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The Coalition for an Independent and Transparent Judiciary intends to provide comments on the package of amendments initiated by the Human Rights and Civil Integration Committee of the Parliament of Georgia to the Organic Law on the Constitutional Court of Georgia and the Law of Georgia on Constitutional Proceedings.

These changes address the following issues: 

● Decision of the Constitutional Court comes into effect upon its publication in the Georgian Legislative Herald – the Body under the governance of the Ministry of Justice and not upon public announcement of the decision in the courtroom, as established by the effective legislation and the Constitutional Court practice. In addition, decision of the Constitutional Court should be accompanied with the signatures of all members of the Constitutional Court that took part in the case review, as well as with the judge’s concurring or differing opinion (if any) in writing. Refusal to publish decision of the Constitutional Court at the webpage of the Georgian Legislative Herald shall be allowed if it is submitted with violation of the aforementioned requirements.

● A member of the Constitutional Court shall not be assigned to take part in review of the new case if less than 3 months are left prior to expiry of his/her  office term.

● Prior to making final decision by the Constitutional Court, the disputable provision can be suspended only by the Constitutional Court with its full composition (plenary session). Pursuant to the effective legislation, the authority to make decision on suspending the validity of the provision shall belong to the Board of the Constitutional Court consisting of four judges.

● Instead of the equal allocation principle of cases among the Boards of the Constitutional Court the case distribution by sequence is becoming mandatory. Selection of speaker judges will be conducted through automatic, electronic distribution system. The changes will affect the procedure for election of the Chairman, Deputy Chairmen and Secretary of the Constitutional Court. Also, the procedure for coming to office of a newly elected member of the Constitutional Court is specified.

The Coalition repeatedly noted that the need for reforms with respect to the judicial system, including the Constitutional Court, does not represent the subject of criticism or unexpected event. However, it is vital that changes do not create a feeling that the reform initiated by the Government is determined by dissatisfaction with the content of the specific decision of the Constitutional Court and represent sort of response from the ruling political party against activities of the Constitutional Court. The reason for reforms of the Constitutional Court or/and any change should not be dissatisfaction of the legislative and executive government with activities of the Constitutional Court and content of its decisions.

In addition, it is important that implemented/ongoing reforms in the judicial system led by the other branches of the government are adequately reviewed with the court and its position is considered in planning and implementing reform. Opinion of the Venice Commission of March 12, 2016 states that it is a common feature of the European constitutional culture that constitutional courts may comment on reform proposals, which concern the Court itself. According to the Venice Commission, in many cases they are even involved in drafting groups. The reason for such inclusion is to obtain additional input and expertise. Unfortunately, the presented amendments were drafted behind the closed door without involvement of the Constitutional Court and Civil Sector as well as respective reviews and discussions.

1. Entry into force of the Constitutional Court Decisions from the moment of their publication in the Legislative Herald will endanger independent and unbiased constitutional justice and will limit human rights unlawfully. 

It should be noted that the issue of entry into force of the Constitutional Court Decision became important after the Court decision made on Gigi Ugulava’s case. Minister of Justice stated that the decision of the Constitutional Court should have become effective after publication in the Legislative Herald and there were procedural violations made by the Court.

The initiated draft amendment endangers exercising effective constitutional control independently from the other branches of the government, since the court links effective date of the decision with its publication by the agency subordinated to the executive government. It should be noted that in response to the Minister of Justice, the Constitutional Court also published its statement. According to the Court, pursuant to the Georgian legislation and Constitutional Court Practice of Georgia, the decision of the Court becomes effective upon its announcement in the courtroom, it does not and should not depend on its publication by the executive government. Announcement of the decision in the Legislative Herald ensures maximum availability of the decision and it should not be considered as a precondition for entry of the decision into force.

In this context it is important to note as well that by initiated changes the Legislative Herald becomes authorized not to publish court decision if it is not accompanied with signatures of all judges taking part in case review and judge’s concurring or differing opinion (if any).

It is clear that such change is motivated by events following announcement of the decision on Gigi Ugulava’s case, when one judge of the Constitution Court was refusing to sign the decision. However, the decision signed by eight members of the Constitutional Court entered into force upon its announcement in the courtroom, based on which the Tbilisi City Court released Gigi Ugulava from the pretrial detention.

This fact was followed by negative responses from the Minister of Justice who announced changes initiated by the Human Rights Protection Committee under this legislative package.

The Coalition in this review does not intend to assess the circumstances around this specific case, though the initiated amendments unambiguously show the risks on the side of judges in minority to impede effective enforcement of the decision made by majority of the court members, especially in the case when immediate entry into force of the decision has the critical importance for realization of the defendant’s rights.

 

2. If a member of the Constitutional Court is prohibited from taking part in the review of a new case, when less than 3 months are left before expiry of his/her office term, the judge’s authority, the 10-year period for which is provided in the Constitution, will be limited, thereby violating the Constitution. Moreover, the Court will not be able to exercise its powers with respect to its specific competences.

The provision provided for in the draft law should be assessed negatively, according to which the member of the Constitutional Court shall not be assigned to take part in review of a new case if less than 3 months are left before expiry of his/her office term.

Pursuant to the Georgian Constitution, the term of office for judges of the Constitutional Court is 10 years, which implies adequate fulfillment of the authority within such term. In addition, most importantly such change may endanger effective protection of plaintiff’s rights in the court. In particular, on September 30, 2016, 10 –year office term expires for 4 judges of the Court. Respectively, if there are only five judges available to review new cases, during the last three months there will be only five authorized judges to make decision on new cases. During this period even if irrevocable damage is inflicted to the plaintiff the disputable norm will be impossible to suspend, since according to changes only the Board shall have such authority. The Board itself is authorized to make decision if at least 6 judges take part in the case review.

In addition, special attention needs to be focused on the fact that the Constitutional Court has special competences in the light of which the limited timeframe is provided under the legislation for dispute resolution. One of the important competences is review of disputes related with elections. In particular, pursuant to the effective legislation, the period for review of the constitutional appeal on constitutionality of elections or referendum to be conducted on the basis of respective regulatory provisions shall not exceed 30 days from the moment of filing an appeal to the Constitutional Court.  According to these amendments, in fact, the Constitutional Court is deprived of the opportunity to exercise the authority granted under the Constitution, especially as the three-month limitation of judges coincides with the pre-election period, which raises doubts about political motivation of amendments. In addition, it shall not be permitted to leave the election process without court supervision, which would raise suspicion about legitimacy and constitutionality thereof.

3. Suspension of the disputable norm only with the involvement of the full composition of the Constitutional Court may complicate effective operation of the Court in some cases.

  

Effective and prompt operation of the Constitutional Court is complicated by the initiated amendment on suspending the provision prior to making the final decision. Under the effective law, decision on suspending the validity of the provision is made directly by the Board that reviews the case (consisting of 4 judges), with majority of members taking part in case review. Pursuant to the proposed draft, if the Constitutional Court Board considers that the disputable provision can entail irrevocable outcome for one of the parties, the issue is to be transferred to the plenary session of the Constitutional Court for review (consisting of 9 judges), which with the majority of members, prior to reaching the final decision, can suspend effectiveness of the disputable provision or a part thereof.

Concept and purpose of suspending the disputable provision are to be considered. In particular, it responds to averting irrevocable outcome for the plaintiff before reaching the final decision on the case. Respectively, in the series of cases, for effective protection of plaintiff’s rights, it is vital that Constitutional Court acts immediately. The state has both Constitutional and international obligation to ensure independence and impartiality of the court, which would guarantee effective protection of rights. In the light of suspending the disputable provision by the court, timely review of the case is important in order to avoid infliction of irrevocable damage to the person. 

The obligation to transfer the issue by the case reviewing board to the plenary session implies the review of the case at least by six judges, which from the time perspective in some cases may become a problem and impede effective protection of the plaintiff’s rights.

In addition, it is not clear what rational – legal grounds are the presented draft amendments based on. Pursuant to the legislation, the Board of the Constitutional Court acts as the Constitutional Court and it is authorized to declare the disputable normative act as unconstitutional. In such conditions it is not clear, which legitimate interest does the Board restriction serve (to suspend effectiveness of the disputable provision prior to making the final decision). This raises doubt that the initiated amendment represents the government’s negative response to decisions made by the Constitutional Court on the Rustavi – 2 case, by which the first Board of the Constitutional Court comprising of 4 judges suspended effectiveness of the disputable provisions within the tightened timeframe, not to inflict irrevocable damages to the plaintiff’s rights. This opinion is supported by the facts that the Minister of Justice by public statement expressed doubts on impartiality and objectivity of the case reviewing board. 

The Coalition once again reiterates that the political system should be devoted to institutional strengthening of the court. Initiation of legal reforms within the judicial system by the political government and its content shall not represent rough, unreasoned response to the current or/and future decisions made by the Court. Such attitude endangers effective operations of this significant Constitutional Institute and respectively doubts effective protection of fundamental human rights guaranteed by the Constitution in the country.

In addition, due to importance of this topic, we call the government to apply with request to the Venice Commission to prepare an opinion on the submitted draft law.