BLOG  Legal Angle

3 July 2022 

Written by Luka Jovanović
attorney-at-law and FSD Program Director

ALL THE MINISTER’S RECORDINGS

Numerous details in the reports surrounding the prolonged “surveillance affair” should raise a lot of eyebrows.

However, it is rarely as clear why this should be the case as it is after practically every public statement by minister Aleksandar Vulin on the subject.

However, his newest statement on that topic, which in its relevant points does not significantly differ from his previous ones, made on TV AM hosted by Mrs. Jeremic, left the audience and the public at large deprived of answers to some questions that the host failed to pose.

Before we get into that, it would be prudent to remind our readers of the following:

Secret surveillance of communication is a special evidentiary action that, at the motion of the public prosecutor, is determined by the judge for preliminary proceedings.
This evidentiary action is permissible in case the evidence needed for the criminal prosecution of felonies specified by law, cannot be procured by other means, or its procurement would otherwise be significantly impaired.
If the prosecutor who requested the procurement of this evidence does not initiate an investigation or does not indict within six months or if he states that he will not be using the evidence, the judge for preliminary proceedings issues the order for its destruction.
The procured evidence that won’t be used in any criminal case is destroyed in the presence of the judge for preliminary proceedings who takes note of this in a special report.
All the information obtained in this manner is treated as confidential.

As we take note of this reminder, let us ponder the questions that Jovana Jeremic could have and should have asked minister Vulin but didn’t.

If these recordings, all 1.882 of them, were made legally (even though we don’t know when) – as the minister claims – and if it is true that none of the persons [26 of them (even though we don’t know which persons) who were under surveillance are not being investigated nor charged with a crime which allows for this evidentiary action, the first question with which we could get the ball rolling is as follows:

How is it possible that recordings of these conversations still exist if none of them is being used in a criminal case?

All the recordings, following the prosecutor’s decision not to use them, should have been destroyed, in the presence of the judge who allowed the recordings to be made and who should have left a paper trail of these events. They should not have been accumuing dust in the judge’s or the prosecutor’s desk drawer. They most certainly should not have been accumulating dust in the Ministry of internal affairs.

Furthermore: How and when were these recordings that Vulin “handed over” to the prosecutor’s office made and how did the Ministry of internal affairs come into possession of them? Why were they not destroyed along with the other materials that had to be handed over to the prosecutor? Is it possible that not all of the recorded materials were submitted to the prosecutor and the court and if they weren’t why weren’t they?

While we’re at it if it was already pointed out the that the surveillance was conducted legally, what is the point of “handing over” those recordings to the prosecutor’s office on the suspicion that the surveillance was done illegally?

Those recordings had to have been destroyed previously by the order of the court and with the full knowledge of the prosecutor!

Especially, if the claims by “people who were authorized to listen to the recordings” are to be believed, if they contained no elements of any criminal act, especially not one in which the secret surveillance of communications is a permissible evidentiary action.

The fundamental problem in the entire “surveillance affair” is not the fact that the conversations were recorded – if they were recorded legally – but rather the fact the recordings of those conversations still exist even though they are not being used in ongoing criminal proceedings. The Ministry should not be and cannot be in possession of them even after they are made, much less so after they were officially destroyed.

“People who were authorized to listen” to the recorded material, it needs to be said, could not have informed any third party about the existence of these recordings, much less their content, without a breach of confidentiality that would risk making the acquired evidence, if there are any, inadmissible in the criminal proceedings.

Do we need to point out that any publishing of these recordings outside of the purpose for which they were recorded would be a felony? Especially if, we cannot stress this enough, the recordings had to have been destroyed?

If the TV host didn’t ask a single one of these questions, the answers to at least some of them the ministry had to have provided to the prosecutors' office along with the submitted recordings.

Until the answers to these questions are made public it would be prudent to stop the practice of using this affair for political promotion and positioning, as well as a public discrediting of political rivals and other active measures.

The trail this story leaves in the media world, unfortunately, leaves little doubt that it is being used for anything else.