In the recent days, the Ministry of Internal Affairs conducted several raids throughout the capital city, which attracted the attention and caused concern of a part of the society. At the time of the aforementioned raids, the police systematically stopped and searched both pedestrians and motor vehicles and checked citizens’ personal documents. According to news reports, in some cases, the police officers wrote down the information about citizens (name, surname, patronymic name, address, phone number) and took a photo of each person they checked with a mobile phone camera. We believe that the aforementioned measures were often unlawful and violated the constitutional rights and freedoms of citizens.
The reports that several police officers chased a journalist of Tabula TV station who was filming the process of the raid, searched him, and forced him to delete the video footage are especially troubling.
The Ministry of Internal Affairs denied the aforementioned information, though, as this agency did not even summon the aforementioned journalist to study the authenticity of the fact, we consider such denial untrustworthy.
According to the Georgian legislation, destruction of a video footage of a journalist constitutes an offence to which the Prosecutor’s Office must respond by launching an investigation.
Considering the high public interest in this issue, we consider it necessary to inform the public about the regulations established by the Georgian legislation and to release our assessment.
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In accordance with Article 9 of the Law of Georgia on the Police, the police have the authority to conduct raids in populated settlements, on motors roads, and in territorial waters during an emergency or war, as well as with the aim of detaining criminals and offenders.
According to the aforementioned norm, the legislator only considers it possible to conduct a raid in the following cases:
during an emergency or war;
with the aim of detaining criminals;
with the aim of detaining other offenders.
Naturally, no emergency or war has been declared in Georgia. Accordingly, the police had the right to conduct a raid with the aim of detaining criminals or other offenders. However, contrary to this, according to the information at our disposal, the police stopped and searched citizens on a massive scale, which certainly gives rise to well-founded doubts that the police selected, stopped, and searched by-passers at random, rather than looking for people charged with a crime or other offenders with the aim of detaining them. Interestingly, the statement released by the Ministry of Internal Affairs itself says that the aforementioned raids had a preventive character, which contradicts the aforementioned lawful aims of conducting a raid.
According to the Law on the Police, at the time of a raid, when circumstances determined by the Code of Criminal Procedure of Georgia and the Code of Administrative Offences of Georgia are present, the police has the authority to stop and check a person or a motor vehicle with the procedures established for search and recovery.
Accordingly, the Law of Georgia on the Police establishes two independent criteria for conducting search and recovery:
circumstances determined by the Code of Criminal Procedure of Georgia and the Code of Administrative Offences of Georgia must be present;
the police must check a person or a motor vehicle with the procedures established for search and recovery.
The list of circumstances in which search and recovery may be conducted is determined by the Code of Criminal Procedure. The current wording of the Code of Administrative Offences of Georgia is nor familiar with the institution of search and recovery. Accordingly, in order for a police officer’s action not to violate the principle of lawfulness, he/she may only conduct search and recovery of a person and his/her motor vehicle where the circumstances envisaged by the Code of Criminal Procedure are present.
The Code of Criminal Procedure of Georgia gives a comprehensive list of circumstances in which it is possible to conduct search and recovery. Specifically, according to Article 119 of this Code, in the case of a well-founded assumption, search can be conducted with the aim of finding an item, document, substance, or other object containing information that is important for a case. Search can also be conducted to find a wanted person or a dead body.
The Code of Criminal Procedure considers it permissible to conduct a search (including a personal search) in the case of a well-founded assumption. The Code defines a well-founded assumption as a totality of facts or information that, with the totality of the circumstances of a given criminal case, would satisfy an objective person, so that he/she could conclude that a person has possibly committed a crime or as an affirmative standard for taking an investigatory action directly provided for in this Code. Naturally, it would be unreasonable to consider that the law enforcers decided to conduct a massive search of by-passers on the basis of a well-founded assumption.
At the same time, it is important that the legislator includes search and recovery during a raid in the general regulations and considers it possible to conduct them only with the procedure established by the Criminal Code of Procedure, in order to avoid possible violation of citizens’ rights.
According to the Criminal Code of Georgia, when police officers conduct a search (including a personal search), they must present a court ruling or, in the case of an emergency, a decision of an investigator. The cases when a personal search of a detainee is conducted (information on which is entered in the protocol on detention) constitute an exception.
According to the information at our disposal, the citizens subjected to searches at the time of the raids do not confirm that the police officers who conducted the searches presented a court ruling or an investigator’s decision on searching them, which is also a gross violation of the citizens’ procedural rights.
At the same time, in accordance with Paragraph 3 of Article 91 of the Law of Georgia on the Police, “Police officers shall be obliged to introduce themselves to the stopped person, present a document that confirms their authority, and explain that he/she has the right to appeal the lawfulness and validity of the stopping.” The information at our disposal makes it clear that the police officers conducting the raids did not observe the aforementioned requirement of the law either.
Georgian Democracy Initiative (GDI)
Transparency International – Georgia (TI – Georgia)
International Society for Fair Elections and Democracy (ISFED)
Georgian Young Lawyers’ Association (GYLA)
