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 27 January, 2017, the First Chamber of the Constitutional Court of Georgia adopted the Judgement in the case of “Citizens of Georgia - Nadia Khurtsidze and Dimitri Lomidze v. The Parliament of Georgia”.

The subject of dispute in the above-mentioned case was the constitutionality of Paragraphs 1 and 4 of Article 136 of the Criminal Procedure Code of Georgia with regard to Article 40(3) and Paragraphs 1 and 3 of Article 42 of the Constitution.

The complainants asserted, that the disputed provision restricted the possibility of defense party at the criminal trial, to apply to the court with the motion to subpoena the information stored in the computer system or on the device of storage of computer data or documents, whereas this right is granted to the prosecution, which violates the enforcement of principles of equality of arms and adversarial procedure.

The complainants pointed out, that in the situation where the defense party was fully limited in obtaining specific evidence without the “good will” of the prosecution, the verdict would be based solely on the evidence submitted by the prosecution. Therefore the verdict would fail to meet the standard stipulated in Article 40(3) of the Constitution without the reasoned criticism of the evidence from the procedural opponent and would fail to be based on irrefutable evidence. The complainants explained, that the disputed rules also restricted access of the defense party to the wide range of information, which thereby obstructed due use of right of defense with regard to the object regulated by the disputed provisions – data stored through computer.

The Constitutional Court, first of all, emphasized the necessity to provide the defense party with real and adequate opportunity to rebut the arguments of prosecution within the adversarial trial, which includes examination of the evidence submitted by the prosecution and right to argue about them, as well as right to obtain the evidence. The Court pointed out that according to the legislation of Georgia, the criminal trials follow the adversarial models. Therefore, the party should have possibility to influence the trial. Party should have reasonable opportunity to acquire and submit the evidence and protect its interests. Therefore the legislation should not put the other party at the disadvantageous position and should allow them to effectively realize their right of defense.

The Court referred to the rapid technological progress nowadays and to the growing trend of storage of any information (written documents, video and audio records, public or confidential information) in electronic archives in state institutions, by natural and legal persons. The Court determined that the disputed rule restricted access of the defense party to the wide range of information that was important to the criminal proceedings, without consideration of dangers for third parties and for constitutionally protected interests.

Reviewing the restrictive nature of the disputed provisions, the Constitutional Court explained, that the disputed normative content, which ruled out the possibility to apply to the court with the motion to issue ruling on subpoena for document or information stored in the computer system or on the device for storage of computer data, formed a legislative reality, where information stored through computer was available only for the prosecution in legal proceedings and enjoyment of right of defense by defense party at the trial depended on the good will of prosecution.

The Constitutional Court also indicated, that in the adversarial criminal procedure exclusion of access of a defense party to the specific type of evidence led to impossibility to examine how irrefutable prosecution’s arguments were through juxtaposing them with the counterarguments of the defense party. It led to the situation, when it was possible that the final verdict was based solely on the arguments of prosecution.

In view of all the above-mentioned, the Constitutional Court upheld constitutional complaints N650 and N699 and declared unconstitutional that normative content of the disputed provisions, which excluded the opportunity of the defense party to apply to the court with the motion to issue a ruling of subpoena of a document or information stored in the computer system or on the device for storage of computer data with regard to Article 40(3) and Paragraphs 1 and 3 of Article 42 of the Constitution.