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Article 314 (on Espionage) Sued At the Constitutional Court of Georgia

03.08.2011

Eka Kevanishvili, Radio “Liberty”

On August 2 a suit was filed to the Constitutional Court of Georgia where editor-in-chief of the newspaper Resonance Lasha Tughushi, Constitutionalist Vakhtang Khmaladze and Lawyer Aleksandre Baramidze proclaim the Article 314 of the Criminal Code of Georgia as incompliant with the Constitution of Georgia and request to amend it.

The suitors said the Article 314 of the CCG, under which the photo-reporters were judged in Georgia, contradicts the Article 42, Paragraph 5 of the Constitution of Georgia (No one shall be held responsible on account of an action, which did not constitute a criminal offence
at the time it was committed) as well as Article 24 of the Constitution (Everyone has the right to freely receive and impart information) and Article 7 of the European Convention on Human Rights which entitles the government to make the law clear and obvious.

If not the case of photographers, the discussion about the Article 314 of the CCG would not have started yet. In July of 2011, the society first time publicly started considering the threats coming from this article and the media felt this threat. The evaluations were made based on the analysis and soon experts found out that part of the article contradicts the Constitution of Georgia; experts state the punishment envisaged in the article does not comply with the international standards: the punishment is too strict – Constitutionalist Vakhtang Khmaladze thinks so, who also signed the suit to the Court together with editor-in-chief of the newspaper Resonance Lasha Tughushi and lawyer Aleksandre Baramidze.

“Formulation of the crime in the Article 314 consists of two parts – one is about transferring the data containing state secret to a foreign organization and the second is about collection and transfer of other information to the detriment of the interests of Georgia on the instruction of foreign intelligence or a foreign organization. You can transfer any public information, which is not Top Secret at all, to a foreign organization and relatively you will be accused of detriment of state interests of Georgia and the criminal case will be launched under Article 314.”

Let us review the Article 314 of the Criminal Code of Georgia again which reads:

1. 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 as well as collection and transfer of other information to the detriment of the interests of Georgia on the instruction of foreign intelligence or a foreign organization -shall be punishable by prison sentences ranging from eight to twelve years in length.

2. Espionage, perpetrated amid war or military conflict, or that has substantially undermined the interests of Georgia,-shall carry legal consequences of imprisonment ranging from twelve to twenty years in length.

The suit filed to the Constitutional Court of Georgia states:

“We wrote in the suit that in the part two, phrase “collection and transfer of other information to the detriment of the interests of Georgia on the instruction of foreign intelligence or a foreign organization” contradicts the Constitution of Georgia and we request to amend it. The second part of our suit requests abolishment of the punishment because we think the length of the punishment does not comply with the Constitution of Georgia and various judgments passed by the European Court of Human Rights.”

Public Defender of Georgia Giorgi Tughushi also used its constitutional right to address to the Parliament of Georgia with legislative proposal who also requested the Parliament to formulate the Part 1 of the Article 314 so that to avoid anti-constitutional interpretation of the norm.

“The law shall be transparent, clear and inform any person about possible crime that she/he can commit if the requirements of the Article 314 are breached. In the article, there are notions “other information,” “other organization” so that any person can commit a crime without preliminary cognize by concrete activities.”

Before July of 2011 when photo-reporters were detained, several people were already judged for espionage in Georgia; among them are governmental official Simon Kiladze, political scientists Vakhtang Maisaia and 13 people as a result of the famous special operation “Envery”. Why nobody noticed the obscurity of the Article 314 before? Vakhtang Khmaladze said one reason is that this particular norm of the law was never used in Georgia in the abovementioned cases. Another factor can be the detention of journalists which cast doubts: what kind of secret information they could have?

Lasha Tughushi said this article threats not only journalists but everybody who works on collecting and transfer of any information.”This article was created in accordance to soviet traditions which allows large interpretation of the fact. We saw that people, who have no connection with the espionage, might also be imprisoned under this article.”

Kakha Anjaparidze from the legal committee of the Parliament of Georgia told Radio “Liberty” that the committee has not started discussion on the issue yet and they do not have joint position yet. He cannot express his personal opinion because he does not know the arguments mentioned in the suit. As for the readiness of the parliament to discuss the deficiencies in this particular article, Kakha Anjaparidze said the legal committee is ready for discussion and they are eager to make all legislative norms complete and compliant with the human rights.

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