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A Police officer Can “Stop and Superficially Examine” a Person

September 28, 2010
Gela Mtivlishvili

The parliament has introduced new amendments to the Law on Police of Georgia at the third hearing which allows a policeman “to stop and superficially examine” a person. According to the amended law, a police officer can stop a person based on the “reasonable doubt” on “possible crime” and “superficially examine the clothes of a person” within the “reasonable time necessary to exclude or confirm the doubt.” And if the search will originate the basis of the thorough search, “the authorized person will carry out the search.”

According to the law, the search can be performed based on the court permission or without it if it is urgently necessary to be performed within short time. Simultaneously, the draft law allows the person to appeal against the delay caused by a police officer within five days.

An author of the draft-law MP Lasha Tordia substantiated the amendments by the security needs of a police officer. The executive director of the Georgian Young Lawyers Association (GYLA) Giorgi Chkheidze has different opinion about the amendments. He said the new form of search will cause irrelevantly high risk of selfishness and abuse of power by the law enforcement bodies.

“A new 91st article was added to the law which introduced the term “stop and superficial examination”. The amendments aim to allow a police officer to stop a person to confirm or exclude the doubt on the person’s participation in the crime. The person, although he cannot drive and is informally interrogated by a police officer, cannot enjoy adequate proceeding rights and guarantees because s/he does not have any status. We think the mechanism cannot exist in the law because it will cause irrelevantly high risk of selfishness and abuse of power by the law enforcement bodies,” said Chkheidze.

He added that the institute of “stop and examination” works in many foreign states and it is called “stop and frisk” there. This procedure allows a police officer to stop a citizen only when an officer doubts the citizen is armed and threatens the life of the police officer or the people around.

The lawyer said that “stop and examination” is different from the “detention and search”. 

According to the current law, a corresponding court judgment is necessary for the detention of a person except several exceptions envisaged under the Criminal Procedural Code. The basis of the detention is a reasonable presumption of the crime that can be committed by a person who shall be punished under the law and if there are other circumstances envisaged under the law. As for the search, which is a blatant violation of the private life of a person, it is permissible only “based on the court decision or without it during the urgent necessity envisaged in the law” as it is clarified in the Article 20 Part II of the Constitution of Georgia.

The Constitutional Court of Georgia explained the “urgent necessity” in the case “GYLA VS Ekaterine Lomtadze” as follows: “Urgent necessity indicates to the shortage of time which deprives the possibility to get permission from the judge and needs immediate action.”

Giorgi Chkheidze: “Unlike “detention and search “, the “stop and examination” does not need automatic control of the court and it depends on the discretion of the police officer regardless the fact the police officer has enough time to get the permission from the judge or not. If we focus on the institute of the “stop and frisk” working abroad, it is completely different from the “detention and search” because of its purpose which works for the security of the police officers and the people around.”

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