The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 14 December 2018, the First Board of the Constitutional Court of Georgia partially upheld the constitutional complaint №809 (Citizen of Georgia Titiko Chorgoliani v. the Parliament of Georgia).

The Complainant challenged the constitutionality of paragraph 10 of Article 120 of the Criminal Procedure Code of Georgia with respect to Paragraphs 1 (principles of equality of arms and adversarial procedure) and 8 (the right against self-incrimination) of Article 42 of the Constitution of Georgia, as well as, the constitutionality of paragraph 1 of Article 136 of the mentioned Code, with regard to the Paragraph 1 of the Article 42 of the Constitution of Georgia.

According to Paragraph 10 of Article 120 of the Criminal Procedure Code of Georgia, the prosecution had the right to primary examination of an object containing information seized upon motion of the defence. The Complainant argued that, in criminal proceedings, obtaining evidence to support one’s position was a prerogative of the parties. Under the disputed provision, the defendant was obliged to hand over evidence obtained on the basis of defendant’s motion to prosecution. Hence, the disputed provision violated the adversarial principle, equality of arms and the right against self-incrimination.

The respondent, the Parliament of Georgia emphasised that the disputed provision served to ensure authenticity and credibility of evidence in criminal proceedings, guaranteed comprehensive and effective investigation, and protected relevant evidence from the damage and destruction. The respondent explained, that after the primary examination of an object, the defendant had the possibility to examine obtained evidence on their own. Therefore, the disputed provision satisfied the constitutional requirements.

According to the Constitutional Court of Georgia, the sole fact that one party to criminal proceedings has a temporal advantage of examining the evidence, may not entail the restriction of the constitutional right, if later, at the reasonable stage of criminal proceedings, the same possibility is presented to the other party.

The Constitutional Court of Georgia defined that, under the right to primary examination, the prosecution had the right to conduct a comprehensive examination of an object obtained by the motion of the defendant, carry out the relevant expert examination, and other necessary actions. According to the analysis of the Criminal Procedure Code, the disputed provision created a risk that prosecution could prolong the examination of evidence, delay the transfer of evidence to the defendant for an unreasonable period or withhold the object of examination. In such circumstances, the defendant lacked the opportunity to influence the prosecution with the interference of a judge or using other procedural mechanisms, and as a result acquire the object, obtained by her/his motion. The Constitutional Court also indicated that some objects might be examined only once (as it can be the subject to exhaustion, destruction, etc.). In this regard, when the primary examination is conducted by the prosecution and it has the opportunity to conduct an expert examination of the evidence, the defense party is objectively deprived of the opportunity to examine the evidence obtained by his/her motion, to get the information from it, and to use it as a proof in criminal procedures. In such circumstance, the defendant fully depends on the results of the examination conducted by the procedural opponent, and the prosecution is privileged to conduct primary examination each time.

In view of the above-mentioned, the Constitutional Court considered the disputed provision as a restriction of equality of arms and the adversarial principle, because it did not provide any procedural mechanism that would protect the defendant from not receiving or delayed receipt of evidence. Furthermore, the disputed provision included a risk, that the opportunity of examining the evidence, suitable only for one-time examination, would only be given to the prosecution, without the proper examination by the defence party.

Constitutional Court considered that the disputed provision served to achieve such important legitimate aims as the authenticity of evidence in criminal proceedings, ensuring its credibility, ensuring effective and comprehensive conduct of investigative functions of investigation bodies, and protection of key evidence from destruction and damage. Despite this, the legislator could have established a different, less restrictive measure within which a reasonable balance between the parties would have been protected and the legitimate aims would have been achieved effectively.

The Constitutional Court noted that a regime that guaranteed timely access to evidence by the defendant, the opportunity of filing a motion on obtaining an object from the prosecution would be less restrictive towards the equality of the arms and the adversarial principle. At the same time, the opportunity of joint or any other way of examination of the evidence subject to exhaustion/destruction would have provided the opportunity to the defendant of proper examination of evidence.

In view of the above-mentioned, the Constitutional Court ruled that the disputed provision violated the equality of arms and the adversarial principle, and, therefore, contradicted the requirements of paragraph 1 of the Article 42 of the Constitution of Georgia.

The Constitutional Court noted that the disputed provision defined the legal outcomes regarding a motion filed by the defence party, under the free expression of will, while the right against selfincrimination prohibits the influence on a person’s will, in any way, in order to obtain a selfincriminatory confession. The disputed provision did not imply any kind of influence upon the free will of a defendant, and for conducting investigative actions or seizure of an object defendant filed a motion and applied to the court in their own decision. Therefore, the Constitutional Court of Georgia ruled that the disputed provision did not restrict paragraph 8 (the right against self-incrimination) of Article 42 of the Constitution of Georgia.

The complainant also questioned the constitutionality of paragraph 1 of Article 136 of the Criminal Procedure Code Georgia with respect to paragraph 1 of Article 42 the Constitution of Georgia. Since the disputed content of paragraph 1 of the Article 136 of the Criminal Procedure Code was already declared unconstitutional in the case of “Citizens of Georgia – Nadia Khurtsidze and Dimitri Lomidze v. the Parliament of Georgia” (№1/1/650,699 judgement), the Constitutional Court of Georgia terminated the case in relation with the mentioned part.