The State Inspector’s Service completed examination of lawfulness of obtaining and disclosing personal data of the third President of Georgia Mikheil Saakashvili by the Special Penitentiary Service and the Ministry of Justice of Georgia.

By the decision of the State Inspector, administrative sanctions were imposed on the Ministry of Justice of Georgia and the Special Penitentiary Service for several episodes of the administrative offense provided for under Article 44 of the Law of Georgia on Personal Data Protection.

In particular, the State Inspector’s Service found that the Ministry of Justice of Georgia and the Special Penitentiary Service disclosed personal data of Mikheil Saakashvili, namely – information about the products purchased in the store of the penitentiary establishment and consumed, as well as about his food ration, videos depicting facts of taking food by Mikheil Saakashvili in the medical room and photos depicting food supplements taken by him, video depicting the fact of leaving the Penitentiary Establishment N12, a video depicting his transfer to the Penitentiary Establishment N18 and audio-video recordings depicting the events that took place in the ambulance used for the transfer of Mikheil Saakashvili from the Penitentiary Establishment N12 to N18 , in violation of paragraphs “a” (data may be processed fairly and lawfully, without prejudice to the dignity of the data subject),  “b” (data may be processed only for specific, clearly defined lawful purposes), “c” (data may be processed only to the extent necessary for achieving lawful purpose) and “d” (data must be valid and accurate and be renewed if necessary) of Article 4 of the Law on Personal Data Protection.

As is known to the public, the State Inspector’s Service examined several facts of obtaining and disclosing personal data of Mikheil Saakashvili by the Special Penitentiary Service and the Ministry of Justice of Georgia. In particular, the Service examined the lawfulness of disclosing information by the Special Penitentiary Service on October 8, 2021 about the products purchased in the store of the penitentiary establishment and taken by Mikheil Saakashvili; lawfulness of disclosing data on the vital signs of Mikheil Saakashvili by the Special Penitentiary Service on October 10, 2021; lawfulness of disclosing the information about the food ration by the Ministry of Justice of Georgia and the Special Penitentiary Service on November 5 and 6, 2021; lawfulness of obtaining and disclosing the photo (depicting food supplements taken by Mikheil Saakashvili) and the video material (depicting  facts of taking food by Mikheil Saakashvili) by the Special Penitentiary Service on November 6, 2021; lawfulness of obtaining and disclosing the video depicting the fact of leaving the Penitentiary Establishment N12 by Mikheil Saakashvili, the video depicting his placement in the Penitentiary Establishment N18 and audio-video recordings depicting the events that took place in the reanimobile used for the transfer of Mikheil Saakashvili from the Penitentiary Establishment N12 to N18 on November 8 and 1, 2021.

In the process of examining lawfulness of the aforementioned processing of personal data by the State Inspector’s Service, the Special Penitentiary Service and the Ministry of Justice of Georgia explained that the reason for the disclosure of information containing personal data of Mikheil Saakashvili was high public interest in all cases as false information was spread about Mikheil Saakashvili's legal status and deterioration of his health condition. At the same time, by spreading false information in the society, there was a possibility of committing acts of violent nature, which endangered both state and public safety and also damaged the reputation of the penitentiary institution and the interests of other prisoners placed in the establishment and their families. Therefore, it was necessary to prove to the public that the health of Mikheil Saakashvili was not in danger and that the Special Penitentiary Service had been operating in accordance with the law.

In assessing the lawfulness of disclosing the information related to privacy and personal data on the basis of public interest, the State Inspector was guided by the national legislation and international instruments regulating protection of privacy and personal data. The Service also took into consideration the case law of the European Court of Human Rights and of the Constitutional Court of Georgia and stated that although there was high public interest towards the health condition and legal status of the third President of Georgia, the Special Penitentiary Service and the Ministry of Justice should have assessed each fact on a case-by-case basis individually whether this interest was legitimate and if the disclosure of personal data of Mikheil Saakashvili and the means used for the disclosure were proportionate and adequate for meeting the public interest.

The State Inspector assessed each case of obtaining and disclosing personal data of Mikheil Saakashvili individually and found:

• By disclosing the information (on October 8, 2021) on products (natural juices, honey) purchased and consumed by Mikheil Saakashvili in the store of the penitentiary establishment, the Special Penitentiary Service violated the principles prescribed by paragraphs “b” (data may be processed only for specific, clearly defined lawful purposes) and “c” (data may be processed only to the extent necessary for achieving lawful purpose) of Article 4 of the Law on Personal Data Protection which as well constitutes an offence enshrined in Article 44 of the same law.

In the decision, the State Inspector stated that against the background of dissemination of the information about deteriorating the condition of Mikheil Saakashvili, indeed there was public interest towards his health state. However, the subject of public interest was not the type and quantity of food bought and received by him in the penitentiary store, but the information about the state of health of Mikheil Saakashvili. The State Inspector also drew attention to the consequences of the dissemination of this information, in particular, that Mikheil Saakashvili returned the purchased products and stopped taking food supplements. The decision also states that the Special Penitentiary Service was unable to ensure the confidentiality of the information it protected, since the information provided by high-ranking politicians in the context of political statements coincided with the protected information about the goods purchased by Mikheil Saakashvili in the prison store.

• Disclosure of the information by the Special Penitentiary Service on October 10, 2021, about the vital functions of Mikheil Saakashvili (blood pressure, pulse, oxygen saturation, glucose level) was lawful. While the information about severe deterioration of Mikheil Saakashvili’s health condition was spread and his private doctor disclosed the information about his health state, the means used by the Special Penitentiary Service to provide the public with general information about the vital indicators of Mikheil Saakashvili was deemed as a proportionate means for meeting the public interest.

• By disclosing the information about the food ration of Mikheil Saakashvili (on November 5 and 6, 2021), the Ministry of Justice of Georgia and the Special Penitentiary Service violated the principles enshrined in paragraphs “b” (data may be processed only for specific, clearly defined lawful purposes), “c” (data may be processed only to the extent necessary for achieving lawful purpose) and “d” (data must be valid and accurate and be renewed if necessary) of Article 4 of the Law on Personal Data Protection, which as well constitutes an offence prescribed by Article 44 of the same law.

The State Inspector clarified in the decision that the content of the information provided to the public by the Ministry of Justice of Georgia and the Special Penitentiary Service (i.e. Mikheil Saakashvili was taking food that was not of medical nature) created a misconception in the public about his false hunger strike, while the opposite is proved by medical documents  confirming that by this time Mikheil Saakashvili had not stopped his hunger strike and based on the recommendation of the members of the Medical Council, he had been taking various juices and purees in the medical room under the supervision of doctors in order to prevent complication of his health condition. Consequently, providing the public with the information about the intake of food supplements by Mikheil Saakashvili, without the important details that this had been done on the basis of the recommendation of the Council of Physicians, cannot be considered as legal. Moreover, in view of the foreseeable consequences of the spread of inaccurate information – the person being on hunger strike (Mikheil Saakashvili) refused to take any food supplements which created a risk of deteriorating his health. The decision of the State Inspector emphasizes that the dissemination of such information about the patient, on the one hand, endangers the health of the prisoner being on hunger strike, and on the other hand, generates mistrust between the patient and the medical worker which is one of the important principles of providing proper care.

• By disclosing the video recordings depicting the fact of Mikheil Saakashvili taking food at the medical point and the photo materials depicting certain food supplements (on 6 November 2021), the Special Penitentiary Service violated the principles enshrined in subparagraphs “a” (data may be processed fairly and lawfully, without prejudice to the dignity of the data subject), “b” (data may be processed only for specific, clearly defined lawful purposes), “c” (data may be processed only to the extent necessary for achieving lawful purpose) and “d” (data must be  valid and accurate and be renewed if necessary) of Article 4 of the Law on Personal Data Protection which at the same time constitutes an offence prescribed by Article 44 of the same law.

First of all, it should be noted that video surveillance in the medical room (where the video was filmed) and the purpose of video surveillance on the territory (safety of the prison staff and protection of property) were recognized as lawful.

As for the disclosure of the aforementioned photo-video material, the State Inspector clarified in the decision that the published photo and video materials did not reflect the patient's state of health, which could convince an objective observer in the state of health of a person or the quality of medical services. Accordingly, it is not clear what were the legitimate purposes for disclosing the facts and photographs reflecting the implementation of the recommendations of the Council in a medical office under the supervision of a physician. At the same time, the publication of photos and videos in the context that this was unequivocal evidence of Mikheil Saakashvili's food intake, without providing the public with information that taking food was recommended by doctors during the permitted hunger strike, created a perception of false hunger strike by Mikheil Saakashvili, which as was already mentioned, did not provide objective information.

The State Inspector’s decision also emphasizes that a person entering a medical room, given the special nature of personal data of medical nature, has reasonable expectation of protection from public access to video recorded in such space.  In addition, photo and video images of a person are especially protected by the right to privacy. Consequently, even if there was a legitimate aim, the Special Penitentiary Service could provide the public with information about the satisfactory state of health of Mikheil Saakashvili through other, less restrictive ways of private life.

The State Inspector also drew attention to the important details of the content of the video and photo material. In particular, the video shows Mikheil Saakashvili in private condition. The photo, as explained by the Special Penitentiary Service, shows food supplements he received - some jams and purees which are widely used in society as baby food. In these circumstances and given that the form and content of the dissemination of information created a false impression of the illusory nature of Mikheil Saakashvili's hunger strike, the disclosure of information should be viewed as an infringement on the dignity of a person being on hunger strike.

• By disclosing the video recording depicting the fact of leaving the Penitentiary Establishment N12, the video recording depicting his placement in the Penitentiary Establishment N18 and audio-video recordings depicting the events that took place in the reanimobile used for the transfer of Mikheil Saakashvili from the Penitentiary Establishment N12 to N18 (on November 8 and 11, 2021), the Ministry of Justice and the Special Penitentiary Service violated the principles enshrined in paragraphs “a” (data may be processed fairly and lawfully, without prejudice to the dignity of the data subject), “b” (data may be processed only for specific, clearly defined lawful purposes), “c” (data may be processed only to the extent necessary for achieving lawful purpose) and “d” (data must be valid and accurate and be renewed if necessary) of Article 4 of the Law on Personal Data Protection which at the same time constitutes an offence prescribed by Article 44 of the same law.

First of all, it should be noted that the video surveillance of Mikheil Saakashvili in the penitentiary establishments N12 and N18 was recognized as lawful as it was carried out in accordance with the law and the data subject was informed about it. However, there were shortcomings in informing Mikheil Saakashvili about the audio-video recording in the reanimobile. Although the audio-video recording was perceptible for Mikheil Saakashvili and he did not complain about it, the Special Penitentiary Service had had to provide information on who had recorded the audio-video - and for what purpose before the recording had started.

As for the disclosure of the above-mentioned footage, the State Inspector clarified in the decision that disclosure of the video depicting the fact of leaving the Penitentiary Establishment N12 to demonstrate that Mikheil Saakashvili had left the institution voluntarily could not be considered lawful as the opposite is confirmed by the evidence collected in the process of examination, including by his forced placement in the Penitentiary Establishment N18 and by examining the audio-video recordings taken in the reanimobile. It is therefore unclear what legitimate purpose it served and why it was necessary to disseminate this type of information.

Regarding the disclosure of the fact of the forced placement of Mikheil Saakashvili in the Penitentiary Establishment N18, the State Inspector explained that taking into account his political status (the third president of Georgia), awareness, high public interest towards him (both within the country and abroad), video content (the staff of the penitentiary institution transfer him forcibly raised in hands with his being in naked above waist) and the foreseeable consequences of publicity (these images were disseminated in the media (and not only in Georgia),  presenting him to the public in this form and situation should be considered as processing data in a manner debasing the dignity of the data subject.

The right to dignity reinforces an order in which an individual is the main value. The protection of human dignity is something that belongs unconditionally to all people from the state. The conflict between a common good protected by the right to dignity and any other valuable interests protected by the Constitution must be resolved at the outset and unconditionally in favor of human dignity. Thus, the disclosure of the recording infringing the dignity of the data subject and informing the public in this manner for the purpose of demonstrating the facts of stopping the reanimobile in front of the penitentiary institution, damaging medical equipment by Mikheil Saakashvili and using physical violence against the staff of the institution,  cannot be considered as a lawful processing, nor can it be considered proportionate and adequate means for serving any legitimate aim, including meeting public interest.

Nor was the disclosure of the audio-video recording filmed in the ambulance considered as a proportionate and adequate means for achieving the legitimate purpose by the Special Penitentiary Service, especially since Mikheil Saakashvili was not properly informed about the audio-video recording. The State Inspector also underlined the fact that Mikheil Saakashvili was under medical supervision in the ambulance, where data protection expectation is much higher. At the same time, on November 9, 2021, the State Inspector’s Service had already launched investigation into the alleged inhuman treatment against the third President of Georgia Mikheil Saakashvili. Consequently, a legitimate public interest could be towards the investigation and not towards a separate audio-video recording.

According to Article 36 of the Code of Administrative Offenses of Georgia, if a person commits several administrative offenses, the cases of which are simultaneously considered by the same body (official), a fine is imposed within the limits of the sanction imposed for a more serious violation.

Based on the above, the Ministry of Justice of Georgia was fined for the administrative offenses provided for by paragraph 1 of Article 44 of the Law of Georgia on Personal Data Protection.

The Special Penitentiary Service was fined for the administrative offence provided for by the second paragraph of Article 44 of the Law of Georgia on Personal Data Protection.

In addition, the Ministry of Justice of Georgia and the Special Penitentiary Service were instructed to remove the video recordings and audio-video recordings containing Mikheil Saakashvili's personal data from the social network Facebook, as well as from official websites.