The Venice Commission, an advisory body in the Council of Europe, published its urgent opinion on August 26 on the controversial surveillance law passed by Georgia’s dream parliament on June 7, criticizing the law’s passage in a “hasty procedure” and calling on the authorities to change this -Examine the legislation.
The changes in question concerned amendments to the Code of Criminal Procedure, which increased the maximum surveillance period from six to nine months and allowed undercover investigations into a further 27 offences. For 77 offences, the changes also allowed an individual to be monitored indefinitely without their knowledge of the surveillance. The Venice Commission’s statement follows that of President Salome Zurabishvili Decision to veto the changes on June 22, 2022.
At the time, President Zurabishvili declared: “No law can be passed today that further restricts human rights when, on the contrary, we are asked to give more guarantees in this direction, to be more democratic, to be more European.” However, she acknowledged that the legislators of the Georgian Dream would override the veto.
Impact on human rights
In its analysis, the Commission began by emphasizing that “freedom of communication and privacy are fundamental values in any liberal society. Furthermore, their respect in the digital age is an important indicator of how the constitutions work in practice.”
In this context, the Commission stressed that “any measure of covert surveillance (regardless of the legitimate objectives it serves) should be seen as an exception to the rule (respect for these fundamental values)”.
According to the Commission, such exceptions, whether constitutional or statutory, “must be drafted with care and interpreted narrowly by the authorities and courts”.
In addition, the Commission stressed that undercover measures are “extremely intrusive tools that pose serious threats to human rights and fundamental freedoms” that affect not only private communications and private life, but a “variety of other human rights”.
In this context, they pointed out that surveillance measures can affect freedom of expression, particularly in relation to freedom of the media, as well as freedom of assembly, religionthe right to a fair trial, guarantees of attorney-client privilege and political rights.
legislative process
Regarding the quality of the legislative process, the Commission noted that while the amendments are accompanied by an explanation, it “relates to the very general objectives of the proposed legislation”, such as new challenges such as hybrid warfare, cybersecurity threats, investigations into crimes against the state and terrorism as well as organized crime and other serious crimes.
The commission emphasized that while these are legitimate purposes, “the note does not adequately explain the need for the specific changes on undercover investigations in the current Georgian context”. “A simple reference to the need to fight terrorism or cybercrime cannot explain why, for example, the deadlines currently foreseen for covert operations should be extended,” the Commission said.
The commission also criticized the lack of supporting material accompanying the legislation, noting that “it appears that there was no formal involvement of the Service for Personal Data Protection or the Office of the Public Defender in the preparation and discussion of the bill… ”
It added that the assessment of the bill prepared by the Data Protection Authority at the request of an MP “may not be sufficient to compensate for the Authority’s absence from the parliamentary debate”.
“It appears that the ability of civil society and the general public to comment on the draft law was also limited,” the commission said.
recommendations
As part of its recommendations, the Venice Commission stated: “For a more transparent, streamlined and inclusive legislative process, it would be essential to have formal consultations with relevant stakeholders and civil society before deciding on a draft law further through the legislative process.”
It underlined that the changes in question also needed “convincing justification”.
According to the Venice Commission, the draft law “shows the need for a major overhaul of covert surveillance systems based on different legal regimes, but overlapping at a technical level”.
“Such an overlap creates a risk of abuse in the highly sensitive area of covert operations,” the Venice Commission added, recommending that the general legal framework for covert surveillance oversight be revised before starting a discussion on the specific proposals in the amendments.
The Commission reiterated that it remains at the disposal of the Georgian authorities for further assistance on this matter.
Read the Venice Commission’s full report here.
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