Slovenia-Croatia: Milanović's secret plan to compromise arbitration?
The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. IFIMES has prepared an analysis of tapped telephone conversation related to the international arbitrationproceedings betweenCroatiaandSlovenia on the land and sea borderline and eventual consequences of the scandal. The most relevant and interesting sections from the comprehensive analysis entitled “Slovenia-Croatia: Milanović's secret plan to compromise arbitration?” are published below.
Milanović's secret plan to compromise arbitration?
The statement made recently by former Prime Minister of the Republic of Croatia Zoran Milanović that Dragan Lozančić, Director of Croatian Security and Intelligence Agency (SOA) “deserves the highest national medal for some of his achievements that are known only to him (Milanović), Croatia's President Kolinda Grabar Kitarović and a few other persons” has not triggered any attention in Slovenia. For several days Croatian printed and electronic media have been presenting the “heroic deed” for which Lozančić should receive national medal for obtaining tapped telephone conversation between Slovenia'sagent Simona Drenik and Slovenian arbitrator Jernej Sekolec in the international arbitrationproceedings betweenCroatiaandSlovenia on the land and sea borderline. The main part of the conversation is related to prejudicing the arbitration results that would enable Slovenia's access to high seas in the Piran bay. The whole story connected to SOA Director came up when Croatian President Grabar Kitarović demanded SOA Director Lozančić to resign due to his alleged violation of law because he did not inform her of his telephone communication with the person that was under observation by Croatian Prosecution Office and Intelligence Agency. Lozančić was immediately defended by former Prime Minister and leader of the opposition Social Democratic Party (SDP) who made his statement – probably recklessly – from the point of view of Croatian national interests.
Why have none of the officials nor the media in Slovenia reacted to obvious evidence that Croatian intelligence services participated in compromising the arbitration proceedings, thus causing irreparable damage to the national interests of the Republic of Slovenia?Why has the general public in Slovenia not been informed of what measures the competent Slovenian authorities took in order to provide accurate and reliable answers as to how could the telephone conversation between Slovenian high officials be recorded and/or obtained by Croatian intelligence agents?
TAPPED TELEPHONE CONVERSATION WAS OBTAINED BY CROATIAN INTELLIGENCE AGENTS
It is clearly evident from the statement made by former Prime Minister Milanović that the transcripts and audio recordings that "appeared" in the media in Croatia and the region were obtained by Croatian Security and Intelligence Agency SOA.Why did the Croatian leadership submit the sound recordings to the media instead of using them directly in the proceedings before the arbitral tribunal? They obviously wanted to avoid being connected in any way with the tapped conversation for several reasons:
Firstly, in terms of proceedings, it is very difficult to use tapped telephone conversations even in criminal proceedings and even more so before an international arbitral tribunal, especially in a situation when tapped conversation is used to criminalise the corrupt activities of that arbitral tribunal.
Secondly, the question is before which body and under what proceedings could Croatia use the tapped conversation?
Thirdly, the recognition that the Croatian state used intelligence activities to undermine the arbitration procedure would have opened a number of other negative international political and legal implications for Croatia.
Fourthly, even if there was a procedural possibility to use the tapped conversation before the court, Croatia would have to prove the authenticity of intercepted conversation or at least to reveal to the court how the conversation was obtained and whether if was obtained through its intelligence agents or, if it was recorded by a "third party", how did the recording simultaneously or subsequently came into possession of Croatian intelligence agency.
Fifthly, through the process of proving authenticity if would be established whether Croatia violated international norms by using its intelligence services against an international institution and their representatives or parties to the proceedings, and whether Croatia thus acted in breach of international and Slovenian law.
Sixthly, the recognition that Croatia tried to undermine the arbitration proceedings through its intelligence activities may have resulted in a negative arbitration decision for Croatia. There are many questions. It would be interesting to find out why Croatia left the tapped conversation to the media and failed to enter into an active process before the arbitral tribunal, and it would be even more interesting to find out why the competent Slovenian authorities did not deal with the above issues?
“DEEP THROAT” IN SLOVENIAN INSTITUTIONS
The second set of questions is related to the method of tapping the conversation:
Firstly, was the conversation recorded by one of the participants in the conversation? Hypothetically, there is a real possibility that for example the official of Slovenian Foreign Ministry Simona Drenik by someone's order or at her own initiative recorded her conversation with Slovenian judge in the arbitral tribunal. On the other hand, it is also possible that Slovenian judge Sekolec recorded his conversation as some kind of evidence or by someone's order. Did the competent Slovenian authorities analyse the recording of the telephone conversation that was published in the media and obtain the relevant expert opinions? Is there any expert opinion obtained by Slovenian authorities on the tapped conversation? The expert opinion can reveal with a great deal of probability the aspects such as authenticity and manner of conversation, inserted or interrupted parts of the conversation, type of communication, manner of recording etc. If the conversation was recorded by one of the participants in the conversation, the question is under whose order and why he/she recorded it and who had access to the recording, how the recording was copied, what was the storage and control procedure etc.? Such recording would be of interest for Croatia and its intelligence services, which means that obviously it was someone inside Slovenian structure that enabled Croatia to obtain the recorded conversation, regardless of the reason or interest of that person. Who in Slovenia (and why) would have such an interest and who would be the target of such activities?
Secondly, did the Republic of Croatia possess the technical possibilities to record telephone conversations between Slovenian high officials? Such capacity could be expected in the largest security and intelligence agencies in the world, but not in Croatia, especially when the telephone conversation takes place on the Ljubljana-Vienna line. So in technical terms it would be very difficult if not impossible for Croatia to wiretap the telephone conversation by monitoring the communication channels.
Thirdly, there is a possibility that Croatian intelligence agents operated outside Croatia's territory and that they managed to wire the rooms or telephones and/or mobile phones used by Slovenian representatives. It is even possible that they had access to such devices or that they managed to “take” the memory from the devices used by high officials, provided such recording was kept in those devices or if one of the parties recorded the conversation and stored it in the phone memory.
Fourthly, any speculation on the minimal possibility that the conversation was submitted to the Croatian authorities by their partner intelligence agency would be nothing but nonsense, especially when it comes to western intelligence agencies which wouldn't dare give their recording to either of the two sides, since that would be the main task of their respective government. There is hypothetical possibility that telephone conversation ended for example in the hands of some “eastern service” which then passed it to Croatia, but the manner in which Milanović “defends” SOA Director Lozančić presenting him as a hero that deserves a medal clearly shows that Croatia obtained the recorded telephone conversation through intelligence activities rather than through partnership and cooperation with another intelligence agency or service. It also shows that Croatia had a secret political plan to compromise Slovenia and undermine the arbitral tribunal, and the instruction to perform such action was received by SOA which is led by Lozančić.
WHO ENABLED LOZANČIĆ TO CARRY OUT HIS “HEROIC DEED”?
The competent Slovenian authorities should initiate mechanisms to determine why the Slovenian high representatives without any logical reason held such a long and "open" telephone conversation on the topic of such utmost importance for one country that represents the national interest of this country. They should also find out whether one of the participants in the conversation recorded the conversation and by whose order – this could be the key to the whole story. Moreover, the competent departments and bodies, ministries and the prosecutor's office of the Republic of Slovenia should (in case they have not yet) open an official investigation in order to find out how and in which way Croatia got hold of the recorded conversation which is apparently authentic.
The "heroic deed" of SOA Director Lozančić, as it was presented by Milanović, gives the analysts the right to consider that there is indeed a "deep throat" in Slovenian institutions, including the possibility for a non-professional approach by Slovenian high officials from various institutions who failed to do their job properly.
This is a complex problem and everyone in Slovenia from its Foreign Minister to the political elites and intelligence services are afraid of assuming responsibility.
The IFIMES International Institute believes that a thorough and comprehensive investigation should be carried out – not in order to look for the scapegoat but with the aim to perform a professional and expert investigation that would be led by the prosecutor's office (since there are elements of possible criminal liability should someone have wilfully betrayed national interests and their country) in order to find the answers to all the questions. It will be easier for everyone in Slovenia to know the truth, no matter how painful it is. The situation of Slovenian security and intelligence sector was very vividly illustrated by Deputy Chair of the Slovenian Parliamentary Commission for the Supervision of Intelligence and Security Services Matej Tonin (NSi) who proposed dissolution of existing and the establishment of new security and intelligence structures with a different modus operandi. Tonin believes that both Slovene Intelligence and Security Agency (SOVA) and the Intelligence and Security Services of the Ministry of Defence (OVS MORS) should be dissolved and suggests that two new services be established – one for intelligence activities and the other one for counterintelligence activities. This would enable the unification of SOVA, OVS MORS and the Foreign Affairs Ministry's Department for Strategic Studies and Analyses. The task of the newly established security and intelligence system would be to obtain information, prepare analyses and assess risks in order to provide support to foreign and defence policies of the Republic of Slovenia. What Slovenia needs in this case is the truth, since the only thing that is worse than painful truth is painful untruth. And the truth is that from a long-term perspective there have been several cases of breaking into Slovenian security and intelligence system as well as undermining and jeopardising Slovenian national and strategic interests.
Ljubljana, 15 February 2016
 From direct vicinity it is technically feasible to take or download all databases from the memory of a mobile telephone or other similar devices.