On 11 July 2022, the RA Draft Law on Operational Intelligence Activity was put for discussion on the unified website for publication of legal acts’ drafts. Law Development and Protection Foundation, Open Society Foundations - Armenia, Transparency International Anti-Corruption Center, Protection of Rights without Borders NGO and Helsinki Citizens’ Assembly-Vanadzor published their opinion on e-draft.am highlighting the points that can violate human rights, and recommended relevant amendments.
If the draft is adopted with this content, it can violate or groundlessly restrict human rights such as the right to respect for private and family life, the right to respect for correspondence. The thing is that the legal regulations of the draft allow bodies conducting operational intelligence activity to take such measures even in cases when that necessity is not justified. Thus, as compared to the acting law, the draft does not specify that the body conducting the operational intelligence activity is obliged to justify in court that it is reasonably impossible to collect the information necessary to complete the tasks assigned to them. “The European Court of Human Rights recorded that the court allowing this measure should check whether the needed interference complies with the requirement of a necessity in a democratic society by also checking if it is possible to achieve the pursued goals with less intrusive measures”, the opinion reads.
Another essential issue is that the draft does not specify that the bodies implementing operational intelligence activity have an obligation to provide the telecommunication service providers with the decision of the court that authorized supervision and the extract of the decision. Thus, it makes unrealistic any structure of further supervision over unauthorized interference. The European Court of Human Rights addresses this issue, stating, “A system which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorization to the communications service provider, or to anyone else, is particularly prone to abuse”.
In the joint opinion, we also presented observations regarding the right to claim the materials of operational intelligence measure applied to oneself, the conditions of applying confidential measures, the terms of terminating operational intelligence measures, as well as the right to appeal operational intelligence measures.
We recommended restoring the legal regulation of the acting law, according to which the body conducting the operational intelligence measure shall justify in court that collecting the information necessary for implementation of their task in a way other than the relevant measure is reasonably impossible. In terms of providing the telecommunication service provider with the court decision, the following was recommended, “Establish an obligation of the bodies conducting operational intelligence measures to present telecommunication service providers with the court’s decision (or extract of the decision) allowing control of digital communication (keeping the confidentiality of information considered a state secret)”.
Click here to read the opinion and the recommendations. (in Armenian)