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 7 December 2018, the Second Board of the Constitutional Court of Georgia adopted the judgement in the case of "Citizen of Georgia and Canada Giorgi Spartak Nikoladze v. the Parliament of Georgia" (constitutional complaint №1212).

The complainant challenged the constitutionality of the rules regulating childcare issues. The complainant was a legal representative of his underage child and argued that the disputed provision, which allows common courts to issue interim order prohibiting one of the parents to take their child abroad, was contrary to Articles 22(2) and 22(3) of the Constitution of Georgia (freedom of movement).

The complainant indicated that the disputed rule did not satisfy the formal requirement of Article 22(3) of the Constitution of Georgia, according to which this right may only be restricted in accordance with the law. In contrast, the above-mentioned law did not explicitly provide the grounds for issuing the disputed interim order. Therefore, the disputed regulation contradicted the principle of legal certainty. In addition, the complainant was unable to take his minor child to Canada where he could get social welfare benefits as a citizen of that country. Consequently, the complainant argued that the provision unconstitutionally interfered in freedom of movement of a minor child.

The respondent party contended that the disputed rule meets the formal requirement of Article 22(3) of the Constitution of Georgia as the authority of common courts to issue of the disputed interim order is provided by the law. Besides, the legitimate aim of the law is to protect children’s rights and the restriction meets the requirements of the principle of proportionality.

The Constitutional Court of Georgia noted that constitutional rights do not come into being when a person attains the age of majority, minors, as well as adults, are entitled to constitutional rights. Article 22 of the Constitution of Georgia grants freedom of movement to all and there is no any age-related exception for the application of the right.

The Constitutional Court asserted that considering physical and mental abilities of minors, conditions of full application of constitutional rights may be different for them. As mentioned above, considering the lack of ability of minors to make critical decisions in an informed, mature manner, there is a necessity to restrict their scope of freedom to protect their own interests.

Taking the above arguments into account, the court indicated that the scope of constitutional rights of minors should be determined considering the nature of the concrete constitutional right. Minors need the assistance of parents or other qualified persons, in the exercise of their rights that require an informed decision-making process. In the present case, leaving a country is related to significant risks such as the probability of encountering significantly different sociopolitical environment, under the threat of physical or mental security and safety. Therefore, the Court stated, that the right to leave a country should be considered as a right, which cannot be exercised by minors independently, without the assistance of their parents.

The Court pointed out, that both parents possess the equal authority to make decisions for their minor children. Considering that leaving a country is a major decision for the development of a child, it cannot be decided by one parent. Therefore, in case of the absence of parents’ agreement about this issue, there should be a decision-making mechanism that guarantees the protection of the best interests of the child.

On complainant’s argument related to breach of legal certainty principle the Court noted that since the disputed provision did not prescribe ground for punishment, to declare the regulation unconstitutional, the complainant should have indicated the concrete normative content of the rule, which may lead to violation of the constitutional right. In case of absence of parents’ agreement about the mentioned issue, the disputed regulation entrusts a court to decide based on the best interests of the child as a primary consideration. The court stated that regulating the issue in such manner not only makes no interference in the minor’s freedom of movement but is a necessary measure for the full realisation of the right.

In view of all the above-mentioned, the Constitutional Court did not uphold the constitutional complaint №1212.