Our appeal to you concerns the draft law registered with Parliament by the Government initiative that concerns separation of the Security Services from the Ministry of Internal Affairs. Pursuant to the decision of the Parliament Bureau, the first hearing of the draft will be held in the current week.
First of all, we would like to highlight that we do encourage the initiative to separate the Security Services from the Police. However, we believe that the separation should have real value and create not only institutional, but also functional basis for the separation. The proposed draft law, on the other hand, does not create such a guarantee. It merely means a formal separation and poses a number of additional threats to human rights and the rule of law principle. The undersigned organizations urge Parliament Members not to approve the current wording of the draft law and support holding further discussions of the issue.
According to the draft law the security services retain the law enforcement, investigative and preventative functions. The security services are granted the right to use special police measures; they are allowed to immediately and directly interfere with the freedoms of citizens. We consider that the adoption of the draft law as it is today is fraught with significant dangers, bringing about the duplication of functions as well as the risks of unjustified use of powers by the Security Services.
Within counterintelligence activities, the Security Services are entitled to obtain certain information and carry out actions such as secret audio and video recording and secret photo and video filming without judicial oversight, while the Criminal Proceedings Code mandates judicial oversight on similar activities. The Security Services also have access to technical surveillance devices. In these circumstances, retention of the investigative functions with the Security Services poses significant threats.
Notably, the activities of the Security Services are characterized by lack of transparency; they are not subject to parliamentary oversight mechanisms (the Confidence Group’s mandate is limited). Subsequently, it is virtually impossible to adequately monitor the investigative activities of the Security Services, or to verify whether information obtained through counterintelligence activities by means of lower standards is used in specific criminal investigations.
It is also important to note that the draft law is in direct contradiction with the guidelines of the Council of Europe’s Parliamentary Assembly, which clearly state that the internal Security Services shall not be entitled to enforcement powers such as investigation and detention, inasmuch as such activities pose the risk of abuse of power. These rights should lie exclusively with the police to ensure that their use falls under external control mechanisms. The above approach is confirmed by the experience of those countries in which the Security Services operate independently from the Police and whose activities are restricted to conducting analyses.
Considering the above risks, we think that the approval of the proposed wording of the draft law by the MPs precludes the possibility to have it substantially revised in the future, which will inevitably lead to additional threats to human rights.
It is our position that the following substantial improvements should necessarily be brought to the draft law before it is put to vote:
The mandate of the Security Services should be restricted only to analytical purposes and they should not have investigative and law enforcement functions;
The mandate, scope of duties, and functions of the Security Services should be clearly formulated;
No doubts or opaqueness should remain regarding the preventive mechanisms that the Security Services will have the right to use;
The law should clearly stipulate all possible important and restrictive activities.
Based on the above, we call on the members of Georgian Parliament not to support the submitted draft law in its present form. It is important to continue to work on further improving the draft law, which will be impossible if it is approved in its first hearing.
Human Rights Education and Monitoring Center (EMC)
Article 42 of the Constitution
Transparency International Georgia
International Society for Fair Elections and Democracy (ISFED)
Georgian Lawyers for Independent Profession (GLIP)
Civil Development Agency (CiDA)
Georgian Young Lawyers’ Association
Open Society Georgia Foundation
