Composition of the Board

Konstantine Vardzelashvili – Chairman of the Hearing, Judge Rapporteur;

Ketevan Eremadze – Member;

Maia Kopaleishvili – Member.

Secretary of the Hearing: Lili Skhirtladze

Title of the Case: Citizen of Georgia Zurab Mikadze V. the Parliament of Georgia

Subject of the Dispute: Constitutionality of section 2 of Article 13, section 3 of Article 76 and section 1 of Article 169 of the Criminal Procedure Code of Georgia with respect to paragraph 3 of article 40 of the Constitution of Georgia.

Participants of the Hearing: The Claimant - Zurab Mikadze and his representative - Koba Kobakhidze; Representative of the Parliament of Georgia - Zurab Matcharadze.

I
Descriptive Part

1. On December 21, 2012 a constitutional claim (registration N548) was lodged to the Constitutional Court of Georgia by the Citizen of Georgia Zurab Mikadze. On December 24, 2012 N548 Constitutional Claim was assigned to the First Board of the Constitutional Court of Georgia for ruling on admission of the case for consideration on merits. Preliminary session of the First Board of the Constitutional Court without oral hearing was held on June 10, 2013 for ruling on admission of the case for consideration on merits

2. Pursuant to the Recording Notice N1/4/548 of the First Board of the Constitutional Court of Georgia the claim was admitted for consideration on merits in the part disputing constitutionality of section 2 of Article 13, section 3 of Article 76 and section 1 of Article 169 of the Criminal Procedure Code of Georgia with respect to paragraph 3 of article 40 of the Constitution of Georgia.

3. The oral hearing on merits was held on November 29, 2013 by the First Board of the Constitutional Court.

4. The legal basis for submission of the constitutional claim is: subparagraph “f” of paragraph 1 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19 and subparagraph “a” of paragraph 1 of article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”, articles 15 and 16 of the Law of Georgia “On Constitutional Legal Proceedings”

5. The Claimant disputes Constitutionality of section 2 of Article 13, section 3 of Article 76 and section 1 of Article 169 of the Criminal Procedure Code of Georgia with respect to paragraph 3 of article 40 of the Constitution of Georgia.

6. According to section 2 of article 13 of Criminal Procedure Code of Georgia "Confession made by accused, if it is not proved by additional evidence, is not sufficient for delivering judgment of conviction. The judgment of conviction shall be based only on unity of corroborated, clear and convincing evidences which proves the guilt beyond reasonable doubt". According to section 3 of article 76 of the same code "During the trial hearsay is admissible as evidence if it is corroborated by other evidence". According to section 1 of article 169 of the same code "the ground for issuing a criminal charge is the unity of the evidence collected during the investigation which is sufficient for establishing probable cause that the crime was committed by accused individual". The mentioned disputed provision establishes evidentiary standards for bringing a criminal charge and delivering the judgment of conviction, as well as criteria for allowing hearsay as evidence.

7. As a result of amendments in the Criminal Procedure Code of Georgia adopted on June 14, 2013 section 3 of the article 76 of the code was reformulated in the following manner: "During the court trial hearsay is admissible as evidence if it is corroborated by other evidence, which is not hearsay itself".

8. According to paragraph 3 of article 40 of the Constitution of Georgia, "A decision to bring criminal charge against the accused, bill of indictment and judgement of conviction shall be based only on incontrovertible evidences. Any suspicion that cannot be proved as provided for by the law shall be resolved in favour of the accused".

9. The Claimant submits that based on section 2 of Article 13, section 3 of Article 76 and section 1 of Article 169 of the Criminal Procedure Code of Georgia a person might be charged with a crime and be convicted not as a result of incontrovertible evidences, but based on two hearsays, as unity of corroborated evidences. The Claimant considers that charging a person with a crime and convicting him/her based merely on two hearsays contradicts guarantees established by paragraph 3 of article 40 of the Constitution of Georgia.

10. In order to substantiate his argumentation the Claimant refers to the judgment of May 13, 2009 of the Constitutional Court of Georgia on the case of “The Public Defender of Georgia, Citizen of Georgia Elguja Sabauri and Citizen of the Russian Federation Zviad Mania v. the Parliament of Georgia”, Judgment of November 22, 1995 of the European Court of Human Rights on the case of “S.W. v. the United Kingdom” and the judgment of June 26, 2003 of the Supreme Court of the United States of America on the case of “Stogner v. California”.

11. During the oral hearing on merits the claimant underlined terminology used by legal scholars, according to which there are direct and indirect evidences in the criminal proceeding. The Claimant considers “indirect testimony” to be false notion and its establishment in the criminal proceeding leads law enforcers to a mistake. Section 3 of the Article 76 of the Criminal Procedure Code of Georgia allows hearsay (“indirect testimony”) to be admissible as evidence if it is corroborated by other evidence, which is not hearsay itself. Therefore unity of hearsay and other indirect corroborated evidence might be the grounds for delivery of a judgment of conviction. Mentioned interpretation of the law is possible, which gives judge the liberty to base conviction solely on two indirect evidences. This statement is a main indicator of unconstitutionality of section 3 of the Article 76 of the Criminal Procedure Code of Georgia.

12. The Claimant also underlined section 2 of Article 13 of the Criminal Procedure Code of Georgia and indicated the criteria for delivery of a judgement of conviction. Namely for conviction judgement evidences shall be corroborated, clear and convincing and unity of evidences should be presented. Main shortcoming of this provision is that it does not mention constitutional standard of “incontrovertibility” of evidences. Therefore it allows ununiform interpretation of the provision. The claimant indicated that according to the same logic even deceit can be clear and convincing and corroborated and can become the basis for a judgment of conviction. The claimant submits that all abovementioned indicate towards unconstitutionality of section 2 of Article 13 of the Criminal Procedure Code.

13. According to the Claimant’s statement section 1 of article 169 of the Criminal Procedure Code of Georgia analogously has a problem with the constitutional standard of incontrovertibility. It creates possibility of use of evidences that are not uncontroversial by essence, which clearly contradicts standards established by paragraph 3 of article 40 of the Constitution of Georgia.

14. The Claimant denied a possibility for use of criteria indicated in article 82 of the Criminal Procedure Code by the judge while delivering judgment of conviction. According to the Claimant's opinion this provision relates to general aspects of criminal proceeding. Namely, how investigation should commence, the relevance of evidence to be assessed by the prosecution party. The judge should not take into consideration the standard established by the mentioned provision while delivering the judgment. Therefore, the Claimant considers that article 82 of the Criminal Code of Georgia cannot solve problem of unconstitutionality of the disputed provisions.

15. Based on abovementioned arguments the Claimant considers that the disputed provision should be declared unconstitutional with respect to paragraph 3 of the article 40 of the Constitution of Georgia.

16. The Respondent party stated at the hearing on merits that the disputed provisions fully comply with the “incontrovertibility” requirement established by paragraph 3 of article 40 of the Constitution of Georgia. According to the statement of representative of the Parliament of Georgia the criminal legal proceeding is one big unity and the disputed provisions should not be considered separately from it. The disputed provisions should be assessed together with other provisions of criminal procedure law. Section 1 of article 82 of the Criminal Procedure Code establishes that "evidences should be assess based on its relevance, admissibility and incontrovertibility for the criminal case". Section 2 of the same article indicates that "evidences do not have pre-established power". The respondent indicated that every direct or indirect evidence does not have pre-established power. The judge should assess its relevance, admissibility and incontrovertibility and base the final judgement on it only after it passes the mentioned test. According to the Respondent's opinion the law gives decisive power to the judge in the process of evaluating evidences, which is in full compliance with paragraph 3 of article 40 of the Constitution.

17. The Respondent party additionally indicated that that law establishes evidentiary standards for each stage of criminal proceeding. These are the terms defined in article 3 of the Criminal Procedure Code: "probable Cause", "high level of probability", "beyond a reasonable doubt", they constitute guiding standards for a judge while deciding on the matter. The Respondent stated that on each stage of criminal proceeding judge evaluates relevance, admissibility and incontrovertibility of evidences based on the mentioned standards and if he/she, as an objective person, considers that sufficient legal ground exists he/she will deliver suitable reasoned judgment. Representative of the Parliament of Georgia considers that the mentioned standards are in full compliance with paragraph 3 of article 40 of the Constitution of Georgia.

18. According to the opinion of the Respondent party the essence of present constitutional dispute relates to the section 3 of article 76 of the Criminal Procedure Code of Georgia. The assessment of constitutionality of other disputed provision substantially depends on this provision. The representative of the Respondent indicated that the amendments in this provision adopted by the parliament substantially increased constitutional standard of incontrovertibility. According to new rule a judge could not rely on unity of two hearsays while delivering the judgment. The mentioned amendments directly refer to paragraph 2 of article 13 and paragraph 1 of article 169 of the Criminal Procedure Code. These two disputed provisions directly refer to the unity of evidence as necessary element for delivering a judgment of conviction and declaring person accused in commission of crime. According to the opinion of the Respondent after amending paragraph 3 of the article 76 unity of evidence cannot be comprised only by two indirect evidences, because hearsay is admissible only if it is corroborated with other evidence which is not hearsay itself. Such evidence might be any evidence prescribed by the Criminal Procedure Code, making hearsay admissible only in such event.

19. The Representative of the Parliament of Georgia also indicated that according to the legislation regulating constitutional legal proceeding, in order the legal proceeding to continue in cases where disputed provision is amended the Claimant is obliged to prove that the continuation of proceeding is especially important for protection of his/her rights and freedoms. The Respondent considers that the Claimant did not present sufficient argumentation on the mentioned matter; therefore the constitutional legal proceeding should be terminated in relation to paragraph 3 of article 76 of the Criminal Procedure Code. With respect to paragraph 2 of article 13 and paragraph 1 of article 169 of the same law, the Respondent considers that based on above mentioned argumentation the Constitutional Court should not uphold the Constitutional Claim in this part.

II
Reasoning Part

The Scope of Protection of Paragraph 3 of Article 40 of the Constitution of Georgia

1. According to paragraph 3 of article 40 of the Constitution of Georgia a decision to bring a criminal charge against an accused, bill of indictment, and judgement of conviction shall be based only on incontrovertible evidences. Any suspicion that cannot be proved as provided for by the law shall be resolved in favour of the accused.

2. The mentioned constitutional provision represents one of the basis of a rule of law state and strengthens well established principle - in dubio pro reo, which is important for avoidance of conviction of an innocent person. According to this principle it is intolerable to convict individual based on doubtful accusations. The provision creates important guarantee for protection of human rights in criminal proceeding. The principle to impose punishment only based on incontrovertible evidences constitutes guarantee against conviction of innocent person as a result of arbitrariness and/or mistakes of public officers. The state based on rule of law implies existence of legal system according to which acts of prosecution implemented against an individual - accusation in crime and imposition of punishment shall be conducted based on adequate standards.

3. The mentioned constitutional provision also relates to the principle of presumption of innocence enshrined in paragraph 1 of the same article. The constitutional provision stating "any suspicion that cannot be proved as provided for by the law shall be resolved in favour of the accused" creates an important guarantee for protection of the accused. While deciding on the constitutional submission of the Supreme Court of Georgia the Constitutional Court has also indicated that „...comprehensive exercise of right to a fair trial and procedural guarantees have crucial importance within the proceeding involving imposition of punishment. During the proceeding involving imposition of punishment, individual shall not be object of legal proceeding and it shall be armed with defence mechanism, required by the right to a fair trial" (Judgment №3/3/601 of the Constitutional Court of Georgia of December 24, 2014 on the case of "Constitutional Submission of the Supreme Court of Georgia on constitutionality of article 546 and the first section of article 518 of the Criminal Procedure Code of Georgia adopted on February 20, 1998", II-11).

4. Within the present dispute the Constitutional Court of Georgia should assess whether it is possible based on the disputed provisions to bring criminal charge against an accused and render a judgement of conviction based on evidences which are not incontrovertible, whether possibility to use hearsay as an evidence involves risks of violation of constitutional rights, whether there is a risk of delivery judgment of conviction based on dubious, forged or controvertible evidences. The Court should assess whether criminal procedure legislation contains sufficient guarantees ensuring that commission of crime by an individual should be proved beyond controversy. In order to answer these questions it is necessary to define content of the disputed provisions as well as essence and meaning of hearsay in the criminal proceeding.

5. In the process of administering justice on a criminal case evidence is the source of information which can confirm or disprove commission of crime by an individual. Based on evidences the court determines "existence of fact or act because of which criminal proceeding in conducted, whether the act was committed by a certain individual, whether he/she is guilty, as well as circumstances which influence level and characteristics of responsibility of accused" (section 23 of article 3 of the Criminal Procedure Code). Obviously allowing use of dubious, forged or controvertible evidences in this process implies allowing conviction of innocent person, which contradicts not only the right protected by the Constitution, but also the aims of criminal prosecution. Therefore, the Constitution of Georgia unequivocally establishes that only incontrovertible evidences might become basis for accusation and further conviction of an individual.

6. Every evidence, which becomes basis for accusation or judgment of conviction, might be subject of disagreement. Generally evidences acquired during investigation are subject of different evaluation and dispute between the parties. On different state of criminal prosecution parties are entitled to inspect validity of evidences, factual and legal circumstances, which confirm or disprove connection of the accused person to the crime committed.

7. The Constitutional standard of incontrovertibility refers not only to inadmissibility of dubious evidences - the doubt of forging evidences or losing their essential characteristics should be excluded, but the standard also includes requirement that facts and circumstances important for the criminal case be confirmed by the reliable source and be based on information which was adequately verified. The information received from evidence should incontrovertibly refer to the factual circumstance for proving of which the evidence was presented. The purpose of presenting evidence is to confirm facts and circumstance relevant for the criminal case, which in sum indicates guilt of individual. The Constitution requires from the person having the relevant authority to use only such evidences he/she considers to be incontrovertible for proving the guilt of an individual.

8. Therefore, the authority conducting criminal prosecution, whose main task is investigation and prevention of crime, should be armed by legislator with effective as well as clearly formulated, foreseeable legal mechanisms necessary for effectual investigation, which will essentially preclude possible mistakes or risks of arbitrariness during the criminal prosecution. The legislation should prescribe minimal guarantees which preclude use of possibly false, dubious evidences against the accused person.

9. In this regard the Constitutional Court draws attention to section 2 of article 72 of the Criminal Procedure Code according to which evidence is inadmissible "if it is acquired as established by the procedure of this code, but reasonable doubt about its possible replacement, essential change of its characteristics or disappearance of trail on it is not precluded". This provision prescribes the requirement (obligation) for checking the authenticity of evidences. Purpose of the provision is to preclude possible use of forged, changed, and thus unreliable evidences.

10. Paragraph 1 of article 82 of the same code additionally prescribes that "evidences should be assessed based on their relevance, admissibility and incontrovertibility for the criminal case". Based on this provision a person having relevant authority should check whether presented evidence is allowed by the law, whether it contains important information relevant for the case, and should evaluate, pursuant to rules established by the law, whether it confirms facts and/or circumstances for proving of which it was presented.

11. Incontrovertibility of evidence - reliability of information presented before the court – depends on whether the evaluation of it is possible or provided. The person having relevant authority should be acting in good faith, according to the inner belief and be unbiased while evaluating evidences, however it could not be considered a sufficient guarantee for protection from error and abuse of power. The legislator should arm trial court with suitable guiding norms, which will preclude use of evidences, which are not reliable by its nature or content, while deciding on the case and therefore, give opportunity to the court and authority responsible on criminal prosecution for the interest of administration of justice to evaluate evidence based on their inner belief.

12. The Claimant considers that the law should prescribe guiding norms, which enable authorised person to adopt decision only based on incontrovertible evidences. According to his opinion in case of use of hearsay article 76 of the Criminal Procedure Code, as well as other provisions of the same code will not comply with constitutional standard of incontrovertibility of evidence. Therefore in the present dispute the Constitutional Court of Georgia should assess whether section 3 of article 76, section 2 of article 13 and section 1 of article 169 of the Criminal Procedure Code comply with requirement of constitutional principle of incontrovertibility of evidences.

Compatibility of Article 76 of the Criminal Procedure Code with Paragraph 3 of Article 40 of the Constitution of Georgia

13. Article 76 of the Criminal Procedure Code prescribes definition of hearsay and its admissibility. According to section 1 of the mentioned article hearsay is a testimony of witness which is based on information he/she received from other person. According to the paragraph 2 of the same article in criminal proceeding hearsay is admissible if individual can indicate the source of information. Section 3 of article 76, which is disputed by the Claimant, prescribes that “during oral hearing on merits in court hearsay is admissible evidence if it is corroborated by other evidence”.

14. On June 14, 2013 section 3 of article 76 of the Criminal Procedure Code was amended, as a result of which the disputed provision is currently formulated in a following manner: “during oral hearing on merits in court hearsay is admissible evidence if it is corroborated by other evidence, which is not hearsay itself”.

15. Preliminary session of the Constitutional Court without oral hearing was held on June 10, 2013 for ruling on admission of the Constitutional Claim for consideration on merits, and the Recording Notice (N1/4/548) on declaring case admissible was published on June 28, 2013. As a result of the amendments the new formulation of paragraph 3 of article 76 of the Criminal Procedural Code was enforced from June 27, 2013. According to paragraph 2 of article 13 of the law of Georgia “On Constitutional Legal Proceedings” cancellation or invalidation of disputed provision at the moment of hearing of the constitutional case results in termination of the proceeding, except when circumstances prescribed by paragraph 6 of the same article exist. According to the paragraph 6 in cases when disputed provision is terminated after admitting the case for consideration on merits, the Constitutional Court is authorised to rule on constitutionality of the disputed provision only if it is of crucial importance for protection of constitutional rights and freedoms. The amendments in the disputed provision were enforced prior to the publication of recording notice admitting N548 constitutional complaint for consideration on merits. Therefore, based on paragraphs 2 and 6 of article 13 of the law of Georgia “On Constitutional Legal Proceedings” amending the provision formally constitutes grounds for termination of proceeding on this part of constitutional complaint.

16. Based on above mentioned and based on paragraphs 2 and 6 of the article 13 of the law of Georgia “On Constitutional Legal Proceedings” the Constitutional Court of Georgia considers that the constitutional complaint N548 proceeding of the case should be terminated in this part of the claim.

Constitutionality of Section 2 of Article 13 and Section 1 of Article 169 of the Criminal Procedure Code with Respect to Paragraph 3 of Article 40 of the Constitution of Georgia

17. The constitutional claim also indicates that disputed section 2 of article 13 of the Criminal Procedure Code contradicts paragraph 3 of article 40 of the Constitution of Georgia, because a person can be convicted based on two hearsays as unity of corroborated evidences. The claimant considers that section 2 of article 13 and old version of section 3 of article 76 of the Criminal Procedure Code did not preclude confirming single hearsay with other hearsay and the possibility for considering such evidences as incontrovertible.

18. During hearing on merits the Claimant party additionally indicated that the mentioned problem is only partially solved by amendments made in paragraph 3 of article 76 of Criminal Procedure Code. It is true that the legislative amendment precludes possibility for convicting individual based solely on two hearsays, but the disputed provision still does not prescribe adequate guarantees for protection of the constitution right, because risk of use of not sufficiently solid, unreliable evidences still exists.

19. The Claimant party considers that paragraph 2 of article 13 of the Criminal Procedure Code is unconstitutional, because it allows possibility for delivering judgment of conviction based on the evidences which are not incontrovertible by their essence. The Claimant considers hearsay to be such dubious evidence. He considers that paragraph 3 of article 76 of the Criminal Procedure Code does not ensure incontrovertibility of the information received via hearsay, because the hearsay might be confirmed by the evidence which itself does not directly refers to the guilt of the person. Notwithstanding the above mentioned hearsay might become one of the bases of judgment of conviction. Also according to the disputed provision evidences shall be “corroborated”, “clear” and “convincing”, the Claimant considers that this is not enough to ensure incontrovertibility of hearsay itself, as evidence standing separately. The evidences might look convincing, but this does not by itself ensure incontrovertibility of hearsay – the testimony based on information received from another person.

20. The Claimant also questions constitutionality of section 1 of article 169 of the Criminal Procedure Code and considers that the mentioned provision does not preclude possibility for accusation of person solely based on indirect evidences, which contradicts the incontrovertibility standard prescribed by paragraph 3 of article 40 of the Constitution of Georgia. The Claimant indicates that last legislative amendments made in section 3 of article 76 of the Criminal Procedure Code did not have any influence on the disputed provision.

21. Article 76 of the Criminal Procedure Code regulates the essence of hearsay and its admissibility in criminal proceeding. The mentioned article does not directly prescribe rule of use of evidences, does not define the minimal standards which should be basis for accusation and conviction of an individual. Such rule is included in paragraph 2 of article 13 of the Criminal Procedure Code, according to which “The judgment of conviction shall be based only on unity of corroborated, clear and convincing evidences which prove the guilt beyond the reasonable doubt". Therefore article 76 of the Criminal Procedure Code in unity with section 2 of article 13 and section 1 of article 169 create legal basis recognising hearsay to be valid evidence not only for presenting the accusation but also for convicting the accused.

22. As it was already indicated according to paragraph 3 of article 40 of the Constitution of Georgia “a decision to bring criminal charge against the accused” and “bill of indictment” shall be based only on incontrovertible evidences. It is important to indicate that a decision to bring criminal charge against the accused” is constitutional term, which has autonomous meaning and implies an act or a decision based on which criminal prosecution against an individual is commenced, accusation is brought forward. The mentioned constitutional provision requires that criminal prosecution and accusation against individual should not be conducted based on essentially false, forged, insufficiently reliable or mostly dubious evidences.

23. By referring to incontrovertible evidences the mentioned constitutional provision first of all establishes that the judgment should be based only on evidences. This important guarantee excludes imposition of responsibility without evidences, only based on an assumption. Hereby, in the criminal proceeding existence of evidences constitutes unalterable means for delivering judgment of conviction. Existence of factual circumstances relevant for criminal case is established based on suitable evidences. Parties try to confirm or disprove facts relevant for criminal case, via presenting the evidences and questioning evidences submitted by the other party.

24. It is worth mentioning, that generally during criminal prosecution and administering the justice state should be bound with clearly formulated legal provisions, which will minimise the risk of errors and arbitrariness. The important resource which is held by the state for investigating facts and circumstances related to the criminal act should not be abused. Reasonable, thoroughly and clearly defined legal provisions should balance the natural advantage the prosecution party might have compared to the defence party and enable accused to fully protect his/her interests that on its own serves interests of justice as well. This is demanded by the constitutional principle of rule of law. Avoidance of errors and arbitrariness serves interests of justice, supports adequate investigation of crime and accusation and conviction of an actual criminal.

25. As it was already indicated, the constitutional principle of incontrovertibility of evidences demands that dubious, false and probably forged evidences be excluded from the evidences submitted on the criminal trial. The reasonable doubt related to the validity and reliability of the submitted evidences should be excluded. Via noncontroversial provisions prescribing suitable procedural standards the judge, taking into consideration specificity of a certain case, should be able to evaluate relevance, importance and incontrovertibility of submitted evidences. Therefore, legislator is obliged to arm the court with guiding principles which will help the judge to decide on admissibility of hearsay or deliver judgment based on such testimony.

26. Only evidence, reliability of which is not generally doubted and as a rule is considered a reliable source of information, might be admissible in the criminal proceeding. For example it is not dubious that testimony of an eye witness, seized physical evidences, testimony of expert given on the court hearing or other similar evidences are reliable sources of information. Hereby, the law considers them valid and therefore admissible instruments for proving the guilt. This of course does not mean that information acquired through such evidences will always be considered reliable, without evaluating it. The court draws attention towards the fact that the Criminal Procedure Code considers hearsay as specific source of information different from other evidences. According to paragraph 3 of article 76 of the Criminal Procedure Code hearsay is admissible only if it is substantiated by other evidence, while there is no such requirement for admissibility of an eye witness testimony and/or a testimony of an expert.

27. Hearsay might exist on the Criminal case, presented for proving different circumstances so that it will create unity of evidences together with other relevant information. Hearsay, as one of the evidences might be directly referring to commission of crime by accused or might have an "auxiliary" character confirming the "side" fact or circumstances important for the case. For ensuring the standards of paragraph 3 of article 40 of the Constitution adequate evaluation of reliability of such evidence has special importance. Therefore the law should clearly determine when use of hearsay is allowed; conditions of its admissibility should be strict and thoroughly precise. More significant the information received from hearsay for proving the guilt, more important becomes the rules which enable its use.

28. The Criminal procedure Code established the regulation which makes hearsay admissible (if identifiable source is indicated) for presenting the accusation against individual and prescribes one additional condition on the state of hearing on merit - hearsay should be corroborated by another evidence which is not hearsay itself. At the same time provision regulating admissibility of evidences does not prescribe any additional reference, rule on how hearsay should be used for accusation or conviction of person. Therefore, presenting the accusation as well as delivering the judgment of conviction may be conducted based on unity of evidence which not only includes hearsay but is also substantially based on it. At the same time assumption as well as expectation is created that hearsay is generally tolerable, reliable and valid evidence, similar to other evidences (testimony of an eye witness or a victim, physical evidences, etc.) which are submitted for proving the guilt.

29. Declaring evidence, which is based on the statement of other person or information disseminated by him/her, admissible by the court involves multiple risks. Among others, it is hard to assess how reliable or trustworthy such information is, because court is denied from the opportunity to check attitude of source towards the events related to the criminal case. It is also hard to foresee what testimony of the person would be if he/she had been presented before the court. Although paragraph 3 of article 76 of the Criminal Procedure Code indicates that person giving the hearsay should refer to the source identification and existence of which are verifiable, but the obligation to adequately check and rules on how to check the source identified by hearsay is not clearly prescribed by the law.

30. Witness testimony plays an important role in the criminal proceeding; it might be one of the sources of information, sometimes even the most important source. Based on information provided by witnesses the parties try to demonstrate the picture related to the crime. Witness can identify the offender; provide the court with information about the circumstance which he /she has seen, confirm or disprove information related to the important circumstance of the case.

31. It is important to mention that providing false information by the witness is a punishable act, which constitutes important legal mechanism for ensuring reliability of witness testimony. When it comes to hearsay the mentioned mechanism is less effective for ensuring reliability of information, because the person giving hearsay cannot confirm how incontrovertible the information disseminated by other person is.

32. The disputed provision also does not exclude possibility of use of hearsay in cases when an eye witness (on whose words hearsay is based) can be invited to give testimony on court hearing or he/she has already given testimony to the court. In such case aim and necessity for using hearsay is dubious and irrational. In some case interrogating both - person giving hearsay and the source of information might be caused by objective necessity, but it might also create false assumption of multiplicity of evidences and increase probability for making mistakes.

33. The legislation also does not unambiguously preclude the use of multiple hearsays which "indirectly" confirm the same fact for presenting accusation and delivering judgment of conviction. The multiplicity of hearsays by its own should not be determining of reliability of information received from them. The nature of hearsay does not change by corroborating it with other evidences; it only changes the level of possibility for convincing someone with this type of evidence.

34. Automatic admissibility and use of hearsay is intolerable notwithstanding the conditions and means through which the information was acquired by witness giving the hearsay. The law should also exclude possibility for use of double hearsay. The referencing the source of information by witness giving the hearsay, does not exclude a possibility that even the source of information was not an eye witness of the facts confirmation of which is intended by the hearsay.

35. Despite existence of the mentioned risks, the provision disputed by the Claimant creates possibility for formation of inner belief of the judge, even jury, about guilt of accused based on the information acquired through hearsay (or hearsays). Because none of the provisions of the Criminal Procedure Code of Georgia indicate that any additional criteria should be fulfilled for declaring hearsay admissible besides the condition which is indicated in paragraph 3 of the article 76. Nothing precludes a possibility of basing the judgment of conviction on hearsay in the same way as on other evidences.

36. At the same time, it should be indicated that the Constitutional Court does not preclude lawfulness of use of hearsay in exceptional cases. Such kind of exceptions might be allowed when there is objective reason which makes it impossible to interrogate the person on whose words hearsay is based and use of hearsay is necessary for the interests of justice. For example court might consider possibility for admission of hearsay as evidence in cases when witness of victim is frightened or there is a necessity to ensure their safety. The unlawful action of the accused - threatening the witness should not cause distortion to administration of the justice and therefore in exceptional cases the court should be authorised to assess necessity of admission and use of hearsay. The necessity might arise in other occasions as well, when source of information is not able or, based of important reasons, does not desire to give the testimony. Since the Criminal Procedure Code prescribes general admissibility of hearsay, it might be used in cases, when necessity, derived from the interest of justice, for its use does not exist.

37. Clearly formulated regulatory provisions and adequate procedural guarantees should exist regarding the declaration of hearsay admissible and allowing its use. In every individual occasion the court should evaluate the circumstance which is indicated by the agency responsible on criminal prosecution for justifying the use of hearsay.

38. It should also be mentioned, that indicating above examples does not a priori means their constitutionality. Compatibility to the Constitution of any case of exemption should be assessed in each individual instance, in the context of legitimate aims and means employed for achieving them. Even if we allow presumption of constitutionality of similar exceptional conditions, it cannot by itself ensure constitutionality of the general rules established by the disputed provision, which allows admissibility of hearsay without any exception.

39. Practice of the European Court of Human Rights is interesting for demonstrating practical examples of the use of hearsay. Generally, hearsay is used in cases when witness (original source of information) for some reasons does not or cannot be presented before the court and court is aware of this reason. The Strasburg Court defined following minimal standards on this matter. In order the use of hearsay not to cause violation of article 6 of the Convention following two conditions need to be fulfilled: solid reasons should exist for not presenting witness before the court and/or hearsay should not constitute sole or decisive ground for judgment (Judgement of the European Court of Human Rights of December 15, 2011, on the case of Al-Khawaja and Tahery v. The United Kingdom“, applications: N26766/05 and N22228/06 and judgment on the case of „Horncastle and others v. The United Kingdom” application: N4184/10). However, in some cases the court does not exclude possibility for allowing exceptions from this rule, if negative factors on defence party caused by use of hearsay are adequately balanced (Judgement of the European Court of Human Rights of December 15, 2011, on the case of Al-Khawaja and Tahery v. The United Kingdom“, applications: N26766/05 and N22228/06).

40. During assessment of constitutionality of the disputed provision the argument of the Respondent - The Parliament of Georgia should be taken into consideration and adequately examined. According to the argument the guarantee for conviction and accusation of individual only based on incontrovertible evidences is prescribed in articles 13 and 82 of the Criminal Procedure Code of Georgia. The mentioned provisions indicate that in order to deliver the judgment on conviction unity of corroborated, clear and convincing evidences is necessary which proves guilt of individual beyond reasonable doubt.

41. The evidentiary standard - beyond reasonable doubt plays crucial role in the criminal proceeding. It ensures protection of principle of presumption of innocence; substantially decreases the risks for imposition of unfair and unreasoned judgment of conviction; helps avoidance of risks of error in the process of administering justice. Judgment of conviction enables restriction of freedom of an individual; he/she is stigmatised as well. The accused should not be declared guilty until existence of each element of crime in his/her act is proved by sufficient and convincing unity of evidences.

42. The criminal act should be proved beyond reasonable doubt; any reasonable doubt regarding commission of crime by the individual should be precluded. The society which values human rights, strives to protect human rights and freedoms would not allow conviction of individual, whose guilt remains dubious for an unbiased and reasonable observer.

43. The standard of "beyond reasonable doubt" plays an important role in formation of societal trust towards the justice system. It is crucially important legitimate right of state to conduct criminal prosecution and to administer justice not to be weakened by the evidentiary standard which creates doubt on conviction of innocent person for unbiased person and society. It is also necessary in the independent society every individual to have belief and legal guarantee as well that the state will not convict him or her for crime unless it is sure in his/her guilt by the highest probability (accuracy) formed as a result of a fair trial.

44. As derived from the importance of personal freedom of individual paragraph 3 of article 40 of the Constitution of Georgia demands every doubt formed during assessment of evidences to be resolved in favour of the accused. This evidentiary standard obliges the court establishing criminal facts to fairly resolve the conflict between evidences, adequately evaluate and resolve every reasonable doubt arisen during the process in favour of innocence, freedom of the accused. Only after evaluation of evidences based on the mentioned test it is possible to give legal qualification to an act of an individual and impose responsibility. The standard of “beyond reasonable doubt” should exclude imposition of criminal responsibility on an individual based on doubts and assumptions. Therefore the mentioned standard strengthens societal trust towards the administration of justice on a criminal case.

45. The test of "beyond reasonable doubt" constitutes guiding criterion which is used by the court for declaring person guilty. The test gives reference to the court about how solid the belief that individual committed the crime should be. The court declares an accused guilty when evidences presented on criminal case convince it beyond reasonable doubt that a person is guilty. This belief of the court is formed based on the evidences presented pursuant to the rules prescribed by the law; the court relies on evidences which are considered to be admissible by the law.

46. According to the Criminal Procedure Code witness testimony, as one of the evidences, should be presented before the court pursuant to the rules prescribed by the law. Article 76 of the Criminal Procedure Code prescribes one of these rules, according to which by giving hearsay the witness can present to the court or investigator the information about the facts which has not been witnessed by him, is "based on the information disseminated by other person". Hereby, hearsay, if it fulfils the mentioned requirement prescribed by the Criminal Procedural Code (and contains information acquired pursuant to the law and relevant for the case) constitutes admissible evidence. Based on the same article of the Criminal Procedure Code reliability of hearsay is checked by other evidence, which confirms information received from hearsay.

47. Hereby, with hearsay witness gives the investigation and the court the information about commission of criminal act by accused or about other circumstances while he/she is not eye-witness of the facts. As it was already indicated article 76 of the Criminal Procedure Code considers such testimony to be admissible and the disputed provisions declares it to be valid evidence, similar to other evidences, for deciding on the guilt of an individual. Therefore, the test which should be used by the judge/jury for checking their inner belief, cannot exclude the risks related to hearsay, as one of the evidences.

48. According to section 1 of article 169 of the Criminal Procedure Code of Georgia, for bringing an accusation towards an individual unity of evidences collected on stage of investigation sufficient for formation of probable cause that person committed the crime is required. According to section 11 of article 3 of the Criminal Procedure Code of Georgia probable cause is a unity of facts and information which are sufficient for an unbiased person to conclude that the crime might be committed by the individual.

49. A person responsible for criminal prosecution pursuant to the provision of the Criminal Procedure Code should evaluate unity of evidences, substantial part of which might be indirect evidences, while deciding to bring accusation to an individual. At the same time the law does not prescribe any reference about how high the decisive influence of indirect evidences for accusation of individual might be. Under these conditions it is obvious that there is a need to assess how reliable hearsay is in proving the circumstances for confirming of which it is presented. As it was repeatedly indicated above in certain occasions reliability of hearsay can be doubted, nothing precludes the fact that the source of hearsay might be making mistakes or intentionally lying. Therefore, preconditions exist for information received from hearsay, without checking its reliability and excluding doubts to become basis for delivery of the decision declaring a person accused. The probable cause standard prescribed by the law for evaluating the unity of evidences cannot exclude the risks derived from accusation of individual based on hearsay, as one of the main evidences important for the case. All above mentioned indicates that the law enables accusation of individual based on the evidences which do not correspond with incontrovertibility standard established by the Constitution.

50. Based on above mentioned, the Constitutional Court of Georgia considers that the disputed provisions involve risks for making mistakes in the process of evaluating evidences and are dangerous for implementing objective and fair justice. The probability that hearsay will have substantial influence on final outcome of the case is high. Based on hearsay inner belief of the judge or jury about commission of crime might be formed, and the law does not ensure sufficient guarantees for avoiding errors.

51. The evidence should adequately reflect the factual circumstances, for confirmation of which it is presented. The evidence cannot be considered incontrovertible if it has more influence on administration of justice, than is should have based on its nature. The evidence should not create false assumption of confirmation of facts, of existence or nonexistence of some factual circumstances.

52. Generally, hearsay is less reliable evidence, its use involves risks for formation of false assumption about guilt of the individual and therefore, it might be allowed only in exceptional cases, based on clear and noncontroversial rules prescribed by the law and when constitutional guarantees are ensured, not as a general rule prescribed by the current Criminal Procedure Code.

53. Based on all above mentioned the Constitutional Court of Georgia considers that the normative content of section 2 of article 13 and section 1 of article 168 of the Criminal Procedure Code which enables adoption of decision on guilt of individual based on the hearsay does not fulfil the requirements of incontrovertibility established by paragraph 3 of article 40 of the Constitution of Georgia.

III
Ruling part

Based on subparagraph “f” of paragraph 1 and paragraph 2 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, paragraph 2 of article 21, paragraph 1 of article 23, paragraphs 1, 2 and 3 of article 25, paragraph 5 of article 27, subparagraph “a” of paragraph 1 of article 39, paragraphs 2, 4, 7 and 8 of article 43 and article 45 of the organic law of Georgia “On The Constitutional Court of Georgia”, paragraphs 1 and 2 of article 7, articles 30, 31, 32 and 33 of the Law of Georgia “On Constitutional Legal Proceedings”

THE CONSTITUTIONAL COURT
RULES:

1. The Constitutional Claim N548 (Citizen of Georgia Zurab Mikadze v. the Parliament of Georgia) shall be upheld.

2. With respect to paragraph 3 of article 40 of the Constitution of Georgia the following provisions should be declared unconstitutional: a) Normative content of the second sentence of the second section of article 13 of the Criminal Procedure Code of Georgia which enables the possibility for delivery of judgment of conviction based on hearsay, evidence prescribed by article 76 of the same code (version of June 14, 2013); b) Normative content of the first section of article 169 of the Criminal Procedure Code of Georgia which enables a possibility for declaring a person to be accused based on hearsay, evidence prescribed by article 76 of the same code (version of June 14, 2013).

3. The legal proceeding on the Constitutional Claim N548 (Citizen of Georgia Zurab Mikadze v. the Parliament of Georgia) shall be terminated in the part concerning constitutionality of the third section of article 76 of the Criminal Procedure Code of Georgia (version of June 14, 2013) with respect to paragraph 3 of article 40 of the Constitution of Georgia.

4. The unconstitutional provision shall be declared invalid from the moment of publishing this judgment.

5. This judgment is in force from the moment of its public announcement on the hearing of the Constitutional Court.

6. The judgment is final and is not subject to appeal or review.

7. A copy of the judgment shall be sent to: the parties, the President, the Government and the Supreme Court of Georgia.

8. The judgment shall be published in the “Legislative Herald of Georgia” within the period of 15 days.

Composition of the board:

Konstantine Vardzelashvili

Ketevan Eremadze

Maia Kopaleishvili