Based on the appeals of “Institute for Development of Freedom of Information” and “Media Development Foundation” the Constitutional Court of Georgia, by its decision of June 7, 2019, ruled that the provisions of the Law of Georgia on Personal Data Protection, specifically Article 5 and paragraphs 1 and 3 of Article 6 were unconstitutional as they prohibited access to the full text of court decisions delivered within the scope of public hearings by Common Courts of Georgia. The Court held that the disputed norms would be void from May 2020 and thus gave the Parliament of Georgia time to harmonize existing legislation with the requirements of the Constitution.
The Constitutional Court pointed out that the court judgments must be made public except in certain narrowly defined circumstances, where such a restriction is properly substantiated. The Court also considered that there may be circumstances where the legislator will need to strike a balance in favor of privacy rights, and the personal data included in court decisions will not be disclosed without the consent of the data subject. Therefore, the Parliament had to establish such exceptional cases which call for increased measures of confidentiality (for example, data regarding juveniles or information about intimate aspects of private life could have been included in this category).
On April 7, 2020IDFI submitted its opinions to the Parliament on the legislative amendments that are necessary to execute the Constitutional Court’s decision.
Despite the reasonable timeframe clearly established by the Constitutional Court, the Parliament has not adopted appropriate legislative amendments yet. As we read in the statement of the Legal Issues Committee posted on April 30, 2020, the draft law has been prepared, however, due to the COVID-19 pandemic the Parliament is working in an emergency mode, that is hindering the process of consideration and adoption of the abovementioned draft law.
Notably, despite the high public interest towards this issue, the draft law is not available for the interested parties.
From May 1, 2020the provisions of the Law of Georgia on Personal Data Protection, that prohibit access to the full text of court decisions delivered within the scope of public hearings by Common Courts of Georgia, are void. Therefore, from this date the courts should disclose their decisions according to the standard established by the Constitutional Court of Georgia. However, the absence of clear legislative provisions creates a risk of inconsistent practice, because in certain cases, based on their own point of view the courts might give preference to the personal data protection and limit access to the full text of the court decision without justification.
During the state of emergency, the timeframe established by Georgian legislation for releasing public information, including court decisions, is suspended. However, according to the Organic Law on Common Courts, a court decision delivered at an open hearingis fully published on the website (for this purpose the website ecd.court.gewas created in summer 2019). In order to ensure transparency of the judiciary,it is important that the courts publish their decisions in accordance with the standard established by the decision of the Constitutional Court. At present, accessibility of judgments is of utmost importance, because due to the coronavirus pandemic the court hearings are held remotely, and despite the demand of the non-governmental sector, their publicity is not ensured. Therefore, during the state of emergency, accessibility of the full text of court decisions is in fact the only mechanism to exercise external control over the judiciary.
Under these circumstances, IDFI considers, that:
- The Parliament of Georgia should make the draft law accessible to any interested party in order to share their opinions, and as soon as proper conditions are established, discuss and adopt legislative amendment without a postponement;
- Before relevant legislative amendment is adopted, the common courts should ensure publicity of their decisions in accordance with the standard established by the Constitutional Court.
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