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II. Surveillance policy

Communications surveillance

Law enforcement wiretapping, search, seizure and electronic surveillance authority is regulated by Law of Georgia on Operative and Investigative Activities adopted in 1999.1 Aims of the operative and investigative activities are listed in Article 22: prevention and detection of crime; detection of person who fled prosecution; detection of property gained by illegal action, detection of lost persons and gathering of evidence for criminal prosecution. Activities covered by the law and relevant for privacy issues are: gathering of information and visual surveillance, seizure of correspondence, wiretapping and covert eavesdropping, seizure and control of electronic correspondence and electronic surveillance.

A warrant from a judge is only required for wiretapping, seizure and control of electronic correspondence and electronic surveillance. In cases of urgency, a warrant is not required; however, a judge should be notified within 48 hours. The judge may approve or disprove of the measure and order the destruction of information acquired.3 The decision of the judge is final and there are no mechanisms to challenge the legality of the measure. The aforementioned measures for the purposes of criminal prosecution are allowed for crimes that have the punishment exceeding two years' imprisonment. Under the Criminal Code of Georgia almost 90% of crimes fall under the category for which those measures could be used. The law does not provide high standards of proof for use of these measures; Article 7 of the law merely states that the motion to the judge should be motivated. The law does not include principle of minimization4 in surveillance and wiretapping measures. The law provides that operative and investigative measures are "strictly confidential" and their disclosure entails criminal prosecution under the Law on State Secrets,5 unless 25 years have passed since the application of the measure.6 Activities can be prolonged up to six months with motivated decision of the head of the agency and in extraordinary circumstances up to 12 months with consent of the General Prosecutor of Georgia.7

Liberty Institute8 has been calling for the reform of the Criminal Justice System. A concept paper with NGO recommendations9 has been prepared by the Liberty Institute, Association for Legal and Public Education, and Georgian Young Lawyers Association in this regard. Based on the concept paper, the new government, which came to power after the Rose Revolution, created a working group to prepare the new Criminal Procedure Code Draft, which included NGO representatives. With assistance from the American Bar Association, the working group prepared a final draft of the Code in spring of 2006.10 This new Code will bring Georgia’s legislation into compliance with international criminal standards and it more closely follows the requirements of the European Convention on Human Rights. The final draft Code contains an explicit presumption of liberty, and it also envisages new provisions for wiretapping and electronic surveillance activities concerning criminal prosecution. Those measures, according to the draft, can be used only for investigation of grave crimes,11 with warrant from court (no exception allowed in cases of urgency), for 30 days and upon strict supervision of the Liberty Judges.12

Prosecution has to report to the Liberty Judge every 10 days during which the measures are being carried out, and Liberty Judge may order the discontinuance of the measure if principle of minimization13 is not observed and no relevant information is being obtained. Under principle of minimization, law enforcement officials are obliged not to monitor the conversation that is not relevant to the crime. The surveillance measures may be continued for another 30 days upon a firm motion of the prosecutor. The draft Criminal Procedure Code provides that wiretapping and covert eavesdropping can be used only as a last resort, and the prosecution has to demonstrate that other restrictive measures have been applied but were not effective.14 The person against whom the measures have been used has to be notified after termination of the measure, and can challenge the legality of the action in court.15

Another draft law prepared by the Parliamentary Committee on Defense and Security is Draft Law on Counter-Surveillance.16 The draft law was prepared based on the United States Foreign Intelligence Surveillance Act (FISA). Under the draft law, the President of Georgia upon the motion of the Prosecutor General may order surveillance measures without approval from courts. Measures may last up to one year.17 Prosecutor General has to elaborate minimization rules and attach the elaboration to the motion for the application of the measure presented to the court. Minimization rules are defined by the Draft Law as follows:

"Minimization procedures." with respect to electronic surveillance, mean (1) specific procedures, which shall be adopted by the Prosecutor General of Georgia, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting Georgian persons consistent with the need of the Georgia to obtain, produce, and disseminate foreign intelligence information; (2) procedures that require that nonpublicly available information, which is not foreign intelligence information, shall not be disseminated in a manner that identifies any Georgian person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; (3) procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and (4) procedures that require that no contents of any communication to which a Georgian person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order is obtained or unless the Prosecutor General of Georgia determines that the information indicates a threat of death or serious bodily harm to any person.18

Draft law also provides for creation of a special collegium of judges to consider motions under it. Collegium will be established by the Chairman of the Supreme Court from the judges of Tbilisi District Court. Decision of District Court collegium may be appealed to Special collegium, whose members will be taken from Supreme Court judges. Decisions of the collegium are confidential, unless legality of the measure has been challenged in court and has to be determined. To date, the Draft law has not yet been adopted.

The Central European and Eurasian Law Initiative (CEELI) has been working in Georgia since 1996.19 Over the last year, CEELI has assisted with broad reorganization of the judiciary and has worked with the Ministry of Justice to improve enforcement of the judgments system. The group also established a hotline for justices which allows them to report cases of government pressure or corruption anonymously.20 Important legal profession and legal education reforms have also been established. CEELI have also focused on the pervasive issue of domestic violence, and developed goals to promote gender equality, as well as reduce human trafficking in the country. Lastly, CEELI have been assisting the government in developing an inclusive strategy to combat corruption.21