ARMY AT GUNPOINT - Protector vs. Protector*

Odbrana, By: Aleksandar PETROVIĆ, 18.2.2015.

logo odbrana Is it more than a coincidence that four information fronts were opened against the Ministry of Defense within two weeks? Is it a crisis of institutions or causing an institutional crisis?
What question sharpens the image of everything that has happened: “Why?” or “Why Now?”? What will bring more harm to the state – polemics of government and non-governmental sector or bickering between own institutions? In this case, damage is the only thing that is certain.

 

 In mid-January, the defense system was under media crossfire. Mid-February is approaching, and the fire would not cease. The dust in the public began to get raised with the case of a retired major (M. V.). Namely, NGO “Egal” called the Ministry of Defense to take responsibility for gender discrimination, because Major M. V. (who calls himself Helena), as they say, professional service was terminated as the result of his decision to change his gender. The case is in the hands of Commissioner for Protection of Equality Nevena Petrušić, who is to evaluate whether in “Helena Case” someone has violated the law and whether the retired officer’s rights guaranteed by the Constitution have been violated. M. V. has also filed criminal charges against the Minister of Defense Bratislav Gašić. The on-duty human rights defenders have forgotten to mention the role that the Ministry of Defense has taken with respect to introduction of and compliance with Resolution 1325 – Women, Peace and Safety, as well as that several LGBT associations have welcomed the position that the Serbian Army assumed toward people with such gender orientations.

A few days later, the Protector of the Citizens Saša Janković filed criminal charges against two members of the Military Police Special Operation Battalion “Cobra”. They were, together with another two civilians who were escorting them, beaten up by the members of the Gendarmerie on September 28 last year in Belgrade. Immediately after, the Ombudsman presented to the public the documentation on which he based the criminal charges against two military policemen, simultaneously  accusing the Military Security Agency that it had abused its authorizations during the investigation of an incident during the “Pride Parade”, but also in some other cases when, allegedly, the Military Security Agency without authorization implemented measures of secret surveillance over civilians, including representatives of unions and opposition political parties. Additionally, Janković disclosed to the public that, since October last year, there had been “noise on the line” between him and the Ministry of Defense, since the MSA had not provided to him the requested documentation regarding the case of “Cobras” it had collected in the investigation. The Agency instructed the Ombudsman to contact the Prosecutor’s Office, upon the request of which it had already submitted the requested materials, with a message that, until the criminal proceedings have been concluded, it has no right to give it to anybody, referencing the Law on Criminal Proceedings.

In the midst of heated discussion, which was taking place both officially and unofficially between the Ministry of Defense and Ombudsman, the Commissioner for Information of Public Importance and Personal Data Protection Rodolјub Šabić ordered the Ministry of Defense to submit to news agency “Beta” the data related to the price of the overhaul of “MIG-29” airplanes, and how much time these aircrafts had been airborne since the overhaul, how many pilots had been trained in them... Although the Ministry submitted to “Beta”, at its request, which dates back from April 2012, the information related to the price of airplane overhaul, the Commissioner required that other answers are also made available to the public, dismissing the claims of the Ministry of Defense that it would harm the national security.

The last media “shot” at the Army was heard after the accusation made at the expense of General Ljubiša Diković by the Humanitarian Law Center, stating that the Chief of Staff was responsible for war crimes during the period when he commanded the 37th Motorized Brigade of the Yugoslav Army. Center Director Sandra Orlović, presenting the “Rudnica” file, said that she is in possession of documentation indicating responsibility or role of the members of the 37th Motorized Brigade.

Although there is no evidence that the said “cases” are in any way directly related, there is a question – is it a coincidence that the System of Defense, the institution with the most stable reputation in the country, gets in the epicenter of four media affairs within a period of about fifteen days? Who will loose and who will gain because of the clashing of governmental and non-governmental sector and, even worse,  the state authorities among themselves, is the question that will wait to be answered for a few weeks or months.
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We could already conclude that half-cooked “media stew” without spices has been served to the public several times, and everybody was left to cook it further and spice it to their taste. One thing is certain – all of the said issues can be solved only within the limits of institutions and the law. Even those who have transferred the problem from the plain of institutions to the plain of the media agree with that.

Right to a Secret
When, before the millions of viewers of the media public service, the Commissioner for Information of Public Importance and Personal Data Protection Rodolјub Šabić took out a piece of paper and in three sentences “checkmated” Miroslav Lazanski, a part of the population reacted as cheerleaders. However, the content of the piece of paper presented by the Commissioner to the columnist of “Politika” and the viewers of the RTS, to tell the truth, is not in accordance with his interpretation.

The debate that has developed in public, and additionally heated up in the show of Olivera Kovačević, is related to requests that the reporter of agency “Beta” Vojkan Kostić in April 2012 submitted to the Ministry of Defense, demanding answers to his questions – what price was paid for overhaul of “MIG-29” airplanes in 2007 and 2008, how many hours of flight those planes had after the overhaul, specifically “MIG-29” airplanes with numbers 18101, 18102, 18105, 18108 and 18301, how many hours did “MIG-29” airplanes after the overhaul spent in the on duty system of the Air Defense, i.e. in the on-duty pair of airplanes, and how many new pilots were trained on “MIG-29” airplanes, after their overhaul, for flying those airplanes, and who had previously not flown these aircrafts.

The Ministry of Defense submitted to “Beta” an answer to the first question, while refusing to answer the other three, with an explanation that it concerns sensitive military data, i.e. data ranked as “classified”, and that publishing of such and similar information could jeopardize the national security. After wards, “Beta” contacted the Commissioner Šabić, and he issued an order to the Ministry to submit this data to the said news agency. Since the Ministry refused to do this on two occasions, the Commissioner twice imposed fines on Minister Bratislav Gašić, as the responsible person. However, the Minister said on several occasions that he would not disclose the information that would jeopardize the national security.


WHO IS BOTHERED BY THE POPULARITY OF THE ARMY
Research of “TNS Media Galup” from November 2014 for the OSCE Mission indicated that 50 percent of the population has trust in the Ministry of Defense and Serbian Armed Forces, which is by 15 percent more than last year.
As a comparison, the Ministry of the Interior is trusted by 35 percent of surveyed citizens. The Defense System is denied trust by 19 percent of the population, while 32 percent of them do not trust the Ministry of the Interior.
Judging by the research “reporter – Your Friend” conducted by Agency “Pragma“, the event that marked last year is military parade “March of the Victorious“.


When in TV show “Yes, Maybe, No”, Lazanski asked the Commissioner why is it in public interest to disclose the data requested by the reporter of “Beta”, the Commissioner showed a paper with the interview given by then commander of Air Force and Air Defense, General Katanić to “Politika” on December 24, 2006. On the basis of the content of this interview, Šabić concluded that the data presented to “Politika” on that occasion is exactly the same as the data that is this time denied to “Beta”.

Question and answer from the interview of General-major Dragan Katanić from December 2006 are as follows:

“How many hours of flight per year do our pilots have now?
– When I came to the position of the commander, it was around 90 minutes per year, at the average, which is disastrously low. Now we have purchased the fuel, up until May, and we expect that pilots’ flying time should be around 15 to 20 hours, at the average for the current year. Against 2005, the flying time was increased by about 70 percent. From May 2006, we have maintained the continuity of training, we have no interruption in training, and this is the most important. (...)

Future of Air Force and Air Defense?
– We have preserved the Air Force and Air Defense as a type of armed forces (...) We currently have 380 pilots, and in 2000 there were 826 of them (...)”

(I)responsible Journalism
To what extent are the answers given eight years ago by General Katanić to “Politika” comparable with the data requested by “Beta”? Namely, the pilots of transportation aviation and helicopters have much more hours of flying time than the pilots of fighter-bomber aircrafts, especially pilots on fighters that are on call in the system of Air Defense. The data presented by Katanić is related to all pilots, of all types of aircrafts and as such it is not sensitive for security sensitive. Finally, disclosure of such data, which is marked as classified, entails criminal responsibility pursuant to Article 415 of the Criminal Code. Apart from Lazanski, this argument was also presented in his statement to the RTS by head of the Public Relations Department of the Ministry of Defense, battleship captain Petar Bošković.

The position of the Ministry of Defense is that reporters have a legitimate right to show interest in the condition of operative abilities of Serbian Armed Forces, However, Bošković says that all the actors in the public dialogue on security sensitive subjects must not overlook the principle of responsibility, which is as important in the professional journalism as the freedom to select subjects.
This applies to everybody who discloses and interprets for the public information on vital state institutions, as the Defense System is. Even if “Beta” received all the requested data, would he carry out his intent (described in original text “Withholding of Information” in “Politika”) to explain to the citizens of Serbia the (un)appropriateness of spending the money on overhaul of “MIG-29” airplanes, without violating the principle of responsibility to the public? Would his conclusion, which may be drawn from the said text, be complete and above all true and accurate? Is the requested data sufficient for such a conclusion?

More than about the fact that the state authority in charge of securing availability of information of public importance  

More than about the free interpretation of a journalist of what information of public importance is, we should be worried about the fact that the state authority in charge of securing availability of information of public importance by accident or consciously is neglecting certain legal provisions. Even if it were not a case of neglect of the provisions of the Criminal Code, the question arises: Is the Ministry of Defense credible to, by invoking clause 3, Article 9 of the Law on free Access to Information of Public Importance, disable access to the information if it would “seriously jeopardize defense of the country, national or public security...”? Judging by the opinion of the Commissioner – it isn’t.

The decision that data rated as “classified” should be published “in public interest”, it seems, requires arguments more serious than those presented. It can be expected that such a decision would launch an initiative for change of the legislation that stipulates many years of prison sentences for the person who should disclose such data or to recall the degree of confidentiality of documents in question in the procedure envisaged by the Classified Information Act.

ŠABIĆ: I AM BEING ACCUSED BY SECURITY STRUCTURES CONTROLLED BY THE MINISTRY OF DEFENSE
On the occasion of renewal of the certificate that gives him access to all documents regardless of the degree of secrecy, the Commissioner for Information of Public Importance and Personal Data Protection Rodolјub Šabić said on February 5, as reported on the website of this institution, that he had expected such outcome with certainty because he did not do anything, either privately or professionally, that would lead to a different decision.
– Coincidentally I am one of very few state officials, maybe even the only one who was subject to this type of security check twice in a period of only three years.
It is all the more incomprehensible that practically at the same time  the Minister of Defense and some associates of the security structures controlled by the Ministry are launching accusations, more precisely insinuations on certain alleged activities of the Commissioner against the Army, the state or I don’t know who else – Rodolјub Šabić said.


The position of the Ministry of Defense is that reporters have the legitimate right to show interest in the condition of operative abilities of Serbian Armed Forces. Still, Bošković says that all the actors in the public dialogue on security sensitive subjects must not overlook the principle of responsibility which is as important in the professional journalism as the freedom to select subjects.

In this moment there is no valid explanation of what is the public interest in knowing the number of hours that the airplane with registration number 18105 or 18301 spent flying after the overhaul, or how many pilots have been trained in them, but there is a series of reasons why something like this could jeopardize the national security. Those who are well informed about this subject, quite certainly know this.

It is necessary that he circle of experts and general public receive answers to some of the said questions so that finally this futile discussion in which, by all accounts, there were too few competent participants, would be put to an end.

Law against the Law
The case that, by all means, stirred the public the most, was opened by Ombudsman Saša Janković. In late January, he announced publicly his observations on alleged irregularities and illegal actions of the Military Security Agency related to the incident on the day of the “Pride Parade”, on September 28 last year, when the Gendarmerie beat up two members of “Cobras” and two civilians guarded by them. The Protector of Citizens accused the je Military Security Agency that it took measures of secret surveillance against certain political parties, union leaders and judicial officials. Janković filed criminal charges against two military policemen who were beaten on September 28 (because of the attack on the Gendarmerie), publishing as evidence the documentation collected by the Ministry of the Interior in the process of internal investigation of that case.

Saša Janković, referencing Article 17, paragraph 1 of the Law on the Protector of Citizens, pursuant to which he is authorized to “control the respect of the rights of citizens, to identify violations, made by acts, actions or failure to act by administrative authorities, in case of violations of laws, other regulations and general acts”, requested from the Military Security Agency to submit to him all materials and evidence collected with respect to the conflict during the “Pride Parade”. The Ministry of Defense and Military Security Agency refused to submit to Janković the said documentation, explaining that, pursuant to Article 43, paragraph 2, clause 1 of the Criminal Procedure Code, “the public defender, the leader of the pretrial proceedings and the only person authorized to give orders, with respect to such proceedings, on handling the data from the case files”, but also Article 17, paragraph 3 of the Law on the Protector of Citizens, pursuant to which he is “not authorized to control the work of public prosecutor’s offices”.

A number of non-governmental organizations and “independent experts” who, to a large extent, had accused the military security services and the leaders of the Ministry of Defense  for political abuse, joined the “exchange of fire” between Janković on one hand and the Ministry of Defense i Military Security Agency on the other hand. In their opinion, the Defense System, as an extended arm of the governing nomenclature, jeopardized the freedom and independence of the authorities in charge of supervising the government. Janković himself said, among other things, that this is about the “crisis of government control”.
The media noise was filled with expert and laymen analyses of the entire case, and misinformation crept through texts in tabloids, but also renowned weekly magazines. one could read in the media that the members of the  Military Security Agency “confiscated” video-surveillance cameras from branch offices of two banks that had recorded a part of the incident on September 28, and that the “security officers” illegally interrogated civilians and conducted investigation, and that members of “Cobras” are illegally providing security to the prime minister and other protected persons.

Drop of accusations
The meeting of the Board for the control of security services of the Parliament of the Republic of Serbia on January 28 started in tense atmosphere and the conclusions adopted there infuriated that part of the public that had requested resignations and calling for responsibility of the top of the Ministry of defense and  Military Security Agency.
“Since the Ombudsman has failed to provide valid evidence for the claim that the Military Security Agency illegally took actions and measures for secret collection of data toward the leaders of union organizations, individual political party leaders and prosecutors and judicial officials, the Board thinks that the Military Security Agency did not take the said measures illegally”, it is stated in the conclusions from the meeting, which was open for the public. The document available at the website of the Serbian Parliament also says that “interviews conducted with witnesses of the event (by the Military Security Agency) were not conducted within any judicial proceedings, no official reports were made about them or reports on witness examination, and therefore they can be no evidence of any proceedings”.
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The decision that the data marked as “classified” should be published in “public interest”, it seems, requires a more serious arguments than those presented.
It can be expected that such a decision would launch an initiative for change of the legislation that stipulates many years of prison sentences for the person who should disclose such data or to recall the degree of confidentiality of documents in question in the procedure envisaged by the Classified Information Act.

Members of the Military Security Agency, as proved at the Board meeting, did not “take off” the cameras from buildings near the place of incident, but, as a part of collecting necessary intelligence on this event, requested in writing from branch offices of “Komercijalna” and “Alfa” banks to submit them recordings from cameras for the critical period. After the recordings had been submitted together with accompanying act, the Military Security Agency forwarded them to the competent public prosecutor’s office that was in charge of pretrial proceedings.

The Board also determined that the Ministry of Defense did not ignore the request of the Ombudsman for submission of documentation, but that it was guided by interpretation of the Law on Criminal Proceedings, and called the competent prosecutor to give an opinion whether the materials under his responsibility could be presented to Saša Janković. Additionally, the Ombudsman was called to conduct the announced control of the MSA, which he cancelled meanwhile. Furthermore, the Board suggested to the Ombudsman to “in the future, notify this board and other competent authorities in charge of control of security services on all knowledge about irregularities and illegal actions of security services, before making these illegal actions and irregularities public, because that causes unnecessary disturbance of the public and harms the reputation of security services”.

A few days after the meeting of the Parliament Board for the control of security services, the First Basic Public Prosecutor’s Office gave a statement with respect to the criminal charges filed by the Ombudsman.

“The First Basic Public Prosecutor’s Office in Belgrade, after careful analysis and examination of all evidence submitted both with the criminal charges of the Ombudsman, and the documentation and data collected within the case of the Higher Public Prosecutor’s Office in Belgrade, and upon criminal charges of the Department for Internal Control of the Ministry of the Interior, filed against the gendarmerie, has conclude that there is no basis for initiating proceedings against the reported persons Jovanović Saša and Stanković Saša, for which reason the criminal charges have been dismissed”, it is said in the statement.

Although both the Parliament Board and the competent Prosecutor’s Office gave their statement regarding the accusations of the Ombudsman, individual actors in the public discussion on this subject have been trying to maintain the “tension”. The question that is in this case still being publicly exploited is: Do “Cobras” have legal right to secure the Prime Minister or other persons whose security is at risk, and who are not within the Ministry of Defense?


JANKOVIĆ: THE INITIATED PROCEEDINGS ARE TO BE RETURNED INTO THE INSTITUTIONAL FLOW
In the statement published on Ombudsman’s website on February 3, it is said that “with respect to the inflaming of public polemics regarding the competences and application of the law buy public authorities characterized by unfounded accusations and political rhetoric, the Ombudsman calls that all initiated procedures are immediately and necessarily returned into the institutional flow”.
In his future work, it is said in the statement, Janković will continue to perform his controlling and preventive function in accordance with the Constitution and the Law, expecting that other state authorities would implement the prescribed cooperation, namely that, upon his request all data necessary for the performance of his duties would be made available to him.

“The general public, as the strongest form of control of public authorities, has been informed in the previous period as well about the measures taken with respect to control of public authorities, especially the recommendations given for the purpose of eliminating irregularities in work. The Ombudsman expects that in his future work he would not be forced to inform the public about the course of the proceedings because the competent authorities have failed to submit the requested data”, it is the official position of the Ombudsman.

If individual actors of this media frenzy cared about truth instead of misleading the public, they would know that the answers that in the name of protection of certain or someone’s rights they request can be found in the Regulation on assignment of duties of security protection of certain people and facilities (the Official Gazette, no. 72/2010) adopted by the government of the Republic of Serbia in 2010. Article 1 of that document defines the bodies in charge of security protection of people and facilities in the country and abroad, as follow: “The ministry on charge of internal affairs, Security-Information Agency, Military Security Agency, Military Police and units of Serbian Armed Forces”.
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If individual actors of this media frenzy cared about truth instead of misleading the public, they would know that the answers that in the name of protection of certain or someone’s rights they request can be found in the Regulation on assignment of duties of security protection of certain people and facilities (the Official Gazette, no. 72/2010) adopted by the government of the Republic of Serbia in 2010. Article 1 of that document defines the bodies in charge of security protection of people and facilities in the country and abroad, as follow: “The ministry on charge of internal affairs, Security-Information Agency, Military Security Agency, Military Police and units of Serbian Armed Forces”.

The Regulation further stipulates what persons will always have security protection (presidents of the state and prime ministers, ministers of defense, foreign affairs and the interior, chief of staff, directors of Police, Security Information Agency, Military Information Agency and Military Security Agency, foreign statesmen during their visit to Serbia, holders of highest judicial functions...), as well as that protection may also be granted to other state officials depending on risk assessment, and upon recommendation of the Bureau for coordination of the work of security services. President of the Republic of Serbia is the only person whose security protection is defined in more details in the said Regulation (Article 13), while Article 16 says: “Coordination of activities of security protection of certain people and facilities is conducted by the Council for National Security, through the Bureau for coordination of the work of security services, in accordance with provisions of a separate law.”

The following Article defines obligations of the persons being protected and the bodies providing that protection, and Article 18 obliges managers of the bodies in charge of security protection to regulate in more details, in a separate act from their jurisdiction, the manner of providing and implementation of measures of security protection. The following text is below: “the content of the act from paragraph 1 of this Article represents classified data and as such is protected by general and special measures of protection in accordance with the regulations on protection of classified information.”

Therefore, if the Council for National Security, through the Bureau for coordination of the work of security services entrusted the Ministry of Defense with the task to provide da security protection to a certain individual, in this case Prime Minister, the Minister of Defense was responsible to define in his act the implementation of such measures, and that is what Bratislav Gašić said on several occasions. On the basis of the same regulation, special unit of “Cobras” is now providing physical security for War Crimes Prosecutor Vladimir Vukčević, and it also provided protection for the former Minister of Justice Snežana Malović during her mandate in the government of the Republic of Serbia.

Cannon against the general
Whether the Chief of the General Staff, General Ljubiša Diković, is responsible for war crimes during the conflicts in Kosovo and Metohija in 1998 and 1999, it can only be determined by the judicial system. Both he and representatives of the third pillar of authority agrees with this. However, after the failure of “Diković Files” in January 2012, and dismissal of criminal charges filed against him in 2009, the Humanitarian Law Center attacked him again. This time, the evidence for which the center Director Sandra Orlović established as incriminating against Diković, have remained in the terrain of the media. The new “project” of the Humanitarian Law Center called “Rudnica Files”, as they say, contains evidence that the person responsible for war crimes is former commander of the 37th Motorized Brigade of the Yugoslav Army.

On February 11, plaintiff Vladimir Vukčević said that the prosecution had seen the documentation of the Center, but that, at this moment, it is unable to claim whether there is or there is no basis for anybody’s responsibility. In the same statement, Vukčević said that no one can be above the law, not even Diković.

At the time when this edition of “Odbrana” has come before the readers, the trial for the claim filed by General Diković against the Humanitarian Law Center and then director Nataša Kandić because of the serious allegations made against him two years ago, will have taken place. Prosecution for War Crimes, let us remind you, dismissed the claim filed then by the Humanitarian Law Center against Diković as unfounded.

Legal representative of the Chief of the General Staff lawyer Đuro Čepić in his statement to “Tanjug” expressed his suspicion that background of the launching of media attacks against the first man of the Army is preparation for this hearing.
If the request for compensation of intangible damages is upheld by the court, the money paid by the Humanitarian Law Center to Diković will be donated to charity. Originally, the team of lawyers representing the Chief of the General Staff in this dispute filed criminal charges for libel, but meanwhile the basis for the claim has changed because this criminal offense was deleted from the nomenclature.

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If we do not ignore the fact that Mr. Melia, by his own admission, did not even read the report of the Humanitarian Law Center on general Diković, the space for interpretation of his position becomes uncomfortably narrow. After the meeting, the Prime Minister thanked the guest “on every word he has said”, and concluded that after those words, “the citizens of Serbia understood everything”.
Everybody who dared to enter in public debate on the foundations of the allegations made in the past few weeks against some governmental structures, especially the Ministry of Defense, Army and military security services, would be labeled as a supporter of retrograde forces and opponent of democracy.

Until the allegations of the Humanitarian Law Center have been verified by the Prosecution for War Crimes, appearances of their representatives in the media may only be seen as a futile attack against the institution of Serbian Army and the man commanding it. This unique “cannon shooting” on the public scene is seen by some more moderate analysts as attempts of this non-governmental organization to secure resources for its functioning  from certain international funds, since the “subjects” on which the Humanitarian Law Center had based its existence went dry long time ago.

The fact that the allegations against General Diković were made by a “respectable organization with good reputation”, and that our country “should be happy” for having it, the citizens learned from the American Deputy Assistant Secretary of State Thomas Melia, who was in those days in an official visit to Serbia. The official of the United States in charge of questions of democracy , human rights and labor, recommended the government of Serbia to “take seriously” the report of the Humanitarian Law Center.


If we do not ignore the fact that Mr. Melia, by his own admission, did not even read the report of the Humanitarian Law Center on general Diković, the space for interpretation of his position becomes uncomfortably narrow. After the meeting, the Prime Minister thanked the guest “on every word he has said”, and concluded that after those words, “the citizens of Serbia understood everything”.

Despite the official positions of competent institutions and evidence refuting the reasons for initiating affairs, a part of the public scene would not stop heating up the discourse.
As the editor-in-chief of a renowned daily paper from Belgrade recently said on TV – non-governmental organizations and so-called independent institutions in our country enjoy the status of “holy cows”.
Everybody who dared to enter in public debate on the foundations of the allegations made in the past few weeks against some governmental structures, especially the Ministry of Defense, Army and military security services, would be labeled as a supporter of retrograde forces and opponent of democracy.

Maybe now is the good time to evaluate, within institutional framework, the responsibility of those who, unfoundedly and with no evidence, consciously or unconsciously, questioned the credibility of the institution that gained trust of the citizens in the most difficult situations the country was going through. Would it be enough if the all actors on the public scene finally regained the sense of responsibility for a word said in public ? In any case, it would be a way to obtain specific and complete answers to the questions we made at the beginning of this article. For the sake of truth.

 

*CEAS unofficial translation