Coalition responds to the reform process in the Ministry of Internal Affairs

Coalition for an Independent and Transparent Judiciary responds to the package of bills, prepared under the reform of MIA by Georgian Government, which includes separation of State Security Service from the Ministry of Internal Affairs and subsequent changes. 

The coalition welcomes the readiness of the Georgian Government to deconcentrate the excessive power of the Ministry of Internal Affairs and create institutionally and functionally separate state security system. However, it is important to mention, that instead of fragmentary changes, it is necessary to establish the concept of reforms in the MIA, which will be based on the consensus between the state and civil society about the challenges and requirements of the system. 

Reform Process 

In our opinion, it is exceptionally important to direct this process in a manner of conversation between the representatives of the state and civil society; also, civil society shall have adequate time and opportunity to actively participate in each stage of reform. It is worth mentioning that, at the initial stage of preparation of this bill, transparency of the process and participation of non-governmental sector was not provided, which has to be described negatively. In particular, in February 2015, according to the Government resolution, the interagency commission working on reform issues of MIA was created under the auspice of the Council for Crisis.. It was staffed with state representatives only (the representatives of Academic Circle, NGOs and Expert Groups were not included). Also there was created a working group under the Council for Crisis Management, where NGO representatives were invited to participate. Unfortunately, there was no opportunity for grounded discussion and conversation between the members of the working group. In general, it remained obscure according to what principles or what procedures this working group was established.

On March 28, 2015, the working group held the only introductory meeting, which was attended only by the employees of the Crisis Management Council, few representatives of NGOs and Academic Circle. After this introductory meeting, the Crisis Management Council has not communicated about reforms in MIA. It is noteworthy, that the legislative package presented by the Government was prepared without participation of the working group and beyond its scope. As for the working meeting organized by the Government after the drafting of the bills, it is acceptable but also clear that it cannot be considered as a full mechanism of participation in the process. 

-The Concept of the Reform and bills

As for the creating the State Security Service and issues related to this subject, we would like to outline the following:

If we take into consideration that the State Security Service has a potential to violate widely recognized Human Rights and Fundamental Freedoms, then it is very important that any changes made in this direction must be based on existing requirements and challenges as well as on deep analysis of international practice and experience. 

We would like to outline the following fundamental issues about this legislative package: 

• Danger of politicization of the Security Service- 

Presented concept, institutionally, does not include fundamental changes of the Security Service activities. Whether there are institutional guarantees that the Security Service will not be used for political purposes, for interests of the Government, for maintaining its stability and power, this issue remains on the agenda. Accordingly, it is less possible that technical separation of the Security Service from the MIA will affect on their real influence on the state management process or social control. Despite the fact that Security Service is accountable before the Government as well as to the Parliament, the bill does not offer mechanism for real control by the Parliament and creation of effective mechanism for accountability, but only formal responsibilities. 

• Main responsibilities of the Service 

According to the legislative package, the employee of the State Security Service, in order to react against the dangers undermining the state security, is equipped with classic law-enforcement powers, particularly with the powers to investigate, search-arrest persons, provide operational-investigative activities etc. It is noteworthy that, according to the Parliamentary Assembly of the Council of Europe, in order to prevent high risk of abuse of power, as well as duplication of functions, Internal Security Service must not carry out classic law-enforcement tasks like investigation, arrest/detention. 

As shows the practice of majority of democratic countries, the main function of the Security Service is to gather and analyze information. Respectively, this service has no power to arrest/imprison. If required, operations of arrest/imprisonment are provided by law enforcement bodies. However, there are some countries, which give a mandate of arresting a person to the Security Service, if he/she committed, or there is a danger that will commit, crime against the national security. However, this kind of practice is common for those countries, which do not have a separate security service , and this function is included in the competences of police. 

Considering above mentioned, we think that the main responsibilities of the Security Service requires fundamental revision. Instead giving automatically uncertain scale of law enforcement powers, it is necessary, on the one hand, to analyze practice and requirements established in Georgia, and on the other hand, to study the experience of above-mentioned countries in details, this will give us an opportunity to select an optimal model appropriate for Georgia. 

• Coercive Measures – according to the legislative package, in terms of use of coercive measures, the Security Service and law enforcement bodies have equal powers. We think it should be critically analyzed whether it is necessary to give this power to Security Service officer or not. 

It is noteworthy, that the most of the democratic countries do not allow the Security Service to use force; moreover, the personnel of the service, in terms of using force, are equal to ordinary citizens. If the Security Service needs to take coercive measures under the specific activity, they must  apply to law-enforcement bodies for help. International experience indicates at the responsibility of Security Service officer to address to the police with the request to arrest a person who has committed or is suspected to commit a crime against the national security, as well as require an accompaniment of law-enforcement officers during specific operations if there is a possibility that their lives might be in danger.  

• Appointment of the head of Security Service – according to the concept, Prime Minister presents the candidate for the head of Security Service to the Government. If the government supports the candidate, it will be presented to the Parliament, who elects the head of the service with Simple Majority. According to the proposed changes, the role of the legislative body is extended, in terms of appointing the head of the service, as well as declaring distrust or hearing annual reports from him/her. We clearly welcome this fact. However, despite that, according to the proposed bill only the Parliamentary Majority makes the decisions. As long as the Prime Minister, the Government and the Parliamentary Majority represent the ruling party, multilevel system for the nomination of the candidate does not rule out the possibility of one-sided decision by a one political group and political selection of the head of the Security System. 

• Legalization of so called “ODRs” – according to the regulation confirmed by the Georgian Government  resolution #337 of December 13 ,2013 , Ministry of Internal Affairs has right to assign security officers in state institutions and organizations of special importance. Faulty practice of “ODRs”, which is a remnant from the Soviet Union and is not used in any democratic country, has been a subject of criticism by NGO’s for several times. 

Coalition for an Independent and Transparent Judiciary has discussed this subject in details on the conference of February 9, 2015. Deputy Minister of Internal Affairs Levan Izoria and the chair of Security Committee of the Parliament Irakli Sesiashvili attended the conference. They pointed out that this system has gaps and needs reformation. However, with the proposed bill, Ministry of Internal Affairs does not remove the institution of so-called ODRs, but is determined to legalize it. Instead of government resolution  the law will give the Security Service right to assign Special Security Officers in different bodies. The state must reject the soviet methods of so-called ODRs. The reform of the Internal Affair system will be successful only if it is based on the respect of human rights and democratic values. 

• Protection of Personal Data- also, based on the specifics of this job, it is not less important to have a concrete regulations for processing the personal data, which will determine not only the terms of saving personal data of different categories, but also, if necessary, forms of extermination and regime for giving access to persons to different kind of personal data. This issue is very important especially if we take into consideration that law of Georgia on Personal Data Protection applies to State Security (including economic security), defense, activities and objectives of intelligence service and counter-intelligence, and to processing the Top Secret data. 

Other than above mentioned, we think that it is very important that the concept of the MIA reform responded properly to the challenges of law enforcement system and not be limited to separation of Security Service from the ministry. In order to consider the initiated changes as adequate and perfect, based on existing reality, we think that the reform shall address the following:

• The problem of politicization of law enforcement system, particularly the police;

• High-level centralization and risk of political influence on police departments;

• Duplication of competences and opacity of functions of particular services;

• Dangerous character of the police’s preventive functions;

• Defects of investigation system;

• Improvement of disciplinary responsibility system for MIA personnel;

• Impartial investigation of the crimes committed by the police officers;

• Establishing high standard of transparency and accountability.

Based on these opinions, we think that issues included in the proposed legislative package require revision, to provide strong institutional guarantees of political neutrality of the Security system; and reconsider the rights assigned according to the present version of the bill in compliance with the existing practice and international experience. In addition, it is important to improve the mechanism of the service accountability. As for the reform in the Ministry of Internal Affairs, we hope that the proposed changes represent only initial stage and future steps aim to further analyze problems of the system, which will ensure an initiation of adequate and full changes for existing reality.