Proposals of the “Institute for Development of Freedom of Information” regarding implementation of European Union’s priorities

News | Rule of Law and Human Rights 23 September 2022

“The Institute for Development of Freedom of Information” (IDFI) is represented in four working groups established in order to implement the European Commission’s recommendations. Currently, we suspended our participation in all working groups until the elimination of discriminatory treatment against ISFED. In this document, we present proposals that we have submitted, were going to submit, or/and support in relevant working groups. Proposals presented below do not include all of IDFI’s recommendations regarding the implementation of the 12 priorities. Specifically, the following proposals only concern those working groups of which IDFI was a member, taking into consideration their mandate. 

 

  1.     Procedural Issues and Rules Committee – (competency of the working group: strengthening the parliament’s controlling powers by adopting amendments in the Rules of Procedure of The Parliament of Georgia)

 

a)   Establishing legal responsibilities for preventing the implementation of parliamentary oversight functions and supervising mechanisms;

 

Explanation: There were several cases on the website of the Parliament of Georgia where public institutions leave answers to the questions of a member of parliament incomplete and/or respond in violation of the regulations. Administrative Offenses Code of Georgia should be amended and a legal responsibility should be imposed on an institution/official for violating provisions stipulated in the Rules of Procedure of The Parliament of Georgia and interfering with implementation of supervisory function of a member of parliament (similar to the article 173⁴ of Administrative Offenses Code of Georgia, which establishes legal responsibility for non-compliance with a lawful demand of the Public Defender of Georgia).

 

b)   Expansion of the circle of addressees for questions of the member of parliament (including issues regarding the administration of justice);

 

Explanation: According to article 148 of the Rules of Procedure of the Parliament of Georgia, a member of parliament shall be entitled to address with a question the Government of Georgia, other bodies accountable to the Parliament, a member of the Government, government bodies of territorial units at any level, and state institutions. This provision must be amended in order to cover matters regarding the administration of justice/constitutional control(issues that do not relate to exercising justice or constitutional control).

 

c)   Ensuring the systematization of the reports to be submitted to the parliament by public institutions;

 

Explanation: Reports to the Parliament of Georgia are submitted by various public institutions. The minimum requirements for reports or the procedure of determining such requirements should be defined (for example, statistical information or content that must be included in reports submitted to the Parliament). These requirements should be developed with taking into account the specifics of the sectors (specifics of the state institution and the content of the report). Therefore, it is reasonable to delegate establishment of such requirements to relevant committees.

Note: Procedural Issues and Rules Committee was presumably created within the framework of the European Union’s 2nd priority (first proposal). The competency of this working group certainly serves the fulfillment of this priority, but does not cover it completely. Specifically, IDFI considers that only strengthening parliamentary supervision, and doing so only through amendments to the Parliament's Rules of Procedure, will not provide valuable changes in terms of “strengthening state institutions’ independent and effective accountability as well as democratic oversight functions”.

                            

  1.     Defense and Security Committee – (competency of the working group: evaluating the current situation in the field of fighting organized crime, correcting shortcomings, and developing proposals for further strengthening the fight against organized crime).

 

a)   Establishing the public registry of beneficial (actual) owners and ensuring accessibility of the information about actual owners of the companies registered in Georgia

 

Explanation: There are many commercial legal entities registered in Georgia, the shares/stocks of which belong to companies registered in foreign countries or in offshore zones. It is unknown to the public who owns the mentioned companies, which makes it difficult to fight against corruption and money laundering and to exercise effective public control of this process. Ensuring transparency of beneficial owners is one of the unfulfilled recommendations of MONEYVAL. European Commission’s opinion (in which 12 recommendations were determined) directly addresses MONEYVAL recommendations. 

 

b)   Adoption of the strategy and action plan regarding fighting against money laundering and terrorism financing

 

European Commission’s opinion addresses MONEYVAL recommendations, which mainly refer to fighting against money laundering. Georgia has adopted a national strategy on combating organized crime, but not money laundering. The state must adopt a national strategy and action plan on combating money laundering in compliance with MONEYVAL recommendations.

 

  1.     Legal Issues Committee – (competency of the working group: consolidation of anticorruption functions, preparing concept/draft law for institutional strengthening of anticorruption activities)

 

a)   Establishment of an independent anticorruption agency and consolidation of state anti-corruption efforts under it. 

Explanation: An independent anticorruption agency must be established in Georgia that will investigate crimes of corruption (especially high-level corruption cases). The same body should have the authority to monitor officials’ asset declarations and the financing of political parties, as well as to protect whistleblowers. Providing the agency with proper competencies and a high level of independence and transparency, as well as electing the agency’s head with the majority of two thirds of the parliament will have significant importance in building trust towards this institution.

  1.     Legal Issues Committee – (competency of the working group: preparing draft laws for further institutional strengthening of the Special Investigative Service and the Personal Data Protection Service).

 

a)   Expanding the Special Investigative Service’s competency to the Minister of Internal Affairs, the Prosecutor General, and the head of the State Security Service;

 

The Special Investigative Service does not have the authority to investigate crimes committed by the Minister of Internal Affairs, the Prosecutor General, and the head of the State Security Service of Georgia. According to the OSCE/ODIHR Opinion of 2022, it is important to expand Special Investigative Service’s competency and enable it to effectively investigate crimes committed by the officials mentioned above.

 

b)   Granting the authority to appoint an ad hoc prosecutor to the Special Investigative Service;

 

The Special Investigative Service is a body equipped with investigative powers only. The Prosecutor’s Office not only conducts prosecution, but also represents the entity supervising the investigation. In other words, the Prosecutor’s Office has many levers to influence the Special Investigative Service’s activities. Among them, it is entitled not to initiate criminal prosecution at all. The general model should be maintained, but in exceptional cases, the head of Special Investigative Service should have authority to appoint an ad hoc prosecutor if the Prosecutor’s Office of Georgia interferes with an investigation or/and deliberately hinders criminal prosecution.

 

c)   Increase of the quorum for the election and dismissal of the head of the Special Investigative Service (to a majority of at least three fifths of the full composition of the parliament);

 

The Head of the Special Investigative Service is elected by the majority of the members of the parliament. Given the importance of this institution, it is necessary to have a broad political consensus about the candidate. Therefore, increasing the quorum for election of the head of the Special Investigative Service to a majority of 3/5 will significantly increase trust in the service both in the parliament and in society. 

 

 

d)     Granting the Personal Data Protection Service the power to inspect the Operative-Technical Agency of Georgia without prior notification

 

The Legal Entity under Public Law of State Security Service - the Operative-Technical Agency of Georgia (“the Agency”) owns and manages the infrastructure necessary for conducting covert investigative actions. There are a lot of concerns in society regarding the illegal use of this infrastructure. A massive leak of files, records, information, and documents in 2021, which were obtained via allegedly covert electronic surveillance, further reinforce these doubts. The lack of appropriate response from law enforcement bodies is notable.

 

Only the Personal Data Protection Service (former State Inspector Service) possesses relatively adequate powers to examine the lawfulness of the use of this infrastructure. The aforementioned means physically visiting the Agency and checking the infrastructure on the spot. According to current legislation, such inspection can only be carried out on a scheduled basis, with prior notice. According to the State Inspector Service’s report of 2021, “The State Inspector Service does not have actual ability to examine a body conducting covert investigative action (including investigative authorities) unplanned, without notifying and informing them in advance. Such power would increase the efficiency of control…” Therefore, taking into account the nature of the Agency’s inspection, we reckon it important to grant the Personal Data Protection Service the power to examine the Agency without notifying it in advance.

 

 

e)   Strengthening the effectiveness of the Personal Data Protection Service’s control over covert investigative actions (establishing ex parte special advocate institution/system on covert electronic surveillance and eavesdropping measures).

 

In addition to judicial authority, the Personal Data Protection Service is the central actor for the protection of human rights during covert electronic surveillance and eavesdropping. 

As a result of amendments made to the Criminal Procedure Code of Georgia, on 6th of September, 2022, 1) The list of crimes eligible for covert investigative measures was expanded; 2) Duration of covert investigation measures was increased (in case of a certain number of crimes, extensions would be possible until the statute of limitations is expired); and 3) The subject of a covert investigative action could not be notified until the statute of limitations for a crime is expired. In general, the intensity of interference with human rights, especially with the right of privacy, increased significantly.

 

The mentioned amendments were negatively assessed by the Venice Commission. Specifically, according to the opinion issued on the 26th of August 2022, the oversight mechanism of the secret surveillance measures seems to be inadequate – there are concerns about the efficiency of parliamentary control, and the powers of the Personal Data Protection Service are limited.[1] Therefore, it is of a critical importance to improve supervisory mechanisms on covert investigative actions.

 

As the timeframe for both conducting covert investigative actions and notifying subjects have increased significantly, it is necessary to improve procedural guarantees for the protection of privacy. In this regard, one of the instrument is introducing the possibility to exercise the right of defense ex parte. Namely, a Special Advocates Legal Service should be established, which will defend personal data subject’s interests in court whilst reviewing the prosecutor’s motion on covert investigative action (without notifying the subject of covert investigative action).

 

Granting such a function to the Personal Data Protection Service will significantly increase its ability to effectively supervise covert investigative actions. 

 

[1] Venice Commission, Urgent opinion on the Draft Law on the Amendments to the Criminal Procedure Code adopted by the Parliament of Georgia on 7 June 2022, issued on 26 August 2022 pursuant to Article 14a of the Venice Commission’s Rules of Procedure, available at: https://bit.ly/3DqZ8Pu

 

 

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