On December 15, 2017, the Public Defender of Georgia filed a constitutional suit with the Constitutional Court of Georgia.

The Public Defender considered that Articles 378¹ and 378² of the Criminal Code of Georgia did not comply with paragraphs 5 of Article 42 and paragraphs 1 and 2 of Article 17 of the Constitution of Georgia.

The disputed articles impose penalties for transfer of prohibited items to persons placed in the temporary detention facility or penitentiary facility (378¹), as well as for purchase, storage, carriage and/or use of prohibited items (378²). It should be noted that the list of prohibited items is determined by minister's order.

Any offense and punishment should be clearly defined by the Criminal Code. In addition, the criminal norm should be clear and foreseeable, and criminal responsibility should be derived from an act of high legislative legitimacy, such as law, and not from the order issued by a minister, which may at any time be replaced by other minister's personal decision. Consequently, criminal liability for possessing prohibited items by persons placed in temporary detention facilities or penitentiary facilities should not be based on a minister's order.

At the same time, the Public Defender considers that possession of items of civic consumption in the temporary detention facilities or penitentiary facilities (such as, cards sugar, yeast) should not lead to deprivation of person’s liberty, as it is clearly incompatible with the Constitution of Georgia due to its disproportionality.