Georgian government has been advised to formalize mandate, composition and working methods of already existing commission, which was set up on an ad hoc basis to provide oversight of destruction of an archive of secret audio and video recordings of private lives, obtained over the past several years through illegal surveillance.
Thomas Hammarberg, who was appointed by the European Commission as the EU's Special Adviser for Legal and Constitutional Reform and Human Rights in Georgia in February, has recommended to destroy these secret recordings of private life situations after “fast and efficient review” of the recorded material by this special commission to collect evidence which could help in legal actions against those who have compiled the archive, stored in the Interior Ministry.
Some civil society groups have been strongly insisting on an immediate destruction of these recordings and the government has announced number of times previously about the intention to destroy secret recordings of private lives.
In June a commission was established with involvement of civil society representatives to oversee the process. Members of the commission are Interior Minister Garibashvili; chief prosecutor Archil Kbilashvili; public defender Ucha Nanuashvili; as well as executive director of Transparency International Georgia Eka Gigauri and editor-in-chief of Rezonansi newspaper Lasha Tugushi, who have been actively campaigning for an immediate destruction of this archive; the group also includes head of Research Center for Elections and Political Technologies Kakhi Kakhishvili. It has been proposed to also include in the Commission newly appointed Inspector for Protection of Personal Data, Tamar Kaldani, who took the office from July 1.
Destroying of the recordings, however, has been delayed for number of times already with the authorities citing various reasons, including ongoing investigation into illegal surveillance carried out by the previous leadership of the Interior Ministry; the authorities say that the archive is important evidence showing systemic nature of illegal surveillance that was underway during the previous government. Recently the Interior Ministry said that it asked the EU’s human rights adviser in Georgia to provide his recommendation on how to handle these recordings.
Thomas Hammarberg’s recommendation (pdf), dated July 20, was made public on July 24. In his 11-page “preliminary advice” the EU’s human rights adviser in Georgia says that he was asked to provide his recommendation on July 13 when he was invited at a meeting of the Commission, which is in charge of overseeing handling of the archive of secret recordings.
Hammarberg was told by the Commission that archive, which at the time consisted of about 17,000 illegal recordings (the Interior Ministry said on July 24 that number increased to 24,000 as more files were found), could be divided into three categories: 94 recordings of private life situations, containing gay sex and out-of-marriage sex, as well as sex between married couples, which were secretly filmed purportedly with a purpose to use them for possible blackmailing; recordings of meetings and conversations of politicians, journalists and civil society activists; and videos showing torture.
According to the Interior Ministry there is a possibility that some other recordings or copies of those recordings, which are now stored in the ministry, have been taken away and kept by some former interior ministry officials, who previously had access to these files.
Parliament on July 24 passed with its first reading a bill on amnesty envisaging exempting from criminal liability those who possess such files and who will hand over them to the authorities within one month following enforcement of this bill. “This is a good approach,” Hammarberg said on this proposal.
“The dilemma now facing the Commission is the potential conflict between the need to promptly destroy recordings abusing private life aspects, on the one side, and, on the other, to ensure that evidence is available to bring charges against persons responsible for these illegal recordings,” Hammarberg says.
In his recommendations Hammarberg identifies protection of privacy rights as a priority, but also stresses that existence of such illegal recordings is “a reflection of extremely serious crimes requiring both a judicial and a political response.” He says that the aim should be to protect the privacy of all the targeted persons and to create watertight mechanisms guaranteeing such protection in an interim period before these recordings are destroyed; but at the same time he also recommends to collect evidence which could strengthen legal actions against those behind compiling these secret recordings before these files are destroyed.
Hammarberg says that addressing his recommendation will require “a structural approach” and will need a formal government decision to be taken on the authority and membership of the Commission, overseeing handling of the archive.
One of the first decisions, which have to be taken, according to Hammarberg, is whether the Commission will be in charge of handling all three categories of illegally obtained recordings or only those relating to intimate private life situations. He has suggested the Commission to be given a broader mandate.
Hammarberg recommends the Commission to ensure privacy rights of persons targeted in the illegal recordings, but also to “assemble, if possible, evidential material which could be used in judicial proceedings against persons responsible for the crimes in question.”
“Prepare a comprehensive description of all these criminal activities with the intention to establish a correct, impartial historic record on this issue, including the measures taken by the Commission itself to undo as much as possible of the damage caused. This will require a closer review of the material in the archive… Priority should be given to an analysis of two special categories: recordings of intimate private life and recordings of torture. In both cases measures should be taken to protect the identity of the targeted persons during the reviews,” recommendations read.
Hammarberg says that the only purpose of the review in the cases involving recordings of private life situations should be to ensure that “information which could be used in a trial not be lost.”
“The Commission members – and not least the Public Defender, the Inspector on [Personal] Data Protection and the civil society representatives – have a particularly essential role in verifying that the destroyed material in fact did exist. Special documentation should be established for this purpose and be signed by Commission members,” the recommendation reads and also adds that if at a potential trial defense questions the evidentiary value of such a document the prosecutor would have the possibility of inviting Commission members as witnesses. Hammarberg says that it would be "sensible that at least one of the civil society representatives or the [personal] data protection inspector take a direct part in the review itself."
It also says that as the privacy right is such an essential aspect “it seems correct to destroy these recordings immediately after the review and not await possible judicial proceedings.”
He, however, also says that one possible option might be to keep as an example one recording for presenting to the court as evidence, but only if anonymity of a person targeted in the recording is guaranteed.
“Only if it is deemed absolutely important as evidentiary material and only on condition that full proof guarantees are established for the protection of privacy rights, may an example of such recordings be kept for the judicial proceedings (and thereafter destroyed). However, if there is a conflict between privacy rights and prosecutorial interests, the former should be given preference,” Hammarberg says.
The recommendation also addresses need for tightening surveillance rules, saying that no such activities can be decided or conducted by the security service or other state agencies without proper involvement of the judiciary. It also addresses concern over possible data-mining activities by the authorities.
“It is known that systems have been developed in other countries to enable the security authorities or ministries of interior to exercise ‘data mining’ of basically all electronic communications. I have been informed that also Georgia has a system through which the MIA [Ministry of Internal Affairs] has automatic access to all phone calls, emails, SMS via the private telecom providers in the country. It is important that activities in this area be regulated by law and put under democratic and judicial control,” the recommendation reads.
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