Public Defender Requests Amendment of Article 314

Gela Mtivlishvili, Kakheti

Public Defender of Georgia sent legislative petition to the Parliament of Georgia. The Ombudsman requested the formation of the Article 314 Part I of the Criminal Code of Georgia which will avoid anti-constitutional interpretation of the norm.

“The Public Defender of Georgia studied the compliance of the Article 314 of the Criminal Code of Georgia with the human rights ensured by the Chapter 2 of the Constitution of Georgia and international standards based on his initiative. The Public Defender started research of the issue after several citizens of Georgia (Lasha Tughushi, Sandro Baramidze, Vakhtang Khmalade) made public statements about incompliance of the norm with the Constitution.  

Having studied the issue, the Public Defender concluded that the edition of the Article 314 Part I of the Criminal Code of Georgia contradicts the human rights ensured by the Constitution of Georgia.

More precisely, “Collecting, keeping of the object, document, information or any other data containing the state secret of Georgia or transferring thereof to a foreign country, foreign organization or their representative, or extortion or transference of other information by commission of the surveillance of a foreign state or a foreign organization to the detriment of the interests of Georgia” contradicts the Article 24 Part I and IV and Article 42 Part V of the Constitution of Georgia.

Disputable statement – “extortion or transference of other information by commission of the surveillance of a foreign state or a foreign organization to the detriment of the interests of Georgia” does not clarify the meaning of other information. There is no other indication about other normative acts which could provide clarifications about the “other information”. The term has such a wide meaning that any information, on any topic, including not only facts but personal opinions and views, might also be considered as crime.

Another point is that “other information” is not a state secret at all because the word “other” already indicates that the information is different from secret information.

Punishment of a person for collecting and transference of “other information”, which does not contain information about defense, economic, foreign relation, intelligence, state security and public order of the country, which can damage sovereignty, constitutional government, political or economic interests of Georgia or member-states of international conventions and agreements, under Criminal Law is unreasonable in a democratic society. 

When an individual has a connection, for example, to the legal entity of private law of some foreign country, he/she might not be able to realize the possibility of criminal outcome considering that he/she cannot be requested to assume that any foreign organization can be preoccupied with collecting information dangerous for state interests. Thus, it turns out that the second sentence of part I of article 314 can be stipulated even in case it is committed without intention. However, this article does not talk about this directly.

The abovementioned clarifies that the second sentence of part I of the article 314 “also collecting or transferring other information to the Counter Intelligence of foreign country or foreign organization against the interests of Georgia” does not satisfy the criteria of predetermination of the law established by the paragraph 5 of article 42 of the Constitution, paragraph I of the article 7 of European Convention of Human Rights, practice of Georgian Constitutional Court and European Court of Human Rights.

Public Defender of Georgia considers that it is important that the Parliament pays special attention to the legislative proposal he submitted to the Parliament. On the one hand it will help us avoid the use of illegitimate legislative norms in practice that will improve the human rights situation in the state. On the other hand it will save the financial and human resources used in the Constitutional Court disputes.

On July 7th, the Counter-Intelligence Department of MIA detained the photo correspondents – Zurab Kurtsikidze (representative of European Press-Photo Agency (EPA)), Irakli Gedenidze (photo reporter of President’s administration), his wife Natia Gedenidze and Giorgi Abdaladze (photo reporter of Ministry of Foreign Affairs of Georgia and photo reporter of Alia Holding) under the charges envisaged by article 314 of the Criminal Code. The Office of Prosecutor made a plea-bargain agreement with the photo reporters detained under the charges of “espionage” which was later confirmed by the judge of Tbilisi City Court Zviad Esebua and the photo reporters were released.