The Public Defender of Georgia is responding to the bill on State Inspector’s Service drafted by the Ministry of Justice of Georgia. For years, the Public Defender has been recommending establishment of an independent investigative mechanism equipped with the functions of investigation and criminal persecution.

As of today, the Georgian Public Defender considers that establishment of an independent agency (with investigative and indictment functions) will be the best way to solve the existing problem. Investigation of the cases of ill-treatment and deprivation of life, as well as criminal prosecution of offenders, is equally problematic.

Despite the above, the Public Defender considers that the model presented by the draft law on State Inspector’s Service may be effective in solving problems at the investigation stage if a number of key issues are corrected in the draft law. For this purpose, the Public Defender of Georgia submitted her opinions about the draft law to the Ministry of Justice of Georgia.

According to the Public Defender of Georgia, for the effective functioning of the State Inspector’s Service, the inspector should enjoy a high level of trust and legitimacy, which needs involvement of various actors at any stage of the election of the inspector. That is why the Public Defender offers the author of the draft law a more pluralistic rule of staffing a commission and determination of a higher quorum for the election of the inspector. In addition, to ensure high standards of independence and impartiality of the State Inspector, it is advisable to restrict the possibility of reelection of one and the same person to the inspector’s position and to increase the term of office to 6 years.

In order to ensure that the inspector has all the necessary tools for effective functioning, it is necessary to amend the Criminal Procedure Code so that the Chief Prosecutor is unilaterally restricted to ignore the investigative subordination over the cases subordinated to the State Inspector. In addition, the law should define the obligation of the State Inspector to request handover of a criminal case into the offences under its subordination from other investigative units for investigation on one hand and the obligation of the Prosecutor to hand over a case to the inspector immediately upon request on the other hand.

The Public Defender considers that the fact that the Prosecutor's Office will retain the authority to lead proceedings will significantly weaken the independence of the Inspector's Service. If the purpose of the draft law is to establish an independent investigative mechanism, it is necessary the Inspector's Service to be allowed to conduct an investigation independently, without the mandatory instruction of the Prosecutor's Office. Independent conduct of an investigation involves the possibility of conducting a number of investigative actions without obtaining permission from the Prosecutor's Office.

Finally, the proposed bill creates obvious cases of conflict of interest, but does not provide any mechanism for neutralizing them. In particular, on the one hand, the State Inspector's Service is equipped with investigative powers and on the other hand, it is responsible for controlling the lawfulness of personal data processing, as well as secret investigative actions and the activities carried out at the central bank of electronic communication identifiable data. It is necessary the draft law to provide mechanisms for preventing conflict of interests.

The Public Defender of Georgia expresses readiness to be actively involved in the consideration of the draft law and hopes that her opinions and proposals will be reflected in the final version of the draft law.