As far as the public is aware, on January 22, 2020, the Public Defender requested the State Inspector to examine the lawfulness of the exposure of video footage by the Minister of Justice at the sitting of the Parliament’s Committee on Human Rights and Civil Integration on January 21, 2020.

According to the decision N1/100/2020, the State Inspector fined the Ministry of Justice and the Special Penitentiary Service for violating the Law on Personal Data Protection by exposing the video footage.

At the same time, the State Inspector’s Office granted the request of the Public Defender and made a decision to study the legality of electronic surveillance processing in the penitentiary institutions.

It is unfortunate that misinterpreted information has been posted on the official websites of the Ministry of Justice and the Special Penitentiary Service about the State Inspector's decision. The press release refers only to the parts, where the State Inspector found no violation,[1] or was not able to assess the issue due to the expiry of the limitation period.[2] The press release does not refer to the issues, for which the Ministry and its subordinate body - the Special Penitentiary Service – were found guilty of violations by the State Inspector, or the decision of the State Inspector to check the process of electronic surveillance carried out by the Special Penitentiary Service.

In addition to the above, the Public Defender's Office learned about new alarming circumstances from the decision of the State Inspector. Specifically, the decision makes it clear that the Director General of the Special Penitentiary Service made a decision to archive (save) the video recording of the 19 April 2019 meeting between the Public Defender and a prisoner at Penitentiary Establishment No 6 on April 18, 2019, the day before the meeting. It should be noted that the prisoner's application for the meeting was filed with the Public Defender's Office on April 11, 2019 and only a few employees of the Office had information about the date of the scheduled visit. Accordingly, the decision of the Director General of the Special Penitentiary Service, made on April 18, 2019, a day before the scheduled visit, about which he should not have had any information, raises questions.

At the same time, the motive for recording the meeting between the Public Defender and the prisoner is also important and interesting. The Director General of the Special Penitentiary Service indicated in the decision that there was a suspicion that a particular prisoner might send information from Establishment No 6 in writing through the Public Defender's authorized representative, for the purpose of imparting it to other persons. It is also indicated that "this suspicion was not proved at that particular meeting, however, the video recording has not been deleted so far and is still kept in a protected database of the Special Penitentiary Service, as there may be an attempt of such actions by the convict in the future and it may be necessary to compare the circumstances shown in the recording."

It is noteworthy that the meeting between the Public Defender's Office and a prisoner is completely confidential and any surveillance is prohibited.[3]

This action of the Director General of the Special Penitentiary Service gave rise to the feeling that apart from this particular fact, the Special Penitentiary Service keeps the Public Defender's representatives under surveillance, records their meetings with prisoners and retains the recordings for an indefinite time, even in the absence of any violation. In addition, it is noteworthy that the Public Defender's Office has not received any information and/or evidence from the Special Penitentiary Service about the violation of any legislative requirement by any employee of the Public Defender’s Office.

The fact, which has been proved by the examination conducted by the Inspector, that the Special Penitentiary Service - a body subordinated to the Ministry of Justice – keeps the meetings between the Public Defender and prisoners under surveillance and records them, is a violation of both the national law and international obligations - the Optional Protocol to the ConventionagainstTorture and Other Cruel,Inhumanor Degrading Treatment or Punishment, which establishes the functional independence of the National Preventive Mechanism, its immunity and inadmissibility of the violation of the principle of confidentiality when performing duties.[4]

The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[5] obliges the States Parties, including Georgia, to engage in a constructive dialogue with the National Preventive Mechanism and, accordingly, with the Public Defender in Georgia. Despite this commitment, the Ministry of Justice of Georgia and the Special Penitentiary Service are undermining constructive dialogue, try to discredit the Public Defender's Office and to this end, even commit illegal actions.

An attempt to discredit the Public Defender's Office in an organized way can only serve the aim of undermining the effective implementation of the Public Defender's mandate and thus directly and indirectly harm the rights of persons held in closed institutions.

Today, the whole world and Georgia are engaged in the fight against the pandemic. The Public Defender's Office continues to visit inmates on a daily basis with appropriate preventive equipment and by observing safety measures, in order to enable the Office to carry out its mandate effectively and to protect human rights in closed facilities. At the same time, the Public Defender will additionally respond to the new circumstances referring to the illegal activities of the Penitentiary Service revealed by the State Inspector and will certainly appeal to the relevant international bodies for the purpose of taking strict measures.

At the same time, the Public Defender will raise the issue of responsibility of the Director General of the Special Penitentiary Service due to the gross violation of one of the basic principles of the Public Defender's mandate - the confidentiality of meetings with prisoners, after the crisis caused by coronavirus is over.

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[1] The State Inspector found no violation in the part of archiving the video recording of April 19, 2019 (which shows the meeting between the Public Defender and a prisoner at Penitentiary Establishment No 6), because of believing that archiving a video recording for security purposes, is a special and exclusive right of the Penitentiary Service. However, the State Inspector did not assess the conscientiousness of the use of that power and the reality of existence of a legitimate aim (protection of security).

[2] Due to the expiry of the two-month statutory limitation period, the State Inspector could not discuss whether the subjects were informed about the electronic surveillance. For the same reason, the State Inspector did not discuss the legality of the transfer of video recordings by the Special Penitentiary Service to the Ministry of Justice.

[3] Organic Law of Georgia on the Public Defender of Georgia, Article 19, paragraph. 3.

[4] Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 18; Article 20; Article 21, Article 35.

[5] Ibid, Article 22.