About the Research

Security institutions are a double-edged sword in a democratic state. On the one hand, their effective operation is the guarantee of peaceful and stable development in a country. On the other hand, with weak oversight and lack of accountability, the risk that the surveillance mechanisms at the disposal of security services will become a tool for harassing political opponents and unwarranted interference with human rights increases dramatically. States in the process of democratization are especially vulnerable to such risks, where institutions are not robust enough to contain the power struggles within the rule of law and maintain institutional impartiality. The political processes in the recent years and the increasing involvement of the state security services in them show that Georgia is facing the aforementioned threat and is on the way of becoming a "surveillance state".[1]

The excessive power in the hands of the security sector in Georgia, in particular, the State Security Service (SSSG), is incompatible with the country's democratic aspirations. Parliamentary and public oversight of the SSSG is weak and its activities are associated with the critical accountability deficit and closure. Cases of mass surveillance of politicians, media, activists and representatives of civil society, blackmailing using personal life and systematic non-investigation of such cases cast doubt on the legality and objectivity of the activities of the SSSG and point to its instrumentalization by the government.

For example, in September 2021, information was spread through the media about 55,000 files allegedly collected by state security services as a result of unlawful surveillance between 2013-2021, the so-called "Krebs" (massive collection of surveillance files), which contained details of personal communications of representatives of civil society organizations, politicians, activists, religious figures, diplomats and journalists. [2]  The recordings, whose authenticity was individually verified by many people, were believed to have been collected by state security services and indicated an established practice of mass surveillance of private communications. [3]  In 2023, the SSSG itself released secretly obtained video recordings of lectures and presentations by the civil society organization "Canvas" on forms of nonviolent resistance, which, they claimed, were aimed at organizing "destabilization and civil unrest" by the organization.[4]  Both cases reflect the involvement of politically active groups in the activities of the SSSG and the purpose  of influencing public opinion through information operations, which has a large-scale "chilling effect“ on the development of democratic processes in the country and essentially worsens the quality of political freedoms.

Essentially, there are two frameworks for using surveillance measures by security services in the country: investigative (law enforcement) and counterintelligence (non-law enforcement). Despite the fact that the activities of security services in these two directions are related to different functions and powers, both are combined in the institutional arrangement of the SSSG in Georgia, which gives this body excessive power and increases the risks of blurring and abusing the powers belonging to different frameworks.

The Constitutional Court drew attention to the risks associated with the investigative functions in the hands of the SSSG in its decision of April 14, 2016, in which it noted that the SSSG "is professionally interested in obtaining as much information as possible," therefore, the body responsible for investigation should not have technical and Legal control over the means of surveillance.[5] Despite the fact that the Parliament of Georgia established a new entity - the Operational-Technical Agency - to replace the then unconstitutional surveillance model, it was not granted sufficient institutional guarantees for independence: the agency, as a legal entity under public law (LEPL), remained under the ambit of SSSG governance in law and practice. The presence of investigative functions in the hands of the latter increases the risk of interfering in the agency's activities and arranging the necessary infrastructure for mass surveillance beyond judicial control. [6]

Given the problematic institutional arrangement of the security sector and weak parliamentary and public oversight, the role of effective judicial supervision in achieving its accountability is particularly important. The assessment of the legality, legitimacy, necessity and proportionality of the use of surveillance mechanisms by alert, effective and competent judges in each individual case ensures that the security services use these mechanisms only when there is an urgent need and in strict compliance with human rights standards.

Only a small part of surveillance (electronic surveillance) carried out within the framework of counterintelligence activities is subject to judicial supervision in Georgia. It is true that the initiation in the case of surveillance for investigative purposes is allowed only with the permission of the court, however, the supervision of the ongoing process is only fragmented and superficial. Statistical data shows that the percentage of authorizations issued by common courts is quite high (more than 80%), which, given the problems of institutional judicial independence, gives impression that judges do not critically evaluate the evidence presented by the security services and are excessively influenced by them.

The need for effective judicial oversight has become particularly evident since the 2022 legislative reform, which dramatically increased the number of articles to which the use of covert investigative measures can be extended. In addition, the time limits for surveillance and notification to citizens have been significantly lengthened, which altogether considerably increased the risks of disproportionate interference with human rights.[7]

The listed factors determine not only the low level of public trust in the security sector (for example, 46% of the population do not think that the SSSG is free from political/party influence[8]), but also have a direct impact on the quality and freedom of activities of media, political and civil groups. In addition, the level of transparency of the activities of the security services is critically low,[9]  which makes it even more difficult to obtain information on the effectiveness of the activities of both the security services themselves and the democratic institutions responsible for its control and supervision. As a result, the public and professional circles have scarce and superficial information about the activities of the security services, which has a negative impact on freedoms and personal autonomy, contributes to establishing a feeling of total control in society and mythologizes issues related to the security sphere.

The present study systematically analyzes the degree of democracy, effectiveness and transparency of judicial oversight over the use of surveillance measures by the security services in Georgia and based on it formulates appropriate recommendations for action.

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