Ensuring the effectiveness, institutional independence, the impartiality of the Special Investigation Service, and the fulfillment of the recommendations of the Venice Commission related to these issues is part of the conditions set by the European Commission to Georgia on November 8, 2023. It should be noted, that on December 18, 2023, the Venice Commission published an opinion in which a number of recommendations were made for the institutional and functional strengthening of the Special Investigation Service. No changes have been made to the legislation on the Special Investigation Service since the publication of this opinion. Accordingly, the consideration of these recommendations should remain on the agenda of Georgia.
On February 26, information was spread about the draft law initiated in the Parliament of Georgia, which, according to the explanatory note, should be aimed at further promoting the effectiveness of the performance of the Special Investigation Service and the issues of its institutional independence and impartiality. Despite this goal stated in the explanatory note, based on a detailed study of the draft law and analysis of the recommendations of the Venice Commission, IDFI is of the opinion that although some of the changes are in line with particular recommendations of the Venice Commission, overall, they are fragmentary and do not respond to a large part of the key recommendations of the Venice Commission.
Analysis of the December 18, 2023 opinion reveals a number of key recommendations of the Venice Commission. These include:
- Selection and appointment of the Head of the Special Investigation Service following the principles of transparency and representation, ensuring inclusiveness in the decision-making process;
- Decision-making of the competition commission by votes of the majority of the members;
- Exclusion of the participation of the Prosecutor General's representative from the composition of the competition commission;
- To ensure the independence of the service, expanding guarantees of inviolability not only to the Head of the Service but also to the deputies and core staff;
- Resolution of the issue of termination of the immunity of the Head of the Service by a qualified majority of votes;
- Granting independent prosecutorial powers to the Special Investigation Service;
- Extending the investigative authority of the Special Investigation Service to all representatives of the law enforcement agencies, including, and especially, high-ranking officials (the Minister of Internal Affairs, the Prosecutor General, and the Head of the State Security Service) and all prosecutors;
- Extending the investigative jurisdiction of the Special Investigation Service to all crimes related to serious violations of human rights and committed by representatives of law enforcement agencies (including high-ranking officials).
The initiated draft law covers issues such as the authority to publish a special report, the possibility of selection of a member of the competition commission by the Public Defender without an open competition as well, the extension of the time frames for setting up the competition commission for the selection of the Head of the Service and the duration of its activity, the publicity of the statute of the competition commission, the decision-making procedure for the competition commission, resolution of the issue of termination of the immunity of the Head of the Service, the extension of the investigative jurisdiction of the Service to specific crimes under the Criminal Code in the case committed by the prosecutor.
IDFI provides an assessment of the changes envisaged by the draft law, in light of the current legal framework and the recommendations of the Venice Commission:
Authority to publish a special report - the draft law envisages the empowering of the Special Investigation Service to issue a special report on matters related to its activities that it deems important, at any time, based on its own initiative. In relation to this issue the Venice Commission indicates that “an expert body which performs general supervisory functions should be able to make special reports apart from producing an annual one” (Para. 72). Accordingly, the mentioned initiative complies with the recommendation of the Venice Commission.
The possibility for the Public Defender to select a member of the competition commission without competition - the initiated changes envisage granting to the Public Defender the authority to nominate a person with appropriate experience as a member of the competition commission for the selection of the Head of the Special Investigation Service without competition as well. At the same time, the draft law no longer provides for the requirement that the non-entrepreneurial legal entity, from which the relevant person can be selected, has to have work experience in the field of personal data protection and remains a reference to the requirement of work experience in the field of human rights protection. The Venice Commission discusses the mentioned issue in light of the time frames defined for the activities of the competition commission and notes that in the current framework, especially in the case of premature termination of the term of office of the Head of the Special Investigation Service, the Public Defender may not be able to hold a competition for the selection of the nominee to be presented to the commission (Para. 62-63). Accordingly, the Venice Commission recommends entitling the Public Defender “to nominate a member of the competition commission without the necessity of holding a competition,” thus the initiated legislative amendment is in line with the recommendation of the Venice Commission.
Time frames for setting up the competition commission for the selection of the Head of the Service and its operation - According to the draft law, not earlier than 14 weeks and no later than 12 weeks before the expiry of the term of office of the Head of the Special Investigation Service, and in case of early termination of his/her mandate - within 2 weeks, the agencies and institutions defined by the legislation shall inform the Prime Minister of Georgia about the names of the members of the competition commission for the selection of the Head of the Special Investigation Service. Compared to the legislation currently in force, the term for setting up the commission for the selection of candidates for the Head of the Service has been increased, both in the case of the expiration of the term of office and the case of early termination of the mandate. In its Opinion of December 18, 2023, the Venice Commission discusses the time frames envisaged by the current legislation for the composition and operation of the competition commission and recommends its extension (Para. 61). Therefore, it can be considered that the amendments initiated concerning this issue are in line with the recommendation of the Venice Commission.
Publicity of the statute of the competition commission - according to the draft law, the statute of the competition commission, that determines the rules and procedures of the competition commission's operation, as well as the terms and procedure for submitting nominations for the position of the Head of the Special Investigation Service to the commission, should be publicly published. In its opinion, the Venice Commission recommends that “the rules and procedures governing the commission, and the process by which candidates are to be selected are laid down by legislation, or by equivalent statutory instrument, which should also include the criteria for the selection or appointment of the Deputies of the SIS” (Para. 59). While discussing this issue, the Venice Commission indicates that this approach will ensure “some democratic oversight” and prevent “possibility of inconsistency of approach” (Para. 58). As for the deputies of the Head of the Service, taking into account their powers, the Venice Commission considers that the legislation should define specific guarantees regarding their selection and appointment process (Para. 58). Taking into consideration the above mentioned, the mere reference to the publicity of the Commission's statute does not correspond with this recommendation of the Venice Commission.
The decision-making process of the competition commission - according to the initiated draft law, the competition commission for selecting the Head of the Special Investigation Service will select no less than 2 and no more than 5 candidates for the position of the Head of the Special Investigation Service by the majority of the votes of the full composition and will present them to the Prime Minister of Georgia. Under the current legislation, the commission selects candidates not by the majority of the votes of the entire composition, but by the majority of the votes of those present. This issue is reflected in the opinion of the Venice Commission, which indicates that “to enhance inclusivity in decision-making, and more importantly, for the sake of reinforcing the independence of the competition commission and public trust in the institutions” it is recommended to replace "majority of votes" with "votes of the majority of the members" (Para. 56). Therefore, this amendment is in line with the recommendation of the Venice Commission.
The procedure of decision-making on the termination of the immunity - the draft law determines the necessary number of votes for giving the prior consent to arrest or detention of the Head of the Special Investigation Service by the Parliament of Georgia. In particular, the draft law envisaged adding provision to the legislation, according to which, the Parliament of Georgia shall decide on these issues by a majority of its full composition. While discussing the issue of the prior consent of the Parliament regarding the arrest or detention of the Head of the Special Investigation Service, the Venice Commission indicates that the said decision should require the support of “qualified majority of votes” in the Parliament (Para. 67). Since the initiated amendment provides for decision-making by the majority of the full composition of the Parliament and not a qualified majority, this initiative cannot be considered as a full implementation of the recommendation of the Venice Commission in this part.
Extending the investigative jurisdiction of the Special Investigation Service to specific crimes under the Criminal Code in case committed by the prosecutor - The current legislation provides for an exception and excludes the investigative jurisdiction of the Special Investigation Service in case of the prosecutor committing any of the crimes provided for in the specified articles. The named exclusion is removed by the initiated draft law and the investigative jurisdiction of the Special Investigation Service will be extended to the crimes committed by the prosecutor provided for in Articles 108, 109, 111, 113−118, 120-124, 126, 126¹, 137-139, 143-144 and 150-151¹ of the Criminal Code of Georgia. One of the key recommendations of the Venice Commission is to extend the investigative jurisdiction of the Special Investigation Service to all law enforcement officials, including, and especially, “high-ranking officials” and all prosecutors (Paras. 92-93). Taking into account the scope of this recommendation, the extension of investigative jurisdiction of the Special Investigation Service to specific crimes committed by prosecutors is only one element of the implementation of the recommendation.
The initiated amendments increase the mandate of the Special Investigation Service, including partially addressing one of the key recommendations of the Venice Commission (the Investigation Service will be able to investigate crimes committed by prosecutors).
However, the draft law does not take into consideration several key recommendations of the Venice Commission, including:
- Refinement of the scope of the investigative jurisdiction of the Special Investigation Service and its extension to crimes related to serious human rights violations committed by representatives of law enforcement agencies. (This recommendation may imply the exclusion from the existing mandate of the Special Investigation Service of those crimes that are not committed by law enforcement and, on the contrary, the extension of the mandate of the Investigation Service to those crimes that are committed by law enforcement);
- Extending the mandate of the Special Investigation Service to crimes committed by the Prosecutor General, the Minister of Internal Affairs, and the Head of the State Security Service;
- Provide the Special Investigation Service with independent prosecutorial powers;
- Limiting the participation of a serving law enforcement/prosecutor in the competition for the selection of the Head of the Investigation Service (exclusion of the representative of the Prosecutor General's Office from the composition of the competition commission and participation of acting law enforcement as a candidate within the competition).
Despite the positive change, the initiated package is fragmented and does not take into account the systematic approach needed to ensure the institutional and functional independence of the Special Investigation Service. The legislative package leaves out several key recommendations. In addition, taking into account the mandate of the service, we consider it important that further systematic steps to ensure its institutional and functional independence should be taken with the involvement of the Investigation Service and other interested parties.
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