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 14 December 2018, the Constitutional Court of Georgia upheld the constitutional complaints №767 and №1272 of Georgian citizens - Jimsher Tskhadadze and Mamuka Chanturia v. the Parliament of Georgia.

The disputed provision established the upper age limit of 50 for serving as a bailiff. The complainants indicated that the quality of exercising functions vested on bailiffs is linked to the individual abilities of the person rather than the age. Therefore, the disputed norm which excluded persons above 50 from serving as a bailiff was discriminatory and restricted the right to hold public office and exercise public service.

According to the Respondent, the restriction prescribed by the disputed norm served to promote the effectiveness and unhindered functioning of the Bailiff’s Office. As a rule, reaching the limited age established by the disputed norm, in most cases causes the decline of the abilities necessary for the fulfilment of the duties of the bailiff. This consideration was a basis for bailiffs above 50 years to be dismissed from the office.

The Constitutional Court emphasised that effective and unhindered fulfilment of the duties of the bailiff, promoting the security of the common courts and the High Council of justice is a crucial legitimate interest for which the legislator is authorised to set age limitations for the right to hold a public office and exercise a state service. The Court noted, according to the analysis of relevant legislation, that a bailiff is authorized to use physical force, special equipment and a weapon in circumstances prescribed by the law. Hence, unhindered fulfilment of these duties depends on the bailiff’s physical preparation and health conditions. However, the evidence examined by the Court did not demonstrate that a person’s physical abilities decline above the age of 50 so, that they could not fully perform their duties as a bailiff, which in certain cases required the use of physical force, weapon or special equipment. The Court also highlighted the individual nature of physical strength decline. The Court, based on the explanation of the specialist, declared that the decline of physical abilities or deterioration of health conditions are not directly linked to attaining 50 as prescribed by the disputed provision.

The Constitutional Court held that it was possible to check every individual’s physical ability to observe whether he/she is compatible with the requirements of the bailiff. Consequently, these circumstances reveal that there is no necessity of dismissing bailiffs on the basis of reaching the disputed age. Moreover, the Court pointed out that in certain circumstances setting the age limit for being appointed to a public office could be justified even if a person is fully capable of fulfilling his/her duties. Namely, the right could be restricted for those who are close to the limited age if this would complicate their replacement by the time of reaching the respective age and stability and effectiveness of human resources in the service would be jeopardized. However, the respondent did not substantiate the existence of an actual threat to the effectiveness of the Bailiff’s Office which would also raise an issue of security in the Common Courts and the High Council of Justice.

With respect to the alleged discriminatory nature of the disputed norm, the Court held that the differential treatment served the same legitimate purpose already referred to by the respondent while arguing the compatibility with the right to hold public office and exercise public service. Therefore, the Court based its decision on previously discussed circumstances and ruled that differential treatment among bailiffs under 50 years on the one hand and bailiffs above 50 years on the other were substantially equal and the disputed norm imposed an unjustifiable differential treatment and was discriminatory.

Based on these merits, the Constitutional Court held that the disputed provision violated the right to equality (Article 14 of the Constitution of Georgia) and the right to hold public office and exercise public service (Articles 29.1 and 29.2 of the Constitution of Georgia).