The Conflict Between Individual Freedom and Public Order

Several factors prompted me to write this article. First and foremost, a significant part of the society is unaware of police powers; for the second part, this information is important, but sometimes they are provided with insufficient information; and thirdly, there are those who have experienced such a situation but did not even know they were participating in this conflict. Furthermore, the "Constitution of Georgia" has still not become a directly and immediately acting law for the public. The active Law on Police was adopted on October 28, 2013. Police measures (on the basis of which a person's stop, restriction, control, etc., can be carried out) are divided into several types:

As we can see, overall the list of police measures consists of 12 means (in addition to this, there are grounds for using coercive measures, as well as grounds for using firearms and restricting their use, etc.).

First of all, what we must know is that any kind of restriction—meaning a police measure used by the police that restricts citizens' rights recognized by the Constitution—must stem exclusively from the law; that is, it is impermissible for the police to act outside the law (Article 10. "The implementation of a police measure that leads to the restriction of human rights and freedoms recognized by the Constitution of Georgia is permissible only on the basis of the law"). In addition to the above, the police act based on several principles set forth in the police law itself:
a) Basic guiding principles of police activity;
b) Principle of protection and respect for fundamental human rights and freedoms;
c) Principle of legality, principle of inadmissibility of discrimination, principle of proportionality;
d) Principle of exercising discretionary powers;
e) Principle of political neutrality;
f) Principle of transparency of police activity;

These principles are directly and immediately acting principles for the police. Besides this, the purpose of the law, which is evident from its very first article, is to "ensure the protection of public safety and public order";

First and foremost, the most noteworthy thing in this law is that the legal principle of police activity is the Constitution of Georgia. This provision is not of a declarative nature; to explain it simply, it is a legislative mechanism for restraining the citizen against the state. That is, if nothing else, any citizen at any time has the right to use the Constitution as a directly and immediately acting law. The Constitution was not and cannot be a standalone law; it is a direct and immediate law characterized by all-encompassing nature;

We must also point out that any kind of police measure that may be implemented inevitably causes a conflict between public order and individual freedom (constitutional rights). This conflict is not new, and in most cases, for me as a lawyer, individual freedom is more important. But in cases where there may be a danger of violating "public order," which is the foundation of public order, the law resolves this conflict in favor of the police, but resolves it in such a way that it leaves the police with the means to use only what is provided by law. In some cases, it is also important for me that a person criticizing police action knows that the ability to restrict a right granted by the Constitution is given to the police by law, and their individual freedom is constrained for a greater good (now, whether that is a more important good is a separate issue, as it is a matter of political theory rather than legal).

An important issue is also what intensity of intervention—i.e., conflict regarding individual freedom—must be present on the part of the police for it to be justified or unjustified? First of all, it should be noted that the duration of interference is an evaluative category, but it should not be long-term, meaning a process dragged out over time. To explain with an example: Article 22 of the same law concerning the inspection and check of a person indicates that:
3.1.) The stopping of a person must not exceed 30 minutes (the period of stopping a person must not exceed 30 minutes from the moment of stopping);
3.2) The police are obliged to give the person a reasonable time to provide the documents necessary for their identification (prior to carrying out the identification measure, this person must be given the opportunity to voluntarily prove their identity within a reasonable time);
3.3) In addition, before using firearms or force, the police are also obliged to give the person a reasonable time to fulfill a lawful demand;
3.4) The duration of interviewing a person as a result of an invitation must not exceed 4 hours, and for a minor, 2 hours;

These examples clearly show that while on the one hand the state recognizes the conflict between individual freedom and the police, on the other hand it also points out the intensity that is permissible for resolving this conflict, and this intensity is short-term. Now, how long this short-term period can be is another issue, though it depends on the actual circumstances;

 Regardless of what kind of police measure and in what form it is carried out, it must necessarily be aimed at confirming or excluding a reasonable suspicion. To put it another way, the basis of suspicion triggers police action, and the action must confirm one of two things: either the suspicion is confirmed or it is excluded. This is important because the purpose of each police measure must stem from objective perception rather than subjective perception. In some cases, common courts also use the principle of subjective perception to explain this, but in my opinion, in subjective perception we must then also include: intuition, professionalism, experience, etc. Consequently, the category of subjective perception can become a bearer of much greater danger over time than short-term interference, because a subjective category cannot be a statutory provision of the law, and therefore it can at least sometimes differ from the law;

As the best means of resolving this same conflict, the law offers the principle of proportionality, meaning:
6.1.) A police measure must serve the achievement of a legitimate aim. The chosen police measure must be:
6.2.) Suitable (i.e., a corresponding measure was chosen for the corresponding aim);
6.3.) Necessary (it shall be deemed necessary if no other measure can be used that would cause less harm to both the addressee of the measure and another person while achieving the legitimate aim);
6.4.) Proportional (a police measure satisfies the requirements of proportionality if the harm caused to the legally protected good does not exceed the good for the protection of which it was implemented); 

Furthermore, the requirement of the principle of proportionality is that there must be a suitable and necessary means to achieve a valuable public (legitimate) aim. At the same time, the intensity of the restriction of the right must be proportional and commensurate with the public aim to be achieved. Achieving a legitimate aim at the expense of an increased restriction of human rights is inadmissible (Decision of the Constitutional Court of July 26, 2012, on the case of Danish citizen Heike Cronqvist vs. the Parliament of Georgia, §60). That is, it is possible—and it is always so when a police measure is implemented—that the individual's freedom, which is guaranteed, should not be overly restricted, though short-term interference is justified according to the law;

In addition to the above, sometimes we also face urgent necessity (emergency). However, to explain urgent necessity, we can turn to the practice of the Constitutional Court, which indicates that the content of "urgent necessity" is established by the practice of the Constitutional Court: "Urgent necessity implies cases where, based on the principle of proportionality, achieving a public interest provided for by the Constitution is impossible, due to really existing objective reasons, without an immediate, instant restriction of private interests. At the same time, it must be very clear, evident, and unambiguous that within the framework of the Constitution, not even the slightest probability of protecting the public interest in any other way exists. Urgency indicates a shortage of time, which does not allow for obtaining a judge's order to restrict the right and requires immediate action." That is, for urgent necessity that the police might use, the burden of proving this urgency lies upon the police themselves: every factual circumstance (whether they could have applied to the court to obtain a judge's ruling, whether the public interest could have been protected otherwise, the non-use of other means of protection) must be convincing, clear, etc;

The purpose of this article was mainly aimed at a theoretical level; in the future, I will try to talk about the possibility and impossibility of the admissibility of specific police measures;