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The Constitutional Court of Georgia Rules Not to Uphold the Constitutional Claim №1823 ("M. Kh. v. the Parliament of Georgia")
On April 28, 2025, the First Board of the Constitutional Court of Georgia ruled not to uphold the Constitutional Claim №1823 ("M.Kh. v. the Parliament of Georgia").
According to the disputed norms, in the presence of alleged domestic violence, only an authorized police officer was vested with the right to issue a restraining order/impose electronic surveillance. According to the Claimant, the rule established by the disputed regulations was unconstitutional since it authorized the police officer, beyond the mandatory application of protective measures provided for the victim, on the basis of expediency, to decide on issuing a restraining order/imposing electronic surveillance on a police officer (another employee of the Ministry of Internal Affairs) identified as an alleged abuser. The author of the constitutional claim argued that such circumstances gave rise to an increased risk of biased decision-making based on collegial (corporate) interests. At the same time, the Claimant further contended that the disputed norms were also ineffective in terms of ensuring the immediacy of protective measures. Specifically, the Special Investigation Service, while investigating a case of alleged domestic violence, was required to apply to the Ministry of Internal Affairs of Georgia for the issuance of a restraining order/imposing of electronic surveillance. The Claimant argued that compliance with certain procedures was required for such an application, which demanded additional time resources and, accordingly, delayed the timely protection of the victim's rights. Taking into account all of the above, the author of the constitutional claim considered that the rights to life, physical integrity, and personal/family life were violated in the context of the State's positive obligation.
According to the Respondent, the Parliament of Georgia, under the disputed norms, although only an authorized police officer could issue a restraining order/impose electronic surveillance, even in cases when a police officer (another employee of the Ministry of Internal Affairs) was identified as the alleged abuser in a domestic violence case, this did not lead to the adoption of a loyal decision towards a colleague on the basis of corporate bias. According to the Respondent, even if such an assumption were made, the risks of biased decision-making were adequately safeguarded under the applicable legislation. As for immediacy, the Respondent highlighted that the Ministry of Internal Affairs of Georgia, given its human and logistical resources, was the body capable of ensuring the timely protection of the rights of an alleged victim of domestic violence.
Having identified the legal relations regulated by the disputed norms, as well as the scope of the Claimant's request/the issues to be assessed by the Court, and having analyzed international/regional approaches to violence against women and domestic violence, the Constitutional Court differentiated between and independently evaluated, on the one hand, the potential risks of biased decision-making under the disputed norms in conjunction with corresponding safeguarding mechanisms, and, on the other hand, the issue of the immediate implementation of protective measures for alleged victims of domestic violence.
As for the potential risks of biased decision-making and the associated safeguarding mechanisms, the Court indicated that the decision by an authorized police officer to issue a restraining order/impose electronic surveillance on his colleague (another employee of the Ministry of Internal Affairs of Georgia) did not, in itself, imply the adoption of a loyal decision towards a colleague on the basis of corporate interest. At the same time, the Court did not exclude that, in certain cases, such a risk might in fact arise from misunderstood corporate interest. However, the Court held that this risk was safeguardedby several practical and legislative mechanisms, including the issuance of a restraining order by a police officer from units other than the one where the police officer identified as the alleged abuser exercised his/her authority; effective internal (departmental) and external (judicial) control mechanisms; as well as the existence of alternative mechanisms established by law, allowing the victim to apply directly to the court for protection of his/her rights.
As for the immediacy, the Court analyzed the applicable legislation, as well as testimonies of the invited witnesses/representatives of the public institution summoned for the consideration of the case on the merits, and determined that the process of applying to the Ministry of Internal Affairs of Georgia, via electronic document exchange, concerning the implementation of a protective measure for an alleged victim of domestic violence did not require such time resources as would deprive a restraining order/electronic surveillance of its operational nature and fail to ensure the timely protection of the victim's rights. Specifically, an application was filed with the police unit corresponding to the alleged victim's place of residence, ensuring that existing threats were addressed promptly and immediately. Furthermore, according to the representative of the Special Investigation Service, the Ministry of Internal Affairs consistently responded to such requests within shortened timeframes, and to date, there have been no instances in practice where the victim's rights were not protected as a result of delay.
In view of the foregoing, the Constitutional Court held that the disputed norms did not contradict the requirements of the first sentence of Paragraph 1 (protection of the right to life) and Paragraph 2 (protection of the right to physical integrity) of Article 10, as well as Paragraph 1 of Article 15 (protection of the right to personal and family life) of the Constitution of Georgia in the context of the State’s positive obligation.
Subject of the Dispute: Constitutionality of the first sentence of Paragraph 3 of Article 10 and Paragraph 1 of Article 101 of the Law of Georgia "On the Elimination of Violence Against Women and/or Domestic Violence, and the Protection and Support of Victims of Such Violence" with respect to the first sentence of Paragraph 1 of Article 10, Paragraph 2 of Article 10, and Paragraph 1 of Article 15 of the Constitution of Georgia.
