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 Second Board of the Constitutional Court of Georgia adopted the judgement in the case of “Citizens of Georgia – Roin Miqeladze and Giorgi Burjanadze v. the Parliament of Georgia” (constitutional complains №1234 and №1235).

The subject of the dispute in the was the constitutionality of: A) Paragraph 4 of Article 332 (version of provision, that was in force from February20, 2016 to January1, 2018) of the Criminal Procedure Code of Georgia (CPCG) (dated of October 9, 2009) with regard to Article 14 and Paragraphs1 and 6 of Article 42 of the Constitution, and B) particular words of paragraph 1, the first sentence and normative content of the second sentence of Paragraph 2 of Article 94 and Paragraph 1 of Article 309 of the Criminal Procedure Code of Georgia (CPCG) (dated of February 20, 1998) with respect to Paragraphs1 and 6 of Article 42 of the Constitution.

According to the disputed norms, during the investigation of crimes defined in Articles 323-323² and 325-329 of Criminal Code of Georgia (crimes associated with terrorism) interrogations of witnesses was conducted in the manner provided for by the CPCG of February 20, 1998. Meanwhile, during the investigation of any other crime examination of witnesses was performed in accordance with the CPCG of October 9, 2009. According to the former CPCG of February 20, 1998 witness could have been summoned by an interrogator and his/her appearance was mandatory, also witness was obliged to answer the questions. On the other hand, the new version of CPCG of 9 October 2009, stipulated mandatory interrogation of a witness only before a Magistrate Judge. In accordance with the new Procedure Code, at the stage of investigation defence party had the right to examine witnesses before a Magistrate Judge, only in case the following would be impossible to be conducted later, during the hearing on merits.

The complainant Roin Miqeladze argued that during the investigation of various crimes examination of witnesses was conducted in a different manner and it was a subject to a differential treatment between defendants. Defendants against whom investigation process of the ongoing case included an examination of witnesses before a Magistrate Judge were in a better legal position compared to other defendants. The complainant Giorgi Burjanadze claimed that better legal protection was granted for the witnesses who were examined before a Magistrate Judge and the disputed regulation caused distinction between witnesses. According to the arguments of the complainants, the disputed norms violated their right to equality before the law (Article 14 of the constitution).

The respondent, the Parliament of Georgia, contended that, in accordance with the new Procedure Code, the rules of communication between a witness and the investigative body had completely changed and giving testimony by the witness became voluntary. Therefore, there was a risk that in the transitional period, due to the low civic self-consciousness and lack of cooperation culture, individuals would not cooperate with the investigative body and conducting an effective investigation and administration of justice would be impaired. In order to secure against existing risks during the transitional period, the legislator decided to provide the investigative body with the possibility to interrogate witnesses during the investigation of particular crimes.

The Constitutional Court noted that the person who was accused of committing a crime associated with terrorism had at least the same interest to use appropriate procedural safeguards and rights, as other defendants. Consequently, the Court emphasised that for the purpose of the disputed legal issue persons accused of different crimes were substantially equal.

The Constitutional Court explained that during the investigation of the crimes associated with terrorism the witness was interrogated before the investigative body and a prosecutor could easily obtain specific evidence – witness testimony. Furthermore, persons accused of committing above-mentioned crimes did not enjoy the number of procedural opportunities established by the CPCG of October 9, 2009 (for example, examining witnesses before a magistrate judge in accordance with paragraph 1 of Article 114).

The Constitutional Court noted that differential treatment was based on the type of crime that the person was accused of and this ground for differentiation was not one of those listed in Article 14 of the Constitution. Moreover, the intensity of interference was not high. Consequently, The Constitutional Court assessed the disputed norms applying the rational basis test. In the scope of which, the Court ruled that during transitional period interrogation of witnesses in the manner provided for by the CPCG of 20 February 1998 would ensure the effectiveness of the investigation. Furthermore, the Court mentioned that the disputed regulation had rational relations with the above-mentioned legitimate aims and hence did not contradict the right to equality.

Meantime, the Constitutional Court pointed out that the restriction of certain categories of defendants to enjoy the procedural rights established by the CPCG of 9 October 2009, including the right to examine witnesses before a Magistrate Judge if it would be impossible to examine a witness later, during hearing on merits, was contrary to the Constitution.

In view of all the above-mentioned, the Constitutional Court declared unconstitutional the normative content of the disputed provisions, which considered the interrogations of defendants’ witnesses in the manner provided for by the CPCG of February 20, 1998 and excluded the opportunity of particular defendants to enjoy the procedural rights granted by the CPCG of October 9, 2009 in the context of interrogation of witnesses.

The Constitutional Court, in respect of differentiation of witnesses, explained that every witness regardless of the crime regarding which they were interrogated, had the same interest of protecting their rights and avoiding criminal liability. Consequently, the comparative groups were substantially equal, but the differentiation was justified with the legitimate purposes of conducting effective investigation and administration of justice and hence disputed norms did not violate Article 14 of the Constitution.

The complainants also noted that according to disputed norms witnesses were interrogated by the prosecutor in the absence of the defendant, consequently, at the stage of an investigation, defence party had no opportunity to cross-examine the witness. Moreover, the right to interrogate witnesses at the stage of the investigation was granted only to the prosecution. Consequently, the complainants argued that the disputed regulation was contrary to principles of equality of arms and adversarial procedure.

The Constitutional Court elaborated on the distinction between the scopes of Paragraphs1 and 6 of Article 42 of the Constitution. According to the Court’s explanation, the general right to a fair trial is determined by Paragraph 1 of Article 42 and it encompasses the protection of every aspect of this right that is not namely indicated in other paragraphs. Furthermore, Paragraph 6 of Article 42 specifically recognises the right of the defendants to interrogate his/her witnesses in a manner equal to the prosecution. Consequently, equality of arms related to interrogation witnesses was protected by paragraph 6 of Article 42. Moreover, the Constitutional Court pointed out that the right to cross-examine witnesses of the opposing party was part of the adversarial principle and restriction of this right could be assessed with regard to Paragraph 1 of Article 42.

The Constitutional Court explained that, according to the CPCG of October 9, 2009, the information given by the witness at the stage of investigation could become evidence – the testimony of a witness, only if the source of information is interrogated before a judge, during the hearing on merits. Consequently, defence party had the possibility to cross-examine prosecution’s witnesses during the hearing on merits before the court (before a judge or a jury). The Constitutional Court considered that the right to cross-examine witnesses of opposing party grants defendant opportunity to express his/her opinion about the given testimony and to question the credibility of the witness, hence this right should be practiced during the hearing on merits before the authorities who are responsible to make the final decision. In view of all the above-mentioned, the Constitutional Court decided that there was no interference in the adversarial principle and the defence party was granted appropriate procedural safeguards in order to cross-examine witnesses at the most critical stage and rebut opposing party’s evidence.

The Constitutional Court pointed out that the interrogation of witnesses at the stage of investigation provided a party with the opportunity to be properly prepared for hearing on merits. According to the disputed norms, the prosecution had the possibility to know beforehand what information might be given by the witness during hearing on merits. On the contrary, the defence party had no such possibility and the only way to get information from the person who did not voluntarily cooperate was to interrogate him/her during the hearing on merits. The Constitutional Court noted that the disputed regulation forced defence party to present unexamined evidence at a hearing on merits. Therefore, defence party was objectively unable to determine the content of a witness’s testimony and decide whether it would be supportive of the defendant’s position. In view of all the above-mentioned, the Constitutional court sided with the complainants’ arguments that the right to interrogate witnesses at the stage of the investigation was granted only to the prosecution and this regulation was contrary to the equality of arms.

The Constitutional court explained that the granting of the right to interrogate witnesses at the investigation stage for the defence party could not interfere with the effectiveness of investigation or have any negative impact on the activities of the investigative body. The Constitutional court pointed out that interrogation of defendant’s witnesses might demand the involvement of the court or other authorities in this process. Hence, the legitimate aim of restricting the right was to prevent the overloading of the court. The Constitutional Court considered that in this particular case there were no specific risks of overloading of the court. Therefore, the equality of arms during the interrogation of witnesses was important constitutional value and the restriction of this right in a blanket manner was not justified with the legitimate aim of preventing the court from overloading.

In view of all the above-mentioned, the Constitutional Court concluded that the granting of the right to interrogate witnesses at the investigative stage only to the prosecution violated paragraph 6 of Article 42 of the Constitution. Therefore, the Constitutional Court decided that the disputed norms served the important legitimate aims and immediate invalidation of the disputed norms may create a risk for effective investigation. In view of this, the disputed norms of CPCG of 20 February 1998, were invalidated from 30 June 2019.