The remarks made by non-governmental organizations on 13 July 2015 with regard to reforming process of the MIA lack substantiation and objectivity. Hereby, we would like to provide the public our argumentation on specific topics.
1. According to the remarks, problems rise with regard to concentration of excessive powers, ambiguity and doubling of functions, risks of political pressure, procedure of appointment and dismissal of the head of the service. It shall be noted, that the main point and purpose of reforming of MIA was the de-concentration of excessive powers originated as a result of merging of security and police agencies into one system in 2004. The public demanded the institutional independence of these two agencies in order to coup with harsh past experience. This was achieved in the course of current reforming process. Upon enactment of the law, police will be oriented on the protection of public safety and legal order, while security agencies will be responsible for the protection of state security. It is important to mention, that the draft law was submitted for broad review and the powers of security service were scrutinized. The reforming process encompassed not only the issues of organizational separation, but also a wide set of mechanisms ensuring the functioning of the service in accordance with high democratic standards. This can be ascertained by the analysis of the best practices of foreign countries and by their reflection in the Georgian legislation.
Protection of security service from political pressures among one of the most important aspects of the new legislative package. The law envisaged the mechanism for ensuring political impartiality, which, in terms of independence, is manifested in several important circumstances, namely: a) according to the new law, State Security Service is the system of special agencies of the executive authority directly subordinated to the Government of Georgia, which within its competence ensures the protection of state security. State Security Service is not a part of the Government. Head of the service is not a state-political official, nor - a member of the Government; b) the protection from any undue influence of the executive authorities ensured by introduction of democratic procedures of appointment and dismissal of the head of the service. Head of the security service is elected and is dismissed only by a legislative body; c) it is important, that the period (6 years) of holding office by the head of the service does not coincide with the term of office of the Parliament, the President and the Government. The reform fully responded to the issue of DE politicization of security agencies.
As regards the issues of supervision and coordination, it shall be mentioned, that the activities of the service are subject to democratic control from the Parliament and the Government. The head of the service is obliged to submit annual report to a legislative body. The Parliament is authorized either to approve the report or to give recommendations for elimination of deficiencies revealed in the report. A number of mechanisms of accountability envisaged by the Constitution and the Regulations of the Parliament apply to the head of the service.
As regards the coordination, it is noteworthy, that the agencies exercising coordination of the planning of national security policy in the country are National Security Council and State Security and Crisis Management Council. There are special laws, namely, the Organic Law of Georgia “On National Security Council” and the Law of Georgia “On Planning National Security Policy and Its Rule of Coordination”, which cover coordination issues in this respect. Accordingly, there is no need to regulate coordination issues in the Law of Georgia “On State Security Service”. Furthermore, the Law of Georgia “On State Security Service” does not regulate strategic tasks and priorities of the service, since these issues are regulated by various strategic documents.
2. The reference to the guidelines of CoE Parliamentary Assembly, dated from 1999, is not relevant, since it cannot cover most important changes further developed in global security. It is universally known fact that, after terrorist acts perpetrated in New York on 11 September 2001 and in Madrid on 11 March 2004, all leading countries, including European countries and international organizations, changed their security policies and as a result of this the security services were granted additional powers in order to tackle global threats. Moreover, the analysis of a number of states shows that their security services have investigative powers within the competence envisaged by the law. Such states, whose practices were analyzed in the course of MIA reforming process, are the following: Estonia, Poland, Norway, France, Belgium, Lithuania, Latvia, Israel, Denmark, USA, Bulgaria, Finland, Sweden and etc. Accordingly, we have a doubt that the abovementioned reference was only made in order to make the remarks more convincing. Therefore, one cannot doubt the legitimacy of legislative basis and legislative sovereignty of all these countries by referring to the recommendation, since the main challenges occurring in global security were not revealed yet at the time of its issuance.
3. With regard to the functions of the service, it shall be emphasized that the authors of the remarks did not realize the different meanings of the functions and powers of the agencies, as well as the exclusive function of security services, which was historically developed and established in modern legal state. On the one hand, functions of the agencies are connected to the main mission to be implemented, in case of security services – this is prevention, which relates to challenges, risks and threats occurring in the field of state security. For example, collection/analysis of the information is not a function of the service, it is a specific power of the service in order to fulfill its functions on the basis of legal norms; On the other hand, the functions of the security service cannot be duplicated by the functions of the police, since the function of the security service is the prevention in the field of state security, while the function of the police is the protection of public safety and legal order. Unlike the latter, the activities of State Security Service do not relate to averting specific threats occurring in citizens’ daily life, but they are targeted on the global threats and interests and challenges coming from abroad, which are directed against existence of a state and its security. In order to fulfill this exclusive function, the service is furnished with the powers, including covert methods, which enable it to detect proactively/preventively the actions directed against the state, to collect/analyze the information and to elaborate the report on challenges, risks and threats directed against the state, mostly on those coming from abroad. In addition, in the sense of duplication of functions one cannot see any problem with regard to investigative powers granted to the service, because the service conducts investigation only in cases strictly defined by the law, only in relation to the crimes directed against state security.
4. As regards the transparency of the service, it shall be underlined, that in any state security services are exercising covert/secret activities. Their efficient functioning is mostly dependent on the secrecy of information. The level of secrecy in any state is as high as is needed to ensure that the normative basis regulating the inner structure of special services is not public (the practices of various states show that their internal regulations/statutes are classified). Therefore, the transparency of special service means the creation of special measures. In Georgia “Trust Group” is designated to be such a measure, which has access to classified information within the scope established by the law.
5. The remarks also point to weak outer control, as well as to the expediency of existence of Personal Data Protection Inspector’s supervisory powers. In this regard, it shall be mentioned that one of the progressive steps reflected in the new law was the creation of efficient outer control mechanism exercised by the Parliament. In this respect, the experience of foreign countries were taken into consideration, where outer control is exercised by the parliament.
6. The remarks point to the issue of s. c. “ODRs” (Russian abbreviation standing for “active reserve officers”) as well. In this regard, it shall be noted, that this tool needed not only reforming, but it had to be rejected totally. It shall be underlined, that one of the important novelties of the reforming is the abolition of this tool. On the basis of the analysis of the experience of foreign countries, a new regulation was introduced, which creates a mechanism totally different from “ODRs”. The old regulation had a brief wording and quoted as: “The Minister of Internal Affairs appoints security officers in state institutions and agencies having extraordinary importance”. This regulation rectified Minister’s unlimited powers to appoint security officer in any state institution. New regulations introduced a set of norms ensuring definiteness and transparency taking into consideration the international practice. Namely, in those institutions, where there is high risk of state security, regime of security protection is established by the security service. Moreover, the list of those institutions, where there is high risk of state security, is defined by the Government. The list will be a public document and therefore, accessible for everyone. With regard to these institutions, consultative and assistance functions were defined as a main competence for the security service. Security service is authorized to create efficient information exchange system, to provide these institutions with consultative advices and to exercise control over the regime of security protection. Only if the institution so consents, type and scope of mutual cooperation with the security service may be defined on the basis of a contract.
7. As regards covert surveillances (wiretappings), it shall be noted, that, on the one hand, the remarks only point to general risks, which are very common for any state institution, and therefore, it is impossible to challenge the existence of state institutions for this reason; on the other hand, security services are applying their own methods (which might relate to both: open and covert sources of information collection), especially when conducting counterintelligence activities (on the basis of the specific articles of third chapter of the Law of Georgia “On Counterintelligence Activity”, which are in conformity with best European experience and which did not undergo the changes in the course of current reforming process and accordingly, no additional powers were granted to the agencies exercising counterintelligence activities), not for the criminal prosecution or for the establishment/exclusion of criminal charges, but only for their preventive purposes (establishment/analysis of risks, challenges and threats). Granting investigative powers to the service does not mean that it uses information and methods, obtained through preventive activities (risk analyses, covert methods and etc.), unlimitedly. Namely, when security service runs the investigation, it is guided by those legal norms, which are established by legislation of criminal procedure. Therefore, information obtained for preventive purposes and through preventive methods cannot be used as an evidence for the purposes of criminal procedure. Evidences have to be obtained in accordance with the rule established by the criminal procedure. Accordingly, where there is an indication in the criminal procedure on the necessity to obtain court order, such a requirement shall be comlied with.
