Judgements on the Constitutional Complaints N671 and N811 of the Constitutional Court of Georgia
On 3 July 2018 the Constitutional Court of Georgia granted two constitutional complaints (N671 and N811) filed by a group of several religious organisations (The complainants in the case N671: ‘Caucasus Apostolic Administration of Latin Rite Catholics’, ‘Evangelical-Baptist Church of Georgia’, ‘Georgian Muslims Union’, ‘Pentecostal Church of Georgia’, ‘Trans-Caucasian Union of Seventh-Day Adventist Church’, ‘Word of Life Church of Georgia’, ‘Holy Trinity Church’, ‘Church of Christ’; The complainants in the case N811: ‘Highest Administration of all Muslims in Georgia’, ‘Evangelical-Baptist Church of Georgia’, ‘Pentecostal Church of Georgia’, ‘Evangelical-Lutheran Church of Georgia’, ‘The Redeemed Christian Church of God in Georgia) and declared unconstitutional the provisions of the Tax Code of Georgia (Article 168.2(b)) and the Law of Georgia on State Property (Article 63.1). The disputed law exempts from the Value Added Tax (VAT) without credit the construction, restoration and painting of churches and cathedrals commissioned by the Patriarchate of Georgia, as well as allows free-of-charge transfer of the state-owned property to the Georgian Orthodox Church.
The complainants argued that the disputed law granted the VAT exemption and allowed the conveyance of the state-owned property without charge solely to the Georgian Apostolic Autocephalous Orthodox Church, leaving them beyond the reach of the foregoing privileges, which amounted to discriminatory treatment in violation of the constitutionally guaranteed right to equality (Article 14 of the Constitution of Georgia).
The respondent, the Parliament of Georgia, emphasised that the Georgian Orthodox Church and the complainant religious organisations represented comparable groups, yet the differentiated treatment served the legitimate purposes of protecting cultural heritage and recognising the outstanding role of the Georgian Apostolic Autocephalous Orthodox Church in accordance with article 9 of the Constitution.
The Constitutional Court invoked the strict scrutiny test while assessing constitutionality of the impugned provisions since the differentiation between comparable subjects was based upon the religious ground.
The Court noted that the protection of cultural heritage represents a valid legitimate interest, although it is insignificant for the realisation of this objective whoever is entitled to commission works (construction, restoration and painting of churches and cathedrals) so long as other technical requirements are met. With respect to Article 9 of the Constitution, the Court indicated that the Constitution acknowledges the outstanding role of the Georgian Apostolic Autocephalous Orthodox Church, yet to infer that the said constitutional provision implies the outright bestowal of any privileges to the Orthodox Church would vitiate the essence of the constitutional right to equality. The Constitutional Court further noted that the recognition of the outstanding role of the Georgian Orthodox Church is associated with its historical importance and does not serve to establish legal privileges for Orthodox Christianity in the present.
The Court emphasised that since the contested rule on tax privilege is directed to the legal relationships established after the same provision took effect, granting privileged status to the Orthodox Church does not have a firm and genuine link with its historical importance and represents a goodwill by the state. Further, the Court indicated that the property list transferred to the Georgian Orthodox Church is not conditioned upon any historical circumstances and the disputed law does not even provide for a legal basis for the privatisation of religious buildings. It was concluded by the Court that based on the contested regulation and by the decision of the Government of Georgia, the Orthodox Church may, in fact, be granted any type of property subject to privatisation. The Constitutional Court found that this is a blanket regulatory solution, which does not establish a direct causal link between the recognition of historical importance of the Orthodox Church and the privilege set forth by the provision in question.
Consequently, the Constitutional Court pronounced that the differentiated treatment introduced by the contested legal rules is not rationally related to the proclaimed legitimate objectives, thereby, amounts to an unjustified discrimination and is in contradiction with the constitutional right to equality. The Court indicated that the foregoing discrimination can be remedied by either fully abolishing the privileges under the disputed law, or extending them to other comparably equal religious organisations. The Constitutional Court noted that it is up to the Parliament of Georgia to decide on this issue in accordance with the Constitution until 31 December 2018, after which the disputed legal provisions will be invalidated.