Constitutional Appeal

Constitutional Suit on Constitutionality of Legislation Regulating Secret Investigative Activities

The Public Defender filed a constitutional suit with the Constitutional Court of Georgia. The suit contests the constitutionality of the legislation adopted by the Parliament of Georgia on March 22, 2017, which regulates secret investigative actions (wiretapping).

The Public Defender of Georgia considers that although a new law was adopted on Legal Entity of Public Law - Operative-Technical Agency of Georgia and a new body - Operative-Technical Agency (LEPL) was created, it still represents an institution that belongs to the State Security Service. According to the Public Defender, the rules of its institutional arrangement and staffing, as well as the functions of the above body, show that it is a professionally interested institution that still has direct and uncontrolled access to telephone and internet communications, as well as identifiable data.

It should be noted with regard to the professional interest of the Agency that the Operative-Technical Department did not have investigative functions either when the Constitutional Court delivered a judgment in 2016, though since it was a part of the State Security Service, which has investigative functions, the court clearly indicated that the Department’s access to relevant technical devices had been significantly increasing the danger of illegal interference with and violation of the right to privacy.

The Operative-Technical Agency, both institutionally and factually, is an integral part of the State Security Service, since its 3 chairmanship candidates are elected by the Chairperson of the State Security Service and are submitted to the Commission led by the same Chairperson.

In addition, the head of the Agency is obliged to agree the important issues such as material-technical support and financing, encouragement of the staff of the agency and disciplinary liability, internal structure of the agency, staff list and salaries of the agency employees, with the Chairperson of the State Security Service, who also defines the basic structure of the Agency and the competences of its structural subdivisions and territorial bodies.

As for the control of the Agency, it should be noted that, apart from the above competencies, the State Security Service is one of the bodies controlling the Agency, which once again proves that the Agency is an integral part of this service and not an independent body.

In addition, other controllers envisaged by the disputed law – the Parliament, the Prime Minister, the Court, the Personal Data Protection Inspector and the State Audit Office - cannot carry out real control. For example, the Personal Data Protection Inspector, in contrast to the model revoked in 2016, no longer has a two-stage electronic system (although even this model was considered ineffective by the Constitutional Court), which actually worsens the functions of the controlling body.

Due to all the above, the Public Defender considers that there is no deference between the Operational-Technical Department existed till March 22, 2017, and the newly established Agency. The Agency is not a neutral or independent body and therefore, it cannot meet the standards set by the judgment delivered by the Constitutional Court on April 14, 2016.

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