Information on Parties
Information for providers
on Parties to Budapest Convention
Partnership agreement with providers
Since 2010, a Memorandum of cooperation between Internet Service Providers and Law Enforcement Agencies is in force. Ten largest ISPs representing the majority of the Internet industry and the representatives of government agencies, such as Prosecution Service and the Ministry of the Interior, signed the memorandum in January 2010. The Memorandum defines the principles of cooperation between ISPs and law enforcement agencies in the process of investigation of cybercrime and specifies the rights as well as responsibilities of the parties to the memorandum. Among the most important achievements under the document is the creation of specialized contact points within the structure of ISPs and the law enforcement, and significant reduction of time for processing of law enforcement requests.
Powers to request information
Production order
In the sense of Article 18 of the Budapest Convention
Competent authority
General remarks:
Article 136 of the Georgian Code of Criminal Procedure provides for the production order in the context of Article 18 Budapest Convention. The terms of this provision are of open nature and can cover requests directed to any person (ISP, individual or organization). Taking into account the fact that any case of non-compliance could potentially be treated as tampering with evidence, which is a criminal offence under Georgian law, order based on Article 136 of the CPC creates a significant legal obligation on the part of its addressee. At the same time, several conditions have to be fulfilled: on-going formal investigation is an absolute prerequisite; the need for an investigative action in all cases shall be based upon the probable cause standard; judicial order, issued on a motion of a prosecutor, is needed to apply this measure. Procedure for issuing such an order is regulated extensively in Article 112 of the Georgian CPC.
Powers of search and seizure can be also used as an alternative to produce data.
The prosecutor needs to apply for a court warrant in case data is required as evidence for an investigation. The judge must provide his answer on this request within 24 hours of request from the prosecutor. This applies both to production orders and search/seizure procedures.
Search and seizure can be undertaken in exigent circumstances without a court order, with subsequent obligatory approval by a judge.
Basis in law
Under Article 136 of the Georgian Code of Criminal Procedure, if there is a reasonable cause to believe that information or documents essential to the criminal case are stored in a computer system or on a computer data carrier, the prosecutor may file a motion with a court, according to the place of investigation, to issue a ruling requesting the provision of the relevant information or document. If there is a reasonable cause to believe that a person is carrying out a criminal act through a computer system, the prosecutor may request a court, according to the place of investigation, to deliver a ruling ordering the service provider to provide information about the user.
General rules establishing grounds for search and seizure are contained in article 119 of the Code of Criminal Procedure, which is a procedure driven by a judicial order, unless being performed in exigent circumstances with subsequent authorization from the judge. If there is a probable cause, a search shall be conducted for the purpose of uncovering and seizing an item, document, substance or any other object containing information that is essential to the case. An item, document, substance or any other object containing information that is essential to the case may be seized if there is probable cause that it is kept in a certain place, with a certain person and if there is no need to search for it.
If different for subscriber information
Article 136 applies only to subscriber information as defined by the Cybercrime Convention (Article 136 CPC, par. 3).
If different for traffic data
Traffic data and content data can be seized through search and seizure.
Form
N/A
Preservation order
In the sense of Articles 16 and 17 of the Budapest Convention
Competent authority
General remarks:
Georgia did not implement Article 16 Budapest Convention on expedited preservation of stored computer data as a standalone measure. The production order provisions of Article 136 of the Criminal Procedure Code can be used due to their broad interpretation in practice; alternatively, search and seizure in exigent circumstances can be used to address this issue in a similar manner.
There is also no direct implementation of the power of expedited preservation and partial disclosure of traffic data (Article 17 Budapest Convention). Similar to Article 16 implementation, due to broad interpretation of production order under Article 136 of the Georgian CPC, it can be used as an alternative.
The prosecutor needs to apply for a court warrant in case data is required as evidence for an investigation. The judge must provide his answer on this request within 24 hours of request from the prosecutor. This applies both to production orders and search/seizure procedures.
Basis in law
Under Article 136 of the Georgian Code of Criminal Procedure, if there is a reasonable cause to believe that information or documents essential to the criminal case are stored in a computer system or on a computer data carrier, the prosecutor may file a motion with a court, according to the place of investigation, to issue a ruling requesting the provision of the relevant information or document. If there is a reasonable cause to believe that a person is carrying out a criminal act through a computer system, the prosecutor may request a court, according to the place of investigation, to deliver a ruling ordering the service provider to provide information about the user.
General rules establishing grounds for search and seizure are contained in Article 119 of the Code of Criminal Procedure, which is a procedure driven by a judicial order, unless being performed in exigent circumstances with subsequent authorization from the judge. If there is a probable cause, a search shall be conducted for the purpose of uncovering and seizing an item, document, substance or any other object containing information that is essential to the case. An item, document, substance or any other object containing information that is essential to the case may be seized if there is probable cause that it is kept in a certain place, with a certain person and if there is no need to search for it.
If different for subscriber information
Article 136 applies only to subscriber information as defined by the Cybercrime Convention (Article 136 CPC, par. 3).
If different for traffic data
Traffic data and content data can be seized through search and seizure.
Form
N/A
Emergency situations
Definition of emergency situation
Article 1 of the Law of Georgia “On protection of the population and the territory from emergency situations of natural and manmade origin” defines the emergency situation as the following:
“Emergency situation – situation created within facilities, territory or aquatic area as a result of natural phenomenon, natural disaster, fire, accident, catastrophe or other disasters, as well use of weapons which leads to the breach of living and working conditions of humans, threatens their life and health and damages the population and the natural environment.”
Obligation to cooperate
In some cases (such as terror threats) the judicial warrant may also be issued ex post, however the filing of the application must be within 24 hours by the prosecutor.
There is no need of preservation request in cases of urgency when a local ISP is being addressed. In such cases immediate access can be granted (supported with the above mentioned ex post judicial supervision).
Exception
No specific exceptions are provided to the general rule.
Confidentiality obligation
Obligation of secrecy
According to Artilce 104 of the Criminal Procedure Code, entitled “Impermissibility of disclosing investigation data”, a prosecutor/investigator shall be obliged to ensure that information on the progress of an investigation is not made public. For this purpose, he/she shall be entitled to obligate a criminal trial participant not to disclose details of a case without his/her permission, and warn him/her about criminal liability. Taking into account the interests of justice and of the parties involved, at any stage of investigation and court hearing, a court may, upon motion of a party or on its own initiative, deliver a decision ordering the participants of the case and/or persons present in the court room to protect certain details of the case under review from public disclosure.
Non respect of the obligation of secrecy
Under Article 374 of the Criminal Code of Georgia, “Disclosure of investigative information”, disclosure of materials related to operative-investigative activities or of investigative information by a person who has been duly warned that the disclosure of such information was prohibited, shall be punished by a fine or corrective labour for up to two years, or with imprisonment for up to a year.
Exception
Data subjects must be notified within a year after obtaining the data. That time limit can however be extended by court upon the prosecution filing but prosecution must show very solid grounds for further necessity of confidentiality.
Data protection agreements
European Union Member States/ Adequacy
No
Convention 108
No
Additional Protocol ETS 181 to Convention 108
No
Domestic legal framework on data protection
No
Remedies
No information provided
Safeguards
Please refer to sections on production and preservation for obligatory judicial authorisation for these measures.
There powers apply in the context of criminal proceedings; therefore an open criminal investigation is a pre-requisite.
No limitation to the use of these powers in terms of seriousness of offences.
These profiles do not necessarily reflect official positions of the States covered or of the Council of Europe.