IDFI Weighs in on the Constitutional Claim of Giorgi Mamaladze and His Lawyers

News | Rule of Law and Human Rights | Publications | Article 20 December 2017

Institute for Development of Freedom of Information (IDFI) submitted an amicus curiae (friend of the court) observation on the constitutional claim "Citizens of Georgia -Giorgi Mamaladze, Giorgi Pantsulaia and Maia Zoidze vs. Georgian Parliament" prepared by the Constitutional Law Clinic of Free University of Tbilisi.


The submission of amicus curiae by IDFI is based on the actuality of the case and the intensity of the restrictions in the human rights field imposed by the disputed norms. The Case of Georgian citizen Giorgi Mamaladze and his lawyers revealed large-scale legal problems related to criminal cases, which resulted in high intensity and unconditional limitation of human rights by the disputed norms.


According to one of the disputed provisions, Article 104 of the Criminal Procedure Code of Georgia, the prosecutor and the investigator have tremendous powers to restrict the freedom of expression of the defense (defendant and his/her attorneys), prohibit them from disclosing information about the investigation, which, among other problems, results in the violation of the principle of equality of arms.


According to IDFI, this restriction is based on uncertain regulation. In particular, it is not clearly established in the norm what type of information is covered under "information about the investigation" which provides the prosecutor and the investigator unlimited opportunity to restrict the possibility of commenting or publicizing the specific information by the defense, while the prosecutor or investigator themselves are not prohibited to disclose this information.


It is also ambiguous what is covered under the words "not becoming public". It is not clear whether the publicity covers the accessibility to specific information for the wide audience or for any specific person, including the other participants in the process. For example, due to the disputed norm the prosecutor and investigator have the right to prohibit the defense from using the information related to the investigation in the process of questioning and preparation of witnesses. Consequently, the defense side is not authorized to carry out investigative actions in equal terms with the prosecution.


Under the existence of such regulation, public perception is being shaped by only the position expressed by the prosecution. There is a real risk of breach of presumption of innocence as the defense side lacks the opportunity to respond to the statements publicly made by the prosecution.


It is noteworthy that in the criminal case against Giorgi Mamaladze the court sessions were closed both at Tbilisi City Court and at the Tbilisi Appeal Court. Consequently, the public did not have the opportunity to get acquainted with the details of trials on this case, which, in turn, relates to the risk of violating the right to fair trial.


IDFI believesthat the regulations challengedby a constitutional claim contradict the requirements of the Constitution of Georgia, including the requirement of foreseeability and certainty of the norm, violate the rights to freedom of expression and fair trial.

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