Five decisions of the Constituional Court of Georgia appeared Bulletin on Constitutional Case-Law
By Levan Abramishvili
Friday, May 24
The electronic Bulletin on Constitutional Case-Law ("e-Bulletin") is produced by the European Commission for Democracy through Law, better known as the Venice Commission (VC). The e-Bulletin regularly reports on the case-law of constitutional courts and courts with equivalent jurisdiction in Europe and beyond.
The e-Bulletin is sent to liaison officers and to subscribers by e-mail three times a year, each mailing reports on the most important case-law gathered during a four-month period.
The first case that made it onto the Bulletin is the the Constitutional Court decision of July 30, 2018, where the Constitutional Court recognized that the use of marijuana is protected by the constitutional right as long as it doesn’t harm third persons of the society, as guaranteed by Article 16 of the Constitution.
According to the decision, a ban on the use of marijuana as a means to prevent its distribution serves the legitimate goal of protecting the well-being of users. Nevertheless, the role of an individual user in the distribution of marijuana and threats emanating from individual use are very minimal. Blanket restriction on the use of marijuana is not proportionate to achieving the legitimate purpose and violates the Constitution.
The Constitutional Court was actively involved in various public discussions about the topic, in order to accurately asses the decision and its alignment with the consitution. It is noteworthy that this decision was extensively covered by local and international media.
The second decision that appeared on the VC’s Bulletin is the one regarding the special treatment of the Georgian Apostolic Autocephalous Orthodox Church from the Government.
A group of religious organisations filed constitutional complaints, in which they challenged certain provisions of the Tax Code and the Law on State Property.
Under this legislation, the construction, restoration and painting of churches and cathedrals commissioned by the Patriarchate are exempted without credit from Value Added Tax (VAT).
The provisions also allow for the transfer, free of charge, of state-owned property to the Georgian Orthodox Church.
The applicants contended that the granting of the VAT exemption and the conveyance without charge of state-owned property solely to the Georgian Apostolic Autocephalous Orthodox Church amounted to discriminatory treatment in violation of the constitutionally guaranteed right to equality.
The Court ruled that the constitutional provision that acknowledges the outstanding role of the Georgian Apostolic Autocephalous Orthodox Church does not imply the outright bestowal of any privileges upon this particular church; this would vitiate the essence of the constitutional right to equality. Such constitutional recognition is connected with the church’s historical importance and does not serve to establish legal privileges for Orthodox Christianity in the present day.
Another decision regarding religion appeared on the Bulletin. Legal provisions which excluded from the state’s monument conservation regime objects of cultural significance which were under the ownership of religious organisations were ruled unconstitutional.
Although the provisions served an important legitimate aim of facilitating the realisation of the freedom of religion, the practising of religious rituals did not conflict with the maintenance of such monuments. They could even result in the monuments being damaged for no good reason.
The decision regarding the controversial change in the law that prevented foreign nationals buying agricultural land also appeared on the Venice Comission’s Bulletin.
The Parliament of Georgia temporarily suspended the operation of a rule which allowed a foreign citizen to own agricultural land in Georgia. This suspension was intended to last until recent changes to the Constitution came into force on 16 December 2018, which did not allow foreign citizens to own agricultural land.
The Court ruled that the changes to the Constitution could not be considered as being integral to the national constitutional framework until they took effect. Amendments to the Constitution that come into force at a later date are not meant to influence the scope of the constitutional right to property as it is today.
The final ruling that appeared on the Bulletin is regarding the revision of court decisions.
The applicant of the case argued that the Civil Procedure Code allowed for a final court decision to be revised and overturned on the basis of newly discovered facts at a court session without an oral hearing.
The Constitutional Court acknowledged that the Constitution implies the finality of a court decision as an essential guarantee of the constitutional order. However, the Constitution also protects the rights of an individual to question a final court decision if the necessary circumstances exist. The Constitutional Court noted that the reversal of a final court decision would restrict the individual right of an applicant in a civil case if the incorrect nature of such judicial decision was not appropriately established.
It would, in the Constitutional Court’s view, have been less restrictive if the law had allowed for judges to determine, on a case-by-case basis and in the fair interest of the parties, the extent to which the final court decision should be overturned. The Constitutional Court found that the provisions in question disproportionately restricted the applicant’s right to a fair trial. It pronounced them unconstitutional.
It is important for the Constitutional Court of Georgia that its cases made into the high-ranking Bulletin, which ensures allows judges and constitutional law specialists from all over the world to be informed quickly about the most important judgments rendered in the field of constitutional justice.
The main purpose of the e-Bulletin on Constitutional Case-Law is to foster an exchange of information and ideas and to assist national judges in solving difficult questions of law, which often arise simultaneously in courts of different countries.