Public Defender Files Constitutional Lawsuit on Legality of "Street Drug Testing"

On 20 November 2015 Public Defender submitted a lawsuit to the Constitutional Court against the entire procedure of the so-called "street drug testing", starting from “selection” of a person and ending with delivery of judgment on administrative violation.

The Public Defender considers that "selection" of a person according to administrative rules is equal to restriction of freedom given its legal content. The disputed legislative provisions provide for restriction of personal freedom in all cases regardless of whether the restriction is necessary for the specific administrative legal proceedings and in a way that the person whose freedom is restricted cannot enjoy the procedural guarantees enshrined in article 18 of the Constitution of Georgia.

The lawsuit also challenges the procedure under which the selected person is subjected to the Interior Ministry's Forensic Service. In particular, on the one hand, the vagueness of the drug test legislation may lead to arbitrariness of authorized persons, and on the other hand, it makes impossible for the test person to be informed of the legal responsibility in case of rejection of a test. Consequently, we may call the process a compulsory testing, which contradicts the right to dignity and privacy.

At the same time, the sample of biological material can be used against a person to ascertain administrative and criminal responsibilities, while the latter represents an interference with the person’s right not to testify against himself/herself or his/her relatives.

Even if the person can prove that he/she was illegally detained, this does not result in recognition of the drug test as illegal. Accordingly, the Public Defender considers that offenses are identified by police unilaterally, while the test people cannot enjoy the right to effective trial concerning restriction of their freedom or the process of obtaining evidences against them.

Pursuant to the disputed rules, administrative responsibility is imposed on a person if laboratory examination proves the use of drugs by him/her. The Public Defender considers that drug use is a legal fact and not a clinical case, which must be proved by the court in each individual case. The Court should not be limited by the obligation to recognize the identified fact as a violation of law. The latter limits the scope of the court so that it makes the court hearing senseless and therefore contradicts first and third paragraphs of article 42 of the Constitution of Georgia.

Thus, the Public Defender considers that the rules of drug test are inconsistent with a number of norms of the Constitution and need to be revised.

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