Introduction

Search and seizure are among the most widespread investigative actions that restrict human rights, aimed at obtaining evidence necessary for identifying persons who have committed crimes and bringing them to criminal responsibility. Since these investigative actions involve interference with the sphere protected by the right to private life, it is important that legislation and practice comply with international and constitutional guarantees of human rights.

The conduct of search and seizure is directly related to Article 8 of the European Convention on Human Rights. The European Court of Human Rights generally considers it appropriate to conduct search and seizure for the purposes of disorder and crime prevention or protection of the rights of others, for private or general prevention purposes, to obtain evidence without which it would be impossible to identify the perpetrator of a crime. The justifying reasons for such measures must be relevant and sufficient and must not be disproportionate to the purpose pursued.[1] The Court has explained that the absence of a search warrant altogether, or its absence without justifiable reasons, is contrary to Article 8 of the Convention; this was also a requirement of domestic legislation, which serves the purpose of controlling the legality of police actions by the prosecutor office.[2] In other words, the use of this measure should primarily be subject to judicial control, while exceptions should be implemented according to clearly established and reasoned standards.

1.    Search and Seizure Based on a Court Order

One of the most important instruments for controlling search and seizure is a court order. This guarantee was enshrined as early as 1791 in the Constitution of the United States of America. Specifically, according to the Fourth Amendment to the U.S. Constitution, “The right of the people to be secure in their persons , houses , papers , and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[3] Supreme Court of the United States has repeatedly emphasized the importance of court orders: “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions”[4] These exceptions must be established jealously and carefully.[5]

Over the years, the Supreme Court of the United States has established such exceptional cases through its precedents, the consideration of which and understanding of the standards they set is also important for Georgian criminal procedural legislation. According to Article 15, paragraph 2 of the Constitution of Georgia, Personal space and communication shall be inviolable. No one shall have the right to enter a place of residence or other possessions, or to conduct a search, against the will of the possessor. These rights may be restricted only in accordance with law for ensuring national security or public safety, or for protecting the rights of others, insofar as is necessary in a democratic society, based on a court decision or without a court decision in cases of urgent necessity provided for by law.[6] The Constitution of Georgia contains within its text the possibility of conducting search and seizure without a court order. This is specified in the Criminal Procedure Code of Georgia (hereinafter referred to as the CPC),[7] according to which, as a general rule, search and seizure are conducted on the basis of prior permission from the court, i.e., a court order. The necessity of obtaining a court order in advance to conduct search and seizure at the pre-trial investigation stage is an important guarantee for protecting the inviolability of person and private life. Prior or permissive judicial control means that there is no exceptional circumstance—urgent necessity—and according to the basic rule, the prosecutor must motion the court. After considering the motion, the court makes one of the following decisions: either issues an order to conduct search and/or seizure, or refuses to issue this order.

However, as with U.S. case law, the European Court of Human Rights,[8] and Georgian criminal procedural legislation, exceptional cases are provided when law enforcement agencies are authorized to conduct search and seizure even without a court order.

2.    Consent

One of the cases of conducting search and seizure without a judge order is the consent of a co-owner/co-possessor or one party to communication. An exception to the Fourth Amendment of the U.S. Constitution exists when a person voluntarily consents to the search of their own dwelling. However, the court particularly emphasizes that the voluntariness of the owner consent must be proven by the prosecution.[9] During consideration, the court must take into account the totality of circumstances in order to determine the voluntariness of consent and the absence of coercion. In this case, the existence of a demonstration of force, the persons age, mental state, and intellectual capabilities to understand the meaning of consent are taken into account, as well as examination of the surrounding circumstances, the persons location at the time of giving consent—whether they were in a state of restriction of freedom [e.g., detained/imprisoned], whether consent was given after the person conducting the search stated that they had a search warrant. When deciding the issue of voluntariness of consent, the main question is how morally acceptable the methods and techniques used by the police to obtain consent are.

Knowledge of the right to refuse consent is not necessary; moreover, a law enforcement representative is not obligated to explain to the person the existence of such a right.[10]

As for consent given by a third party, the latest precedents indicate that conducting a search with the consent of a third party is lawful, as long as another co-owner/co-possessor present at the location does not refuse. According to established precedent, the refusal of a co-owner present at the location can outweigh the consent given by the other co-owner.[11] It is also important that despite the existence of consent, the conducted search is considered unlawful when the searched property is used not by the owner, but by the tenant of the property. Accordingly, the Supreme Court established an unlawful violation of privacy with respect to a person who, although legally had a lesser degree of authority with respect to the property (possession), in fact the threat to their private life was higher than that of the property owner.[12]

According to the most recent American case-law, the existence of actual authority of the person giving consent is not necessary for conducting a search. It is sufficient that the police officer has a reasonable, even if mistaken, belief that the third party has actual authority to consent to the search.[13]

Article 112, paragraph 1 of the Criminal Procedure Code of Georgia also allows the possibility that search and seizure may be conducted without an order and ruling if there is the consent of a co-owner/co-possessor or one party to communication.

The provisions of Georgian criminal procedural legislation clearly indicate that in the case of consent, it is no longer mandatory to approach the judge to verify the legality of search and seizure at the pre-trial investigation stage. The legality of search or seizure will be verified in the general manner at the preliminary hearing or during the substantive consideration of the case in court. The consent of the co-owner/co-possessor/one party to communication must be recorded in writing. When requesting consent, the investigator must specify what they are requesting consent for and what the authorized person is giving consent to, so that the scope of consent is precisely determined and the investigator does not arbitrarily search a place or seize an item for which the authorized person has not given consent.

3. Plain View Doctrine

As noted above, according to the general rule, search and seizure are conducted on the basis of a court order. The detailing of the order and the precise indication of the items subject to search and seizure is an important guarantee for the protection of privacy.

Excessively general terminology in the order gives the person conducting the search unlimited discretionary power to determine which documents are interest for the investigation of a criminal case. This leads to large-scale search and seizure, which violates the right to privacy. Judicial authorities should be careful in issuing broad and/or very general orders. The requirement for detail is a mechanism for protection against arbitrariness by the state, increases public trust in the judiciary, and promotes the full exercise of the right to appeal.

It is considered that court orders satisfy the requirement for detail when the list of items to be seized simultaneously indicates precisely defined items and items for the definition of which the court uses so-called comprehensive terms, such as: electronic media or electronic devices, which includes any type of electronic media, including all computers, memory, disks, memory cards, etc., located at the search site. In this case, the detail of the order is determined by the context of the order and other items to be seized indicated therein. As a result, the order should be read as granting persons conducting the search the right to search only for material containing information related to a defined range of issues in the seized computers and electronic devices. When interpreting the order in this way, the court considers it sufficiently detailed.

Thus, according to the general rule, the limits of the order are given essential importance. As a rule, the person conducting the search does not have the right to exceed the limits of the order. Despite this general guarantee, there is an exceptional case when a law enforcement representative can exceed the limits of the order and/or conduct a search even without an order. This exception is the so-called plain view doctrine.

3.1. Expectation of Privacy

The plain view doctrine has a significant connection with a person’s expectation of privacy. Before moving directly to the doctrine, it is important to review the meaning of expectation of privacy.

In 1967, in its important precedent Katz v. United States,[14] the Supreme Court developed the standard of expectation of privacy. The Court explained that the Fourth Amendment (property right) does not protect such property that has been made public by a person, even if it is located in their own home. Conversely, when property becomes public and the person considers it their property, it is protected by the Constitution, for example, a store, as in the mentioned case. Anyone can enter a store without prior permission to purchase a desired product or item (which is why it is public); however, if the need for search and seizure arises, this object, like all property, is protected by the Fourth Amendment of the U.S. Constitution. Accordingly, whether the Fourth Amendment applies to specific property depends not on its location (whether it is located in a house or on the street) but on the extent to which a person has a reasonable expectation that their property is protected from unlawful interference by the state.

To determine whether a person has a legitimate expectation of privacy, Judge John Marshall Harlan developed a two-part test: 1) subjective—whether the person had an expectation of being in a private space; 2) objective—whether this expectation was objectively reasonable.

Regarding the issue of expectation of privacy, an important case is Hoffa v. United States,[15] where Edward Partin, a local union official and law enforcement inspector, visited Jimmy Hoffa in his hotel room. Jimmy Hoffa was at that time charged with corruption related to union activities. Hoffa told Partin about bribing jurors. Partin subsequently testified in court with witness status and became the prosecutions main witness in the case of Hoffa bribery of jurors. The Supreme Court ruled that despite the hotel room being a legally protected territory, Hoffa should not have had an expectation of privacy in the room. Instead, Hoffa unreasonably hoped that Partin would not reveal his conversation about bribing jurors. The Supreme Court noted that the Fourth Amendment does not in any part protect the criminal unreasonable belief that a person whom he in good faith informs about a committed crime will not reveal it to others. A similar decision was made by the Supreme Court in the case of Lewis v. United States.[16] Lewis repeatedly invited a federal agent to his home to sell him marijuana. The Supreme Court ruled that when a home turns into a commercial center, it does not have a higher right to protection than in cases where commercial activity takes place in shops, on the street, or in a garage.

3.2. Plain View

The plain view doctrine represents one of the exceptions when interference with the sphere protected by a persons private life occurs without a court order and/or by expanding a court order. For this, it is necessary that a law enforcement officer:

1.    Be lawfully present on the territory

2.    The item to be seized is within the persons field of vision, in plain view

3.    The illegal nature of the item to be seized is self-evident from superficial observation and does not require additional investigation

One of the most important precedents that established the plain view doctrine and its preconditions is Horton v. California.[17] The defendant and his accomplice were suspected of robbing a jewelry store using firearms and an electroshock weapon. The court warrant gave the police permission only to search and seize stolen property and did not apply to weapons. When the police arrived at the location and began executing the warrant, they did not find the stolen property, but they found weapons that were stored in an accessible place. The Supreme Court recognized the search as lawful and relied on the view that in general, a person cannot have a legitimate expectation of privacy with respect to illegal items that they leave in plain view and are easily noticeable to a law enforcement representative.

The Fourth Amendment also does not protect open fields and/or public spaces. In the case of Oliver v. United States,[18] Kentucky state police were investigating a report that Thornton and Oliver were cultivating marijuana on farm. Police bypassed Olivers house and followed a fence that read No Trespassing and arrived at a marijuana plantation one mile from Olivers house. The Supreme Court ruled that the Fourth Amendment does not protect persons, houses, and property from unauthorized searches conducted in open fields. The guarantee of inviolability of property generally does not extend to open fields. According to the same doctrine, for example, if a police officer sees from the street through a person’s window an item whose criminal nature is obvious, they do not need a court warrant to enter the house and conduct a search.

The plain view doctrine is also established in Georgian legislation. The possibility of expanding the circle of items to be seized specified by the order is provided both by Article 112, paragraph 5 (in case of urgent necessity) and when the conditions provided by Article 120, paragraph 5 exist. Article 120, paragraph 5 provides not just the possibility but the obligation to expand the limits established by the order in three directions. Specifically, according to this article, all other objects containing information must also be seized if they: 1. Clearly indicate another crime; 2. May be of evidentiary significance for this case; 3. Are withdrawn from civil movement (an object, document, substance, or other object containing information).

The legislation obliges the body conducting the proceedings to exceed the limits of the search determined by the court and to seize not only the information carriers indicated in the order, but also other objects containing information belonging to the above-mentioned category.

To attract foreign investments and ensure a favorable environment for foreign investors in Georgia, it is essential that the existing investment legislation complies with international standards and that the investor’s property rights are protected from unlawful expropriation. In this regard, expropriation is one of the central issues in international investment law. The greatest risk that an investor always seeks to avoid is the state’s interference with property rights without providing adequate compensation.

From this perspective, the scope of protection of property rights is guaranteed by the Constitution of Georgia itself. According to Article 19, paragraph 1, the right to property and inheritance is recognized and ensured, while paragraph 3 provides that deprivation of property for necessary public needs is permissible only in cases directly defined by law, on the basis of a court decision, or in instances of urgent necessity established by an organic law, with prior, full, and fair compensation. Such compensation is exempt from any taxes or fees.

According to the Constitutional Court of Georgia, it has been explained that: “The formal–legal basis for justifying the restriction of the right to property consists of:
a) the provision by law of cases of necessary public need;
b) the establishment by law of the procedure for such restriction. This clause grants the legislator the authority to define the content of the right to property, but only on the condition that the legislator’s intent is adequate to the constitutional requirement. The legislator must equally take into account the guarantee of the right established by the Constitution and the requirements of the social property order, and must balance these interests[1].

In terms of investment law, it is important that, in cases of interference with an investor’s property (particularly expropriation), the application and interpretation of the applicable legislation take into account international practice and the international legal standards of expropriation.

The Meaning and Types of Expropriation

Property held by an investor, either as ownership or under another proprietary right, may be forcibly taken by the state, which constitutes one of the risks associated with making a foreign investment[2].

Expropriation is not always a uniform phenomenon and can take different forms. Expropriation may be “direct,” occurring when there is a physical seizure of property or the deprivation[3] of the owner’s proprietary rights. Additionally, there can be indirect expropriation, which occurs when the state interferes with the investor’s ability to exercise ownership, use, or disposal rights over the property without formally depriving them of those rights. In other words, direct expropriation occurs when the investor’s property or possession is transferred to the state or used by the state or a third party, whereas indirect expropriation occurs when the state deprives the investor of the economic benefits[4] derived from the investment.

Indirect Expropriation and Related Issues

Identifying cases of indirect expropriation is a rather problematic issue, as it largely depends on distinguishing the specific circumstances under which state regulatory measures may be considered expropriation and, accordingly, trigger the obligation[5]  to provide appropriate compensation. The state possesses the sovereign right to adopt regulatory measures, including the expropriation of private property, which is recognized under international law[6]  and enshrined in UN documents, among which notable references include the Declaration on the Establishment of a New International Economic Order and the Charter[7]  of Economic Rights and Duties of States.

According to the Multilateral Investment Guarantee Agency, “the nature of expropriation measures has changed: from direct expropriation (nationalization), which occurred in the 1960s[8], to indirect or ‘creeping’ expropriation in recent years.” Indirect expropriation takes place when, through the introduction of regulatory norms or the application of administrative measures, the state restricts an owner’s ability to use their assets and derive profit from them, limits or eliminates the legal possibility to transfer rights to such property, and/or otherwise negatively affects the value of the investor’s assets—while no formal transfer[9] of ownership to the state occurs.

Compliance of the Georgian legislative framework with internationally established standards on expropriation

A state’s interference with the private property of its own citizen or a foreign national does not, in itself, constitute a wrongful act. On the contrary, it is an expression of the state’s sovereignty and its rights over persons and property within its jurisdiction—an approach widely recognized at the international level. For example, in Libyan American Oil Company v. The Government of the Libyan Arab Republic, the tribunal examined Libya’s nationalization of oil companies and stated that, although the nationalization in that specific case was unlawful, nationalization in general is an expression of a state’s territorial sovereignty[10].

However, despite this sovereign right of the state, expropriation must be lawful and must comply with the standards and requirements established by international practice. Several general conditions have been recognized, and expropriation is considered lawful only when these conditions are met. These requirements are included in most international investment agreements, and for an expropriation to be lawful, all of them must be satisfied cumulatively. Specifically, expropriation must be carried out in accordance with the so-called four-part test:

1. a) for a purpose that serves the public interest;
   b)in a non-discriminatory manner;
   c) in compliance with due legal process;
   d) with the payment of prompt, adequate, and effective compensation[11].

Several laws within the Georgian legislative framework regulate this area. According to Article 7, paragraph 2 of the Law of Georgia on “Promotion and Guarantees of Investment Activity,” expropriation of an investment is permissible only in cases expressly provided by law, pursuant to a court decision, or in situations of urgent necessity defined by organic law, and only with appropriate compensation. This provision identifies the statutory grounds under which expropriation is considered lawful. The laws that determine the legality of expropriation are the 1997 Organic Law of Georgia “On the Procedure for Deprivation of Property for Public Need in Cases of Urgent Necessity,” and the 1999 Law of Georgia “On the Procedure for Deprivation of Property for Essential Public Need.”

According to Article 2, paragraph 1 of the Law of Georgia “On the Procedure for Deprivation of Property for Essential Public Need,” expropriation for essential public need is carried out on the basis of an order issued by the Minister of Economy and Sustainable Development of Georgia and pursuant to a court decision, in favor of a state authority, a local self-government body, and/or a legal entity under public or private law that is granted the right of expropriation in accordance with this law. Paragraph 2 of the same article lists the circumstances under which expropriation may be carried out[12].

These four criteria for the lawfulness of expropriation are also reaffirmed in several of Georgia’s bilateral investment treaties. For example, according to Article 5 of the Agreement between Georgia and the Republic of Austria on the Promotion and Protection of Investments, “Neither Contracting Party shall expropriate or nationalize an investment of an investor of the other Contracting Party, either directly or indirectly, nor take any measures having an equivalent effect (hereinafter referred to as ‘expropriation’), except where such measures are taken: (a) for the public interest; (b) on a non-discriminatory basis; (c) in accordance with due process of law; and (d) against prompt, adequate and effective compensation.”

Similar provisions appear in Georgia’s bilateral investment treaties with Japan, with the Republic of Estonia, and in other bilateral agreements.

The legislative framework discussed above is generally consistent with international standards for the protection of investments against unlawful expropriation. However, in the Georgian context, Article 20, Paragraph 6 of the Law of Georgia on State Property poses a problem. According to this provision, “If a privatization contract concluded for the purpose of privatizing state property is unilaterally terminated due to a violation of the privatization conditions stipulated in the contract, the privatized property shall return to state ownership, and any mortgage rights (or rights) of a third party registered on this property shall be nullified, provided that the relevant information reflecting the privatization obligations is recorded in the public registry before the property is encumbered by a mortgage. Furthermore, the state shall not compensate the acquirer for any amounts paid or expenses incurred.” This provision establishes a kind of sanction, which could arguably be regarded as tantamount to expropriation.

This provision was adopted in 2013 and carries significant risk if interpreted incorrectly and applied without proper regard to international standards for protection against expropriation. By its nature, the provision grants the state unlimited authority, without requiring any special justification, to terminate a contract in the event of any violation of investment conditions (without bilateral restitution). Under such circumstances, an investor has no claim against the state, while the state has the right to demand and seize the investments in full, without providing any compensation to the investor.

Given its nature, this arrangement should clearly be regarded as tantamount to expropriation and, consequently, must comply with the so-called “four-criteria test” discussed above. Improper use or interpretation of this provision poses a threat not only to the legal protection of international investments but also to property rights safeguarded by the Constitution of Georgia. In practice, it effectively eliminates the fundamental principle that expropriation should occur only with fair and full compensation.

Under such circumstances, it is essential that actions tantamount to expropriation by the state are not taken without compliance with the four-criteria test discussed above. Since the provision grants the state broad authority to disproportionately expropriate foreign investments, it is crucial that its proper interpretation takes into account that even a minor violation of the investment contract by the investor should not serve as a basis for imposing the sanctions specified in this article. Accordingly, in practice, when applying the provision, the court (or arbitration tribunal) must properly assess the severity and intensity of the contractual breach and avoid a superficial, purely literal interpretation. From the perspective of protecting foreign investments and safeguarding the investor’s property rights, the state, when applying and interpreting this and similar provisions, must be guided by the highest standards of expropriation protection.

[1] Decision of the First Chamber of the Constitutional Court of Georgia N1/2/384, Tbilisi, July 2, 2007

[2] Taking of property // United Nations Conference on Trade and Development. გვ.3 https://unctad.org/system/files/official-document/psiteiitd15.en.pdf

[3] Taking of property // United Nations Conference on Trade and Development. გვ.3 https://unctad.org/system/files/official-document/psiteiitd15.en.pdf

[4] Taking of property // United Nations Conference on Trade and Development. გვ.3 https://unctad.org/system/files/official-document/psiteiitd15.en.pdf

[5] Nikièma, S. H. Best Practices: Indirect Expropriation, March 2012, The International Institute for Sustainable Development

[6] Nikièma, S. H. Best Practices: Indirect Expropriation, March 2012, The International Institute for Sustainable Development

[7] Nikièma, S. H. Best Practices: Indirect Expropriation, March 2012, The International Institute for Sustainable Development

[8] World Investment and Political risk: 2011. Multilateral Investment Guarantee Agency

[9] World Investment and Political risk: 2011. Multilateral Investment Guarantee Agency

[10] https://jusmundi.com/en/document/decision/en-libyan-american-oil-company-v-the-government-of-the-libyan-arab-republic-award-tuesday-12th-april-1977

[11] For example, see:. https://www.energycharter.org/process/energy-charter-treaty-1994/energy-charter-treaty/

[12] a) for the construction of roads and highways; b) for the laying of railway lines; c) for the installation of pipelines for crude oil, natural gas, and petroleum products; d) for the construction of electricity transmission and distribution lines; e) for the installation of water supply, sewage, and stormwater drainage lines; f) for the installation of telephone lines; g) for the installation of television cables; h) for the construction of buildings and facilities necessary for public needs; i) for works required for national defense; j) for the extraction of mineral resources.