Composition of the Board:

Besik Loladze – Chairman of the Hearing, Judge Repporteur;

Otar Sichinava – Member;

Lali Papiashvili – Member.

Secretary of the Hearing: Darejan Chaligava.

Title of the Case: The Public Defender of Georgia v. the Parliament of Georgia.

Subject of the dispute: Constitutionality of subparagraph “f” of the First Part of Article 142 of the Criminal Procedure Code of Georgia with respect to the first paragraph and the first sentence of paragraph 3 of Article 18 of the Constitution of Georgia.

Participant of the Hearing: Mr. Giorgi Mshvenieridze, Ms. Tamar Charbadze and Mr. Vakhtang Menabde, representatives of the Claimant - the Public Defender of Georgia; Mr. Batar Chankseliani and Mr. Ioseb Tatarashvili, representatives of the Respondent – the Parliament of Georgia.

I

1. On 7th of February, a constitutional claim (registration number N415) was lodged with the Constitutional Court of Georgia by the Public Defender of Georgia. The Respondent is the Parliament of Georgia. On 14th of February 2007, the President of the Constitutional Court of Georgia referred the constitutional claim N415 to the Second Board of the Constitutional Court for considering and deciding the issue of admission of the case for consideration on merits. The Second Board of the Constitutional Court admitted the constitutional claim N415 for consideration on merits by a Recording notice N2/1-415 of 29th of May 2007.

2. The disputed norm is subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia. Heading of Article 142 of the Code is “Grounds for Arrest”. Exactly these grounds are listed in the first part of this Article. The list is preceded by the text: “1. a person suspected of committing an offence may be arrested, if there are grounds as follow:” The content of disputed subparagraph is as follows: “f) the person may flee.”.

3. The Second Board of the Constitutional Court of Georgia considered the merits of the constitutional claim N415 with oral hearing on 3 and 4 December 2008 at the open court sittings.

4. The Claimant considers that Article 18 of the Constitution of Georgia reinforces human freedom, procedural rights. Under paragraph 2 of this Article, restriction of liberty is impermissible without a court decision. Under paragraph 3, the arrest of an individual shall be permissible by a specially authorized official in the cases determined by law. The arrested person shall be brought before the court. Therefore, the requirements of these paragraphs of Article 18 of the Constitution of Georgia are similar.

5. In case of the arrest of a person, in the Claimant’s opinion, there should be the defined degree of suspicion. This, after bringing the person before the court, will give the court possibility to decide the issue of applying relevant restrictive measure. Nevertheless the fact that it is not directly stated in Article 18 of the Constitution of Georgia, that the standard of reasonable doubt will not give the possibility of arbitrariness to the person authorized for carrying out an arrest.

6. There are present two goods that should be confronted to each other – liberty of an individual and state’s legitimate interest, to open the crime. The Claimant submits that while confronting these goods, great forethought is required. It is impermissible to arrest even one innocent person in the case, when there is no reasonable suspicion, that he/she committed the crime. At this time, the good protected by Article 18 of the Constitution of Georgia outweighs the legitimate interest of opening the crime.

7. The Claimant gives special regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, he considers that Article 5of this Convention ‘is of constitutional nature”. Stemming from this Article, “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”.

8. The Claimant also referred to judgment N2/3/182/185/191 of 29 January 2003 of the Constitutional Court of Georgia. Under this judgment, the Constitution of Georgia does not recognize the possibility of arresting a person based on “other data”. “Other data” may lay the foundation for suspicion and not for restriction of the liberty of a person. The Claimant believes that in case of the disputed norm, the arrest of the person is based exactly on “other data” and not on the grounds prescribed by the Criminal Procedure Code of Georgia. Only the circumstance that the person may flee, as opposed to other grounds for arrest listed in the First Part of Article 142 of the Criminal Procedure Code of Georgia, fails to raise the suspicion that he committed the crime.

9. It is true that the Criminal Procedure Code of Georgia does not directly state the term “reasonable suspicion”, but under the first part of Article 141 of this Code, the arrest is linked with presence of a sufficient ground for suspecting a person. In the Claimant’s opinion, this norm of Article 141 implies exactly “reasonable suspicion”. The disputed norm, being the ground for arrest, by itself should raise reasonable suspicion that the person committed the crime. Only the circumstance that the person may flee does not raise this suspicion neither in case of a neutral observer, nor in case of an interested person.

10. The Criminal Procedure Code of Georgia knows different grounds for arrest and purpose of arrest. The purpose of arrest is given in Article 141 of the Code. Here, it is indicated that the purpose for arrest of a person may be to prevent his/her flee after he/she committed the crime. Under the disputed norm, the possibility of the person to flee represents the ground for arrest. Pursuant to the Claimant’s position, if we compare the disputed norm and Article 141 to each other, we shall receive the picture that the purpose and ground for the arrest coincide. In the Claimant’s opinion, this circumstance also speaks about the unconstitutionality of the challenged norm.

11. The Claimant submits that the judgment N2/3/182,185,191 of 29 January 2003 of the Constitutional Court of Georgia led to introduction of changes to the Criminal Procedure Code of Georgia. Nevertheless, the first part of Article 142 of the Code still contains the record “the person suspected of having committed the crime may be arrested…”. However, under the other norms of the Code, the person is considered as suspect from the moment of his/her arrest and in this case, any act on recognizing the person as suspect is no longer be rendered. This creates the situation, when, under the Criminal Procedure Code of Georgia, the person may be arrested because that he may flee, but, by this moment, he does not have the status of a suspect. Stemming from this, despite the record written in the first part of Article 142, based on the disputed norm, upon arrest of a person, there is no reasonable suspicion that he has committed the crime and the person authorized for the arrest is not either obliged to have such suspicion.

12. The Claimant declares that, the terms “suspect” and “the person suspected of committing the crime” are of analogous content. Despite the fact that the Claimant in his concluding speech underscored that such opinion does not stem from the provision of the Criminal Procedure Code of Georgia. It is impossible to arrest an already suspected person based on Article 142 of the Code. In this norm, application of the term “suspect” is explained by the fact that the legislator made distinction between the arrest of the suspect and the accused.

13. The record given in the disputed paragraph “the person may flee”, in the Claimant’s opinion, implies the future threat that the person will avoid to appear before the investigatory bodies and it will become impossible to carry out an effective investigation towards him/her.

14. The Claimant believes that presence of reasonable suspicion only on having committed the crime will not be the ground for the arrest of the person. It is necessary that the condition and purpose of the arrest should be present. While applying the disputed norm, requirements of Article 141 of the Criminal Procedure Code of Georgia are to be envisaged. Arising from Article 1461 of the Code, if the rule on arrest as prescribed by Article 145 is substantially infringed or the arrest does not serve the purposes foreseen by Article 141, the arrest is illegal.

15. By the information provided by the Claimant, the Office of the Public Defender of Georgia carries out the monitoring in temporary detention cells of the bodies of Internal Affairs, during which meetings with arrested persons and inspection on lawfulness of the arrest take place. After enactment of the disputed norm, more than half of arrest related cases is carried out by this ground. However, representatives of the Claimant did not submit before the Court the documentation proving this, because, in their opinion, it failed to reflect the complete information on the situation existing throughout the country.

16. The Claimant declares that in the case-law, despite the existence or non-existence of reasonable suspicion, the person is still explained as to commission of what crime he/she is suspected for. The Criminal Procedure Code of Georgia lays down formal requirement and this explanation is also of formal nature. Therefore, requirements of the Code are met, but there is no reasonable suspicion at the moment of arrest.

17. The circumstance that according to the information (letter N55 of 21.10.08) received from the Supreme Court of Georgia, no statement was filed before the common courts with regard to validity of the arrest of the person based on subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia, the Claimant explains it by ineffectiveness of the norm. Article 150 of the Criminal Procedure Code of Georgia, in the event of illegal and unjustified arrest, provides the right to full compensation of the damage, despite the fact that whether or not the arrested will become convicted. However, besides, this does not give anything to the arrested person and the compensation also is of a minor nature. Therefore, the person does not prefer to challenge the lawfulness and validity of his/her arrest.

18. The Respondent did not agree with the argumentation on upholding the disputed norm as unconstitutional presented by the Claimant. In his opinion, in order to better illustrate the first paragraph and the first sentence of paragraph 3 of Article 18 of the Constitution of Georgia, it is preferable to consider them within the context of International Human Rights Law. In this regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its case-law are especially important.

19. It is true that the first paragraph and the first sentence of paragraph 3 of Article 18 of the Constitution of Georgia does not directly establish the circumstances necessary for the arrest of a person, but considering the International Human Rights Law, they are discernable from the content of these provisions of the Constitution. In the Respondent’s opinion, when arresting a person, the following circumstances should cumulatively exist: reasonable suspicion that a person committed an offence prescribed by the Criminal Code of Georgia; presumption (risk) that the person may flee; An arrest of a person with motivation of bringing him before the authorized body; carrying out an arrest with full observance of the conditions determined by law; an arrest of person by a specially authorized official. The Respondent considers that upon complying with the abovementioned conditions, the arrest of a person is in conformity with the requirements of the Constitution.

20. The Respondent gave special regard to the issues of presence of reasonable suspicion during an arrest of a person. He referred to the cases considered by the European Court of Human Rights, Murray v. the United Kingdom and Fox, Campbell and Hartley v. the United Kingdom. In the Murray case, the European Court of Human Rights submitted that necessary component for reasonability of suspicion is the honesty and good faith. In the case – Fox, Campbell and Hartley v. the United Kingdom, the Court presented the objective characteristics for considering the suspicion as reasonable. The Court declared that the reasonable suspicion implies presence of those facts and information that would be objectively sufficient to conclude that the person seemingly committed the offence.

21. The Respondent makes a distinction between the ground for suspecting a person in the commission of the crime and ground for the arrest of the person. In his opinion, it is not obligatory; however, it is possible that the ground for reasonable suspicion may arise in the case prescribed by any subparagraph, including the disputed norm, of the first part of Article 142 of the Criminal Procedure Code of Georgia. The list of reasonable suspicions is not provided in the Criminal Procedure Code of Georgia. They may be different. Stemming from the Criminal Procedure Code of Georgia, the ground for suspecting a person in the commission of the crime should be reasonable, objective, to be such as to dispose the holder of suspicion with the consciousness that the person committed the crime.

22. With regard to the judgment N2/3/182,185,191 of 29 January 2003 of the Constitutional Court of Georgia, the Respondent mentioned that according to this judgment, “other data” may be the ground for arising reasonable suspicion and not for arrest. In case of the disputed norm, ,,other data“ represent exactly the ground for reasonable suspicion and not for an arrest of a person.

23. Under the Respondent’s position, with regard to the case, it is more important to reason as to what extent the arrest of the person may be justified by the threat that the suspect may flee, and not the fact under which criteria for the threat of fleeing are established. Moreover, there are no general criteria for establishing the threat of fleeing of a person and they, when assessing each concrete fact, should be ascertained based on the analysis. In this regard, the European Court of Human Rights indicated in its cases of Letellier v. France and Yaрci and Sargin v. Turkey.

24. According to the case-law of the European Court of Human Rights, in the event of presence of the threat of fleeing of the person, the final aim of arrest of this person, as a rule, is to prevent hindering to exercise the justice and to bring the person before the authorized body. The Respondent appeals on the case: Wemhoff v. Germany, where the Court declared that “…when the sole reason to prolong detention of the detained person is the fear that the accused may flee and, consequently, then avoid to appear before the trial, but it is possible to receive the guarantee from him that his appearance before the trial will be assured, the order on his release should be issued before the upcoming trail”. The same is declared in the case: Letellier v. France and Stogmuller v. Ausrtia.

25. The Respondent also indicates that in case of presence of the threat of fleeing, the aim of arrest of a person – if its final achievement is not to bring him before the authorized body, it loses its importance. It is important that arrester at the moment of arrest be acting with the motivation to achieve this aim. This has been stated in the judgments of the European Court of Human Rights in its the cases of Brogan and others v. United Kingdom and Murray v. the United Kingdom.

26. The Respondent considers that the terms “suspect” and “the person suspected of having committed the crime” are analogous. Under the Criminal Procedure Code of Georgia, the person is considered as suspect in three cases: 1. upon arrest based on the first part of Article 142; 2. upon rendering the decision on recognizing the person as suspect by a prosecutor or with the consent of prosecutor by the investigator; 3. Upon rendering the decision on arrest and recognition of the person being into hiding as suspect by the investigator. Nevertheless that the question may arise from which moment the person is considered as suspect, in the Respondent’s opinion, nothing is unclear in this regard.

27. Based on the analysis of the respective provisions of the Criminal Procedure Code of Georgia, the Respondent infers as follow: 1. to factually consider the person as suspect, i.e. based on objective (reasonable) grounds, to create the disposition for the holder of suspicion that the person seemingly committed the crime takes place in the moment when the holder of suspicion gets aware of such grounds; 2. to officially declare the person as suspect occurs, on the one hand, by rendering the relevant decision, or, on the other hand, by carrying out the concrete action – arrest – by the authorized official.

28. The Respondent like the Claimant recognizes that while applying the disputed norm, requirements of other provisions of the Criminal Procedure Code are to be envisaged. An arrest should be in line with the condition and aim as prescribed by Article 141 of the Criminal Procedure Code of Georgia, otherwise, it will have an illegal nature. The Code excludes formal approach – the arrested person should be clearly explained, in the commission of what crime he/she is suspected, inform him about those evidences that were the ground for his arrest, talk to him/her about the factors for arising the reasonable suspicion as well as about the grounds for his/her arrest.

29. Based on subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia, the fact of not applying the common courts on the validity of arrest of the person, the Respondent considers for assertion of the fact that application of the disputed norm in the practice did not bring unjustified interference with the right from the part of the relevant bodies and it does not provide the possibility for an arbitrary action.

30. The disputed norm permits the arrest of a person, if (together with the aim of the arrest, requirement by law of declaring the grounds for arrest and foreseeability by law the category of arresters) there is reasonable suspicion towards the person in the commission of the crime and simultaneously, there is the threat of his fleeing present. It is not at all obligatory that reasonable suspicion derive from the threat of fleeing. The Respondent considers that in that sense, the disputed norm fully conforms to the first paragraph and the first sentence of paragraph 3 of Article 18 of the Constitution of Georgia.

31. The grounds for arrest of a person are provided in the law – the first part of Article 142 of the Criminal Procedure Code of Georgia. In the Respondent’s opinion, the formal requirement of the first sentence of paragraph 3 of article 18 of the Constitution of Georgia is satisfied. As for the requirement of the Constitution that the arrest should be carried out by a specially authorized official, Article 143 of the Criminal Procedure Code of Georgia also complies with this requirement, as there is the list of persons listed in this Article who are entitled to arrest a person.

32. The Respondent, for example, referred to the legislation of some foreign countries – Germany, Sweden and Russia, which also envisage the possibility to arrest a person in the event if there is a risk that he/she will manage to escape into hiding and will avoid the investigation.

II

1. Pursuant to the first paragraph of Article 18 of the Constitution of Georgia, “liberty of an individual is inviolable”, and arising from the first sentence of paragraph 3 of the same Article, “An arrest of an individual shall be permissible by a specially authorized official in the cases determined by law”. These constitutional norms just like Article 18 as a whole are devoted to the protection of human rights. The liberty of an individual is guaranteed not only by the material norm, but also by the combination of procedural norms upgraded in the constitutional rank, which underscores its special place in the system of basic rights.

2. “Liberty of an individual” provided for by the first paragraph of Article 18 of the Constitution of Georgia does not include all the aspects as this may be revealed after literal reading of this term. For example, Freedom of expression, freedom of belief, freedom of information, freedom of creative activity and etc are protected by different Articles of the Constitution of Georgia, as concerns “liberty of an individual”, it implies the physical liberty of an individual, his right to free physical movement, according to his will, to be or not to be in any place. Liberty of an individual within its narrow meaning is not only liberty of his movement. However, the intensity and gravity of those interferences are clearly different from which the Constitution extends its protection to these rights. Interference with the right of an individual is weightier and thus, the Constitution determines special regulations for protection from it.

3. It may be indicated that among the freedoms guaranteed by the Constitution of Georgia, the liberty of an individual has the longest history. Its birth is linked with the threat to which an individual is exposed to from the part of unrestricted state authorities. Necessity for protection from this threat is preconditioned that protection of liberty of an individual was illustrated in the Great Carter of Freedom, in the Petition of the rights and first of all, in the act of habeas Corpus. These rights are envisaged by any classic catalogue on human rights and freedoms, at the level of both national constitutions and international law. The Universal declaration of human rights and the European Convention for the protection of human rights and fundamental freedoms are especially noteworthy. So called “habeas corpus rights” were also protected by the Constitution of 21 February 1921 of the democratic republic of Georgia.

4. Despite the paramount importance of the European Convention for the protection of human rights and fundamental freedoms, within the limits of competence prescribed by subparagraph “f” of the first paragraph of Article 89 of the Constitution of Georgia, the purpose of the Constitutional Court of Georgia is to establish the constitutionality of the disputed norms and not to determine its conformity with any provisions of the mentioned Convention. In the judgment on case” Citizen of Georgia Ms. Maia Natadze and others versus the Parliament of Georgia and the President of Georgia”, it was emphasized that subparagraph “f” of the first paragraph of Article 89 of the Constitution of Georgia is “a special norm and does not envisage establishing the conformity of normative acts with international agreements. The only act, by which the Constitutional Court is guided in this case during the assessing the constitutionality of the norm, is the Constitution of Georgia, and the task of the Constitutional Court is to construe the Constitution and not international agreements or covenants”. (Decision N2/2-389, II-5).

5. At the same time, the Board thinks that deciding this or that issue should be done with giving the maximum respect to the requirements of international law, especially international human rights law, considering abundant international experience, which repeatedly took place in the practice of the Constitutional Court. However, this does not imply that the Constitutional Court should upgrade any international agreement or covenant to the rank of the Constitution and should replace the constitutional norms with international law norms during its reasoning.

6. The freedom of an individual is not absolute and interference with it is permissible considering strict constitutional-legal requirements that protect any persons from possible arbitrariness of the State. The circumstance that the restriction of physical freedom and especially the most intense form of it - deprivation of liberty hinders and sometimes completely excludes the realization of other rights and freedoms by an individual also increases the degree of strictness of constitutional-legal scrutiny.

7. Paragraph 3 of Article 18 of the Constitution of Georgia places the arrest – less grave form of deprivation of liberty as compared to other forms within the constitutional-legal frames. The arrest, under the first part of Article 141 of the Criminal Procedure Code of Georgia, is a short-term deprivation of liberty. The Institute of arrest is not only prescribed by the Criminal procedure Code, but the present constitutional claim directly relates to the Criminal Procedure Code and therefore, the Board will reason only in this direction.

8. Subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia envisages one of the grounds for arrest of an individual. Stemming from here, the disputed norm represents the interference with the freedom of an individual. As to what extent this interference is constitutional will be clarified as a result of constitutional-legal analysis of the challenged norm.

9. For protecting the personal liberty of an individual and for restricting the state authorities, the Georgian Constitution foresees both formal and material barriers. The first sentence of paragraph 3 of Article 18 in formal terms requires that the arrest of an individual is permissible in the cases determined by law. This is so called “legislative reservation”, which implies that the regulation of the mentioned issue is possible by a legislative act only. Any other normative act that foresees the cases for an arrest of an individual will be unconstitutional in a formal sense. At this time, establishment of rules is the prerogative of legislative authorities, and other branches of the authorities will act in observance of rules and areal determined by the legislative authorities. The legislator is empowered to assess and decide in order to make choice among the many potential ways to achieve the aim; however, it is restrained by the constitutional norms and principles.

10. Subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia is compatible with formal requirement of paragraph 3 of Article 18 of the Constitution of Georgia. Pursuant to paragraph 6 of Article 9 of the law of Georgia “On Normative Acts”, “A code is a systematized law, comprised of the legal norms that regulate particular (uniform) social relations”. Under Article 5 of the same law, “law” is envisaged in the list of legislative acts of Georgia. Therefore, the Criminal Procedure Code of Georgia represents a legislative act, which is adopted by the Parliament of Georgia. Stemming from this, subparagraph “f” of the first part of Article 142 may be considered as “case determined by law” in the formal sense.

11. The second formal requirement of the first sentence of paragraph 3 of Article 18 of the Constitution of Georgia is that an arrest of an individual is permissible by a specially authorized official. The legislative reservation is also extended to this part of the sentence. Concrete and comprehensive list of authorized officials for conducting an arrest should be necessarily determined by a legislative act. It should be indicated that the Claimant does not give regard to non-compliance of the disputed norm with this norm of the Constitution of Georgia and the disputed norm also regulates other issues. Therefore, the Board will not exercise the reasoning with regard to the given requirement of the Constitution and other formal requirements of paragraph 3 of Article 18.

12. The right of the legislator to determine the cases of an arrest by means of the law is restricted in its way by the basic right of human freedom. The disputed norm, besides formal requirements, should also comply with material constitutional-legal requirements. The Constitutional Court repeatedly referred that the disputed normative act is subject to revision not only with respect to the constitutional norms, but also with respect to the Constitutional principles (Judgment N2/2-389, II-3; Judgment N2/1-392 II-21; Judgment N1/3/407, II-1). Therefore, subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia should represent “the case of an arrest determined by law” in the material sense as well.

13. The disputed norm should be in conformity with principles of proportionality and clarity, which are in direct association with the principle of rule of law based state. Exactly the principle of proportionality determines material scopes for the legislator during the restriction of basic rights. If a norm is not compatible with these principles, it will allow the possibility of arbitrariness. And arbitrariness of the State in the sphere of human freedom automatically means the violation of human dignity, as a supreme principle of the constitutional order as well as rule of law based State and other constitutional principles, and unconstitutional infringement of the basic right of human freedom.

14. When making constitutional-legal analysis of the disputed norm, it is impossible to construe it completely in isolation of other norms of the Criminal Procedure Code of Georgia, moreover, if these norms are organically linked with the challenged norm.

15. The freedom of a person is such a weighty basic right that interference with it from the part of the State authorities should be considered as ultima ratio. Any form of deprivation of liberty is subject to the strictest control from the part of the Constitutional Court in light of proportionality of the interference. Besides, the more continuous and intense is the interference, the stricter is its assessment when considering of its constitutionality.

16. Despite the fact that the arrest is a less severe interference with the freedom of an individual than, for example, restrictive measure – detention as prescribed by the Criminal Procedure Code of Georgia, there should be necessarily the solid constitutional-legal barrier, passing of which will be prohibited when interfering with the basic right. However, it should be also noted that this barrier is lower than in the event of more severe interferences with other basic rights.

17. As far as arrest prescribed by the Criminal Procedure Code is concerned, the first sentence of Article 18 should be construed in connection with paragraph 6 of the same Article, which refers to arrest of “a suspect in the commission of a crime. In the event of “criminal arrest” of a person, at least two circumstances should exist. In the first place, factual circumstances and data should objectively provide the possibility of making the conclusion that there is a possible crime present. Besides, there should be well-grounded and reasonable suspicion that the person, who is arrested, has committed the given offence.

18. Stemming from the principle of proportionality, any interference with the basic right should serve to the legitimate aim. The Board considers that the most important legitimate, constitutional aim for interference with the freedom of the person is to carry out justice towards the person who has allegedly committed the offence. Here, we speak about the person who allegedly committed the crime, as the constitutional principle of presumption of innocence is in force, before the judicial decision becomes legally valid.

19. The purpose of arrest is not directly indicated in the disputed norm, but under the first part of Article 141 of the Criminal Procedure Code of Georgia, purposes of application of arrest are to stop criminal activity of the person, to avoid his escape, hiding or destruction of evidences. In the Board’s opinion, these purposes have somewhat intermediate character, and the final aim – to carry out the justice.

20. It is true that the goal of the arrest is determined by law, but such determination will be senseless and will have only formal weight in the event of certain circumstances. If there is no possible crime, then there is no main goal for arrest – to carry out the justice, i.e. arrest of the person by the time when there is no crime present, does not serve to achieve the legitimate aim. Simultaneously, if there is the fact of the crime, but there is no connection of a person with the crime, his arrest also is not directed in achieving the legitimate aim.

21. The reasonable suspicion is what connects the concrete person with the concrete crime. Suspicion is a subjective attitude of an individual, but the interference with freedom of an individual will not take place on the basis of such suspicion that rests only on subjective disposition. Such approach will be a green light for arbitrariness. Stemming from this, the Board considers it necessary that there should be an objective link between the crime and the arrested person, objective circumstances, data that will create the ground for assumption that the crime is committed and exactly by the person who is being arrested. In other words, the suspicion should be well-grounded. At the same time, the suspicion should rest upon reasonable and good-faith assessment of the objective data.

22. If the disputed norm allows arrest of a person in violation of those requirements about which the attentions was above paid, then it does not serve the legitimate aim, is not subject to the test of proportionality and breaches the inviolable essence of the basic right.

23. The Board’s position is not original in this sense. The European Court of Human Rights on case Lukanov v. Bulgaria indicated that there should be present the crime envisaged under the national legislation. This does not mean the necessity of establishing the commission of the crime in reality. Together with this essential precondition, two important requirements should be mentioned: 1) the aim for deprivation of liberty of the person suspected in the commission of the crime should be his bringing before “authorized judicial body”; 2) the suspicion in the commission of the crime by the arrested person should be “reasonable”.

24. In order to assess to what extent the disputed norm complied with the abovementioned standards, it is necessary to analyze it in connection with other norms of the Criminal Procedure Code of Georgia. In the Board’s opinion, subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia formulates the case for arrest, which has cumulative ground: the arrested person is suspected in the commission of the crime and he may flee.

25. The Claimant presented several versions for supporting those views that not only the arrest of the person suspected in the commission of the crime takes place by the disputed norm, but it is extended to any person. Unlike the Claimant, the Board considers that the term “person suspected in the commission of the crime” is not at all “remained” in Article 142 and taken out from the general context or the record made for setting apart of arrest of the suspect and the accused. In the first place, it factually represents the analogy of the constitutional term – “suspect in the commission of the crime”, whose significance and weight were given due regard above. Stemming from this, the purpose of this record is clear.

26. The Board emphasizes that when assessing the constitutionality of the disputed norm, it is not important when the person formally receives the status of a suspect. The decisive is as to what extent the abovementioned components are present – alleged crime and reasonable suspicion, which should be preceded to the arrest of an individual. The fact of arrest of a person as taken separately, certainly, cannot create the reasonable suspicion.

27. The fact that the arrest of an individual should be preceded by the alleged commission of the crime by him is clearly readable from the content of the disputed norm. It clearly appears that the person who is being arrested, is suspected “in the commission of the crime” and not in other thing. In this regard, other norms of the Criminal Procedure Code of Georgia more specifies the requirements and these norms should be also envisaged while arresting the person.

28. The first part of Article 141 of the Criminal Procedure Code of Georgia farther narrows the circle of crimes and allows application of arrest in the case of those crimes for which the law foresees the punishment in the form of deprivation of liberty. The second part of Article 12 of the Code imperatively requires that the arrested should be immediately notified of the crime, in the commission of which she/he is suspected. The duties of the person authorized for arrest, in this regard, are controlled by the first part of Article 145 of the Code, which foresees that the suspect is explained about the commission of particularly which crime he/she is suspected. The term “is explained” is of broader meaning than even the term “to be notified” and it implies not only simple notice, but also implies the element of explanation-clarification in certain extent. There is the reference on the crime provided for by the Criminal Procedure Code of Georgia in the interpretation of “suspect” in the part 231 of Article 44 of the Code.

29. All of this indicates that the arrest should be necessarily preceded by the alleged crime, otherwise, the disputed norm and the Criminal Procedure Code exclude the arrest and if the arrest is still carried out, it foresees an immediate release of the person. The abovementioned norms of the Criminal Procedure Code do not allow reading them in other terms. The Board considers as incorrect the opinion that these norms have only formal weight. The person authorized for carrying out the arrest should be not only convinced that the crime has been committed by the person, he is going to arrest, but also, he should manage to clarify that there is such crime present, for which the Criminal Procedure Code foresees the deprivation of freedom as a punishment and he should explain all of this to the suspect.

30. Stemming from the abovementioned, the disputed norm foresees arrest of an individual in case of commission of the alleged crime by an individual and in this sense, it is compatible with constitutional-legal standards.

31. Subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia will be unconstitutional in the event if it does not foresee presence of that standard of suspicion in the commission of the crime by the arrested person, to which the Board has referred. Also in this case, it is necessary to interpret the disputed norm in close connection with other norms of the Criminal Procedure Code of Georgia.

32. It is worth to be paid attention that part 231 of Article 44 of the Criminal Procedure Code of Georgia foresees explanation to “the suspect”. The Board considers that the suspicion that is stated in this norm has been developed before the arrest of a person. Arrest of the person and awarding the formal status of a suspect to him do not result in raising the suspicion. It is clearly distinguished from the part 231 that there should be “the ground for reasonable suspicion that the person has committed the crime foreseen by the Criminal Procedure Code of Georgia” towards the person, but there is no sufficient doubt in order to charge the person.

33. Other norms of the Criminal Procedure Code of Georgia also foresee the regulation related to suspicion, but the Board will give its regard to the most important norm out of them – to the first part of Article 141, which states as a general condition that “there is a sufficient ground for suspecting the person in the commission of the crime for which the law foresees the punishment in the form of deprivation of liberty’. Without fulfilling this condition, the arrest is impermissible and it will gain arbitrary and unlawful nature.

34. From the abovementioned requirements of the Code, it is clarified that “suspect” foreseen by the disputed norm implies a person towards who there is the objective grounds for reasonable suspicion that he has committed the crime. The person authorized for arrest should be able to make a conclusion that he deals with exactly that crime for which the deprivation of liberty is foreseen as a punishment. Therefore, subparagraph “f” of the first part of Article 14 of the Criminal Procedure Code of Georgia, in this sense, is also in conformity with the requirements of the Constitution and it serves to achieve the legitimate aim.

35. The Board does not agree with the opinion that the Criminal Procedure Code foresees the concrete list of the cases when well-grounded suspicion arises, and raising the well-grounded suspicion in the other cases is impossible. “Suspicion” is not the category that is exhaustively definable by the legislator and whether or not it arises, this depends on the combination of a range of objective and subjective circumstances in the concrete case.

36. The Board’s opinions on reasonable suspicion have been developed based on international practice. For example, the European Court of Human Rights in the judgment on the case “Murray v. the United Kingdom”, underscored that reliability of the suspicion and bona fides comprise one of necessary elements of its validity. However, the suspicion will be considered as well-grounded only in the event if it is also based on facts or information, which objectively connects the suspect with the alleged crime. In the case of Fox, Campbell and Hartley v. the United Kingdom, the Court indicated that ‘to have reasonable suspicion” means presence of such facts and information which would satisfy an objective observer, that the person has committed the crime. However, what may be considered as “reasonable’ depends on all circumstances of the occasion”. The Supreme Court enunciated similar approach in the Brinegar case: “well-grounded suspicion is present, when facts and circumstances, ….with regard to which law-enforcer official possesses reliable information, are by themselves enough in order to make reasonably watchful person believe that the crime has been committed or is being committed..”.

37. The disputed norm indicates that “arrest is possible” and by this it foresees not the necessity of arrest of the person in case of presence of reasonable suspicion in the commission of the crime, but the possibility of the arrest. This is not accidental, because not only the legislative authorities, but also other branches of authorities are restricted by the principle of proportionality. In any case, the arrest of a person should be appropriate, necessary and proportionate means for achieving the aims and the main aim – to carry out the justice – determined by the Criminal Procedure Code. When striking the joint balance between, on the one hand, gravity of the interference and on the other hand, justifiable reasons, the permissible limit for the arrested person should be protected. Arrest should not exert the pressure on the recipient of this measure as an excessive burden.

38. The legislator, certainly, is deprived of the possibility to regulate different versions or scenario for all concrete cases of arrest, because this is objectively impossible. It is important that his message to the law-enforcer be constitutional.

39. One of the grounds, during which in the legislator’s opinion, arrest of the person suspected in the commission of the crime will be appropriate, necessary and proportionate means under subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia, represents the possibility of fleeing of the person into hiding. Fleeing should not be understood as only change in whereabouts of the person. Fleeing, as it is also shared by the Claimant, implies the future threat that the person will avoid the investigation and trial. The fleeing in itself also comprises the threat that the person will continue criminal activity; will commit the crime even in an effort not to be caught by the prosecuting authorities; he will destroy the evidences, if possible. In the end, it will get extremely complicated if not impossible to carry out the justice towards the person.

40. The Board considers the reference of the disputed norm to the first part of Article 141 of the Criminal Procedure Code of Georgia as fully logical and non-problematic. In order to achieve the aims – to stop criminal activity, prevent escape, fleeing, destruction of evidences, arrest of an individual suspected in the commission of the crime, his physical arrest set forth for the arrest under the first part of Article 141 represent thoroughly appropriate, necessary and proportionate measure, implementation of which may create the threat for achieving the legitimate aim.

41. It is true that the Claimant did not notably single out, but the Board cannot bypass the conformity of subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia with the Constitutional principle. Indefinite, vague and ambiguous norm cannot make full-fledged regulation for interference with the freedom of a person that is compatible with the Constitution. The norm should not be formulated in such way that the issues that should be decided and regulated by the legislator factually be transferred to the sphere of discretion of other bodies and by this breach requirements of the first sentence of paragraph 3 of Article 18 of the Constitution of Georgia.

42. The Constitutional Court of Georgia considering the experience of international or different democratic states, formulated its approach with regard to principle of clarity. The court established certain criteria, which should be complied by the norm: “preciseness and unambiguity of the content of the norm is necessary. The norm should be sufficiently definite not only in accordance with the content, but also in accordance with subject, aim and scales of regulation, in order to allow the recipient to correctly perceive the law and to carry out his behavior in accordance with it, and predict effects of the behavior”. (Judgment N2/3/406,408, II-36).

43. The Constitutional Court of Georgia indicated that requirements for definiteness are met when “if under good-faith conditions of interpretation, it will be impossible to apply the norm arbitrarily and to the detriment of the rights of a person” (Judgment N2/2-389 – II,6). The norm should be subject to interpretation by application of at least any traditional method. The Constitutional Court underscored this important circumstance and noted that: “obscurity of the norm does not pass on the verge of its unconstitutionality until its reasonable interpretation is possible through juridical methodology in such way that the genuine essence of relations regulated by this norm will become explicit and prominent with sufficient credibility. In this sense, in order to clarify the constitutionality of this norm, in the first place, its content should be ascertained. For this, it is necessary to interpret the norm”. (Judgment N1/3/407: II-16).

44. It is noteworthy that with regard to the second part of Article 142 of the Criminal Procedure Code of Georgia, the Constitutional Court gave the special regard to ambiguity of the phrase “…suspicion in the commission of the crime to be drawn to the person…” in its Judgment N2/3/182,185,191 of 29 January 2003. It was incomprehensible for the Court, as to what the legislator implied the crime that was already committed or possibility to commit the crime as well. Such record provided the possibility to interpret it ambiguously. The Court referred to the phrase “arrest of the person suspected in the commission of the crime”, as unambiguous record. Hence, the Constitutional Court has developed its position in certain extent on definiteness of the one part of the disputed norm.

45. Analysis of the disputed norm, which the Board carried out, when clarifying its conformity with the principle of proportionality, made it clear that the gist, aim and requirements of the norm are clearly formulated. Under the conditions of good-faith and reasonable interpretation, it is possible to clarify the will enshrined in the norm by the legislator. In the Board’s opinion, the norm is sufficiently unambiguous and clear both for a representative of the state and for those persons who may potentially fall within the ambit of its operation.

46. The Board’s opinion is fully compatible with other idea developed in the Judgment N2/3/182,185,191 of 29 January 2003 of the Constitutional Court of Georgia, that “the Constitution of Georgia does not recognize the possibility of arrest of an individual based on “other data”, these data may be lay the ground for suspicion and not for restriction of liberty of a person”. The disputed norm, as its analysis revealed”, enunciates the case of arrest with observance of formal and material requirements of the Constitution. The Board explained that what constitutes as the ground for arrest of a person in this case. To establish the exhaustive list of those data and cases triggering reasonable suspicion, which may underlie the suspicion is beyond the ability of the legislator. The fact how this or that information creates the ground for reasonable suspicion, in the concrete case, is to be clarified. It is important that the legislator establishes general criteria, based on which these concrete cases may be considered and assessed.

47. The Claimant drew its attention to the fact that the disputed norm provides the possibility of arbitrary arrest and infringement of liberty of a person in the practice. The Claimant did not present evidences proving this, even in the form of statistical data. The picture described by the Claimant is not verified by the information inquired by the Board from the Supreme Court of Georgia, by which it gets clear that based on subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia, no statement on verification of validity of arrest of the person was filed before the common courts.

48. The Claimant also contended that in the practice the arrested person is explained as to commission of which crime he/she is suspected, but this is of formal nature. It appears from the reasoning indicated in the motivational part of the judgment, that even in the event of presence of such formal approach it would be preconditioned not by the disputed norm, but by complete negligence of the disputed norm and other relevant norms of the Criminal Procedures Code. At the same time, no evidence was submitted before the Board, which may verify the mentioned practice and moreover, its connection with the disputed norm.

49. The Board considers that in the motivational part of the judgment, the regard was given to all important aspects of the issue of constitutionality of the disputed norm. Constitutional-legal scrutiny made clear that subparagraph “f” of the first part of Article 142 of the Criminal Procedure Code of Georgia is in conformity with the requirements of the first paragraph and the first sentence of paragraph 3 of Article 18 f the Constitution of Georgia and also, with the fundamental constitutional principles.

III

Stemming from the above-mentioned, having been guided by subparagraph “f” of the first paragraph and paragraph 2 of Article 89 of the Constitution of Georgia; subparagraph “e” of the first paragraph of Article 19, paragraphs 2 and 8 of Article 21, paragraphs 2, 4, 7 and 8 of Article 43, the first paragraph of Article 45 of the organic law of Georgia “On the Constitutional Court of Georgia”; the first paragraph and paragraph 2 of Article 7, paragraph 4 of Article 24, Articles of 30, 31, 32 and 33 of the law of Georgia “On the Constitutional Legal Proceedings”,

The Constitutional Court of Georgia
rules:

1. Not to uphold the constitutional claim N415 (The Public Defender of Georgia v. the Parliament of Georgia).

2. The present judgment shall be in force from the moment of its public delivery at the hearing of the Constitutional Court.

3. The present judgment is final and shall not subject to appeal or revision.

4. Copies of the present judgment shall be sent to the parties, the Supreme Court of Georgia, the President of Georgia and the Government of Georgia.

5. The present judgment shall be published in “Sakartvelos Sakanonmdeblo Matsne” within 15 days.

Members of the Board:

Besik Loladze,

Otar Sichinava,

Lali Papiashvili.