3 Services provided by security companies
4.3 Political affiliations
With part of the sector government-owned (see above), formal links between companies and the state obviously exist. The best example of this is the position of the Deputy Minister of the Interior who serves on the board of the state-owned security company AKD-Zaštita.30
Reference to informal (and inappropriate) links between PSCs and the political sphere have been made in a previous report on the privatization of security in Croatia, which claimed that ‘…competition between firms is not based on professionalism, but on various forms of personal and even political nepotism. There is evidence that people get their licences to operate because of their close relationship with politicians or their party membership’.
While this may be the case, no legally proven case of such malpractice could be found on record during this research.31 This has not prevented allegations emerging, including those from inside the sector itself – several privately owned PSCs complain that the state-owned firm AKD-Zaštita is in a privileged position on the market, getting the best contracts for the protection of government institutions (e.g. ministries, government offices etc).
Another potential area for links between PSCs and the political sphere arises with the apparently regular practice of PSCs making financial contributions to election campaigns in the hope of political favours.32 If PSCs that provided campaign funds were subsequently awarded contracts following the success of a political party, procurement procedures would obviously be called into question. Once again, there is no hard evidence that such contributions have given PSCs undue influence. While most political systems do not prohibit donations from particular economic sectors, cases have come to light elsewhere of PSCs apparently obtaining undue influence in this way.33 This issue may warrant special attention in a country that faced significant challenges establishing control over politically connected paramilitary groups in a post-war context.
A final area in which PSCs have been suspected of being too closely linked with the political process involves the use of PSCs during election rallies. In one hotly debated case, two factions within the HDZ party disputed the use made by one side of staff of Borbaš security at the 2002 party congress, with allegations being made by their opponents that security guards, (who wore plain clothes in contravention of the law), were used for intimidation.34 There are however no similar cases on record.
28 Op cit Franjo, Martic, Starcevic.
29 The use of Latin or Cyrillic scripts is one of the main defining features of ethnic-Croat and ethnic-Serbs in Croatia.
30 The Croatian MoI is at pains to stress that even though the AKD-Zaštita security company is state-owned, and that the president of the supervisory board is Minister’s Assistant of the Ministry of the Interior, there is no influence on the professionalism of the mentioned company, since this appointment is for oversight purposes with contracts being awarded competitively. Correspondence with Drazen Krtanjek, Head of Cabinet, Ministry of Interior, 26 July 2005.
31 Op cit Martic, Vrbanc, Starčević.
32 Op cit Martić, Starčević.
33 Lobbying and political campaign donations on the part of PSCs have been shown to have a bearing on the awarding of contracts in the US.
One source estimates that only 40 per cent of US DOD contracts between financial years 1998 and 2003 were awarded on the basis of ‘full and open competition’. Isenberg, D, ‘Security for Sale in Afghanistan’, Asia Times Online, 04 January 2003, URL http://www.atimes.com. The International Consortium of Investigative Journalists (ICIJ) estimates that private contractors in Iraq donated more than $500,000 to George W. Bush’s 2004 presidential campaign. See ‘Windfalls of War’, URL http://www.publicintegrity.org/icij.
34 Two years later, during a local election campaign, and apparently alluding to the circumstances of the HDZ 2002 congress, some political parties accused HDZ of introducing ‘Borbaš-democracy’. Drago H ‘Josi Škari su prijetili likvidacijom djece,’ Feral Tribune, 04 May 2002;
Ljubičić M, ‘SDP-HNS-Libra: S HDZ-om se na velika vrata vraća ‘Borbaš’ demokracija,’ Vjesnik, 16 January 2004.
4.4 Organised crime affiliations
Following the emergence of the private security sector in Croatia in the early nineties, cases came to light in which known criminals (including former combatants) were found to be working for PSCs. With the end of the war (1991 - 1995) and with the introduction of the first legislation regulating the sector in 1996, such cases began to occur far less frequently.35 Interviews carried out for this research indicate that in a few cases PSCs have continued to serve as a cover for racketeering. In one reported case, which is not believed to be isolated, the owner of a vehicle repair shop was approached by a certain PSC and told that he needed protection. The owner declined, and next morning the cars in his shop were found damaged. It has also been alleged that some organized crime groups are trying to legalize their operations through becoming PSCs.36 For its part the Croatian Ministry of Interior (MoI) stresses that action has been taken in all cases where there is a suspicion of illegal conduct either by individuals applying for PSC licences or companies conducting such business and that no information is on record concerning the misuse of PSCs by organised criminal gangs.37 Certainly the regulatory authorities should continue to monitor PSCs on an ongoing basis, but further research may be required to determine the extent of this problem.
5 Regulation and conduct
5.1 Legal basis for control of PSCs
As of 30 December 2004 there were 64 laws and 68 regulations governing the operations of PSCs. The key legal instruments are listed below:
n There is a special law regulating the private security sector: Private Protection Act of 22 April 2003.38
n The previous legislation regulating this sector was the Protection of Persons and Property Act of 8 October 1996.39
There are also dozens of bylaws regulating specific aspects of the private security sector and work of PSCs and related institutions. The most important of these are:
n Education, Training and Professional Examination of Private Security Agents and Guards Regulation of 26 July 2004, (for physical protection positions).40
n Conditions, Ways of Examination, and Program of the Professional Examinations for Private Security Agents-Technicians Regulation of 18 November 2004, (for technical surveillance positions).41
n Ways of Establishing General and Specific Health Ability of Guards and Private Security Agents Regulation of 24 March 2004.42
n Physical Protection Regulation of 7 November 1997.43
n Technical Protection Regulation of 2003.44
n Private Security Guard and Private Security Agent Identity Card Regulation of December 2003.45
35 Correspondence, Professor Ozren Zunec, University of Zagreb, 22 February 2005.
36 Interview, PSC owner, February 2005.
37 Correspondence with Drazen Krtanjek, Head of Cabinet, Ministry of Interior, 26 July 2005.
38 ‘Zakon o privatnoj zaštiti,’ Narodne Novine 68/2003.
39 ‘Zakon o zaštiti osoba i imovine,’ Narodne Novine, 83/1996.
40 ‘Pravilnik o izobrazbi i stručnom ispitu za zaštitare i čuvare,’ Narodne Novine 103/2004.
41 ‘Pravilnik o uvjetima i načinu polaganja te programu stručnog ispita za zaštitara – tehničara,’ Narodne Novine, 161/2004.
42 ‘Pravilnik o načinu utvrđivanja opće i posebne zdravstvene sposobnosti čuvara i zaštitara u privatnoj zaštiti,’ Narodne Novine 38/2004.
43 ‘Pravilnik o obavljanju poslova tjelesne zaštite,’ Narodne Novine, 119/1997.
44 ‘Pravilnik o uvjetima i načinima provedbe tehničke zaštite,’ Narodne Novine, 198/2003.
45 ‘Pravilnik o čuvarskoj i zaštitarskoj iskaznici,’ Narodne Novine, 202/2003.
n Documentation and Evidence of Weapons and Ammunition Regulation of 1999.46
n Spatial and Technical Conditions of the Private Security and Private Detective Company’s Premises Regulation of 1997.47
n There is a law that stipulates mandatory protection/security measures in financial institutions, a service normally provided by PSCs: Minimal Protection Measures in Operations Involving Cash and Valuables Act, of 31 October 2003.48
The key ramifications of these laws are discussed in the following sections. It is however worth noting that some of the byelaws that apply to PSCs are not in compliance with the Private Protection Act of 2003, but in compliance with the old Protection of Persons and Property Act of 1996, leaving the legal framework unclear or contradictory in places.49
5.2 Use of force and firearms
Some PSCs in Croatia are armed. The company must own these weapons and the use of private weapons by security guards when on duty is forbidden.50 There are two types of PSC personnel: guards (lower ranking) and private security agents (higher rank). Guards are not allowed to carry firearms, but private security agents are.51 Private security guards can be armed only if they are authorized to carry arms according to the Firearms Act (general regulation).52
Private security agents can use only small arms (pistols and revolvers), of calibre 9 mm or greater.53 Military weapons are not allowed. They can also use dogs and physical force. There are several restrictions on the use of firearms, dogs, physical force, and other procedures. Private security agents can be armed, but only in the following circumstances: 1) if protecting financial institutions; 2) if serving as bodyguards; 3) if protecting objects containing radioactive material and other harmful substances; 4) if protecting money that is being transported;
or 5) if protecting national defence facilities/objects. 54
On the premises that they protect, private security guards and agents are allowed to do the following:
a) Check the identity of the person entering/exiting the premises;
b) Give warnings;
c) Temporarily halt persons only if they are about to commit a crime if this is necessary for apprehending the person or if this is necessary for securing the crime scene, witnesses and similar;
d) Search persons, vehicles and objects entering the facility they protect. The search of the person is limited to clothing and footwear (body cavities excluded). If the person refuses to be searched and if there is suspicion that he or she carries an object that could be used as evidence in penal procedures, the guard/agent can halt the person but must then call the police;
e) Secure a crime scene or scene of other events before the police arrive;
46 ‘Pravilnik o obrascima isprava i načinu vođenja evidencija o oružju i streljivu,’ Narodne Novine 118/1999; amended in 45/2001; 17/2002;
148/2002; 29/2003; 173/2003.
47 ‘Pravilnik o prostornim i tehničkim uvjetima koje mora ispunjavati prostor u kojem se obavlja zaštitarska ili detektivska djelatnost,’ Narodne Novine, 40/1997; amended in 107/2002.
48 ‘Zakon o minimalnim mjerama zaštite u poslovanju s gotovim novcem i vrijednostima,’ Narodne Novine, 173/2003.
49 Op cit Starčević.
50 ‘Private Protection Act’ (‘Zakon o privatnoj zaštiti’), Narodne Novine, 68/2003, Article 40, Subsection 2.
51 Ibid, Article 40.
52 Ibid, Article 23/1.
53 Ibid, Articles 41 - 42.
54 Ibid, Article 40.
f) Agents (not guards) can use dogs. There are restrictions of usage: dogs can be used only on protected premises and they cannot be used in open spaces. The only exception is the protection of natural sites, at which the dogs can be used in the open. Dogs can be used for attack/defence only if the conditions for the use of physical force or firearms exist;
g) Use of physical force is limited to cases where there is a clear illegal assault on the agents or the persons they protect, or where an assault on the property they protect is underway. Under these circumstances force may be used if the commands or warnings of PSC staff are not obeyed, or if suspects attempt to escape; and
h) Agents (not guards) can use firearms only if they are engaged in the protection of financial institutions, if they are serving as bodyguards (close protection) and in other circumstances described above. Agents may legally discharge their weapon only where there is no other way to protect persons and objects.
Before firing, an agent must give two clear warnings that he intends to shoot if the person does not obey. If firing, the first round must be fired into the air. Firearms cannot be used against persons under the age of 18. If firing, agents must take care not to inflict lethal wounds and to inflict the least possible damage. If they have applied measures under points c, e, f, g and h above, agents must inform the responsible person in the PSC not later than eight hours after the measure has been applied. The responsible person must then inform the police in writing, not later than 24 hours after the measure has been applied. The police are then required to review the report, investigate the circumstances and decide whether the measures deployed were legal and justified.
Every PSC must have an armoury that conforms to certain specifications (e.g. it must be fireproof for several hours, be alarmed etc).55 The MoI issues a register of weapons and ammunition to each workplace that is licensed to retain firearms. This is to be kept on the company premises. A similar register is required at the facilities, which PSCs have applied to guard using firearms, and on arrival and departure at the site, agents are required to sign in and out. 56
Although the evidence gathered during the course of this research did not point to any conclusive evidence that force or firearms are routinely being misused by personnel employed in the sector, one of the human rights organisations contacted knew of six or seven such cases as having been publicly reported during the past five years.57 It appears however that in each of these cases, the guards or agents accused of excessive use of force were ultimately cleared.58When interviewed for this research report, the Association of Security Services complained that private
security agents are not allowed to use weapons other than firearms. While wanting to retain the option to use firearms, they argued that the additional use of less-lethal weapons (sticks, electric shock devices etc.) would provide a better solution to the problems PSC staff face. The legal prohibition on PSC staff using handcuffs when apprehending a suspect was also commented on, and cited as counter-productive since it encourages the use of other, less ‘elegant’ methods of restraint by guards while they await the arrival of the police.59