellate court of Macedonia has upheld the verdict of the lower court, but has lowered the damages from the initial â‚¬6,000 to approximately â‚¬4,000 per journalist. The journalists have stated that "they are not satisfied with the compensation, and the precedent sends a signal that the violation of human rights is cheap in Macedonia."5
In 2006, Members of Parliament accused the Government of conducting surveillance on over 1,400 individuals.6 The executive and judiciary branches of the government have so far failed to provide adequate responses to statements by MPs dealing with wiretapping, while the major political parties refused to include this issue on the agenda of the relevant Parliamentary committee, blocking the official collection of evidence through testimonies.7
The Criminal Procedure Code (CPC) established the "special investigation measures".8 These measures ensure the gathering of evidence required for a successful criminal prosecution. These measures are applied only when the evidence cannot be obtained in any other way or the evidence gathering is related to serious crimes for which the prescribed punishment is at least four years' imprisonment or crimes for which the prescribed punishment is imprisonment up to five years where there are reasonable grounds to suspect that they have been committed by an organised crime group, gang, or other criminal association.9
The order for the application of special investigation measures may be issued by the Public Prosecutor's Office, or by the Investigative Judge in the preliminary investigative procedure, or by only an Investigative Judge in the course of an investigative procedure.10
According to Article 149, paragraph 2 of the CPC, the order should include: the name of the person against whom special investigation techniques will be applied (when the alleged perpetrator is known); the grounds to suspect that the crime has been committed; facts justifying the application of the special investigation techniques; as well as a determination of the mode, scope and duration of application of the techniques. The CPC established that the evidence gathered with use of special investigation measures is admissible only if the measures have been used and applied following the procedure set forth by law.
The application of the special investigation measures of communication interception is furthermore regulated with the Law on Communication Interception (LCI), which is the lex specialis in respect of the CPC and the application of these measures.11 The application of the investigation measures envisaged in the LCI requires secondary legislation that would further elaborate the application of such measures.12
The LCI also envisages the establishment of a Parliamentary Committee to supervise the application of communication interception techniques by the Ministry of the Interior and the Ministry of Defence. This Committee has been established de facto at the Parliament of the Republic of Macedonia, but it has yet to issue a report.
In May 2010 the Ministry of Transport and Communications proposed to the Parliament changes to the Law on Electronic Communications, including "universal deep telco/Internet wiretapping,"13 obliging telecommunications operators to provide direct and uninhibited access to traffic and other kinds of data to the Ministry of the Interior without prior notice or court order.
Protest by the civil society and legal experts about the unconstitutional nature of these proposed amendments were ignored by the government and the Parliament. The DPDP â€“ whose director was ousted by the end of May 2010 â€“ first submitted a negative opinion to Parliament,14 and then withdrew it from the parliamentary procedure. Even though leading opposition MPs spoke against this law,15 very few opposition deputies turned out at the critical voting session to cast their votes against it.16
National security legislation
Law enforcement officers, in accordance with the Code of Police Ethics,17 are obliged to adhere to the citizens' right to privacy in accordance with the Constitution and the laws of the Republic of Macedonia. The collection, retention, and use of personal data by the police is performed in accordance with the law and the ratified international agreements for protecting personal data, restrictively and only to the extent necessary for carrying out legal duties.
The Law on Classified Information18 establishes the measures and activities for protecting classified information. The measures and activities for security of individuals, such as issuing a security certificate, are significant. The satisfaction of the conditions for issuing a security certificate is established through a security audit carried out upon prior written consent of the person to whom a security certificate is to be issued. The data from the completed security questionnaire are used for the purposes of the audit. The law incorporates the NATO and EU standards on classified information.19
The amendments to the Law on Electronic Communications proposed in May 2010 stipulate a period of 24 months for retention of traffic data by the telecommunication operators, including ISPs.
National databases for law enforcement and security purposes
The Law on National Criminal-Counterintelligence Data Base was adopted by the Parliament of the Republic of Macedonia on 28 September 2009.20 The Law was proposed by the Ministry of Interior, on behalf of the Government of the Republic of Macedonia, in order to establish a central and integral information system for processing and exchanging data among the institutions with expertise in combating organised crime. In addition, the Law should harmonise domestic legislation with EU acquis and especially with the EU Council's decision establishing the European Police Office (EUROPOL).21
Both the governing and the opposition parties considered the law necessary to overcome the lack of lawful procedures for exchanging data held by the relevant institutions. However, many aspects of the Draft Law were seriously criticised by the opposition and by the civil society organisations participating in the open session of the Parliamentary Standing Inquiry Committee for the Protection of Civil Freedoms and Rights.22
The provisions regulating the contents of the database23 were subject to many discussions and amendments during the debate in the Parliament. In addition, the provisions concerning the establishment of the Commission, whose task is to provide for efficient cooperation among the relevant institutions sharing the data, were also largely criticised in particular because, critics said, the Commission was not given the status of an independent body.24 Critics pointed out that the provision on the adoption of bylaws regulating access to the database and processing of stored data is an insufficient solution that also undermines the principle of the separation of powers.
In accordance with the Law on National Criminal-Counterintelligence Data Base, the aforementioned bylaws are expected to be adopted in mid October 2010.
National and international data disclosure agreements
No specific information has been provided under this heading.
Computer crimes are regulated by Article 251 of the Criminal Code.25 This article was added to the Criminal Code in 1996 and it is included in Chapter 23, Criminal Acts against Property of the Republic of Macedonia.
CybercafÃ©s operate under the Law for Entertainment. Games, and Games of Chance,26 and are not required to implement additional standards in regard to the protection of their users' privacy. The only provision in that law related to privacy is the obligation of confidentiality in regard to winning or losing.27 As a result, customers use the cybercafÃ©s at their own risk, and the number of cases of publishing excerpts of private conversations (IMs, IRC) suggests that many cafÃ©s retain activity logs and monitor the traffic in their establishments without making that clear to their customers. Users are also threatened by other users, who use low security in the cafÃ©s to install spyware and harvest data.
The amended Law on Electronic Communications enables wiretapping of telecommunication networks by the police. Where critical infrastructure is concerned, government representatives have frequently used excuses related to confronting security risks through surveillance to silence the few dissenting voices that occasionally take a public stand for civil liberties.
Video surveillance is regulated by the LPDP, which includes provisions regarding notice to the people who are in range of the cameras.
Several ISPs and local TV stations have webcams pointed at busy city streets or squares. Those that have come to the attention of the DPDP, such as T-home, have disabled zooming or other features of their services that would enable personal identification of passers-by.
In August 2010, the media expressed concerns about the growing number of police cameras monitoring highways and busy spots in cities. The Ministry of Interior claimed that these cameras will improve traffic safety and law enforcement.
Location privacy (GPS, mobile phones, location based services, etc.)
Changes in the Law on Electronic Communications adopted in June 2010 included an obligation for service providers (telecommunications operators, ISPs) to enable direct access to their terminal equipment and location data by the Ministry of Interior, and to cover the costs for the necessary surveillance equipment. Since these requirements were adopted there has been no public record of either implementation or impact assessment.
Travel privacy (travel identification documents, biometrics, etc.) and border surveillance
Macedonian identification and travel documents use biometrics according to EU standards. The use of biometrics in these documents has been promoted as a positive feature enabling the liberalisation of the visa regime. Beginning in December 2010 the holders of new Macedonian passports can travel in the Schengen area without applying for a visa, while holders of "old passports" must apply at the appropriate embassies.
The LPDP includes biometric data in the category of special data, whose processing is prohibited (Article 8). Debate on the privacy and surveillance issues inherent in the implementation of biometrics remains absent from Macedonian public discourse.
National ID and smart cards
Like passports, Macedonian national ID cards use biometrics (images of face and fingerprints), but are not smart cards containing additional information relevant to transactions.
In Macedonia, RFID tags are used mainly by commercial entities. For example, several bookshops use them in theft-prevention scanners sited at their entrances/exits.
The private company Duna Kompjuteri developed a project for tagging domestic animals with RFID chips in cooperation with the Department for Livestock Production of the Faculty of Agricultural Sciences and Food from Ss. Cyril and Methodius University in Skopje.28 Although this effort has no direct impact on individual privacy, it shows a general trend to develop and use this technology.
LPDP deals with scanning as part of its regulations on video surveillance. Several institutions use scanners at their entrances for security reasons, including the buildings of the Parliament and the Government. Scanners are also present at airports. No information has been made public about how the images produced by these devices are handled.
- 1. See supra.
- 2. Official Gazette of the Republic of Macedonia No. 15/97 and No. 74/04.
- 3. Natali N. Sotirovska, "ÐÐ¾Ð²Ð¾ ÑÑƒÐ´ÐµÑšÐµ Ð·Ð° 'Ð“Ð¾Ð»ÐµÐ¼Ð¾Ñ‚Ð¾ ÑƒÐ²Ð¾'", ("New Trial on the 'Big Ear' Affair"), Dnevnik, 31 May 2007, available at http://r.ping.mk/11n6.
- 4. Each of the 17 wiretapped journalists received EUR 6,000 in damages, see "ÐŸÑ€Ð²Ð° Ð¿Ñ€ÐµÑÑƒÐ´Ð° Ð·Ð° 'Ð“Ð¾Ð»ÐµÐ¼Ð¾Ñ‚Ð¾ ÑƒÐ²Ð¾', Ð½Ð¾Ð²Ð¸Ð½Ð°Ñ€Ð¸Ñ‚Ðµ Ð³Ð¾ Ð´Ð¾Ð±Ð¸Ñ˜Ð° Ð¿Ñ€Ð¾Ñ†ÐµÑÐ¾Ñ‚ Ð·Ð° Ð¿Ñ€Ð¸ÑÐ»ÑƒÑˆÑƒÐ²Ð°ÑšÐµÑ‚Ð¾" ("First 'Big Ear' Sentence, Journalists Win Wiretapping Trial") Utrinski vesnik, 16 June 2007, available at http://r.ping.mk/11n7.
- 5. "ÐÐ¿ÐµÐ»Ð°Ñ†Ð¸Ð¾Ð½Ð¸Ð¾Ñ‚ ÑÑƒÐ´ Ð¿Ð¾Ñ‚Ð²Ñ€Ð´Ð¸: ÐÐ¾Ð²Ð¸Ð½Ð°Ñ€Ð¸Ñ‚Ðµ Ð¾Ð´ Ð“Ð¾Ð»ÐµÐ¼Ð¾Ñ‚Ð¾ Ð£Ð²Ð¾ Ð±Ð¸Ð»Ðµ Ð¿Ñ€Ð¸ÑÐ»ÑƒÑˆÐºÑƒÐ²Ð°Ð½Ð¸" ("Appealate Court Confirms: The Big Ear Journalists Were Wiretapped") VeÄer, 2 September 2008, available at http://www.vecer.com.mk/?ItemID=C50F895AE5A071478301A8CF24F47A51.
- 6. Jasminka Dogova, "1400 Ð»Ð¸Ñ†Ð° Ð¿Ñ€Ð¸ÑÐ»ÑƒÑˆÐºÑƒÐ²Ð°Ð½Ð¸?!" ("1.400 Persons Wiretapped?!"),, Å pic, 28 April 2006, available at http://www.spic.com.mk/DesktopDefault.aspx?tabindex=1&tabid=1&EditionID=....
- 7. Statement of MP Tito Petovski given at the public debate on privacy in Macedonia, 4 June 2010. More information about this event areavailable at http://www.metamorphosis.org.mk/macedonia/odzrana-trkalezna-masa-na-tema....
- 8. Criminal Procedure Code, Official Gazette of the Republic of Macedonia No. 15/2005. According to Article 146 of the CPC, "special investigation measures" are: "1) Communication interception and entry into the home and other premises or transportation vehicles for purposes of creating conditions for communication interception under conditions and in a procedure established by law; 2) Inspection of and search of a computer system, seizure of a computer system of parts thereof or the electronic database; 3) Secret surveillance, following, and visual-sound recording of persons and items using technical devices; 4) Simulated purchase of items and simulated giving bribe and simulated acceptance of a bribe; 5) Controlled delivery and transportation of persons and items; 6) Use of undercover agents for surveillance and gathering information or data; 7) Opening a simulated bank account into which criminal proceeds are to be deposited; and 8) Registering simulated legal entities or use of existing legal entities for purposes of gathering information".
- 9. Criminal Procedure Code, supra, Article 8: "Communication interception in respect of a person may be ordered in cases in which there are reasonable grounds to suspect that the person has committed a crime for which at least four year prison sentence has been prescribed or a crime for which a prison sentence of up to five years has been prescribed and in respect of which there are grounds to suspect that it has been perpetrated by an organised group, gang or other criminal association, for the purpose of ensuring information and evidence required for the successful criminal prosecution which cannot be otherwise gathered."
- 10. Id.
- 11. Official Gazette of the Republic of Macedonia No. 121/2006.
- 12. Article 42 of the LCI. The deadline envisaged in the LCI expired on 22 February 2007.
- 13. Cory Doctorow, "Macedonia Introduces Universal, Deep Telco/Internet Wiretapping; Hardly any MPs Bother to Vote," BoingBoing, 16 June 2010, available at http://www.boingboing.net/2010/06/16/macedonia-introduces.html.
- 14. ÐœÐ¸ÑÐ»ÐµÑšÐµ Ð½Ð° Ð”Ð—Ð›ÐŸ Ð·Ð° Ð—Ð°ÐºÐ¾Ð½Ð¾Ñ‚ Ð·Ð° ÐµÐ»ÐµÐºÑ‚Ñ€Ð¾Ð½ÑÐºÐ¸ ÐºÐ¾Ð¼ÑƒÐ½Ð¸ÐºÐ°Ñ†Ð¸Ð¸ (Opinion of the DPDP on the Law on Electronic Communications), DPDP, 7 June 2010, available at http://metamorphosis.mk/publications/informatichko-opshtestvo/mislenje-n....
- 15. "Macedonia: New Law on Electronic Communications Proposed," Metamorphosis Foundation, 14 May 2010, available at http://metamorphosis.mk/macedonia/makedonija-usvoen-noviot-zakon-za-elek....
- 16. "Macedonia: Assembly passed legislative amendments against privacy," Metamorphosis Foundation, 17 June 2010, available at http://metamorphosis.mk/macedonia/2010-06-17-12-03-20.html.
- 17. Official Gazette of the Republic of Macedonia No. 03/04.
- 18. Official Gazette of the Republic of Macedonia No. 9/04.
- 19. "Macedonian Parliament resumes 53rd session," 10 February 2005, MT.net News.
- 20. Official Gazette of the Republic of Macedonia No. 120/09.
- 21. Council Decision establishing the European Police Office (Europol), 6 April 2009, Official Journal L 121, 15 May 2009, at 37-66.
- 22. The Committee held a public session at the first reading stage of the Draft Law on 1 September 2009.
- 23. In addition to the provisions stating that the database should contain the data of individuals suspected to have committed or have attempted to commit a criminal act, the Law also includes a vague provision that extends its scope to "certain persons, criminal-law events or criminal occurrences organised in criminal dossiers" (literal translation). Furthermore, the Law also extends over any person who may in the future appear as a witness not just in a criminal, but also in any judicial procedure.
- 24. The Commission is made up of members from the Ministry of Interior; the Customs Directorate, the Financial Police Directorate; the Directorate for Public Revenues; the Directorate for the Protection of the Personal Data and the Directorate for the Security of Classified Information. The Commission's administrative-technical functions will be carried out by the Ministry of Interior.
- 25. Criminal Code, supra.
- 26. Draft Law for Modification and Amendment to the Law on Games of Chance and Entertainment Games, Official Gazette of the Republic of Macedonia No. 10/97 and 54/97.
- 27. Law on Games of Chance and Entertainment Games, Article 82.
- 28. See http://it.com.mk/najvlijatelnite-lichnosti-vo-it-sektorot-vo-makedonija-....