Possessing information about a crime does not always give rise to criminal liability. Under Georgian legislation, only failure to report a serious or particularly serious crime is punishable, and only where the person actually knows that the crime is being prepared or has been committed.
Accordingly, when deciding whether a person should be held criminally liable, it is not sufficient to establish that the person heard information related to a crime. It must be determined how specific and reliable that information was, when the person received it, whether they had a genuine opportunity to notify a law-enforcement authority, and whether they consciously refrained from doing so.
What does failure to report a crime mean?
Failure to report a crime is a person’s conscious inaction when they actually know that a serious or particularly serious crime is being prepared or has already been committed, but do not notify the competent authority.
Liability is provided for under Article 376 of the Criminal Code of Georgia.
Failure to report a crime may concern:
- a crime that persons are still preparing to commit;
- a crime whose commission has begun and is still continuing;
- a crime that has already been completed;
- the identity of the person who committed the crime;
- the place, time, method of preparation, or other important circumstances of the crime.
For liability to arise, it is not necessary that the crime actually be committed as a result of the failure to report or that the investigation suffer specific harm. The decisive issue is whether a statutory duty to report existed and whether the person fulfilled that duty.
Failure to report which crimes is punishable?
Article 376 of the Criminal Code establishes liability only for failure to report a serious or particularly serious crime.
Under Article 12 of the Criminal Code, the category of a crime is determined according to the maximum term of imprisonment prescribed by the relevant article.
A serious crime is:
- an intentional crime for which the maximum penalty is more than five years but does not exceed ten years of imprisonment;
- a crime committed through negligence for which imprisonment for more than five years is prescribed.
A particularly serious crime is an intentional crime for which imprisonment for more than ten years or life imprisonment is prescribed.
Therefore, failure to report a less serious crime is not punishable under Article 376 of the Criminal Code, unless the specific conduct is covered by another special provision.
A person is not required to know the precise legal classification of the crime. However, they must have information about factual circumstances that objectively indicate the elements of a serious or particularly serious crime.
Who has a duty to report a crime?
Liability under Article 376 of the Criminal Code may be imposed on any sane natural person who has reached the age of criminal responsibility, actually knows about the preparation or commission of a serious or particularly serious crime, and has a genuine opportunity to report it.
A person may obtain such information:
- by directly seeing or hearing the crime;
- from the person who committed the crime;
- from the victim;
- by becoming aware of correspondence or a conversation related to the preparation of the crime;
- from another source, if the information received is so specific and reliable that the person actually knows about the crime.
The typical subject of the offence under Article 376 of the Criminal Code is a third party who did not participate in the crime. Failure to report a crime committed by the person themselves or with their participation is not independently classified as failure to report a crime, because a person cannot be required to facilitate their own criminal prosecution.
What does “actual knowledge” of a crime mean?
One of the main prerequisites for liability for failure to report a crime is that the person actually knew about the preparation or commission of the crime.
Actual knowledge must be based on specific factual information. Mere speculation, rumour, unverified information, or a general suspicion is not sufficient.
For example, the following matters are relevant when determining liability:
- what information the person received;
- from whom the person received it;
- how specific the information was;
- when and under what circumstances the information was received;
- how the person acted after receiving the information.
It is not necessary for the person to know every detail of the crime. However, the information must be sufficiently definite to genuinely indicate the preparation or commission of a serious or particularly serious crime.
If a person merely has suspicions, they may still provide the information to a law-enforcement authority, but criminal liability cannot be imposed solely because they did not disclose an unverified assumption.
What conditions are necessary for liability?
To convict a person for failure to report a crime, the prosecution must establish beyond a reasonable doubt that:
1. A serious or particularly serious crime was being prepared or had been committed
The factual and legal elements of the crime about which the person had information must first be established.
If the conduct constituted a less serious crime, liability under Article 376 of the Criminal Code will not arise.
2. The person actually knew about the crime
The prosecution must specify when, from whom, in what form, and what information the person received.
A family, friendly, or other relationship with the person who committed the crime, by itself, does not establish that the person actually knew about the crime.
Nor is suspicious behaviour after the crime always sufficient to prove knowledge. A body of evidence that excludes reasonable doubt is required.
3. The person must have had a genuine opportunity to report the crime
Liability cannot be imposed on a person who objectively had no opportunity to provide the information.
For example, the circumstances require assessment where the person:
- was under violence or a real threat;
- was unlawfully deprived of liberty;
- was unable to make contact because of their health condition;
- had no accessible means of communication;
- was acting under another urgent threat.
A mere verbal assertion that a threat existed does not automatically exclude liability. The reality, intensity, and duration of the threat must be assessed, together with whether the circumstances allowed the person to notify law-enforcement authorities about the crime safely.
4. The person did not provide the information to a competent authority
The law does not establish a specific form of notification or a deadline defined in hours. However, the information should be provided immediately or at the first genuine opportunity, particularly where the crime is still being prepared or there is a threat to people’s lives or health.
Information may be provided to the police, the prosecution service, or the LEPL “112” service. Notification may be made either orally or in writing.
Where circumstances permit, it is advisable to preserve data confirming the notification, such as the registration number of the report, an email, a copy of the notification, or information about the call.
5. The person must have acted intentionally
Failure to report a crime is an intentional act. To establish liability, it must be proven that the person:
- knew the factual circumstances of the preparation or commission of a serious or particularly serious crime;
- understood that they were not providing this information to a competent authority;
- had a genuine opportunity to report the crime;
- and consciously decided to remain inactive.
If the person honestly believed that the information was false, failed to understand its true meaning, or objectively had no opportunity to report it, the intent required for liability may be absent.
Who is exempt from liability?
The note to Article 375 of the Criminal Code, which also applies to Article 376, exempts from liability the persons expressly listed in the law.
First and foremost, liability does not apply to a person who, without a prior promise, failed to report a crime committed by a close relative.
This exception does not mean that a close relative may participate in the commission of a crime, destroy evidence, eliminate traces of the crime, or provide the offender with assistance promised in advance. Such active conduct may contain elements of another offence, including complicity or concealment of a crime.
The law also exempts certain persons performing professional functions from liability, including:
- the responsible person of an institution providing services to victims of trafficking;
- a member of the standing group examining the issue of granting victim-of-trafficking status;
- an employee of an institution providing services to victims of violence against women or domestic violence (except for crimes committed against minors);
- the relevant employee of the Agency for State Care and Assistance for the Victims of Human Trafficking and the Persons Affected (except for crimes committed against minors);
- an operator of a free telephone assistance network providing consultations to individuals.
Failure to report, concealment of a crime, and complicity
Failure to report a crime must be distinguished from concealment of a crime and complicity.
Failure to report is primarily passive conduct: the person knows about the crime but does not provide the information to a law-enforcement authority.
Concealment of a crime involves active conduct, for example:
- hiding the offender;
- concealing the weapon or object used in the crime;
- destroying traces of the crime;
- destroying a video recording or document;
- concealing stolen property;
- knowingly directing the investigator in a false direction.
If, before the crime was committed, a person promised the offender assistance, concealment, or other facilitation, and that promise contributed to the commission of the crime, the person’s conduct may be classified not only as failure to report or concealment, but also as complicity in the crime.
The proper legal classification depends on when the person learned about the crime, when they made the promise to provide assistance, and what specific actions they subsequently carried out.