Introduction

The Social Justice Center evaluates the ongoing investigation into the SSSG collection of recordings and the results of the investigative actions conducted at this time. As is known to the public, during the investigation, the Social Justice Center is representing the legal interests of clergymen, including Reverend Malkhaz Songhulashvili, Reverend Rusudan Gotsiridze, Mother Sidonia, Dean Giorgi Mamaladze, as well as civil activists and employees of the Center for Social Justice.

As we know, on September 13-14, 2021, the collection of private communication of clergymen, journalists, civil activists, representatives of civil organizations, which were allegedly created by the State Security Service of Georgia in different years,  was uploaded to the open network and made public through media. After this information was made public, the Tbilisi Prosecutor's Office launched an investigation into the violation of the confidentiality of private communication in accordance with Article 158 of the Criminal Code of Georgia, and there is a substantial criticism regarding the effectiveness of the ongoing investigation. The leaked materials allegedly show mass surveillance practices by the Security Services, pointing to underlying institutional and political challenges vis-à-vis the social control of citizens and the security system, beyond the violation of the privacy rights of hundreds of people. It is clear that this practice also revealed the negative experience of the state's unlawful intrusion in the internal affairs of religious organizations.

Only a year after the launch of the investigation, did the Prosecutor's Office recognize the persons, represented by us, as victims, and we were given the opportunity to review only a part of the criminal case materials. After granting the status of the victim, the Prosecutor's Office completely unjustifiably refused to hand over the case materials to us and only gave us the opportunity to get to know the non-secret part of the case materials on the spot. For example, the State Security Service has almost completely redacted the protocols of the interrogation of the employees of the security services, which denies us the opportunity to fully understand the content of the interviews.  

After getting acquainted with the case materials, it became clear to us that despite the fact that the Tbilisi Prosecutor's Office conducted a number of investigative and procedural actions in the first months of the investigation, important investigative actions, including those requested by us, were not conducted, and during the interviews with the security service employees, attention was not drawn to the critical matters for the investigation. The materials available to us show that: 1. High-ranking officials of the State Security Service were not interviewed within the scope of the investigation; 2. The employees of the Operative-Technical Agency are not interviewed and the internal mechanisms and instructions of the Operative-Technical Agency have not been fully checked;  3. The interview process of the rest of the SSSG employees is also fallacious and merely formal - they often did not answer the fundamental questions of the investigation in the name of protecting state secrets. Even the questions asked to them were only related to communication in the official chat, and not more broadly, to other contents presented in the collection of recordings and possible violations; 4. As part of the investigation, the legal grounds on the basis of which the surveillance of the persons, under our representation, was carried out have not been investigated. 5. A number of investigative actions (for example, searches and seizures of telephones and official computers) were late, when it was already possible to temper with evidence.

In light of the above, it is evident that the current investigation is clearly flawed, lacks independence – due to the lack of availability and access to the investigation materials, and the confidence that the investigation is directed at achieving real legal effect is low.  

Below we review in detail the conducted investigative actions and present the related criticism.

• Delays in the recognition of the victim status in the investigation process and unlawfulness of the refusal to hand over case materials

After the persons represented by the Social Justice Center were interviewed and the authenticity of the private communication presented by the investigative body was confirmed by them, in October-November 2021, we addressed the Prosecutor's Office with a justified petition and requested recognition of the persons, represented by us, as victims. Despite the fact that the information at our disposal indicated the validity of the materials presented in the reports and the unlawfulness of the surveillance was evident, the Tbilisi Prosecutor's Office did not even make a decision to refuse the recognition of the victim status, and the City Court completely unjustifiably refused to grant the victim status of a victim, on the grounds that there was no  legal basis for the recognition of the victim status.

It should be noted that in several cases the Tbilisi City Court significantly reduced the control of the court in the process of the recognition of a victim status, and in cases when the prosecutor's office did not even give us a written response to our appeal regarding the granting of status, it pointed out that since there was no Prosecutor's decision to refuse the victim status, the court was not authorized to discuss the issue.

After the recognition of the victim status, the matter of conveying and introducing the case materials to the victims was also delayed for us. The victim has the right to receive the case materials in accordance with Article 57, Part 1, Sub-paragraph "h" of the Criminal Procedure Code of Georgia. However, despite this, the Prosecutor's Office refused to hand over the case materials and only gave us the opportunity to review the non-secret part of the case at the investigative body. A significant part of the case materials shared with us by the Prosecutor's Office was presented in a redacted form and it was impossible to understand its content. In our opinion, the said decision of the Prosecutor's Office is unjustified and constitutes a complete refusal to hand over the case materials. This prevents the victims and their lawyers from analyzing the contents of the case materials fully, under proper conditions where, if necessary, they can verify specific issues related to the investigation with persons with special knowledge. This decision prevents the effective realization of the rights of the victims and hinders real accountability of the investigation.

• Critical review of conducted investigative and procedural actions and the problems related to the important investigative actions

Review of actions taken by the investigation

As mentioned above, the Tbilisi Prosecutor's Office undoubtedly ensured the conduct of important investigative and procedural actions in a fairly short period of time (a large part of the investigative actions were carried out in the period of September-November 2021). In particular, after getting acquainted with the case materials, it became clear to us that 168 persons and 19 employees of the State Security Service (whose identities are kept confidential) were interviewed within the framework of the current investigation. Along with this, information related to the disclosure of information on the open network has been requested from the competent authorities of foreign countries, and, in order to confirm the authenticity of the information, information has been requested from cellular communication companies in Georgia and the authenticity of the communication of the affected persons has been confirmed in the relevant periods. Moreover, information was requested from one of the mobile applications about the creation of the files and the persons mentioned in them, which most likely represent a group of SSSG employees, as well as the correspondence between these individuals at various times. If the mentioned information is obtained, the investigative body will have the opportunity to confirm the authenticity of the persons and correspondence specified in the group chat, which will help to confirm the participation of SSSG employees in creating these files.

In parallel with the aforementioned, within the framework of the investigation, the Tbilisi Prosecutor's Office conducted investigative actions of search and seizure, in particular, it seized the mobile phones of the interviewed employees of the SSSG, their official computer equipment, electronic information carriers and, in order to obtain the information contained in them, they appointed a computer-technological forensic examination, although the conclusion of the examination has not yet been received.  

• Shortcomings of the conducted investigative actions

Flaws in the interrogation process of SSSG employees and the problem of control of classified information by the investigation

Firstly, it's important to note the investigative actions in relation to the SSSG representatives were conducted with shortcomings. The lawyers of the Social Justice Center were provided redacted interview protocols of SSSG employee interviews, therefore, it was impossible for us to determine exactly which unit of SSSG and which positions were interviewed, however, taking into account several details, we assume that the interviewees should mainly be the mid-level management representatives, and so far no high-ranking officials of the Security Service, including the head of the State Security Service and his deputies, have been interviewed.

It is also important that the majority of the information provided to the investigation by the interviewed persons was also presented to us in an redacted form, but as a result of the analysis of the questions asked and individual answers, we find that the investigative body was mainly interested in whether the SSSG employees had a group created in one of the mobile applications and whether or not they corresponded with each other on specific topics. In addition, the questions asked were related to the techniques of surveillance, the place where the surveillance, recording is carried out, and the participation of the interviewees in this process. In the course of the investigation, the investigative body did not ask the SSSG employees a question regarding the distributed collections, in particular, whether the State Security Service was carrying out covert investigative actions or electronic surveillance, within the framework of which publicized collections were created,

The responses of all nineteen persons interviewed to the mentioned questions are identical to each other, and all the interview protocols indicate that they are not members of official online groups and that they were not familiar with the content of the correspondence carried out on their behalf, as provided by the investigation. The interviewed persons indicate that the methods and production process of covert surveillance are determined by secret instructions and they cannot provide information about their content to the investigation, at the same time they deny participation in covert surveillance and note that they do not have information about where and how the mentioned actions are carried out. The problem of proper control of secret information by the investigation will have a negative impact on the independence of the investigation and in such a case will raise the issue of the institutional independence of the investigation.

• The problem of the independence of the investigation with regard to Operative-Technical Agency

An important shortcoming of the investigation is that the representatives of the Operative-Technical Agency of the State Security Service supposedly are not interviewed in the course of the investigation.

As we know, the Operative-Technical Agency is a body authorized to directly conduct covert surveillance and electronic surveillance measures, owns the necessary technical infrastructure and software for monitoring communications and ensures the acquisition of information as a result of covert surveillance, electronic surveillance as well as the storage, sorting, transfer of said information to investigative agencies or /and its destruction.[1] Taking into account the above, it is likely that the employees of the named agency may possess important information about the collections created by the State Security Service and made public, inter alia, they may have information about electoral surveillance measures, implementation methods, persons participating in the exercise, and the tasks given. Thus, it is essential to identify and interview the Agency's employees, which the investigative body has not ensured so far.

• Investigative actions were delayed

According to our assessment, the seizure of mobile phones and the official computer equipment of the SSSG representatives by the Tbilisi Prosecutor's Office is also merely formal. It is quite possible that the employees of SSSG used other phones, where their official correspondence could have been made, and it is possible that the seized official computers did not store any information related to collections at all. It should also be taken into account that interviewing the SSSG employees and the search-and-seizure activities are carried out approximately 2-4 weeks after the start of the investigation, which is quite a long time to destroy the evidence. Beyond this formal process, the prosecutor's office did not conduct search-and-seizure investigative actions in the Operative-Technical Agency, which, as already mentioned, has the exclusive right to conduct covert surveillance and electronic surveillance, and the Prosecutor’s Office did not study the equipment used by the Agency.

The legal basis for covert surveillance was not examined

In the framework of the investigation, information about the legal basis for collecting the recordings was also not requested (or was requested and the investigative body did not provide us with their content). In particular, the investigative body did not examine whether covert investigative actions or electronic surveillance measures were carried out within the framework of counter-intelligence activities against the affected persons, and did not request information from the Common Courts or the Supreme Court of Georgia. At the same time, the internal guidelines of the Operative-Technical Agency of SSSG related to the implementation of covert surveillance and electronic surveillance have not been requested (or there have been requested, and the investigation body did not provide us with their content) – after getting to know the content of which, it would be possible to determine the competence of specific persons with regard to secret surveillance and the methods of obtaining, storing and destroying information.

It should be noted that Social Justice Center had submitted motions the about the importance of conducted and not conducted investigative actions within the framework of the investigation, even before the victim status was granted to the persons represented by us, however, it seems that the investigative body ignored all of this.

• Conclusion

As the above-mentioned circumstances show, the current investigation into the violation of private communication and privacy of a number of persons is flawed and important investigative/procedural actions have not been conducted so far, while some of the actions conducted are merely formal and their results are unlikely to have a significant impact on the course of the investigation.

Taking into account the above, we once again call on the Tbilisi Prosecutor's Office to ensure a full, objective investigation in all respects and to protect the legal interests of the victims in the process of the investigation.

The Social Justice Center continues to represent the interests of the beneficiaries during the investigation process and will submit motions for additional investigative/procedural actions to the investigative body in the near future.

Share