Public Defender Terms Conduct of Seizure relating to Journalistic Source at TV Pirveli as Inadmissible

The Public Defender of Georgia considers that the court decision on the conduct of the measure of seizure at TV Pirveli is unsubstantiated and contradicts Georgian legislation and European human rights law.

On March 9, 2021, the Tbilisi City Court authorized an investigative body to conduct the measure of seizure at TV Pirveli in order for the investigation to obtain a device containing electronic information and an envelope or other packaging containing the device.

The recording released by the TV company, in connection with which the Georgian Prosecutor's Office launched an investigation, was obtained through journalist's confidential source. The right of a journalist not to disclose a source and not to pass information obtained as a result of his/her professional activity to the investigation is, first of all, protected by domestic law.[1] Search and seizure in mass media is allowed only when "there is a clear and convincing substantiation that the conduct of the said investigative activity will not lead to the violation of the right to speech, [..] enshrined in the Constitution of Georgia."[2]

The two-page ruling issued by the court does not contain any discussion as to what impact an investigative activity of similar content may have on the degree of protection of journalist's freedom of speech and expression, which is why the ruling fails to meet even the elementary limit of procedural substantiation.

The ruling only refers to the interest of the investigation. The court did not consider at all whether the investigation was trying to establish the identity of the confidential source by bypassing the questioning of a journalist, which is a violation of the basic privilege of the journalistic activity. Refusal to disclose a confidential source is an element of journalist's freedom of expression, which is considered by the European Court of Human Rights to be of paramount public interest.[3]

The European Court of Human Rights has ruled in a number of cases that the authorities should exercise the utmost caution in relation to the right of a journalist not to disclose the identity of his/her source.[4] Violation of Article 10 of the Convention (freedom of expression) is established in all the cases when the government (in this case - the court) does not take into account the need to protect the confidentiality of the journalist’s source when making a decision, regardless of the category of the case investigated by the Prosecutor's Office.[5] The Tbilisi City Court has not discussed whether the execution of the ruling might lead to the disclosure of the identity of the journalist's another source, which is an additional ground for establishing the violation of Article 10.[6]

Consequently, the ruling issued by Tbilisi City Court is unsubstantiated, in accordance with both national law and European human rights law. It represents a difficult precedent, the enforcement of which could seriously impede the free activities of journalists.[7]

The Public Defender of Georgia calls on the Prosecutor General's Office of Georgia not to take a step that would seriously undermine freedom of expression and journalistic activity.

[1] Subparagraph "h" of Part 1 of Article 50 of the Criminal Procedure Code of Georgia.

[2] Part 3 of Article 123 of the Criminal Procedure Code of Georgia.

[3] Nagla v. Latvia, 73469/10, 2013.

[4] Nagla v. Latvia73469/10, 2013; Tillack v. Belgium, 20477/05, 2007; Martin and Others v. France, 30002/08, 2012.

[5] Ressiot and others v. France, 15054/07, 15066/07, 2012; Saint-Paul Luxembourg S.A. v. Luxembourg, 26419/10, 2013.

[6] Görmüş and Others v. Turkey, 49085/07, 2016.

[7] Financial Times Ltd and Others v. the United Kingdom, 821/03, 2003; Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, 39315/06, 2012.

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