Octopus Cybercrime Community

In terms of substantive law, Criminal Code of Georgia contains elements of all substantive law offences provided by the Budapest Convention.

The Criminal Procedure Code generally implements procedural powers in compliance with the Budapest Convention, with alternative provisions being used for preservation. Georgia is also one of the few countries of the region having adopted a provision on international production orders as part of the criminal procedure legislation.

Criminal Code of Georgia implements offences contained in the BCC as follows: Art. 284 Access to a computer system without right; Art. 158 Disclosure of Secret of Private conversation; Art. 286 Computer data and/ or computer system interference (as per amendment of 24.09.2018); Article 285. Misuse of computer data and/or computer system (24.09.2010) – incompletely implements Art. 6 BCC.

Article 362. Production, Sale or Use of Forged Document, Seal, Stamp or Blank and Article 180. Fraud of the Criminal Code of Georgia implements  Art. 7-8 BCC;

Article 255. Illicit production or sale of pornographic material or other object provides for general implementation of child pornography offences but several definitions lacking (corresponding Art. 9 BCC);

Article 189. Infringement of the Right of Copyright-holder, Neighbouring Right-holder and Database Author contains General provisions for IPR offences (corresponding Art. 10 BCC);

Article 18. Preparation of Crime, Article 23. Complicity, Article 24. Types of Complicity, Article 25. Liability of Perpetrator and Accomplice introduce concepts of attempt, aiding and abetting implemented (corresponding to Art. 11 BCC);

Article 107¹. Basis for Criminal Liability of Legal Entities, Article 107². Cases of the responsibility of legal person and Article 107³. Types of Sentences implement corporate liability implemented applicable also to cybercrime offences (corresponding to Art. 12 BCC).

The notion of electronic evidence for the purposes of criminal proceedings is recognized in the Code of Criminal Procedure as one of the valid forms of evidence (information in electronic format). Definitions of subscriber information and traffic data are implemented in the Georgian CPC, while content data is interpreted to include the content of communications.

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.

In general, subject-matter of Article 136 of the Georgian CPC is the production order, which is an issue primarily relevant 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).

Article 138¹ of the Georgian CPC governs international production orders which essentially implements Arts. 18.1 (b) and 32 (b) BCC.

Georgian legislation does not implement search and seizure of stored computer data under Article 19 Budapest Convention as a specific measure applicable for computer-related search and seizure; instead, traditional measures of search and seizure are applicable also to computer system and data.

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.

Georgia has not implemented special provisions in the context of search and seizure provided by Article 19 (search of a connected system; making and retaining a copy of those computer data; maintaining the integrity of the relevant stored computer data; rendering inaccessible or removing those computer data in the accessed computer system) in its procedural legislation

Article 20 Budapest Convention providing for real-time collection of traffic data is directly implemented in Georgian legislation by Article 137 of the Criminal Procedure Code.

The interception of content data (Article 21 Budapest Convention) is also directly implemented in Georgian legislation by Article 138 of the Criminal Procedure Code.

Georgia has initiated a reform of its procedural legislation to address the issues of data preservation and production orders in line with the Budapest Convention.

In terms of horizontally applicable conditions and safeguards (Article 15 Budapest Convention), most of the elements limiting and controlling the application of more intrusive measures, such as search and seizure, real-time collection of traffic data and content interception, are present – such as existence of criminal investigation, judicial order, time limitations and other conditions.

Since 2010, a Memorandum of cooperation between Internet Service Providers and Law Enforcement Agencies (hereinafter “ISP”) 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.

Law on Information Security comprises provisions on critical information systems, provides a framework to ensure cyber security and establishes the Cyber Security Bureau.

24/7 points of contact and police cooperation

The 24/7 National Contact Point is operating at the Cyber Crime Division of the Central Criminal Police Department at the Ministry of Internal Affairs of Georgia.

Given the nature of preservation requests they are all treated as urgent.

Further contact details of the 24/7 National Contact Point can be requested here [refers to email address of the manager of the Network]

Mutual legal assistance authorities

Georgia uses a single central authority for MLA requests irrespective of the stage of proceedings, namely, the International Cooperation Unit of the Department of Legal Affairs, Office of the Prosecutor General. Although requests can be technically transmitted via 24/7 contact point or Interpol point, they must be addressed to the central authority.

A preliminary consultation is not an obligation but highly recommended as specific restrictions apply to access to electronic data. Hence, prior consultation may prevent waste of costs for requests that have no prospect. Consultation can be provided via designated e-mail. The 24/7 point of contact provides similar consultations at the designated email address but keeping the Prosecutor’s Office in copy is advisable. The Georgian Central Authority may also review draft request if asked to do so.

Details of competent authorities for extradition, provisional arrest and mutual legal assistance can be found here [separate document linked].

Urgent requests

Given the nature of preservation requests, they are all treated urgently.

As to mutual legal assistance requests, urgent requests may be processed as soon as within hours but may normally require a week. Criteria of urgency in respect of requests for traffic data would be volatility of data or immediate risk to life or physical integrity of persons. Justification for urgency must be provided by the requesting state.

If request is not urgent but prioritized otherwise, it may be processed within 1 month. Criteria for prioritization are: urgency (procedural time limits to expire soon, volatility of data) and seriousness of crimes.