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 21 July, 2017, the Second Chamber of the Constitutional Court of Georgia adopted the Judgement in the case of “Citizens of Georgia – Meri Giorgadze and Pikria Merabishvili v. The Parliament of Georgia” (constitutional complaint №735)

The subject of dispute in this case was the constitutionality of the 2nd and 3rd sentences of Article 127(6) of the Law of Georgia of 31 October, 1997 on Public Service with regard to Article 42(9) of the Constitution of Georgia.

The disputed regulation deprived the servant, who was unlawfully dismissed from public service the opportunity to receive compensation for lost salaries under the rule prescribed in Article 112 of this Law, in case the establishment would not reinstate them to their job. The complainant party indicated, that the restriction set forth in the disputed provision contradicted the right to compensation of damages inflicted by unlawful action of the State, Autonomous Republics and local self-government authorities and officials enshrined in Article 42(9) of the Constitution of Georgia.

The complainants explained, that the damages, including the issue of compensation for the lost salaries should not be linked to the fact of reinstatement of a servant to the job, as despite of the fact whether they will be reinstated or not, the damages inflicted by the unlawful legal act issued by the administrative body is already present and therefore, the obligation of its compensation is already triggered. Moreover, there might be cases, when to solve the issue court may order examinations and evaluations, as a result of which it is ascertained that the servants were dismissed unlawfully and that they should be reinstated to their job, however it is impossible due to the objective reasons. In this case, a concerned person loses the opportunity to receive compensation altogether.

The respondent asserted, that postponement of right to receive compensation under the disputed rule is justified, as in-depth examination of the details may confirm that in fact, a person does not meet the requirements of law and was dismissed based on the proper substantive grounds; therefore, they do not deserve the compensation.

The Constitutional Court interpreted, that the right to compensation of the damages inflicted by the autonomous republics and local government authorities and officials is related to the number of premises, which should be present simultaneously: 1. There must be a fact of infliction of damages by an action of a person acting on behalf of the State, Autonomous Republics’ and local self-government authorities; 2. Unlawful nature of actions of the mentioned persons should be established under the due procedure; 3. The damages inflicted to a person should be caused by unlawful actions of the actors mentioned in Article 42(9) of the Constitution and there should be a causal link between the unlawful action and inflicted damages.

The Constitutional Court indicated, that the disputed rule regulates a case, when it is ascertained by the court decision, that a individual administrative-legal act (hereinafter “individual act”) issued for dismissal of a person is unlawful, as it was adopted without examination and evaluation of circumstances important for the case. Therefore there is an unlawful act present, which is committed by an actor listed by Article 42(9). Moreover, the unlawfulness of an act adopted for dismissal of a person from the occupied position is confirmed by the court decision. Thus, the unlawful act of above-mentioned actors is established through the due procedure.

As to the fact of damages, the Court relied on its previous case law and declared, that at the moment of appointment in public service, a public servant has reasonable expectation, that they have guarantee to receive salary, unless they are dismissed lawfully, on the ground prescribed by law. Therefore, the remuneration, that the servant is unable to receive due to the unlawful dismissal from work, constitutes damages for the purposes of Article 42(9) of the Constitution. The disputed provision rules out the compensation for the lost salaries of a servant, unless they are reinstated to the job. In view of this, the presence of damages is also confirmed.

With regard to the causal link between the unlawful act and inflicted damages, the Court noted, that in cases encompassed in the disputed provision, the Court revokes an individual act without solution of the disputed issue, that is, whether there was a legal ground for dismissal of a persons is not ascertained. Therefore at this stage of the case, without carrying out the additional examination, it is impossible to ascertain, whether there is a causal link between the inflicted damages and actions of the respective actor. In those cases, where the administrative authority (establishment) will conclude based on the thorough examination of the circumstances of the case, that there was a legal ground for dismissal of a person and that person should not be reinstated to the work, the damages inflicted to the servant is not caused by the reason of administrative authority, as that person would be dismissed from the work, even if all the relevant circumstances of the case were examined.

Moreover, it is stated in the judgement, that when the de novo, thorough examination of the case leads to finding, that the servant was dismissed without the substantive legal grounds for it, though reinstatement to the work is impossible due to the objective reasons (for example the position and/or structural unit, where this person worked, does not exist anymore) in such case, there is a causal link between the illegal act of the establishment and the inflicted damages - the lost salaries.

In view of the above-mentioned, the Constitutional Court declared the disputed regulation unconstitutional and ruled, that when the thorough examination of the case by the establishment reveals, that there is no lawful ground of dismissal of a person, in such case there are all the preconditions of compensation of damages under Article 42(9) of the Constitution of Georgia and the full amount of lost salaries should be reimbursed regardless of reinstatement of the servant to the job.