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The Constitutional Court of Georgia Rules to Uphold the Constitutional Claim №1606
On May 28, 2025, the Second Board of the Constitutional Court of Georgia ruled to uphold the Constitutional Claim № 1606 ("Public Defender of Georgia v. the Government of Georgia") and declared unconstitutional, with respect to Paragraph 1 of Article 11 of the Constitution of Georgia, the normative content of the wording "a person without Georgian citizenship" of subparagraph "a" of Paragraph 3 of Article 4 of the Regulation approved by the Decree № 445 of the Government of Georgia of July 17, 2020, which excluded the transfer of the area defined by the Regulation to a person without Georgian citizenship, if the applicant is the heir of a person who had received the right to possess (use) residential and/or non-residential area based on a document confirming lawful possession (use).
According to the disputed norm, state-owned residential and non-residential area (along with the corresponding land parcel) registered on the balance sheet of the Ministry of Defence of Georgia could not be transferred to a person without Georgian citizenship.
According to the Claimant, the disputed norm was discriminatory in nature, since, unlike Georgian citizens, it excluded the transfer of state-owned property to a person without Georgian citizenship, even if that person was the heir of the lawful possessor of the property, had confirmed the actual possession of the property, and submitted the documentation required for the transfer of ownership of the property to the Ministry. According to the Claimant, such differentiated treatment had no reasonable explanation.
The Respondent contended that the circumstance forming the basis of such a differentiated approach was the need to ensure the involvement of Georgian citizens in the field of defence and security. The Respondent argued that national defence was a constitutional obligation primarily fulfilled by Georgian citizens, and not by persons without Georgian citizenship. At the same time, the Respondent emphasized the factor of limited state resources.
In the case under consideration, the Constitutional Court of Georgia identified as comparable persons, on the one hand, a person without Georgian citizenship whose decedent had lawfully possessed the property listed on the balance sheet of the Ministry of Defence of Georgia, and had failed to register the ownership of the said property during his lifetime, and, on the other hand, a citizen of Georgia whose decedent had likewise lawfully possessed the said property and had also failed to register its ownership during his lifetime. The Constitutional Court, concerning the given legal relationship, considered the comparable persons to be essentially equal subjects. The Constitutional Court explained that in a certain legal relationship the rights of a citizen of Georgia differed from the rights of a foreigner; however, in the context of the legal relationship identified in the case under consideration, citizenship did not change the nature and equal weight of the legal interest of the heirs.
According to the Constitutional Court, in the given case differentiated treatment of essentially equal persons could not be justified by reference to limited state resources or the need to save state budgetary funds. To justify the differentiation, it was necessary to substantiate not only that the resources were insufficient for everyone, but also to demonstrate the rationality of the differentiation itself.
The Constitutional Court also did not consider the disputed regulation to be a mechanism encouraging citizens’ involvement in the field of defence and security. In particular, according to the Constitutional Court, the transfer of property to the heir was made without any reciprocal condition or mandatory stipulation. Accordingly, the heir's acquisition of the property into ownership did not constitute a guarantee of their involvement in the field of defence and/or, in any way, create (increase) such expectations.
Therefore, the Constitutional Court of Georgia ruled the aforementioned normative content of the disputed provision to be discriminatory and declared it unconstitutional with respect to Paragraph 1 of Article 11 of the Constitution of Georgia.
