Composition of the Board:

Zaza Tavadze – Chairman of the Hearing, Judge Rapporteur;

Otar Sichinava – Member;

Lali Papiashvili – Member;

Tamaz Tsabutashvili - Member.

Secretary of the Hearing: Darejan Chaligava

Title of the Case: Citizen of Georgia Nodar Mumlauri v. the Parliament of Georgia.

Subject of the Dispute: Constitutionality of subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” with respect to article 14, paragraph 1 of article 17 and paragraph 1 of article 29 of the Constitution of Georgia.

Participants of the Hearing: Representative of the Claimant, Nodar Mumlauri – Makvala Berianidze; Representative of the Parliament of Georgia – Zurab Matcharadze.

I
Descriptive Part

1. On July 24, 2013 a constitutional claim (registration N560) was lodged to the Constitutional Court of Georgia by citizen of Georgia Nodar Mumlauri. On July 25, 2013 the Constitutional Claim N560 was assigned to the Second Board of the Constitutional Court of Georgia for ruling on admission of the case for consideration on merits. Preliminary session of the Second Board of the Constitutional Court without oral hearing was held on December 27, 2013 for ruling on admission of the case for consideration on merits.

2. Pursuant to the Recording Notice N2/10/560 dated December 27, 2013 of the Second Board of the Constitutional Court the part of Constitutional Claim N560, regarding the constitutionality of subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” with respect to article 14, paragraph 1 of article 17 and paragraph 1 of article 29 of the Constitution of Georgia was admitted for consideration on merits. The oral hearing on merits was held on May 14, 2014.

3. Legal basis for submission of the Complaint according to it are subparagraph “f” of paragraph 1 of article 89 and paragraph 1 of article 42 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19 and subparagraph “a” of paragraph 1 of article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”, articles 15 and 16 of the Law of Georgia “On Constitutional Legal Proceedings”.

4. Article 8 of the law of Georgia “Freedom Charter” prescribes the list of public officials to whom the limitations established by this law are applied. According to subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” persons, who have held certain offices between 25 February, 1921 and 9 April 1991 shall not be appointed or elected to any position referred to in article 8 of this Law. The right is restricted to the former members of Central Committees of the Communist Party of the former USSR and Georgian SSR, secretaries of Regional and City Committees and members of the bureaus of the Central Committees of the Leninist Young Communist League.

5. The Constitutional Complaint indicates that the Claimant held office in the bureau of the Central Committee of the Leninist Young Communist League of Georgian SSR, later she worked as a secretary at the Regional Committee of the Communist Party in Telavi District. The Claimant indicates that he took part in the competition on the job position of Telavi Gamgebeli, however he was unjustly removed from the competition. Later he was told orally that based on the disputed provisions he would not take part in the competition.

6. The Claimant indicated on the issues that, according to him, cause their unconstitutionality. According to the Claimant the restriction on taking offices established by the disputed provisions is measure of political retribution, which can be used multiple times after any Parliamentary Elections by the winning political party in order to remove certain persons from political process. Therefore the Claimant considers that limiting activities to a circle of certain persons has arbitrary character.

7. According to the Claimant the rule established by the disputed provisions is unreasonable, since it also establishes restriction towards those people who held important state offices prior to 2011, when the law was adopted. The Claimant considers that the aim of such regulation is unclear, since the persons, who could potentially have created threat to national security held important offices before the mentioned period, made numerous decisions and issued legal documents. Therefore indicating on a motivation of people to threaten the State when they had such opportunity for long period and never used it, is baseless.

8. The Claimant considers that the disputed provisions impose responsibility for the acts of the totalitarian Soviet regime on people, who did not directly participate in creating this regime and soviet ideology. According to the Claimant the disputed provision prescribes limitations to a circle of persons only based on the fact that they had to live during the period of Soviet regime, however in that period there was only a single-party ruling system and individuals had no alternative. In case the legitimate aim of the disputed provisions is excluding any doubts of secret collaboration with special services of USSR, such possible relationships should be investigated instead of establishing absolute prohibition. The Claimant also considers prescribing limitations towards the persons, who in reality were under the supervision of hierarchically superior bodies and performed certain activities according to their directions, is unjustified.

9. According to the Claimant limitation derived from the disputed provisions also apply to the members of Central Committee; however it needs to be taken into consideration that the members of the Committee were not only secretaries or bureau members of Regional, City or Central Committees of Communist Union, but also ordinary citizens from different scientific or cultural field. At the same time, in Claimant’s opinion existing regulation enabling removal of such citizens from most important offices of the State provides for destruction of scientific potential.

10. As indicated by the Claimant the activities of subjects prescribed by the disputed provisions separately taken do not cause criminal liability. Despite that the legal status of such persons is substantially worse than that of persons convicted of criminal offence. As defined by the Claimant holding certain offices by the convicted persons is established by the law, specifically by establishing the statute of limitations. According to the Claimant the circle of persons prescribed by the disputed provisions cannot exercise such advantage either, since the law of Georgia “Freedom Charter” does not prescribe the statute of limitation, therefore the right to hold an office is limited forever.

11. The Claimant underlined the issue that according to the current legislation the operation of Communist Party in Georgia is not prohibited. At the same time, such a party is registered in Georgia at the moment and operates within the boundaries of the law. As indicated by the Claimant, the members of this party do not face any restriction to hold an office, which provides for a basis to consider that membership of a communist party does not carry any threat.

12. The Claimant also indicated that the necessary restriction on holding an office derived from the State interests could have been acceptable at the first stage of demolition of USSR, when the state security was under the question and no official had trust. However according to the Claimant necessity of such limitation could exists for a short period of time and no legitimate aim can justify it after 23 years from declaring independence.

13. According to the Claimant the disputed provisions establish differential treatment based on political views and an office held, therefore they are discriminatory and violate article 14 of the Constitution of Georgia. Specifically, the regulation, according to which a person is stripped of the possibility to hold an office or be elected to one prescribed by article 8 of the law of Georgia “Freedom Charter”, due to his or her political views and an office held decades ago, is discriminatory.

14. On the hearing on merits the Claimant additionally stated that in this instant case there is discrimination based on political grounds. The Claimant indicated that the provisions carry discriminatory character since persons holding ordinary offices are equalised to those working at special secret services.

15. The Claimant considers that the disputed provisions contradict to the principle of inviolability of honour and dignity of a person guaranteed by paragraph 1 of article 17 of the Constitution of Georgia. As defined by the Claimant the fact that an official of USSR is equalised with agents working at secret services violate his dignity.

16. According to the Claimant the unconstitutionality of the disputed provisions is also conditioned by the issue that an individual is ignored from governance system of the State, as a result of which such person is stigmatised and his/her authority is substantially desecrated. Pursuant to the Claimant article 17 of the Constitution establishes the right of an individual to be treated with ethics and honour, while the disputed provisions exclude such possibility.

17. Beyond the mentioned, the Claimant states that the disputed provisions unjustly restrict the right protected by paragraph 1 of article 29 of the Constitution of Georgia. According to paragraph 1 of article 29 of the Constitution every citizen of Georgia shall have the right to hold any public office if they meet the requirements established by law. The Claimant indicates that the disputed provisions create unjustified barrier for using this basic right. Simultaneously the disputed provisions exclude the participation of certain category of people from state governance and political process.

18. On the hearing on merits the Respondent pointed out the legitimate aims of the disputed provisions. The Respondent stated that Georgia is in the transitional period, while the officials of former USSR party and former special services have strong influence on internal politics of the State. Therefore, there is a risk that the totalitarian regime might be reinstated or the democracy will be overthrown with force. According to the Respondent all above mentioned together with security system of the state, territorial integrity of Georgia and state of occupation demand additional measures for defence and security, in order to overpower communist heritage by transforming mentality. Additionally the Respondent stated that the disputed provisions aim at preventing negative results instead of establishing a responsibility.

19. According to the Respondent the circle of persons prescribed by the disputed provision are restricted from holding only those high political or non-political offices, which have direct and immediate link with providing human rights protection and establishing new democratic regime. On these offices persons adopt highest and most important decisions related to executing internal and external policy of the State, protection of human rights. At the same time, according to the Respondent the disputed provisions do not establish limitation on holding elected offices, since in those instances he decisions is made by the people through elections.

20. Pursuant to the Respondent the disputed provisions establish limitations regarding the office only for the persons that were in the leadership of the basic subject of Soviet totalitarian regime – the party, not the ordinary members thereof. Thus the limitations are directed towards the officers prescribed by subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” based on heir functions, specifically when these functions were expressed by support of sustainability of the regime with active work or passive inaction. Activity exploited by the persons prescribed in the disputed provision were governing functions in all aspects of state and community life, which, simultaneously, included spreading communist ideology, organisation of ideological work, propaganda of Marxism and Leninism, increasing the awareness of communism, etc. According to the Respondent besides the formalistic link between membership of a party and an office, there was contextual link as well, expressed in duty of unconditional performance of party directions.

21. The Respondent stated that in the current state due to the changes or destruction of archived data, there is no exact list of people who secretly collaborated with Special Forces of Soviet totalitarian regime. Therefore it is impossible to establish with absolute certainty what activities were exercised additionally by a specific person beyond the functions of the office he or she held. The Respondent also indicated that when fighting against the Soviet totalitarian regime the whole system should be considered instead of specific persons.

22. The Respondent state that although a Communist Party is registered in Georgia, it is registered based on the law of independent Georgia. The Respondent indicated that the mentioned party has no legal connection with the original Communist Party and at the same time, is not its legal successor.

23. Based on all above mentioned the Respondent considers that the disputed provisions do not contradict article 14 of the Constitution of Georgia, since the differentiation is made between the persons with different status, therefore there are no substantially equal persons. The Respondent considers that the disputed provisions are in conformity with paragraph 1 of article 17 of the Constitution as well and indicates that the Claimant does not understand the content of the protected right correctly, since the public view regarding an individual is not protected within the scope of article 17. With regards to article 29 of the Constitution the Respondent stated that the right to hold state office is not absolute, since it has to respond to the requirements of the law. Simultaneously the law does not exclude the right of a person to hold numerous important offices in public service or work in private service.

24. To substantiate its argumentation the Respondent indicates the laws of Post-Soviet States, which similar to the disputed provisions establish limitations with regards to holding specific state offices.

II
Reasoning Part

1. When adjudicating on the Complaint N560 the Constitutional Court shall decide on the constitutionality of prohibiting to hold an office for the persons, who have held certain offices between 25 February, 1921 and 9 April 1991 prescribed by of article 9 of the Law of Georgia “Freedom Charter”.

2. According to the Respondent the aim of adoption of the Law of Georgia “Freedom Charter” is overpowering communist heritage, which includes transforming mentality, removing the fear of responsibility, elimination of disrespect towards the different, radical nationalism, intolerance, racism and xenophobia, which are the part of old regime heritage and should be replaced by such democratic values as tolerance, respect towards the different and accountability of own actions.

3. The Respondent states that public officials defined by the disputed provisions by their functions, action or omissions during the USSR period supported the sustainability of communist totalitarian regime. Therefore appointing the Claimant and persons in similar state on specific state offices will threaten state security and safety, as well as the interest to overpower communist totalitarian ideology.

4. The Respondent also indicates that establishing the disputed law was necessary since the mentality of soviet bolshevism and the “remnants” of spy network of “KGB” are still existent in Georgia. According to the Respondent the necessity of establishing the disputed provisions is also demonstrated by lodging the Constitutional Claim by the Claimant and the issue that during the hearing on merits in response of a question posed by the Respondent the Claimant did not deny/condemn the communist ideology.

5. Existing constitutional order is based on radically different values compared to those of the communist system existent in the past. The principles of justice, Rule of Law, respect of human rights and equality are the fundamental values of Georgian State and Constitutional Order.

6. The Constitutional Court agrees with the Respondent that considering the nearest past of Georgia the State can have legitimate interest not to allow reinstatement of communist totalitarian regime and take necessary measures in order to eliminate communist ideology. At the same time in order to eliminate communist totalitarian ideology a democratic state based on rule of law and human rights should use only legal mechanisms.

7. A democratic state has all relevant means for eliminating any action infringing fundamental constitutional values. The legislator has certain discretion to prescribe measures for elimination of communist totalitarian ideology and prevention of reinstatement the regime based on such ideology. However any such regulation should respond to the requirements of the Constitution and should be subjected to constitutional law revision. In other event, the State will itself resemble the regime it aspires to eliminate.

Constitutionality of subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” with respect to paragraph 1 of article 17 of the Constitution of Georgia

8. According to paragraph 1 of article 17 of the Constitution of Georgia “human honour and dignity shall be inviolable”. The Constitutional Court has numerously underlined that honour and dignity are substantial attributes of social identity of a person, which define moral state of a person in the society. Mentioned right is of a category of natural rights, therefore any person has the right to dignity due to being a human being “...social opinions about him/her or his own self-assessment is irrelevant. Respect to human dignity means recognition of each and every individual’s personality, confiscation or restriction of which is impermissible. The essence of art.17 (1) of the Constitution [...is] the central value of an individual, as independent, free and equal subject. The protection of the dignity of an individual is what belongs to every person from a state. In dignity it is meant the social need from the side of the state for respect” (Judgement of the Constitutional Court of Georgia No.2/2/389 dated October 26, 2007 on the case of “Citizen of Georgia Maia Natadze and others v. The Parliament and the President of Georgia, II-30).

9. The dignity of a person is the basis to all fundamental rights, it is not separate, abstract category and is practically realised in human rights. “The concept of human rights serves the main imperative, to protect the human dignity, which is then reflected in these rights” (Judgement of the Constitutional Court of Georgia No.3/1/512 dated June 26, 2012 on the case of “Citizen of Denmark Heike Kronqvist v. The Parliament of Georgia, II-43).

10. For practical realisation of the right to dignity decisive relevance is attributed to recognition of a person as a subject of the right. The right to be subject of law is indivisible element of the right to dignity guaranteed by paragraph 1 of article 17 of the Constitution of Georgia. According to this right human should be main value for the State, subject to constitutional rights and not the means to achieve aims.

11. Legal regulation limiting the right protected by one of the rights of the Constitution of Georgia does not automatically violate the right to being subject of law. The Constitutional Court establishes constitutionality of disputed provision(s) with respect to the right protected by paragraph 1 of article 17 of the Constitution of Georgia in each individual case based on the content of restrictive regulation, its aim and the intensity of restriction.

12. In the instant case the Constitutional Court should assess the conformity of prohibiting on holding a specific state office for an indefinite time to the Claimant with respect to paragraph 1 of article 17 of the Constitution of Georgia.

13. The Claimant indicates in the Constitutional Claim that he was born, raised and has worked on various high state offices in Soviet Social Republic of Georgia during the period of Soviet Union, due to which the disputed provision forbids him to hold offices indicated in article 8 of the disputed law in independent Georgia, which, according to the Claimant, violates his honour and dignity, especially since he is equalised with secret collaborators of special forces, agents and officers, who have refused to work in relevant offices in independent Georgia. According to the Claimant by establishing the disputed provisions the State uses the Claimant and persons in similar situation as a means to achieve a goal, which violates their dignity.

14. According to the Respondent the Claimant considers assessment of a society towards his personality, considering him a former party official. The Respondent considers that the Claimant’s arguments are directed to honour and dignity prescribed by article 18 of the Civil Code of Georgia, not the right protected by paragraph 1 of article 17 of the Constitution of Georgia. Thus there is no violation of article 17 of the Constitution of Georgia.

15. The Court shall not discuss honour and dignity prescribed by article 18 of the Civil Code of Georgia and its relationship with the disputed provisions, since “while interpreting art.17 (1) of the Constitution, civil conception of honour and dignity shall not be decisive for the court. Judging from the purposes of this norm, as well as from the historic experience and reasons for guaranteeing these rights in the Constitution, definition of dignity from the perspective of constitutional law is different. The essence of art.17 (1) of the Constitution, in accordance with this norm, the central value of an individual, as independent, free and equal subject” (Judgement of the Constitutional Court of Georgia No.2/2/389 dated October 26, 2007 on the case of “Citizen of Georgia Maia Natadze and others v. The Parliament and the President of Georgia, II-30). Derived from the mentioned the conformity of limitation established by the disputed provisions shall be examined with regards to the right to dignity established by the Constitution and not possible influence on right to honour and dignity protected by the Civil Law.

16. The Claimant and persons in similar situation have their right to work in important segment of state service stripped away fully and perpetually only due to the circumstance that the Claimant held certain party post during the period of USSR from February 25, 1921 and April 9, 1991.

17. The Constitutional Court does not exclude that every person who formally held leading post in the Communist Party did not directly take part in the activities of soviet regime, furthermore, might not have shared and might even combated with the communist ideology. Persons who fought in 1991-1992 and sacrificed themselves to fight for the independence and integrity of Georgia, who tried to use their office for national interests of Georgia instead of narrow party ideology also fall within the category under consideration. The disputed provisions limit the right to hold state office to such persons as well.

18. The disputed provisions establish blanket prohibition without considering the scope of specific person’s activities/rights/competences and cause practically equal results to those people who were deciding internal/external/ideological policy at a time and those, who did not have legal or practical means to amend the mentioned, did not have the possibility to influence such decisions.

19. The disputed provisions focus on the period of activity and prescribe prohibition for those persons, who were formally appointed as well; however did not have time to commence activities; worked for several weeks/days without performing relevant activities in reality.

20. The disputed provisions are based on the assumption that holding a party post means connection of this person with communist totalitarian ideology. The law does not allow for the possibility to limit holding an office based on investigating and assessing specific person’s involvement in the work of soviet totalitarian regime.

21. The Court indicates that with the lapse of time the threats and challenges, which were the reasons for adopting the disputed normative act, lose their relevance. The disputed provision prohibits the Claimant from holding the offices indicated in article 8 of the disputed law without assessing how real the threats are and whether the Claimant still carries the threats for state security.

22. With the disputed provision the law establishes special restricting regulation and creates special legal regime for the persons prescribed by the disputed law without assessing the quality of their involvement in party work, individual assessment of their activities. The Court states that for establishing the regulation limiting the right prescribed by paragraph 1 of article 17 of the Constitution of Georgia, the disputed regulation should envisage inquiry of the activities and functions of each individual and a obligatory prerequisite to evaluate how substantial and real the threats coming from these persons are today when appointing them to the offices prescribed by article 8 of the disputed law.

23. Equal approach towards all individuals in similar situation as the Claimant without assessing their specific functions, roles, activities and establishing equally negative attitude towards all of them and the possibility of equal intensity of limiting the right violates the honour and dignity of the Claimant.

24. When evaluating the constitutionality of the disputed provisions the attributed social results of the restriction shall be considered. The Court states that the legislator is obliged to consider those social results, which can accompany certain regulation of social relationships and it should avoid the regulation, which carries the risks of stigmatising certain groups of society or specific individuals. The interest of protecting national security and fight with totalitarian ideologies cannot outweigh the negative results of the law that is stigmatising and violating the dignity.

25. The restriction prescribed by the disputed provisions is in force for unlimited time. The regulation established by the disputed provision does not allow persons, who once shared communist totalitarian ideology and held leading posts in the Communist Party, to change their attitudes after a period of time. The legislator does not consider the ability of a human being, as a free individual, to change attitudes and after lapse of time or fulfilling certain conditions to hold a state office. According to the rule established by the disputed provision persons are stripped of the right to hold state offices unconditionally and for unlimited time.

26. The perpetual limitation to hold state offices indicated by article 8 of the disputed law to the Claimant for his whole life is repression measure with elements of punishment, rather than the means to prevent threats.

27. The disputed regulation is characterised with high intensity of intervention compared to the instances when a person is accused of crimes, include those against the territorial integrity and/or security. Although paragraph 1 of article 17 of the law of Georgia “On Public Service” prohibits appointing a convicted person to a state office, it allows a person convicted of a crime against State or for any other especially heavy crime to be appointed to the offices prescribed by disputed law after the conviction is removed/void and does not establish perpetual prohibition.

28. The Court takes into consideration the issue that towards certain persons, who held leading party offices in the Communist Party, there might be high legitimate public interest to prohibit holding relevant state offices. However the threats arising from specific persons cannot be the constitutional basis of blanket prohibition established by the disputed provisions. The period of time since the collapse of the USSR and the issue that the structures of the Communist Party indicated in the disputed law do not exist nowadays need to be considered as well; the threat of communist totalitarian ideology and the rehabilitation of soviet regime is decreased. Therefore the need of blanket and perpetual prohibition of the disputed provisions are doubtful.

29. The Court states once more that technical/administrative hardships [including with regards to locating the documents demonstrating activities of specific persons in the past] cannot create sufficient basis for restricting the right in a blanket manner and, moreover, for unlimited time. The burden of carrying the administrative hardships is on the State.

30. The State has no right to deviate from the duty to recognise human as the most important constitutional value and consider him/her as a bare object and means to achieve a goal, regardless to how important private or public interest is to be achieved. The legitimacy of the State to take certain measures for protecting national security, safety, protection of human rights-freedoms or other relevant interests is bound by this constitutional guarantee of utmost importance.

31. After analysis of the disputed provision the Constitutional Court considers that by adopting the disputed provisions the legislator has established a legal regime towards the Claimant and persons in similar situation, according to which the mentioned persons are seen as objects of law instead of subjects of law and are the means for achieving specific aims. Based on the disputed provisions persons become victims of efficiency of measures of the State in reaching legitimate aims. The State uses such persons as means for protecting national security and overpowering the communist totalitarian ideology. Such treatment is not in conformity of the right to dignity guaranteed by the Constitution.

32. Based on all abovementioned the Constitutional Court holds that the disputed provisions contradict paragraph 1 of article 17 of the Constitution of Georgia.

Constitutionality of subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” with respect to paragraph 1 of article 29 of the Constitution of Georgia

33. The Claimant disputes the Constitutionality of subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” with respect to paragraph 1 of article 29 of the Constitution of Georgia.

34. By the disputed provisions the Claimant is prohibited from holding certain offices prescribed by law. Specifically, any person, who was a member of Central Committees of the Communist Party of the former USSR and Georgian SSR, secretaries of Regional and City Committees and members of the bureaus of the Central Committees of the Leninist Young Communist League offices between February 25, 1921 and April 9, 1991 is prohibited to be appointed on following posts: a) members of the Government of Georgia, Deputy Ministers and the chairs of departments under the system of ministries , members of the National Security Council, the members of the State Security and Crisis Management Council, members of the Central Election Commission of Georgia, members of the Governments of the Autonomous Republics of Abkhazia and Adjara, the Auditor General of the State Audit Office and their deputies, the General Director of the National Archives and their deputies - a legal entity under public law within the Ministry of Justice of Georgia , the Head of the Administration of the President of Georgia and their deputies, the Head of the Administration of the Government of Georgia and their deputies, the Head of the Special State Protection Service of Georgia, their deputies and heads of the department, Georgia's Ambassadors Extraordinary and Plenipotentiary, envoys and consuls, the Governor of the National Bank of Georgia and the Vice-Governors, representatives of the Executive Government of Georgia in administrative-territorial units - state representatives - governors, members of national regulatory bodies, the Executive Director of National Statistics Office of Georgia (Geostat), a legal entity under public law, and their deputies; b) employees of the Ministry of Defence and the Ministry of Internal Affairs of Georgia, the State Security Service of Georgia and the operative departments of territorial agencies of the Ministries; c) the judges of the Constitutional Court and the Common Courts of Georgia; d) rectors, vice-rectors, deans and the heads of academic departments of state higher education institutions; the General Director of the Georgian Public.

35. The Court has already elaborated on the constitutionality of blanket and perpetual restriction of right established by the disputed provisions with respect to article 17 of the Constitution of Georgia. Derived from that the Court will evaluate constitutionality of restriction on holding an office prescribed by article 8 of the disputed act for persons in similar situation as the Claimant based on individual approach with respect to article 29 of the Constitution of Georgia.

36. Article 29 of the Constitution reinforces the right of any citizen to hold both appointed and elected public office and establishes the constitutional basis for exercising state service. At the same time paragraph 1 of article 29 of the Constitution of Georgia is not an absolute right and the Constitution of Georgia envisages the possibility to restrict the right by the law for achieving legitimate aims existing in the society. Specifically the law might prescribe special requirements to hold an office. In certain cases the limitation can be related to age, professional/job experience, education, physical preparedness, freedom of conviction, etc. However when limiting the right to hold a public office, the legislator is obliged to follow the reasonable balance between the means employed and the legitimate aim.

37. According to the existing case-law of the Constitutional Court “article 29 of the Constitution obligates the State to establish reasonable conditions of public office activities and not to restrict in an unjustified manner the right of a citizen to participate in the state governance, to exercise the function of public importance” (Judgment of the Constitutional Court of Georgia N1/2/569 dated April 11, 2014 on the case of “Citizens of Georgia Davit Kandelaki, Natalia Dvali, Zurab Davitashvili, Emzar Goguadze, Giorgi Meladze and Mamuka Pachuashvili v. The Parliament of Georgia”, II-2).

38. Constitutional law limit of the legislative branch of state implies the obligation that any legal act should be in conformity with the constitutional requirements both formally and materially. In the instant case the disputed provisions limiting the right to hold public office should formally and materially be in conformity with the requirements of article 29 of the Constitution of Georgia. Creating abstract guarantees to hold public office is not enough. Legal order should create the possibility to practically realise the right, which, first of all, implies the duty of the legislator to adopt legislative basis, which would give any citizen of Georgia the possibility to hold a public office, in case the relevant conditions are met.

39. The primary requirement of article 29 of the Constitution of Georgia is for the legislator to adopt reasonable, fair and non-discriminatory conditions for holding a public office. Simultaneously the law may in each specific case establish different conditions dependent on the specifics of the work, functions and relevance thereof, since “...public office of a certain type based on its content and purpose has special relevance for independence, stability and safety of a State”.

40. According to the definition of the Constitutional Court, “public office” is a constitutional term, which must be construed through its autonomous constitutional meaning, bearing in mind its nature and its constitutional and legal significance” (Recording Notice of the Constitutional Court of Georgia N1/1/569 dated February 19, 2014 on the case of “Citizens of Georgia Davit Kandelaki, Natalia Dvali, Zurab Davitashvili, Emzar Goguadze, Giorgi Meladze and Mamuka Pachuashvili v. The Parliament of Georgia”, II-25). At the same time “for the purposes of Article 29 of the constitution, the public office is a professional activity at the state and local self-government bodies, at the institutions created with a view to exercise of other public functions” (Judgment of the Constitutional Court of Georgia N1/2/569 dated April 11, 2014 on the case of “Citizens of Georgia Davit Kandelaki, Natalia Dvali, Zurab Davitashvili, Emzar Goguadze, Giorgi Meladze and Mamuka Pachuashvili v. The Parliament of Georgia”, II-3).

41. The list elaborated in article 8 of the disputed law envisage diverse and wide spectre of public offices. Within this dispute the Constitutional Court does not face the need to evaluate specific offices listed in article 8 of the disputed law and shall assess the constitutionality of prohibition prescribed by the disputed provisions with regards to all offices together.

42. The disputed provisions deprive persons from the possibility to conduct labour activities through holding specific offices. The prohibition envisaged by the disputed provisions affect persons, who held one of the offices indicated in the disputed provisions between February 25, 1921 and April 9, 1991. Therefore the conditions are cumulative and any person who fulfils these cumulative requirements falls within the scope of prohibition of the disputed provisions.

43. According to the representative of the Parliament of Georgia, the aim of adopting the law of Georgia “Freedom Charter” is fighting against crime, ensuring national safety, protection of interests of the state and public. Simultaneously this law provided for condemnation of communist totalitarian ideology, which in its turn was characterised by violation of human rights, different forms of massive physical terror, individual and mass murders and destruction, capital punishments in concentration camps, starvation and deportation, torture and slavery, restricting the freedom of conscience, thought and expression, etc. Therefore according to the Respondent the disputed provisions as well as the law in the whole ensure overpowering the communist ideology and preventing restoration of regime based on this ideology.

44. According to the Respondent a person is prohibited to hold important posts in the vertical of public office by the disputed provisions. Persons appointed on these posts make decisions related to country’s internal and external policy, protection of human rights. The Respondent considers that since the Claimant and persons in similar situation held positions prescribed by the disputed provisions they may not have been either creators or supporters of communist totalitarian regime. In both instances their actions or inactions built a foundation for the regime that is unacceptable to all and deserves condemnation. Therefore according to the Respondent appointing the Claimant and persons in similar situation to the offices prescribed by law would threaten national security and state safety. According to the explanatory note of the law of Georgia “Freedom Charter” the still strong influence of Special Forces of the USSR and their successors on internal politics of Georgia considering state safety, territorial integrity and state of occupation, require taking additional measures of defence and security and perfecting the legislative basis for enforcing the efficiency of fight against crime.

45. Protection of state national security and safety, as well as overpowering communist totalitarian ideology are valuable legitimate public aims, according to which the right to hold public office guaranteed by article 29 of the Constitution of Georgia can be restricted.

46. The Constitutional Court of Georgia shares the position of the Parliament of Georgia that the communist totalitarian ideology contradicted the idea of independence of Georgia, was characterised by violation of human rights, various forms of massive terror, concentration camps, mass deportations, ethnic and religious persecution, and limitation of the freedom of expression.

47. Before the collapse of the USSR any important office on any level of state governance was filled according to the staffing policy of the Communist Party, simultaneously the party officials directly or indirectly participated in soviet governance. The above mentioned demonstrates the influence of USSR Communist Party and Georgian SSR Communist Party on totalitarian governance of Soviet regime, the responsibility of this Party for the severe consequences of the totalitarian governance.

48. The prohibition prescribed by the disputed provisions concern persons, who held high party offices and had more influence or possibilities in the hierarchical structure of the Communist Party than the ordinary members of the Party. The disputed provisions concern persons who were members of Central Committees of the Communist Party of the former USSR and Georgian SSR, secretaries of Regional and City Committees and members of the bureaus of the Central Committees of the Leninist Young Communist League. Serving at leading posts of the Communist Party of the USSR itself indicates towards the influence of a person on the governance of Soviet totalitarian regime. Activities of these officials, as a rule, served execution of the common ideology, principles, values and aims and were the means to realise these aims in life.

49. Officials prescribed by article 9 of the disputed law derived from their status should have been actively involved in the activities of relevant political union. Being a member of the Communist Party meant the unity of ideology, sharing the principles and basic values by its members, active political work and willingly or unwillingly supporting the realisation common ideology through own activities.

50. Therefore the disputed provisions limit direct or indirect participants of Soviet totalitarian governance from being appointed to the important offices, such as – Member of the Government of Georgia, Deputy Ministers, Members of State Security Council, etc. The aim of the disputed provisions is distancing persons, who participated in the process of Soviet totalitarian governance from the state service.

51. The offices indicated in article 8 are different from other offices in public service by the scope of authorities, as well as the level of participation and magnitude of defining state policy. The legislator focuses only on those state offices, which are vital for independence, sovereignty, development, economic/financial stability and security of any state. The nature of the mentioned posts, the scope of authorities, activity area and specifics indicate towards the need of team-work from persons, who share similar values and point of view regarding the political course and the need of single line of work.

52. Due to excessive public interest towards these offices the legislative body is allowed to adopt limiting regulations, in order to ensure the protection of democratic state and fundamental direction of work from the soviet ideology; to create legal order, which shall allow avoidance of potential risks for hindering achievement of legitimate aim.

53. The disputed provisions do not prohibit the Claimant from being employed in public service, nor from holding an elected post and allows him to hold any elected state office, including in public sector, which is not related to highest decision-makers on the internal/external politics of the State, economic, security/safety or education or exercising of justice. The disputed provisions also do not prohibit the Claimant from being employed in the private sector and allows the Claimant to exercise labour activities in the wide spectrum of private field.

54. According to the definition of the Constitutional Court “the State public officials exercise and promote activities of public nature. In the process of exercising public governance, they within the scopes of their competence prepare, take decisions or/and control their execution, and thus, they serve the public interests” (Judgment of the Constitutional Court of Georgia N1/2/569 dated April 11, 2014 on the case of “Citizens of Georgia Davit Kandelaki, Natalia Dvali, Zurab Davitashvili, Emzar Goguadze, Giorgi Meladze and Mamuka Pachuashvili v. The Parliament of Georgia”, II-6). It is undisputed that the state officials have utmost importance for the proper functioning of state institutions.

55. In the instant case citizen’s right to hold public office, on the one side and the legitimate aim of protecting state security and overpowering soviet totalitarian ideology, on the other hand oppose each other. The disputed provision restricts the right of the Claimant to hold only those offices, which can have direct and immediate effect on the external economic course of a State and formation of orientation, which can directly influence the sustainability and development of state constitutional order.

56. According to the definition of the Constitutional Court “Right to work in the state establishments is a specific form of labour relationships, which, on the one hand is one of the ways of professional self-realisation and, on the other hand, provides a citizen with a possibility to be directly involved in state governance, which includes among other things making decisions and enforcing them in the name of the State. Thus the right protected under article 29 of the Constitution of Georgia is an expression of democratic state” (Judgment of the Constitutional Court of Georgia N2/1/572 dated July 31, 2015 on the case of “The Public Defender of Georgia v. The Parliament of Georgia”, II-1).

57. The freedom of political belonging and political views and the right of citizens to actively participate in public governance is guaranteed in a democratic state. At the same time the principle of a democratic state implies the restriction, in order to ensure that by using the democratic methods the idea of democratic state itself is not disregarded. Therefore the law should envisage the tools to protect fundamental principles of a democratic state from the threat created by formally democratic processes.

58. A democratic state is not only authorised but frequently is obliged to protect fundamental principles of democracy in the process of public governance. For this purpose the State is authorised to adopt preconditions for holding certain offices and has enough legitimacy not to allow persons, whose participation in governance carry irreversible threats, to the public service.

59. In each specific case the Constitutional Court evaluates the constitutionality of the restriction on holding a public office considering the nature of the office, the content of public authority and functions giver to the officer.

60. Therefore, in the current instance the public interest to protect the legitimate aim to defend state safety and security, overpower soviet totalitarian regime outweighs the right of citizens to hold state offices prescribed by the disputed provisions.

61. Based on all abovementioned the Constitutional Court considers that under the condition of employing individual approach towards persons in the similar situation to the Claimant and assessing the activities exercised by each of them the disputed provisions are proportionate limitation of the right to hold public office and do not contradict the requirements of article 29 of the Constitution of Georgia.

Constitutionality of subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” with respect to article 14 of the Constitution of Georgia

62. According to article 14 of the Constitution of Georgia “everyone is born free and is equal before the law regardless of race, colour of skin, language, sex, religion, political or other views, national, ethnic and social affiliation, origin, property or social status, place of residence.”

63. Article 14 of the Constitution is normative expression of the equality idea – “constitutional principle, which generally envisages guaranteeing equal conditions of legal protection of people” (Judgment of the Constitutional Court of Georgia N1/1/493 dated December 27, 2010 on the case of “Political Unions “New Rights” and “Conservative Party of Georgia” v. The Parliament of Georgia”, II-1). The aim of the given constitutional provision is to ensure equal treatment of substantially equal persons and vice versa.

64. When assessing the conformity of the disputed provisions with article 14 of the Constitution of Georgia the comparable groups should be outlined and it should be established how far they are substantially equal subjects with regards to a specific legal relationship. Additionally “when discussing Article 14 of the Constitution, the issue of essential equality of people should be assessed not in general, but with respect to a specific legal relationship. Discourse on discriminatory treatment is possible only if the persons can be considered as essentially equal subjects with respect to a specific legal relationship” (Judgment of the Constitutional Court of Georgia N2/1/536 dated February 4, 2014 on the case of “Citizens of Georgia – Levan Asatiani, Irakli Vatcharadze, Levan Berianidze, Beka Beruchashvili and Gocha Gabodze v. The Ministry of Labour, Health and Social Affairs of Georgia”, II-19).

65. In the instant case the differential treatment established by the disputed provision will be an infringement of article 14 of the Constitution of Georgia only if differentiation is made between substantially equal persons.

66. The Claimant considers that the disputed provisions have discriminatory character since they establish differential treatment between the Claimant and the persons who fulfil the legal requirements and are capable to hold offices enlisted in article 8 of the law of Georgia “Freedom Charter”. According to him working on specific positions during the former USSR should not be grounds for differential treatment. Pursuant to the Claimant because of his political activities in the past he is deprived of the possibility to be appointed on specific state posts and realise his abilities to their maximum for building and development of the state. Derived from this he considers that the disputed provisions establish discrimination on the grounds of political views and contradict the Constitution.

67. Therefore in the given legal relationship the comparable groups (categories) are, one the one hand, persons who fulfil the legal requirements and can hold the offices prescribed by article 8 of the law of Georgia “Freedom Charter” and, on the other hand, persons in similar situation of the Claimant, who although formally fulfil these requirements but have worked on the positions prescribed by the disputed provisions between February 25, 1921 and April 9, 1991 and due to this are prohibited to hold mentioned offices for indefinite time.

68. The Claimant indicates that the disputed provisions are discriminatory because he and persons in the similar situation to his are prohibited to hold mentioned offices for indefinite time, when any other person, who fulfils the legal requirements, does not face same restriction. Therefore he considers that there is unequal treatment between the substantially equal persons and the disputed provisions should be considered unconstitutional.

69. According to the Respondent there is discrimination when the legislator establishes differential treatment between substantially equal persons and vice versa. The Respondent considers that persons prescribed by the disputed provisions are different subjects. They are substantially linked with communist totalitarian regime and during the former USSR they held party or state offices. Therefore for the purposes of given legal relationship they are substantially different from those persons who fulfil the legal requirements and can be appointed to the offices prescribed by the disputed law.

70. The Constitutional Court underlines once more that for the purposes of this dispute it will not assess each disputed provision separately with regards to each public office prescribed by article 8 of the law of Georgia “Freedom Charter”.

71. By adopting the disputed provisions the legislator defined the circle of persons (persons who held the positions referred to by the disputed provisions between February 25, 1921 and April 9, 1991) who are prohibited from holding any office referred to in article 8 of this Law, regardless to whether they fulfilled the general requirements for holding these offices. Therefore in case the disputed provisions did not exist, any person, including those in the similar situation as the Claimant, would fall within equal legal regime and general requirements established by the law for being appointed to these offices would apply to them as well.

72. The Claimant indicates that the prohibition established by the disputed provisions causes discrimination on the grounds of political views. Since he held party positions during the former USSR, the prohibition established by the disputed provisions also relates to his belonging to the Communist Party in the Past.

73. The Constitutional Court considers it necessary to make a distinction between political views and political activity. Persons have political views regardless to whether they hold any office in the political unity or not and/or are formally members of the political unity. A person can have political views without being a member of a specific political organisation. While political activities/work envisages activities in a specific political union and/or activities towards the implementation of ideas/point of views, aims and goals of a specific political union.

74. The Constitutional Court does not share the argumentation of the Claimant and indicates that the differential treatment established by the disputed provisions is linked only to the circumstance that the Claimant and persons in similar situation held the positions referred to by the disputed provisions between February 25, 1921 and April 9, 1991. The disputed provisions do not prescribe differential treatment on the grounds of political beliefs, views or belonging to a specific political party. Regulation established by the disputed provisions is connected not with the political views of the Claimant or persons in his conditions, but their specific and practical activities and political activities with relevant results on the leading posts of the Communist Party. Therefore the disputed provisions do not establish differential treatment on the grounds of political views referred to by article 14 of the Constitution. For the purposes of the right to equality protected by article 14 of the Constitution of Georgia any kind of differentiation of substantially equal persons shall not be considered discriminatory treatment. “Article 14 of the Constitution does not oblige the State to fully equalise substantially unequal persons in any case. It allows for the possibility of certain differentiation... [since] in certain occasions even in sufficiently equal legal relationships there can be necessity and even inevitability of differential treatment... Discriminatory differentiation and differentiation caused by objective ground should be distinguished from each other” (Judgment of the Constitutional Court of Georgia N2/1/473 dated March 18 2011 on the case of “Citizen of Georgia Bitchiko Tchonkadze and others v. The Minister of Energy of Georgia”, II-2; see also Judgment of the Constitutional Court of Georgia N1/1/493 dated December 27, 2010 on the case of “Political Unions “New Rights” and “Conservative Party of Georgia” v. The Parliament of Georgia”, II-3).

75. Considering the content of the right to equality, the Constitutional Court evaluates the constitutionality of limitations established by the disputed provision differently in each specific case. “In a specific instance it can envisage the necessity to argue the existence of legitimate aims... in other instances the necessity of limitation or the need thereof should be tangible. Sometimes maximal reality of the differentiation can be sufficient” (Judgment of the Constitutional Court of Georgia N1/1/493 dated December 27, 2010 on the case of “Political Unions “New Rights” and “Conservative Party of Georgia” v. The Parliament of Georgia”, II-5).

76. As mentioned already the legislator linked the prohibition established by the disputed provisions only to the circumstance that the persons in similar situation as the Claimant exercised labour activities during a specific period of time on different party positions of the USSR. Working at a specific office during the former USSR was conducted for a specific time and space and is completed process. Therefore there is not and cannot be a legal tool which would allow the persons in the similar situation as the Claimant to influence this process. Specifically, it is impossible for them to change the content of the work conducted in the past or refuse to it. Derived from mentioned the disputed provisions prohibit the persons in the similar situation as the Claimant to hold office referred to by article 8.

77. The Respondent indicates that the assessment of the disputed provisions with respect to 14 of the Constitution of Georgia should be made regarding the legitimate aim to protect national safety and security and overpowering the communist totalitarian ideology. The ideology of the Communist Party is substantially different from existing Constitution. Realisation of fundamental constitutional principles would become drastically difficult if the high officials of governing bodies do not share the value order that the Constitution is based upon.

78. The Constitutional Court while assessing the limitations established by the disputed provisions considers that limiting the basic right is allowed for achieving the mentioned legitimate aim.

79. Pursuant to the disputed provisions persons, who held leading party offices in the Communist Party of the former USSR and Georgian SSR are limited to work on specific offices. The Communist Party was a ruling party of the USSR and exercised single party governance. The Communist Party was the main institution which was the creator and the driving force of soviet ideology. The Communist Party of the USSR and similar political unions participated in the governance of the USSR both formally and informally and exercised in practice the ideology, which caused severe results in the face of massive violation of human rights and freedoms. Therefore persons, who held leading offices in the Communist Party and similar political unions directly or indirectly participated in exercising communist totalitarian ideology and thus supported the establishment of the totalitarian regime.

80. When assessing the constitutionality of the disputed provisions the magnitude of the limitations established thereof should be taken into consideration. Specifically the regulation that needs to be assessed applies to specific officials of the Communist Party. While these party positions go beyond the ordinary membership and/or sharing the ideology of this party. Being such official itself meant executing USSR ideology at a local level. Specifically as mentioned above holding leading office at the Communist Party inherently meant influence on the governing process of the USSR and direct participation in implementing the soviet totalitarian ideology. Therefore the Constitutional Court considers that the differential treatment, related to limitation to hold offices referred to by article 8 of the disputed law and not any public office is legitimate.

81. Based on all above mentioned the Constitutional Court holds that unequal treatment based on the disputed provisions do not contradict the requirements set by article 14 of the Constitution of Georgia.

III
Ruling part

Based on subparagraph “f” of the paragraph 1 and paragraph 2 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, paragraph 2 of article 21, paragraph 1 of article 263, paragraphs 1, 2 and 3 of article 25, paragraph 5 of article 27, subparagraph “a” of paragraph 1 of article 39, paragraphs 2, 4, 7 and 8 of article 43 of the organic law of Georgia “On The Constitutional Court of Georgia”, paragraph 4 of article 24, articles 30, 31, 32 and 33 of the Law of Georgia “On Constitutional Legal Proceedings”

THE CONSTITUTIONAL COURT
RULES:

1. The constitutional claim N560 (Citizen of Georgia Nodar Mumlauri v. the Parliament of Georgia) shall be upheld partially and subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” shall be declared unconstitutional with respect to paragraph 1 of article 17 of the Constitution of Georgia.

2. The constitutional claim N560 (Citizen of Georgia Nodar Mumlauri v. the Parliament of Georgia) shall not be upheld in the part disputing the constitutionality of subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” with respect to article 14 and paragraph 1 of article 29 of the Constitution of Georgia.

3. The unconstitutional provisions shall be declared invalid from the moment of publishing this Judgment.

3. This judgment is in force from the moment of its public announcement on the hearing of the Constitutional Court.

4. The judgment is final and is not subject to appeal or review.

5. A copy of the judgment shall be sent to: the parties, the President, the Government and the Supreme Court of Georgia.

6. The judgment shall be published in the “Legislative Herald of Georgia” within the period of 15 days.

Composition of the board:

Zaza Tavadze

Otar Sichinava

Lali Papiashvili

Tamaz Tsabutashvili

The Dissenting Opinion of the Members of the Constitutional Court of Georgia
Zaza Tavadze and Tamaz Tsabutashvili
Regarding the Judgment N2/5/560 dated October 28 of the Second Board of the Constitutional Court of Georgia

1.We express respect towards our colleagues – the members of the Second Board of the Constitutional Court of Georgia, at the same time based on article 47 of the organic law of Georgia “On the Constitutional Court of Georgia” and article 7 of the law of Georgia “On Constitutional Legal Proceedings” we express our dissenting opinion regarding the Judgment N2/5/560 dated October 28 of the Second Board of the Constitutional Court of Georgia in the part which did not uphold the Constitutional Claim N560 in the part disputing the constitutionality of subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” with respect to article 14 and paragraph 1 of article 29 of the Constitution of Georgia.

2.The disputed provisions prohibit persons, who held certain positions in the Communist Party of the former USSR and Leninist Young Communist League between February 25, 1921 and April 9, 1991, to hold number of state offices, which constitutes a restriction of the right of a citizen to be appointed at a public service protected by paragraph 1 of article 29 of the Constitution of Georgia. We also share the position expressed in the Judgment by the Court, according to which the disputed provisions establish the interference of high intensity in the right to equality protected by article 14 of the Constitution of Georgia and therefore create the basis to assess them using strict scrutiny test.

3.The rights protected by articles 14 and 29 of the Constitution of Georgia are not absolute and limiting them is allowed only if the proportionality test is fulfilled. We fully share the opinion expressed by the Second Board of the Constitutional Court of Georgia in the Judgment N2/5/560 dated October 28, according to which the protection of national security and safety, as well as overpowering the communist totalitarian ideology constitutes valuable legitimate aims. For achieving these aims restricting the right to be appointed at a public service and right to equality is allowed; however it can be done only through using the proportionate measures for restricting the right.

4.According to the case-law of the Constitutional Court “the benchmark of limitation of constitutional rights [...] is the principle of proportionality. This principle represents a mechanism for restraining the legislator in restricting human rights and therefore, is an element of constitutional control. The principle of proportionality requires the restrictive regulation must be a reasonable and necessary means for achieving public (legitimate) aim. At the same time, the intensity of the restriction must be proportionate to the aim pursued. It is impermissible to pursue a legitimate aim at the expense of increased restriction of human rights" (Judgement of the Constitutional Court of Georgia No.3/1/512 dated June 26, 2012 on the case of “Citizen of Denmark Heike Kronqvist v. The Parliament of Georgia, II-60). We consider that with respect to the article 14 and the first paragraph of article 29 of the Constitution the severity of restriction established by the disputed provision and its proportionality with respect to the legitimate aims indicated by the Respondent is inadequately assessed in the court judgment.

5.Primarily it needs to be mentioned that the restriction prescribed by the disputed provisions carries blanket character, prohibiting all who held specific party position from being appointed at an office, regardless to the character of their activities. At the same time the restriction is characterized with high intensity since it prohibits the Claimant and persons in similar situation from holding specific offices unconditionally and permanently. Therefore such restriction needs to have strictly grounded connection with the legitimate aim. When establishing such limitation the State is obliged to substantiate that working at the Communist Party in the past in itself causes real threats for the state security and avoiding these threats is possible only by isolating persons in similar situation as the Claimant from state offices (prescribed by the law).

6.When assessing the mentioned issue the Constitutional Court of Georgia should have taken into consideration a number of circumstances that exclude the proportionality of restriction prescribed by the disputed provisions. Primarily it needs to be mentioned that the restriction established by the disputed provisions are derived from the status of a person, indicating towards the criterion, changing of which or influencing it is impossible. The legislator distinguishes the circle of persons, who held certain office in the Communist Party in the past and deprives them from the right to hold state office. Holding a certain office in the past is absolutely unchangeable (even more stable than, for instance, sex, colour of skin or religious belonging), therefore, the persons in the similar situation as the Claimant have absolutely no possibility to transform themselves in any way, as a result of which they would reinstate in right to hold state office. Holding mentioned state offices become unreachable for the persons in the similar situation as the Claimant despite their actions, education they may receive or the degree of democratic values they may base their thoughts and actions.

7.In the instant case restriction of the right is not related to specific threat existent today, but to the activities performed by persons in the past on specific party offices. It is inhumane to consider a person carrying threat during his/her whole life merely for the office he/she held in the past. The attitude of a human and democratic state towards even the most dangerous criminals should be directed at restoring, resocialising them and after serving the punishment seeing them as complete members of the society. Such is the approach of the law of Georgia “On Public Service” towards the persons convicting a crime in the past; specifically after the criminal record is cancelled they are allowed to be appointed at certain offices in public service. According to the current legislation a person, who has committed particularly serious crime against the State (for instance violation of the territorial integrity of Georgia, crime referred to by article 308 of the Criminal Code of Georgia, espionage, crime referred to by article 314 of the same code, conspiracy or rebellion intended to change the constitutional order of Georgia through violence, crime referred to by article 315, etc.), after serving the punishment and once the record is cancelled or removed, may hold any public office. While according to the disputed provisions, persons, towards whom no criminal act is confirmed, have their right to hold a number of state offices restricted for their whole life. Considering this it is absolutely unreasonable why the members of the Communist Party in the past should be seen as more dangerous than those who committed particularly serious crimes.

8.Being a member of the Communist Party or holding a party office in the past does not itself suggest that a person carries a threat. When restricting the right to hold a state office it is essential to identify what the threats of holding an office by this person at the moment of limitation are. Merely being a member of a certain organisation in the past cannot confirm existence of these threats. The Respondent could not indicate any argument that would demonstrate what the connection between permanent prohibition for the Claimant and persons in the similar situation to hold an office and protection of national security and state safety was.

9.It is also notable that prior to adopting the disputed law from 1991 till 2011 the law did not establish restriction on holding a public office for the persons who held relevant offices in the Communist Party. The Respondent could not state a specific fact, which would demonstrate the negative outcome faced by appointing such persons to a state office and would substantiate the mentioned threats.

10. The Judgment N2/5/560 shares the argument of the Respondent according to which prohibiting the Claimant and persons in similar situation from holding certain state offices is adequate and necessary measure to achieve legitimate aim of overpowering communist totalitarian ideology. Pursuant to the Judgment of the Court sharing this line of argumentation is based on the wrong assumption that since persons in similar situation as the Claimant worked at the Communist Party in the past, they a priori represent the creators of communist totalitarian regime and its ideology or the supporters thereof and will continue to be such for their whole life. The Judgment correctly underlines that by the way of permanent limitation to hold state office prescribed by the disputed provisions is more similar to repressive measure carrying elements of punishment, rather than the way of preventing the threats. Persecution, using the measures similar to punishment and punishing people based on their doubtful past, the position held in the past or their thoughts is the very characteristics of totalitarian ideology. These are the methods used by the communist regime to fight against its political opponents and sustained its single-party rule. The aim and target of the modern democratic state is not being called differently than the communist regime but rather to be contextually different with its values, actions and ideologies from the totalitarian regimes. Using repressive measures against a person due to his/her status without assessing the real threats stemming from his/her activities and fighting against ideology by employing such method is not a valid way of building a democratic state. Isolating persons hypothetically related to the former totalitarian regime is not essential for the existence of democratic society; instead it has to be creator of democratic values and condemning the methods characteristic to the governance of totalitarian regimes. In the instant case using restriction similar to punishment by the legislator based on offices held in the past and views carried in the past not only does not serve overpowering soviet totalitarian ideology, but can in certain way be considered as an expression of such ideology.

11. Unfortunately the Judgment N2/5/560 of the Court does not emphasise the issues mentioned above. Contrary to this it is mentioned that the proportionality of the disputed provisions is substantiated by the possibility of the Claimant and persons in similar situation to conduct activities on other offices in the public service or in private sector. The constitutional right to hold state office requires basing any restriction of holding such office on a solid constitutional ground. At the same time the restriction should strictly follow the principle of proportionality and other constitutional standards. Similar requirement is envisaged by the constitutional right to equality, which entails to conduct any unequal treatment in a way justified and conforming to constitutional standards. Derived from above mentioned the limitation established by the disputed provisions should be assessed autonomously. We consider that the possibility to work in private sector or hold other public offices cannot be used either to substantiate the proportionality and constitutionality of unequal treatment to persons, or to limit the right to hold a state office. It is unacceptable to legitimise the State to restrict the right to hold a state office and the right to equality in violation of the principle of proportionality and justify this action by indicating towards the possibility to work in private sector or hold other public offices.

12. Based on all above mentioned we consider that the restriction established by the disputed provisions is an undue method for fighting against the communist ideology and is far from the democratic society. At the same time this restriction is of blanket character, is not oriented towards eliminating threats the State faces and therefore is not logically related to the legitimate aims indicated by the Respondent – protection of national security and safety. Justifying the restriction established by the disputed provisions with regards of article 14 and paragraph 1 of article 29 of the Constitution of Georgia strips the essence from the mentioned constitutional provisions and turns them into inefficient measures to protect the right. The disputed provisions provide for the blanket, without assessment of specific threats, prohibition when the legitimate aim, achieving of which would strictly necessitate using such restriction, is not clear. Such an approach does not only devoid the content of these two rights, but generally casts doubt over the efficiency of constitutional revision and strips the essence from the proportionality test, creating it inefficient and illusionary measure to protect human rights.

13. We agree with the view expressed in the Judgment, according to which blanket prohibition to hold a state office violates the right to dignity and contradicts paragraph 1 of article 17 of the Constitution of Georgia. Stemming from the Judgment N2/5/560 of the Constitutional Court the State considers persons in a similar situation to the Claimant analogous to the communist totalitarian ideology and restricts their right to hold state offices. Such persons fall under the restriction because the State has no objective possibility or relevant will to identify persons participating in the activities of the communist regime and thus uses wide category of restriction. Derived from this with the disputed provisions the State considers persons as objects lacking legal subjectivity and uses them as a means to achieve legitimate aim of protecting national security and overpowering communist totalitarian ideology.

14. Based on the Judgment N2/5/560 of the Court the disputed provisions establish such restriction of the right to equality and the right to hold public office, which causes violation of the right to dignity due to its intensity. The Judgment established that restriction on the right to hold public office in the way the disputed provisions do violates the honour and dignity of a human. Therefore, it is unimaginable the prohibition on holding a public office violating human honour and dignity to be suitable, valid and necessary measure for restricting paragraph 1 of article 29 of the Constitution of Georgia. At the same time, we cannot share the opinion expressed in the Judgment N2/5/560 of the Constitutional Court, that article 14 of the Constitution of Georgia does not prohibit distinguishing persons from other, substantially equal persons and using the measure, which the Court declared to be violating the human honour and dignity, only towards them.

15. Based on all above mentioned we consider that subparagraphs “c” and “d” of paragraph 1 of article 9 of the Law of Georgia “Freedom Charter” contradict right to equality guaranteed by article 14 of the Constitution of Georgia and the right to hold a public office guaranteed by paragraph 1 of article 29 of the Constitution of Georgia.

Members of the Board:

Zaza Tavadze

Tamaz Tsabutashvili