Journal of Constitutional law - Vol. 2 (2022)
Issue date: November 2022
Merab Turava: Foreword
Author: Dimitry Gegenava, Paata Javakhishvili
Abstract
Taking into account the Georgian reality, the traditionalism reigning in law, the often excessive reliance on learning/teaching and evaluation methods, the unconscious fear of novelty, significantly hinder the evolution of disciplines. However, legal education, like the law itself, is a dynamic process and should always be focused on development. From this point of view, teaching the discipline of constitutional proceedings in Georgia is characterized by a range of challenging aspects. The reason for this is the fact that it is often perceived as a substantive legal field, and the mentioned subject is mostly taught in majority of universities due to the changes of characteristics in different fields of law. In addition, the curriculum of the constitutional proceedings usually integrates issues of constitutional review or comparative constitutional justice, which may have problematic reverberations for the purposes of the "Characteristic of Educational Programs in different fields of law". Because of this, its legal aspect and the peculiarities of educational studies are very relevant, which predetermine the proper delivery of this content and the achievement of appropriate results. Therefore, the paper will discuss both, the thematic side of the teaching of the constitutional proceedings and the issues, related to integration of the discipline of the constitutional proceedings in the curriculum.
Paper: Constitutional Proceedings: A New Challenge for Georgian Legal Education
Pages: 9-16
Author: Anna Phirtskhalashvili
Abstract
The right to property is of special importance in a modern democratic society. In addition to its legal dimension, it has a political, social and, to some extent, moral dimension as well. That is why, when understanding the right to property, it is impossible to ignore its multifaceted nature. The social function of property especially well represents its role in shaping such important values for modern society, as social justice, general economic equality and fair social policy.
The article discusses the essence of the provision - "ownership obliges", the historical development of the idea of the social function of the property right in the light of the philosophy of law, as well as the entry in the first Constitution of Georgia, which reflects the social understanding of property, i.e., its social chaining theory. The present article discusses the notion of the social function of property rights. In addition, the article in general terms, compares the practice and approaches of the Constitutional Court of Georgia and the Constitutional Court of the Federal Republic of Germany regarding the social chaining effect of ownership.
In conclusion, the article supports the idea that the social function of property determines the guarantees of individual property rights, although, at the same time its limitations, which considers the social function of property as an institution, as well as the entire social order in the state.
Paper: The Legal Dimension of the Social Function of Property
Pages: 17-26
Author: Giorgi Tumanishvili
Abstract
Public hearing of criminal cases is an important element of the state-legal criminal process. The public has a legitimate interest in being informed about ongoing criminal cases and in assessing the extent to which criminal justice is administered in accordance with their expectations. The openness of administration of criminal justice precisely serves the requirement of public awareness. Due to the fact that a large part of criminal cases may not even reach the stage of discussion on the merits in court, and it is terminated at the stage of investigation, therefore the public is interested not only in hearing criminal cases in the courtroom and their results, but also in the administration of criminal cases at the stage of investigation. Accordingly, both the media and investigative and criminal prosecution bodies ensure provision of information to the public on current criminal cases and the satisfaction of the latter's legitimate interest in providing information.
Incorrect and unbalanced public information about criminal cases may pose significant challenges and threats to the fairness of criminal proceedings, the rights of the accused and the interests of justice. In particular, the presumption of innocence and the right to privacy of the accused are at risk. Accordingly, the criminal law enforcement bodies and the media should be aware of the existing threats and pay special attention to the implementation of the correct information policy when informing the public about the criminal case and the accused persons.
This article discusses the role and influence of the media in the criminal justice process, reviews the risks that may threaten the procedural guarantees of the accused, the interests of justice, and develops separate recommendations in the direction of a balanced information policy.
Paper: Informing the Public about Ongoing Criminal Cases and Procedural Guarantees of the Accused
Pages: 27-43
Author: Tamar Gegelia
Abstract
Prostitution is prohibited by Georgian regime of prostitution, and a sex worker is punished, but not a client. The actions of third parties are also criminalized. Even today, the sex work is still considered in the moral context, and the addressee of criticism is both, the buyer of this service, and the sex worker, and all critics judge them from the standpoint of their subjective moral prism of admissibility or inadmissibility, and require the punishment of either one, or another. The purpose of the article is to review the regimes of prostitution and to select the best experience. Consideration of these issues is important for revision of Georgian regime of prostitution, which is the source of violation of human rights and unjustified police repression.
The purpose of this article is not to romanticize prostitution, but rather to identify the source of the harm (that is inherent to this work) and seek ways to reduce it in order to make the environment safe for sex workers, so that they enjoy all of the rights that are guaranteed to all by the Constitution.
The question of the constitutionality of the legislation defining prostitution in Georgia was brought to the Constitutional Court in 2018, although the claim has not been considered yet. Against this background, in this article, we will try to make our small contribution to the identification of the problem and the ways to solve it.
Paper: Georgian Regime of Regulation of Prostitution and its Watchdogs
Pages: 45-59
Author: Archil Metreveli
Abstract
In 2001, a new legal institution that appeared in the legislation of Georgia - the "Constitutional Agreement of Georgia" received significant criticism both at the national level and from competent international institutions. One of the main targets of these critical evaluations was the "constitutional" status assigned to it. Within the framework of this article, the author offers his own observations about one goal of transforming the idea of an "treaty between the state of Georgia and the Orthodox Church of Georgia” into a "Constitutional Agreement".
The structure of the article is as follows. The first introductory chapter briefly describes the chronology of the transformation of the idea of an "treaty" into a "Constitutional Agreement" (1994-2001) and, by referring to various landmark legal acts (drafts) or documents, offers essential guidelines for the central discussion. The second chapter presents the formal arguments supporting the idea of assigning a "constitutional" status to the agreement between the state and the church and their critical analysis, which frees up the necessary space for the author's theory. In the third chapter, with appropriate sources, the central thesis of the present article is substantiated, according to which one of the goals (actual result) of granting the "constitutional" status to the agreement between the state and the church was to avoid the exclusive legislative power of the state for this legal act and the corresponding relationship. In the final part of the article, all presented facts and developed reasoning are systematically summarized.
It should be noted that the article was prepared within the framework of the current research, which aims to study the legal dimension of the Constitutional Agreement between the State of Georgia and the Apostolic Autocephalous Orthodox Church of Georgia. Sources found and processed at this stage of the said research were used directly for this article. Accordingly, the author assumes that it may not fully indicate all sources, including those documents that the author did not consider appropriate for the discussion developed here, and those that have not yet been searched and processed. Nevertheless, the author believes that the presented sources are essentially sufficient to support the issue raised within the scope of this article and its supporting arguments.
Pages: 61-72
Authors: Irakli Leonidze, Giorgi Chikviladze
Abstract
Only one article in the Civil Code of Georgia is dedicated to the issue of title to a household regulation, and the problem unresolved from the first years of independence up to now, which shows the lack of legal status of the owners, is echoed by many decisions of the Constitutional and Common Courts of Georgia. The question as to why title to a household has lost its function should normally be investigated by the legislator, but the practice of Common Courts did not capture the scope of the problem that actually existed. It is very important to make a correct definition of the norm, but when the legislator repeals the norms regulating the household, the problem becomes unsolvable and acquires a prolonged nature.
Pages: 73-94
Pages: 95-101