The Democracy Research Institute has published a report assessing both the mandate of the Operative-Technical Agency in conducting covert investigative activities, as well as the related risks and challenges.

The Constitution of Georgia recognizes and protects the rights to private and family life, privacy and communication. There is a risk of unlawful interference with these rights when conducting covert investigative activities. Therefore, it is necessary for the judge to critically assess both the investigative interest and the importance of the right to privacy of a person concerned and to grant the motion of the investigative body only in case of extreme necessity. According to the statistics, the rate of applying to the court and the number of motions granted by the court is increasing almost every year, which, in the absence of proper control and supervision, creates the threat of unlawful interference with the person's privacy. For example, in 2015, 61 out of 362 motions filed relating to covert telephone tapping were rejected, while in 2019, only 133 out of 1,037 motions were rejected.[1]

Legislative gaps relating to covert investigative activities and the subordination of the Operative-Technical Agency to the State Security Service make it necessary to effectively supervise the activities of the Agency.

That is why the report discusses the powers of the State Inspector’s Office, one of the functions of which is to control covert investigative activities, although the effective implementation of the above is doubtful. First of all, the inadequate control of the activities of the Agency may be conditioned by the broad powers of the State Inspector's Office (it also oversees the lawfulness of personal data processing and investigative activities). In addition, the Office does not have adequate oversight mechanisms in relation to a number of covert investigative activities. The investigative powers of the State Inspector’s Office also causes the conflict of interest.

The report also reviews the mandate of a supervising judge that oversees the covert investigative activities relating to the cases that fall under the jurisdiction of the State Inspector's Office. However, this mandate is so narrow that a number of covert investigative activities remain beyond supervision.

The Democracy Research Institute has drawn up specific recommendations based on the views of internationally recognized organizations and the experiences of countries with the best practices. In order to prevent unjustified interference with human rights and fundamental freedoms by the Operative-Technical Agency when carrying out its mandate, it is important to eliminate gaps in legislation, strengthen oversight mechanisms and allow the court to permit the conduct a covert investigative activities only in case of objectively established necessity.  

[1] Website of the Supreme Court of Georgia, http://www.supremecourt.ge/farulebi.