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B E N C H B O O K on the Implementation of Measures for Interception of Communications

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B E N C H B O O K on the Implementation of Measures for Interception of Communications B E N C H B O O K on the implementation of measures for interception of communications Republic of North Macedonia Academy of Judges and Public Prosecutors Pavel Shatev Skopje, December 2019 B E N C H B O O K on the implementation of measures for interception of communications Skopje, December 2019 BENCHBOOK ON THE IMPLEMENTATION OF MEASURES FOR INTERCEPTION OF COMMUNICATIONS Authors: Public prosecutor Spasenka Andonova Andrej Bozhinovski, M.A. Judge Daniela Dimovska Bogdancho Gogov, PhD Jovan Jovcheski, PhD Biljana Karovska Andonova, PhD Judge Sandra Krstikj Snezana Petrovikj Arsovska Justice Xhemali Saiti Public prosecutor Natasha Saramandova Editors: Gordan Kalajdjiev, PhD Penelopa Gjurchilova, PhD Publisher: ©DCAF, 2019 All rights reserved. DCAF – Geneva Center for Security Sector Governance Chemin Eugène-Rigot 2E, CH-1202 Geneva, Switzerland ©DCAF, 2019 All rights reserved. DCAF – Geneva Center for Security Sector Governance – Skopje Office Makedonija 11-1/2 Skopje, Republic of North Macedonia CIP - Каталогизација во публикација Национална и универзитетска библиотека "Св. Климент Охридски", Скопје 343.985:316.77(497.7)(035) 343.985:316.77]:355.45(497.7)(035) 342.738(035) BENCHBOOK on implementation of measures for interception of communications : Електронски извор / [authors Jovan Jovcheski ... и др.]. - Skopje : Geneva center for security sector governance, Skopje office DCAF, 2019 Начин на пристап (URL): https://dcaf.ch/resources?type=publications&year=2019&lang=all. - Текст во PDf формат, содржи 141 стр., илустр. - Наслов преземен од екранот. - Опис на изворот на ден 25.11.2019. - Други автори: Biljana Karovska-Andonovska, Bogdancho Gogov, Andrej Bozhinovski, Xhemali Saiti, Sandra Krstikj, Daniela Dimovska, Natasha Saramandova, Spasenka Andonova, Snezana Petrovikj-Arsovska ISBN 978-608-66453-5-9 1. Jovcheski, Jovan [автор] 2. Karovska-Andonovska, Biljana [автор] 3. Gogov, Bogdancho [автор] 4. Bozhinovski, Andrej [автор] 5. Saiti, Xhemali [автор] 6. Krstikj, Sandra [автор] 7. Dimovska, Daniela [автор] 8. Saramandova, Natasha [автор] 9. Andonova, Spasenka [автор] 10. Petrovikj Arsovska, Snezana [автор] а) Посебни истражни мерки - Следење на комуникации - Македонија - Прирачници б) Национална безбедност - Посебни истражни мерки - Следење на комуникации - Македонија - Прирачници в) Право на приватност - Прирачници COBISS.MK-ID 111715594 1 PROJECT BACKGROUND AND ACKNOWLEDGEMENTS PART European countries, including the Republic of North Macedonia, require their law enforcement and intelligence services to obtain judicial warrants before using Special Investigative Measures (SIM), or other methods for information collection deemed to be particularly intrusive with regards to the right to privacy. Through the authorization of SIM, judges and prosecutors act as guarantors of the rule of law and balance the competing interests of ensuring public safety and safeguarding human rights and liberties. For these reasons, the Programme launched by DCAF in North Macedonia in 2017, to support national authorities in improving security and intelligence sector accountability, had planned from its very beginning to engage (among other actors) with the judicial sector in the country, and help develop capacity and expertise in the judicial authorization of communications interception. After reviewing existing resources on this topic and holding consultations with representatives of the Macedonian judicial and academic community, the idea to create a new knowledge product tailored to the needs of the Macedonian judiciary emerged as a priority for the DCAF judicial project. The national system for communications interceptions was undergoing significant legislative and institutional changes, while the rapidly growing European jurisprudence on the use of secret surveillance by state authorities was setting high standards as regards the duty of the Courts to scrutinize critically the applications for the use of SIM. The DCAF project proposed to have all these new national regulations and European standards collected and analyzed in a Benchbook that would guide practitioners in the different procedural stages of the judicial control of SIM. To this end, together with the Academy for Judges and Prosecutors, and enjoying the support of judicial institutions in Skopje, in April 2018 we were able to assemble a working group composed of judges, prosecutors and judicial experts willing to support the development of this knowledge resource. What exactly to create and how, were questions without easy straightforward responses. It took months of recurring discussions and in-depth analysis of law, procedure, practice, and landmark decisions of relevant European courts before deciding on the detailed outline of the Benchbook. By the end of September 2018, a clear structure of the Benchbook was decided upon, building around three main chapters: (1) a first one reviewing the theoretical and legal foundations of judicial authorization of SIM, (2) a second one providing “a pathway on how to issue an order for the use of SIM in criminal investigations”, as described by one of the judges participating in the project, and, (3) a third one exploring a brand new topic for local judicial literature: the authorization of intrusive methods for national security purposes. The members of the working group, split into three, each team taking the responsibility to draft one chapter, under the leadership and theoretical guidance of a group coordinator. And then, the writing began. Benchbook development was a genuinely participative process. What is sincerely laudable and somehow surprising, given the professional responsibilities and the hectic agendas of the people involved in this working group, is the fact that they took complete ownership of the writing process. The outline and the content were exclusively decided on and drafted by them, based on their own knowledge, expertise, research efforts and time. No parts of the Benchbook were outsourced to 5 external consultants. The ten authors of the Benchbook invested a remarkable individual and collective effort, sustained with patience and professionalism over the course of one year. It is therefore our pleasure to acknowledge and give credit to the ten authors, whose dedication and diligence made this publication possible. We trust that their participation in this project has empowered and inspired them to act as agents of change, who raise the standards of performance to a higher level, influencing the entire judicial system. Three coordinators, one for each chapter, were selected by their respective drafting teams to provide conceptual guidance, to steer the drafting process and the engagement of different authors. Supreme Court judge Xhemali Saiti, judge Sandra Krstikj and Andrej Bozhinovski, MSc, completed this task admirably, and invested substantial individual efforts and time into this project. Their dedication, direction, and substantive input have been the engines that transformed the Benchbook from an idea to a palpable reality. The first integrated draft of the Benchbook was completed in January 2019, when a meticulous internal review process started under the coordination and editorial effort of Professor Gordan Kalajdjiev and our colleague dr. Penelopa Gjurchilova. Working with ten different authors, from a range of institutions and perspectives, was not an easy task for the editors. It is with a great debt of gratitude that DCAF wishes to extend a heartfelt thank you to them both. It is their wisdom, hard work, perseverance and leadership that ultimately led to this unique and groundbreaking publication. The Benchbook was written in a period of profound transformation of the intelligence environment and of the system for communications interception in North Macedonia. Laws, institutions and processes have all changed significantly in the span of just one year. All these changes had to be observed, understood and incorporated into the text, slowing down the writing process and requiring adjustments in the Benchbook structure and content. A fourth chapter was added in spring 2019, to provide an overview of the whole system of democratic safeguards in the use of communications interception. Dr. Jovan Jovcheski has taken the lead in the development of this chapter and we thank him sincerely for his valuable contribution. Thanks are due also to the legal experts who undertook the external peer-review of the Benchbook. Coming from Croatia and Slovenia, Dr. Sunčana Roksandić and judge Aleš Zalar read the text with eyes well versed in the latest European developments in criminal justice and human rights law. Dr. Marjan Gjurovski and Aleksandar Tumanovski, MSc, brought in the viewpoint of professionals who know well the Macedonian legal system, with its conceptual and practical challenges. The reviewers have all shared perspectives from which a great deal was learned. The Benchbook is better due to their rigorous scrutiny. It is our pleasure to acknowledge and give credit to the Academy for Judges and Prosecutors for making this project a successful reality. They have been DCAF`s partner from the very early stages. They helped us reach out to the right institutions and people and, with every workshop and roundtable we organized together in this project, made sure the Benchbook is a product designed for and tuned to the learning needs of the Macedonian judiciary. In the months following the Benchbook publication, the Academy will take the lead in transforming the Benchbook into a training curriculum for judges and
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