The legislation on wiretapping deteriorates further
We, the signatory non-governmental organizations, give a critical assessment to the draft amendments to the Criminal Procedure Code that were initiated by members of the parliamentary majority.
The draft law makes it possible to wiretap citizens for an indefinite period in the event of an ongoing investigation under a number of articles of the Criminal Code without notifying them of the fact of wiretapping. Whereas there is no effective statutory mechanism for control, the proposed amendments substantively deteriorate the standard of protection of private life and make it possible for investigative agencies to wiretap citizens for an indefinite period.
The amendments concern the following issues:
- It will be possible to carry out covert investigative actions in connection with 27 more crimes
According to the Criminal Procedure Code, covert investigative actions may be carried out in connection with serious and less serious crimes, as well as several less serious crimes, whose list is given in the Code.
According to the proposed amendments, 27 crimes are added to the list of crimes. As a result, if the draft law is adopted in this form, it will be possible to carry out a covert investigative action in connection with more than 75 less serious crimes in total, including crimes such as the unlawful raising of the national flag of Georgia, etc. It is obvious that, to a large extent, the expanded circle of crimes does not relate to the issues of security or hybrid warfare, and the extension of covert investigative measures to them requires special argumentation.
- The period of secret surveillance increases from six months to nine months
According to the applicable legislation, the period of a covert investigative action may be extended twice, and it may not exceed six months in total.
The proposed draft law provides for the possibility to carry out a covert investigative action in three stages. Considering the interests of investigation, the Prosecutor’s Office will be authorized to demand the delivery of a ruling necessary for a covert investigative action for a period of three months on three occasions, which will result in the extension of the period of the covert investigative action to nine months.
It is noteworthy that if a covert investigative action is carried out in cases provided for by the Law on International Cooperation in Criminal Matters, the aforementioned period of nine months may be extended once more by three months on the basis of a reasoned motion of the Prosecutor General or Deputy Prosecutor General.
- Secret surveillance may be carried out for an indefinite period in connection with 100 crimes
According to the current wording of the Criminal Procedure Code, the period of covert investigative actions may not last for more than six months.
The proposed amendments make it possible for covert investigative actions related to concrete criminal cases to continue for years, without interruption. Specifically, according to the draft law, the period of a covert investigative action may be extended for as many times as there are statutory legal grounds necessary for conducting a covert investigative action, provided that the investigation is being conducted in connection with one of the crimes defined by 100 articles of the Criminal Code as provided for by the amendments.
- The object of wiretapping may not even be notified in cases related to 100 crimes
According to the applicable Criminal Procedure Code, a person against whom a covert investigative action has been carried out is to be notified of the carrying out of such an action. If a prosecutor fails to notify the person within a period of 12 months after the carrying out of the investigative actions, he/she is to file a motion with the court for a postponement of this deadline. The deadline may not be postponed by more than 12 months. Accordingly, the person concerned is to be notified of the covert investigative actions carried out against him/her within two years at the latest.
Assessment The proposed amendments make it possible to postpone the deadline for notification in connection with certain crimes as many times as are necessary for ensuring that no threat is posed to the state security, the public order, and the effective functioning of the investigative body. The draft law provides for 100 such crimes as exceptions, including less serious crimes. In this case, the person concerned may never find out that he was being wiretapped. Accordingly, they may never be able to use the right to appeal, enjoy the right to a fair trial, and protect their right to privacy.
The draft law considerably worsens the standard of protection of human rights at the time of covert investigative actions and renders meaningless the positive changes that were made to the legislation in 2014. The reform carried out on 1 August 2014 resulted in the establishment of the maximum period for carrying out covert investigative actions and of the obligation to notify the person concerned, which was assessed positively by a number of international organizations. All the norms that representatives of the ruling party are trying to change today were written into law on the basis of recommendations of the Directorate General of Human Rights and Rule of Law of the Council of Europe.
The proposed amendments are especially problematic in a situation when interference in private life remains an acute problem in the country. A number of facts of illegal wiretapping of telephone communication are yet to be investigated, while in September last year there were reports on mass surveillance, which talks about the practice of alleged mass surveillance of the private communication of civil activists, representatives of religious and civil society organizations, journalists, politicians, diplomats and other people in the years 2013-2021. The issue of private life and adequate regulation of covert investigative measures is relevant both at the local level and in the context of integration with the EU, which is confirmed by the fact that question 196 of the questionnaire on self-assessment of the status of a candidate for EU membership concerns the standard of protection of basic human rights in the process of covert investigative actions.
Against the background of mass unlawful interference in private life, the ruling team is giving more legislative levers to law enforcement bodies instead of improving the standards of protection of human rights. And this further increases the risks of arbitrariness and unfounded interference in private life. It should also be taken into consideration that in the explanatory note of the draft law, one cannot find concrete reasoning and argumentation on why the development of amendments became necessary or what problems the applicable legislation created for law enforcement bodies in daily practice. The explanatory note only makes a general reference to hybrid warfare and cyber-security. However, considering that the authorities are demonstrably ineffective in eliminating threats that come from violent pro-Russian groups, as well as in preventing the risks of stoking of strife by means of Russian disinformation, hybrid threats are only mentioned for the sake of appearances and the real goal is to create mechanisms of total control. The tendency of the recent years also shows that wiretapping is not only related to the infringement on the right to private life, and it is often used to exert influence on political or social processes, which further exacerbates the problem of instrumentalization of the security system.
It is also noteworthy that at the stage of preparation of the draft law, no consultations took place with working groups, experts, civil society organizations or international organizations, or with law enforcement and security agencies that carry out covert investigative actions themselves and, accordingly, possess more information on the practice of enforcement of the applicable law. According to the explanatory note, the legislators have not prepared an overview of the legislation of other countries. And lawmaking on issues of such sensitivity and public significance should be conducted with particular caution, involvement, and substantiation. The proposed draft law constitutes an example of a contrary practice.
The legislation on secret surveillance is characterized by a number of shortcomings, which were not resolved by the reform of 2014 either. For this very reason, non-governmental organizations and up to 300 citizens of Georgia filed a claim at the Constitutional Court against the legislation regulating covert investigative actions. The Constitutional Court has already examined the case on the merits, although the Court has been postponing the delivery of the decision for four years. At the same time, an extremely acute problem at the normative level is the legislation regulating counter-intelligence activities, which granted the relevant agencies uncontrolled powers to wiretap electronic communications and, by doing so, arbitrarily interfere in the right to private life. Unfortunately, instead of finding a legislative solution to these problems, the authorities are introducing regulations similar to those dealing with counter-intelligence activities to the Criminal Procedure Code, by which they are factually normalizing the wiretapping of electronic communications of people for a long period of time.
Taking all the foregoing into account, the proposed draft law unequivocally worsens the standards of protection of human rights, and we, the signatory organizations, call on the legislative body not to support the initiated wording of the document.
- Transparency International Georgia
- Social Justice Center
- Rights Georgia
- Georgian Democracy Initiative (GDI)
- Institute for Development of Freedom of Information (IDFI)
- Human Rights Center
- Georgian Young Lawyers’ Association
- Open Society Georgia Foundation
- International Society for Fair Elections and Democracy (ISFED)
- Human Rights Center (HRC)
- Liberal Academy