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Strasbourg, 18 August 2000
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CDL-JU (2000) 36
Or. Eng/fr.
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE
COMMISSION)
Description of the
Constitutional Court of Georgia
as well as précis published
in the Bulletin on Constitutional Case-Law
Georgia
Constitutional Court
Introduction
Georgia is an independent State with the political system of
a democratic republic.
The Constitutional Court of Georgia was founded on 24 July
1996 in accordance with Articles 83, 88 and 89 of the Constitution, adopted on
24 August 1995. Under the terms of Article 9 of the Law on the Constitutional
Court of Georgia, the Court's members take an oath before the President, the
Speaker of the Parliament and the President of the Supreme Court.
The Constitutional Court began to function on 1 September
1996.
I. Basic texts
- Constitution
of Georgia.
- Law on the
Constitutional Court of Georgia (adopted on 31 January 1996).
- Law on
Constitutional Proceedings (adopted on 21 March 1996).
- Law on
social guarantees for members of the Constitutional Court of Georgia (adopted
on 25 June 1996).
- Rules of
the Constitutional Court of Georgia.
II. Composition and Organisation
1. Composition
The Constitutional Court is an organ of constitutional
review.
The Constitutional Court is composed of nine judges. Three
members are appointed by the President, three are elected by a three-fifths
majority of members of parliament and three are appointed by the Supreme Court.
Members of the Constitutional Court serve a ten-year term of office. The
Constitutional Court elects its President from among its members for a
five-year term. The President may not be re-elected.
In accordance with the Constitution and the Law on
I.the Constitutional Court, members of the Court must:
1. be citizens
of Georgia;
2. be at least
35 years of age;
3. have a high
level of legal training.
The judges are independent and subject only to the
Constitution and the law.
Members of the Constitutional Court enjoy immunity. The
judges may be prosecuted or held in detention only with the consent of the
Constitutional Court.
2. Structure
The Constitutional Court is composed of a Full Court and two
Chambers. The nine judges of the Court form the Full Court, while each Chamber
is approved by the Full Court on presentation by the President of the
Constitutional Court. According to the Statute of the Constitutional Court,
other experts form the Private Office of the President, Vice-President and Secretary
of the Constitutional Court, who are responsible for the following departments
(situation on 1 September 1998):
- Department
of information analysis;
- Drafting
and editorial department;
- Staff
management group;
- Finance and
accounts group;
- Logistics
department;
- Advisory
group;
- Department
of international relations.
III. Powers
Under the provisions of the Constitution and the Law on the
Constitutional Court of Georgia, the Court decides:
1. whether the
laws of Georgia, the Rules of the Georgian Parliament and statutes issued by
the President of Georgia or by the authorities of Adjaria or Abkhazia are in
conformity with the Constitution;
2. on disputes
concerning the distribution of powers between different State bodies;
3. whether
political associations and their activities are in conformity with the
Constitution;
4. whether
referenda and elections have been held in conformity with the Constitution;
5. whether
statutes relating to the second chapter of the Constitution are in conformity
with the Constitution;
6. whether
international treaties and agreements are in conformity with the Constitution;
7. whether the
dismissal of an MP before the end of his/her term of office should be
recognised;
8. whether the
President of Georgia, the President of the Supreme Court, a government
minister, the Attorney-General, the Auditor General (Chairman of the Chamber of
Control) or board members of the National Bank have breached the provisions of
the Constitution.
If, following an application brought in a specific case, an
ordinary court finds that the Constitution has been breached by a law or rule
to which it has had to refer during that case, the court can suspend
proceedings and refer the matter to the Constitutional Court. The proceedings
can only be resumed after the Constitutional Court has given its decision.
However, if a law or other statute is found to be
unconstitutional, sentences and judgments previously pronounced by the Court on
the basis of those acts are not automatically set aside, but, according to the
legislation on procedure, enforcement of those decisions may be suspended.
Under the provisions of the Constitution and the Law on the
Constitutional Court, the Court deliberates on the basis of an application or
action by the President of Georgia, by one-fifth of the members of parliament,
by a court, by the supreme representative bodies of Abkhazia and Adjaria, by
the Defender of the People (Ombudsman) or by the defence counsel of a citizen.
IV. Nature and effects of decisions
The Constitutional Court takes decisions or deliberates (for
example on the impeachment of the President of Georgia and government
ministers) in the deliberation chamber.
An application or action is allowed if it is supported by
more than half of the participants in the sitting.
The Court's decision is signed by all judges present at the
meeting, irrespective of their individual opinion. Nevertheless, in adopting a
decision, all members reserve the right to a different opinion, which is
appended in writing to the minutes of the session. At the judge's request, such
an opinion may be published with the decision.
Following its signature, the decision is announced to the
chamber by the Chair of the session.
The Court's decisions are final. The statute or the part of
it found to be unconstitutional ceases to have effect as soon as the relevant
decision of the Constitutional Court is published.
Georgia
Identification:
GEO-1999-3-003
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c)
Second Chamber / d) 27/07/1999 / e)
2/77/11 / f) Malkhaz Mumladze and others v. the
President and the Ministry of Public Property Management of Georgia / g)
Adamiani da Konstitutsia (Official Gazette) / h)
.
Keywords of the Systematic Thesaurus:
3.9 General Principles - Rule of law.
3.12 General Principles - Legality.
5.1.2.3 Fundamental Rights - General questions -
Entitlement to rights - Natural persons.
5.2.32.4 Fundamental Rights - Civil and political rights -
Right to property - Privatisation.
5.3.3 Fundamental Rights - Economic, social and cultural
rights - Right to work.
Keywords of the alphabetical index:
Public venture, privatisation / Company shares, purchase by
employees / Creativity, intellectual freedom / Decree, annex.
Headnotes:
State ventures are to be privatised by transforming the
relevant facilities into joint stock companies. Thereon, state venture
employees must be given the right to participate. Privatisation carried out
otherwise is unlawful and in breach of the constitutional right to property.
Summary:
A scientific research institute in the form of a joint stock
company was included in the list of ventures subject to privatisation at
auction in decrees of the President and the Ministry of Public Property
Management. According to the law on the Privatisation of public enterprises,
public enterprises may be privatised once they are established as joint stock
companies.
A general meeting of the institute employees was convened
which voted in favour of transforming the institute into a joint stock company.
Although the company was never registered, it was privatised at a specialised
starting zero price auction without the participation of the institute
employees, who were dismissed and left without the benefits envisaged by
relevant laws and sub-legislative acts concerning the privatisation of state
property.
Former employees of the research institute lodged a
complaint with the Constitutional Court seeking a declaration of
unconstitutionality of the decrees in question. The applicants argued that
their right to the possession and acquisition of property, as well as their
right to labour and freedom of intellectual creativity, had been breached.
The Court ruled that the impugned decree was in conflict
with the right to property guaranteed by Article 21 of the Constitution. It
held that denying the advantages provided by legislation to public venture
employees in the course of the privatisation process fell foul of the
legitimate interests of the persons in question.
The fact that the institute employees were informed of the
public sale of the institute's shares did not alter the circumstance that the
privatisation of the facility had been carried out in an unlawful manner.
Privatising the institute before it had been transformed
into a joint stock company left the institute employees, who were entitled to
certain benefits under valid legislation, without the possibility of
participating in the purchase of company shares, since they did not exist, and
left them with no other choice than to submit complaints to courts of various
instances.
Another issue to be resolved by the Court was whether the
complainants' right to labour had been breached. The Court made clear that the
Constitution guarantees the freedom of labour, which is distinct from the right
to labour as stated by the complainants and implies the individual's right to
use his or her physical and mental faculties in work and to choose the area of
his or her activities. In addition, under an interpretation of Article 30, the
State no longer has an obligation to ensure full employment of its citizens.
The impugned acts did not stipulate for dismissal of the
institute employees. The Court concluded that it was not necessary to consider
the relevant .
The same reasoning led the Court to disregard the question
of a violation of the freedom of intellectual creativity.
The Court did not take the respondent's view that the source
of complaint was the annex to the contested Presidential decree, which
enumerates the public facilities to be sold at an auction, and that an
examination of the constitutionality of the decree itself should therefore be
discontinued. The Court held that the annex in question was an inseparable part
of the normative act and its conformity with the Constitution had to be
reviewed along with the disputed act.
Languages:
Georgian, English (translation by the Court).
Identification:
GEO-1999-2-002
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c)
Second Chamber / d) 23/02/1999 / e)
2/70-10 / f) Citizens Vano Sisauri, Tariman
Magradze and Zurab Mchedlishvili v. the President of Georgia / g)
Official Gazette / h) .
Keywords of the Systematic Thesaurus:
1.4.10 Constitutional Justice - The subject of review - Rules
issued by the executive.
1.4.13 Constitutional Justice - The subject of review -
Administrative acts.
3.12 General Principles - Legality.
4.6.2 Institutions - Executive bodies - Powers.
5.1.2.4.1 Fundamental Rights - General questions -
Entitlement to rights - Legal persons - Private law.
5.2.32 Fundamental Rights - Civil and political rights -
Right to property.
Keywords of the alphabetical index:
Property, possession / Co-operative, consumers /
Constitutional Court, jurisdiction.
Headnotes:
According to Article 21 of the Constitution property may be
deprived on the ground of social necessity in circumstances directly determined
by law, by a court decision or in case of urgent necessity determined by
organic law and if appropriate compensation is made. Thus alienation of
property of a public association by a governmental decree without any relevant
grounds infringes the universal right to property entrenched in the
Constitution since the members of the association are deprived of the
possibility to benefit from the facilities established by them over the years.
Summary:
Members of the Central Rural Union lodged a
constitutional complaint with the Constitutional Court requesting a declaration
of unconstitutionality of a decree issued by the Prime Minister in 1991. The
disputed act transferred rural fairs previously owned by the Central Rural
Union to the Ministry of Trade, claiming that the facilities were initially
owned and managed by the State.
The complainants argued that about 250 000 members of the
public association, who are co-owners of the Union property in association with
many other members, were deprived of the material gains made by them over the
years through rural activities. The fairs were alienated without the
complainants' consent and therefore constituted an unlawful deprivation of property
which violated their property rights.
The disputed act was not registered in the State Registry of
Normative Acts at the Ministry of Justice, which would allow the Constitutional
Court to examine the constitutionality of normative acts on an exceptional
basis, but the Constitutional Court held that considering the contents of the
act and its scope of regulation the constitutionality of the disputed act could
be examined.
In 1987 the joint decree of the Central Committee of the
Communist Party of Georgia and the Council of Ministers, relying on the
corresponding decree of the Soviet Communist Party and the Council of
Ministers, which provided guidelines for the promotion of consumer cooperation,
transferred the rural fairs previously managed by the Ministry of Trade to the
Central Rural Union, thus fulfilling the State's obligation to maintain
consumer co-operation ventures.
The Constitutional Court ruled that the Prime Minister was
not empowered to invalidate a legal act of the then supreme body by an
individual, personal decree.
As for the respondent's assertion that the transfer of
facilities had been implemented in an unlawful manner, violating the rules of
transfer of state property to public and private entities, the Constitutional
Court noted that the later regulations on this matter contained different
provisions, which permitted free of charge alienation of state property.
The Constitutional Court held that the sale or free transfer
of facilities implies alienation of ownership rights over the property in
respect of this particular case. Moreover, since 1987 the Central Rural Union
acted as the sole owner of the fairs, executing the operational and financial
management of relevant facilities at its charge.
The applicants' request that they be entitled to receive
their share of profit from the privatised rural fairs established in the form
of joint stock companies was not satisfied however, as consideration of
property disputes does not fall under the jurisdiction of the Constitutional
Court.
Languages:
Georgian, English (translation by the Court).
Identification:
GEO-1999-1-001
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c)
First Chamber / d) 15/07/1998 / e)
1/6-58, 60, 62, 67 / f)
/ g)
/ h) .
Keywords of the Systematic Thesaurus:
2.2.1 Sources of Constitutional Law - Hierarchy - Hierarchy as
between national and non-national sources.
2.1.1.14 Sources of Constitutional Law - Categories - Written rules -
Other international sources.
3.9 General Principles - Rule of law.
3.12 General Principles - Legality.
3.21 General Principles - Prohibition of arbitrariness.
5.1.2.4.1 Fundamental Rights - General questions -
Entitlement to rights - Legal persons - Private law.
5.2.32 Fundamental Rights - Civil and political rights - Right
to property.
5.2.32.2 Fundamental Rights - Civil and political rights -
Right to property - Nationalisation.
5.3.9 Fundamental Rights - Economic, social and cultural
rights - Freedom of trade unions.
Keywords of the alphabetical index:
Property, right to disposal / Trade union, members,
contributions / Compensation / Normative act, quality.
Headnotes:
Acts of the executive issued between 1992 and 1994 are
unconstitutional since they unlawfully deprive trade unions of their property.
Article 21 of the Constitution permits deprivation of property on the grounds
of social necessity in circumstances directly determined by law, by a court
decision or in case of urgent necessity determined by organic law. If
appropriate, compensation is to be given.
Summary:
Members of the Georgian Association of Trade Unions filed a
complaint with the Constitutional Court requesting a declaration of
unconstitutionality in respect of normative acts issued by the supreme
executive bodies of state power which, in their opinion, unlawfully deprived
them of their property. The disputed acts of the executive transferred the
facilities and enterprises previously owned by the Council of Trade Unions to
the Ministry of Defence, the Ministry of Urbanisation and Construction Affairs
and a local authority body, on the grounds that the trade unions were unable to
operate the facilities.
The complainants argued that as members of a public
association - a trade union - they are the co-owners of property of the trade
union in association with other members of the organisation. Where the property
is owned by a public association, only members of this association are entitled
to dispose of the property. The property was alienated without the
complainants' consent and this unlawful deprivation of property violated their
property rights.
The complainants' representative noted that the disputed
normative acts were issued before the adoption of the new Constitution and were
not properly brought in line with the Constitution before 25 November 1997, as
required by Article 106.2 of the Constitution. The Constitution allows
restriction of property rights according to procedure determined by law and
only if appropriate compensation is paid, i.e. the Constitution does not permit
nationalisation without compensation. In addition, the complainants asserted
that the disputed normative acts contradict the Act of Restoration of National
Independence which recognises the prevailing force of international law over
domestic law on the territory of Georgia. The Universal Declaration of Human
Rights is one such international act, Article 17 of which ensures the right to
own property alone and in association with others. Property of trade unions is
constituted by contributions made by its members. Members of a trade union are
co-owners who exercise their property rights through their elected
representatives to the congress of a trade union. The complainants are members
of the Trade Union and their property rights, particularly the right to own and
dispose of property, are violated (according to the Civil Code of Georgia, the
issue of ownership has become a matter of fact).
One of the four disputed normative acts was not registered
in the State Registry of Normative Acts at the Ministry of Justice, although
the Constitutional Court held that considering the contents of the act and its
scope of regulation, the constitutionality of the disputed act could be
examined.
The Constitutional Court held that the disputed acts are
normative and that they violate the complainants' property rights. Accordingly
they are contrary to Article 21.1 of the Constitution.
Substantive review of the case indicated that the facilities
which were alienated were the property of trade unions and that in violation of
valid legislation they were transferred to bodies of State power. The fact of
unlawful alienation of property was confirmed by the inter-institutional
commission set up in accordance with the Decree of 15 February 1996 of the
President of Georgia to examine the legality of the acts of the Cabinet of
Ministers of Georgia. Notification of 27 May 1998 of the commission points out
that many acts issued between 1992 and 1995 by the Cabinet of Ministers were
recognised as unlawful in the process of examination, including those which
deal with the transfer of property of trade unions to governmental structures.
On 4 July 1997 the President of Georgia issued a decree on the invalidation of
unlawful legal acts issued by the Cabinet of Ministers between 1991 and 1995
and on additional measures to be undertaken for the protection of legality in
the executive bodies of State power.
Article 26 of the Law on Trade Unions provides that the
State shall protect the rights of trade unions in accordance with legislation.
A similar provision is made under the Law of 14 June 1994 on Public
Associations of Citizens. In addition, the Cabinet of Ministers adopted a
special Decree on the Protection of Property of Trade Unions of the Republic of
Georgia which prohibited unlawful actions against trade unions and alienation
of their property without due cause. Extraordinary conditions in which the
government must adopt non-standard decisions are nonetheless envisaged in
respect of the disputed acts.
The Chamber noted that new trade unions are currently being
formed. This process started at the time of the collapse of the Soviet Union
and is continuing in the conditions of profound changes of the social and
economic order in the country. The formation of trade unions is an internal
affair of a public entity.
The complainants have been members of Georgian trade unions
since the Soviet period and they enjoy property rights over property of the
Soviet as well as Georgian trade unions in association with other members,
which implies the right to use and alienate property as provided for by Article
170.1 of the Civil Code of Georgia. The right to alienate property is exercised
through the representatives of members in the relevant organs of the
organisation.
According to Article 5.1 of the Law of 2 April 1997 on Trade
Unions, trade unions are independent of state bodies. According to Article 22.1
of the mentioned law, "trade unions and associations of trade unions
possess, use and alienate their property and finances in accordance with their
statute. Property and financial resources of the trade unions are inalienable.
No body shall be empowered to alienate, transfer or deprive the trade union of
property without consent of the collegial (elected) organ of the trade union,
except for cases determined by law".
The disputed acts deprived the trade unions of property and
accordingly property rights of its members were breached. Therefore the
property right ensured by Article 21.1 of the Constitution is violated. This
constitutional provision specifies that the right to inherit and own property
shall be recognised and guaranteed. The universal right to property and its
inheritance, acquisition and alienation shall not be abrogated.
Languages:
Georgian, English (translation by the Court).
Identification:
GEO-1998-2-002
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c)
Second Chamber / d) 22/05/1998 / e)
2/59-8 / f) Lutseta Tapliashvili v. the President
of Georgia / g) Official Gazette / h)
.
Keywords of the Systematic Thesaurus:
1.1.4.3 Constitutional Justice - Constitutional jurisdiction -
Relations with other institutions - Executive bodies.
5.2.27.2 Fundamental Rights - Civil and political rights -
Right to family life - Succession.
5.2.32.1 Fundamental Rights - Civil and political rights -
Right to property - Expropriation.
5.2.32.4 Fundamental Rights - Civil and political rights -
Right to property - Privatisation.
Keywords of the alphabetical index:
Housing, privatisation / Privatisation, special instructions
/ Constitutional Court, jurisdiction.
Headnotes:
A normative act by the executive
regulating issues of privatisation in favour of tenants does not contradict the
constitutional right to property enshrined in Article 21.1 of the Constitution.
Privatisation of premises which were registered as public property at the time
of privatisation does not constitute a ground for declaring the relevant
normative act unconstitutional. The Constitutional Court is not empowered to
instruct other State authority bodies to prohibit the privatisation of houses.
Summary:
The Cabinet of Ministers issued a decree which entitled
tenants to obtain privatisation of premises owned by the State. An individual
lodged a claim with the Constitutional Court and asserted a violation of her
constitutional right to property ensured by Article 21.1 of the Constitution,
stating that the disputed act empowered tenants to unlawfully obtain
privatisation of premises which were previously owned by her grandfather and of
which he had been deprived by the Soviet authorities in 1930. The plaintiff
also requested the Court to provide the responsible body with special
instructions in order to prohibit the privatisation of those premises which are
subject to proceedings in courts of ordinary jurisdiction.
The Court held that the disputed normative act deals with
only those apartments and premises which were registered as State property at
the time of privatisation. Families that paid rent and enjoyed tenancy rights
were entitled to have the premises and apartments privatised under the decree.
Therefore, if a court of ordinary jurisdiction held that the premises were
unlawfully privatised by tenants who were moved into the house in violation of
the owners’ property rights, the contract of privatisation must be annulled.
Pursuant to the Constitution and organic laws, the
Constitutional Court is not competent to instruct any State authority to impose
prohibitions.
Languages:
Georgian, English.
Identification:
GEO-1998-1-001
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c)
Second Chamber / d) 22/01/1998 / e)
2/59-8 / f)
/ g)
/ h) .
Keywords of the Systematic Thesaurus:
4.7.7 Institutions - Jurisdictional bodies -
Ordinary courts.
5.1.2.4.1 Fundamental Rights - General questions -
Entitlement to rights - Legal persons - Private law.
5.2.32 Fundamental Rights - Civil and political rights -
Right to property.
Keywords of the alphabetical index:
Entrepreneurship / Limited liability companies / Share
withdrawal.
Headnotes:
Contributions of the company partners in the common stock of
a limited liability company are the property of the latter, once the company
has obtained the status of a legal person. The company partners participate in
the management of the property of the company and its activities in proportion
to their share in the common stock. A company partner may withdraw his or her
share and appeal to court against the partners in the company within the limits
of law.
Summary:
Share holders of a limited liability company appealed to the
Constitutional Court asserting the unconstitutionality of certain articles of
the Entrepreneurship Law, considering that the disputed norms deprived them of
the constitutional right to property since they could not withdraw their share
from the common company stock. Moreover courts of ordinary jurisdiction
rejected their civil law claims against the decisions of the company partners
refusing their request on share withdrawal. The claimants contemplated that the
courts had unreasonably invoked scientific-practical commentaries of legal
scholars while deciding upon their cases.
The Constitutional Court held that contributions of company
partners in the common stock of a limited liability company are the property of
the company itself once it has obtained the status of a legal entity. A limited
liability company is the sole owner of the company capital. The partners
participate in the management of the company and receive benefits from it in
proportion to their contribution.
The applicants complained that contributions might be
withdrawn from the common stock of the company only with the consent of the
meeting of partners. However, the Entrepreneurship Law does not allow the
company partners to elaborate a statute which would empower the meeting of the
company partners to decide upon share withdrawal. Meanwhile Article 15.2 of the
Law entitles limited liability company partners to appeal against decisions of
the company partners within two months from the date of the drafting of the
minutes of the meeting.
As regards the application of scientific-practical
commentaries on the Enterprenuership Law by courts of ordinary jurisdiction,
the Constitutional Court held that legislation does not empower it to
scrutinise this issue.
Languages:
Georgian.
Identification:
GEO-1997-3-004
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c)
Plenary / d) 29/12/1997 / e)
2/35 / f) 48 members of the Parliament of
Georgia v. Parliament of Georgia / g) Official Gazette / h)
.
Keywords of the Systematic Thesaurus:
3.1 General Principles - Sovereignty.
3.4 General Principles - Separation of powers.
4.5.9 Institutions - Legislative bodies - Relations
with the executive bodies.
4.15 Institutions - Transfer of powers to
international institutions.
5.3.2 Fundamental Rights - Economic, social and cultural
rights - Right to be taught.
Keywords of the alphabetical index:
Education / Education, free, limits / International
organisation, agreement.
Headnotes:
The Law on Education, which defines an examination as the
means by which students entitled to free secondary education are to be
selected, and charges the Ministry of Education with an obligation to elaborate
the conditions under which the examination is to be conducted, does not
delegate parliamentary powers to executive bodies. The Ministry of Education
determines only the conditions for conducting the selective examination but
does not lay down the rules for how to select who is entitled to free secondary
education. Thus, this provision of the law is not contrary to the Constitution,
which states that everyone has the right to receive free education to the
extent defined by the rules of law.
However, the provision of the law that relates the
introduction of free education to agreements made with international financial
organisations limits the sovereignty of the country.
Summary:
Article 12 of the Law on Education provides that a limited
number of free places in secondary schools are to be attributed according to
the results of a selective examination. It is the task of the Ministry of
Education to define the conditions for conducting the examination. Article 35
of the Constitution states that citizens have the right to receive free
education in State secondary, professional and higher educational institutions
to the extent defined by the rules of law.
A group of parliamentarians lodged a claim with the
Constitutional Court asserting that the aforementioned provisions of the law
violated the principle of separation of powers, in contradiction with Article
48 of the Constitution, which specifies that parliamentary powers may not be
delegated to other bodies. The plaintiffs also argued that the Law on Education
infringes requirements of the Law on Normative Acts as it does not enumerate
all the legal acts that lose their effect upon the entry into force of the Law
on Education.
The Constitutional Court ruled that of the many possible
means of selecting students entitled to receive free secondary education, the
provisions of the Law on Education determine one: a selective examination.
Article 35.3 of the Constitution does not require that the parameters of the
chosen procedure be defined by the legislature, but only that the legislature
determine the procedure to be used. The Law on Education obliges the Ministry
of Education to determine the conditions of conduct of the examination itself,
but not the basic rules governing who is to receive free secondary education.
Therefore the legislative powers of the Parliament were not delegated and
accordingly, the disputed articles of the Law on Education do not violate the
Constitution.Article 89 of the Constitution, which defines the competence of
the Constitutional Court, does not envisage consideration of disputes arising
from conflicts between normative acts.
The provision of the Law stipulating that free education is
to be ensured by agreements with international financial organisations until
2003 confines the sovereignty of the country, as its mandatory nature means
that the State cannot introduce free education before 2003 without the consent
of international financial organisations. This violates Article 48 of the
Constitution, which states that Parliament is the supreme representative body
of the country, exercising legislative power, determining the main directions
of domestic and foreign policy, exercising general control over government and
implementing other functions within the framework defined by the Constitution.
It also violates other constitutional provisions guaranteeing the sovereignty
of the country.
Languages:
Georgian, English.
Identification:
GEO-1997-2-003
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c) / d) 30/05/1997 / e)
1/4/28 / f) Citizen Irakli Kordzakhia v. the
Parliament of Georgia / g) / h) .
Keywords of the Systematic Thesaurus:
1.7.6 Constitutional Justice - Effects - Influence on State
organs.
4.9.7 Institutions - Public finances - Taxation.
5.2.26 Fundamental Rights - Civil and political rights -
Right to private life.
5.2.35 Fundamental Rights - Civil and political rights -
Rights in respect of taxation.
Keywords of the alphabetical index:
Bank account, disclosure to tax inspection / Banking secret,
natural persons / Banking secret, legal persons.
Headnotes:
Only the entrepreneurs together with
the legal entities are submitted to registration at the State taxation bodies. Physical
persons who are not entrepreneurs are not submitted to such registration and
accordingly the banks inform the relevant Taxation Inspections about the
opening of the accounts of entrepreneurs and legal entities only.
Summary:
The plaintiff, a Georgian citizen, opened a current currency
account at a commercial bank, of which the bank informed the Taxation
Inspection. The bank acted on the basis of Article 12.1.a of the Law "On
the Basics of The Taxation System", which determines that banks, financial-credit
organisations and other similar institutions are obliged to inform the State
Tax Inspection within a five-day period after the opening of a new account
about this fact and about any other existing accounts of the taxpayer.
The claimant is of the opinion that this norm is contrary to
Article 17.2 of the Law "On the Activity of Commercial Banks" of 1996
which reads: "information ... about the operations and accounts of
individuals are given to Taxation Agencies ... only by decision of the
Court". Proceeding from this, the plaintiff considers that his rights
guaranteed by Articles 20.1, 39 and 41.2 of the Constitution are violated:
"Every individual's private life ... [is] inviolable" (Article 20.1),
"the Constitution does not deny other universally recognised rights which
are not specifically stated but are the natural outcome of the principles
contained within the Constitution" (Article 39), "Information
existing in official papers connected with ... finances ... of an individual
... are not available to other individuals without the prior consent of the
affected individual, except in cases determined by law ..." (Article
41.2). In the claimant's point of view, the first two points define the right
to the banking secret. The plaintiff requested that the disputed norm be
annulled.
The Court found that the plaintiff does not belong to the
category of entrepreneurs and legal entities and, so, the disputed norm does
not extend its application on him and it does not violate his constitutional
rights. Therefore, it was clarified that the bank does not inform the Taxation
Inspection about the opening of the accounts of physical persons who are not
entrepreneurs. The plaintiff in this particular case, had brought forward an
artificially created case in order to create a precedent.
The Court did not satisfy the claimant's constitutional
claim, but during the consideration of the case, the Court found some
imprecision and inconsistency with some norms of valid taxation legislation.
Several ways of interpreting these norms have been revealed. Therefore, the
Court requested the Parliament of Georgia to take these circumstances into
consideration in the process of reviewing the draft Tax Code.
Languages:
Georgian.
Identification:
GEO-1997-1-002
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c)
Second Chamber / d) 25/03/1997 / e)
2/31-5 / f) Citizen L. Purtskhvanidze v.
Parliament of Georgia / g) Official Gazette / h)
.
Keywords of the Systematic Thesaurus:
4.7.1 Institutions - Jurisdictional bodies -
Jurisdiction.
5.2.32 Fundamental Rights - Civil and political rights -
Right to property.
Keywords of the alphabetical index:
Residence, tenancy contract, eviction.
Headnotes:
Article 154 of the Residential Code of Georgia provides that
a tenancy contract may only be terminated on the basis of the owner's demand if
a Court determines that the owner or members of his or her family may use the
apartment for their personal needs. This provision is unconstitutional since it
prevents owners from exercising their right to property, in particular their
right to possess, use and dispose of property, which is entrenched in Article
21 of the Constitution of Georgia.
Summary:
The Supreme Court of Georgia had rejected a civil claim by
the plaintiff for the eviction of tenants from his private apartment holding
that under Article 154 of the Residential Code of Georgia an owner may only
suspend a tenancy contract following a court's verification that the premises
are urgently required for the personal needs of the owner and members of his
family. This requirement was not fulfilled.
Following the rejection of this claim, the plaintiff
appealed to the Constitutional Court against the unconstitutionality of Article
154 of the Residential Code as it was in conflict with Article 21 of the
Constitution which ensures the universal right to property, and in particular
the right to dispose of property freely.
Although Article 21.2 of the Constitution provides that the
restriction of the right to property is permissible in cases of public
emergency as provided for by the law, in the present case the Constitutional
Court held that there was no sufficient social necessity for the restriction of
the constitutional right.
Languages:
Georgian, English.
Identification:
GEO-1997-1-001
Full text: English
a) Georgia Georgia
/ b) Constitutional Court / c)
First Chamber / d) 20/02/1997 / e)
1/3/21 / f) Citizen O. Zoidze v. President of
Georgia / g) Official gazette / h)
.
Keywords of the Systematic Thesaurus:
3.4 General Principles - Separation of powers.
4.6.2 Institutions - Executive bodies - Powers.
5.2.32 Fundamental Rights - Civil and political rights -
Right to property.
5.2.35 Fundamental Rights - Civil and political rights -
Rights in respect of taxation.
Keywords of the alphabetical index:
Government, taxation, imposition.
Headnotes:
According to Article 94 of the Constitution taxes and duties
must be paid in the amount and order defined by law. Thus the imposition of
taxes by the Executive violates the principle of separation of powers and
infringes the constitutional right to property since Article 94 of the
Constitution empowers only the legislature to impose taxes and duties and to
define rules for their payment.
Summary:
The plaintiff, a Georgian citizen, appealed to the Constitutional
Court of Georgia against the unconstitutionality of the temporary regulation on
Imposition of Tax on Environmental Pollution and Rules of Payment adopted by
the Government, and referred to Article 94 of the Constitution which provides
that taxes and duties must be paid in the amount and order defined by law.
Article 21 of the Constitution ensures the right to property and tacitly
empowers the legislature to protect property from illegal encroachment against
it. Thus the imposition of unconstitutional taxes breaches the right to
property.
The Constitutional Court holds that the adoption of the
normative act by the Executive, which defines the amount and rules of payment
of a certain tax, is impermissible and in conflict with Article 94 of the
Constitution; additionally it violates the principle of separation of powers
enshrined in Article 5 of the Constitution.
Thereto Article 106.2 of the Constitution states that the
President and Parliament of Georgia undertake to promulgate and ensure the
compliance of normative acts with the Constitution and legislation of Georgia
within a two-year term from the Constitution's entry into force. In this
respect the Constitutional Court indicated that Article 106 of the Constitution
does not provide for the unconditional enforcement of unconstitutional legal
acts for two years; this would otherwise prevent the Constitutional Court from
considering the constitutionality of such normative acts.
Languages:
Georgian, English.
Identification:
GEO-1996-3-001
Full text: English
a) Géorgie Géorgie
/ b) Constitutional Court / c)
Second Chamber / d) 05/12/1996 / e)
2/3-13 / f)
/ g)
/ h) .
Keywords of the Systematic Thesaurus:
4.6.11 Institutions - Executive bodies - The civil
service.
5.2.9.2 Fundamental Rights - Civil and political rights -
Procedural safeguards and fair trial - Access to courts.
Keywords of the alphabetical index:
Civil servant, labour disputes / Hierarchical order.
Headnotes:
Article 213 of the Labour Code which provides that certain
categories of civil servants are to have labour disputes settled by their
superiors and not by the courts is unconstitutional, since it prevents these
civil servants from exercising their right to appeal to court, which is
provided for in Article 42.1 of the Constitution.
Summary:
The plaintiff, a former detective of the main military
prosecutor's office of Georgia, was dismissed from his office. The plaintiff
claimed his dismissal to be unlawful and appealed to a district court of
Tbilissi. The court did not accept the appeal, holding that under Article 213
of the Labour Code, the claim of a civil servant who has been elected,
appointed or designated to a position by a supreme State body relating to his
or her dismissal or transfer to another position or the imposition of disciplinary
sanctions should be considered by that person's superior. This rule is also
applicable to disputes concerning judges, prosecutors, their deputies and
assistants and detectives of the prosecutor's office.
Following the rejection of his claim by the district court,
the plaintiff appealed to the Constitutional Court about the
unconstitutionality of Article 213 of the Labour Code. During the course of the
proceedings, the plaintiff increased the scope of his claim and demanded that
Article 214 of the Labour Code be declared unconstitutional as well. Article
214 states that where a civil servant is restored to his or her former
position, he or she should receive a salary for the period of dismissal, as
long as this period does not exceed one year.
The Constitutional Court held that Article 213 of the Labour
Code was unconstitutional, since it infringed the right of a person to appeal
to court, which contradicted Article 42.1 of the Constitution.
In respect to Article 214 of the Labour Code, the Constitutional
Court considered that the claim of unconstitutionality relating to this Article
was unjustified.
The Constitutional Court decided that the declaration of
Article 213 of the Labour Code as unconstitutional will leave the task of
amending Article 214 and other related articles of the Labour Code.
Languages:
Georgian, English (translation by the Court).
