In its decision of 25 December, the Constitutional Court in the case of Giorgi Keburia v. Parliament of Georgia [1] largely took into account the claimant's positions and declared unconstitutional the provisions of the Criminal Procedure Code which allow a conviction based only on evidence obtained on the basis of operative information. The Constitutional Court also held that in assessing the lawfulness of a search conducted on grounds of urgency, the court should take into account only the circumstances prevailing at the time of the search and the outcome of the search should not be considered.

The complaint was lodged to the Constitutional Court after law enforcement officers arrested members of the hip-hop project Birja Mafia, Young Mic and Kay-G, on June 9, 2017, on charges of illegal purchase / possession of drugs. The arrest of the rappers was followed by large-scale protests, and later, due to insufficient evidence in the case, the prosecution terminated the proceedings against both detainees. [2] The mentioned case clearly showed the problem of strict drug policy, as well as the dangers of police arbitrariness and drug "planting" under the operative activities. It should be noted that such cases, where the accused indicates the arbitrariness of the police and the "planting" of evidence, are not uncommon. That is why the court decision of December 25 is important to prevent similar practices in the future.

In the case, the Constitutional Court systematically assessed the compliance of criminal procedure legislation, as well as normative acts regulating operative-investigative activities with the provisions of the Constitution, which establish the inviolability of human privacy (Article 15, para. 2 (2)) and the standard for a conviction (Art. 31, para. 7 (7) of the Constitution). The court found that:

• The process of conducting the search and the evidence obtained must be corroborated by other neutral evidence, be it a video recording of the search, the testimony of a neutral person present at the investigative proceedings, or other objective evidence. In other cases, evidence obtained on the basis of operative information should not be admitted in a criminal case; 
• The Court also noted that the testimony of a police officer which substantially relies on and repeates the operative information provided to them by the informant / confidant could not be the basis for a guilty verdict. Such testimony of a law enforcer, in its content, is circumstantial evidence characterized by less credibility and a lower degree of veracity;
• The Constitutional Court separately considered the lawfulness of the search conducted in case of urgency and ruled that even if law enforcement officers seized an illegal item, this fact alone should not be a ground for legalizing a search conducted without a court order. The Constitutional Court emphasized that the outcome of the search is not relevant in assessing the merits of the search conducted in case of urgency.

The Constitutional Court did not find it unconstitutional to conduct a search on the basis of operative information, but clarified that in such a situation, law enforcement has an obligation to verify in some way the reliability of the operative information received. At the same time, beyond the operative information, there must be other facts or information that would justify the search.

This decision of the Constitutional Court is very important in terms of ensuring a fair and objective investigation. Especially considering that the so-called operative information is an important tool for the law enforcement, however current legislation in this area does not contain sufficient external control and transparency mechanisms. The ruling also shows that the legislation concerning criminal evidence needs to be systemically refined.

The Constitutional Court set a deadline of July 1, 2021 for the Parliament of Georgia to adopt legislative amendments to ensure the accused’s possession of an illegal item, obtained through the search, is confirmed with neutral evidence other than the testimony of a police officer involved in the search.

The norm (its normative content) declared unconstitutional by the Constitutional Court, which allows for the imposition of a guilty verdict on the basis of a testimony of a law enforcement officer, based on an operative source, is invalidated from December 25, 2020 onwards. From the same date, the norm (its normative content), which considers the result of the search as one of the grounds for a substantiated presumption on the necessity of the search, is invalidated.

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