CONSENT SEARCH: WHAT MATTERS AND WHY
Abstract
“The constitutional right to privacy represents an integral part of the concept of freedom ... is the base for independent development of every individual”. The Constitutional Court of Georgia has stated on numerous occasions that “The right to private life implies the possibility of an individual to lead his/her private life according to his/her own will and be protected from interference by the State or other persons. It protects the choice of a person to exist independently from the outside world, be left alone, as well as to have freedom of choice while deciding the conditions and extent of the relations with other members of the society, ensures free development of a person and gives him/her opportunity to decide independently when, to what extent and by which form to make the facts of his private life public; to exchange and share opinions and impressions”.
The right to private life is guaranteed by Article 20 of the Constitution of Georgia and all the basic acts of International Law.However, it does not pertain to absolute rights. The legislation envisages the possibility to restrict it.
The right to privacy is composed of many components. It is linked to the personal autonomy and the so -called right to be let alone, which implies ability of every individual to decide with what intensity to fall in the center of public attention.Accordingly, the main aspect of right to privacy is the person’s interest to prevent revealing the information connected with private issues and control spreading of such information.Realization of the aforesaid right has particular importance in criminal proceedings, where protection of private information , as well as strict regulation of inviolability of one’s home and restriction of the right to private communication; formation of the administrative practice pursuant to the requirements set by law shall be ensured. “Interference with the right can only be justified in case the legislation envisages the effective mechanisms for protecting from abuse of power. The aforesaid comprises the exhaustive and clear regulation, as well as provision of court control on the necessity and proportionality of restriction.
The legislator is obliged to strike relevant balance between public and private interests. It shall determine the pre-conditions for restriction of the basic right as well as to whom and to how many individuals with what intensity and scale the rights will be restricted. .Any interference in the right shall serve the constitutional purpose, be necessary and represent a proportionate means to achieving such purpose.
As mentioned above one of the aspects of the right to privacy represents inviolability of one’s home and possession. “Inviolability of home is the basic right, which in the interests of human dignity and individual’s personal development provides “elementary dwelling space”. First paragraph of Article 112 of the Criminal Procedure Code of Georgia regulates restriction of this very right and sets out that: ‘’Conducting an investigative action, which restricts private ownership, possession or private life does not require Court decision in case it is conducted with the consent of a co-owner, co-possessor, or a party to a communication”.
The article discusses the issues connected to issuing consent for conducting a search. Particularly, preconditions for giving consent, its limits and the possibility to revoke it. The possibility to conduct a search in case the co-owners/co-possessors have contradictory positions concerning giving consent and conformity of the Georgian legislation with the international standards of right to private life in such a case.
