Information on Parties
Information for providers
on Parties to Budapest Convention
Partnership agreement with providers
Ministry of Justice does not have any agreement with service providers, having in mind that this is not in jurisdiction of Ministry of Justice.
Powers to request information
Production order
In the sense of Article 18 of the Budapest Convention
Competent authority
Who can issue the order?
A search warrant for search of movable articles shall be issued by the court at the request of the State Prosecutor or at the request of an authorized police officer granted authorization by the State Prosecutor, and it shall be enforced by the police.
The investigating judge shall bring the order at the motion of the State Prosecutor for Submission of Data on Electronic Communications, and it shall be enforced by the police
Basis in law
Description of the power by law
(2) The search of movable articles within the meaning of paragraph 1 of this Article shall include the search of computers and similar devices for automatic data processing to which the computer is connected. At the request of the court, the person using a computer shall enable access to the computer and removable storage used for storing information relative to the object of the search (discs, USB flash discs, USB hard discs, diskettes, tapes and alike), as well as give necessary information on the use of the computer. Persons who refuse to do so although reasons referred to in Article 111 of the present Code do not exist may be punished pursuant to Article 85 paragraph 3 of the present Code. (CPC - Article 75 paragraph 2)
(1)If there are grounds for suspicion that the registered owner or user of telecommunication means committed, is committing or is preparing to commit criminal offences which are prosecuted ex officio, on the basis of an order of the investigating judge and with a view to detect the perpetrator and collect evidence or to locate or identify persons and to search for persons who are on the run or for persons after whom an international arrest warrant has been issued, the police may:
- Seek from the operator of communication services the verification of sameness, duration and frequency of communication with certain electronic communication addresses, identification of places where the persons who set up electronic communication are located, as well as the identification marks of the device;
- Identify, via technical means, the International Mobile Subscriber Identity (IMSI number) and International Mobile Equipment Identification number (IMEI number), and locate the phone and other means of electronic communication.
(2)Based on an order of an investigative judge, the police may:
1) Request from the operator of communication services the verification referred to in paragraph 1, item 1 of this Article for persons who are associated with the owner or user of means of telecommunication;
2) Perform the identification and location referred to in paragraph 1, item 2 of this Article for persons who are associated with the owner or user of the means of telecommunication.
(3) Along with the order referred to in paragraph 1, item 1 and paragraph 2, item 1 of this Article, the investigating judge shall issue a special order, listing only the phone number, email address, or the International Mobile Subscriber Identity (IMSI), an International Mobile Equipment Identification (IMEI number) and the Internet Protocol (IP) address of persons in respect of which the data on electronic communications is collected.
(CPC - Article 257a para. 1,2 and 3)If different for subscriber information
If different for traffic data
Form
How the order has to be issued
A search warrant for search of movable articles shall be submitted in writing, and only exceptionally orally in line with Article 78 of CPC.
A verbal request for issuing a search warrant may be filed when risk of delay exists.
(CPC - Article 76 paragraph 2; article 78 paragraph 1)
For Submission of Data on Electronic Communications also written order, exceptionally, if a written order cannot be issued on time, and there is a risk of delay, taking measures referred to in para. 1 and 2 of this Article may commence on the basis of verbal orders of the investigating judge. In this case, a written order must be obtained within 24 hours of issuing the verbal order. (CPC - Article 257a paragraph 5)
Preservation order
In the sense of Articles 16 and 17 of the Budapest Convention
Competent authority
Who can issue the order?
At the proposal of a State Prosecutor, and by way of a court ruling.
Basis in law
Description of the power by law
Objects which have to be seized according to the Criminal Code or which may be used as evidence in the criminal procedure, shall, at the proposal of a State Prosecutor, and by way of a court ruling, be provisionally seized and delivered for safekeeping to the court or their safekeeping shall be secured in another way. (CPC - Article 95 paragraph 1)
If different for subscriber information
If different for traffic data
Form
How the order has to be issued?
Written ruling
Emergency situations
Definition of emergency situation
What is an emergency situation in your law?
There is no definition of emergency situation in Montenegrins laws, but in case law is known what is emergency situation.
Obligation to cooperate
Confidentiality obligation
Obligation of secrecy
Is the secrecy of investigation foreseen in your law?
Should it be in the interests of criminal proceedings, keeping information as secret, public order, moral or protection of personal or family life of the injured party or the accused person, the person acting in an official capacity who is undertaking an evidence gathering action shall order the persons who are being examined or who are present while the abovementioned actions are being carried out, or who inspect the files of the investigation, to keep as secret certain facts or information they have learned in the course of proceedings and shall advise them that any disclosure of a secret constitutes a criminal offence. This order shall be entered into the record on evidence-related action or shall be noted in the inspected files, along with the signature of the person cautioned. (Article 284 CPC)
Non respect of the obligation of secrecy
What are the sanctions in case of non-compliance with this obligation?
(1) Anyone who, without authorization, discloses information obtained in a court, misdemeanor, administrative or other legally defined procedure, where such information may not be publicized under law or where it has been declared secret by the decision of a court or other competent authority shall be punished by a fine or a prison term up to one year.
(2) The punishment under para. 1 above shall also apply to anyone who, without the permission of the court, publicizes the course of the criminal proceedings conducted against juveniles or the decision passed in such a procedure or who publicizes the name of a juvenile who is being prosecuted or the data revealing the identity of the juvenile.
(3) Anyone who, without authorization, discloses identity data or personal data of the person protected in a criminal proceeding or under a special protection program shall be punished by a prison term up to three years.
(4) Where the offence under para. 3 resulted in grave consequences for the protected person or prevention or serious complications in the criminal proceeding, the perpetrator shall be punished by a prison term from six months to five years. (Article 391 CCMNE)
Exception
What are the exceptions to this obligation?
(1) The right to inspect case files shall include the right to examine, transcribe, copy or record evidence used to establish facts in proceedings.
(2) The right to inspect case files in which actions taken are confidential or where the public is excluded shall be enjoyed only by the persons who may participate in the proceedings in accordance with the present Code and the law governing the confidentiality of data.
(3) Inspection of case files shall be allowed by the body before which the proceedings are conducted, and when the proceedings are completed, before the body before which the proceedings have been completed, unless otherwise provided by the present Code. (Article 203 CPC)
Data protection agreements
European Union Member States/ Adequacy
No
Convention 108
No
Additional Protocol ETS 181 to Convention 108
No
Domestic legal framework on data protection
No
Remedies
Safeguards
Police and other public authorities shall notify the competent State Prosecutor before taking any action, except in cases of emergency. The police and other public authorities in charge of revealing criminal offences shall proceed upon the request of the competent State Prosecutor.
Sources and links
Criminal Code of Montenegro
The Criminal Procedure Code
These profiles do not necessarily reflect official positions of the States covered or of the Council of Europe.