On April 1, an annual report on the work of the State Inspector's Service was published, which includes detailed information on the state of personal data protection in the country, on conducting covert investigative activities, and controlling the activities performed within the central databank of electronic communications identification data, as well as the status of criminal investigations under the Service, activities carried out by the Service in this regard, identified challenges and plans for the future.
The report once again highlights the acute problem associated with insufficient guarantees of the independence of the Inspector's Service. The report on investigative activities revealed how problematic it is to lack functional independence for conducting investigations and to rely on other state agencies.
For instance, in one case, the State Inspector's Office submitted a request to the Prosecutor's Office to initiate criminal prosecution, as evidence suggested there was a probable cause indicating that a particular person had committed a crime falling under the jurisdiction of the Service. However, the Prosecutor's Office declined the request and gave investigators written instruction to conduct additional investigative actions. According to the Inspector's Office, this instruction not only hindered but even delayed the initiation of criminal prosecution.
Excessive power of the Prosecutor's Office over the investigation process does not ensure that the investigative department conducts an investigation and makes decisions independently. It is noteworthy that according to the report, in 2020 the prosecutor changed the qualification of crime in 14 criminal cases: 5 of them - at the start of the investigations and 9 - after carrying out certain investigative and procedural activities. Changing the qualification of a crime by the prosecutor shortly after launching an investigation makes the investigator investigate the case with the qualification he/she disagrees with, which may have a serious impact on the outcomes.
The power of the State Inspector's Service to submit a substantiated proposal, different from other investigative bodies, is also ineffective as the proposals of the investigative body (on conducting investigative actions, initiating persecution) is not binding on the Prosecutor's Office, its examination is delayed, and there is no possibility to appeal the rejection of the proposals in court.
It should also be noted that the limited mandate of the State Inspector's Service remains a problem, as it doesn’t apply to possible crimes committed by the Minister of Internal Affairs of Georgia and the head of State Security Service of Georgia.At the same time, investigative jurisdiction of the Service does not include a number of crimes committed by the law enforcement officials, which, according to IDFI and the Social Justice Center, is a serious challenge.
Under existing legislation, the State Inspector's Service is not empowered to provide special protection measures for the victim/witness, which also constitutes a significant challenge. The Ministry of Internal Affairs, in the system of which the person violating the law is most likely to work, cannot be considered as a reliable guarantor to ensure the protection of the victim/witness.
Besides, the insufficient number of investigators, as well as the lack of regional offices, are significant obstacles to the effective functioning of the Service.
Establishing an independent investigative mechanism to ensure an independent, impartial and efficient investigation of the crimes committed by the law enforcement officials was an important step forward. The need to create this mechanism has been emphasized for years by local and international organizations, as well as the Public Defender's Office. Despite the significant efforts made by the State Inspector's Service in terms of carrying out investigative function, the existing challenges and difficulties are affecting the efficient functioning of the independent investigative body.
Therefore, IDFI and the Social Justice Center consider that to strengthen the Service of the State Inspector, it is essential to:
- Take prompt and effective legislative steps to separate investigative and prosecutorial functions;
- Increase the mandate of the State Inspector's Service to cover all crimes committed by law enforcement officials;
- Extending the mandate of the investigative body to alleged crimes committed by the Minister of Internal Affairs and head of the State Security Service;
- Granting the State Inspector's Service the power to use a special protection measure, which would provide solid guarantees for the safety of the victim, his or her close relative or family members;
- Providing adequate material and human resources to the Inspector's Office.
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