Oversight of Covert Surveillance: Law and Practice
The security and justice sectors are crucial for building a democratic and legal state. The accountability, impartiality, and adherence to the rule of law and human rights of these sectors are essential indicators of the quality of a country's democracy.
Unfortunately, in Georgia, there have always been legitimate concerns regarding the impartiality of the security and justice sectors, as well as their use for partisan interests. These concerns have even exacerbated in recent years. This is echoed by the European Commission's report of November 8, 2023 (p. 33), which granted Georgia candidate status, however, challenges were identified in relation to almost every institution belonging to the justice or security sector. Among other things, this report mentioned the fact of September 13, 2021 - the massive leakage of materials, allegedly obtained and created as a result of unlawful covert surveillance. The European Commission indicated that, despite calls, the disclosure of information about the private lives of journalists, politicians, the diplomatic community, and civil activists has yet to be investigated. It is noteworthy that on December 18, 2023, the Venice Commission published its opinion, which, among other things, concerned the Personal Data Protection Service and the judicial control over the lawfulness of covert (investigative) actions (par. 103-112). The Venice Commission once again voices concerns about the effectiveness of judicial control and considers the authority of the Personal Data Protection Service, to conduct technical monitoring on the Agency of SSSG, to be “uncommon” considering the nature of the service.
The likelihood of abusing the possibility of carrying out covert surveillance measures is particularly high, due to the covert nature of these actions as well as the the ease of achieving a legitimate or illegitimate goal. This is evident given the abundance of agencies and authorities aimed at preventing abuse of this authority of the state. The purpose of this analysis is to study these agencies and the usage of their authorities from the perspective of their transparency, accountability, and effectiveness.
IDFI primarily studied the national legislation regulating covert surveillance measures, as well as international and national standards of human rights protection. As a result, IDFI determined the standards of implementation of covert surveillance measures, their lawfulness, and compliance with the fundamental requirements of human rights protection. Regarding the implementation of these requirements in practice, IDFI studied the information available in open sources, after which the project team prepared public information requests.
IDFI addressed the Parliament of Georgia, the Agency of SSSG, the Personal Data Protection Service, the Special Investigation Service, the Prosecutor's Office, and the judiciary (the Supreme Court of Georgia, courts of appeals, and four city courts) with the applications requesting public information. The subject of the request was quantitative and substantive information regarding the covert surveillance carried out both for investigative and counter-intelligence purposes (including judicial acts) within the monitoring period (2021-2023 years). Furthermore, IDFI requested information on responses to the detected violations and publicly recorded incidents. Public information requests were formulated in such a way that the received information would be useful not only for quantitative but also for content/qualitative conclusions on covert surveillance in terms of pre-identified national and international standards. After analyzing the information received as a result of the first wave, IDFI sent additional public information requests as part of the second and third wave, furthermore, it filed administrative complaints to the relevant institutions.
For the interpretation of the legal norms, not only the views of the author were used, but also the explanations given by the relevant state institutions to the Constitutional Court of Georgia (minutes of the hearing) at the executive and substantive review sessions of the constitutional claims N885-1231.
For the purposes of this report, the covert surveillance measures under the SSSG Agency’s competence (besides the monitoring of postal and telegraphic transfer) were defined as the subject of the study. Namely, sub-paragraphs “a.a”-a.d” of Article 7 of the Law on Agency, as well as the sub-paragraph “a.f” of the same article. These measures are also defined by the sub-paragraphs “a”, “b”, “c” and “e” of paragraph 1 of the Article 143¹ of CPCG and the sub-paragraphs “a”, “b”, “d” of paragraph 2 of the Article 9, as well as the paragraph 3 of the same Article of the “Law on Counter-Intelligence Activities''.
1. There is not sufficient information to draw convincing conclusions about the compliance of the implementation of covert surveillance measures with human rights standards.
2. The quality of the statistical data processed by the responsible bodies regarding covert investigative actions is low. The statistical data provided by different institutions cannot be effectively compared or reconciled to draw meaningful conclusions.
3. Obtaining any information (including the most basic statistical data) regarding electronic surveillance carried out within the counter-intelligence activities is problematic, and there is no room for drawing any kind of substantive or quantitative conclusions regarding these covert surveillance measures.
4. It is impossible to assess the effectiveness and legality of judicial control over covert surveillance measures. Courts do not disclose the texts of relevant authorization orders, even after the criminal case is closed and the obtained information - destroyed.
5. Based on information obtained by IDFI, in 2021-2023, the common courts reviewed over 9300 motions regarding covert investigative actions. Almost 91.7% of them were granted either fully or partially.
6. Tbilisi City Court reviews the most motions, accounting for 54.7% of all motions reviewed by the courts.
7. Out of the courts, which considered more than 10 motions in the reporting period, three courts (Ambrolauri, Tsageri, and Akhalkalaki) granted 100% of the motions. Also, among large cities, the courts of Gori (99%), Mtskheta (98.3%), and Rustavi (96.5%) stand out with an exceptionally high rate of granting.
8. The number of cases where the prosecutor's office extended the notification period for individuals under covert surveillance increased by 80% after 2021.
9. There is no information regarding one of the covert investigative actions - “real-time geolocation identification”. It should be noted that the technical capabilities of real-time geolocation identification is a separate system that took significant resources of the state to build.
10. From March 1, 2022, to March 31, 2024, the Special Investigation Service initiated the investigation on 331 cases. As of March 31, 2024, the Special Investigation Service had 244 ongoing criminal cases under its competence. Criminal prosecution was initiated against 87 persons. None of these prosecuted individuals were officials responsible for carrying out covert investigative actions or representatives of special services that conduct electronic surveillance for counter-intelligence purposes.
11. In a number of cases, public institutions unlawfully reject applications requesting public information regarding covert surveillance. To obtain this information, an applicant is forced to make significant effort, including preparing applications and pursuing administrative complaints.
12. The Personal Data Protection Service did not/was not able to provide information on the period between 2021 to February 2022. The statistical data regarding covert investigative actions obtained from this agency is available only for the period after March 2022.
13. The constitutional control over covert surveillance is significantly limited. The cases under the review of the Constitutional Court of Georgia are unreasonably delayed.
1. Develop a methodology for processing statistical data regarding the covert investigative actions in coordination with the institutions involved in the supervision of this process, so that:
1. Statistical information shall include data on various aspects of the covert investigative actions provided for by the Criminal Procedure Code of Georgia (for example: types of covert investigative actions, prolonging the covert investigative actions, results of appeals, postponement of notification, etc.);
2. Information collected by different institutions on the same issues should allow comparison.
2. Process and publish statistical information regarding the covert surveillance measures conducted for counter-intelligence purposes;
3. Ensure that the judicial acts delivered on covert surveillance are public after the interest for its classification is extinguished;
4. Law enforcement agencies should have effective responses to cases of abuse of covert surveillance. Updated information about these responses should be proactively disclosed to the public.
5. Parliamentary control over the agencies responsible for the implementation and supervision of covert surveillance, as well as over the unlawful publication of covert materials, should be strengthened.
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