Upcoming Changes in Banking Accounts Monitoring Violate Human Rights
27 October, 2011

The newly added prima paragraph 124 in criminal code enabling Prosecutors’ Office to start monitoring of any bank account bypassing the Financial Monitoring Service in case of money laundering suspicion, violates European Convention on Human Rights and puts the country on the track of a police regime.  

The paragraph in question obliges banks to report on the account suspected of money laundering or any other criminal action at Prosecutors’ Office immediately without referring to the mediator chain of Financial Monitor

Service of Georgia (FMS) first, as it is practiced in compliance with the active anti-money laundering law of Georgia at the moment.

FMS is a Legal Entity of Public Law created with the National Bank of Georgia in 2003 and its main objective is facilitating prevention of illicit income legalization and terrorism financing.

According to the currently active anti-money laundering law subject to monitoring shall be both cash and non-cash transactions if its amount exceeds GEL 30 thousand  and/or the transaction is suspicious regardless its amount.

And all financial institutions or instances dealing with money turnover and related legal procedures are responsible to report on suspicious cases at FMS that in its turn is responsible to inform the relative law enforcing structures including Prosecutors’ Office and internal affairs’ ministry. And only on the bases of court decision the Prosecutors’ office starts monitoring of the questioned account.

However, the newly added 124 prima paragraph links banks with the Prosecutors’ Office by direct responsibilities actually removing the FMS from the scene and unties hands to Prosecutors’ Office to act arbitrary without the FMS reference.

On the other hand the bill suggests quite indefinite monitoring term countering to the 8th paragraph of the European Convention of human rights setting standards of private life, Georgian Young Lawyers Association (GYLA) assures.

Latent surveillance over citizens is legalized in police states - Strasburg court stipulated in the case Klass and Other vs. Germany, and Convention of European Court of Human Rights can admit such practice only if it is necessary to safeguard democratic institutions. However, the court stresses that nature and timelines of such confidential surveillance should be clearly defined as far as the limits fixed for confidential investigation and monitoring is a guarantee to protect individuals from the abuse of discretion on side of the state.

Therefore limits should be fixed to mandates of both the prosecuting body and the judges approving orders on latent monitoring.

However, the suggested paragraph 124 lacks transparency from both points of view thus posing risks to leave citizens vulnerable to arbitrary action of law enforcers if the changes will be approved in the way they are suggested, Georgian legal experts worry.

According to the questioned paragraph, the monitoring period should not exceed the term that is fixed as necessary for obtaining evidences on the criminal case under investigation.

But the sooth of securing evidences for investigation differs from the account monitoring, Tatuli Todua, Parliamentary Secretary of GYLA, explains.

According to her, the confidential account monitoring is intrusion in private life as far as owner of suspicious account is not aware that his/her account is under focus of prosecuting bodies. While seeking for evidences the investigated case is transparent and the person being under prosecution is well aware of this process.

On the other hand the evidence searching period is not limited by the criminal law that means it can last for uncertain period taking months and years. According to criminal law of Georgia, investigation should not exceed reasonable timelines fixed on crime longevity period that varies from 2 to 25 years.

Therefore the dubious definition of bank account monitoring terms linking monitoring period with the investigation period enables Prosecutors’ Office to enjoy as long monitoring as they would like form 2 to 25 years based on single  permission of a judge [for the court order expire date is not elaborated either].

“Monitoring of bank accounts is intrusion in private life and it cannot last as long as investigation and unclear definition of monitoring period makes individuals vulnerable to arbitrary action of prosecuting bodies and latent investigation. This undermines the 8th paragraph of European Convention fixing reasonable limits to confidential prosecuting actions,” Todua elaborated. “Also, we think that a judge who gives an order for confidential monitoring should be restricted in timelines. All in all the entire monitoring period should not exceed 30 days.”

To put the disputed 124th paragraph in line with the international law GYLA suggests to amend the proposed changes as following: monitoring period must include 30 days; increase of the confidential monitoring can only be based on grounded suspect and Prosecutors’ Office in its repeated request at court should indicate reasons why the first monitoring failed to achieve results; confidential monitoring of accounts can be prolonged only twice, the more repeated period is inadmissible.

According to Zviad Kukava, one of the co-authors of the questioned amendments to the criminal code, the changes include no risky implications at all. He failed to provide with more detailed analysis of the changes however under excuse that his co-author MP was more competent for the in-depth analyze of the bill. The latter turned out unavailable for timely response however.

Soso Tsiskarishvili, a political-economic scientist, presumes the bill is a pre-election move of the ruling power to control banking accounts easier prior to parliamentary election 2012 launches.

The bill was already approved at the first parliamentary hearing without proper publicity inclusion during its discussion at committee sittings. GYLA experts hope to achieve concession by the second hearing.

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