The shortcomings of the legislative package related to the State Inspector’s Service - საერთაშორისო გამჭვირვალობა - საქართველო
GEO

The shortcomings of the legislative package related to the State Inspector’s Service

05 January, 2022

The Parliament of Georgia, in an expedited manner, plans to review a draft law aimed at abolishing the State Inspector's Service and replacing it with a Special Investigation Service and Personal Data Protection Service.

It should be noted that back in 2018 when the State Inspector’s Service was established, a number of non-governmental organizations, including Transparency International - Georgia, stated that the control over the protection of personal data was incompatible with investigative functions, as these two different functions under one structure could hinder the effectiveness of an independent investigative structure and the independence of the personal data protection mechanism as well.

While the authors of the bill call for effective reforms and recommendations from NGOs in the explanatory note, the presented legislative package does not address the challenges of an independent investigative mechanism and the protection of personal data. The members of the Georgian Dream initiated the changes without studying and consulting on the existing challenges and requested that the bill should be reviewed in an expedited manner.  The real aim, it seems, is not to carry out real reform, but to mechanically dismantle the structure and appoint new people to these positions.

  • The legislative package was initiated without studying the issue

In the course of the activities of the State Inspector's Service, a number of legislative shortcomings were identified, which hindered the effective functioning of the institute. The study on the activities of the State Inspector’s Service was conducted by a number of non-governmental organizations in 2021 and relevant recommendations to increase the efficiency of the institution were issued. The State Inspector also addressed the Parliament of Georgia with a legislative proposal for institutional and functional strengthening of the institution. In addition, the Law of Georgia on Personal Data Protection requires fundamental changes. According to the Association Agreement between Georgia and the European Union, Georgian legislation must be in line with European Data Protection Regulations (GDPR). It should be noted that the draft law prepared by the State Inspector's Service was submitted to the Parliament in 2019, which has not been adopted yet. The Parliament has not yet reviewed the State Inspector's 2020 report that was submitted in April 2021, and the review deadline has been extended three times since then.

Thus, before initiating the bill in an expedited manner, it was crucial to thoroughly study the above-mentioned issues and to identify the real problems.

  • Key issues are left out

If the purpose of the bill is to implement real reform, to strengthen personal data protection, and to increase the efficiency of the independent investigative structure, it is important to focus on the following issues:

  • Carrying out covert investigative actions by an independent body and developing an effective control mechanism
  • Bring Georgian legislation in line with European data protection regulations provided in the Association Agreement with the EU (e.g. improving data processing rules for direct marketing, establishing European standards for data termination, deletion, and destruction of data, establishing rules for processing personal data of minors, etc.
  • Institutional and functional strengthening of the Independent Investigation Service, which primarily means increasing the independence and the mandate of the agency from the Prosecutor's Office. The investigator of the agency should be provided with sufficient guarantees of an effective investigation and should enjoy independent decision-making, including on restrictive human rights measures, the examination of witnesses in court, and other matters
  • Assign persecution function to an independent investigative body
  • The election of a state inspector not with a simple majority, but with a high quorum, that will ensure the participation of the opposition in the process and will increase the degree of confidence and independence of the inspector.
  • Dismissal of investigators and staff as a result of the abolition of the State Inspector's Service threatens the stability of the civil service

According to the bill, the State Inspector’s Service and the position of state inspector will be abolished from March 1st, 2022. From March 1st, 2022, the State Inspector, her First Deputy, and Deputies will be dismissed. From March 1st, 2022, the employment contracts will be terminated, and other employees of the State Inspector’s Service will be dismissed.

The premature termination of the term of office of a person elected by the Parliament for a term of 6 years and the termination of employment contracts for dozens of civil servants due to the reform of the structure, severely weakens the public service, contradicts its stability, and hinders the development of the important institutions and trust towards them.[1]

  • Adoption of the bill in an expedited manner can not be justified

The legislative package consists of more than two hundred pages and as it is adopted in an expedited manner, both members of the Parliament and interested parties are deprived of the opportunity to thoroughly study the bills and discuss them in-depth. The explanatory note of the bill does not delineate why the bill needs to be adopted in an expedited manner. The stated reason is that the Parliament will start working on the next session in February 2022 and the adoption of the law should not be delayed until the spring of 2022. However, an explanation of what is the reason for this acceleration is not presented.

According to Article 117 of the Rules of Procedure of the Parliament of Georgia, the draft law may be reviewed in an expedited manner only in exceptional cases and with relevant justification. It is inadmissible for the Parliament to consider the legislative package in an expedited manner, that envisages the reform of an independent structure.

  • The procedure of the legislative review does not meet the principles of transparency and openness of parliament

Due to the expedited adoption of the bill and the lack of consultations with the state inspector, as it became clear from the explanatory note of the bill, no consultations were held with relevant experts, international or local NGOs, no working group was established and no consultations were held with any government agencies. Adoption of a bill, and in particular one that involves institutional reform, should take place in the context of the involvement of experts and civil society.

Due to the above-mentioned circumstances, it is necessary for the Parliament of Georgia to suspend the expedited review of the draft law and to hold large-scale consultations with the State Inspector and international and local experts to carry out the reform.

 


[1] Draft law was amended during the second hearing. According to the final version of the law, employees of the various departments of the State Inspector's Service will be appointed to equivalent positions in the two agencies (Special Investigation Service; Personal Data Protection Service), which require the written consent of the staff.