On November 20, 2024, the Constitutional Court of Georgia partially granted Public Defender's constitutional lawsuit No. 697. The Public Defender submitted the aforementioned lawsuit to the Constitutional Court in 2015 and disputed the grounds and procedure for sending a person to an expert institution of the Ministry for examination in order to establish the use of narcotic/psychotropic substance by him, as well as the procedure for taking a biological sample from him.

The Public Defender considers that sending a person for examination to an expert institution and taking a biological sample from him should not have been based on the subjective suspicion of a police officer, but rather on the prior consent of the court, in order to avoid arbitrary, unjustified interference with the rights to physical freedom and integrity of a person and thereby a violation of human dignity. In addition, the rule that allowed the possibility of taking a biological sample from a person sent for examination contradicted the privilege of protection against self-incrimination guaranteed by the Constitution of Georgia. According to the Public Defender, based on the disputed regulation, a person could be held liable on the basis of evidence obtained through unconstitutional procedures.

The Constitutional Court declared the normative content of the disputed norms unconstitutional, in conjunction with Articles 13 and 15 of the Constitution of Georgia. In particular, the disputed norms established the necessity of detaining a person in cases where there was no threat of the disappearance/reduction of traces of psychotropic/narcotic drugs from the person’s body. In addition, the normative content also authorized the relevant official to send or examine a person in cases where there was no urgent necessity to do so and it was objectively possible to obtain a court warrant within a time frame that would not cast doubt on the possibility of detecting a violation of the law and obtaining relevant evidence.

According to the Constitutional Court, in cases where it is objectively possible to obtain a court warrant within a period of time that does not cast doubt on the possibility of detecting a violation of the law and obtaining relevant evidence, there is no urgent necessity to send a person to an expert institution and conduct an examination.

The Constitutional Court noted that forcibly sending a person to an expert institution, by its very nature, constitutes the detention of a person for the purposes of Article 13 of the Constitution. The Court explained that in the presence of the grounds established by the disputed norms, there is not always a necessity to detain a person. In particular, in the case when there is no threat of disappearance of traces of narcotic substances from a person’s body, it is possible to summon a person to an expert institution on a mandatory basis and to establish the use of narcotic and/or psychotropic substances by him in this way, which represents a less intense interference with the right to physical freedom of a person.

The Constitutional Court also indicated that the right guaranteed by the privilege of protection from self-incrimination cannot be restricted by regulation, within the framework of which there is no influence on the will of a person for the purpose of obtaining evidence from him/her. The Court explained that biological material, including saliva and urine samples (similar to fingerprints, hair strands, etc.), exists independently of the will of a person. It can be obtained as a result of the normal, natural functioning of the human organism, without artificial intervention or coercion of the person’s will.

For more information, see the ruling of the Constitutional Court of Georgia https://bit.ly/412jQAH