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The Constitutional Court of Georgia struck down the provision of espionage that criminalized the collection and transfer of any publicly available information to a foreign organization to the detriment of Georgia’s interests. The claim was brought by civil activists and a person convicted for espionage who argued that the legal definition of the challenged provision was unclear and it could not be inferred exactly which conduct was proscribed. The Constitutional Court of Georgia ruled that the term “foreign organization” in the disputed provision was unduly vague and thus had a chilling effect on freedom of speech. The Court, however, upheld as proportionate the part of the provision which criminalized the collection or transfer of information upon the instructions of the intelligence service of a foreign state to the detriment of Georgia’s interests.
The first three applicants were Alexander Baramidze, Lasha Tugushi, and Vakhtang Khmaladze – an advocate, a journalist, and a lawyer respectively. They lodged a claim in the Constitutional Court of Georgia on August 5, 2011. The fourth applicant was V. M., convicted for espionage under Articles 314 (1) and (2) of Criminal Code of Georgia. V. M. brought a constitutional claim on September 18, 2012.
All applicants argued that the material sentence of the definition of espionage, in Article 314 (1) of the Criminal Code of Georgia, was unconstitutionally vague and infringed their right to freedom of speech. The disputed sentence proscribed two different conducts, namely a) the “collection or transfer of other information upon the instructions of the intelligence services of a foreign state to the detriment of Georgia’s interests; b) the “collection or transfer of other information upon the instructions of a foreign organization to the detriment of Georgia’s interests Georgia”. Remarkably, the term “other information” stood for any information that was not a state secret.
The applicants asserted that: a) the words “other information” were unduly broad and practically covered any open information, including publicly accessible data and even personal opinions, that were fundamental to their freedom of speech; b) “to the detriment of Georgia” in the disputed sentence was vague since transferring open information to a foreign organization indeed might be detrimental to Georgia in some way, but it was legally absurd to bar imparting such information; c) under the term “foreign organization” could include any state or private organization registered abroad without any malicious intents or links, e.g. to the foreign intelligence services.
Accordingly, the applicants alleged that a person might face the charges of espionage if, at the request of any foreign organization, he/she collects or transfers publicly available information to the detriment of the interests of Georgia. Outlawing such activity puts an undue burden on the freedom of speech of a person, especially on journalists who occasionally cooperate with foreign organizations, and who may sometimes send information that might be harmful to Georgia.
Moreover, the applicants stressed that the mere fact of collection of information at the request of a foreign intelligence service or by a foreign organization already constitutes a finished crime that unjustifiably restricts a person’s freedom of speech. The respondent, in this case, the Parliament of Georgia agreed with the applicants, admitting that the law was not sufficiently foreseeable and would be changed in the future. However, according to the laws of the Constitutional Court, admission of unconstitutionality of the law by the respondents does not necessarily terminate the process of constitutional adjudication and the Court has the right to continue assessing the constitutionality of the disputed law and reach a finding. The Constitutional Court proceeded to determine the case.
On May 14, 2013, the Second Collegium of the Constitutional Court of Georgia delivered the judgment of the Constitutional Court.
The underlying issue before the Constitutional Court of Georgia was whether criminal liability for the collection or transfer of information upon the instructions of the intelligence service of a foreign state or a foreign organization to the detriment of Georgia’s interests infringed freedom of speech enshrined in Article 24 of the Georgian Constitution. Among other things, the Court had to decide whether the challenged provision was unduly vague.
Article 24 (1) of the Georgian Constitution (1995) held that that “everyone shall be free to receive and disseminate information, to express and disseminate his/her opinion orally, in writing, or otherwise”. Article 24 (4) permitted restrictions on freedom of speech “by law, to the extent and insofar as is necessary in a democratic society, to guarantee state security, territorial integrity or public safety, to prevent crime, to safeguard the rights and dignity of others, to prevent the disclosure of information acknowledged as confidential, or to ensure the independence and impartiality of justice”.
At the outset, the Constitutional Court pointed out that to receive and disseminate information both on one’s initiative or on the instructions of others is equally protected by Article 24 of the Constitution. Thus, making it a crime to collect and transfer information at the request of someone else constitutes an interference to a person’s freedom of speech. However, the Court noted that freedom of speech is not an absolute right and it may be subject to proportionate restrictions to achieve the legitimate purposes provided by the Constitution.
Furthermore, the Court highlighted that a lawmaker should be cautious when imposing sanctions on freedom of speech since vague regulations might have a “chilling effect” on persons and their behavior. Fearing liability, individuals might refrain from exercising their freedom of speech in areas that are not even restricted by the law at hand and vague regulations might cause the closure of the free society, force self-censorship, and impair free speech.
As already mentioned above, the disputed law prohibited two distinct conducts, namely a) the “collection or transfer of other information upon the instructions of the intelligence service of a foreign state to the detriment of Georgia’s interests; b) the “collection or transfer of other information upon the instructions of a foreign organization to the detriment of Georgia’s interests”. The Court decided to assess the constitutionality of each provision separately.
It stated that the activity of the intelligence service of a foreign country poses a danger to national security. It said that special services are tools in the hands of one state to impact and take advantage of another state. The efficiency of any intelligence service is greatly dependent on the exhaustive and complex study of the state and providing any information, even a trivial one, to such a special body assists its objectives and harms Georgia’s interests. The Court noted that adopting any less restrictive means, e.g. tailoring the provision more narrowly, would give the upper hand to the intelligence service of a foreign state and damage Georgia’s interests.
Furthermore, the Court added that the restriction at hand was not vague and did not have a chilling effect on freedom of speech, since Article 314 of the criminal code clearly defined that the collection and transfer of information on instructions from the intelligence service of a foreign country is punishable. The formulation of the terms “instruction”, “the intelligence service of a foreign country”, “collection and transfer” were sufficiently clear given that the commission of this crime can only be punishable if perpetrated intentionally. For example, a person unaware that he/she was transferring information to foreign intelligence service would not face charges under the disputed law. Besides, no risk existed that banning cooperation with foreign intelligence service would hinder a person from cooperating with any other organizations. As a result, the Constitutional Court held that the restriction in dispute was proportionate and did not have a chilling effect on freedom of speech. Next, the Court turned to the issue of whether the provision – “collection or transfer of other information upon the instructions of a foreign organization to the detriment of Georgia’s interests” meets constitutional standards set by Article 24 of the Constitution.
Unlike the intelligence service of a foreign country, the Court noted, transferring information about Georgia to a foreign organization can’t be regarded as a threat to the state security. It said that the words “to the detriment of the interests of Georgia” in the disputed provision carries a different meaning. Namely, a person will face charges for the collection and transfer of information on the instructions of the foreign organization only when such cooperation is detrimental to Georgia.
At the same time, the Court emphasized that the term “foreign organization” cannot be interpreted to cover organizations that are linked with the intelligence service of a foreign country, to act on their instructions, or when the latter uses the former as a disguise. In such a case, transferring information to this organization is practically the same as transferring information to the intelligence service. Thus, the provision at hand criminalizes cooperation with a foreign organization that is not linked with the intelligence service of a foreign state but might be detrimental to national interests.
The Court highlighted that in specific cases, the collection or transfer of information on the instructions of a foreign organization might provide reasonable grounds for criminalization. For instance, certain non-state actors, terrorist organizations, secessionist movements of non-recognized states, and other unlawful militias might pose an equal, if not higher threat to the state security compared with the rivaling states. However, the disputed provision did not specify necessary characteristics for the determination of the words “foreign organization” and left it open for interpretation for the courts and individuals. In other words, the lawmaker left it to the courts and ordinary people to define in each case whether cooperation with one or other foreign organization might be punishable under the disputed provision. In this scenario, if a person supposes that the collection or transfer of information to a foreign organization is detrimental to Georgia (when it’s not), in a fear of punishment, he/she might abstain from cooperating with it and refuse exercising freedom of speech. Therefore, the Constitutional Court stated that the disputed provision had a chilling effect on freedom of speech and rendered it unconstitutional.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment has a mixed outcome. On the one hand, it expands the protection of freedom of expression because it abolished vague criminal punishment for espionage which it said had a “chilling effect” on freedom of speech.
On the other hand, the judgment contracts freedom of expression in the sense that it considers constitutional to charge a person for espionage if the latter collects and/or transfers information to a foreign state’s intelligence services. The Court stressed that cooperation with the intelligence service of a foreign country poses imminent risks for state security and punishment for it was proportional and also sufficiently formulated.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Freedom of opinion and expression (older version)
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