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 22 February 2018, the Second Board of the Constitutional Court of Georgia delivered a judgement in the case: “Citizen of Georgia Avtandil Katamadze v. the Government of Georgia” (Constitutional Complaint №743). The disputed norm in the case was the regulation of the Resolution of the Government of Georgia №45 of 1 March 2013 that determined the list of the persons entitled to compensation for the damage caused by the infliction of harm to health during the implementation of the occupational duty. The disputed regulation stipulated that only the persons working for the enterprises established and liquidated with 100% of state share were entitled to the above-mentioned compensation.¹

According to the complainant, the disputed regulation constituted an unequal treatment between substantially equal persons and therefore, it contradicted with the right to equality guaranteed by Article 14 of the Constitution of Georgia. In particular, the disputed regulation was not referring to the individuals employed at the enterprises established with 100% of state shares in which later, after reregistration of the enterprise, state shares had decreased to below 100%. The complainant argued that the disputed regulation gave rise to the problem of constitutionality, as it established the differentiation between the comparator groups of persons based on the percentage of state shares at the moment of liquidation of the enterprise.

After considering the case on merits the complainant specified the claim. As he indicated, he was requiring abolishing not of the whole disputed provision, but the wording: “with 100% of state share”, which would automatically establish a new order where employees of the enterprises with less than 100% of state shares at the moment of its liquidation would be also entitled to receive the envisaged benefit.

The Constitutional Court of Georgia ruled that there was a differentiation between substantially equal persons with regard to the enterprise they were employed at and the volume of the shareholding percentage of state at the moment of the liquidation of this enterprise. The Constitutional Court of Georgia noted that in connection with the legal relationship regulated by the impugned provision, the percentage of the state shares in the enterprise could not be a ground for considering that comparator groups were substantially unequal, as they had the same interest and necessity of receiving benefits in case of suffering from occupational injury or damage caused by infliction of harm to health during performing their occupational duty.

According to the Constitutional Court of Georgia, after specifying his claim the complainant was demanding modification of the disputed provision and broadening of its content in a way that the persons in the similar situation as the complainant would be able to receive the above-mentioned benefits. Therefore, the claimant party was requiring unconstitutionally not of the whole disputed provision, but only the normative content, which excluded him from receiving the state benefit.

The Constitutional Court interpreted that the disputed provision established the grounds for receiving benefits, for employees of the enterprises created and liquidated with 100% of state share. Therefore, the following regulation did not exclude the possibilities of granting the same benefits to other individuals, such as the complainant. Consequently, the abolition of any of the part of the challenged provision would not entitle individuals, like the complainant to the discussed compensation. Thus, the requirement of the complainant in this particular case was not to abolish any content of the disputed regulation but to create a new normative order by removal of the specific words from it.

The Constitutional Court declared that based on the well-established practice modification of the content of the disputed provision as well as the broadening of the list of potential beneficiaries is beyond the competence of the Constitutional Court. The Constitutional Court of Georgia, as a negative legislator, is entitled to abolish unconstitutional norm entirely and/or partially. However, it is not authorized to form a new legal order or to adopt new regulations as it would be considered as overlapping with the competence of other state institutions, which is in contradiction with the constitutional principle of separation of powers.

According to all the above mentioned, the Constitutional Court of Georgia ruled that on the one hand, disputed provision did not exclude the opportunities of granting the complainant the state benefits, and, on the other hand, the Constitutional Court of Georgia is not entitled to approve the claim of the complainant by adopting anew normative order, therefore, constitutional complaint №743 was not uphold.

1. The subject of the dispute fully: constitutionality with regard to article 14 of the Constitution of Georgia of paragraph 1 of article 5 of the Annex №1 determining “the procedure for setting and issuing of benefit for the employee in respect of the damage caused by infliction of harm to health during performing his/her occupational duty” approved by the Resolution №45 of the Government of Georgia dated March 1, 2013 “on approving the procedure for setting and issuing of benefit for the employee in respect of the damage caused by infliction of harm to health during implementing of his/her occupational duty.”