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 27 July 2018, the Second Board of the Constitutional Court of Georgia partially upheld the constitutional complaint of citizens of Georgia and declared unconstitutional the regulation set out in article 30.8 of the "Law of Georgia on Cultural Heritage". The disputed provision excluded from governmental control cultural heritage objects owned that were under the ownership of religious organisations. In particular, the state organs had no authority to impose responsibility upon the religious confessions in case of their failure to take care of those cultural objects that were under their ownership (enjoyment), as well as state authorities could not take necessary measures to protect objects, without the consent of their owner.

The complainants argued that the state violated its positive obligation to protect cultural heritage, according to article 34.2 of the Constitution of Georgia. At the same time, the disputed provision was in violation of the right to equality (Article 14 of the Constitution of Georgia) as it exempted from the duty of care requirements only religious organisations, whereas all the other owners of the cultural heritage objects were subject to legal responsibility in case they did not fulfill their obligations properly.

The respondent, the Parliament of Georgia, emphasised that the extension of the state’s monument conservation regime to religious organisations would have seriously restricted their right to freely profess their belief, as owners of the cultural heritage objects that are used for religious purposes, would not be able to fully enjoy by using those objects for religious rituals. Therefore, the legitimate aim of the contested regulation was to ensure the free exercise of freedom of religion.

The Court noted that facilitating the realisation of the freedom of religion represents a valid legitimate interest and as religious organisations are able to use cultural heritage objects for religious purposes without restrictions, the measure is suitable to achieve the aim.

Assessing the necessity of the measure to achieve the legitimate aim, the court indicated that the disputed provision excluded state control of cultural heritage objects in all circumstances without taking into account whether the necessary measures to protect cultural heritage interrupt the realisation of religious rituals or not. At the same time, the contested law applied to all kinds of cultural heritage objects regardless of whether they were used for religious rituals. Consequently, the provision was considered problematic due to its blanket nature and it constituted an unnecessary measure in relation to the proclaimed legitimate objective. Therefore, the Constitutional Court found the disputed norm to be in violation of article 34.2 of the Constitution of Georgia.

Additionally, the Court concluded that in order to promote the realisation of religious freedom, the legislative branch may enact narrowly tailored regulation, but at the same time, above mentioned measure should be reasonable, considering the competing interests of different legitimate aims at hand.

Assessing the constitutionality of disputed regulation with respect to article 14 of the Constitution of Georgia (the right to equality) the Court emphasised that while establishing legal responsibility for an act, it should be taken into consideration whether the committed act is motivated by religious beliefs, in order to determine if comparable persons are substantially equal. In the instant case, the disputed regulation was found not to be narrowly framed to religiously motivated acts, therefore, comparable persons were substantially equal.

Since ground for differentiation is not one of those indicated in article 14 of the Constitution, also, the disputed provision does not interfere with the right at a high intensity, the Court assessed differential treatment by the rational differentiation test. The Constitutional Court noted that the blanket character of the disputed provision not only violates requirements of proportionality, but it is also unreasonable by its nature and does not satisfy the criteria of the rational differentiation test. Therefore, the contested regulation was found unconstitutional with respect to article 14 of the Constitution of Georgia.