The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 19 October 2018, the Constitutional Court of Georgia delivered a judgement in the case of “Citizen of Georgia Davit Malania v. the Parliament of Georgia” (constitutional complaint №779). According to the disputed provisions, the order of the court of the first instance issued in certain administrative proceedings was final and it could not be appealed.¹

The complainant stated that the right to apply to the Court of Appeals is protected by the Constitution of Georgia and the prohibition prescribed by the disputed provisions violated the right to a fair trial. According to the position of the Complainant, imposing a large fine and a long-term suspension of a driving licensce as a form of administrative penalty should be subject of an appeal to both, the first instance and appellate courts. The complainant indicated that the dispute over the minimum amounts/duration of the mentioned administrative penalties could be concluded in the court of the first instance, although the provision was blanket and applicable to all disputes, hence violated the right to a fair trial.

The respondent explained that the right to a fair trial guaranteed by the Constitution of Georgia does not require a case to be examined by the courts of three instances in every case. The respondent agreed that in the present case the right to a fair trial was restricted, however, it was justified to achieve legitimate aims of fast and effective justice and ensured the principle of judicial economy.

The Constitutional Court noted that the disputed provisions, in fact, served the achievement of the valuable legitimate aims, such as cost-effective litigation and prevention of the judicial overload. Moreover, limiting access to the court of appeals reduced the number of cases to be heard in appellate courts. Hence, the measure provided in the disputed provision was a reasonable mean for achieving the legitimate aim of the prevention of the overloading of the courts. At the same time, there was no alternative, less-restrictive legal mechanism, which would prevent the court from overloading with the same effectiveness.

In assessing the proportionality of the restriction, the Court saw the legitimate aim of the prevention of overloading of the court and person's right to appeal against the court's decision to the Appellate Court as conflicting interests. According to the interpretation of the Constitutional Court, the prevention of overloading of the court is directly related to the functionality of justice. In view of this, the right to appeal the decision of the court of the first instance, cannot automatically overweigh the crucial interest of prevention of judicial overload in every case. The Constitutional Court declared that the restriction to apply to the appellate court violates the right of a person if he/she, stemming from the particular dispute, has the special interest of appealing the court decision.

The Constitutional Court pointed out that in the present case the interest of a person to appeal was induced by gravity of the alleged offence. In the determination of gravity of the offence, the Court applied the penalty severity criterion for this particular offence. According to the Court’s interpretation, the severity of the penalty does not solely determine the impact on the alleged offender after the conviction. Apart from penalties (including cases, when penalties are not applied at all), finding a person guilty leads to his/her reprimand, which is also a form of impact. Therefore, according to the established approach of the Court, the interest to dispute the norms, which prescribe a liability, is determined not only by the extent of the sanction applied to the person in the case but the gravity of the offence allegedly committed.

According to the Constitutional Court, neither in the constitutional complaint nor during the oral hearing of the case, had the complainant indicated the specific administrative offences with respect to which he required the review of the constitutionality of the disputed provisions. Hence, within the scope of this case, the Constitutional Court found it impossible to assess the severity of all administrative offences and constitutionality of the restriction to a right to appeal for each one of them. The Constitutional Court ruled that the cases where the sanction itself indicated the severity of the offence and, thus, demanded the verification of legality by appeal should be reviewed nonetheless.

The Constitutional Court asserted that, as a rule, deprivation of liberty as a form of penalty indicates the grave nature of the offence. Accordingly, there was an increased interest to appeal against the court decisions in cases where administrative detention was envisaged. The disputed provisions also excluded the possibility of arguing in a court of appeal in cases of administrative offences for which administrative detention was envisaged, along with other sanctions. According to the Constitutional Court, in such circumstances, the person should be granted the right to apply to the Appellate Court, whether or not he/she was actually detained. Thus, the disputed provision which excluded the possibility of applying to the Appellate Court in such cases was declared unconstitutional with respect to Article 42 (1) of the Constitution of Georgia.

The constitutional complaint N779 also challenged the constitutionality of the norm which precluded right to appeal decree of the authority (an official) of the internal affairs on replacing an administrative penalty with another administrative penalty. The Court noted that in the proceedings of replacement of an administrative penalty, a person is not declared guilty, the commission of the offence had already been established and the right to appeal had been realised during the imposition of the initial sanction. Accordingly, the Constitutional Court indicated that the constitutional standard of providing access to the courts of two instances in cases of grave offences, even if a relatively less severe sanction is imposed, is not relevant to the cases of replacing administrative penalties.

The Constitutional Court did neither uphold the claim of the complainants regarding the unconstitutionality of the disputed provisions, which excluded the right to appeal a decree of the authority of the internal affairs on the imposition of an overdue fine. According to the interpretation of the Constitutional Court, the existence of the punitive damages itself does not point to the gravity of the offence and the imposition of an overdue fine is not relevant.

The Constitutional Court also pointed out that one of the objectives of the right to appeal the court decision is to establish the uniform practices and to ensure legal security. Accordingly, the proscription of appeal when the same instance courts interpret the norms differently equals to the rejection of one of the most important functions of the appellation mechanism. A person should be aware of what the law requires from him with sufficient clarity, especially if the law limits his/her freedom of action and imposes responsibility. Thus, the Constitutional Court considered unconstitutional the restriction of the right to appeal in cases where there are no uniform court practices, regardless of the type of administrative offence.

Furthermore, the Constitutional Court clarified that in case of immediate invalidation of the disputed provisions the restriction to apply to an appellate court would be completely abolished, which might have created a significant overload in appellate courts. Therefore, the Constitutional Court postponed the enforcement of its judgement until 31 March 2019.

1. The subject of the dispute fully: Constitutionality with regard to Article 42(1) of the Constitution of Georgia of the words of Article 271 (2), “Except as provided for by Article 272 of this Code”, words of the first sentence of Article 272 (1)(a), the decision of which shall be final”, words of the second sentence of Article 272 (1)(a), “the decision of which shall be final”, words of Article 272 (1)(c), “the decision of which shall be final” and words of Article 272 (1)(d), “the decision of which shall be final” of the Administrative Offences Code of Georgia.