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 5 July 2019, the Second Board of the Constitutional Court of Georgia delivered its judgment in the case of "Levan Alapishvili and ‘LP Alapishvili and Kavlashvili – Georgian Bar Group’ v. The Government of Georgia" (constitutional complaint №1279). In this case, the disputed provisions defined the scope of taxes and subjects obliged to pay in exchange for using LEPL “112” of the Ministry of Internal Affairs (hereinafter, the “112”).

The complainant argued that subscribers were obliged to pay fees related to the “112” service regardless of their will, without specifying relevant services, which violated the right to property. In addition, the rate of “112” services as well as relevant subjects were prescribed by the government’s ordinance, which violated formal requirements of the Constitution. In particular, only the law shall determine the structure and the procedures for introducing taxes and fees, as well as their rates and the scope of those rates. In addition, the complainant argued that the disputed provisions prescribed different rates for physical and legal persons for “112” services without any objective grounds, which violated the right to equality.

In the respondent’s view, the “112” service guaranteed coordination of ambulance, police and firefighting services, and the established fee was aiming to compensate expenses of “112” as well as guarantee affordability of this service for each subscriber. The respondent argued that introduction of “112” fees and definition of subjects of these fees by the Government’s order was in compliance with formal requirements of the Constitution, given that the legislator delegated the right to legislate to the Government under Article 8 (2) of the Law on “Establishment on LEPL “112”. With respect to the right to equality, the respondent noted that establishing different rates for physical and legal entities was due to their different status as well as frequency of referring to “112” from numbers registered under the name of legal entities.

The Constitutional Court established that the fee envisaged under the disputed provision was aiming to compensate expenses of LEPL “112” and was related to securing provision of certain public services to subscribers. Due to this reason, measure envisaged in the disputed provision was to be deemed as fees under Article 67 (1) of the Constitution.

According to definition provided by the Constitutional Court, imposing financial obligation upon an individual by introducing taxes and fees is a specific form of restriction of the right to property. The Constitution of Georgia requires that the structure and the procedures for introducing taxes and fees, as well as their rates and the scope of those rates be determined only by the law, which excludes the possibility of delegating this power to the Government. Contrary to this, subjects of these fees, which is part of the structure of fees, were determined by a normative act of the Government of Georgia. Due to this reason, the disputed norm violated formal requirements set forth by the Constitution and was in breach of Articles 19 (1) and 19 (2) of the Constitution.

With respect to the right to equality, the Constitutional Court noted that, within the scope of a given legal relationship, natural and legal persons were substantially equal subjects. The norm prescribing different “112” rates for physical and legal entities restricted the right to equality and it should have been in accordance with constitutional standards, including those set forth in Article 67 (1). Under the said constitutional provision, structure and the procedures for introducing taxes and fees shall be determined “only by the law”. The disputed act, as noted above, was the order of the Government. The latter was not a body having legitimacy to establish rates of fees and the scope of these fees. Thus, a disputed norm which established different “112” rates for physical and legal entities was in breach of formal requirements of the Constitution, and was in breach of the right to equality under Article 11 (1) of the Constitution.

Taking into account the foregoing, the Constitutional Court deemed the disputed norms unconstitutional with respect to Article 11 (1) and 19 (1), 19 (2) of the Constitution. The Court also noted that invalidation of the disputed provisions upon publication of the judgment would result in termination of the main source of funding of “112” – fees – which might have infringed upon normal functioning of “112” services and caused significant threat to important public interests. Due to these reasons, the Court postponed invalidation of the disputed provisions until 31 December 2019.