Over the past several months, the Georgian State Security Service (SSSG) has arrested four individuals on espionage charges and has brought charges in absentia against two additional individuals. More specifically, on 22 April 2026, Tamaz Goloev, a resident of Akhalgori, was arrested on charges of espionage.[1] In public statements, representatives of the Georgian Dream party indicated that he was accused of spying on behalf of Russia. Subsequently, on 5 May 2026, it became known that the SSSG had arrested Giorgi Udzilauri, a senior official of the Financial Police, on the same charge. According to the investigation, he had maintained high-level, organized, clandestine, and systematic contacts with a representative of a foreign intelligence service.[2] Several weeks later, on 30 May, the SSSG arrested two more individuals, Gulbaat Rtskhiladze and Irakli Chikhladze, on espionage charges.[3] This is the first time during Georgian Dream's tenure in power that the SSSG has publicly announced arrests on charges of espionage.

The ongoing investigations have thus far been conducted entirely behind closed doors. The public remains unaware of the specific conduct under the espionage provision with which the defendants have been charged. Moreover, the authorities have not officially disclosed the states on whose behalf the accused are alleged to have engaged in espionage. Given the confidentiality surrounding the case files and the investigative proceedings, it is difficult to assess the legal merits of the charges in these particular cases. Nevertheless, it is important to examine the normative content of the criminal offense of espionage, as the relevant provision grants broad discretion to investigative authorities and the courts, thereby creating a significant risk of arbitrary application.

The purpose of this document is to provide a critical analysis of the relevant provisions of the Criminal Code and to highlight the risks associated with their arbitrary application. 

1. Critical Analysis of Article 314 of the Criminal Code (Espionage)

1.1.  Forms of Espionage under the Criminal Code of Georgia

Article 314(1) of the Criminal Code of Georgia distinguishes between two forms of espionage[4]:

1. collecting, storing, or transmitting to a foreign state, a foreign organization, or their representative any object, document, information, or other data constituting a state secret of Georgia, or extorting or stealing such material for the purpose of transmitting it to them;
2. collecting or transmitting other information on the instructions of a foreign intelligence service to the detriment of the interests of Georgia.

Both forms of conduct are punishable by imprisonment for a term of eight to twelve years.

Furthermore, Article 314(2) establishes aggravated espionage where the offense is committed during wartime or an armed conflict, or where it causes grave consequences to the interests of Georgia. Such conduct is punishable by imprisonment for a term of twelve to twenty years.

With respect to the mental element (mens rea), espionage may only be committed with direct intent. This means that the perpetrator is aware of the factual circumstances of their conduct and of the anticipated harm to the state interests of Georgia, and either desires that result or foresees its inevitability.[5]

1.2. Collection, Storage, Transmission, Extortion, or Theft of an Object, Document, Information, or Other Data Containing a State Secret of Georgia

The objective element of the first form of espionage consists of conduct such as the collection, storage, transmission, extortion, or theft of an object, document, information, or other data containing a state secret. An essential element of the offense is the existence of information that constitutes a state secret.

The disclosure of a state secret is also criminalized under Article 313 of the Criminal Code. In substantive terms, this offense resembles espionage, since it likewise involves the transfer of state secrets to a foreign state, foreign organization, or their representative to the detriment of the interests of Georgia. However, unlike espionage, Article 313 applies only where the person possesses the state secret by virtue of their official position. By contrast, espionage involves the deliberate acquisition of such information through various means.[6]

The evaluative criteria used to define the categories of state secrets - including what information qualifies as a state secret and the standards governing its classification - are of particular importance when assessing Article 314. Qualification of conduct as the first form of espionage depends on whether the information concerned constitutes a state secret.

In Georgia, legal relations concerning the designation, classification, and protection of state secrets are regulated by the Law of Georgia on State Secrets.[7]

Under the Law, a state secret is defined as “information in the fields of national defence, the economy, foreign relations, intelligence, state security, protection of public order, and civil security, the disclosure or loss of which may harm the sovereignty, constitutional order, or the political or economic interests of Georgia, or of a party to an international treaty or agreement of Georgia, and which has been classified in advance or designated as a state secret in accordance with this Law and/or an international treaty or agreement of Georgia, and is subject to state protection.

Accordingly, the Law identifies five broad areas in which information may be classified as a state secret:

• national defence;
• the economy;
• foreign relations;
• intelligence, state security, and the protection of public order; and
• civil security.

The specific categories of information that may be classified as secret within each of these fields are determined by Government of Georgia Resolution No. 507.[8] In total, the Resolution designates more than two hundred categories of information as state secrets.

The state authority, enterprise, institution, or organization (regardless of its legal form) that has created or received the relevant information for consideration or storage is responsible for substantiating the necessity of classifying that information as a state secret, considering its significance. The decision to classify information as a state secret is made by officials authorized by Parliament, the President, or the Government. The Annex to Government Resolution No. 507 of 24 September 2015, adopted in connection with the implementation of the Law of Georgia on State Secrets, identifies the officials vested with the authority to classify specific categories of information as state secrets.

Under the Law, information is classified as a state secret by assigning it an appropriate security classification, which indicates the level of secrecy, the duration of classification, and the authorized official who assigned the classification.

The Law of Georgia on State Secrets establishes several categories of classified information, each corresponding to a different level of secrecy:

• "Of Particular Importance" — information whose disclosure or loss may substantially affect Georgia's state interests in the fields of national defence, the economy, state security, civil security, the protection of public order, or public policy, and/or result in exceptionally grave consequences for a state or organization that is party to an international treaty or agreement with Georgia.
• "Top Secret" — information whose disclosure or loss may cause grave consequences for Georgia's national defence, state security, civil security, protection of public order, political and economic interests, or the interests of persons protected by law, and/or for a state or organization that is party to an international treaty or agreement with Georgia.
• "Secret" — information whose disclosure may harm Georgia's national defence, state security, civil security, protection of public order, political and economic interests, or the interests of persons protected by law, and/or the interests of a state or organization that is party to an international treaty or agreement with Georgia.
• "Restricted" — information whose disclosure may adversely affect Georgia's national defence, state security, civil security, protection of public order, political or economic interests, or the interests and activities of a state or organization that is party to an international treaty or agreement with Georgia.

Although the legislature clearly distinguishes between these categories of state secrets and assigns each a different legal significance, the Criminal Code does not recognize this differentiation. Instead, the same criminal law framework applies to information that differs significantly in terms of both gravity and the degree of public danger. Different categories of state secrets vary substantially in both their content and the potential harm that their disclosure may cause. Consequently, the conduct associated with them also differs in both degree and nature. In these circumstances, the Criminal Code's failure to differentiate between levels of classification creates a risk of disproportionate and unjust sentencing.

As noted above, officials authorized to classify information as a state secret must assess, first, whether the information falls within the categories established by the Government's list of classified information and, second, the degree of harm that its disclosure could cause to the interests of the State. Their decision ultimately determines whether the information will be regarded as a state secret and, consequently, whether one of the essential elements of the offense of espionage is present.

The authority vested in officials responsible for classifying information also raises another fundamental issue. In particular, it is important to determine who should assess the harm that disclosure may cause to national security and whether such harm outweighs the public interest in disclosure. As noted above, it is also unclear whether the designated officials possess the competence to carry out such a balancing exercise. Since representatives of the executive branch themselves determine the extent to which disclosure of particular information may harm or threaten national security or the public interest, there is an inherent risk that the state secrets regime may be abused.

It is equally problematic that the authority to classify information as a state secret is vested in a very broad range of officials, creating a risk of inconsistent practice and unequal exercise of discretionary powers. In addition to executive officials, this authority extends to Supreme Court judges, Extraordinary and Plenipotentiary Ambassadors of Georgia, assistants to the President of Georgia, the Auditor General of the State Audit Office, heads and deputy heads of departments, heads of General Inspectorates, heads of divisions within various ministries, and numerous other officials. Under the legislation, the lowest-ranking official authorized to classify information is a head of division. In practice, this category may include thousands of public officials whose qualifications and exercise of this authority cannot realistically be verified.[9]

Under Georgian law, the official or administrative body authorized to classify information—or its superior authority—may, either on its own initiative or pursuant to a reasoned recommendation from the State Security Service of Georgia, revoke an unlawful decision classifying information as a state secret or alter the level of classification assigned to classified information.

Courts likewise have the authority to annul unlawful or unfounded decisions classifying information as a state secret. In addition, state bodies, as well as natural and legal persons, are entitled to challenge decisions concerning the classification or declassification of information in accordance with Georgian law. They may also submit a reasoned proposal to the competent authority requesting declassification. The competent authority must consider the proposal and respond within one month. At the same time, applicants are required to communicate the relevant information in a manner that does not endanger state secrets or the interests of state and public security.

Although Georgian legislation provides mechanisms for reviewing and challenging classification decisions, their effectiveness is difficult to assess in practice. In many cases, interested parties are unaware both of the grounds for classifying particular information and of the circumstances underlying the decision. Furthermore, given the confidential nature of such proceedings, it is impossible to independently verify the actual effectiveness of these oversight mechanisms.

Moreover, while Georgian law provides for various institutional and legal oversight mechanisms, there is no independent body responsible for overseeing the state secrets regime that is institutionally independent from the security and intelligence services or, more broadly, from the executive branch.

It should also be noted that legal scholarship has long recognized that appeals to national security are frequently used by state authorities to pursue illegitimate objectives. In particular, classification of information may serve to conceal unlawful conduct, abuse of power, or other violations.[10] Against this background, the risk of overclassification becomes particularly significant, as national security considerations may be interpreted excessively broadly, resulting in the classification of information whose disclosure poses no genuine threat to the security of the State. It is therefore essential that any decision to classify information be subjected to an objective assessment of whether classification is genuinely necessary.

When assessing the offense of espionage, particular importance attaches to the scope of judicial review of decisions classifying information as a state secret. While the decision to classify information falls within the competence of an administrative authority, the criminal offense of espionage expressly requires that the information concerned constitute a state secret. Accordingly, the existence of a state secret is an essential element of the offense, and a court cannot confine itself to merely establishing that the information bears a security classification.

Since there is virtually no publicly available case law on espionage offenses, it is impossible to assess how Georgian courts interpret the indeterminate elements of the concept of a state secret or the extent to which they review the legality and justification of classification decisions.

If the mere existence of a security classification were regarded as sufficient proof that information constitutes a state secret, one of the essential elements of the offense would effectively be determined not by the court but by an administrative authority. Such an approach would be incompatible with the principle of legality, which requires that every element of a criminal offense ultimately be established by a court rather than depend on the assessment of another state authority.

At the same time, the court's role should not be understood as requiring it to conduct a comprehensive review of the entire administrative classification process in every individual case. However, the court must be able to assess whether the information in question genuinely falls within the statutory categories of state secrets and whether the security classification was assigned in a manifestly arbitrary and/or unjustified manner. Otherwise, the scope of the offense of espionage may come to depend not on legislative criteria but on the broad discretion of administrative authorities, particularly given that several categories of state secrets inherently afford state authorities a wide margin of evaluative judgment.

1.2.1. The Harm Test and the Balancing of Interests

Although the first form of espionage does not require proof that significant harm to the interests of the State has actually occurred as an element of the offense, this consideration is already incorporated at the stage of classifying information as a state secret. Accordingly, it may be argued that this is precisely why the legislature does not additionally require that the collection, storage, transmission, extortion, or theft of an object, document, information, or other data containing a state secret of Georgia for the benefit of a foreign state, foreign organization, or their representative must necessarily result in substantial harm to the interests of the State.

As noted above, during the process of classifying information and assigning it a security classification, the potential harm that could result from its disclosure or loss is assessed in advance. Under the Law of Georgia on State Secrets, information may be classified as a state secret where its disclosure or loss may harm the sovereignty, constitutional order, or the political or economic interests of Georgia, or of a party to an international treaty or agreement with Georgia, provided that it has been classified in advance in accordance with the procedures established by law.

However, determining the content of concepts such as "state sovereignty," "constitutional order," and "political and economic interests" at the classification stage is far from straightforward. Consequently, the legal provision is largely open-ended, increasing the risk of broad and, in some cases, arbitrary application.

For example, Principle 4 of the Johannesburg Principles establishes a three-part test for determining the permissible scope of restrictions on access to information.[11] Under this test, information may be withheld only where:

• the restriction pursues a legitimate aim prescribed by law, in this context, the protection of national security;
• disclosure would cause substantial harm to that legitimate aim; and
• the harm resulting from disclosure outweighs the public interest in access to the information.

Principle 13 of the Johannesburg Principles further provides that, when deciding whether information should be disclosed, the public interest must be given primary consideration. This means that establishing the existence of potential harm does not automatically preclude disclosure. There may be circumstances in which withholding information would cause greater harm than its disclosure. Such situations may include, for example, information relating to environmental disasters, risks to public health, or food safety.

In certain cases, such as the exposure of corruption, the public interest may outweigh the interest in maintaining secrecy and therefore justify disclosure. Accordingly, even where disclosure may adversely affect a legitimate interest protected by law, the information should nevertheless be disclosed if that harm does not outweigh the public interest in access to the information. For this reason, a public interest test is indispensable. In practice, it is virtually impossible to formulate narrowly defined exceptions that would encompass only information that should remain absolutely confidential in every circumstance. A balancing mechanism ensures that information which is only formally connected to grounds for secrecy, but in reality presents little or no genuine risk, is not automatically classified.

As noted above, the first form of espionage does not require proof that significant harm to the interests of the State has actually occurred. Instead, the legislature presumes the social harmfulness of the conduct on the basis that the subject matter of the offense is a state secret. Consequently, the classification of information as a state secret effectively substitutes for the requirement to prove harm.

This approach is problematic where the classification process itself contains broad elements of discretion and fails to ensure an adequate balancing of the public interest against the potential harm arising from disclosure. If information is classified as a state secret on the basis of vague and broadly interpretable criteria, the scope of the offense of espionage is correspondingly expanded. As a result, criminal liability may arise not from the disclosure of information that genuinely poses a significant threat to national security, but from the dissemination of information whose classification as a state secret was itself insufficiently justified.

This concern is further compounded by the fact that the relevant provision of the Criminal Code of Georgia does not require an assessment of specific harm or even of a concrete risk of harm in each individual case. Consequently, judicial review is likely to be largely confined to determining whether the information transmitted constituted a state secret and whether the statutory actus reus was committed. The scope of the offense of espionage therefore becomes heavily dependent on the prior administrative decision granting a particular piece of information the status of a state secret.

It should therefore be emphasized once again that the current model of the offense of espionage creates a risk that criminal liability will be based not on an assessment of a concrete and genuine threat to national security, but rather on the State's prior administrative decision to classify information as a state secret.

1.3. Transmission of "Other Information" to the Detriment of the Interests of Georgia

The second form of espionage encompasses the collection or transmission of other information on the instructions of a foreign intelligence service to the detriment of the interests of Georgia. For the purposes of this provision, it is essential that the person acts to the detriment of the interests of Georgia when collecting or transmitting such information. This formulation constitutes both an objective and a subjective element of the offense. Accordingly, a person committing this form of espionage must be aware of the factual circumstances of their conduct, the anticipated harm to the interests of Georgia, and either intend that result or foresee its inevitability.

In 2013, the Constitutional Court of Georgia examined the constitutionality of a specific part of the espionage provision, namely the phrase: "as well as the collection or transmission of other information on the instructions of a foreign intelligence service or a foreign organization to the detriment of the interests of Georgia." The Court held that criminalizing the collection or transmission of information on the instructions of a foreign organization to the detriment of the interests of Georgia was so broadly formulated that it afforded courts excessive discretion to determine, without meaningful normative constraints, cooperation with which foreign organizations should be regarded as detrimental to the interests of the State. At the same time, however, the Court upheld as constitutional the phrase: "the collection or transmission of other information on the instructions of a foreign intelligence service to the detriment of the interests of Georgia."

Although the Constitutional Court declared unconstitutional the reference to acting on the instructions of a foreign organization, the phrases "other information" and "to the detriment of the interests of Georgia" remain in the provision. Consequently, the same problems of vagueness and indeterminacy that led the Court to invalidate one part of the provision largely persist. Indeed, it may be argued that, through certain aspects of its reasoning, the Constitutional Court assigned the provision a broader meaning than is justified by the legitimate purpose underlying the offense of espionage.

According to the Court, "The normative content of espionage criminalizes not the mere provision of certain information (that does not constitute a state secret) to a foreign intelligence service, but only where such conduct is detrimental to the interests of Georgia."

At the same time, however, the Court stated that, "Providing information about Georgia to a foreign intelligence service is, in every case, including where the information is available from open sources, detrimental to the interests of Georgia."[12]

Regarding the meaning of the phrase "to the detriment of the interests of Georgia," the Court concluded that supplying information about Georgia to a foreign intelligence service is, in all circumstances, contrary to the interests of Georgia. It therefore found that the provision defines with sufficient clarity the conduct criminalized by the legislature and does not give rise to issues of legal foreseeability.[13]

First and foremost, it is problematic that the Constitutional Court regarded the collection and transmission of any type of information concerning Georgia to a foreign intelligence service as inherently detrimental to the interests of Georgia. Such an approach effectively equates the transmission of any information relating to Georgia with harm to the State. Yet, in a modern democratic society, a substantial amount of information about the State is publicly available and is routinely collected.

If the transmission of any information concerning Georgia is automatically deemed contrary to the interests of Georgia, the scope of the offense of espionage becomes so broad that it is practically impossible to draw a clear line between criminal conduct and legitimate activity. Such an interpretation places the transmission of state secrets, military data, and strategically sensitive information on the same footing as the transmission of information that is publicly available. This approach is inconsistent both with the fundamental principles of criminal law and with the classical understanding of espionage, which, historically and in international practice, has been associated with the transfer of information whose disclosure poses a genuine threat to a state's security, defence, or other fundamental interests. Moreover, such an interpretation effectively creates a presumption of harm and relieves the State of its obligation to demonstrate what specific harm has occurred or what concrete threat has arisen to the interests of Georgia.

Where information is already publicly available, it becomes unclear what additional legally protected interest is harmed by transmitting that information to a foreign intelligence service. By making information publicly available, the State has, to a certain extent, already relinquished exclusive control over access to it. It is therefore difficult to argue that transmitting the same information automatically constitutes conduct directed against national security. In such circumstances, a specific and individualized justification is required to demonstrate what additional risk or harm arises not from the content of the information itself, but from the context, volume, or way it is used.

Accordingly, the Constitutional Court's interpretation raises serious concerns from the perspective of both the principles of legal certainty and proportionality in criminal law, as well as the requirement of foreseeability guaranteed by Article 7 of the European Convention on Human Rights. By giving the phrase "to the detriment of the interests of Georgia" such an expansive interpretation, the Court significantly reduces the need for an individualized assessment of actual harm or a concrete threat. Therefore, the scope of criminal liability becomes less predictable.

As the European Court of Human Rights has consistently held, criminal legislation must satisfy the requirements of accessibility and foreseeability. Individuals must be able, to a degree that is reasonable in the circumstances, to determine which conduct gives rise to criminal liability and what legal consequences may follow from their actions. Although the Court recognizes that legislatures frequently employ general concepts and abstract formulations, their meaning must be sufficiently clear from the text of the law and the relevant judicial practice to prevent excessively broad discretion on the part of state authorities, particularly where serious criminal offenses carrying severe penalties are concerned. Espionage is among the most serious offenses against the State. Accordingly, both the legislature and the courts bear a heightened responsibility to define the constituent elements of the offense with sufficient precision.

At the same time, there is virtually no publicly available case law interpreting Article 314 of the Criminal Code on its merits. Consequently, it is impossible to assess how Georgian courts interpret the provision in practice. The absence of relevant judicial practice further exacerbates the problem of legal foreseeability and makes it difficult to determine where the line is drawn between genuine intelligence activities directed against national security and conduct protected by the constitutional guarantees of freedom of expression and freedom of information. 

2. Confidentiality of Ongoing Proceedings and the Transparency of Justice 

Assessing the ongoing espionage cases is further complicated by the fact that the investigations have been conducted entirely behind closed doors and access to the case materials remains restricted.

While restricting access to certain information in cases involving national security may serve a legitimate aim, such restrictions should not become automatic or blanket measures. Every restriction must be necessary, proportionate, and strictly connected to a specific legitimate objective. Otherwise, there is a risk that confidentiality will be used not only to protect the interests of the investigation but also to limit public scrutiny of law enforcement activities and suppress public debate.

This issue is particularly significant in relation to the offense of espionage. As discussed above, Article 314 of the Criminal Code extends beyond the disclosure of information constituting a state secret and, in certain circumstances, also criminalizes the collection or transmission of "other information." Accordingly, there is an especially strong public interest in such cases, as it is essential to understand what types of information the investigative authorities consider detrimental to the interests of Georgia and how they interpret the broad and evaluative concepts contained in the legislation.

The practice of classifying case materials also affects the procedural rights of the parties. One of the purposes of restricting the disclosure of materials from criminal proceedings may be to protect the presumption of innocence and safeguard the interests of the accused. However, this objective is difficult to achieve where the case has already received extensive media coverage and both the identities of the accused, and the charges brought against them are already known to the public.

Moreover, transparency of the administration of justice is of particular importance in cases attracting significant public attention. By their very nature, investigations into alleged espionage invariably generate a high level of public interest, as they concern not only national security but also the State's foreign and security policy. In such cases, public confidence in the administration of justice depends to a significant extent on the possibility of observing and evaluating the proceedings. Accordingly, the complete confidentiality of such cases diminishes opportunities for public oversight and raises legitimate concerns regarding both the transparency of the investigation and the legitimacy of the decisions adopted.

Conclusion 

Against this background, the combination of the broad and vague legislative regulation governing the offense of espionage, the lack of public access to the factual circumstances of the ongoing cases, and the long-standing political rhetoric of government representatives creates a genuine risk that national security mechanisms may be used for political purposes. This concern is particularly acute given that, for several years, representatives of the ruling authorities have publicly alleged the involvement of foreign powers, the so-called "Global War Party," the "Deep State," and Western actors in Georgia's domestic political processes, while reports issued by the State Security Service have periodically referred to journalists, experts, civil society organizations, and individuals associated with international partners.

In a democratic state, the protection of national security must be based on clear, foreseeable, and narrowly construed legal standards that exclude the possibility of selective enforcement. Contemporary human rights standards require states not only to safeguard national security but also to establish institutional safeguards that prevent excessive concentrations of power and arbitrary decision-making in the security sector.

The broad formulation of the espionage provision creates a risk that the concept of national security may evolve from a legal mechanism for addressing genuine threats into an instrument for framing political and social processes through the lens of security. Under such circumstances, political activity, international cooperation, or the exchange of information may come to be perceived not as legitimate forms of democratic participation but as matters of national security. Vague criminal law provisions also give rise to the well-established chilling effect, whereby individuals refrain not only from conduct that might potentially be unlawful but also from engaging in entirely lawful activities because they cannot reasonably foresee the scope of criminal liability. Such an effect is particularly problematic for journalists, researchers, individuals cooperating with international partners, and those engaged in public advocacy.

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