This paper provides opinion by Human Rights Education and Monitoring Center’s (EMC)” about the reform process of Ministry of Internal Affairs and regarding the reform concept in general.

On May 1, 2015, government officials and representatives of the Ministry of Internal Affairs presented the concept paper of MIA reform, which implied the separation of Security Services from the Ministry and the challenges pursuing this change. Interested organization had an opportunity to be acquainted with the concept paper only during the working meeting.

Reform Process of the Ministry of Internal Affairs

Towards the end of 2014, the Prime Minister of Georgia made announcement about the commencement of reform process in the Ministry of Internal Affairs. The task of coordinating the process was assigned to the Council Of State Security And Crisis Management. It was obvious from the very beginning, and later it was confirmed as well, that assigning the responsibility of leading the reform process to the Crisis Management Council was wrong decision – Crisis Management Council is not adjusted to open cooperation format; does not possess experience for leading participatory and open reforms and experience of collaborating with nongovernmental entities.

Moreover, Crisis Management Council does not have the advantages for effective implementation of the reform. It did not even have right to share with the members of the working group the basic information about MIA institutional structure; such essential information as: the number of personnel in the structure and in particular departments, regulatory acts of the departments and some other basic information, that is important for effective implementation of the reform.

Considering such commencement of the process, it was clear from the very beginning that Crisis Management Council could not have been the entity that leads the reform. Therefore, a valid impression was created on initial stage that there is no specific entity that is responsible to lead the process that would answer the questions that have accumulated during this time. Considering the following development stages, it became obvious that ineffective delegation of rights among MIA and Crisis Management Council, negatively affected on the process.

In response to the Prime Minster initiative, in February 2015, based on Government resolution, special inter-departmental commission was established that would work on MIA reform issues. The statute of the commission was also adopted.[1] As per decision of the Government, the commission consisted only of representatives of the government structures, yet representatives of academic circles, nongovernmental organizations and experts, neither Public Defender. For interested stakeholders, the information about the first meeting of the commission was only available through media.

Exclusion of external entities from interagency commission that works on such significant reform process, created even more grounds to question the openness and democratic process of the reform. Besides, there have been other cases and experiences when nongovernmental, academic and governmental entities worked together in the interdepartmental councils (while elaborating the reform of Administrative Code and Criminal Justice reform). After the first meeting of inter-agency commission and after deliberate and regular communication from non-governmental organizations, Crisis Management council invited NGOs and academic circles in the working group especially designed to share international experience.

Only one meeting has been held on March 28, 2015 and it was attended by the representatives of the Crisis Management Council, academic circles and local organizations. However representatives of relevant ministries and governmental entities were not present on the meeting.Despite several efforts, the mandate of the working group, period of functioning, goal and activities, decision-making procedures and other important procedures remained unknown for the invited entities.

It also remained unclear, what was the goal of creating the group, if there was no possibility to interact or hold discussions with the representatives of the government. On March 28, it became obvious that the Crisis Management Council had no established vision for implementation of the reform process.

Inaccurate development of the reform process was also facilitated by the fact that no comprehensive analysis of law enforcement system has been carried out, neither has the problems been identified, nor the strategy and priorities of the reform were established.

Despite the obscure and disorganized process, on the meeting of March 28, the Council directly declared that the work on MIA reform process was carried out only with the interagency commission created in the frames of Crisis Movement Council and International experience working group. No other entities are working independently on the content of the reform.

As it appeared later, the reform concept of MIA was created beyond those processes and formats were local organizations are involved. Moreover, the member organizations of the working group learned about the existence of the reform concept through media, from the announcement of the Prime Minister. The discussion of the reform concept created did not take place in advance in the working group of the Crisis Management Council.

Given such factual chronology and decisions made by the government on different stages, justified the assumption that there has not been an intention or plan to create platform for effective discussion, or to discuss the real amplitude of problems in the law enforcement system. Therefore, the process was implemented without participation of relevant entities, without principles of openness or transparency and without proper analysis and discussion.

Aforementioned circumstances negatively affected on the content of the reform concept, it is not adequate to the scope of problems and challenges in the country. It refers to solving one specific problem and overlooks other fundamental issues, if those issues are not handled properly, effective implementation of the reform can be questionable.

The scale of MIA reform

The reform concept created by the MIA refers to the issue of separation security services from the Ministry and the changes that may be followed by this reform. As mentioned above the concept does not address any other fundamental issues.

During the presentation of the concept, government officials stated several times that the mandate of the interdepartmental commission created for implementing the reform only includes the topic of separation of aforementioned services and it does not have any other competences. It has to be pointed out that this statement is wrong, which can be confirmed by the statute of the commission, as well as, by the statements about the scale of the reform, made on the meeting between nongovernmental organizations and representatives of Crisis management council, on March 28. The statute of the interagency commission indicates that the goal of creating the commission is to coordinate activities of the departments, elaborate recommendations to implement the reform of Ministry of Internal Affairs. None of the articles of the statute indicates that the commission was created for the purpose of implementation the separation process of security services and the Ministry. This can also be justified by Article #2 of the Statute, which specifies the function of the commission – elaboration of recommendations and proposals concerning the reform of the Ministry.

Thus, the intention of the government to provide incorrect interpretation of the scale of the reform aims at neutralizing the criticism towards incomplete and improper reform concept and the reform process in general. Moreover, such positioning of the government does not help to acknowledge the real scale of the problem in law enforcement system. Presented concept for MIA reform is the result of such unsystematic vision.

Considering the fact that not only the concept is finalized and ready to be presented on the government meeting, but also the draft, we can assume that crucial topics are not considered in the reform. Such as:

• The problem of politicization of the Law Enforcement System- The influence of Minister of Internal Affairs and political figures over the activities of law enforcement structures is disproportionately high and dangerous. The Minister maintains the status of the “First Policeman” and the functional autonomy of the police remains week.
• High degree of centralization and the risk of political influence over the police services – Police departments, including patrol police and criminal police are still attached to the central management of the Ministry. Police is not managed by the figure, which is distanced from the Ministry, who is selected based on professional background. Misbalance between the central executive management and police forces, creates the risks for political influences while carrying out operational functions;
• Duplication of competences and vagueness in competences of certain departments - There is no clear definition and separation of responsibilities and functions of certain departments of the Ministry. Duplication of competences is a common occasion and it is important to reconsider the roles of each department, in order to increase the effectiveness of the structure and will provide the accountability leverages;
• Unsafe Preventive Police Actions – Most of the preventive police actions are interventions in individual human rights and is carried out through direct contact with the citizen. Considering that, most of the preventive measures are formulated vaguely and the supervision over their lawful implementation is rather week, there is a valid risk of that social control is not balanced. In addition, there are inconsistencies, between the new Law on Police and Criminal Procedural Code, regarding certain measures;
• Investigative System drawbacks – the problem lays in the investigation regulatory norms, terms of investigation in particular, also in the regulations for questioning and searching/seizure activities. There are several shortcomings in the structure of investigative bodies, their leadership principles and the rule for delegating the investigative jurisdiction among the departments;
• Liability System of MIA Officers – Independence and impartiality of General Inspections are not ensured. The forms of accountability and personnel recruitment indicate that it is not sufficiently distanced from the leadership of the Ministry; the degree of its autonomy is inadequately law. Within the given institutional settings, it is hard to assume that principle decisions can be made, especially regarding the high official co-workers;
• Impartial and Unbiased investigation of the offences committed by the Law Enforcement officer – It is difficult and practically impossible to carry out impartial and unbiased investigation by the traditional investigative and prosecution system. There is a need to create an alternative mechanism, independent from current investigative or prosecution authorities and not subordinate to the executive government; The need for creating independent responsible mechanism is linked to the systemic problem, which can develop the syndrome of impunity and includes not only investigative, but also prosecutorial authorities.
• Transparency and Accountability Guarantees – There are insufficient legal guarantees for parliamentary control and accountability of law enforcement bodies. Parliamentary control procedures are not clearly defined neither is a special parliamentary commission responsible for control of police services. There are no institutional mechanisms for hearing information regarding the secret measures of the police or security services. At the same time, not much information is available concerning the systemic arrangement of the Ministry of Internal Affairs; statutes of several important departments are classified, as well, as, the number of employees of the system. The ministry is ineffective to fulfill the responsibility of processing and sharing the public information;

Excess power-concentration in one structure, creates the risks for improper use of authority and it can also facilitate to the utilization of the law enforcement system for political purposes. Excess power concentration especially threatening when the institutional mechanisms to safeguard from the political influences does not exist. Accordingly, there is a need for power de-concentration; however, it is not enough for creating the neutrality of law enforcement bodies, which is clear from aforementioned narrow listing of existing problems. Therefore, enactment of the reform concept will prove ineffective without accompanying other other institutional reforms.

Content of MIA Reform Concept

After establishing the Security Service, it is highly possible that each department of MIA will be re-located without any changes. Additional department are being created, including Arms Division and Mobilization Department, information about their necessity is not currently available. Given the fact that for the external supervisor it is unknown what are the functions and authorities of security services, and there is no information about the human and material resources of the structure, it is difficult to make precise evaluation of the proposed reform concept.

Politicization Risk of Security Service

While minimal information is available about the activities of security services, and their operation is closed, there is an impression that the government might improperly and inadequately utilize those resources. The later impression is justified by the fact that, presented concept does not include any fundamental institutional changes in the operation of security services.

This particular question is still on the agenda, are there any institutional guarantees to avoid utilization of security services for the goals of political intentions, for pursuing of political leadership’s interests, for maintaining the stability and authority, against political opponents and oppositional groups and citizens?

Given that presented concept stems on the existing comprehension of security system and its role, also stems on the existing mandate of security services and functions, it is unlikely that technical separation will substantially affect on the influence of security service on the management of the country or will influence on the level of social control.

Mandate of Security Service

Security Services maintain the law enforcement functions – investigation and prevention of certain crimes. The reasons for excess power in the system are not only the fact that, police and security services are currently merged in one system; it is also linked to unbalanced delegation of police, investigative and preventive functions within the system. For example security services are authorized to carry out police actions.

According to the recommendation of parliamentary assembly of European Council, internal security services should not be authorized to carry out such law enforcement measures as crime investigation or detention. According to the guidelines of the parliamentary assembly, this creates grounds for improper use of power. In order to avoid duplication of traditional police functions, this should be an exclusive right of police.[2]

Unfortunately, reform concept maintains police and investigation functions to the security services; moreover, they will maintain the right to carry out coercive measures, use physical power, use special means and firearms. Granting such rights to the security services, together with police departments will cause duplication of functions. It will be practically impossible for the citizens to control the appropriateness and lawfulness of the measures.

Based on the concept, operative-technical department of the Ministry of Internal Affairs will be abolished and the security services will have full authority over secret surveillance measures. Its, true that security services will be unable to effectively fulfill their responsibilities without operative-technical and counterintelligence services, however it is still problematic that information obtained in the frames of counterintelligence services, will be used for investigative purposes. Moreover, the technical appliances are in the hands of the structure that simultaneously carries out police and investigative actions.

The Procedure for Appointing the head of Security Service

As per the concept, the Prime Minster nominates the candidate for the head of security services presents it to the government. If approved by the government, the candidate will be presented to the parliament. The parliament approves the candidate with regular majority votes. It should be positively assessed that the procedure of appointing the head of security services, is not the competence of only in one branch of the government and the parliament is one of the decision makers. Nevertheless, the reform concept does not safeguard the selection procedure from narrow political interests.

It is crucial to have democratic rules for appointing the head of security service. While several models of appointment of this position exist, experts have considered and provided the following best practices:

• The law should define the appointment procedure of the directors of security and intelligence services, the law should also define every limiting conditions and factors that will lead to his/her release;
• The appointing procedure should go beyond the executive branch. It is desired that parliament is involved in the process of appointment, as well as, the parliamentary opposition;
• The legislation should include protection mechanisms for oppression of the director or while abuse of power (e.g. Provisions of dismissal based on violations and provisions for protection of terms.)
• The law should clearly specify the criteria for appointment and dismissal;
• It is desirable that more than one representative of the cabinet is involved in the appointment process of the director;[3]

The presented concept leaves all the decision-making procedures in the hands of parliamentary majority. Considering that prime minister, members of the government, parliamentary majority are the members of one political group that won the elections, the proposed multi-stage procedure for appointing the director does not ensure that the decision is not made unilaterally by one particular political group. The authority of the prime minister to nominate the candidate also lays ground for making decision based on political background.

Conclusion

The proposed reform concept of the Minsitry is fragmented and is not adequate to the scale of problems currently existing in the law enforcement system. Disorganized process of the reform facilitates such content of the concept. Government failed to analyze comprehensively the problems and challenges, it failed to formulate correct vision and strategy, also failed to ensure participation of interested groups to share alternative opinions.

Although it is crucial to separate security services from the Ministry of Internal Affairs, it is impossible to create accountable, balanced law enforcement system without carrying out other institutional changes. Current reform concept requires extensive rework. Before legislative hearings are started, it is important that working process over the concept continues with participation of relevant groups, also detailed plan of Ministry of Internal Affairs reform should be outlined. All the discussions concerning specific legislative regulations and solutions should be based on the analysis of real scale of the problems and pre-defined reform strategy, which was not the case while working on presented reform concept.

[1] Decree of Georgian Government #60, Febryary 17, 2015

[2] http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta99/EREC1402.htm

[3] Hans Born, Ian Leigh, Democratic Accountability of Intelligence Services, 2006, pg. 33

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