Decision of the Constitutional Court of Georgia and Its Consequential Effects in the Context of the Defense Side's Investigative Authority

According to the decision of the Constitutional Court of Georgia dated December 14, 2018 (case: Georgian citizen Titiko Chorgolian versus the Parliament of Georgia (No. 809constitutional petition)), as of June 30, 2019, the 10th part of Article 120 of the Criminal Procedure Code of Georgia was declared null and void (as unconstitutional). This part established the procedure for submitting to the prosecution side for "initial examination" any object, item, substance, or document containing information, obtained upon motion of the defense and by court order. It was deemed to contradict the first paragraph of Article 42 of the Constitution of Georgia and disproportionately violated the principles of equality of the parties and adversarial proceedings.

2. The institution of "initial examination" as provided by the now unconstitutional 10th part of Article 120 of the Criminal Procedure Code of Georgia had an ambiguous nature because neither the disputed provision nor any other article in the Code specified exactly which procedure it implied, within what timeframes it had to be carried out, or its scope. In such ambiguity, the law left the prosecution party the option, after conducting the initial examination and study of the seized object, either to transfer this object to the defense for further examination and study or to delay the examination unreasonably and obstruct the object’s transfer to the other party for an unreasonably long time, or even not to transfer it to the defense at all, as there was no legal obligation for the prosecution to comply with this.

3. Furthermore, the court recognized a real risk stemming from the nature, characteristics, and quantity of the object to be examined, which could lead to situations where the object was suitable only for a one-time examination (for example, being perishable or subject to destruction). This would objectively make it impossible to hand over the seized object, document, substance, or any other item to the defense. There was also the possibility that the prosecution would not use the results of expert or other examinations at all and would withhold them from the defense. Consequently, the defense would be deprived of the opportunity to conduct an expert examination or any other activity on the seized object to obtain information or use it as evidence on its own motion and would depend solely on the expert or examination results obtained by the opposing party.

4. The Constitutional Court concluded that the ambiguity of the disputed norm led to a violation of the principles of equality and adversarial process of the parties because there was no possibility to exercise appropriate control over the initial examination process or to prevent the aforementioned risks. To prevent these risks, on October 17, 2019, amendments to the Criminal Procedure Code of Georgia introduced the following changes:

a) The meaning of the term "initial examination" was clarified, and an additional Article 831 was introduced to regulate the procedures for transferring or making available possible evidence obtained upon the defense’s motion to the defense side.

b) The law stipulated the possibility for the defense to file motions to the court regarding delays in handing over objects seized on their motion.

c) The law regulated and clarified the defense's right to participate in expert examinations ordered by the prosecution on objects obtained on the defense's motion, which are suitable for one-time examination, through the form of posing questions.

Joseph Gabaraev

Georgian Lawyers for an Independent Profession