Recordings Case: Court Permits Prosecutor to Retrieve Material Evidence from TV Pirveli

The Tbilisi City Court today approved the Prosecutor’s Office’s (POG) motion to retrieve “the carrier of electronic data,” as well as “an envelope and/or other kinds of packaging” that contained it from TV Pirveli offices.

The Court Order says “in case of opposition to the implementation of this order, the implementing person or agency has the right to apply the proportional measure of coercion.” The order can be appealed within 48 hours of its implementation.

The measure was requested by the Prosecution within its investigation launched about the legality of obtaining and dissemination of covert audio recordings. These recordings were aired by TV Pirveli on March 6.

Reaction by TV Pirveli

Head of TV Pirveli’s Information Service Nodar Meladze said it was not clear, why the prosecution concluded that the information aired on the channel was contained on an electronic device, whether or not such device was packaged, or that it was or still is at TV Pirveli premises, and where exactly.

He said the channel was ready to transfer the recordings, but stressed that the journalists’ privilege to protect the source was protected by the law and the way.

Moreover, Meladze noted that the prosecution did not approach the TV channel before seeking the Court’s permission to retrieve the material evidence.

Reaction by lawyers

Chair of the Georgian Young Lawyers’ Association Nika Simonishvili said the Prosecutor’s office has the right to conduct a search in a media agency outlet if the request is granted by the Court.

However, he added that “information obtained by a journalist is privileged information,” thus any attempt by the authorities to identify the source of the recordings is “not in accordance with the law.”

Simonishvili also underscored that approaching the Court for permission to obtain the tapes should have been the Prosecution’s last resort if TV Pirveli refused to cooperate.

Legal protection of sources

Georgian law contains substantial provisions for protecting the journalists’ privilege to receive confidential information.

Article 50 of the Criminal Procedure Code exempts journalists “with regard to the information obtained in the course of his/her professional activities”  from the obligation “to be interrogated as witnesses and to transfer an item, document, substance or other object that contains information essential to the case”.

The Law on Freedom of Speech and Expression, Article 11, states “the sources of professional secrets shall be protected by an absolute privilege, and nobody shall have the right to require disclosure of the source. In litigation on the restriction of the freedom of speech, the respondent shall not be obliged to disclose the source of confidential information.”

Saba Brachveli, lawyer at the Public Defender’s Office, says the case-law of the European Court of Human Rights (ECtHR), which is directly applicable in Georgia’s courts, affirms the privilege of journalists to protect their sources but goes further in banning any actions aimed at circumventing the direct request for disclosure, such as by obtaining other evidence through searches,  as being in contravention of the right to freedom of expression of the journalists. (Nagla v. Latvia (2013), Tillack v. Belgium (2007), Gormus and others v. Turkey (2016). Martin and others v. France (2012))

Background

The covert audio recordings aired by TV Pirveli implicate current Special State Protection Service Head Anzor Chubinidze, as well as current PM Irakli Garibashvili in being tasked by rapper Bera Ivanishvili, the son of Georgian Dream founder Bidzina Ivanishvili, to humiliate and punish youngsters for insulting online posts.

Ahead of the Court decision, the Prosecutor’s Office announced on March 9 that it started a probe into the legality of obtaining and disseminating the tapes, however not into the authenticity of its contents.

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