Composition of the Board

Zaza Tavadze – Chairman of the Hearing;

Otar Sichinava – Member;

Lali Papiashvili – Member, judge rapporteur;

Tamaz Tsabutashvili - Member.

Secretary of the Hearing: Darejan Chaligava

Title of the Case: Citizen of Georgia Tina Bezhitashvili v. the Parliament of Georgia.

Subject of the Dispute: Constitutionality of second sentence of article 112 of the Law of Georgia “On Public Service” with respect to paragraph 9 of article 42 of the Constitution of Georgia.

Participants of the Hearing: The Claimant – Tina Bezhitashvili; Representatives of the Claimant – Archil Chopikashvili and Lasha Tchintcharauli; Representative of the Parliament of Georgia - Tamar Meskhia.

I
Descriptive Part

1. On February 24, 2015 a Constitutional Claim (registration N630) was lodged to the Constitutional Court of Georgia by citizen of Georgia Tina Bezhitashvili. On February 25, 2015 the Constitutional Complaint N630 was assigned to the Second Board of the Constitutional Court of Georgia for ruling on admission of the case for consideration on merits.

2. Preliminary session of the Second Board of the Constitutional Court without oral hearing was held on April 1, 2015 for ruling on admission of the case for consideration on merits. Pursuant to the Recording Notice N2/2/630 dated April 3, 2015 of the Second Board of the Constitutional Court the Constitutional Complaint N630 was admitted for consideration on merits. The oral hearing on merits was held on June 9, 2015.

3. According to the Constitutional Claim the legal basis for submission of the complaint is subparagraphs “a” and “f” of paragraph 1 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, article 31 and paragraph 1 of article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”, paragraph 2 of article 1, paragraph 1 of article 10 and article 16 of the Law of Georgia “On Constitutional Legal Proceedings”.

4. According to the second sentence of article 112 of the Law of Georgia “On Public Service” “Remuneration for a period of forced leave shall be given to the officer in the amount of not more than three months' salary.”

5. According to paragraph 9 of article 42 of the Constitution of Georgia “Any person, who has illegally sustained damage inflicted by the State, Autonomous Republics, or self-government bodies and officers, shall be guaranteed by the court to receive full compensation accordingly from the funds of the State, Autonomous Republic, and local self-government."

6. It is indicated in the Constitutional Claim that the Claimant held the position of Specialist at a Military Registration and Conscription Division at the Executive Body (Gamgeoba) of Sagarejo Municipality. She was dismissed from the position by the order N502 dated March 29, 2013 of the Gamgebeli (Head of Executive Body) of Sagarejo Municipality.

7. According to the documents provided by the Claimant with the Judgment N3b/1033-13 dated September 26, 2013 of the Tbilisi Court of Appeals the Order of dismissal N502 was considered unlawful and for the forced leave the respondent party was obliged to remunerate the Claimant in the amount of not more than three months' salary. The Claimant appealed the Judgment of Tbilisi Court of Appeals to the Supreme Court and demanded to be compensated with not 3-months salary but with the salary in full amount, however the cassation complaint was found inadmissible.

8. According to the Claimant paragraph 9 of article 42 of the Constitution obliges the State to fully compensate the damages, however the disputed provision provides for limited responsibility of the State and instead of full amount, obliges the State to compensate the damage in the amount of merely 3-months salary. When the forced leave period is longer than 3 months, mentioned regulation is in contradiction to the Constitutional right of full compensation.

9. As stated by the Claimant a public servant once appointed to the position has legitimate expectation to receive the salary, which is fixed sum and this right is not depended on the volume of the work or its quality. At the same time, according to the Claimant the exhaustion of forced leave period is linked with factual reinstatement of a dismissed person, when relevant decision is in fact enforced.

10. The Claimant stated that possible legitimate aim of disputed restriction is saving state resources; however she noted that the legislator can reach the similar aim by less restricting measure, specifically by limiting the period of the court proceeding.

11. The Claimant indicated in relation to paragraph 9 of article 42 of the Constitution that this constitutional provision does not allow for any exception and the State is obliged to compensate any damage incurred in full amount.

12. Simultaneously the Claimant does not link the existence of damage and defining its amount to commencing or trying to commence work elsewhere by the dismissed person during the period of forced leave, since working at one job and receiving remuneration for it cannot affect the right to be compensated in another job.

13. Derived from all above mentioned the Claimant considers that the second sentence of article 112 of the Law of Georgia “On Public Service” contradicts paragraph 9 of article 42 of the Constitution of Georgia and should be declared unconstitutional.

14. To substantiate her argumentation the Claimant indicates to the Convention on Human Rights and Fundamental Freedoms and International Covenant on Economic, Social and Cultural Rights, as well as the legislation of other States.

15. The Respondent did not agree with the Complaint and based on paragraph 1 of article 37 of the Law of Georgia “On Public Service” indicated that the right to receive salary is tightly linked with the work performed by a person on a relevant position. In the event when a dismissed person does not perform his or her job duties, there is no right on remuneration.

16. According to the definition given by the representative of the Parliament of Georgia, labour rights are rights attributed to the social rights group, which, with some exceptions, are not directly applicable. At the same time, the State has the prerogative to define the budgetary policy, which cannot be the subject of dispute at the Constitutional Court.

17. As stated by the Respondent adoption of the disputed regulation was caused by the limited nature of budgetary resources and the aim to save them. The State has wide margin of appreciation while planning the economic resources to act within its own considerations.

18. Additionally the Respondent stated during the hearing on merits that prescribing amount equal to 3-months salary by the disputed provision was caused by the time-frame of first instance court procedures and such time-frame is fully included by the period prescribed by the disputed provision. As indicated by the Respondent the State expects that such cases will be finalised in the first instance court. The State established the maximum for compensating damages that it could factually provide bearing limited budgetary resources in mind.

19. According to the Respondent paragraph 9 of article 42 of the Constitution prescribes compensating damages only in full amount, however does not provide for the criteria that can be set for each individual legal relationship and this is the discretion of the legislator. The Parliament of Georgia, within this discretion, prescribed for equivalent of 3-months salary amount for unlawful dismissal of public office and took on the responsibility to compensate, therefore the disputed provision does not interfere with the right guaranteed by paragraph 9 of article 42 of the Constitution.

20. Apart from the above mentioned the Respondent analysing article 127 of the Law of Georgia “On Public Service” notes that an officer dismissed unlawfully is allowed to receive 3-months salary for forced leave period only in the event if he or she is in fact reinstated on the position. Additionally if after the court judgment a person cannot be reinstated due to objective reasons, the compensation will not be given.

21. According to paragraph 1 of article 14¹ of the Law of Georgia “On Constitutional Legal Proceedings” non-profit legal entity “Transparency International Georgia” submitted amicus curiae opinionon the Constitutional Complaint N630.

22. The written amicus curiae opinion indicates that an individual has an expectation that state will act within the authority prescribed by law in a way which does not violate the rights of the employees and the officer will receive the remuneration prescribed by labour agreement and will plan the future accordingly.

23. According to the amicus curiae when a person is dismissed unlawfully all conditions for emergence the right to compensation of the damages prescribed by paragraph 9 of article 42 of the Constitution are met, specifically, a state officer acts unlawfully, unlawfulness is established by the decision of the court which is in force, damages are present as loss of income resulting from unlawful dismissal. Additionally there is causal link between the mentioned action and the result, since the unlawful decision of dismissal causes material damages to a person.

24. Non-profit legal entity “Transparency International Georgia” indicated that the disputed provision is not the sole and proportionate measure for achieving the goal, since saving state resources is possible by minimising unlawful dismissals or by reducing the time-frame for court proceedings.

25. In its written opinion amicus curiae for substantiating its argumentation indicates on the case law of the Constitutional Court of Georgia and the International Covenant on Economic, Social and Cultural Rights.

II
Reasoning Part

1. According to paragraph 9 of article 42 of the Constitution of Georgia “Any person, who has illegally sustained damage inflicted by the State, Autonomous Republics, or self-government bodies and officers, shall be guaranteed by the court to receive full compensation accordingly from the funds of the State, Autonomous Republic, and local self-government." According to the Constitutional Court “This norm envisages constitutional guarantees of both material and procedural nature. In addition, everyone is insured with the legal remedies - to apply to a court. The scales for compensation, that is the damage should be fully compensated, are clearly established. Such formulation of the constitutional norm leaves the narrow scope of free action for a legislator, predominantly implying the regulation of procedural matters with close adherence to the constitutional requirements” (Judgement №2/3/423 of the Constitutional Court of Georgia dated December 7 2009 on the case of “The Public Defender v. the Parliament of Georgia”, II-2).

2. The primary aim of paragraph 9 of article 42 is defending the interests of victims by compensating the damages. Considering the magnitude, volume and nature of state resources unlawful actions from the State can frequently carry much higher threats than those made by the private entities. Therefore establishing the obligation to compensate the damages support preventing the arbitrariness and unlawful abuse of power by State, Autonomous Republic and local self-government bodies and officers.

3. Paragraph 9 of article 42 of the Constitution of Georgia conditions compensation of damages to several prerequisites: 1) there has to be a fact of damage incurred by the actions from a person acting in the name of State, Autonomous Republic or local self-government Bodies; 2) unlawfulness of the action of mentioned person should be established accordingly; 3) damages incurred to a person should be caused by the unlawful act from subjects prescribed by paragraph 9 of article 42 and a causal link between unlawful act and incurred result should exist.

4. The Claimant considers that the second sentence of article 112 of the Law of Georgia “On Public Service” contradicts paragraph 9 of article 42 of the Constitution of Georgia. Article 112 of the Law of Georgia “On Public Service” prescribes the right of unlawfully dismissed public officer to demand invalidity of the order on dismissal, change of the basis for dismissal and repayment of the salary. The disputed provision establishes the maximal amount of the money that unlawfully dismissed officer can receive as a compensation for forced leave period. Specifically, “Remuneration for a period of forced leave shall be given to the officer in the amount of not more than three months' salary.”

5. According to the Law of Georgia “On Public Service” a public officer is appointed and dismissed from the position by an individual administrative act. Therefore the duty of compensating damages emerges when there is the basis for invalidity of dismissal act. According to paragraph 1 of article 60¹ of the General Administrative Code “an administrative act shall be void if it contradicts the law or if other requirements determined by law for drafting or issuing it have been substantially violated.” The Code also defines the procedural violations that could be basis for invalidity of an act. According to the second paragraph of mentioned article “issuing an administrative act at a session held in violation of the procedure under Article 32 or 34 of this Code or in breach of the type of administrative proceeding provided for by law, or a violation of law that would entail making a different decision on the given question.” Therefore the law indicates two basis for finding an act void: 1) material bases for invalidity of individual administrative act – act is not based on the grounds for dismissal provided by the Law of Georgia “On Public Service”; 2) formal bases – act is issued with an essential violation of procedural provisions.

6. Unlawful dismissal of a public officer is a result of illegal action by the subjects enlisted in paragraph 9 of article 42 of the Constitution of Georgia. Therefore the duty to compensate damages arises to the State, Autonomous Republic and/or local self-government bodies in all instances, despite whether the procedural or material provisions were violated or not, the dismissal is related to the unlawfulness of the basis for dismissal or substantial violations of the dismissal procedure.

7. According to the Claimant limiting the compensation by a cap violates her constitutional right on full compensation of the income that was not received in the form of salary.

8. Damage to the unlawfully dismissed officer can be expressed in different ways, including non-material form. Unlawfully dismissed person not merely does not receive the possible salary during the period of forced leave, but also experiences the negative results of illegality towards him or her, which in certain cases can be expressed by negative attitude towards him or her from the society or potential employers, which negatively affects dismissed officer’s both material conditions and job reputation. Therefore unlawful dismissal could cause both material and moral damage, the damages compensation of which is guaranteed by paragraph 9 of article 42 of the Constitution of Georgia.

9. While deciding this case the Constitutional Court does not face the necessity to exhaustively define the concept of damage prescribed by paragraph 9 of article 42 of the Constitution of Georgia. In the current case the disputed provision establishes a cap for the salary not received due to forced leave. In the given instance it should be evaluated whether the law provides for compensating the damages caused by forced leave in accordance to article 42 of the Constitution.

10. Receiving the salary by a public officer is strongly linked with fulfilling the job duties. According to the first paragraph of article 37 of the Law of Georgia “On Public Service” a public officer is entitled to the salary from the date of appointment till the date of dismissal. Receiving the salary is not related to the quality of work, its results or other factors. This income is guaranteed to a person during entire period of his/her service, assuming that there is no culpable miscarriage of duties. Thus a public officer has reasonable expectation at the moment of appointment that he or she will receive the salary unless dismissed lawfully.

11. The remuneration is a disbursement made by the State despite the individual characteristics and qualification of a public officer. The bonuses and additional allowances that are parts of the salary have different nature and are given when there are conditions and basis prescribed by law and paying them is depended on specific circumstances.

12. Therefore according to the first paragraph of article 37 of the Law of Georgia “On Public Service” within the guarantee prescribed to public officers a reasonable expectation emerges, that during the service an officer is provided by the remuneration responding to the fulfilment of the duties derived from labour relationship. The Constitutional Court cannot share the opinion of the Respondent that paragraph 9 of article 42 of the Constitution of Georgia entrusts deciding the specific amount of compensation to the legislator. The mentioned provision of the Constitution imperatively establishes the duty to fully compensate the damages. Its force is not confined by merely regulating the compensation is certain field and any damage caused by the State, Autonomous Republic or local self-government officers falls within its scope. Full compensation of damages provided by the Constitution of Georgia envisages this duty not within the limited amount established by a specific subject (even the Legislator), but compensation in full amount of the real damage caused to a person in every specific case. The amount of damage resulted by unlawful dismissal depends on different circumstances and in each case can be different based on the load of work, qualification, job area and other factors.

13. A person has the right to demand the compensation despite whether he or she is in fact employed at the moment of addressing the court and/or deciding on the case. Specifically, even if a dismissed person is later reinstated by the incentive of the employer or is appointed on another position, it does not deprive him/her the right to demand the compensation of damages incurred to him or her. Thus reinstatement in fact, as well as employment of a person in another workplace (including the private sector) cannot relieve the State from the duty to compensate the damages in full amount; however the specific amount of the damages can be different.

14. The amount of damages increases with the period of forced leave and depends on different objective or subjective circumstances, which can be different in each instance based on specifications of the job, personality or capabilities of an employee. A public officer receives remuneration for the job performed by him/her. During the period of forced leave a person does not perform the duties and the damages might not always be identical to the salary that should have been received during the period of forced leave. Therefore the specific amount of compensation should be determined on a case by case basis. The amount of damage might increase when despite the court judgment a person is not reinstated in a timely manner.

15. The disputed provision envisages compensating the damages to a person unlawfully dismissed not in full, but in a limited amount. Establishing by law single, specifically defined amount of compensation for any unlawfully dismissed person disregarding individual characteristics of the case and a person cannot fulfil the requirements the duty prescribed by paragraph 9 of article 42 of the Constitution of Georgia. In reality the amount of damage is not dependent merely on the period of forced leave and for every specific officer can be different. Therefore it could be less than the salary for 3-months period or substantially more than that.

16. According to the Respondent the disputed provision is aimed at full compensation and with the salary amount for 3-months period is linked with average legal time-frame for the first instance court proceedings. This elaboration cannot serve as an argument for constitutionality of the disputed provision.

17. The Court has studied the issue of time-frame for court proceedings in labour disputes; bore in mind the period for deciding the case by the first instance court, the time necessary for it to come into legal force, as well as the procedures of executing the judgment in force by the administrative bodies and established that according the current regulations the period of hearing a case by the court and execution of its decision can substantially exceed 3 months.

18. At the same time it is unclear what the legal cap serves if in reality the damages are never more. Therefore the Court cannot share the Respondent’s argument that the 3-months salary amount cap does not hinder receiving full compensation.

19. During the hearing on merits the Respondent underlined the exhaustive nature of budgetary resources and the importance to spend it in an optimal manner. According to the Respondent the State and self-government should have the ability to bear financial duties in the amount they can objectively bear derived from the budgetary funding.

20. The development of State and local self-governments and executing different projects are substantially dependent on allocating budgetary resources in a correct and necessity-based manner. The Court agrees with the Respondent that budgetary spending should be rational, considering correct allocation of priorities and the interests of each citizen in a possible way.

21. The right established by the paragraph 9 of article 42 of the Constitution and the budgetary expenditures are inseparable and bearing such expenditure by a state is in itself implied within the mentioned right. Therefore saving budgetary resources cannot itself be the legitimate aim for interfering with this right. In a specific instance, when the expanse of compensation can be such a heavy burden on the State Budget that it could endanger the functionality of the State, fiscal and economic security, limiting the right of compensation can be subjected to discussion. Fiscal and economic security of the state is an important legitimate interest and threat to it is not in itself understood as a part of protecting the right prescribed by the paragraph 9 of article 42 of the Constitution of Georgia, therefore in order to provide reasonable balance limiting the right can be justified; however interest of saving budgetary resources separately cannot be a legitimate aim of limiting the right protected by the paragraph 9 of article 42 of the Constitution of Georgia.

22. Relieving the State form the duty of compensating the damages caused by an illegal action of an officer acting in its name with the reason of limited budgetary resources creates a threat that relevant subjects in a specific case will justify their arbitrary actions with the aim of saving the limited resources. Allowing such a possibility would undermine the idea of the very existence of the right, since in frequent instances compensating the damages would become impossible.

23. According to the Constitutional Court “the exhaustible State resources, similar to the State budget, should in the first place be spent on effective realisation of basic human rights” (Judgement №2/3/540 of the Constitutional Court of Georgia dated September 12 2014 on the case of “Citizens of Russia – Oganes Darbinian, Rudolf Darbinian, Sussanna Jamkotsian and citizens of Armenia – Milena Barseghian and Lena Barseghian v. the Parliament of Georgia”, II-26). In the instant case there is a duty, which is rested on the subjects prescribed by the paragraph 9 of article 42 of the Constitution in the event of illegal actions by their officers.

24. An interest of an individual to be compensated is linked with the illegal action of relevant persons and bodies, in which the dismissed person as a rule does not participate. In the event of dismissal provided by the disputed provision there is no unlawful action made by a dismissed officer. The only illegal action was taken by the officer deciding the dismissal, who dismisses a person subordinate to him/her unlawfully. Therefore the dismissed officer has no possibility to affect or avoid the damage or limit its amount. This reason creates excessive need for his/her protection. Despite who is the source of the damage, the interest of a person is restoring the initial state and recovering the material loss caused by the damage.

25. Additionally the dismissed person has no ability to affect the period of legal dispute, as it is not allowed by the Civil Procedure Code, therefore unlawfully dismissed person cannot with any activity reduce or preserve the existing damage, which minimises his/her influence on the process.

26. The right of compensation of the unlawfully dismissed person is prescribed by numerous international law instruments. Including article 7 of the Covenant on Social, Economic and Cultural Rights; article 10 of the International Labour Organisation (ILO) C 158 Convention (Termination of Employment Convention) of 1982 grants the right to unlawfully dismissed person to receive fair and adequate compensation by the Court and paragraph 6 of Recommendation R 118 (Termination Of Employment Recommendation) of 1963 prescribes the right of unlawfully dismissed person on the lost salary. Articles 228 and 229 of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States signed on June 27, 2014 recognise and protect core labour standards, including the standards established by the ILO, recognise the duty of the States to implement in law decent right to work for an employee.

27. Derived from all above mentioned the regulation established by the disputed provision does not ensure fair and full compensation of damages to the persons unlawfully dismissed from public service. Instead of full compensation the law establishes the cap and in some cases the damage received by an officer can substantially exceed the 3-months salary, thus the second sentence of article 112 of the Law of Georgia “On Public Service” contradicts with the requirements established by paragraph 9 of article 42 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, paragraphs 1, 2 and 3 of article 25, paragraph 5 of article 2, 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”, paragraphs 1 and 2 of article 7, 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 complaint N630 (Citizen of Georgia Tina Bezhitashvili v. the Parliament of Georgia) shall be upheld and the second sentence of article 112 of the Law of Georgia “On Public Service” shall be declared unconstitutional with respect to paragraph 9 of article 42 of the Constitution of Georgia.

2. The unconstitutional provision 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