The scope of application of covert investigative actions should not be extended to all misconduct
Friday, January 18
As per the Explanatory Note to the draft Law, the main purpose of the amendments has enhanced the efficiency of fighting against corruption. Combating corruption is the key task and challenge of the state, but the aforementioned legislative amendments do not constitute efficient, relevant and equivalent mean for the attainment of the goal and contain an unreasonable risk of breaching the right to privacy.
We would hereby like to stress a number of key issues with regard to the proposed draft Law, the Parliament of Georgia should pay particular attention to:
1. Covert investigative actions should not be applied with regard to all types of official misconduct
According to effective Code of Criminal Procedure of Georgia covert investigative actions can be applied only with regard to intentional grave crimes and the most serious crimes, also to certain categories of crimes, that constitute particularly dangerous actions against the public. In 2014, when the Code of Criminal Code of Georgia regulated covert investigative actions, each type of crime, the covert investigative actions were supposed to cover, were widely discussed and debated. The final version of the law was drafted under the involvement of the European experts and was approved by the international organizations.
The necessity of application of covert investigative actions should be duly justified with regard to each article. Covert investigative actions constitute the restriction of the right to privacy and their application by law enforcement agencies should be conditioned by urgent necessity. Furthermore, it should as well be mentioned, that the extension of covert investigative actions to the whole chapter on Official Misconduct also contradicts the provisions regulating this institute. Under the Code of Criminal Procedure of Georgia, the covert investigative actions can be conducted only when the investigation is already underway or/and criminal prosecuting is initiated against intentionally grave or/and the most serious crime or certain crimes envisaged by the Criminal Code of Georgia.
According to these regulations, no covert investigative actions can be applied with regard to crimes by negligence, even if the crime is the grave one. The proposed draft Law allows for the application of covert investigative actions with regard to negligent crimes of lesser gravity falling within the framework of Official Misconduct chapter, what is unacceptable for the logic of law. We particularly refer to crimes, envisaged by Article 342 (Official Negligence) and 3421 (Breach of Established Official Rules by an Official of a Special Penitentiary Service of Equalized Thereto Person) of Criminal Code of Georgia, the subjective elements of which imply the commitment of these crimes only by negligence ("non or improper performance due to negligent attitude"). Based on the foregoing covert investigative actions should not be conducted with regard to these types of crime.
The introduction of the Institute of covert investigative actions into the Code of Criminal Procedure of Georgia through the amendments of 2014 was major progress. In good time, these amendments aimed at an observance of basic standards, prescribed by the case law of the European Court of Human Right (ECHR). According to ECHR practice, along with other basic criteria, the legitimization of covert investigative actions is largely conditioned by certain categories of crimes and nature of relevant criminal actions (E.g. HUVIG v. FRANCE, Application no. 11105/84; VALENZUELA CONTRERAS v. SPAIN 58/1997/842/1048). The criteria, that are based on standards, limit the potential of a state to control society through covert surveillance at any time and sets special limits for the application of this instrument. The introduction of the above amendments into the Code will unjustifiably extend the scope of application of covert investigative actions and create risky precedents for making further amendments thereto in future as well.
2. The legislative amendments constitute inefficient and inadequate mean for combating corruption
Unwarranted extension of covert investigative actions to the whole chapter on Official Misconduct cannot be justified by reason of combating corruption.
Many international organizations gave recommendations to Georgia for the intensification of its fight against corruption, however there no recommendation amongst them about the application of covert investigative actions with regard to all types of official misconduct. It should be mentioned, that the European Parliament Resolution of 14 November 2018 stresses the necessity of detachment of investigation of corruption crimes from State Security Service and creation of a separate independent authority to this end. The NGOs have been repeatedly stressing risks related to the investigation of corruption crimes by the State Security Service and extension of total control of the State Security Service over the civil service. Application of covert investigative actions with regard to all types of official misconducts is particularly risky against this background.
3. The legislative amendments transcend the scope of enforcement of the ECHR judgment
According to the Explanatory Note to the draft Law, the purpose of adoption of the draft Law is the implementation of a general measure for the enforcement of the judgment of the ECHR Grand Chamber. In its judgment of 28 November 2017 in the CaseMerabishvili against Georgia (N72508/13) the ECHR stated that the electronic data about telephone communication between certain persons and service-providing cellular towers were to be collected.
The court judgment concerned a specific crime and implementation of an investigative action with regard to this very crime, implying the collection of information about telephone communications of a certain person and service-providing cellular towers.
Respectively it is not reasonable to refer to court judgment to justify the reasonability of adoption of the draft Law. Extension of application of covert investigative action to all types of official misconduct transcends the purpose and scope of enforcement of the Judgment.
4. The Parliament should thoroughly examine the enforcement of legislation regulating covert investigative actions and develop legislative amendment only after that.
Provisions regulating covert investigative actions became effective in 2014. It is reasonable to study and analyze whether with regard to which articles these provisions are applied in practice and also the efficiency of their application; also whether the obtained materials are well protected and destroyed in a timely manner; how is the law interpreted and practically enforced with regard to both covert investigative actions and procession of computer data. Against the background of the gaps, existing in practice, the application of provisions on covert investigative actions with regard to official misconduct cases will cause additional problems in practice.
5. No fragmentary changes should be made before the decision is made with regard to legislation regulating covert investigative actions
The legislation regulating covert investigative actions do not meet the human rights protection standard, guaranteed by the Constitution of Georgia and strongly contradicts the right to privacy and free development of an individual. The dispute with regard to this issue - on finding the above regulations unconstitutional - is still pending at the Constitution Court of Georgia within the framework of the campaign "This Affects You Too". The Operative-Technical Agency - the body subordinated to State Security Service is not that independent authority, which may have direct access to telecommunication means and it poses an actual risk of an unlawful procession of personal data. Against the background of such unconstitutional regulations, there is jeopardy of bad-faith application of this mechanism against public servants.
Based on the foregoing, we hereby request the Parliament:
To abstain from the fragmentary amendment of legislation on covert investigative actions before the decision is made by the Constitutional Court, which amendments will further increase the risk of breach of the right to privacy;
To take account of the comments and opinions, offered by use, during the discussion of the draft Law;
To request the justification with regard to each article from the initiator of the draft Law (statistic data, research, recommendations or practical analysis), on what basis the covert investigative actions should be applied with regard to a specific crime, what is the legitimate necessity for the state to suppress any action, envisaged by the chapter on Official Misconduct through covert investigative actions and to make its final decision only after the foregoing.
Transparency International Georgia
Young Lawyers Association of Georgia
Human Rights Education and Monitoring Centre
Human Rights Center
Liberal Academy
Article 42 of the Constitution
Democratic Initiative of Georgia