The composition of the Chamber:

Mr Vakhtang GVARAMIA (Chairman of the Sitting),

Ms Ketevan EREMADZE (Rapporteur Judge),

Mr Besarion ZOIDZE.

Secretary of the sitting: Ms Lili SKHIRTLADZE

Title of the case: The Georgian Citizens – Davit Jimsheleishvili, Tariel Gvetadze and Neli Dalalishvili v The Parliament of Georgia

Subject of the dispute: Constitutionality of the wording “or in the lawful possession” provided in Article 52.2 of the Criminal Code of Georgia vis-à-vis Article 21 of the Constitution of Georgia.

Parties to the case: Applicants - representative of the applicants – Inga Giorgadze; Respondents – representatives of the Parliament of Georgia: Batar Chankseliani and Ioseb Lomashvili. Specialists – Otar Gamkrelidze, Doctor of Legal Sciences, Professor at Tbilisi State University of Economic Relations; Professor Levan Izoria, Director of Law School of University of Social Sciences of Georgia; Zurab Dzlierishvili, Professor at Ivane Javakhishvili Tbilisi State University. Witnesses – Irodion Khositashvili, Inspector of the Claims Division of the Legal Unit of the Revenue Service of the Ministry of Finances of Georgia and Davit Gablishvili, Chief Inspector of the Court Cases Division of the Legal Unit of the Revenue Service of the Ministry of Finances of Georgia.

I

1) The case originated in a constitutional claim (no. 384) lodged with the Constitutional Court of Georgia by the Georgian citizens – Davit Jimsheleishvili, Neli Dalalishvili and Tariel Gvetadze on 16 May, 2006. With the Record dated 9 June, 2006, the First Chamber of the Constitutional Court admitted to consider the merits of the case.

The constitutional claim was filed on the basis of Article 42.1 and Article 89.1 (f) of the Constitution of Georgia, Articles 19.1 (e), Article 31 and Article 39.1 (a) of the Georgian Organic Law on the Constitutional Court of Georgia, Article 1.2 of the Georgian Law on Constitutional Proceedings.

2) Pursuant to the constitutional claim and the recording notice made in relation to this case, the subject matter of the dispute was the constitutionality of Article 1.1, Article 1.2 and Article 1.3 of the Georgian Law on the Addendums and Amendments to the Criminal Code of Georgia dated December 28, 2005, and Article 40.1 (i), Article 41.2 and Article 52 of the Criminal Code of Georgia vis-à-vis Article 21 of the Constitution of Georgia.

With the contested rules the confiscation of property was added to the types of sanctions (Article 40.1 (i) of the Criminal Code of Georgia) and it was intended to be used only as an additional sanction (Article 41.2 of the Criminal Code of Georgia).

Article 52 of the Criminal Code of Georgia provided the explanation of the essence of “the confiscation of property”, namely, the confiscation of property was regarded as the confiscation of an object or/and means of crime, an item intended for the commission of crime or/and property obtained through criminal conduct for the benefit of the state without any compensation.

According to Article 52.2, “the confiscation of an object or/and means of crime or an item intended for the commission of crime means the confiscation of property owned or legally possessed by the suspect, the accused or the convicted and used for the commission of a premeditated crime or aimed at the commission of such crime for the benefit of the state without any compensation. The confiscation of an object or/and means of crime or an item intended for the commission of crime is carried out by court in case of the commission of any of the deliberate crimes stipulated by this Code and when such object or/and means of crime or an item intended for the commission of crime are present and interests of the state and public necessity or the protection of certain individuals’ rights and freedoms or/and the prevention of the commission of further crime so require”.

The third paragraph defines the circumstances and the procedure of the confiscation of property obtained through criminal conduct.

During the consideration of the merits of the case the applicants’ representative truncated the claims, namely, pointed out that the violation of the applicants’ rights was caused by the phrasing laid down in Article 52.2 of the Criminal Code of Georgia “… or in the legal possession …”.

3) In the applicants’ view, they were prejudiced directly by the contested rule; in particular, they handed over goods of different use, the cost of which amounted to 537947 Georgian Lari to the shipping company Ltd “Nugo-Tourism” in Turkey. The mentioned company while having received the relevant payment undertook the obligation to import the goods in Georgia. As the case materials make it clear, while crossing the border a driver committed a crime envisaged by Article 214.2 of the Criminal Code of Georgia. Consequently, based on Article 52.2 of the Criminal Code of Georgia, with the judgment of the Khelvachauri District Court dated April 20, 2006, the object of the crime being in the legal possession of the driver was confiscated – the various goods with the value of 537947 Georgian Lari in the ownership of the applicants – without any compensation for the benefit of the state.

4) From the standpoint of the applicants, the impugned rule is in contradiction with Article 21 of the Constitution of Georgia under which the confiscation of property is allowed only in case of appearing necessary public need prescribed by law and with relevant compensation. The applicants contest that the legislature must determine the essence of necessary public need and that it is not at the discretion of the judiciary and the executive. Moreover, not only cases of confiscating property but also types and amounts of compensation should be established by law in order to meet the requirements of Article 21.3 of the Constitution.

In their opinion, the contested rule does not meet these conditions. Based on the disputed rule, their property was confiscated for the benefit of the state without providing them with any compensation as a consequence of the criminal conduct of the legal possessor when no public need, no interests of the protection of others’ rights and freedoms and no purpose of preventing the commission of further crime were present.

The applicants also claim that the contested rule is in opposition with Article 21 of the Constitution due to the fact that the confiscated property was in the ownership of an innocent person thereby violating a principle of the individualization of a sentence.

5) According to the respondent’s representatives, the applicants’ claim should not be accepted due to being ill-founded.

They pointed out that the disputed rule allowed interventions of the state in the right to property, although, it must be assessed in connection with Article 21.2 and not Article 21.3 for the reason that by its essence, the impugned rule appears to be a form of control over property.

As the respondent explains, the challenged rule is designed to ensure economic and legal stability of society, diminishing crime, sentencing criminals, and preventing crime. To accomplish these goals, it is necessary to confiscate an object, means of crime or an item intended for the commission of crime regardless of whether it is in the ownership of a criminal or third persons. Moreover, the respondent finds that the impugned rule does not allow disproportionate interventions in the right of the property owner as the owner is entitled to rectify his/her right by bringing civil action against a criminal as well as lodging a civil claim during criminal proceedings thereby involving in these proceedings as a party.

The respondent’s representatives made references to case law of the European Court of Human Rights in which the Court did not find facts of the confiscation of property of the innocent owner to be violations of Article 1 of the First Optional Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms. They also referred to those international acts which obligate states parties to these acts to undertake the similar measure. They presented some examples from legislative experience of other countries.

6) Professor Otar Gamkrelidze, Doctor of Legal Science, assigned to the case as a specialist, paid attention to the necessity of distinguishing material rules from procedural ones in criminal law. In his opinion, “the procedural confiscation” and the confiscation of property as an additional sentence are confounded.

The specialist finds it unjustified to assert that the confiscation of an object, means of crime or an item intended for the commission of crime is necessary in the interests of the state or society or the protection of others’ rights and freedoms or/and the prevention of further crime. He maintains that if an item was intended for the commission of crime or used for the commission of crime then the confiscation should be carried out without any compensation. However, he holds that only property of a criminal may be confiscated.

According to the specialist, it is not acceptable to confiscate another person’s property even being in the legal possession of a criminal and it contradicts Article 21 of the Constitution of Georgia that acknowledges the confiscation of property only in the case if a property owner is given relevant compensation.

7) Levan Izoria, Professor at University of Social Sciences, assigned to the case as a specialist, highlighted the interpretation of Article 21.2 and Article 21.3 of the Constitution of Georgia.

As he observes, when restricting the right to property the object of ownership remains in the possession of the owner while as a result of the confiscation the owner is deprived of the right to possess the object of ownership. Additionally, Article 21.3 of the Constitution of Georgia is confined to the concept of expropriation.

As the specialist states, the legislature establishes the certain case of necessary public need within the framework of both Article 21.2 and Article 21.3. In his point of view, it would be unreasonable to identify a separate criterion under which the legislature would be able to differentiate the meaning of Article 21.2 from the meaning of Article 21.3 of the Constitution of Georgia since the necessity to further define the substance of property or to confiscate property may emerge only in a certain law, in a process of regulating a concrete case in accordance with public need.

In Levan Izoria’ opinion, the legislature enjoys more discretion within the framework of Article 21.2 of the Constitution of Georgia than in the event of confiscating property. The key of this argument lies in the fact that the legislature equally takes into consideration both private and public interests having much more extensive authorization for that. As to the notion of “necessary public need” set forth in Article 21.3 of the Constitution of Georgia, it tends to pose stricter limits for the legislature when interfering in property taking into consideration interests of the protection of an owner.

The specialist believes that the institution of confiscating property provided for by Article 21.3 of the Constitution of Georgia, the confiscation and the institution of confiscating property applied in a form of a sentence should be distinguished.

The specialist finds that Article 21.3 of the Constitution of Georgia guarantees only property being in lawful ownership. As for the means of committing a crime, the Constitution does not secure such property.

Professor Izoria stated that the confiscation of property applied as a sentence serves to be an autonomous criminal legal institution which implies the confiscation of property obtained through criminal conduct and means of the commission of crime without any compensation thereby being in conformity with principles of the democratic, law-abiding state. The concrete meaning of such a sentence may indeed be unconstitutional. Stemming from that, he submits that the constitutional nature of the disputed rule does not generally allow any doubts for the reason that it is designed for the purpose of confiscating an item intended for the commission of crime for the benefit of the state. From the perspective of its constitutionality, extents of practicing the confiscation of property may be argued. The specialist believes that a judge considering a certain case and, in general, judicial discretion plays an important role in adjudicating the question in due course.

8) Zurab Dzlierishvili, Professor at Ivane Javakhishvili Tbilisi State University mainly discussed the legal remedies in civil law which may be enjoyed by an owner in order to protect the right to property. He observed that the owner is not empowered to require property or compensation of harm from the state, however, it is impossible based on the rules regulating unwarranted wealth. To the point, he noted that unwarranted wealth implies obtaining or economizing property at another’s expense without any legal ground. A legal ground serves to be not only a private legal act (a treaty or a normative act) but also legal norms laid down in other fields of law. Accordingly, in his view, while the challenged rule with the current edition exists, the injured innocent owner has the right to require his/her property not from the state but from the criminal.

The specialist stresses that the fact of confiscating property as an object of crime by the state does not invalidate the contract-based right of the owner to require his/her property. From his standpoint, this is the case when the harm must be compensated by the person who failed to fulfill the contractual obligations. Further, another point is to what extent it will be achievable to satisfy the claim in fact.

9) Davit Gablishvili and Irodion Khositashvili, officers of the Revenue Service of the Ministry of Finances of Georgia, summoned as witnesses, focused on the credible link between the owner and the crime at the time of violating customs rules by the shipper and the owner’s possibilities to argue on the confiscation of property. They noted that, in accordance with the current customs legislation, a person presenting relevant documents to customs is responsible for the correctness of presented data, the authenticity of submitted documents and the correspondence of goods with a customs declaration. This person is entitled to estimate the value of goods and reflect it in a relevant document without the authorization by an owner. The owner of goods may not be aware of providing incorrect information by this person. Although, the owner has the right to present correct information to customs agencies later, these agencies are not required to ascertain the identity of the owner of goods and to inform him/her about the improper fulfillment of obligations by the person presenting relevant documents. Accordingly, a notice sent by a customs agency concerning the customs wrongfulness may be sued by the person towards whom it is directed or his/her representative and not any concerned individual.

II

1. Each state, at different stages of its development, has dissimilar priorities. Despite this, the enduring priority of the democratic, law-abiding and social state serves to be the protection of human rights and freedoms, the creation of appropriate conditions for the normal, perfect development of society and each member of it, the development of dynamic economic relations based on principles of market economy, the ensuring a competitive environment in any sphere. From this standpoint, the dynamics of the progress of the state, together with many other factors, is directly dependent on the criminal situation in the state. Only a peaceful and secure country is attractive for any other state to establish international cooperation, confident partnership and stable relations in a certain field. Therefore, the fight against crime is a long-lasting and real problem for most states.

2. Many states preferred to introduce the confiscation of property in a form of a type of responsibility as one of the effective methods of the fight against crime. Although, the limits of its extension, the scope of its application and the approach towards the regulation of this institution by criminal, administrative, civil or customs rules are varied in different states, it is not argued that this type of responsibility is deemed to be the institution recognized by constitutions of democratic states and to be in conformity with democratic principles.

In spite of the fact that the confiscation of property in the form of a type of responsibility is not in conflict with the Constitution itself but it does not imply that the state is released from the obligation to strictly determine its concrete content within the framework of the Constitution. In addition, the state is obligated not only to ensure the consistency of this institution with constitutional rules regulating the right to property but also to take into consideration and meet the requirements of all those constitutional rights or main constitutional principles in the regulation of which this institution may fall while legalizing the confiscation of property.

3. Before starting discussion about the constitutionality of the impugned provision of Article 52.2 of the current Criminal Code, it is essential to differentiate it from the confiscation of property as an additional sentence prescribed by relevant provisions of the Criminal Code of Georgia dated January 1, 1997. Such confiscation was declared unconstitutional by the №1/51 judgment of the Constitutional Court of Georgia dated July 21, 1997.

Despite the fact that the impugned rule also deals with the confiscation of property as an additional sentence, there is an important distinction between their contents and limits:

a) Pursuant to the invalidated rule, property (or its part not having any link to a crime) in the private ownership of the defendant was confiscated. According to the disputed provision, an object, means of crime or an item intended for the commission of crime is subjected to the confiscation. Thus, the impugned provision deals with property somehow linked to a crime.

b) In accordance with the unconstitutional rule, property in the private ownership of the defendant was confiscated, and pursuant to the argued rule, an object or/and means of crime or an item intended for the commission of crime not only in the private ownership, but also in the lawful possession of the suspect, the defendant and the convicted were confiscated.

c) The Criminal Code of Georgia of 1997 provided for the confiscation of property as an additional sentence for several crimes and according to the disputed provision, such additional sentence may be rendered for all intentional crimes.

d) In spite of the fact that in both cases the court decides about the confiscation of property, there is a difference between the conditions of the application of this sentence.

In line with the argued rule, an additional sentence may be passed only in presence of the following preconditions: a) when there exists an object or/and means of crime or an item intended for the commission of crime and b) their confiscation is needed arising from state and public necessities or interests of the protection of others’ rights and freedoms or/and the prevention of further crime. The Criminal Code of Georgia of 1997 did not provide for these stipulations.

As it has already been noted, the confiscation of property as an additional sentence does not contravene the constitution itself, its certain content and extents may be unconstitutional. The contested and invalid rules are distinguished within this context. Therefore, the Constitutional Court of Georgia must judge on the constitutionality of the new content and extents of this type of sentence.

4. The applicants require the impugned rule to be assessed vis-à-vis Article 21 (all three paragraphs) of the Constitution of Georgia.

Pursuant to Article 26.3 of the Georgian Organic Law on the Constitutional Court of Georgia, “while examining a normative act, the Constitutional Court regards not only the wording of a disputed rule but also the real idea reflected in it, the practice of its application and the essence of a relevant constitutional norm”. Based on the principle of proportionality, it is possible to assess the constitutionality of a norm while accurately considering all mentioned questions. In order to review the constitutionality of the argued rule, it is required to interpret the content and extents of Article 21 of the Constitution of Georgia as well as the wording, the real idea and the purpose of the disputed rule.

5. Human dignity and personal freedom are expressed in main, natural rights. These rights are of unique character due to their being indispensable and not derived ones. A human being holds such rights since the birth and this fact obligates the state to adequately ensure the full realization of the personal freedom of each individual. At the same time, this circumstance requires more caution and proportionality of state actions while establishing limits of the possible interference with and the regulation of a certain right.

The right to property is the natural right without of which the existence of a democratic society is impossible. The right to property serves to be not only an elementary basis for the existence of an individual but it also ensures his/her freedom, the adequate realization of his/her skills and opportunities and helps an individual lead life on his/her own responsibility. All this logically determines private initiatives of an individual in the economic field thereby promoting the development of economic relations, free entrepreneurship and market economy, also normal, stable civil circulation.

At the same time, private property, as an institution, seems to be the core of market economy. Accordingly, it serves to be one of the important prerequisites not only of the economic competition among owners but also of the democratic state and public order.

Arising from the aforementioned, protected, guaranteed private interests ensure to meet public interests. Naturally, the more solid legal guarantees of the right to property are the more liberal private legal relations are there. Therefore, public interests become more real to be achieved. Apart from it, meeting concrete private interests is greatly dependent on protected public interests.

One of the most significant prerequisites of the stability of the modern state appears to be the precise and fair determination of priorities among private and public interests and the creation of a reasonably balanced system of relations between the state and the individual. It, first of all, is reflected in the adequate legislative regulation of the content and extents of a certain right.

6. The legal guarantee of the right to property as well as other fundamental rights is mainly regarded to be the constitution, in particular, a) its major principles which determine trends of the development of the state and the very essence of the possible relationship between the state and the individual. These principles are as follows: the democratic public order, the economic freedom, the social and law-abiding state. The norm determining the essence of the relationship between the state and the individual is also set out in Article 7 of the Constitution under which “the state acknowledges and protects universally recognized human rights and freedoms as eternal and supreme human values. In the exercise of the power the public and the state are confined to these rights and freedoms perceived to be the law in direct force”.

b) the certain constitutional guarantee of the right to property is laid down in Article 21 of the Constitution.

7. One can understand the notion and the essence of property guaranteed by the Constitution while reading the Constitution itself. One can see here the permissible extents of determining the correlation of private and public interests as well. The Legislature is authorized and even obliged to act in this field within the framework of Article 21 in order to avoid correcting or infringing the real idea of this right.

According to Article 21.1 of the Constitution of Georgia, “property…is recognized and guaranteed…”

This norm appears to be the guarantee of the institution of private property and of the fundamental human right simultaneously. Ensuring the inviolability of the institution of private property, this rule obligates the legislature to create such a system of norms that will exclude any doubts on the existence of this institution.

The guarantee of the right to property, first of all, implies the right of owners to protect themselves against unjustified interference by the state, namely, to apply to court to protect their rights. Furthermore, guaranteeing property does not only cover the right to protect oneself against the state, it, concurrently, obligates the state to protect this right, first of all, by incorporating the regulation of the content of property in legislation in conformity with the constitutional stipulations.

8. The right to property is not an absolute right. Article 21 is designed in such a manner to ignore an order in which private interests absolutely prevail over public interests.

Legal systems of democratic countries seek to consider property and an owner not separately but within the context of a determined legal order. Even those legal orders known in history for instituting the freedom and inviolability of property do not acknowledge the absolute character of property. The same may be said about the Roman law.

Property, in parallel of meeting private interests of an owner, bears a social function in the social state. Law cannot be reluctant towards the social function of property as the task, position, role and significance of property can be identified through this function. Therefore, the social and law-abiding state equally requires the freedom of private property to be secured and the necessity of its restriction for public purposes.

Article 21 of the Constitution of Georgia stipulates the possibility of interfering with property for public purposes, in particular, the restriction of the right to property and the confiscation of property.

9. The Constitution managed to balance private and public interests in such a manner that in the case of a conflict of interests a public interest prevails and an owner must tolerate the interference with his/her property. It should be emphasized that the Constitution did not allow the legislature to settle such a conflict and provided the relevant settlement in Article 21.2 and Article 21.3., under which, the interference with property by the state in a form of the restriction or confiscation of property is permitted only in appearance of necessary public need.

If we admit that it is possible to interfere with the right to property to carry out a state policy in this or that sphere and such interference does not correspond to extents of the interference with the right to property in appearance of necessary public need, then the temptation of abusing the state power will logically be increased and it will become possible to broaden extents of need for restricting the right to property resulting in the unjustified interference with the right to property, the infringement of the right. In line with the Constitution, any interference with the right to property is acceptable only within the framework of Article 21.2 and Article 21.3. This is the obligation of the state to ensure that its policy in a certain sphere be subjected to necessary public need provided for in Article 21.2 and Article 21.3. At the same time, it is the obligation of each owner to tolerate such state interventions with his/her property – this is the constitutionally recognized obligation that accompanies the constitutionally guaranteed right to property.

10. Although, the restriction of the right set forth in Article 21.2 of the Constitution of Georgia and the confiscation of property permitted by Article 21.3 constitute the interference with the guarantee of property laid down in Article 21.1, they are principally distinguished by their contents. The most important discrepancy between these two types of the interference is that there exist diverse requirements for the justification of constitutionality.

11. According to Article 21.2 of the Constitution of Georgia, “it is permitted to limit the rights mentioned in Article 21.1 in appearance of necessary public need in circumstances and in a manner as prescribed by law”.

Consequently, the legal ground for justifying the restriction of the right to property is a) the formulation of cases of necessary public need by law; b) the formulation of the procedure of the restriction by law.

With this clause the legislature is vested with the power to determine the content of the right to property on the condition that the legislative determination will be adequate to the constitutional requirement. This is the case when a material criterion of the restriction emerges and obligates the legislature to ensure the reasonable balance between private and public interests. While fulfilling the obligation owed by virtue of Article 21.2 of the Constitution the legislature faces the situation when it is due to equally take into consideration the guarantee of the right determined by the Constitution and the requirement for an order and to balance interests. It is not acceptable to neglect the social function of property and, at the same time, it is impossible to justify the superfluous, disproportionate restriction of an owner.

While defining the content and extents of property the legislature must be oriented on necessary public need that tends to be not only the ground of instituting limitations towards an owner but also the margin of these limitations.

It is not accepted to introduce stricter limitations than are required by certain public need. The Legislature must balance both requirements through the proportionality principle. Unilateral privileges are not in conformity with the constitutional perception of private property that envisages its social function. At the same time, in order to justify the constitutionality of the instituted restrictions it is important to weigh to what extent they are needed in a certain sphere and to what extent they are adequate measures. Hence, the interference with property of an individual should be in reasonable correspondence with the expected benefit of society.

12. In order to assess the constitutionality of the interference with the right to property it is essential to analyze the following issues: what is “the necessary public need” provided for in Article 21 of the Constitution of Georgia, who is authorized to determine, in each certain case, what should be regarded to be such need and what are those criteria by which he/she should be guided in such a case.

There is no definition of necessary public need. This is an abstract legal term which acquires a certain essence at different times and in different historical periods and tends to be subjected to changes in accordance with diverse and dynamic social, economical or political factors.

Pursuant to the Constitution of Georgia, only the legislature is vested with the power to determine the certain formulation of necessary public need. It is up to the legislature to establish what measures must be taken in the interests of society. The legislature provides appropriate stipulations on the basis of economic, socio-political views and goals.

The legislature is not required to indicate in a norm “the necessary public need” in the interests of which a measure is taken. “Necessary public need” may be identified as a result of analyzing and interpreting a rule. A person applying this rule does not himself/herself constitute the existence of “necessary public need” but finds that in a certain case “necessary public need” is inferred (№2/1-370, 382, 390, 402, 405 judgment of the Constitutional Court of Georgia dated May 18, 2007). At the same time, legislative determination of a circumstance as “necessary public need” must be precise in order to avoid the likelihood of incorrect interpretation and arbitrariness by courts bringing in the violation of that right.

However, the legislature does not enjoy the absolute discretion while determining a certain essence of this notion. Otherwise, it would be possible to regard any situation as necessary public need thereby justifying any interference with the right to property. Consequently, mentioning any circumstance as necessary public need in a legal rule is not sufficient to justify the restriction of property and claim its constitutionality. “The Constitutional Court establishes whether the legislative discretion with respect to “necessary public need” is appropriate and in conformity with the Constitution” (№2/1-370, 382, 390, 402, 405 judgment of the Constitutional Court of Georgia dated May 18, 2007).

While determining “necessary public need” extents of the legislative authority for accepting the restriction of the right to property and the confiscation of property are differentiated.

When allowing the restriction of the right to property the discretion of the legislature to determine necessary public need is much wider. In this case, the legislature, first of all, takes into account the function of property. The more society, its normal functioning and development are dependent on others’ property the more the legislature has the power to restrict the right to property.

Additionally, the essence of an object of the right to property and its probable social role should be necessarily taken into consideration. It greatly determines the issue of regarding a circumstance as “necessary public need”.

Article 2.2 of the Georgian Law on the Procedure of the Confiscation of Property in the Interests of Necessary Public Need and Article 2 of the Georgian Organic Law on the Procedure of the Confiscation of Property in a State of Emergency in the Interests of Public Need provide an exhaustive enumeration of cases of necessary public need when the confiscation of property is allowed.

13. According to Article 21.3 of the Constitution of Georgia, the confiscation of property is allowed: a) in circumstances directly prescribed by law in the interests of necessary public need, when it is authorized by a court decision and respective compensation is ensured; b) in a state of emergency provided for in the organic law in the interests of necessary public need when respective compensation is ensured.

It is noteworthy mentioning that the confiscation of property does not always coincide with the meaning of the confiscation encompassed in Article 21.3 of the Constitution of Georgia. One must take into consideration the purpose, content and form of the interference with the right. In some cases, the confiscation of property may be a result of the restriction of the right. It would be incorrect to consider such cases as unconstitutional vis-à-vis Article 21.3 only on the ground that the confiscation is carried out without compensation. From this standpoint, the emphasis should be made on major, distinctive aspects of Article 21.2 and Article 21.3:

a) The confiscation stipulated by Article 21.3 covers cases of the expropriation. “As the analysis of jurisprudence of the European Court of Human Rights, constitutional courts of various countries and the Constitutional Court of Georgia … demonstrates, the institution of the confiscation of property provided for in Article 21.3 has apparently expressed formal attributes. This conception does not cover any case of losing property by an individual against his/her will. The confiscation of property implies the expropriation and its conditions and procedures are laid down in the Georgian Law on the Procedure of the Confiscation of Property in the Interests of Necessary Public Need” (№2/1-370, 382, 390, 402, 405 judgment of the Constitutional Court of Georgia dated May 18, 2007).

The confiscation shall be considered as the expropriation if its form and essence are in accordance with requirements of the Georgian Law on the Procedure of the Confiscation of Property in the Interests of Necessary Public Need.

In addition, Article 21.3 also covers other cases of the confiscation stipulated by the Georgian Law on the Procedure of the Confiscation of Property in a State of Emergency in the Interests of Public Need which are different from cases of the expropriation by their contents, forms and procedures.

b) It is of considerable importance that cases of necessary public need in presence of which the confiscation of property is justified in line with Article 21.3 are found to be exhaustively enumerated in the above mentioned laws. No other case may be considered as necessary public need allowing the confiscation of property within the meaning of Article 21.3.

c) While confiscating property in accordance with Article 21.3 the legislature, in the case of the existence of necessary public need, seeks to act individually, purposefully towards private property so that determined public interests are accomplished at the expense of confiscating property of an individual (individuals). Moreover, this measure is of single use. When establishing general extents of the use of property and obligations of owners in presence of necessary public need within the framework of Article 21.2, the restriction of property with such conditions concern individuals until a certain purpose considered to be necessary public need will be accomplished.

d) Article 21.3 does not allow the right to require the return of property confiscated in conformity with legal requirements when relevant compensation is provided since an owner loses not only property but also the right to this property. While restricting the right to property resulting in the confiscation of property within the framework of Article 21.2, an owner does not always lose the right to certain property, he/she may have the right to require property or appropriate compensation.

e) Appropriate compensation serves to be a necessary prerequisite of the confiscation set forth in Article 21.3. Article 21.2 does not provide any direct implication to obligatory compensation for restricting property. Such possibility may be afforded in some exceptions when, in spite of justifying the restriction of an owner in presence of public need, such restriction exceeds established limits of the interference with the right to property. In such cases the state is obligated to provide payments for the purpose of balancing the restriction thereby ensuring the proportionate interdependence between private and public interests.

Consequently, when restricting the right to property the legislature is obligated to determine in detail all necessary conditions, among them compensation, in order to strike the reasonable balance between private and public interests. In some instances, compensation may ensure the successful balance of private and public interests in order for the legislature to avoid making a choice between the public need and the owner’s interests.

14. As a result of analyzing the content and extents of Article 21 of the Constitution of Georgia, first of all, it is necessary to figure out whether an object, means of crime, or an item intended for the commission of crime being in the lawful possession of the suspect, the defendant or the convicted serves to be the property protected by Article 21, in other words, whether such property enjoys the constitutional protection.

Article 21 protects only lawful property. Unlawful property may not fall within the ambit of Article 21 as the existence of the right to property itself is doubted. In its judgment №2/5/309, 310, 311 dated July 13, 2005, the Constitutional Court of Georgia noted that the provisions of Article 21 of the Constitution of Georgia “deal with legally purchased property the ownership of which is not argued and will not cover dealings related to the confiscation of unlawful and unwarranted property as in such cases the right to property itself tends to be a subject-matter of a dispute and its existence is in doubt”.

The fact of the lawful purchase of property determines the lawfulness of the right to property. This is the circumstance that has considerable importance for the existence of the right to lawful property. The fact that a person uses a lawfully obtained item as an object or means of crime does not invalidate the fact of its lawful purchase. Accordingly, this fact cannot make the right to property unlawful; property is lawful and falls within the ambit of Article 21 if its acquisition was carried out in observance of legal requirements. Within this context, an object, means of crime and an item intended for the commission of crime are distinguished from property obtained through criminal conduct. The latter does not fall within the ambit of Article 21.

According to the view presented by the respondent at the sitting, while violating customs rules an object, means of crime or an item intended for the commission of crime which are in the lawful possession of the suspect, the defendant and the convicted do not fall within the framework of Article 21 of the Constitution of Georgia.

Naturally, property must be subjected to customs clearance in accordance with rules established by law in order to be engaged in the lawful civil circulation, in other words, its import must be carried out in observance of customs rules otherwise its possession will be regarded as unlawful. Although, this fact does not affect the right to property itself since, as we have already mentioned, the fact of the lawful purchase of property determines the lawfulness of the right to property.

It is noteworthy that when considering infringements of the right guaranteed by Article 1 of the First Optional Protocol of the European Convention for the Protection of Human rights and Fundamental Freedoms, the European Court of Human Rights examines at the first stage whether an applicant is entitled to hold the right to property or possession falling within the framework of the given Article. The European Court considered a number of cases concerning the confiscation of an object and means of crime. Regardless of the fact whether a case was decided to an applicant’s satisfaction or not, the Court discussed the proportionality of the confiscation of such property thereby holding that this issue falls within the protection provided for in Article 1 of the First Optional Protocol (Case “C.M. v France”, judgment on the rejection of the application dated June 26, 2001; case “Air Canada v the United Kingdom”, judgment dated May 5, 1995; case “Agos v the United Kingdom”, judgment dated October 24, 1986,).

Arising from the afore mentioned, an object, means of crime and an item intended for the commission of crime being in the lawful possession of the suspect, the defendant, the convicted are deemed to be property protected by Article 21 of the Constitution of Georgia but it admits to establish certain limits for the use of such property i.e. to establish restraints by the state that is subject to the assessment vis-à-vis Article 21 of the Constitution.

15. It is necessary to ascertain the relation of the disputed rule to the respective provision of Article 21 of the Constitution of Georgia in order to assess its constitutionality.

The confiscation of property in the form of an additional sentence is absolutely different from those cases of the confiscation that are dealt with Article 21.3. Though, the need for confiscating property is envisaged by law, a decision is made by court i.e. there is a similarity with Article 21.3 by formal-legal elements but it is not conditioned by those criteria laid down in paragraph 13 of the motivation part of the present judgment. The existence of such criteria is necessary to review a concrete case of the confiscation of property vis-à-vis Article 21.3.

The disputed rule determines the content of the right to property and establishes its extents to achieve a certain public purpose. Consequently, the impugned provision of Article 52.2 of the Criminal Code of Georgia is subject to the review vis-à-vis Article 21.2 of the Constitution of Georgia.

16. The constitutionality of the contested rule must be assessed by formal-legal and material criteria. In this case formal requirements are met, namely, the confiscation of an object, means of crime and an item intended for the commission of crime being in the lawful possession of the suspect, the defendant and the convicted, the aim of the confiscation, the public interest and the procedure of the confiscation are prescribed by law (impugned rule). Therefore, the impugned rule is consistent with Article 21.2.

From the material standpoint, first of all, it must be ascertained what is the legitimate purpose of the restriction stipulated by the argued rule, to what extent it is possible to consider such restriction to be necessary public need within the context of Article 21.2 of the Constitution of Georgia. One should also consider if there is the reasonable proportionality between this purpose and the imposed restriction in order to assess the constitutionality of the rule.

17. The legitimate aim of introducing the contested rule and, accordingly, restricting the right to property is read in the rule itself. In particular, this is the state and public necessity, the protection of certain individuals’ rights, freedoms and the prevention of further crime.

Generally, the main purpose is to fight against crime thereby completely ensuring the prevention of further crime and the protection of others’ rights and freedoms.

Naturally, the prevention of further crime and the protection of others’ rights serve to be the general aim of the fight against all premeditated crimes. As regards to the state or public necessity, this is a general term and except for the fact that it comprises the mentioned two purposes, at the same time, it has the certain content with respect to individual crimes. Its content is varied when dealing with crimes against human being, property, monetary system, state, also narcotic crimes and other ones. For instance, while violating customs rules the state and public necessity comprises a number of circumstances and values to be protected. Namely, it’s natural that the protection of others’ rights and freedoms and the prevention of further crime are essential but, the economic and financial stability of the country, the normal civil circulation, the effectiveness of a tax system, the dynamic development of market economy may also be regarded as the state and public necessity. Therefore, all states take interest to encumber smuggling through the most effective ways and take very stringent measures in this direction.

18. It is worth mentioning that the adoption of the impugned rule was conditioned by international obligations as well. In particular, several grave crimes of international concern inspired member states of the Council of Europe as well as other states to agree on the adoption of additional measures to effectively fight against such crimes. One of such measures was considered to be the confiscation of property used for the commission of crime or obtained as a result of crime. From this point of view, the Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime dated November 8, 1990, is very important. The purpose of introducing such type of responsibility is read in the preamble itself: the need for carrying out general criminal policy aimed at protecting society; the fight against serious crimes of international concern that requires the use of modern and effective methods on international plane. Having taken it into consideration, states agreed that “each party shall take such legislative and other necessary measures allowing them to confiscate means and proceeds or property the value of which is equal to the proceeds” (Article 2.1 of the Convention). As the Convention explains, the confiscation is deemed to be “a sentence or a measure rendered by court as a consequence of proceedings related to crime or crimes resulting the ultimate confiscation of property” (Article 1.d).

Georgia acceded to this Convention on February 17, 2004 (№3345-rs decree of the Parliament of Georgia).

Ensuring the harmonisation of national legislation with afore mentioned provisions of the Convention appears to be one of the reasons for adopting the impugned norm. This is indicated by the explanatory note of the relevant draft law “on Introducing Amendments to the Criminal Code of Georgia”.

By their essence and meaning the mentioned purposes correspond to the idea of necessary public need set forth in Article 21.2 of the Constitution of Georgia. Accordingly, the Constitution affords the possibility to restrict the right to property for these purposes.

19. On the one hand, the public interest – necessary public need for fighting against crime allows the legislature to circumscribe the content of the right to property in line with Article 21.2 of the Constitution of Georgia but, on the other hand, the public interest may be weighed by the private interest. The private interest in the given case serves to be the right to property of the person whose property was used as an object, means of crime or an item intended for the commission of crime without his/her will.

By the contested rule the legislature established the certain form of the interference with the private interest in order to accomplish the stated public interest.

The question whether the legislature could strike the reasonable balance between private and public interests in the manner required by Article 21.2 of the Constitution of Georgia when interfering with the right to property as well as the constitutionality of the norm must be ascertained on the basis of the proportionality principle.

“The proportionality principle … ensures the balanced, proportionate interaction between the freedom and its restriction and bans the restriction of human rights that exceeds limits necessary in a democratic society.

The proportionality principle appears to be a constitutional criterion for the assessment of the reasonable character of the restriction of human rights. This is the reason why it is essential for constitutional review” (№1/3/393, 397 judgment of the Constitutional Court of Georgia dated December 15, 2006).

It is logical that the interaction between private and public interests is expected to be fair in the state under the rule of law. The more the state interferes with the individual freedom the more requirements for justifying such interference are higher.

20. It is necessary to analyze admissibility and necessity of the restriction, proportionality between private and public interests in order to assess the constitutionality of the argued rule through the proportionality principle.

To decide an issue of admissibility, it is very important to determine whether the measure provided for in the contested rule is an additional sentence for the owner. The disputed norm itself provides the answer. Pursuant to Article 52.2 of the Criminal Code of Georgia, persons who can be rendered an additional sentence are as follows: the suspect, the defendant and the convicted.

The impugned rule, in particular, the term “lawful possession” excludes the guilt of the owner, his/her intention that his/her item be used for the purpose of committing a crime. In the case of emerging such intention, the owner would be an accomplice and, accordingly, would be granted a status of the suspect, the defendant or the convicted and the object, the means of crime and the item intended for the commission of crime in his/her ownership would be confiscated.

Taking into account general requirements of current criminal legislation, the impugned rule lays down that when rendering a sentence it is essential to ascertain who has the intention and who uses items for such purpose. According to the disputed rule, such intention originates from the suspect, the defendant and the convicted. Consequently, an additional sentence in the form of the confiscation of property can be imposed upon them.

The contested rule, in the given case, differentiated the owner and the object of property. It did not impose any criminal responsibility and sentence prescribed by Article 52.2 of the Criminal Code of Georgia upon the owner due to the fact that he/she had not committed the crime. Although, it is not argued that a material result of the additional sentence affects the owner as well (innocent owner).

Pursuant to the impugned rule, the confiscation of property being in the lawful possession of the suspect, the defendant and the convicted is necessitated by the certain public need stipulated by the disputed rule itself since the object, the means of crime or the item intended for the commission of crime poses a threat to state and public interests regardless of the fact whom belongs this property – the suspect, the defendant, the convicted or third parties.

21. Standards established by the Convention for the Protection of Human Rights and Fundamental Freedoms dated November 4, 1950 and the European Court of Human Rights are interesting with regard to the mentioned issue.

Article 1 of the First Optional Protocol of the mentioned Convention recognizing the right of all individuals and legal entities to the unimpeded use of property, at the same time, provides for the possibility to introduce control over property, namely, “…previous provisions do not prejudice the right of the state to apply those laws which it regards as necessary to control the use of property in accordance with common interests or to ensure the payment of taxes, tariffs or fines”.

The European Court, taking into consideration in its judgments such possibility of each state, finds that the legislature must enjoy the great discretion arising from political, economic or other problems existed in the country. The Court also shows respect to decisions of the legislature which are conditioned by a common interest and does not lack a reasonable ground (“James v the United Kingdom”, judgment of September 28, 1994).

It is important to note that the European Court of Human Rights considered similar cases (cases of the confiscation of an object and means of crime) within the framework of Article 1.2 of the First Optional Protocol (the third rule – exercising control over property). None of those cases were decided to applicants’ (owners’) satisfaction, i.e. the Court found such interference with the right to property (the confiscation of an object and means of crime an owner of which is not culpable in committing a crime) acceptable and being in compliance with Article 1 of the First Optional Protocol (see the judgment dated May 5, 1995 rendered in the case “Air Canada v the United Kingdom”; the judgment dated October 24, 1986 rendered in the case “Agos v the United Kingdom”).

It is worthy mentioning that the confiscation of an object and means of a wrongful act is recognized by legal systems (criminal, civil, procedural, administrative or customs legislation) of countries of continental Europe as well as common law states.

Arising from the above mentioned the confiscation of such property, regardless of the innocence of an owner, is accepted and even necessary to achieve the declared goals. It facilitates to timely, speedily and effectively resolve a problem and is aimed at preventing further proceedings (committing a new crime, hindering economic stability, normal civil circulation in a country etc.) of certain crime. In the instant case public purposes are very important, therefore, the interest to achieve these goals may justify the necessity to interfere with property.

Naturally, admissibility and necessity of such interference with the right to property do not automatically imply that the interference is proportionate.

22. To assess the proportionality it is vital to see such proportionality between the purpose and the means. It ensures the reasonable balance between private and public interests when the protection of individuals does not cause the excessive restriction of others.

In order to judge whether the confiscation of an object, means of crime or an item intended for the commission of crime (being in the lawful possession of the suspect, the defendant and the convicted and confiscated for the benefit of the state without compensation) is proportionate to the mentioned goals, the essential importance should be given to guarantees laid down in the contested rule ensuring an owner to be protected against the inadequate interference with his/her property.

Therefore, the impugned rule requires to be interpreted in detail.

It is important that a decision about the confiscation of property is made by court. Further, the impugned rule imposes a number of obligations upon the court, namely:

a) First of all, it must be ascertained whether there is an object or/and means of crime or an item intended for the commission of crime. According to the contested rule, such property may be the one used for the commission of crime or intended for the commission of crime. To justify the necessity of the confiscation, it is essential to determine that certain property was used or will be used deliberately for the commission of crime.

Thus, items being out of the normal civil circulation are concerned – they were used for the commission of crime or are intended for the commission of crime. Naturally, this circumstance requires to be established and this task should be undertaken by the court considering a certain case.

b) In order to apply the confiscation of property as an additional sentence the following conditions should exist: it must be in the interests of the state and public necessities or the protection of certain individuals’ rights and freedoms or/and the prevention of further crime.

The court must examine in detail whether afore mentioned conditions really exist. As a result of analyzing concrete circumstances the court must ascertain whether there is a real threat to violate others’ rights or it is inevitable to commit further crime by such property etc. The court must take into consideration the following circumstance as well: if such property is not confiscated, whether this fact will really cause that damage to the state, society or certain individuals for the prevention of which the rule was created; in addition, the court must be very cautious to foresee whether the stated goals will be really achieved through the confiscation of property.

The court must examine the factual background of a case and substantiate its legal stand with respect to the necessity to confiscate property. It must not carry out only the formal examination that will finally allow the issue whether in a certain case the lawful interference was authorized to remain undecided.

Judges adjudicating cases of confiscating property are obligated to satisfy the mentioned requirements in order to prevent the confiscation of property from becoming a purpose.

The confiscation of an object, means of crime and an item intended for the commission of crime in the form of an additional sentence is justified when it is applied for the purpose for achieving of which it is identified as being the most effective means. Judge must be able to properly identify necessary public need in a certain case apart from satisfying the conditions laid down in a contested norm. Otherwise, achieving a public purpose as well as a reasonable character of the interference with the right to property may become doubtful.

23. To assess the proportionality the following circumstance is of considerable importance: regardless of the fact whether the interference with the right to property took place in a due manner, pursuant to the disputed rule, the owner maintains the right to property. The fact that the confiscation of property being in the lawful possession is not considered as a sentence rendered towards the owner allows the latter to enjoy the right to argue through civil law procedures.

The Civil Code of Georgia provides for responsibility for both a violation of a contractual obligation and harm as a result of a wrongful act. It enables an owner to require the suspect, the defendant and the convicted to fulfill an obligation or compensate harm, in particular:

According to Article 361.2, “an obligation must be fulfilled in a due manner, with good faith, at the agreed time and place”. Non-observance of these requirements constitutes a breach of an obligation that, pursuant to Article 394.1, produces the right to require the compensation of harm. Moreover, Article 992 obligates a person having inflicted harm upon another person by a wrongful, deliberate or neglectful act to compensate this harm.

In the given case it does not matter in what manner a person disposes of property being in his/her lawful possession: loses, presents, sells property or, as a result of the commission of a crime, property is confiscated for the benefit of the state. The key fact is that a deliberate act of an individual results in harm sustained by a creditor (owner). Obviously, it does not matter for an owner in what manner his/her property is disposed of – when such a fact takes place without his/her will and authorization, an owner suffers harm in any case.

When an owner hands property over to another person in a manner as prescribed by law, there is always a risk that his/her counteragent may act in contradiction with good faith. Furthermore, possibilities to return property back are not always alike. For instance, when an owner hands an item over to a tenant and the latter sells this item, according to the Civil Code of Georgia, a conflict is settled to the satisfaction of a customer having acted in good faith. However, an owner maintains the possibility to require a counteragent having arbitrarily disposed of his/her property to take adequate measures. Such circumstance is mainly conditioned by the necessity of maintaining the stability of the normal civil circulation. In such cases the inability to return property back tends to be the direct expression of the risk that is undertaken by an owner while identifying a counteragent.

Consequently, when identifying a counteragent in contractual relations an owner is always a risk bearer. There is also a risk that his/her property can be used for the commission of a crime. In such cases the legislature attempts to warn all owners that in the case their property becomes an object or means of crime, it will be transferred to the state without any compensation as it is necessary for certain public need, for the protection of others’ rights, for the prevention of further crime.

Logically, such likelihood of losing property, on the one hand, has the implications for an owner to more carefully identify a reliable counteragent, to take measures in order to prevent credible harm, for example, insuring property, stipulating in detail contractual provisions etc. However, the most important (universal) means to secure a party to a contract seems to be the right to require compensation of harm if it was impossible to prevent such harm.

In accordance with the Civil Code of Georgia, an individual obligated to compensate harm must restore the condition that would have been existed if there had not been the circumstance bringing in compensation (Article 408.1); if it is impossible or requires disproportionably huge expenses then a creditor must be paid compensation for pecuniary loss (Article 409); not only actual pecuniary loss but also expected profit must be compensated. In addition, expected profit means the one that an individual did not get but would have gained if an obligation had been duly fulfilled (Article 411); while defining the amount of loss one must take into account the creditor’s interest in duly fulfilling an obligation. To ascertain the amount of loss, a time and a place of complying with a contract must be taken into consideration (Article 414).

As the analysis of the mentioned norms demonstrates, under the Civil Code of Georgia, an owner is legally empowered to claim the fulfillment of an obligation undertaken by a counteragent or the full compensation of harm.

Accordingly, if public purposes envisaged by the contested rule are regarded as necessary public need within the meaning of Article 21.2 of the Constitution of Georgia, it is possible to justify the restriction of the right to property for such purposes. At the same time, the restriction of the right to property is not disproportionate and inadequate to a public purpose since an owner, although, loses property itself but maintains the right to property. Furthermore, the Civil Code of Georgia provides for sufficient remedies of compensating harm by a counteragent.

Consequently, according to the impugned rule, it is not accepted to achieve a public purpose at the expense of the disproportionate interference with the right to property.

24. It is another question to what extent it is sufficient to require the suspect, the defendant and the convicted to compensate harm applying civil law procedures in order to secure the full protection of the right to property.

Generally, the full enjoyment of the right to property as well as all other rights and their effective protection are firmly connected to the right to a fair trial. Naturally, this circumstance obligates the legislature to provide an owner with all necessary possibilities and adequate procedures in order to protect the right to property.

Such an obligation of the legislature arises from the Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime dated November 8, 1990. The legislature finds that the correspondence of the impugned rule with this Convention serves to be the sufficient motivation to justify its adoption. In particular, the Convention recognizes the obligation of signatory states to adopt legislative and other necessary measures to ensure that concerned parties whose rights were affected by state measures have the possibility to apply effective legal remedies in order to protect their rights (Article 5). Therefore, the Convention imposes the obligation upon states not only to approve legislation ensuring the confiscation of an object, means of crime but also to provide third parties (among them owners) with effective legal remedies to protect their infringed rights.

As the state deems the confiscation of an object, means of crime, an item intended for the commission of crime (being in the lawful possession of the suspect, the defendant and the convicted) to be necessary for certain public need, apart from a private legal relation between the owner and the person having committed a wrongful act, a public legal relation between the state and the owner emerges. Although, the confiscation of property is carried out as a result of a criminal act committed by a legal possessor i.e. an owner suffers harm by an intentional act committed by a legal possessor, a decision about the confiscation of such property is made by the state (court) for the reason of the emergence of necessary public need.

In view of that, in spite of the fact that, arising from the content of the contested rule, an owner has the possibility to rectify the right through civil law procedures, he/she must be able to examine whether a decision made by a relevant person concerning the confiscation of his/her property is founded and in conformity with requirements of law and the Constitution.

From this standpoint, the European Court pays the exceptional attention to the existence of necessary procedures. In all cases of confiscating an object or means of a wrongful act being in the lawful possession of a person having committed a wrongful act the European Court rendered judgments not to the satisfaction of applicants. The Court was guided by the fact that an owner was invested by domestic law with the power to appeal a decision about the confiscation of property and that national legislation stipulated adequate procedures for rectifying the right (see the judgment dated June 26, 2001, regarding the rejection of the application, case “C.M. v France”; the judgment dated May 5, 1995, case “Air Canada v the United Kingdom”; the judgment dated October 24, 1986, case “Agos v the United Kingdom”). It is of key importance because: a) an owner will be able to argue whether a judge (or other body making decisions regarding the confiscation of property) properly assessed the existence of public need for interfering with the right to property; b) it will facilitate to ascertain any link of an owner to a wrongful act. The last issue is of essential importance for an owner and for satisfying a public interest.

According to legislative practices of many countries, it is not vital to establish only deliberate guilt while examining the link of an owner to a crime. The existence of any guilt of an owner is not necessary to justify the confiscation of property. The European Court and majority of states (USA, Germany and others) take into account the negligence and good faith of an owner. According to legal systems of a number of countries, owners whose property (being in the possession of a person having committed a wrongful act) as an object or means of crime was confiscated enjoy the certain procedural status providing the possibility to ascertain and examine their guilt and good faith. In the case when an owner is not guilty and acts with good faith he/she has the right to require the return of property except for cases when there is necessary public need, public interest to confiscate this property. In addition, some states provide for the possibility of the compensation. If a person is guilty or acts neglectfully, not having good faith, his/her property will be confiscated without any compensation.

Subsequently, adequate, perfect and detailed procedures are necessary to be envisaged for the full and effective protection of the right to property in order for an owner to be able to argue on the legality of confiscating property. It is worthy mentioning that the invited specialists and witnesses (Gamkrelidze, Dzlierishvili, Gablishvili, Khositashvili), on the basis of analyzing current Georgian legislation, highlighted the non-existence of such procedures.

Circumstances stated here do not question the conformity of the impugned rule with Article 21 of the Constitution. It must necessarily be taken into consideration that the Constitutional Court is confined to claims raised by applicants. It assesses only the content of a disputed rule vis-à-vis a provision of the Constitution dealt with in a claim. The impugned rule allows the confiscation of an object, means of crime, an item intended for the commission of crime that is, as already mentioned, acceptable and in conformity with Article 21. At the same time, this rule does not contain any bans on appealing such a decision and does not exclude the possibility to rewrite in detail afore mentioned procedures within the frames of legislation in the case when adequate procedures are lacking. Though, it is beyond margins of appreciation of the contested norm vis-à-vis Article 21 of the Constitution of Georgia to examine the issue of the probable non-existence of such procedures or the existence of insufficient or ineffective procedures and to assess their constitutionality.

25. In spite of the constitutionality of the impugned rule vis-à-vis Article 21 of the Constitution of Georgia, the detailed analysis of its content indicates to the necessity to refine the rule; namely:

The argued rule provides for an additional sentence which may be rendered to the suspect, the defendant and the convicted. These persons have different procedural positions in criminal procedure law. A sentence (major and additional) may be rendered to a person as a result of a court judgment convicting this person. Further, such judgment may be passed towards the defendant acquiring afterwards the status of the convicted. Arising from that, it is uncertain how it is possible to render a sentence to the suspect or the defendant. The issue of rendering an additional sentence to the convicted is vague as well. Under Article 44.26 of the Criminal Procedure Code of Georgia, the convicted is a person to whom a court judgment (convicting this person) is rendered. According to the logical interpretation of Article 52.2 of the Criminal Code of Georgia, the court passes a judgment with regard to a person being rendered a sentence by another judgment of the court.

26. The following circumstance is worthy to be taken into account:

Pursuant to the disputed norm, one of the required preconditions for applying an additional sentence serves to be the existence of “the state and public necessity”. This is a general, broad notion; there is no definition of it even for the purposes of the contested rule. Though, it always includes purposes to protect others’ rights and to prevent further crime but these circumstances cannot exhaust its essence. Moreover, as it has already been mentioned, it may acquire various meanings with respect to different crimes. Logically, it is impossible to provide the legislative formulation of the precise explanation of this term or to name exhaustively those cases which should be considered to be such circumstances. At the same time, the likelihood of arbitrary and biased interpretation must be excluded. Although, it is very important that the court decides this issue but the function of the court is confined to correctly defining whether in a certain case there is the state or public necessity regarded as such by the legislature. The court is guided by the will of the legislature; it is not entitled to determine the certain content of this notion according to its own will and discretion.

Generally, requirements towards the legislature are stricter when the interference with human rights is serious. The legislature is obligated to provide a judge with guided indications to make foreseeable the necessity and inevitability of making a certain decision and to enable an individual to imagine what kind of measures may be adopted in relation to him/her.

In order for a judgment of the court to be foreseeable, the legislature is obligated to formulate relevant definitions in legal acts as clearly as possible. Views expressed in a legislative process or general purposes related to a criminal policy on which draft laws are based and which are not reflected in laws cannot be the basis for justifying a certain decision of a judge.

The legislator making criminal legal rules and being the person who constrains a judge considering criminal cases is given the instruction to make unequivocal laws. The legislature is obliged to establish the clearest frames within which a judge must act.

From this standpoint, the contested norm needs to be refined.

27. When the public interest is pursued through the vigorous interference with the private interest it is especially necessary to create all required legislative mechanisms to fully protect a certain right for the purpose of maintaining the reasonable balance between private and public interests. In spite of the fact that the impugned rule is in conformity with Article 21 of the Constitution of Georgia the legislature cannot be discharged from the obligation to improve legislation based on respective constitutional and legal principles. Additionally, while achieving concrete public purposes the legislature should attempt to create alternative mechanisms which will make it possible to accomplish the same goal at the expense of minor restrictions of human rights.

Guided by Article 89.1 (f) and Article 89.2 of the Constitution of Georgia, Article 19.1 (e), Article 21.2, Article 25.3, Article 39.1 (a), Article 43.2, Article 43.4, Article 43.7 and Article 43.8 of the Organic Law on the Constitutional Court of Georgia, also Articles 32 and 33 of the Georgian Law on Constitutional Proceedings,

The Constitutional Court of Georgia holds that:

1. The №384 constitutional claim of the citizens – Davit Jimsheleishvili, Tariel Gvetadze and Neli Dalalishvili v the Parliament of Georgia shall not be accepted;

2. The Parliament of Georgia shall be asked to ensure current legislation and Article 52.2 of the Criminal Code of Georgia to be refined taking into consideration the circumstances mentioned in the motivation part of this judgment;

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

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

5. The copy of the decision shall be transmitted to the parties, the President of Georgia, the Government of Georgia and the Supreme Court of Georgia;

6. The decision shall be published in “The Georgian Legislative Reporter” in 15 days.

1. Vakhtang Gvaramia (Chairman of the Sitting),

2. Ketevan Eremadze (Rapporteur Judge),

3. Besarion Zoidze