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 3 July 2018, the First Board of the Constitutional Court of Georgia issued judgements on the cases: “LEPL “Evangelical-Baptist Church of Georgia”, NNLE “Word of Life Church of Georgia”, LEPL “Church of Christ”, LEPL “Pentecostal Church of Georgia”, NNLE “Trans-Caucasus Union of the Seventh-Day Christian-Adventist Church”, LEPL “Caucasus Apostolic Administration of Latin Rite Catholics”, NNLE “Georgian Muslims Union” and LEPL “Holy Trinity Church” v. the Parliament of Georgia” (constitutional complaint N671) and “LEPL “Evangelical-Baptist Church of Georgia”, LEPL “Evangelical Lutheran Church of Georgia”, LEPL “The Highest Administration of all Muslims in Georgia”, LEPL “The Redeemed Christian Church of God in Georgia” and LEPL “Pentecostal Church of Georgia” v. the Parliament of Georgia” (constitutional complaint N811).

The subject matter of the dispute of abovementioned cases was the constitutionality of the wording of subparagraph “B” of section 2 of article 168 of the Tax Code of Georgia and the paragraph 1 of article 63 of the Law of Georgia “On State Property” with respect to article 14 of the Constitution of Georgia.

Under the disputed provisions construction, restoration and painting of cathedrals and churches commissioned by the Patriarchate of Georgia were exempted from VAT without the right of deduction, as well as the Apostolic Autocephalous Orthodox Church of Georgia was allowed the free-of-charge transfer of the state-owned property.

According to the definition of the Claimant party, the disputed provisions were established above-mentioned privileges only for the Patriarchate of Georgia and for the Apostolic Autocephalous Orthodox Church of Georgia. Therefore, the claimants considered that disputed provisions violated equality before the law protected by article 14 of the Constitution of Georgia.

The respondent emphasised that the Georgian Orthodox Church and the complainant religious organisations represent substantially equal groups, yet the differentiated treatment serves the legitimate purposes of protecting cultural heritage and recognising the outstanding role of the Georgian Apostolic Autocephalous Orthodox Church in accordance with article 9 of the Constitution and the Constitutional Agreement of Georgia.

The Constitutional Court indicated that the main purpose of religious associations is to coordinate religious activities and create all necessary conditions for believers. Aforementioned purposes are equally important for the Patriarchate of Georgia as well as for religious organisations, which represent claimant party. Therefore, comparable persons have an equal interest to gain the state-owned property without charge as well as to create necessary conditions for their religious institutions and services. Since using of tax privilege and the conveyance of the state-owned property without charge is granted only for the Patriarchate of Georgia the Constitutional Court shares the submissions of the parties and considers that disputed provisions establish differential treatment between substantially equal persons based on the ground of religion.

According to the Court’s established practice, in order to assess the lawfulness of differentiation based upon the religious ground enlisted in article 14 of the Constitution the strict scrutiny test is applied. The Court firstly made an assessment of the disputed provisions in compliance with the legitimate aim of protecting cultural heritage. According to the Court, the protection of cultural heritage represents a valid legitimate interest. In this context, due to preserving cultural heritage the state is entitled to establish minimum standards for monument protection and restoration. However, it is insignificant for the realisation of this legitimate aim whoever from these religious organizations will be allowed to commission works (construction, restoration and painting of churches and cathedrals) so long as other technical requirements are met.

The Court emphasised that the contested regulation is directed not specifically to the VAT exemption of services related to the monuments of cultural heritage, but to the VAT exemption of services under commission by the Patriarchate of Georgia. Consequently, services connected with not only to the monuments of cultural heritage but also other churches and cathedrals without such status may fall within the regulation of the disputed provision. At the same time such kind of services under commission by the other religious organisations (except the Patriarchate of Georgia) are not exempted from VAT. Based on the above mentioned arguments the Court concluded that there is no logical link between the legitimate aim of protecting cultural heritage and differentiated treatment established by the disputed norm and that achieving of this legitimate aim is possible without the differentiated treatment between comparable persons in this case.

The Constitutional Court also assessed whether the disputed provision was a mechanism for enforcing the requirements of article 9 of the Constitution of Georgia. Specifically, the Court assessed whether article 9 of the Constitution of Georgia requires granting privileges to the Apostolic Autocephalous Orthodox Church of Georgia and restriction of article 14 of the Constitution of Georgia in this manner.

According to paragraph 1 of article 9 of the Constitution, “The State shall declare absolute freedom of belief and religion. At the same time, the State shall recognise the outstanding role of the Apostolic Autocephalous Orthodox Church of Georgia in the history of Georgia and its independence from the State”. The Court indicated that the purpose of recognising the outstanding role of Orthodox Church in the history of Georgia is not to represent the predominance of the Orthodox faith with respect to other religions. Considering constitutional provision in question as the basis of entitlement of any kind of privilege would remove the basis of the right to equality and would be incompatible with the requirements of the Constitution of Georgia, including requirements derived from article 7 and paragraph 2 of article 9 of the Constitution.

The recognition of the outstanding role of the Apostolic Autocephalous Orthodox Church of Georgia is associated with its historical contribution, however, the historical contribution cannot be considered as a self-sufficient source of legitimacy of any privilege. Consequently, it should be assessed from the view of the content of relations regulated by the disputed provi-sions whether abovementioned privileges derive from the historical role of the Orthodox Church.

The Court indicated that the privileges granted to the Orthodox Church by disputed provisions are not derived from any historical circumstances. Specifically, neither granted tax privileges nor allowance of free-of-charge transfer of state-owned property does not have direct, rational and inevitable correlation with the special role of Apostolic Autocephalous Orthodox Church of Georgia in the history of Georgia.

Having regard to its findings, the Court established that disputed provisions are not in compliance with the requirements of the right to equality recognised by the Constitution of Georgia.