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EPIC --- Privacy and Human Rights Report 2006

Republic of Georgia

Constitutional Privacy Framework

The Constitution of Georgia guarantees the right to privacy in Article 20 of the Constitution.[2429] This article sets out guarantees against arbitrary search and seizures. Article 20 states: (1) Everyone's private life, place of personal activity, personal records, correspondence, communication by telephone or other technical means, as well as messages received through technical means shall be inviolable. Restriction of the aforementioned rights shall be permissible by a court decision or also without such decision in the case of the urgent necessity provided for by law; (2) No one shall have the right to enter the house and other possessions against the will of possessors, or conduct search unless there is a court decision or the urgent necessity provided for by law.

Data Protection Framework

Despite constitutional guarantees, there is no precise legislation for the protection of privacy or personal information. The Civil Code of Georgia, which entered into force in 1997, recognizes right to privacy, as a civil law tort.[2430] The code includes a very general article stating that a person may demand retraction of information invading into his/her private life: "A person is entitled to demand in court the retraction of information that defames his honor, dignity, privacy, personal inviolability or business reputation unless the person who has disseminated such information can prove that it corresponds to the true state of affairs. The same rule applies to the incomplete dissemination of facts, if such dissemination defames the honor, dignity or business reputation of a person."

Under the Civil Code[2431] of Georgia, persons may seek damages if they can prove the culpability of the person who disseminated the information.[2432] These provisions of the Civil Code have not been applied in courts' practice very often. In 2000, the General Administrative Code of Georgia was adopted. The code includes a Freedom of Information chapter, which, among other freedom of information rights, introduces the term "personal secret."[2433] The notion of "personal secret" is also found in Article 10 of the Code: "Everyone may gain access to official documents kept by an administrative agency, and obtain a copy thereof, unless such documents contain state, professional, commercial, or private secrets."

The validity of certain restrictions on disclosure of private secrets, along with other possibilities of closing or classifying documents is considered in the Administrative Code. Aiming to avoid complications and misunderstandings, the Code identified what is personal data and how information should be classified as secret. Article 27, clause (e) defines "personal data" as "public information that allows identification of a person." The definition of personal data as public information allowing identification of a person is insufficient for considering data stored in any public agency inaccessible to any third party; therefore, the issue of banning access to information is specifically addressed by Article 27.

Pursuant to Article 27 of the General Administrative Code, a data subject shall decide whether information should be deemed as personal secret: "The matter whether particular information constitutes a personal secret shall be decided by the information subject, except as otherwise prescribed by the law."[2434]

After the adoption of the General Administrative Code, there has been much debate about whether a separate law on personal data should be adopted. In 2003, NGOs started to work towards a separate law, among them were IRIS Georgia and Liberty Institute. Draft laws have been prepared, but there have been no other steps taken in order to initiate the legislation at this time.

In 2004, an important piece of legislation came into force after a democratic breakthrough and a five year struggle. The “Draft law on Freedom of Speech and Expression."[2435].was adopted by the Georgian Parliament shortly after it gained the approval of the Council of Europe Experts[2436] The law sets out free speech guarantees, decriminalizes criminal defamation, envisages high protection for political speech, and includes clear distinction between private and public persons and facts and value judgments.[2437] This law also includes several provisions that are relevant to the right to privacy in Georgia. In particular, the law introduces the test of "reasonable expectation of privacy."[2438] Under the law "personal secret" is defined as follows: "information having personal value that should be protected according to the law as well as the information or facts with respect to which a person has a reasonable expectation of inviolability of private life. Information on an administrative agency shall not be considered a private secret."[2439] In addition, the law includes another provision stating: "The freedom of expression shall not be restricted by the reason of inviolability of private life and protection of a personal secret with respect to an event that should be known to a person for the exercise of the public self-government in a democratic society."[2440] On April 18, 2005, the Liberty Institute and Chief Justice Kote Kublashvili began organizing Judicial Training workshops on the new law.[2441] However, the judiciary of Georgia has experienced diminished capacity due to constitutional amendments adopted in 2004 that increase presidential influence over the judiciary.[2442]

Georgia has adopted laws on access to government-held information.[2443] Although the laws provide right of access consistent with international standards, in reality access is often hampered by resistance from officials, lack of external oversight, broad exemptions, and poor implementation.

Supervisory Authority

On the bases of Resolution No. 731 of June 16, 1992 of the government of Georgia, a State Inspection for the Protection of Secret Information was created. The Inspection was created by the "Law on Press and Other Means of Mass Media" adopted on August 10, 1991. On June 24, 2004, the "Law on Freedom of Speech and Expression" was adopted, which repealed the previous "Law on Press and other Mass media." The new law contains no mention of the State Inspection for the Protection of Secret Information.

Still, in 1997 the Inspection was listed under the independent state entities of the executive branch by the "Law on Structure and Rules of Procedure of the Executive Power." However, this was abolished by the "Law on Structure, Power and Activities of the Government of Georgia of 2004." In February 2004, the temporary provisions of the law ordered the functions of the State Inspection for the Protection of Secret Information to be transferred and implemented by the National Security Council of Georgia. However, in December 2004 the law was amended[2444] and the appropriate function has been transferred to the Ministry of Internal Affairs of Georgia. Unfortunately, it is not clear in what form this function is conducted by the Ministry, as there is no regulation adopted regulating the issue.

As for other agencies in respect of protecting secret information, the General Administrative Code of Georgia obliges all public entities to protect secret information kept therein from disclosure. Moreover, ministries and legal entities of public law are governed by normative acts, which establish principles for considering information secret and their protection.

Wiretapping and Surveillance Rules

Law enforcement wiretapping, search, seizure and electronic surveillance authority is regulated by Law of Georgia on Operative and Investigative Activities adopted in 1999.[2445] Aims of the operative and investigative activities are listed in Article 2[2446]: prevention and detection of crime; detection of person who fled prosecution; detection of property gained by illegal action, detection of lost persons and gathering of evidence for criminal prosecution. Activities covered by the law and relevant for privacy issues are: gathering of information and visual surveillance, seizure of correspondence, wiretapping and covert eavesdropping, seizure and control of electronic correspondence and electronic surveillance.

A warrant from a judge is only required for wiretapping, seizure and control of electronic correspondence and electronic surveillance. In cases of urgency, a warrant is not required; however, a judge should be notified within 48 hours. The judge may approve or disprove of the measure and order the destruction of information acquired.[2447] The decision of the judge is final and there are no mechanisms to challenge the legality of the measure. The aforementioned measures for the purposes of criminal prosecution are allowed for crimes that have the punishment exceeding two years' imprisonment. Under the Criminal Code of Georgia almost 90% of crimes fall under the category for which those measures could be used. The law does not provide high standards of proof for use of these measures; Article 7 of the law merely states that the motion to the judge should be motivated. The law does not include principle of minimization[2448] in surveillance and wiretapping measures. The law provides that operative and investigative measures are "strictly confidential" and their disclosure entails criminal prosecution under the Law on State Secrets,[2449] unless 25 years have passed since the application of the measure.[2450] Activities can be prolonged up to six months with motivated decision of the head of the agency and in extraordinary circumstances up to 12 months with consent of the General Prosecutor of Georgia.[2451]

Liberty Institute[2452] has been calling for the reform of the Criminal Justice System. A concept paper with NGO recommendations[2453] has been prepared by the Liberty Institute, Association for Legal and Public Education, and Georgian Young Lawyers Association in this regard. Based on the concept paper, the new government, which came to power after the Rose Revolution, created a working group to prepare the new Criminal Procedure Code Draft, which included NGO representatives. With assistance from the American Bar Association, the working group prepared a final draft of the Code in spring of 2006.[2454] This new Code will bring Georgia’s legislation into compliance with international criminal standards and it more closely follows the requirements of the European Convention on Human Rights. The final draft Code contains an explicit presumption of liberty, and it also envisages new provisions for wiretapping and electronic surveillance activities concerning criminal prosecution. Those measures, according to the draft, can be used only for investigation of grave crimes,[2455] with warrant from court (no exception allowed in cases of urgency), for 30 days and upon strict supervision of the Liberty Judges.[2456]

Prosecution has to report to the Liberty Judge every 10 days during which the measures are being carried out, and Liberty Judge may order the discontinuance of the measure if principle of minimization[2457] is not observed and no relevant information is being obtained. Under principle of minimization, law enforcement officials are obliged not to monitor the conversation that is not relevant to the crime. The surveillance measures may be continued for another 30 days upon a firm motion of the prosecutor. The draft Criminal Procedure Code provides that wiretapping and covert eavesdropping can be used only as a last resort, and the prosecution has to demonstrate that other restrictive measures have been applied but were not effective.[2458] The person against whom the measures have been used has to be notified after termination of the measure, and can challenge the legality of the action in court.[2459]

Another draft law prepared by the Parliamentary Committee on Defense and Security is Draft Law on Counter-Surveillance.[2460] The draft law was prepared based on the United States Foreign Intelligence Surveillance Act (FISA). Under the draft law, the President of Georgia upon the motion of the Prosecutor General may order surveillance measures without approval from courts. Measures may last up to one year.[2461] Prosecutor General has to elaborate minimization rules and attach the elaboration to the motion for the application of the measure presented to the court. Minimization rules are defined by the Draft Law as follows:

"Minimization procedures." with respect to electronic surveillance, mean (1) specific procedures, which shall be adopted by the Prosecutor General of Georgia, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting Georgian persons consistent with the need of the Georgia to obtain, produce, and disseminate foreign intelligence information; (2) procedures that require that nonpublicly available information, which is not foreign intelligence information, shall not be disseminated in a manner that identifies any Georgian person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; (3) procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and (4) procedures that require that no contents of any communication to which a Georgian person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order is obtained or unless the Prosecutor General of Georgia determines that the information indicates a threat of death or serious bodily harm to any person.[2462]

Draft law also provides for creation of a special collegium of judges to consider motions under it. Collegium will be established by the Chairman of the Supreme Court from the judges of Tbilisi District Court. Decision of District Court collegium may be appealed to Special collegium, whose members will be taken from Supreme Court judges. Decisions of the collegium are confidential, unless legality of the measure has been challenged in court and has to be determined. To date, the Draft law has not yet been adopted.

The Central European and Eurasian Law Initiative (CEELI) has been working in Georgia since 1996.[2463] Over the last year, CEELI has assisted with broad reorganization of the judiciary and has worked with the Ministry of Justice to improve enforcement of the judgments system. The group also established a hotline for justices which allows them to report cases of government pressure or corruption anonymously.[2464] Important legal profession and legal education reforms have also been established. CEELI have also focused on the pervasive issue of domestic violence, and developed goals to promote gender equality, as well as reduce human trafficking in the country. Lastly, CEELI have been assisting the government in developing an inclusive strategy to combat corruption.[2465]

Major Privacy Case Law

Privacy claims are very rare in Georgian courts. They started to appear in 2001. Most of those claims are dealt with under the Civil Code, which includes provisions for the protection of privacy.[2466]

During 2004, only one lawsuit was presented to the court by the victim of a rape, whose name, address and other personal characteristics were published in the Georgian Weekly Newspaper "Kviris Palitra."[2467] The victim of the crime has motioned the court to hold closed hearings. The court heard the case in closed hearings; however, it released the final judgment to the press. The court has relied on the provision of the Criminal Proceedings Code, under which all the judgments are public, even though the hearing was held in camera.[2468] District court ruled in favor of the applicant and obliged the newspaper and journalist to pay GEL 5,000 for moral damages. The Supreme Court has affirmed the judgment. However neither district court nor Supreme Court explored the obligation of the court, which heard the case, to protect the privacy of the victim.

Recent Developments

The International Organization for Migration has developed “Personnel Identification and Reporting System (PIRS) Border Management/Passport Control/Anti-Terrorism” software specifically for Georgia. PIRS software allows border guard officers to scan traveler passports into a computer system. The PIRS software has been tested and adopted at the Tbilisi Airport and Red Bridge Port of Entry. With funding and equipment from the US Government, the PIRS system will be extended nationwide.[2469]

As new types of passports, including those with biometric data, are being implemented across Georgia, the Civil Registry Agency of the Justice Ministry of Georgia is adding citizens’ photographs to its electronic database. The database currently contains 400,000 records; however, the Civil Registry Agency plans to include 4.5 million photos in the database by 2008.[2470]

The Struggle against Narcotic Crime Act came into force in August 2007. According to the law, drug addicts will be denied driver’s licenses and will be barred from working in medical, legal or pedagogical practice. They also will not be able to work in governmental organizations, and will not have the right to run in elections.[2471]

An amendment to the Criminal Code added the crime of cyber terrorism. Cyber terrorism is defined as “illegal acquisition of computer information protected by law, its use or threat of use, which poses the threat of grave results, and violates public security, state strategic, political or economic interest, committed with the purpose of coercing the population and/or influencing the state agency.”[2472] The crime is punishable with imprisonment for 10 to 15 years. The same activity resulting in death or other grave consequences is punishable with imprisonment from 10 to 20 years or a life sentence.[2473]

NGO Advocacy Work

Domestic and international human rights groups were able to operate without government restrictions.[2474] The government has a constructive relationship with many NGOs. This was underlined by the Parliament's decision to establish an NGO-Parliament cooperation office and the allocation of two seats in the Permanent Interagency Anti-trafficking Council to NGOs.

Liberty Institute, with financing from IREX,[2475] is preparing the textbook for lawyers, judges and students of law and journalism education programs on the protection of privacy. This textbook will compile decisions of the European Court of Human Rights under Article 8, decisions of the UK House of Lords, the United States Supreme Court and the Canadian Supreme Court. In addition, it will include the explanatory notes on Article 8 of the ECHR and documents of the European Union on Data Protection. Liberty Institute is promoting discussion in this field and lobbying for adoption of relevant legislation in order to guarantee effective mechanisms for protection of privacy in Georgia.

International Obligations

On April 27, 1999, Georgia signed the European Convention on Human Rights and ratified it on May 20, 1999.[2476] On November 21, 2001, Georgia has signed but has not ratified the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.[2477] On January 24, 2006, the Parliamentary Assembly of the Council of Europe (PACE) adopted a resolution on Georgia. The group reported that despite some substantial legislative reforms in Georgia, the country had yet “to produce concrete results in most areas.”[2478] PACE recommended that Georgia guarantee judicial independence, eliminate torture in prisons, and ratify the European Charter for Regional or Minority Languages.[2479]

The EU and Georgia signed the European Neighborhood Policy Action Plan which will guide relations for the next five years.[2480] The plan calls for action by the Georgian government in the areas of: democracy; energy; trade; rule of law; resolution of international conflicts; and economic and business development. Georgia has expressed interest in joining NATO.[2481]

[2429] Constitution of Georgia, adopted in 1995, available at: <http://www.friends-partners.org/oldfriends/constitution/constitution.georgia.html>.

[2430] The Civil Code of Georgia, Article 18, adopted on June 26, 1997, available at <http://www.microfinancegateway.org/files/24595_file_24595.pdf>.

[2431] Id.
[2432] Id.
[2433] The General Administrative Code of Georgia, Article 27, adopted on June 29, 1999, available at <http://unpan1.un.org/intradoc/groups/public/documents/UNTC/UNPAN004030.pdf>.

[2434] If any other law contains obligations to consider personal information secret, the information is classified. e.g. such obligations are established by the law of Georgia on Patients' Rights.

[2435] Draft Law on Freedom of Speech and Expression, adopted on June 24, 2004, available at <http://www.article19.org/pdfs/analysis/georgia-foe-guide-april-2005.pdf>.
[2436] The Council of Europe approved the law on March 25, 2002. For more information on this issue see, <http://www.coe.int/T/E/Human_Rights/Media/3_Assistance_Programmes/Legislatives_exp/Georgia/ATCM(2002)002_en.asp>.
[2437] The Law on Freedom of Speech and Expression, adopted on June 24, 2004, Article 1.
[2438] Id. at Article 1, clause (n).
[2439] Id.
[2440] Id. at Article 13, clause (3).
[2441] Liberty Institute, “Promoting Law on the Freedom of Speech and Expression,” available at <http://www.liberty.ge/eng/menu_pages_full.php?menuId=12&subTitlesId=11&pages_id=33&from=subTitles>.
[2442] Zaal Anjaparidze, “Critics Press for Improved Judicial Independence in Georgia,” Eurasia Daily Monitir, April 26, 2006.

[2443] Article 19, “Under Lock and Key: Freedom of Information and the Media in Armenia, Azerbaijan, and Georgia,” available at <http://www.article19.org/pdfs/publications/under-lock-and-key.pdf>.

[2444] Amendments to the Law on Structure, Power and Activities of the Government of Georgia were passed on December 23, 2004.

[2445] Law of Georgia on Operative and Investigative Activities, adopted on April 30, 1999, available at <http://www.cis-legal-reform.org/indexdb.asp?cS=Georgia&langI=eng&jahr=&typ=&r=&c=>.
[2446] Id.

[2447] Id. at Article 7.
[2448] Principle of minimization is currently not recognized under the Georgian legal system. See discussion infra.
[2449] Law on State Secrets of Georgia, adopted on October 29, 1996, available at <http://www.cis-legal-reform.org/indexdb.asp?cS=Georgia&langI=eng&jahr=&typ=&r=&c=>.
[2450] Id. at Article 5.
[2451] Id. at Article 8.

[2452] Liberty Institute is a non-profit, non-political organization. More information about Liberty Institute can be found at <http://www.liberty.ge/eng/>.
[2453] The concept paper is available at <http://www.liberty.ge/geo/categories.php?genre_id=76&section_id=2&from=categories> (in Georgian).
[2454] American Bar Association, “Georgia,” available at <http://www.abanet.org/rol/europe_and_eurasia/georgia.html>.
[2455] Grave crimes according to the Georgian Criminal Code are crimes punishable with more than 10 years of imprisonment.
[2456] A new category of judges who will approve pre-trial orders.

[2457] Principle of minimization is defined in the Draft Code as follows: "Investigative authorities who are conducting control and communications measures against a person should take appropriate measures not to monitor conversations which do not reveal information relevant to the investigation."

[2458] Draft Code, supra at Article 98.
[2459] Id. at Article 101.

[2460] Draft Law on Counter-Surveillance, 2005, prepared by Member of Parliament, Deputy Chairman of the Parliamentary Committee on Defense and Security Mr. Nick Rurua. Draft law is not final as of April 27, 2005 and may be subject to changes until it is presented to the Parliament.
[2461] Id. at Article 7.

[2462] Id. at Article 2.

[2463] American Bar Association, “CEELI in Georgia,” available at <http://www.abanet.org/ceeli/countries/georgia/program.html>.
[2464] Id.
[2465] Id.

[2466] The Civil Code of Georgia, supra at Article 18.

[2467] S.S. v. Weekly "Kviris Palitra" and Megi Tsanava, Supreme Court of Georgia, 2004.
[2468] The Criminal Code of Georgia, Article 13, available at <http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGAL&id=404c5dc11>.

[2469] “USG Donates Technical Equipment to Georgian Customs and Border Guards,” US Embassy in Georgia <http://georgia.usembassy.gov/print/2006/print20060606USGAssistance.htm>. See also “A New Personal Identification & Registration System for Traveler and Document Inspection Installed at Georgian Sea Ports,” The Georgian Times, March 26, 2007, available at <http://www.geotimes.ge/index.php?m=home&newsid=3647>.

[2470] “700 000 Records Entered E-Data Base of Civil Registry Agency,” The Georgian Times, May 23, 2007, available at <http://www.geotimes.ge/index.php?m=home&newsid=4593>.

[2471] “Law on struggle against narcotic crime comes in force,” The Georgian Times, August 2, 2007, available at <http://www.geotimes.ge/index.php?m=home&newsid=6006>.

[2472] Criminal Code of Georgia, Art. 324(1) (amendment No.3530) July 25, 2006.
[2473] Id.

[2474] US State Department Human Rights Report 2006, supra.

[2475] International Research and Exchanges Board homepage <www.irex.org>.

[2476] Convention for the Protection of Human Rights and Fundamental Freedoms.
(ETS no.: 005), available at <http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm>.
[2477] Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
(ETS no.: 108), available at <http://conventions.coe.int/Treaty/en/Treaties/Html/108.htm>.
[2478] PACE, “Resolution 1477: Implementation of Resolution 1415 (2005) on the Honouring of Obligations and Commitments by Georgia,” January 24, 2006, available at <http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta06/Eres1477.htm>.
[2479] Id.

[2480] Id.
[2481] The White House, “President Bush Welcomes President Saakashvili of Georgia to the White House,” July 6, 2006, available at <http://www.whitehouse.gov/news/releases/2006/07/20060705-4.html>.