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 the judgement “Citizens of Georgia – Gucha Kvaratskhelia, Givi Tsintsadze, Giorgi Tavadze, Elizbar Javelidze and others (17 complainants in total) v. the Parliament of Georgia” (constitutional complaint N863), where the subject of the dispute was the constitutionality of article 5.4 of the law of Georgia on “Georgian National Academy of Sciences” with respect to article 14 of the Constitution of Georgia. According to the disputed norm, a person aged more than 70 years old could not have held an administrative position of the Academy, namely the office of the President and the Vice-President of the Academy.

The complainants indicated that the disputed provision had restricted psychologically and mentally healthy persons above 70 years with full legal capacity the right to hold administrative positions of the Academy based on age. According to the claimants, despite the age difference, academicians both above and under 70 years, were substantially equal and the differential treatment between them had no objective justification. Therefore, the regulation was discriminatory and in violation of equality before the law enshrined in the Constitution of Georgia.

According to the respondent, establishing age limits, in general, does not violate equality before the law. The legitimate aim for the restriction provided by the disputed norm was to promote the effectiveness and unhindered functioning of the activity of the Academy. Even a healthy person above 70 years might not be able to handle the features of administrative-governing activities and the necessary physical requirements for it.

At the same time, by the position of the Parliament, the administrative positions of the Academy could only be held by the persons holding the Academic status. The number of academics was limited by the legislature and in fact, the age of the majority of academics was above 70. Hence, it was likely for the Academy not to be able to elect the person on the respective position. For these arguments, the Respondent admitted the constitutional claim.

By the legislature applicable at the time admitting the complaint by the Respondent does not lead to termination of the case. Therefore, the Constitutional Court considered the constitutionality of the disputed provision in spite of admitting the claim.

The Constitutional Court considered that with respect to holding an administrative position of the Academy, academics under and above 70 years was substantially equal and the disputed norm had established differential treatment based on their age. The Court also held that the differentiation was not based on any ground indicated in article 14 of the Constitution of Georgia and the intensity of interference was not high. Therefore, the Court used the rational differentiation test for considering the constitutionality of the differentiation.

The Constitutional Court emphasised that in general, it might be allowed to impose different qualification requirements upon servants for the effective functioning of an establishment. But it is also important for the age restriction to be in logical and rational correlation with the intended aim. Although, diminishing certain skills is the subsequent result of getting older, is not sufficient to a priori justify every age restriction.

The Constitutional Court set the two-step test for assessing the rationality of age restriction. Namely, for the age restriction to be justified the lawmaker must show that, due to the nature of the duties assigned, as a rule, a majority of people reaching certain age cannot handle to appropriately perform these duties. It is necessary to be reasoned that in the majority of cases, reaching the indicated age leads to the diminishment of the skills necessary for handling certain activities. At the same time, imposing a blank restriction will be irrational if the decision about the compatibility with the position can be evaluated based on the individual assessment of a person’s skills.

The Constitutional Court assessed the duties and the responsibilities imposed on the positions indicated in the disputed norm and held that implementation of the aims of the Academy and the functions of academics as well, is not connected to any kind of special physical activity. It was also clear from the hearing on the merits, that holding administrative positions of the Academy did not require such energy that is impossible for academics to hold. Therefore, the Court ruled that there was no indication for people above 70 holding administrative positions of the Academy to not be able to fulfil their duties because of the age.

The Constitutional Court also outlined that there were only a few current academics whose age was under 70 and their number is decreasing as the time goes by. Therefore, it is possible that the group of persons who can be elected on the positions at hand will disappear in the future because of the disputed norm. Considering these merits, the disputed provision not only fails to reach the intended aim but in fact, at a certain stage it may cause difficulties and make it impossible for the academic positions of the Academy to be taken by academics.

Based on these merits, the Constitutional Court of Georgia granted the constitutional complaint and found unconstitutional article 5.4 of the law of Georgia on “Georgian National Academy of Sciences”.