Opinions and comments on the draft law developed as part of the MoI reform
On 15 May, 2015 the Government session has upheld a draft bill authored by the Ministry of Interior (MoI), which sets up the State Security Service. Draft bill was developed as part of the MoI reform.
The Georgian Dream coalition before the last election made reform of the MoI a key promise. A central plank of this reform is the distancing of the security services from the MoI controls. Provided below are our views on the MoI reform process and produced draft Law.
Having governed for 18 months, at the end of 2014 the Prime Minister of Georgia has stated that it remains a government priority and announced the MoI reform.
In February 2015 a special inter-agency commission was set-up by Government resolution. The commission was set-up within the Crises Council to oversee the MoI reform and to approve the Commission's operating regulations. The State Security and Crisis Management Council, which reports to the Prime Minister, was tasked to manage and coordinate the reform process. The Commission was staffed with the state structures only. A separate group was set up by the Crises Council for NGOs; NGOs were unable to participate in the chief working group and share their views with the Government members in that setting. Only one introductory meeting with participation of NGOs was held on 28 March 2015. The meeting was attended by the staff of the Crises Council and several NGO members. High officials from the ministries and members of the legislative body were not present at the meeting.
On 1 May 2015, representatives of the Government's Administration and the MoI met with NGO representatives. The Government presented their concept on how to reform the separation of security services from the MoI. The Government's Parliamentary Secretary stated at the meeting that the draft would be discussed at the Government session in the nearest future. NGOs were given time to submit comments on the draft Law.
A meeting was held with NGO representatives yesterday, May 14, at which their comments were discussed. The Deputy Minister of Interior, Levan Izoria and the Government's Parliamentary Secretary, Shalva Tadumadze have stated that following the submission of the draft Law at the Government session, part of the NGO comments will be reflected in it. Yet, most of the NGO comments were not accepted.
Consultations with significant stakeholders and experts in the field are when examining any draft law. A more inclusive consultation process would significantly improve legislative drafting. We believe that the Government must familiarise itself with dissenting positions, and increased public involvement is crucial. This is even more important on those instances when a draft bill developed by the MoI is inconsistent with the context — when the draft does not adequately reflect or understand the challenges of the law-enforcement system, or when it can be understood to be a regressive step in terms of key human rights protection issues. It would be preferable to continue discussing problematic issues with NGO and experts prior to submitting the draft Law to the Government session. Currently we hope that, despite the Government's approval of this version of the draft Law, the draft will be substantially revised through the parliamentary legislative process. "Transparency International – Georgia" has numerous comments on the draft bill, but this time we will focus on only few of them.
General Evaluation of the Concept
Firstly, separation of the Security Service from the MoI is a clearly positive development. For years power has been unreasonably concentrated in one agency. This does not mean the country should end up with two agencies having unjustified and unreasonable powers, or with two Ministries of Security, in the worst case. We believe the implementation of the reform under the current version of the draft law will not result in the decentralization of power currently concentrated in a single organisation. Instead there is a real risk that it will result in a new structure equipped with new unlimited powers, which would still contain huge risks of abusing the power and imposing mass control on the population.
Separating a security segment from the MoI must not be an artificial process. It is a sensible step for the MoI to clearly state limitation on the competencies and structures of the two organisations. This must be done to prevent parallelism, duplication and redundancy in functions of the new reorganised agencies in the future. A modern personnel management system should be set up, which would also cover issues of recruitment, promotion and raising of qualification.
Draft Law contains considerable human rights problems
- Right to secret surveillance granted again to the police
The current secret surveillance procedure has been criticised by NGOs and international experts on numerous occasions. Transferring of the Material Technical Department to the Security Service under the draft Law does not change the essence of the problem and therefore is not a key to its solution. It has been noted on numerous occasions the need to amend the legislation and regulation on secret surveillance. It has been publicly stated that the next stage of the reform process should include some amendments on surveillance for non-investigative purposes. This draft bill does not include amendments on articles of the Law "on Counter-Intelligence Activities" concerning electronic surveillance.
Amendments to the Law "on the Police", which are a considerable deterioration of protection compared to the current reality, are worth a particular mention. Namely, police will be given the power to conduct secret investigative actions.
Under the draft bills adopted on 1 August 2014, secret investigative actions were moved from the Law "on Operational-Search Activities" to the Criminal Procedure Code. Hence, the police is no longer authorized to conduct secret wiretapping for preventive purposes. This was the very essence of the reform on the regulations on secret wiretapping, approved by numerous international experts. Under the proposed draft Law, the police would be authorized to conduct secret investigative actions, which is categorically unacceptable and will be a step back from protections of individuals' right to privacy.
Secret investigative methods should be applied in cases stipulated by the Criminal Procedure Code at the investigation stage only in connection with certain categories of crimes and concrete individuals. Returning to the past by granting the police the right to conduct secret wiretapping for preventive purposes is unacceptable. Further, articles of the Law "on Counter-Intelligence Activities" concerning electronic surveillance should be amended.
- Legalization of ODRs (“ОДР” – офицер действующего резерва; lit. Active Reserve Officers)
Pursuant to the Statute of the MoI approved by the 13 December 2013 Resolution N337 of the Government of Georgia, the MoI is authorized to appoint security officers in state institutions and authorities of special importance.
NGOs have repeatedly criticized the use of the so-called "ODRs", which are relicts of the Soviet Union. “ODRs” are not found in any democratic state. The Coalition for "Transparent and Independent Judiciary" discussed this issue in detail at the 9 February 2015 conference.The Deputy Minister of Interior, Levan Izoria and the Chairman of the Committee for Defense and Security, Irakli Sesiashvili attended the conference. They have also mentioned that the current system is flawed, requiring reform. Nevertheless, the draft Law proposed by the MoI does not revoke the institution of the "ODR", nor does it reform the system. Instead it maintains the legality of the practice. Instead of the Government resolution, now the law will authorize the Security Service to appoint security officers in various agencies.
The state must reject the Soviet methods of ‘protecting’ the country's security and the practice of spying on its own agencies and citizens by using "ODRs". The MoI reform will be successful only if built on respect of human rights and democratic values.
- Introducing control over procurement and use of technical facilities
Under the draft Law "on the State Security Service", the Security Service is authorized to exercise control over importing, exporting, producing and using electronic surveillance devices in Georgia. Electronic surveillance devices are defined as telephones, microphones, special radio equipment and other means of surveillance. Although the Law "on Licenses and Permits" requires the license for producing, purchasing, importing or exporting electronic means of surveillance since 2005, this type of license up to the present day have not been granted. Legal liability measures for illegally trading in this equipment does not exist either. Therefore, the scope of the notion of "control" is unclear, just like a type of control to be exercised by the Security Service over import of equipment, when a legal base for determining liability is absent.
When determining a new area of the Security Service's control, balance must be established between the new function of the Security Service and human rights. The law does not define what "control" means. Introducing general control over electronic means of surveillance, and without defining legitimate grounds in this specific case, is an interference in private life as well as freedom of civil turnover. Given the country's security interests, it could be possible to require permit for importing and purchasing specific means of surveillance, and thus to control/register it. However, embracing all technical devices of surveillance, including a telephone, microphone, etc. is absolutely unjustified.
Significant problems left unregulated by the proposed draft Law
- Technical separation of the Security Service from the MoI
Functional division of the security service and the police, and not their technical separation should have been a key essence of the reform, which the proposed draft Law does not achieve. Security services maintain law-enforcement functions, including the prevention and investigation of certain offences, as well as the right to apply compulsory measures including physical force, special means and firearms. The proposed amendment does not decentralise powers but sets up a new structure with duplicated functions.
Security service reform ought not to aim to establish a new structure enjoying unlimited powers. There is a high risk of turning this structure into a mass control weapon. The security service should not carry out law-enforcement and investigative functions and its core function must include analytical activities.
- Formal nature of parliamentary control
Pursuant to the draft Law the Security Service is accountable to the Parliament in addition to being accountable to the Government. Although the Parliament's increased role is important, the proposed draft Law does not provide for tangible parliamentary control and setting up an accountability mechanism, but refers to formal responsibility. As the vast majority of information in the Security Service is classified, submitting a report to Parliament will fail to exercise effective control.
A structure similar to a 'confidence group' must be set up to exercise effective control. This group should include one representative from all parliamentary factions (in order to rule out political bias). The individuals, as representatives of their factions, would have access to all information on the Security Service activities. In this way, they will be able to exercise real control.
Given all the above, we find it necessary to continue working on the draft bill. The process must be open and transparent, so that we produce a reform with tangible results. The reform considerably contributes to the country's democratic development. The bill, which according to the explanatory note will cost the state 28 million GEL, must be implemented through wide discussions and discourse.