On 24 and 29 October 2015 Ukrainian sites released secret audio recordings of phone conversations of ex-President Mikheil Saakashvili with Nika Gvaramia, Director General of the broadcasting company Rustavi 2, and Giga Bokeria, International Secretary of the United National Movement.

On 2 November 2015 the Ukrainian sites additionally released ex-President Mikheil Saakashvili’s phone conversations with Rustavi 2 Director General Nika Gvaramia and singer Sopho Nizharadze.

The Public Defender believes that despite the fact that the recordings were released by the Ukrainian sites, taking high public interest into view, Georgia’s law-enforcement agencies must investigate the legality of obtaining the recordings and eradicate any suspicions concerning possible release of the recordings by them. The released public information does not make it clear whether the recordings might be the information obtained by Georgia’s State Security Service through secret investigative efforts.

On 31 October 2015 the Deputy Chief of the State Security Service released a statement, according to which, the agency launched an investigation under article 315 of the Criminal Code of Georgia on the basis of the transcripts of a phone conversation between ex-President Mikheil Saakashvili and National Movement International Secretary Giga Bokeria, released by the Ukrainian wikileaks.centre on 24 October 2015. Following another recording released by the Ukrainian site uareview.in.ua on 29 October 2015, National Movement International Secretary Giga Bokeria and Rustavi 2 Director General Nika Gvaramia were questioned on 30 October. The statement of the State Security Service says that the ongoing investigation will survey the source and authenticity of the recordings.

The principle of a fair state obliges the state to use its resources in compliance with the law. State interference with person’s privacy must be fully limited to legal frames, one of the forms of which is judicial control of such interference.

Articles of 143² and 143³ of the Criminal Procedure Code of Georgia define rules for conducting investigative actions, including secret wiretapping, according to which, the measure can be used only in case of existence of the following preconditions:

1. If investigation and/or criminal prosecution is launched into the fact of premeditated and/or exceptional serious crime or any other crimes specifically and comprehensively defined by subparagraph “A” of part 2 of article 143³ of the Criminal Code of Georgia.
2. In case of existence of a court judgment made on the basis of a prosecutor’s motion, which indicates formal-material basis for conducting secret investigative actions.

In case of emergency, secret investigative actions may be launched without a court judgment. However, existence of prosecutor’s motivated decree, which substantiates the need for launching secret investigative actions, is necessary. In similar case, the prosecutor shall address the court within 24 hours. The court examines the legality of the investigative action within 24 hours after the motion is submitted. Release of the materials obtained within the secret investigative action represents a criminal offense.

Investigation of the origin and the release of the secret recordings under article 315, as was stated by the State Security Service, is not considered to be sufficient by the Public Defender.

Since it is not known whether the State Security Service was carrying out any secret investigative actions on 24 October, the Public Defender considers that in parallel with the ongoing investigation, the Chief Prosecutor’s Office of Georgia must launch an investigation to ascertain the legality of the origin and the release of the recordings. Otherwise, the investigation will not deserve trust.

The Public Defender calls on the Chief Prosecutor’s Office to survey the legality of the origin and the release of the secret recordings within the framework of an independent investigation in order to realize the principles of the Constitution and the Criminal Code of Georgia.

The Public Defender continues to monitor the activities of relevant agencies with regard to the aforementioned case.