The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On July 26, 2018, the Second Board of the Constitutional Court of Georgia rendered a judgement on the case №665/683 and partially upheld the constitutional complaint of a citizen of Georgia, Nana Parchukashvili.

According to the disputed provision, in cases of strip searches, any accused or convicted person was obliged to fully or partially remove his/her clothing. The procedure was performed when leaving or entering jail or solitary confinement and in other cases, if a director or authorised officials decide to use that measure.

The complainant argued that undressing a person in front of a stranger, causes humiliation and abuse of human, thereby such kind of measure should be used only in extremely exceptional circumstances. The petitioner mentioned those forbidden things could be discovered by a scanner, so there was no necessity to use such a strict measure permanently. At the same time, the contested norm had a blanket character as persons arrested for minor offenses were also subjected to strip searches. The complainant also pointed out that the director of the penitentiary facility possessed too broad discretionary power and legislation was ineffective to prevent unnecessary and arbitrary searches. Therefore, the disputed provision was in violation of Articles 17.2 (prohibition of inhuman and degrading treatment and punishment), 16 (everyone’s freedom to develop their own personality) and 20.2 (right to respect for private life) of the Constitution of Georgia.

The respondent emphasised that that legitimate aim of the disputed provision was to preserve safety in prison, prevent the commission of criminal and unlawful acts, and protect life and health, also other’s rights and liberties. The respondent noted that a scanner could not be considered as an alternative measure, as there are substances that can’t be discovered by a scanner.

The constitutional court stated that undressing a person for checking purposes does not a priori constitutes a violation of article 17 of the Constitution of Georgia. But this measure should only be used in utterly exceptional conditions and in such a manner that will not cause inhuman and degrading treatment. The court emphasised that the disputed norms were suitable to achieve above mentioned legitimate aims and also the measure was necessary to achieve that aim. During the proceedings, it was revealed that some forbidden substances (such as horsehair and paper), or inscriptions cannot be discovered by a scanner.

The Court declined the complainant’s claim that persons arrested for minor offenses should not be subjected to strip searches and noted that danger of entering forbidden substances into jail comes from any prisoner regardless of the seriousness of the crime he/she committed. Therefore, the requirement of strip searches in cases of solitary confinement or contacting outside world was constitutional.

The Constitutional Court noted that order №200 did not include clear guidelines for a director’s discretionary power in the context of using disputed measure; thereby there was a high probability of arbitrary interference in constitutional rights. As a result, the disputed norm was declared unconstitutional with respect to article 17.2 of the Constitution of Georgia. But taking into consideration that order №116 did contain such guarantees, it was not in violation of the constitutional right to the prohibition of inhuman and degrading treatment and punishment.

The Court interpreted the formal requirement of article 20.2 of the Constitution of Georgia according to which any interference in the right to respect for private life would be justified if there is a court decision or urgent necessity provided for by law. The court stated that the purpose of the above mentioned formal requirement is to control the discretionary power of the executive government. In cases of specific legal relationships, where itis always necessary to interfere in the right of private life, above mentioned formal requirement is not relevant anymore.

It was concluded that in penitentiary facilities there is a permanent necessity to interfere in the right of private life in the defined circumstances of the instant case. Therefore, there was no need to satisfy the formal requirement every time the disputed measure is used. At the same time, the fact that the formal requirement of Article 20 of the Constitution of Georgia is not applicable in some specific relationships, does not mean that constitutionality of those provisions will not be assessed on merits.