On December 18, 2023, the European Commission for Democracy through Law (Venice Commission) of the Council of Europe, announced that it had adopted, at its 137th Plenary Session (December 15-16, 2023), its opinion on Georgia's Law on the Special Investigation Service and the provisions of the Law on Personal Data Protection concerning the Personal Data Protection Service.

Background to the opinion

According to the opinion, the amended Special Investigation Service Law and the amended Personal Data Protection Law were adopted on December 30, 2021, through an expedited procedure of the Georgian Parliament. More specifically, the amended laws abolished the State Inspector's Service, a body established in 2018 to monitor the lawfulness of personal data processing and covert investigative activities and to carry out the investigation of alleged crimes in law enforcement agencies. Instead, two separate institutions were created: the Special Investigation Service (SIS) and the Personal Data Protection Service (PDPS).

The opinion further states that on June 17, 2022, the European Commission issued its opinion on Georgia's application for candidate status, which stated that Georgia be granted candidate status once 12 priorities were addressed, with priority four focused on providing adequate resources and safeguarding the independence of the SIS and PDPS, as well as the adoption of laws by the Georgian Parliament to enhance the investigative powers of the SIS and improve social protection for the personnel of the PDPS. Following the European Commission's opinion, the Georgian authorities had requested the opinion of the Venice Commission.

What was the scope of the opinion?

According to the opinion, it is not for the Venice Commission to decide whether the law of Georgia meets the criteria set by the EU and therefore, the opinion focused on, among other things, whether the SIS and the PDPS have sufficient independence and powers to address crimes committed by the law enforcement agencies and to guarantee personal data protection in an effective manner.

What were the findings and recommendations of the Venice Commission?

The Venice Commission provided its conclusion along with a list of recommendations. In particular, the Venice Commission highlighted, among other things, that:

• the dismissal of the former State Inspector's Service and their deputies was at odds with the principle of the rule of law, and recommended, effective remedies, including Parliamentary procedures;
• the adoption of the amended laws within a brief timeframe lacked substantial discussions and pluralistic participation, contradicting international standards;
• recommended reporting powers of the SIS and the PDPS;
• immunity of the head of the SIS and the PDPS and their staff;
• give the SIS competence to carry out a follow-up function to monitor covert investigative measures, in close coordination with the PDPS (with the exception of the investigative measures carried out by the SIS itself); and 
• specify the meaning of 'imposing an administrative liability' in Article 40(14) of the Personal Data Protection Law, to make clear that the PDPS has the power to fine controllers or processors for violations and to address all other issues reported in the section on the specific PDPS provisions.

You can read the opinion here.