Unlawful gathering, transfer, disclosure or use of insider information, commercial or banking secrets is punishable under Article 202 of the Criminal Code of Georgia. This charge often concerns employees, former employees, partners and managers — people who may be accused of supplying confidential information to a competitor or a third party, or of using it for their own benefit. If such a charge concerns you, it is vital to know the exact elements of the article and its sanctions.
This page provides a full analysis of Article 202: which acts are punishable, what the sanction is under each part, which features aggravate liability, and where the realistic directions of defense lie. Every figure is taken solely from the statutory text of this article.
Article 202: what the norm regulates
The first part of the article divides the punishable conduct into two groups:
- unlawful gathering of information containing insider information, a commercial or banking secret, with the aim of transferring, disclosing or using it;
- unlawful transfer, disclosure or use of such information.
Thus both the gathering of information with a purpose and the final act — transfer, disclosure or use — are punishable. The decisive feature is unlawfulness: if the information was obtained or disseminated on a lawful basis, the elements of the crime are absent.
The article distinguishes three final forms: transfer — supplying the information to another person; disclosure — making it known to a wide circle; and use — employing the information for one’s own aims. Each form is a separate alternative: the prosecution must establish exactly which one occurred, who committed it, and which information it concerned — otherwise the elements are not established.
The aim of gathering also has its own evidentiary life: the prosecution must show that the information was gathered precisely with the aim of transfer, disclosure or use, which in practice rests on correspondence, the sequence of actions and the context of the person’s work. Where the aim cannot be proven, the first alternative of the article falls away, and the case must stand entirely on proof of an actual transfer, disclosure or use.
Penalties, part by part
The article consists of two parts, each with its own sanction:
- Part 1 — a fine, or corrective labor for a term of up to one year, or imprisonment for a term from two to four years, with deprivation of the right to hold a position or carry out an activity for a term of up to three years or without it;
- Part 2 — the same act committed by a group of persons by prior agreement, repeatedly, through use of an official position, out of mercenary motives or other personal motive, or one that caused significant damage: a fine, or imprisonment for a term from four to seven years, with deprivation of the right to hold a position or carry out an activity for a term of up to five years or without it.
The difference is substantial: Part 1 includes corrective labor as well as imprisonment from two to four years, while Part 2 provides only a fine or imprisonment from four to seven years. Which part the charge falls under is a question of the legal assessment of the facts.
The aggravating features of Part 2
Part 2 contains five aggravating features: commission by a group of persons by prior agreement; repeated commission; use of an official position; mercenary or other personal motive; and the causing of significant damage. Each of them must be established and proven separately — the failure of any single feature returns the charge to Part 1, which means a substantially lighter sanction.
Possible directions of defense
In cases of this category the defense rests primarily on three questions: whether the information really contained an insider, commercial or banking secret and on what basis it is considered such; whether the gathering, transfer, disclosure or use was unlawful; and whether aggravating features existed, including significant damage. In practice such cases are often connected with an employee’s move to a competitor, the end of a business partnership, or a former member of a company using confidential data for their own business — and in all these situations the dispute over whether the information was protected at all is decided only through careful analysis of the evidence.
Separate attention is devoted to the evidence: in this category most materials exist in electronic form — correspondence, file-transfer logs, access histories. The lawyer checks from which source each piece of evidence was obtained and whether it actually supports the fact the prosecution attributes to it. The general legal regime of confidentiality of information is defined outside the text of this article, and its assessment takes place in the concrete case.
When to contact a lawyer
Time is critical: the earlier the lawyer becomes involved, the more opportunity remains to assess the evidence correctly and to build a position accordingly. At Legal.ge you will receive a consultation on the concrete facts: verification of the elements of the article, assessment of the qualification, and a defense plan. Delay in these cases strengthens the prosecution’s position — so make contact as soon as the problem first appears.