On 31 December 2013 Temporary Commission on Illegal Surveillance and Wiretapping has issued its report [1] regarding illegal surveillance in Georgia.

Three members of this Commission, Eka Gigauri, Lasha Tughushi and Kakhaber Kakhishvili have a separate opinion, which was not published on the official website of the Ministry of Internal Affairs:

Dissenting Opinion of the Commission Members
Lasha Tughushi, Eka Gigauri and Kakhaber Kakhishvili 

We would like to express dissenting opinions with respect to the content, conclusion and part of recommendations of the Commission’s activity report.

Comments on the content of the report:

We find it expedient for the report to exhaustively list the methods of illegal surveillance and wiretapping. For instance, throughout the report, discussed methods of illegal wiretapping and secret recording do not mention at all that wiretapping of telephone conversations and installing reserve video cameras in various places was one of the methods for collecting the materials. There is an impression that recording the images through planted agents and obtaining the materials by planting relevant viruses in computers was a chief method of collecting the video and audio materials preserved in the Ministry of Interior. At the Commission’s sessions the working group has presented a report, which discussed other methods of secret wiretapping and surveillance as well. For this very reason, we believe it is reasonable that the public is informed about the above more thoroughly.

Comments on the conclusion of the report:

The conclusion should not discuss only required amendments to the Criminal Code aimed at preventing the systemic illegal secret wiretapping and surveillance. It is crucial to amend all pieces of legislation regulating this issue and develop relevant institutional mechanisms. Further, the opinions of Mr. Thomas Hammarberg on the need of legislative amendments and setting up institutional mechanisms of supervision should be mentioned, which were discussed in his special

report [2] drafted for the Commission. The EU Special Adviser on Constitutional and Legal Reform and Human Rights, Thomas Hammarberg notes [3] that the continued presence of surveillance equipment in the premises of telecommunication operators, giving them automatic access to all communications [via the private providers] [among private individuals], is a concern which must be addressed.

The possibility of some access to inter-personal communications could be essential in the fight against organized crime or terrorism. However, to avoid the risk of misuse of secret wiretapping and surveillance, there is a need of legislative, democratic and judicial control over all activities in this domain.

Comments of the Commission members on the recommendations:

In the recommendations, it is crucial to discuss specific mechanisms of prevention of a potentially systemic violations in the future. In addition, the recommendations of Mr. Thomas Hammarberg that he has developed for the Commission must not be overlooked.

Legislative amendments must be drafted and adopted in the shortest period of time, which will eliminate the possibility of infringement upon private life and abuse of power by entities carrying out secret investigative actions. In particular:

Legislative Amendments

1. The nature of an offence, which may serve as a basis for launching secret surveillance and wiretapping, should be defined; it is expedient to allow the use of secret investigative actions in case of an investigation of a serious or grave crime which is committed or being prepared.

2. Categories of persons, who may be subjected to secret wiretapping or surveillance, should be clearly defined. Permission to wiretap may be based only on a strong grounds built on a reasonable suspicion that a person was involved in serious or grave criminal activities.

3. It is important to establish time limits of a secret wiretapping and surveillance in order to avoid its arbitrary or excessive use. Further, rules of inspection, use and storage of information collected as a result of secret wiretapping and surveillance, and deletion and destruction of recordings requires legislative regulation.

4. A person, who was the target of a secret investigative action, should be notified in writing about a secret investigative action carried out, content of materials collected from such an action and the destruction of this material. In addition, procedures should be developed prescribing the forms and timeframes for notifying a person about secret wiretapping or surveillance carried out against him/her and procedure for its appeal.

Setting Up the Supervision Mechanisms

1. It is expedient to set up a special supervisory parliamentary commission, which will supervise the observance the work of law-enforcement agencies regarding verification, use and storage of information obtained as a result of secret wiretapping and surveillance, and deletion and destruction of records;

2. Setting up a supervisory mechanism over secret wiretapping and surveillance requires in addition the expansion and activation of a circle of entities responsible for the protection of personal data and granting them additional legislative functions. Further, the powers of the Personal Data Protection Inspector may be increased.

Head of the Research Center for Elections and Political Technologies
Kakhaber Kakhishvili
 
Editor in Chief of newspaper “Rezonansi”
Lasha Tughushi
 
Executive Director of “Transparency International – Georgia”
Eka Gigauri