The composition of the Chamber:

Besik Loladze – the chairman of the hearing

Otar Sichinava – member, rapporteur judge

Joni Khecuriani – member

The Secretary of the Hearing: Darejan Chaligava

Title of the case: The citizen of Georgia Mrs. Maia Natadze and others v. The Parliament and the President of Georgia

The subject of the dispute: Constitutionality of paragraphs 2^nd, 3^rd and 4^th of art.87 of the law of Georgia of 21^st December 2004 on Higher Education and para.1, 2, 4, 5(c) of the ordinance of the President of Georgia N473 of 8^th June 2005 concerning “determination of competences of acting rector and faculty acting dean of legal entity of public law- higher education entity and announcement of some ordinances of the President of Georgia partly void” with respect to art.17(1), para 1^st and 3^rd of art.19, para.1^st and 4^th of art.24, para 1^st and 4^th of art.30,art.34(1) and art.35(2) of the Constitution of Georgia.

The participants of the hearing: Claimants: Maia Natadze, Tengiz Sanadze, Tengiz Kikacheishvili, Anzor Xelashvili, Irakli Xomeriki, Zurab Chumburidze, Bidzina Savaneli, Merab Jibladze, Otar Melqadze, Jemal Mebonia, Leri Kurdadze, Tamaz Jologua, Gela Dolidze, Oleg Namicheishvili, David Qarqashadze, Leri Gogoladze, Guram Asatiani, Nodar Janashia; The representatives of the claimants Malkhaz Pataraia; Respondents, representatives of the Parliament of Georgia Batar Chankseliani, Levan Kasradze and Joseph Lomashvili; Representative of the President of Georgia Lado Qarqashadze; Witness Nodar Grigalashvili, Head of the Committee of the Parliament on education, science, culture and sport.

I

1.The claimants, professors and lecturers of the I. Javakhishvili Tbilisi State University have applied to the Constitutional Court of Georgia on 30^th of May 2006. The majority of the claimants, in particular 14 claimants were members of I. Javakhishvili Tbilisi State University’s highest management body (in accordance to charter approved by N277 ordinance of 13^th July 2001 of the President of Georgia) – Grand Council of the University. Some claimants, in particular 13 claimants were members of faculty council and 1 claimant – J. Mebonia was dean of the faculty of physics.

2.By recording note of N2/7/389 the second chamber of the Constitutional Court of Georgia on 22^nd June 2006 admitted the case for examination on merits in the part which concerned constitutionality of second, third and fourth paragraphs of art.87 of the Law on Higher Education and 2^nd,3^rd, 4^th and 5^th(c) paragraphs of the ordinance of the President of Georgia No 473, dated 8^th June 2005, concerning “determination of competences of acting rector and faculty acting dean of legal entity of public law- higher education entity and announcement of some ordinances of the President of Georgia partly void” with respect to art.17(1), art.19(1), art.19(3), art.24(1), art.21(4),art.30(1), art.30(4),art.34(1) and art. 35(2). The examination of the case N389 on merits by the Constitutional Court took place on 23^rd, 24th, 31 of May and on 1^st, 12^th, 21^st, 25^th of June 2007.

3.The 2^nd, 3rd and 4^th paragraphs of art.87 of the Law on Higher Education are petitioned. Art.87 is within the XV Chapter – “transitional provisions” and regulates management issues of higher educational entity in the transitional period. Pursuant to art.87(2) of the law on Higher Education entry into force of the law results in premature termination of office of the Rector and Dean of educational entity (legal entity of public law). The same provision regulates legal form of premature termination of office, assignment and dismiss of Rector and Dean. Art.87 (3) relates to legal entity of public law – higher educational entity’s first election of management bodies. The Law on Higher Education has provided for different management structure of educational entity, different rule of formation and different competences and has set 2 year deadline for the first election of the bodies after the entry into force of the law. A logical continuation of art.87 (3) is art.87 (4) which concerns subsequent stage of first elections – application for approval of charters to the Ministry of Education and Science by those higher educational entities which have status of legal entity of public law.

4.The aim of the ordinance of the President of Georgia concerning “determination of competences of acting rector and faculty acting dean of legal entity of public law- higher education entity and announcement of some ordinances of the President of Georgia partly void” is to establish competence for acting Rector and Dean before the elections of new management bodies. The first paragraph of the ordinance states, that the competence of the persons who took office on the basis of art.87 (2) of the Law on Higher Education is determined in accordance with the 2^nd and 3^rd paragraphs of the same ordinance. In the second paragraph of the ordinance, in particular in “a” – “w” subparagraphs, there are listed competences of acting rector of higher educational entity. The rights and obligations of the faculty acting dean are determined by art. 3, paragraph “a”-“l” of the disputed ordinance. The paragraph 4 of the ordinance sets time limits for accomplishment of competences defined in the paragraph 2 and 3 of the same ordinance. The acting rector exercises his/her competences until the elections of relevant management body, while acting dean – until election of head of the faculty. Pursuant to paragraph 5(c), the paragraph 2 of the ordinance of the President of Georgia No 277, dated 13^th July 2001, on the status of I. Javakhishvili Tbilisi state University, which approved charter of I. Javakhishvili Tbilisi State University is void.

5.In the opinion of the representative of the claimants, admission of the case for examination on the merits is equivalent to recognition of disputed norms’ interference with constitutional norms. Therefore claims of the respondent regarding that there have not been interference with some of the constitutional rights is incorrect. During examination on the merits the respondent should substantiate constitutionality of interference and not the claim that there is no interference.

The higher educational entity should function on the basis of the principles of democracy. The disputed norm should be assessed with respect to art.5 of the Constitution. In particular, the Constitutional Court should take into account the principle of representative democracy and people’s sovereignty. The claimants think, that the principle of representative democracy is “… a basis for the activity of the higher educational entity in Georgia…” and disputed norms violated “right of claimants - constitutive of people, to be the source of public authority…”

The major precondition for autonomy of the university is participation of university community in the management of university. The disputed norms have violated autonomy of I. Javakhishvili State Tbilisi University for two and half years. After entry into force of the Law on Higher Education the sessions of the grand council of the university, which in accordance with operative charter was highest management body, have not been convened and faculty councils, the self-government bodies of faculty, ceased functioning. This has been exercised on the basis of the disputed norms. They do not directly consider prohibition of acting bodies, but these bodies have been dissolved and announced beyond the law in accordance to these norms. Although it is true that main part of the Law on Higher Education establishes new structure for management bodies, but according to transitional provisions this part is non-operative for two and a half years. In the transitional period positions of acting rector and acting dean are introduced. The acting rector is assigned by the President without any consultations with university staff. The same situation is on the level of faculty, where lecturers and professors of the university do not participate in decision making process. In accordance with the disputed ordinance of the President, decision making of all issues related to university and faculties have been transferred in the competences of these positions, which resulted in disorder and arbitrariness from the side of administration of the university. In accordance with the ordinance, old charter of I. Javakhishvili State University has been declared void, the Grand Council and Faculty Councils have been annulled and thus university representative democracy has been rejected. Through declaring the charter void the only document defining the university’s legal entity status and its rights has been annulled. The claimants’ right to elect rector and dean has been restricted. All university and faculty decisions were taken without their participation. The disputed act has directly touched one of the claimants – J. Mebonia which has been dismissed from the office.

Participation in the representative bodies of the university were part of claimants’ scientific, creative and pedagogical activity and respectful obligation. Therefore, prohibition of participation in the management of the university and premature termination of competences has been a declaration of mistrust from the side of the state and breach of honesty, dignity and professional reputation of claimants. Such treatment has resulted in the feeling of injustice in claimants. Apart from this, there was interference with physical integrity of claimants – they have been forced out of university building by patrol police, when they were intending to organize peaceful assembly. The claimant, Mr. B Savaneli for interpretation of honour and dignity pointed to Oxford dictionary. Dignity is an individual feature of a person which deserves respect, while honour is social recognition of individual’s personal feature. Dignity and honour are inseparable concepts, which in the Constitution are enshrined together. The disputed norms violate art.17 (1) of the Constitution, which includes as legal-constitutional as well as legal-civil concepts of honour and dignity.

Not only is the essence of freedom of expression protected but as well as its form. Interference with or prohibition of any means of expression always means interference with the right, notwithstanding that there may be other forms of expression available. Right to participate in a representative body in terms of its formal as well as substantive attributes is one of the forms of the right to expression. The right to expression is related to the right to elections, with free expression of will through elections and with holding elective office. Interference with these rights is equivalent to interference with freedom of expression. The claimants were not given opportunity to exercise power directly or through representatives, to participate and express their opinions in the decision-making process of administration and of the contest commission. Thus article 19(1) of the Constitution is breached, which guarantees freedom of expression of every individual and paragraph 3 of the same article, which allows for restriction of these rights only in those cases if it violates others’ rights and freedoms. Additionally art.24(1) of the Constitution is breached, that grants to every individual a right to express and disseminate his/her views and there is no any condition satisfied for restriction of this right given in paragraph 4 of the same article. It is not persuasive that because of reforms there is a necessity for dissolution of university self-government and for establishment of authoritarianism.

Freedom of labor includes obligation of a state to care for employment of citizens and protect their employment rights. Freedom of labor does not mean only freedom from forced labor. Violation of employment rights includes: premature termination of competences, being part of professional activities of claimants, within representative body and disproportional restriction of the right to election for extensive period; violation of a right to hold university office – the right to hold positions of rector or dean is annulled for an extensive period, prematurely is terminated competences of some claimants; Dismissal of Claimants from offices following the results of illegal competition announced on the basis of intra-university administrative acts, which were on their side adopted on the basis of disputed acts. While in accordance with art.89 (11) of the Law on Higher Education the claimants should have been transferred to other positions; impossibility of legal identification with university, as paragraph 5(c) of the disputed ordinance of the President abolishes university and therefore claimants’ employment relations with university. Notwithstanding that changing the rule for holding positions per se does not mean violation of employment rights, beyond some limits it may constitute violation. On the basis of the above mentioned, there is a violation of employment rights guaranteed by 1^st and 4^th paragraphs of art.30 of the Constitution of Georgia.

University life is part of a scientific and an educational life and thus constitutive of a cultural life. International Covenant on Economic, Social and Cultural Rights considers educational rights as constitutive to cultural rights. The disputed acts violated claimants’ rights to participate in the life of university as in cultural entity. Thus art.34 of the Constitution is breached, pursuant to which state fosters development of culture, unrestricted participation of citizens in cultural rights. What concerns specific arguments, these are analogical to ones stated with respect to violation of art.19 and art.24 of the Constitution of Georgia.

Interference with the rights protected by art.35 (2) of the Constitution, as well as interference with other rights, was exercised through termination of functioning of university elective bodies of representative democracy, through annulment of university autonomy. The fact that art.35 (2) of the Constitution has been amended through constitutional legal act since admission of the case by the Constitutional Court for examination on merits, does not change the situation because new formulation factually includes contents of prior formulation

The Constitutional Court should assess the norms in terms of their quality. If the Constitutional Court rules that the norms are not of required quality level, then breach of specific rights will be established. In terms of quality, the law should satisfy following requirements – it should be accessible, foreseeable, should not allow for arbitrary exercise of power. These criteria are not satisfied by the disputed norms and this has resulted in the breach of the claimants’ rights.

The claimant, Mr. B. Savaneli stated that human rights constitute superconstitutional law and this idea has been reflected in art.7 of the Constitution. This article obliges the Constitutional Court to guide itself with international instruments for human rights protection as directly applicable law. From this perspective, art.7 is fully in line with art.6 of the Constitution. The Constitutional Court should guide itself with art.6 of the International Covenant on Social, Economic and Cultural Rights, as directly applicable law and assess the measures taken by state for protection of claimants’ employment rights. Art.4 and art.5 of the Covenant are also breached, as well as art.4 and art.5 of the International Covenant on Civil and Political Rights. The disputed norms should be assessed with respect to art.1(1) of European Social Charter, while respondent should substantiate the claim that state has taken necessary measures for achievement of aims provided by this paragraph. The claimant has presented citations from various legal acts, which emphasize significance of autonomy of university and academic freedom. The claimants think that the Law on Higher Education, except its disputed norms, is in line with Constitution and is harmonized with international standards applicable in educational field, while disputed norms are not in line with international standards. The claimants’ constitutional rights were restricted without announcement of public emergency, without any legitimate aim. Art.6 and art.7 of the Constitution incorporate in the Georgian legal system international acts on human rights protection, which have force of directly applicable law, and not case-law of Strasburg Court, which may be used as additional source but not as a legal source. Pursuant to art.84 of the Constitution, the judge is independent in his activities and obeys only the Constitution and laws. None of the constitutional norms indicate to application of precedent law. It is inconceivable to place on the same level convention and its case-law with the Constitution and its case-law. Introduction of the principle of Anglo-American law violates principle of rule of law. It is impermissible to deem a norm of a positive law as equivalent to its interpretation with respect to specific case.

J. Mebonia stated that claimants were not against the reform. They have made several comments to the draft law, but they were not taken into account. The professors were punished because they indicated to the breach of the law. If prior charter of the university were not annulled on the basis of disputed norms of the law on higher education, then professors and lecturers would be subjected to automatic transfer to new positions in accordance with art.89 (11) of the same law and they would not have been subject to illegal competition for offices. It is incomprehensible why would existence of Grand Council be an obstacle to implementation of reform. The art.87 of the Law on Higher Education is not in line with object and letter of the law, as all the powers are transferred to acting rector and dean, while views of professors and lecturers are disregarded.

The claimant Mr. O. Melkadze thinks that it will be difficult to make objective judgment without enquiry in the competitions held in breach of the law. While the breaches are of such level, that has been violated range of respectful individuals employment rights, dignity and honour.

In view of claimant T. Sanadze introduction of disputed norms is directed towards elimination of education and science in the country. For last two years university was managed by one person – by an acting rector. This has had detrimental results- decrease of staff of scientists. Faculties, except some of them, are under risk of elimination in 2-3 years.

The claimant M. Jibladze thinks, that implemented reform has prevented next generations from receiving high quality education. Nowadays the level of education has fallen not only in universities, but there is also an emergency situation within the secondary schools.

6.The respondents, the representatives of the Parliament of Georgia, think that admitting a case for examination on merits does not mean establishment of interference with right and necessity for them to argue for justified interference.

The Constitution does not guarantee autonomy of higher education institution. Examination whether there was restriction of autonomy is unjustifiable as claimants are group of physical persons and not a legal entity of public law – higher educational entity.

Inexistence of educational policy, retained soviet traditions, faulty examination and assessment system, obsolete teaching methodology, high level of corruption, deficit of financial resources, curriculums and educational programs being not in line with contemporary requirements were seriously impeding reconstruction and development of higher educational system. These were reasons for reform, going through the transitional period, during which transfer to new system would be possible. It was necessary to establish contemporary management system of educational institutions. The legislature has written 2^nd, 3rd and 4^th paragraphs of art.87 of the Law on Higher Education for transitional period. The confrontational situation, instigated campaign against state and public interests resulted in that for beginning of transitional period (and not for whole transitional period) management competences were concentrated in the hands of acting rector and acting dean. This was necessary also for election of new management bodies in timely and effective manner and for transition on new government model. An adoption of disputed norms was single optimal way out from the situation. It is noteworthy that period defined by transitional provisions was maximum period and transition to new system was feasible before the exhaustion of it, within the shortest period from entry into force of the law.

Examination of constitutionality of the disputed norm can be guided by the European Convention for Protection of Human Rights and Freedoms, which is a constitutive part of Georgian legislation and by relevant case-law, as the text of the Convention shall not be read separately from its case-law.

In the case of interference with dignity and honor there should be present humiliating treatment, which has the following criteria: the treatment should cause in victim feeling of horror, fear and inferiority; this feeling humiliates victim; the feeling interferes with moral and physical integrity; the aim of the treatment is to humiliate victim; the degree of treatment shall satisfy at least minimum degree of strictness. The fact of humiliation should be established based on objective circumstances and not on victim’s subjective feelings. The measures taken during the transitional period regarding regulation of management issues does not constitute humiliating treatment of claimants, because it does not satisfy the above mentioned criteria. The law violating individuals honor and dignity should include such norms that are so strict, amoral and unjust that they objectively would decrease capacity of self-assessment by individuals of his /her moral features or of assessment by the society. The disputed norms do not have such character. The constitutional protection of honor and dignity has following dimensions: protection of individual’s physical integrity; provision of just social conditions for dignified life of an individual; guarantee of legal equality; individual’s personality protection. The state through the disputed norms has not interfered with these goods.

Freedom of expression involves individual’s freedom to have views; disseminate or receive opinions. There is nothing in the disputed norm that would have directly or indirectly infringed upon negative or positive freedom to have opinions. There is not also interference with claimant’s right to disseminate information and opinions. The aim of the disputed norm is to regulate in the transitional period management issues and not to establish censor on expression of opinions and dissemination of information. The management bodies of the university do not have informational or broadcasting function and thus temporary dissolution of it should not be deemed as interference with freedom of expression. The disputed norms do not impede claimants in receiving information from generally accessible sources. The opinion that participation in the election and activities of university management bodies is form of freedom of expression is ungrounded. It is incorrect to claim that freedom of expression was infringed by interference with the right to participate in elections. Elections of university management bodies and of state authority are different legal relations. Thus claim that interference with right to participate in the activities of university management body is an infringement of a right to elections and of freedom of expression is incorrect. This argument is ungrounded from technical perspective – right to universal suffrage and freedom of expression of will in elections is guaranteed by art.28 and not by art.24 of the Constitution of Georgia. On the basis of the above mentioned, there has not been interference with art.19 and art.24 of the Constitution and thus there is no sense to examine justifiability of interference.

Freedom of labor should not be understood to be equivalent to the concept of employment rights. It is one constitutive element of the right to employment and means that there should not be forced exercise of labor. Art.30 (1) of the Constitution recognizes not right to labor, but right to freedom of labor, which involves: freedom of choice of sphere of employment; freedom from forced involvement in chosen sphere; free deployment of resources in the labor process. By guaranteeing the principle of freedom of labor the state takes responsibility no to force individual to be employed against his will(negative freedom) and ensure that private subjects do not force individual to work contrary to his will (positive freedom). The disputed norms do not violate the above mentioned rights and state’s obligations. Art.30 (4) has indicative and not conferring nature. It does not confer labor rights but ensures that they are protected in accordance with the law because it gives higher guarantees. In the disputed case change in employment relations has been causes by the law, which violates none of those rights guaranteed to the claimants by the employment legislation of Georgia.

The claimants were not receiving salaries for participation in the activities of university management bodies. The necessary element of an employment is salary. Allocation of physical or intellectual resources that does not create material ground shall not be qualified as labor. This may be qualified as contribution, hobby or other kind of satisfaction of personal desires. As what concerns the issue of illegality of competitions, if the law has incorrectly been applied by certain individuals this does not mean that the law is unconstitutional.

The right to participate in the cultural life guaranteed by art.34 of the Constitution includes the following elements: protection of cultural heritage, maintenance, research, dissemination, creation, reparation and interpretation. For there to be restriction on participation in cultural life, it is necessary that there be violation of one of the above mentioned rights by the state and this has not been done through the disputed norm. The claimants are free to continue participation in cultural life with the same intensity and degree, as it was possible prior to adoption of the Law on Higher Education.

After the admission of the case for examination on merits but prior to the proceedings on 11^th January 2007, amendment entered into force for art.35 (2) of the Constitution. By 10^th of January 2007 the 2^nd and 3^rd paragraphs of art.87 of the law on Higher Education have terminated functioning. Therefore it is incorrect to assess these norms with respect to new formulation of art.35 (2) of the Constitution. As to what concerns art.87 (4) of the Law on Higher Education, which confers right to newly elected management bodies to propose new charter within the six months, it is not in conflict with constitutional principle that “state shall guarantee harmonization of country’s educational system in international educational sphere.” If, notwithstanding this, the disputed norms are assessed with respect to the new formulation of art.35 (2) of the Constitution, then we will see that they not only do not violate it, but on the contrary contribute to its realization. The Law on Higher Education, including the disputed norms are aimed at transition from obsolete educational standards to new contemporary ones. Exactly this transition is one of the means for harmonization of country’s educational system with international sphere.

7.The representative of the President of Georgia thinks that the charter of I. Javakhishvili State Tbilisi University has been terminated by entry into force of the Law on Higher Education. Those norms of the law on education which were in conflict with the law on higher education were also announced void. Exactly from this moment should the charter be recognized as invalidated, because it was adopted on the basis of the Law on Education. The will of the legislator is ascertained by art.87 (4), pursuant to which the higher educational institutions are obliged to propose new charters within the six months from election of the management bodies. Prior to adoption of new charters the universities functioned on the basis of the Law on Higher Education, Law on Legal Entity of Public Law and N473 ordinance of the President, dated 8^th June 2005. Pursuant to the Law on Higher Education those legal entities of public law – higher educational institutions which were founded prior to the entry into force of the law shall be recognized as founded. In this case, the Law on Higher Education is given priority to the Law on Legal Entity of Public Law because it is lex specialis and a more recent law. Thus, the argument that without charter there is no status of university is incorrect.

Continuation of activities pursuant to the old charter, which was substantively in conflict with the Law on Higher education, was impossible. This would have caused inconsistent decision making in transitional period and hence the necessity for adoption of the ordinance of the President. The law has established two legitimate management bodies in the transitional period. It was necessary to define their competences and rights, which was the purpose of the ordinance of the President and lawful ground for adoption of it. The disputed norm does not allow any theoretical possibility of interference in the activities of the educational institutions by any state or other organization. As to what concerns the transition time period, it should be recognized not as a disadvantage of the law but on the contrary as an advantage. The legislature on the one hand did not limit in time the educational institutions and on the other hand by establishing upper time limit prevented process delay. The management bodies of I. Javakhishvili Tbilisi State University are already staffed and in this part the ordinance has exhausted itself.

There has not been violation of dignity and honor of the claimants by the disputed part of the ordinance. The disputed norms have not questioned scientific and pedagogical competence and professional reputation of the claimants. As to what concerns honor this is civil law institute, is not equivalent to constitutionally protected dignity and should not be subject of constitutional assessment with respect to the disputed norms.

The disputed norms do not even allow for theoretical possibility of violation of art.19 (3) and art.24 (4) of the Constitution. The interpretation of freedom of expression provided by claimants is outside of the scope of this article and is too broad.

On the basis of the disputed norms there has not been premature dismiss of claimants from the offices of representative management bodies. These norms neither establish forced labor. If the competition in the university was unlawful that is a subject of different dispute and recognition of a normative act as unconstitutional because there were violations of requirements of General Administrative Code while adoption of an administrative act is inconceivable. It is noteworthy that announcement of the competition by the acting rector was based not on the ordinance of the President but on art.34 (1) of the Law on Higher Education.

The claimants’ indication on violation of art.34 (1) by the disputed acts is unfounded. There was no violation of such constitutional goods as are unrestricted participation in cultural life and academic process, academic freedom and independence. The claimants indicate that university life is constitutive to society’s educational, cultural and scientific life and this is not arguable, but there has been neither restriction of educational or scientific relations.

There was no violation of art.35 (2) of the Constitution. The purpose of the reform was harmonization of higher education system with international standards. It is noteworthy, that according to the 17^th May 2007 report published by the relevant commission on the occasion of Assembly of Ministers of Education in London within the Bologna process, the reform of the Georgian educational system was given high score and was recognized as an example of success.

If the court rules that disputed norms of N473 ordinance of the President interfered with the constitutional rights of the claimants, than attention should be drawed to the principle of proportionality. It is unequivocal that disputed norms represent acceptable and necessary means necessitated by pressing social need for achieving legitimate aim. The quality higher education in line with international standards is a legitimate aim of such significance that for accomplishment of it temporary restriction of claimants’ constitutional rights is justifiable and proportional

8.The witness, the head of educational, scientific, cultural and sport Committee of the Parliament of Georgia, Mr. N. Grigalashvili indicated, that there were a lot to change in the higher educational system as structurally, institutionally as well as in terms of personnel. The educational system was in the impasse. In 2002 the Parliament of Georgia adopted a resolution on directions for higher education. Foreign experts, experts of Ministry of Education, personnel from the university were involved in the process of elaboration of this document. The Law on Higher Education adopted in 2004 was wholly based on this document.

From the side of the Parliament there were attempts to involve professors of I. Javakhishvili University in the process but this has not given any result. The claimants chose confrontation. On this indicates also the fact that after adoption of the law, which provided that the rector would be appointed by the President, notwithstanding this there were attempts to organize election of rector in the university. However, the purpose of the reform was not to declare mistrust toward someone and the disputed norms were result of objective necessity and not by subjective factors. If the old structure was left intact, then the law would have become just a paper, the changes would have had formal character and nothing would have changed in substance.

The disputed norms of the Law on Higher Education relates to organizational aspect of the reform, from the perspective that higher educational institutions should receive comprehensive autonomy. The essence of the reform was to strengthen higher educational institutions autonomy, delivery of elections, on the basis of which institutions and their structural units would have elected themselves the managing bodies and officials. There was a necessity of transitional period in which these processes would have been undertaken. The duration of transitional period was set as maximum 2 years. On this ground the competencies of rector and managing bodies were terminated prematurely. If there were no preparatory period, the old system would have remained and it should have realized aims set by the new law. It should be noted, that the disputed norms were considering appointment of the rector from the higher educational institution and the President could not have gone beyond the academic circle of that university. Apart from this, there was a possibility that the rector would have remained on the acting rector position and lot of them continued to exercise the competences.

The elections of new management bodies could have started immediately after entry into force of the law, however this have been delayed which would not have happened in case of constructive cooperation. The process has gone smoothly in other higher educational institutions.

It is possible that there were mistakes, including may be in personnel field, but these are not related to the law. Art.89 (11) of the law on Higher Education considered mechanical process of transfer of professors and scientists on new positions, but this has been misinterpreted in certain cases. It should also be noted, that the higher educational institutions were artificially overstaffed and there was necessity of optimization. It is possible that in the transitional period certain officials’ rights were restricted but this is not related to restriction of individuals’ constitutionally entrenched rights. The rule for holding an office has changed and this is not related to individual’s rights.

II

1.The 2^nd, 3^rd and 4^th paragraphs of art.87 of the Law on Higher Education are transitional provisions. From their contents the applicable period of the law can be identified, in particular maximum applicable period for 2^nd and 3^rd paragraphs is two years after entry into force of the law. This inference is allowed by statement in the law - “… no later than two years after entry into force of the law.” During this period different rule operates for management of legal entity of public law – higher educational institution. It is important that 1st elections of managing bodies be delivered during two years after entry into force of the law. The Law on Higher Education was published on 10^th of January, 2005 and entered into force immediately that is on 10^th January, on 24 o’clock. Thus two years from entry into force of the law has gone and the measures that should have been taken during this period have been accomplished. Therefore the 2^nd and 3^rd paragraphs of art.87 of the Law on Higher Education are inoperative because the time for which they were adopted has exhausted.

Art.87 (4) includes certain time period. The legal entities of public law- higher educational institutions should propose new charters for approval to the Ministry of Education and Science “no later than 6 months after first election of management bodies.” Taking into account the time period of two years set by art.87 (3), the maximum applicable period of art.87 (4) is 2 years and 6 months after entry into force of the law. This period is also exhausted and therefore the norm is inoperative.

The 4^th paragraph of the ordinance of the President of Georgia N473 of 8^th June 2005 concerning “determination of competences of acting rector and faculty acting dean of legal entity of public law- higher education entity and announcement of some ordinances of the President of Georgia partly void” defines applicable time period for the paragraphs 2 and 3 until the election of management bodies and governing subjects of faculties. As it seems, the operative period for paragraphs 2, 3, 4 of the ordinance is exhausted and they are inoperative. It should also be noted, that subparagraph (I¹) has been added to paragraph 2 by N419 ordinance of 14^th July 2006, while N389 constitutional claim was admitted for examination on merits on 22^nd June 2006 by N2/7/389 recording notice, that is before the adoption of subparagraph (I¹). Because on the examination on merits of the constitutional claim it is not allowed to increase scope of the claim, the Constitutional Court cannot consider constitutionality of paragraph 2(I¹) of the disputed ordinance.

Nevertheless, pursuant to art.13 (6) of the Law on Constitutional Proceedings, the court should finish examination of the case, because it relates to human rights and freedoms enshrined in the second chapter of the Constitution.

2. While considering the constitutionality of the disputed norms, the court should answer range of conceptual questions. Firstly, it is necessary to clarify what is meant by admission of the case for examination on merits and what is Court’s task on examination on merits. By admission of the case for examination on merits, the Constitutional Court thinks that there is substantive relation between on the one hand the disputed norms and submitted evidence for constitutionality of these norms and on the other hand – between these norms of the Constitution, in relation to which there is an issue of constitutionality. Exactly this relation gives basis to the Constitutional Court that it will have objective possibility to examine constitutionality of disputed norms. During examination of admissibility of the case for examination on merits, the court should restrain itself from consideration of such issues which should be decided on the merits, especially from assessing constitutionality of disputed norms. On the basis of this, the recording notice of the Constitutional Court about the admission of the case for examination on merits means that the Constitutional Court starts assessment process of constitutionality of disputed norms and not that it established interference with the right, neither that the respondent should provide justification of such interference. Establishment of interference is inseparable part of examination of the case on merits, necessitates comprehensive analysis of the disputed norm and exercise of this on the admissibility stage is impossible.

3.During examination of the issue of compatibility of disputed norms with constitutional principles was raised. The Constitutional Court, while assessing constitutionality of the disputed norm is not limited by specific constitutional norms. It is true that the constitutional principle do not provide for specific rights, but the disputed norms are also subject to assessment in respect to constitutional principles, together with specific constitutional norms and from this perspective examination should be undertaken in the whole context. The Constitutional Court should establish, whether and to what extent the disputed norm is compatible with the constitutional legal order defined by the Constitution.

4.It should be noted that the claimants interpreted principle of democracy too broadly and incorrectly. The constitutional term “people” does not denote any group of people. It denotes every citizen of Georgia, “state people” carrying people’s sovereignty, which has founding authority and there is no other source of democratic legitimization. It is impossible to identify with this concept particular group of people working in the higher educational institution. The management body of the higher educational institution substantively differs from state authority bodies. An exercise of power by people, except for the direct forms of democracy, happens through democratically elected representatives of state authority and not through certain management bodies of public law legal entities, the function of which is to administer the specific institution and not to exercise state authority from the legal constitutional perspective. Additionally, this is true if the case concerns higher educational institutions, politicizing of which is inconceivable. On the basis of this, the Constitutional Court cannot assess constitutionality of disputed norms in the context proposed by the claimants.

Freedom of information and expression is related to the principle of democracy, because in the case of informational vacuum and restriction on freedom of expression existence of democratic society is inconceivable. However, the issue of compatibility of disputed norms with these constitutional rights and issue of violation of freedom of information and expression will be addressed while consideration of 1^st and 3rd paragraphs of art.19 and 1^st and 4^th paragraphs of art.24 of the Constitution of Georgia.

5.The recognition of human rights by the Constitution as directly applicable law is related to the principle of democracy. Art.7 of the Constitution establishes human rights’ restriction on exercise of authority by people and the state. This grants to human rights restrictive force, protects individuals from arbitrary treatment. In case of inexistence of such approach, constitutional rights and freedoms would have only declaratory meaning and would become ineffective statements; the individual would lack constitutional protections, while the state would be given unlimited possibilities of arbitrary action and disregard of fundamental rights, which is ascertained by historical experience. It should also be noted here, that art.7 of the Constitution does not consider scale of constitutional assessment, as it establishes restriction on state authority and not particular contents of rights. At the same time, this article neither taken separately nor in conjunction with art.6, which introduces in Georgian legal system international agreements and conventions, does not allow, that competence of the constitutional court to be understood broadly and disputed norms be assessed with respect to international acts. N389 constitutional claim is examined within the competence established by art. 89(1) (f), which is lex specialis and does not provide for ruling on compatibility of normative acts with international agreements. The only act by which the constitutional court is guided while examination of constitutionality of a norm is the Constitution of Georgia and thus it is a task of the constitutional court to interpret the Constitution and not international agreements.

6.The claimants state, that the disputed norms violated the Constitution because of their “low quality” allowing for arbitrary action from the side administration of higher educational institution. In other words, the principle of legal security is violated, which is based on the principle of rule of law and means that a norm should be clear and compatible with foreseeability requirements. An individual must be able to determine what the law requires from him and adapt his action to this requirement. The Constitutional Court while assessing constitutionality of the disputed norms should determine whether violation of rights resulted because of indeterminacy of disputed norms. At the same time, the disputed norms shall not be considered separately from other related norms, because such approach may lead the Constitutional Court to wrong conclusions (Ruling of the Constitutional Court of Georgia N2/3/412, 05.04.2007). It is noteworthy, the statement of the Constitutional Court that “one should differentiate between legal reality given in the disputed norm and reality given through application of the norm. The Constitutional Court is only competent to assess with respect to Constitution only rule given in the disputed norm…. but if norm’s realization does not conform to its contents, then the source of violation of claimants rights should not be sought here (in the contents of the norm) but in its practical realization. The Constitutional Court may not examine constitutionality of application of the norm” (Judgment of the Constitutional Court of Georgia, N1/1/357; 31.05.2006). In addition to this, it is subject to examination whether difference in the contents and in the application of the norm was caused by incompatibility of the norm with the principle of legal certainty. If by faithful interpretation it will be impossible to apply the norm in an arbitrary and harmful manner, then the norm will fully satisfy requirements of legal certainty.

7. As was found out through consideration of the case, existence of disputed norms was motivated by successful realization of higher educational system reform. Implementation of a reform is a legitimate aim, which was driving the Parliament and the President for adoption of the norm. From the documents submitted to the court, it seems that higher educational system necessitated immediate and fundamental reformation. Reformation of higher educational system was not a spontaneous and unplanned decision. It was preceded by lengthy preparatory process, study of existing situation and planning of directions for action. On 1^st March of 2002, the Parliament of Georgia adopted N1324-IIs resolution concerning “the main directions for the development of higher education in Georgia.” This resolution reflects that existing situation in educational system, main problems and ways of their resolution. The Parliament deemed establishment of contemporary educational system as an immediate task of Georgian state and indicated, that “… timely resolution of this problem is a precondition for building democratic state, for protection of national and global cultural values, for overcoming poverty and social alienation”. As a main disadvantage of existing system was acknowledged to be traditions of highly centralized and on planned economy based education, insufficient financing, overstaffed personnel, bad condition for study and research, obsolete curricula, low pedagogical and study standards, narrow specialization, strongly centralized structure of higher educational institutions, faulty examination system, corruption, elitism and little opportunities for representatives of non elite groups and so forth. It is indicated in the resolution about the necessity of structural reformation of higher educational institutions. Perfection of higher education is deemed as one of the means for overcoming existing grave situation in the country and as a task for the reform was set to be “ Creation of sustainable system, which will be based on: 1. indiscriminate access to education; 2. high verifiable quality of education; 2. substantive compatibility with European educational sphere”. The same spirit is identifiable from the documents which reflect preparation and consideration process of the draft law on higher education in the Parliament of Georgia.

As it appears from the report of association of European universities, the undergoing higher education reform in Georgia has received high scores and positive recognition on international level. It is stated in the report, that “the necessary legislative base for the reform is created; significant changes were introduced in university management, including division of powers in financial and academic matters and increase of students’ competences.” Furthermore, it is indicated that the states which need fresh motivation and new vision in reformation can without hesitance replicate Georgian case….”

The Constitutional Court fully agrees with considerations about necessity of reformation of higher educational system, its main directions and tasks and thinks, that proper higher educational system is an inseparable element of democratic social state under rule of law and its creation is one of the top legitimate aims. It is clear that, adoption of the norms of the Law on Higher Education was a result of lengthy and conscious process; legislature had objective and justifiable aims, which were not conditioned by subjective attitude towards professors and lecturers of certain universities critical to the reformation. As to what extent the disputed norms conformed formally and substantively to the legitimate aim we will examine it while consideration of their constitutionality.

8.The state higher educational institution has status of public law legal entity and therefore has a claimant’s standing in constitutional proceedings, is case concerns violation of its constitutional rights. The group of personnel of higher educational institution is entitled to protection of their rights, but it can not be a party instead of higher educational institution.

9.The claimants’ opinion, that representative bodies of higher educational institutions will be annulled is unfounded. The main provisions of the law on higher education have considered new system of higher educational institutions which substantively differs from the existed one. It is noteworthy that these norms of the law entered into force immediately after publication and the charters of the higher educational institutions, which were approved by the President’s ordinance – a lower level acts in the hierarchy of normative acts, came into conflict with new law. The old system of higher educational institutions was annulled by main provisions of the law on higher education and not by transitional provisions.

10.The disputed ordinance of the President and in particular its paragraph 5(c) was intended for realization of the requirements of the law. On the one hand, there was a necessity for determination of competences of temporary management bodies and on the other hand – ensuring conformance of the ordinance with the law. It is noteworthy, that new rule for approval of higher educational institutions charters substantively differs from prior rule – The President of Georgia is not any more authorized to approve charters of the higher educational institutions. Liquidation bodies of higher educational institutions has not happened through the disputed ordinance of the President, because this was already realized before the adoption of the ordinance through the Law on Higher Education and the ordinance of president had different purposes. In the case of inexistence of this ordinance there would have been legal vacuum, which would have created real threat of paralysation of higher educational institutions.

11.It is a different issue whether the legislature should have left bodies of higher educational system intact during the transitional period. As it was mentioned above, one of the main disadvantages of higher educational system was acknowledged to be ineffective, artificially enlarged, overly centralized and not at all democratic management system. It is clear that this system would not have accomplished the role of a fundament upon which the weight of the reform would have to be grounded. Faulty system would not have created well-governed system in conformance with international standards. There was probable threat that it would be impossible to implement personnel, structural, financial and administrative aspects of the reform and that changes would have had only formal weight. The legislature choose in this situation the only logical way – The state university was proposed “clear paper” model – all existing structures were annulled and exercise of their competences was assigned to relevant officials. At the same time, it is very important, that higher educational institutions were given possibility for formation of their management bodies. Judging from the complex and hard nature of changes and measures to be undertaken, the time periods proposed by the legislative satisfy requirements of reasonableness. It should also be taken into account that legislature has set maximum time limits and in case of organized action transition to new system was possible before their exhaustion. The issue concerning how well-organized was the process in certain high educational institutions is not a subject of assessment of the Constitutional Court.

12.In order to examine compatibility of the disputed norms with paragraphs 1^st and 3^rd of art.19 and paragraphs 1^st and 4^th of art.24, first of all should be considered whether participation in the election of representative bodies of higher educational institutions and in these bodies’ activities falls within the protected scope of these articles. It should be noted, that the claimant party has not raised issue of compatibility of the disputed norms with art.19 from the perspective of a violation of freedom of conscience, religion and belief, therefore the constitutional court will not examine this issue.

13.The art.19 and art.24 complement each other from the perspective of constitutionally guaranteeing protection of freedom of expression. Free society consists of free individuals, who live in free informational sphere, reason freely, have independent views and participate in democratic processes, which means free exchange and competition of viewpoints. Each individual has right to express his/her views or restrain from expressing. The Constitution is categorical in this sense – it prohibits prosecution of an individual because of his/her viewpoints as well as forcing him/her to express views. This is a strict rule which does not allow for exceptions. Democratic process is driven by a force, spiritual influence, which is characteristic to an idea. The Constitution protects process of expression and dissemination of views, its content and forms, however at the same time it establishes formal and substantive conditions of its restriction.

14.Art. 24 of the Constitution protects freedom of information, free dissemination and receipt of information from generally accessible sources. Without freedom of information it is impossible to form independent opinions. This is the norm which prohibits creating an “informational filter” characterizing non-democratic regimes. However similarly to freedom of expression, this right is also subject to constitutional restrictions in accordance with art.24 (4) of the Constitution.

15.Free expression of electorates will, which is decisive for democratic process, as well as electoral rights is protected by art.28 and not by art.19 or art.24 of the Constitution. Apart from this, it is obvious, that disputed norms are substantively of different contents and they do not regulate electoral process and related freedom of expression issues.

16.The Grand Council of I. Javakhishvili State University was highest management body of public law legal entity. Any activity of any body or official involves expression of views on certain issues. However, inclusion of this in the scope of constitutionally protected right is incorrect, because this is an exercise of administrative competence and not of constitutionally protected liberty. Certain body or position is not a form of expression, but is a place and form for exercising administrative competence. The good protected by the art.19 and art. 24 is not a right to participate in the activities of public law legal entity’s management body or right to hold certain position. The broad interpretation of expression form proposed by the claimants would lead us too far and would subject to annulment or reformation of every administrative body or position, in such circumstances as is territorial integrity or national security, prevention of crime and so forth. The purpose of art.19 and art.24 of the Constitution is to ensure free exchange of viewpoints and information in the democratic society and not guaranteeing stability of certain body or position.

17.Nothing in the disputed norms, even indirectly, provides for restriction of receipt or dissemination of information. As in the freedom of expression case, this fundamental right does not allow for such broad interpretation, so that under its protection falls integrity of any administrative body or official.

18.The Constitutional Court will emphasize compatibility of disputed norms with art.30 (1) and with art.30 (4) in the part which provides for that protection of labor rights is determined by the law. What concerns other requirements of art.30 (4), the claimant has not raised any issue in relation to them. Constitutional entrenchment of the right to labor emphasizes Georgia’s social state character, the main task of which is to ensure dignified living for individuals. A narrow interpretation of art.30(1) and formal interpretation of art.30(4) degrades social character of a right to labor, makes it empty and at the same time violates principle of rule of law, which sets strict constitutional limits on the state authority. Here it is meant not only that the legislature has to satisfy formal requirements of the Constitution and regulate protection of right to labor by legislation, but also that this law in terms of substance be in line with the Constitution. The Constitutional Court will assess the disputed norm from this perspective.

19.Art.30(1) of the Constitution should be interpreted according to its goals, in conjunction with social state principle, which is one of the fundamental principles of the Constitution and does not allow to interpret art.30 as only prohibitive of forced labor. The existing constitutional order through right to labor requires from the social state much more than just prohibition of forced labor. Art.30 of course protects each individual from forced labor, which constitutes violation of individual’s dignity. The Constitution protects not only a right to choose employment, but a right as well to exercise, keep and leave the employment, to be protected from unemployment and from such regulations, which directly provide or allows for arbitrary, unjust and ungrounded dismiss from the work. Art.30 (4) is directly related to the first paragraph, in conjunction with other issues, emphasizes protection of labor rights and norm that will be in conflict with paragraph 4, will be incompatible with art30 (1).

20. Any activity of an individual shall not be recognized as “labor” and is not subject to the protection of art.30 of the Constitution. In “labor” is meant such activity, which from material and spiritual perspective contributes to fundament of life and to its preservation. Labor, on the one hand constitutes means for material provision and on the other hand – self-realization and development. Professional activity of an individual may include range of dimensions, but element of an activity is constitutionally protected if it gives continuous and material income or through its termination there would not be main direction of income providing professional activity. From this perspective membership in the Grand Council or Faculty Council of I. Javakhishvili Tbilisi State University, as it seems from the old charter of the university, does not constitute income providing activity or inseparable part of claimants’ professional activity. It appears from the documents submitted to the court, that main direction of claimants activities were other positions. They could continue professional activities without the membership in Grand Council, which was an additionally honorable activity in I. Javakhishvili State University. It is noteworthy that certain claimants were not members of these bodies. Although it is true that participation in the bodies of educational institution allows for opportunities to influence current processes in the institution, but this is beyond the protected scope of the constitutional right to freedom of labor as protected good of this right is not the scale of individual’s influence in the institution in which he/she exercises professional activities.

21.The Constitutional Court cannot examine violation of a right to freedom of labor in the part of art.87 (2) of the Law on Higher Education, which provides, in relation to entry into force of the law, premature termination of authority of the rector of higher educational institution. None of the claimants held the position of rector and therefore they have not raised an issue in this regard.

22.One of the claimants, J. Mebonia on the basis of art.87 (2) of the Law on Higher Education was released from the position of dean. This was a position held by the claimant, was receiving an income and thus it can be recognized as “labor”. However, it should be noted that from the perspective of protection of right to labor only art.87 (2) of the Law on Higher Education is subject to examination and not other disputed norms, which by the entry into force of the law were not regulating labor relation of the deans. It is necessary that the essence of the indicated norm be fully comprehended. On the one hand, this norm provides for premature termination of office of the dean, on the other hand it establishes temporary rule for holding an office of acting dean and the current dean left a possibility to continue professional activity on the position of an acting dean, thus it does not occur unconditional and inevitable “firing” of deans form the educational institution.

23.As was mentioned above, art.30 (1) of the Constitution protects right to labor, while art.30 (4) is a related norm, which allows for assessment of norm applicable in this sphere from material and formal perspective. Art.87(2) of the law on Higher Education satisfies formal requirements of art.30(4) of the Constitution – this is a law from formal perspective, the legislator had constitutional authority to regulate this issues and the claimants have neither expression any pretensions regarding the formal side of the adoption of the law.

24.Contrary to the opinions of the respondents, art.87 (2) of the Law on Higher Education should be examined from substantive perspective as well. The court has already stated regarding the legitimate aims of the disputed law. This aim, because of its significance, gave broad latitude to the legislator and the means for achievement of it was exactly this law. The legislator should have assessed the situation and have compared these interests with the employment rights of the individuals holding dean’s office. The legislator is not obliged to wait for exhaustion of term of office of an individual and then implement a reform in certain fields. The reform interest is prior to the interest of an individual to hold an office for determined period. The right to labor is not an absolute right. An individual, who holds certain position, should perceive that this office is not permanent and may be subject to reasonable restrictions. The aim of the disputed norm was not to prematurely terminate authority of certain public officials, but to create proper organizational, personnel and legal preconditions for transitional period, so as to occur transition from the present model to more progressive and democratic one. It is fact that the higher educational institutions necessitated immediate personnel and structural changes and from this perspective, allowing for delay and leaving current officials and structures untouchable would be fatal for the reform. Without the transitional provisions, which determined temporary rule for taking a position, the personnel direction of the reform would have been paralyzed. There would be officials in respect to which legal decisions would be inapplicable. Therefore, in this case premature termination of the office of certain officials and temporary transformation of the rule for holding a position was the sole, necessary and proper means to achieve the legitimate aim.

25.The disputed norms of the Law on Higher Education and of the ordinance of the President of Georgia N473 of 8^th June 2005 concerning “determination of competences of acting rector and faculty acting dean of legal entity of public law- higher education entity and announcement of some ordinances of the President of Georgia partly void” do not even indirectly relate to personnel issues. The court has already stated regarding the regulation of dean labor relations. As to what concerns accept, release and transfer of employees and competences of the acting dean, they are defined by paragraph 2(h) and (g) of the disputed ordinance. The court cannot agree with the opinions of the claimants that these norms are of “low quality”. They clearly indicate that resolution of these issues should be in accordance with the rule prescribed by the law, in which in the first instance is meant the Law on Higher Education, which is directly indicated in the paragraph. 2(g) of the ordinance. In decision-making on personnel issues the acting rector does not have leeway of arbitrary or illegal conduct. The disputed norms regulate clearly and specifically competences of the acting rector in personnel issues and satisfies the requirements of certainty principle.

26.The claimants expressed pretensions regarding the fact that they were not transferred to relevant academic positions in accordance with the art.89 (11) of the Law on Higher Education. It was clear from the testimony of the witness that the law provided for the transfer of professors and scientists. However, the Constitutional Court cannot examine the correctness and legality of application of art.89 (11) and other norms of the Law on Higher Education by the administration of I. Javakhishvili State University, because this is the competence of the ordinary courts. Therefore, it is beyond the competences of the Constitutional Court to examine legality of the competitions that took place in the higher educational institutions, which should also be litigated in the ordinary courts. The Constitutional Court states, that the disputed norms are not related to the interpretation issue of art.89 (11) of the Law on Higher Education and they do not allow legal opportunity for illegal decision making of personnel issues either in I. Javakhishvili State University or in other higher educational institutions.

27.The claimants raised the issue of compatibility of disputed norms with respect to art.34 (1) of the Constitution from the perspective that there was a violation of the right to unrestricted participation in cultural life. Art.34 of the Constitution obliges the state to contribute to unrestricted participation of citizens in the cultural life. This includes also that the state is obliged not to hinder the realization of this right and create real guarantees for its protection. The concept “cultural life”, also includes scientific activities, which is a significant element of cultural and spiritual existence of a society. This opinion is in line with the interpretation of the right to participate in cultural life as protected by relevant international acts. In accordance with the grand charter of universities (Bologna, 18^th September 1988) “the university … creates, checks, assesses and disseminates culture through research and teaching.” A scientific activity is characterized by truth seeking in specific fields and comprehensions process, by methodological critical reasoning, transfer of received knowledge and experience. The science includes interrelated components of research and teaching. The degree of freedom in this field is very high. Rights of those individuals who are active in scientific life are protected. This activity may be an employment of a person or an element of it, as well as be exercised beyond the scope of the employment activity and is not mandatory, that the person holds an office in the institution. It is reasonable to employ similar approach which we applied above regarding attribution of person’s activity to employment. The activity of a staff member of a higher educational institution constitutes scientific and thus participation in cultural life only if it is the inseparable part of his/her scientific activity and through termination of this activity the individual is excluded from participation in cultural life.

28.We should differentiate among various aspects of higher educational institutions staff’s activities. These are not only scientific activities and they contain also management activities. Some claimants were members of I. Javakhishvili State University’s Grand Council and Faculty Councils. One of the claimants held the position of a dean of a faculty. Membership of university or faculty body, as well as position of a dean is connected with exercise of management functions. This is not a scientific activity because of reasons mentioned above and is neither an inseparable part of such activity. The claimants may continue research and pedagogical activities, even in the conditions, in which they do not hold certain administrative positions, or are not members of certain bodies and from the disputed norms none create obstacles in this direction.

29. After admission of N389 constitutional claim for examination on merits, on 27^th December 2006 art.35 (2) of the Constitution was amended. This amendment was published on 11th of January 2007 and is in force immediately after publishing. The legislation concerning the Constitutional Court does not expressly regulate what happens when the amendment is introduced in the norm in respect to which was raised issue of constitutionality of a disputed norm. Judging from this, logical analysis of relevant legislation is of an utmost importance. As was mentioned, examining the admissibility of a constitutional claim, the Constitutional Court should restrain itself from consideration of such issues, which are to be decided on the merits. The Constitutional Court is not also authorized to consider admissibility issues on the merits and directly without ruling in the issues pertaining to the admissibility of a case move on to the assessment of a constitutionality of the disputed norm. Therefore, the Constitutional Court shall not examine constitutionality of the norms disputed by N389 constitutional claim in respect to art.35 (2) of the Constitution.

30.While interpreting art.17 (1) of the Constitution, civil conception of honor and dignity shall not be decisive for the court. Judging from the purposes of this norm, as well as from the historic experience and reasons for guaranteeing these rights in the Constitution, definition of dignity from the perspective of constitutional law is different. The essence of art.17 (1) of the Constitution, in accordance with this norm, the central value of an individual, as independent, free and equal subject. The protection of the dignity of an individual is an obligation of a state. In dignity it is meant the social need from the side of the state for respect. A human has a dignity simply because he/she is a human being and thus social opinions about him/her or his own self-assessment is irrelevant. Respect to human dignity means recognition of each and every individual’s personality, confiscation or restriction of which is impermissible. Individual for the state shall be the major purpose, major value, object of respect and not means for achieving certain aims or an object of exploitation.

31. A dignity cannot be deemed to be an object of only one subjective constitutional right. Dignity is a right and at the same time a constitutional principle upon which other fundamental rights are based. A legal status of an individual is based on the idea of dignity, while the principle of legal protection, as a means for social-legal protection of an individual, is based on the principle of ensuring protection of dignity. Violation of a right to dignity is always related violation of other fundamental rights. It appears from the reasoning of the claimants that violation of their right to dignity was related to the violation of other fundamental rights. As it appears from the above reasoning of the Constitutional Court, there was not violation of the constitutional right indicated by the claimants. Leaving an office may cause an unpleasant subjective feeling, but it is not the task of the Constitutional Court to examine them, but to objectively analyze the disputed norms. While adoption of disputed norms, it was neither the President’s nor the legislatives aim to humiliate certain group of people, including the claimants. The state’s action had clearly expressed aim, which we have already mentioned above and which supports protection of a dignity of an individual. Apart from this, it should be also taken into account that the disputed norms were transitional provisions, temporary norms which were ensuring transition of higher educational system from the old model to the new one.

III

On the basis of the above mentioned, the court guided itself by art.89(1)(f), art.89(2) of the Constitution of Georgia, art.19(e), art.21(2), art.21(8), art.23(1), art.25(2) and art.25(3), 2^nd, 4^th, 7^th and 8^th para of art.43 art.45 of the Organic Law on he Constitutional Court of Georgia, 1^st and 2^nd para of art.7, art.24(4), art.30, art.31, art.32 and art.33 of the Law on Constitutional Proceedings,

The Constitutional Court of Georgia
Rules:

1. The constitutional claim N389 (Citizen of Georgia Maia Natadze and others v The Parliament and The President of Georgia) shall be dismissed.

2. The judgment is in force after the public announcement on hearing of the Constitutional Court.

3. The judgment is final and is not subject to appeal or review.

4. The copy of the judgment shall be sent to the parties, to the Government and Supreme Court of Georgia.

5. The judgment shall be published in the Legislative Bulletin of Georgia within 15 days.

The members of the Chamber:

Besik Loladze

Otar Sichinava

John Khecuriani