The composition of the Chamber:

Mr Nikoloz CHERKEZISHVILI (Chairman of the Sitting),

Mr Otar BENIDZE,

Ms Lamara CHORGOLASHVILI,

Mr Zaur JINJOLAVA (Rapporteur Judge).

Secretary of the sitting: Ms Elene LAGHIDZE

Title of the case: The Georgian Young Lawyers’ Association and the Citizen Rusudan Tabatadze v The Parliament of Georgia

Subject of the dispute: Constitutionality of Article 3.3 and Article 3.4 of the General Administrative Code of Georgia vis-à-vis Article 24.1, Article 24.4 and Article 41.1 of the Constitution of Georgia.

Parties to the case: Applicants – representatives of the Georgian Young Lawyers’ Association: Rusudan Tabatadze, Nino Lomjaria and Nino Gobronidze; Respondents – representatives of the Parliament of Georgia: Ioseb Lomashvili and Levan Kasradze.

The case originated in a constitutional claim (no. 364) lodged with the Constitutional Court of Georgia by the Georgian Young Lawyers’ Association and the citizen Rusudan Tabatadze on March 2, 2006.

The constitutional claim was filed on the basis of Article 42.1 and Article 89.1 (f) of the Constitution of Georgia, Article 19 and Article 39 of the Georgian Organic Law on the Constitutional Court of Georgia, Article 15 and Article 16 of the Georgian Law on Constitutional Proceedings.

Under the constitutional claim, on December 11, 2004, the applicant Rusudan Tabatadze applied to the National Security Council of Georgia on the basis of Article 10, Article 37 and Article 38 of the General Administrative Code of Georgia and requested public information kept by the afore-mentioned agency, the documentation of the Temporary Interagency Commission on the Investigation of the Situation regarding the Fight against Smuggling and Concealing Taxes attached to the National Security Council and created according to the Presidential Decree №433 dated May 12, 2000, namely, the copy of a report made as a result of investigating and analyzing the financial activities of the said Agency in 1999-2000, the fiscal system and the legal measures necessary for the fight against smuggling.

The applicant was unable to obtain the information during two months. Consequently, she applied to the Mtatsminda-Krtsanisi District Court. The Mtatsminda-Krtsanisi District Court found the claim ill-founded and rejected it as inadmissible based upon the disputed Article 3.2 and Article 3.3 of the General Administrative Code.

The applicant notes that Article 3 of the General Administrative Code establishes the sphere in which the Code must operate. Pursuant to Article 3.1 of the Code, “The Code regulates activities of state, local self-government and local government bodies and institutions as well as those entities which are deemed to be administrative agencies according to the given Code”.

In the applicants’ opinion, according to Article 3.2, the sphere of the operation of the General Administrative Code is confined to Chapter III in relation to those state agencies mentioned in the same Article. The phrase indicated in Article 3.3 “the operation of this Code” implies the functioning of Chapter III, arising from the essence of the norm. Article 3.2 mandates that only Chapter III covers the indicated state agencies and the reservation given in Article 3.3 restricts the sphere of the operation of Chapter III to a greater extent and is limited to activities related to the performance of an administrative function.

Pursuant to the disputed rule, Chapter III of the General Administrative Code regulates activities of the National Security Council of Georgia which are related to the performance of an administrative function.

According to the constitutional claim, on April 19, 2004, the applicant Rusudan Tabatadze’s claim was again rejected. The applicant required public information, in particular, the 2002-2003 report of the National Antiterrorist Commission regarding work towards the implementation of the state program of common action of Georgia in the struggle against international terrorism.

The impugned Article 3.4 of the General Administrative Code became the ground of the №bs-430-548-k-03 Decision of the Supreme Court of Georgia dated March 10, 2004, according to which the appeal by the Georgian Young Lawyers’ Association concerning the provision of public information was discarded. In accordance with the decision, the provisions of Article 3.4 of the General Administrative Code should cover activities of the National Security Council. Pursuant to the said rule, performing Presidential authorities within the National Security Council, executing international treaties and agreements, and carrying out foreign policy are outside of the jurisdiction of the General Administrative Code and, in particular, Chapter III.

It is noted in the claim that the Georgian Young Lawyers’ Association was also blocked from receiving public information from the public legal entity, the center coordinating projects on the development of agriculture in Georgia with the financial support of the World Bank. According to Article 3.4 (f) of the General Administrative Code, activities of government bodies related to executing international treaties and agreements and carrying out foreign policy are outside of the jurisdiction of this Code.

Arising from the aforementioned, the applicant finds that the contested rules of the General Administrative Code are in contradiction with Article 41 of the Constitution of Georgia, according to which “every citizen of Georgia has the right, pursuant to the procedure established by law, to review information about himself/herself kept by public institutions, as well as official documents kept therein unless they contain state, professional or commercial secrets”. The Constitution declares official information kept by public agencies to be open and gives the opportunity to everyone to review it with three special exceptions: the right of citizens to access to information may be restricted only in the case that it includes state, professional or commercial secrets.

The applicant also observes that Article 3.3 and Article 3.4 of the General Administrative Code are in contradiction with Article 24 of the Constitution of Georgia according to which “every individual’s right to freely obtain information” shall be guaranteed.

In the view of the applicant, freedom of expression guaranteed by Article 24 of the Constitution of Georgia is not deemed to be an absolute right. Article 24.4 formulates the preconditions of the restriction of this right. Pursuant to Article 24.4, “the exercise of the rights enumerated in Article 24.1 and Article 24.2 may be subject to such limitations as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for preventing crime, for protecting others’ rights and reputation, for preventing the disclosure of information received in confidence or maintaining the authority and impartiality of the judiciary”.

The applicant maintains in the constitutional claim that the restriction of the freedom of expression (including the right to freely obtain information) envisaged by Article 10 of the European Convention and Article 24 of the Constitution of Georgia is intended as an extreme measure that is applied only in strictly limited circumstances in order to safeguard another greater good. The Constitution provides an exhaustive list of such circumstances: 1) national security, 2) territorial integrity, 3) ensuring public safety, 4) preventing crime, 5) protecting others’ rights and reputation, 6) preventing the disclosure of information received in confidence, or 7) maintaining the authority and impartiality of the judiciary.

Arising from the aforementioned, the applicant claims Article 3.3 and Article 3.4 of the General Administrative Code to be declared unconstitutional vis-à-vis Article 24.1 and Article 24.4 and Article 41.1 of the Constitution of Georgia.

The respondents, representatives of the Parliament of Georgia Ioseb Lomashvili and Levan Kasradze claim that the disputed rules are not in contradiction with the Constitution of Georgia for the following reasons:

As determined by the General Administrative Code of Georgia, the Code affects activities of state, local self-government bodies and institutions as well as those entities which are deemed to be administrative agencies according to the given Code”. However, Article 3.2 provides a reservation under which some state agencies and, among them, the consultative body of the President, are out of the regulation of this Code except for Chapter III. They submit that the impugned rule does not limit the sphere of the operation of the Code with respect to these bodies. On the contrary, the rule extends the sphere of the operation of the Code and lays down that “this Code regulates those activities of the agencies cited in paragraph 2 of this Article and officials of these agencies, which are related to the performance of an administrative function”. In their opinion, it implies that if these agencies perform administrative functions, they should be handled with other chapters of this Code together with Chapter III. They believe that Chapter III of the Code deals with these agencies in all cases unless the freedom of issuing information is limited by this Chapter itself.

They hold that the applicants failed to provide arguments about why Article 3.3 of the General Administrative Code is in conflict with Article 41.1 and Article 24.1 and Article 24.4 of the Constitution. This Article does not exclude, furthermore, prescribes the operation of Chapter III of the General Administrative Code with respect to activities of state agencies. It is guaranteed by Article 41 of the Constitution under which the restriction of the freedom of issuing information is inadmissible except for exceptional circumstances. The only case when the Constitution of Georgia allows the restriction of the given right is when the requested information contains state, professional or commercial secrecy.

The respondents disagree with the applicants who observe that certain state agencies left information kept by public bodies out of the regulation of Chapter III of the General Administrative Code.

They also hold that the Georgian Law on State Secrecy regulates issues with regard to declaring information as confidential taking into account Georgia’s informational sovereignty and international principles universally recognized in the field of information. Chapter II of the said Law deals with the issue of declaring information as a state secret. Under Article 7.4 of Chapter II, state secrecy serves to be the information in the field of intelligence, national security and securing legal order. Article 1 of the Georgian Organic Law on the National Security Council stipulates that this agency shall be formed in order to ensure the military development and the organization of the country, internal and external policy related to national security, stability related to strategic issues and legal order, and also to make high level political decisions in the area of the security of the country. Therefore, they find that court decisions are in full compliance with the Constitution of Georgia because all the information requested by the applicants represented the documentation including state secrecy.

The respondents claim that freedom of information does not belong to the category of absolute rights either in Georgia or in any other civilized country and they exemplify several states.

Arising from the aforementioned, the respondents hold that the constitutional claim should not be accepted.

Maka Salkhinashvili, an associated professor of law at Ivane Javakhishvili Tbilisi State University was invited to the sitting as a specialist. She observed at the court sitting that, first of all, the legislator had to refine and provide the perfect notion of an administrative agency in order to avoid the ambiguity in relation to the issuance of information. According to her, in case the notion of an administrative agency were to be clear and exact, it would be easy to identify those agencies falling within the regulation of this Code and would prevent any ambiguity and dispute. She notes that it is also interesting what the legislator thought while indicating the following: “the General Administrative Code regulates those activities of the agencies referred to in paragraph 2 of this Article and officials of these agencies, which are related to the performance of an administrative function”. In her opinion, it should be defined and clarified what the performance of an administrative function implies. As to the court decision with regard to the certain issue and also to the decree of the Supreme Court of Georgia, in her view, the courts misunderstood the law causing the refusal of issuing the information.

Arising from the aforementioned, she finds that the disputed rules should not be declared unconstitutional but they should be refined and some amendments must be made to the legislation that will facilitate a solution to this problem in the future.

The Second Chamber of the Constitutional Court of Georgia, based on the analysis of the constitutional claim and the attached materials, the closing speeches of the applicants and the respondents, the explanations given by the specialist, established the following circumstances:

In accordance with Article 3.3 of the General Administrative Code of Georgia, “this Code regulates those activities of the agencies referred to in paragraph 2 of this Article and officials of these agencies, which are related to the performance of an administrative function”. The Chamber of the Court agrees with the view of the respondents according to which if administrative agencies cited in the mentioned Article of the General Administrative Code of Georgia perform administrative functions, they will fall within the regulation of not only Chapter III but other chapters of this Code as well. Consequently, Chapter III of the Code operates in all cases with respect to the aforementioned agencies unless the freedom of issuing information is restricted by this Chapter itself. The Court finds that the administrative function and the public legal function are in fact the same. Pursuant to Article 24 of the Constitution of Georgia, “each individual has the right to freely receive and impart information, to express and disseminate his/her own ideas orally, in writing or any other form”. The Court observes that the given Article contains the three major rights: the freedom of information, thought, and mass media outlets. This Article of the Constitution reinforces the right to freely receive and impart information, to express and impart own ideas by any means. The exercise of this right mainly depends on vigorous actions of an authorized subject. In this case the state is only obligated not to prevent an individual from receiving information, expressing opinions and also not to allow the restriction of media outlets through censure. Pursuant to Article 24.4 of the Constitution, “the exercise of the rights listed in paragraph 1 and paragraph 2 of this Article may be subject to such restrictions as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of crime, for the protection of others’ rights and reputation, for the prevention of the disclosure of information received in confidence or for the maintenance of the authority and impartiality of the judiciary.” The Court finds that the right to receive information is not the absolute right and may be subject to restrictions arising from public interests. Whether the intervention of the state with the freedom of expression of ideas is justified this question must be decided in certain circumstances.

It is actually up to the Court to assess to what extent the right to receive information obligates the state to impart different kinds of information.

Pursuant to Article 41.1 of the Constitution of Georgia, “every citizen of Georgia holds the right to familiarize himself/herself in a manner prescribed by law with information kept by state agencies which concern his/her personality, also official documents kept therein unless they contain state, professional or commercial secrecy.” The Court observes that this Article qualifies official information kept by state agencies to be open and entitles every individual or legal entity to get acquainted with it; familiarizing themselves with information kept by a state agency serves as a prerequisite for the right of the informational self-determination and the free development of personality. Article 10 of the European Convention of Human Rights seeks to protect obtaining, elaborating and then transmitting others’ ideas. In line with this Article, an individual has the right to receive ideas and news from accessed sources without intervention of the state. The Constitution of Georgia provides more guarantees for ensuring the freedom of information. It imposes on the state not only a negative obligation not to prevent an individual from receiving information but also a positive obligation to issue information kept by state agencies. The Constitution of Georgia allows the restriction of the given right in the case that the required information includes the state, professional or commercial secrecy.

Chapter III of the Administrative Code of Georgia enumerates the types of information that can be regarded as secret. It is noted in Article 27⁴ of the Code that the information pertaining to state secrecy shall be defined by the legislation on state secrecy. Article 7 of the Georgian Law on State Secrecy dated 28 October, 1996, provides the exhaustive enumeration of the categories of information that may be deemed to be in state secrecy. The cited Law regulates in detail procedures for receiving information into confidence, determines the persons authorized to decide questions of secrecy of information, the types of secrecy and the rule of granting such status. Article 1.1 of the Law delineates that the information cited in the Law shall be perceived as a state secret in the case that it is considered to be in state secrecy in a manner established by this Law and is subject to the state protection.

In accordance with Article 3.4 of the General Administrative Code, the Code does not regulate those activities of executive bodies which are related to: 1) prosecution of a person due to the commission of a crime and criminal proceedings; 2) operative searching activities; 3) execution of a court judgment entered into force; 4) decision making with regard to military issues, also questions of military discipline unless they concern the rights and freedoms enshrined in the Constitution; 5) carrying out authorities by the President concerning the appointment and dismissal of persons holding the offices prescribed by the Constitution of Georgia, also carrying out authorities envisaged by Article 73.1 (a), Article 73.1 (d), Article 73.1 (e), Article 73.1 (g), Article 73.1 (h), Article 73.1 (n) and Article 73.2, Article 73.4 and Article 73.5; 6) execution of international treaties and agreements and carrying out foreign policy. According to the contested rule, such categories of information may not be subject to publicity. It is important to find out whether the information enumerated in the rule belongs to state, professional or commercial secrecy. Article 41 of the Constitution of Georgia provides for the restriction of the issuance of such kinds of information.

Arising from the aforementioned, the Court holds that Article 3.3 and Article 3.4 of the General Administrative Code of Georgia are not in contradiction with Article 24.1 and Article 24.4 and Article 41.1 of the Constitution of Georgia. In addition, the Court observes that misunderstanding of the law or its improper application by authorized bodies does not imply that the law is not in conformity with the Constitution.

Arising from that previously noted, guided by Article 89.1 (f) of the Constitution of Georgia, Article 19.1 (e), Article 21.2, Article 39.1 (a) and Article 39.2, Article 43.2, Article 43.4, Article 43.7 and Article 43.8 of the Organic Law on the Constitutional Court of Georgia, also Article 32 and Article 33 of the Georgian Law on Constitutional Proceedings,

The Chamber of the Constitutional Court holds that:

1. The constitutional claim of the Young Lawyers’ Association and the citizen Rusudan Tabatadze challenging the constitutionality of Article 3.3 and Article 3.4 of the General Administrative Code of Georgia vis-à-vis Article 24.1 and Article 24.4 and Article 41.1 of the Constitution of Georgia shall not be accepted;

2. The decision shall be entered into force since the moment it is pronounced publicly at the sitting of the Constitutional Court;

3. The decision is final and is not subject to appellation or revision;

4. The decision shall be transmitted to the parties: the President of Georgia, the Government of Georgia, the Parliament of Georgia and the Supreme Court of Georgia;

5. The decision shall be published in “The Georgian Legislative Reporter” in 7 days.

Members of the Chamber:

1. Nikoloz Cherkezishvili;

2. Otar Benidze;

3. Lamara Chorgolashvili;

4. Zaur Jinjolava.