The Venice Commission, an advisory body in the Council of Europe, released its Urgent Opinion on 26 August regarding the controversial surveillance bill adopted by the Georgian Dream Parliament on June 7 which criticized the law’s adoption in a “hasty procedure” and urged authorities to re-examine the legislation.
The amendments in question dealt with changes to the Criminal Procedure Code which extended the maximum surveillance period from six to nine months and made it possible to carry out covert investigative activities in connection with an additional 27 offenses. In reference to 77 offenses, changes also made it possible to surveil an individual indefinitely without them being aware of the surveillance. The Venice Commission’s Opinion follows President Salome Zurabishvili’s decision to veto the amendments on June 22, 2022.
At the time, President Zurabishvili stated “There can be no law passed these days that further restrict human rights, when on the contrary we are asked to give more guarantees in this direction, to be more democratic, more European.” She acknowledged, however, that Georgian Dream lawmakers would override the veto.
Implications for Human Rights
In its analysis, the Commission underlined at the outset that “freedom of communications and privacy are fundamental values in any liberal society. Moreover, in the digital era, their respect is a significant indicator of how the Constitutions function in practice.”
In that context, the Commission emphasized that “a measure of covert surveillance (whatever are the legitimate aims it serves) should be seen as an exception to the rule (which is the respect of these fundamental values).”
According to the Commission, such exceptions, whether constitutional or legislative, must be “cautiously worded and narrowly interpreted by the State agencies and the courts.”
Additionally, the Commission stressed that covert investigative measures are “extremely intrusive instruments carrying serious threats to human rights and fundamental freedoms” which affect not just private communications and private life, but a “variety of other human rights.”
On that note, they pointed out that surveillance measures have the potential to impact freedom of expression, especially as related to media freedoms, as well as freedom of assembly, religion, the right to a fair trial, guarantees of client-attorney privilege, and political rights.
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Regarding the quality of the law-making process, the Commission remarked that while an Explanatory Note accompanied the amendments, the Note referred “to the very general goals of the proposed legislation” such as new challenges like hybrid warfare, cyber security threats, investigation of crimes against the State and terrorism, as well organized crime and other serious crimes.
The Commission underscored that while these are legitimate purposes, “the Note does not sufficiently explain the necessity of the specific amendments on covert investigative measures in the current Georgian context.” “A simple reference to the need to combat terrorism or cybercrime cannot explain why, for example, the time limits currently provided for covert measures should be extended,” the Commission explained.
The Commission also criticized the lack of supporting material accompanying the legislation and noted, “it seems that there was no formal involvement of the Personal Data Protection Service or the Public Defender’s Office in the preparation and the discussion of the bill…”
It added that the assessment of the bill prepared by the data protection authority in response to a request made by one of the MPs “might be insufficient to compensate for the absence of the authority from the parliamentary debate.”
“It appears that the ability of civil society and the public at large to comment on the draft law was also limited,” the Commission said.
As part of its recommendations, the Venice Commission stated, “for the sake of a more transparent, rational, and inclusive legislative process, it would be essential to have formal consultations with the relevant stakeholders and civil society before deciding on any draft bill in further legislative procedure.”
It underscored that the amendments in question also require “convincing justification.”
Per the Venice Commission, the draft law “shows the need for a comprehensive revision of the covert surveillance systems based on different legal regimes which, however, overlap on the technical level.”
“Such overlap creates a risk of abuse in the highly sensitive area of covert measures,” the Venice Commission added and recommended revising the overall legal framework of oversight of covert surveillance before starting a discussion about the specific proposals within the amendments.
The Commission reiterated that it remains at the disposal of the Georgian authorities for further assistance on the issue.
Read the Venice Commission’s full report here.