The Public Defender is echoing the hastened consideration of the draft law on the Special Investigation Service in the Parliament of Georgia and considers that the content of the draft law and the unreasonably accelerated nature of its preparation and consideration do not meet the needs of the Special Investigation Service and contradict Georgia's international human rights obligations.

The process of drafting the law on the Special Investigation Service did not involve the Public Defender, civil society or international partners, whose great efforts made it possible to establish an independent investigative mechanism in the country. The draft law does not contain changes aimed at increasing the institutional independence of the Service and does not provide for the creation of an action space free from dependence on the investigator/prosecutor for conducting investigative/procedural activities. Most part of the draft law is not related to the investigative activities and is only organizational-technical in nature.[1]

In addition, the draft law differs significantly from the legislative proposal submitted by the State Inspector in December 2021 and does not provide for a number of guarantees, without which the functioning of an independent investigative mechanism will face a number of practical and legislative problems affecting the obligation of effective investigation. In particular, unlike the draft law submitted by the State Inspector:

• The draft law does not eliminate the shortcomings at the legislative level in terms of the investigative function. In this regard, it proposes only two positive changes: (1) the right of the investigator of the Service to enter penitentiary institutions and a temporary detention facilities without any hindrance; (2) submitting a proposal to the prosecutor with regard to the effective application of special protection measures;
• The draft law does not provide for the transfer of a case, which is substantially related to a case within the jurisdiction of the Service, by the Prosecutor’s Office to the Service in full. It is noteworthy that this problem was also revealed in the cases examined by the Office, when a criminal fact/episode outside the jurisdiction of the Inspector's Service remained uninvestigated;[2]
• The draft law does not provide for short time limits for the consideration of the request of the Service by the Prosecutor’s Office or the obligation of the prosecutor to substantiate decisions;
• The draft law does not provide for the reduction in the time limits for the consideration of reasoned proposals of the Service on conducting investigative/procedural activities, or the obligation of the prosecutor to substantiate decisions;
• The draft fails to provide for additional guarantees to ensure timely and smooth collection and protection of evidence; The draft law does not provide for short time limits for transferring evidence to the Service, and in case of non-fulfillment of the Service request - the obligation to substantiate the refusal.

In addition, the draft law contains a change that carries high risks of conflict of interest. According to the current regulation, the Service is prohibited from using the material and technical resources of the agency whose employee’s actions it is investigating. According to the draft law, in case of emergency, it will be possible for the Service to use material/technical equipment of other agencies.

The Public Defender reminds the public that the establishment and effective operation of an independent investigative mechanism is one of the responsibilities of the State in terms of effective investigation of cases of deprivation of life and ill-treatment. Questions related to these issues are included in the EU membership self-assessment questionnaire as well. The Public Defender has called on the Parliament of Georgia to adopt only those legislative changes, which are aimed at institutional strengthening of an independent investigative mechanism.

[1] Regulation of special ranks, employees with the right to bear arms, housing, transport costs; Ranking, vacancy, competition, internship, disciplinary proceedings, incentives, dismissals, code of ethics, social security guarantees, regulation of correspondence review, rules of access to secrets, etc.

[2] 2021 Activity Report of the Criminal Justice Department of the Public Defender of Georgia, pp. 26-27 <https://bit.ly/3vzFzQx> [Last accessed: 02.01.2022].