Composition of the Chamber

Konstantine Vardzelashvili – Chairman of Hearing

Vakhtang Gvaramia – Member

Ketevan Eremadze – Member, Rapporteur Judge

Besarion Zoidze – Member

Secretary of the Hearing: Lili Skhirtladze

Title of the Case: Citizens of Georgia – Vakhtang Masurashvili and Onise Mebonia v. The Parliament of Georgia.

Subject of the Dispute: Constitutionality of a) article 208.6 (completely) and part of article 208.7 (the part concerning arrest for manifest and gross disrespect for court) of the Criminal Procedure Code of Georgia and 2) article 212.5 (completely) and part of article 212.6 (the part concerning arrest for manifest and gross disrespect for court) of the Civil Procedure Code of Georgia with respect to article 18.1, 18.2 and 42.1 and 42.3 of the Constitution of Georgia.

Participants of the Oral Hearings: held on 22^nd, 27^th and 29^th of December: Claimant Onise Mebonia and his representatives Manana Kobakhidze, Tamar Gabisonia and Nino Elbakidze; Claimant Vakhtang Masurashvili and his representative Otar Kakhidze; Representative of the Respondent – Parliament of Georgia- Head of the Division for the Representation in Courts of the Legal Department of the Parliament of Georgia, Mr. Batar Chankseliani, the leading specialist of the Division Marina Robakidze and summoned specialists – Associate Professor of Ivane Javakhishvili Tbilisi State University Irine Akubardia, Professor Otar Gamkrelidze and Lawyer Ioseb Baratashvili

Citizen of Georgia Vakhtang Masurashvili lodged a constitutional complaint with the Constitutional Court of Georgia on June 30, 2006 (Registration no. 393) and Citizen of Georgia Onise Mebonia lodged a constitutional complaint with the Constitutional Court of Georgia on July 11, 2006 (Registration no. 397). Pursuant to recording notice dated July 20, 2006 (No.1/4/393,397) the First Chamber of the Constitutional Court of Georgia admitted the complaints for examination on the merits and united them into one case.

The Constitutional Complaints were lodged under article 89.1(f) of the Constitution of Georgia, article 19.1(e) and article 39.1(a) of the Organic Law of Georgia on the Constitutional Court of Georgia, and article 1.2 and article 10.1 and article 16 of the Law of Georgia on Constitutional Litigation.

According to the Constitutional Complaints, the subject of the dispute is article 208, sections 6 and 7 of the Criminal Procedure Code of Georgia, which state:

“Article 208. Liability for Disorder in Court

...6. If a gross and manifest disrespect is demonstrated towards a court, a chairman of the hearing (a judge) is authorized to adopt a resolution on arrest of a person for up to 30 days. The Resolution shall be immediately executed. If the resolution concerns a party to the proceedings, the court hearing may be suspended for that period.

7. Resolution of a chairman of a hearing is adopted with deliberations in the court-room, and resolution of a chairman of a court is adopted without oral hearing and may not be appealed.”

On June 22, 2006, pursuant to the Resolution of the Judge of Criminal Chamber of Tbilisi City Court 20-days arrest was imposed on the Claimant Vakhtang Masurashvili for demonstration of manifest and gross disrespect towards a court. In the Claimant’s view, judges imposing an arrest act as a victim, a prosecutor and a final arbiter at the same time and they could not be considered impartial and objective. From this perspective, section 6 of the impugned article is incompatible with the article 42.1 of the Constitution of Georgia and article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which enshrine human right to fair, independent and impartial tribunal.

In the Claimant’s view section 7 of article 208 of the Criminal Procedure Code of Georgia is incompatible with article 41.1 and 41.3 and 18.1 of the Constitution of Georgia, as adoption of a resolution with deliberations in the courtroom and without oral hearing excludes participation of an offender in the process, and his possibility to defend himself in person or through legal assistance. Moreover, inability to challenge legality and argumentativeness of deprivation of liberty substantially limits right to personal security and right to fair trial. In the Claimant’s opinion, the impugned rules are incompatible in this respect with article 5.4 of the European Convention for Protection of Human Rights and Fundamental Freedoms and article 2 of the Protocol No. 7 of the same Convention, pursuant to which person shall have right to appeal to a higher tribunal, in cases of deprivation of liberty.

On June 14, 2006, Signagi District Judge imposed 10-days arrest on the Claimant Onise Mebonia, acting as defender, with its resolution pursuant to the impugned rules. In his constitutional complaint the arguments in respect of inability to appeal the court resolution and infringement on right to defence are essentially analogous to the arguments of Vakhtang Masurashvili.

In contrast to Mr. Masurashvili, Mr. Mebonia raised in addition an issue to invalidate article 208.6 as unconstitutional in respect of article 18.2 of the Constitution, as pursuant to the impugned rule liberty is deprived on the basis of resolution of a judge or a chairman of a court, which does not constitute a decision of a court.

In the process of examination of the merits of the case, the Claimants and their representative enhanced the subject of the dispute under article 13.2 of the Law of Georgia on Constitutional Litigation. They required that article 212.5 and 212.6 of the Civil Procedure Code of Georgia be also declared unconstitutional, as they are identical to the impugned rules, enshrined in the Criminal Procedure Code of Georgia.

According to the modified subject of dispute, the added impugned rules state:

“Article 212. Liability for Disorder in Court

...5. If a gross and manifest disrespect is demonstrated towards a court, a chairman of the hearing (a judge) is authorized to adopt a resolution on arrest of a person for up to 30 days. The Resolution shall be immediately executed, which shall not delay the trial and decision of a case.

7. Resolution of a chairman of a hearing (a judge) envisaged in this article is adopted with deliberations in the court-room and may not be appealed.”

The Constitutional Court accepted the motion.

In the respondent’s view, the claims shall not be upheld. Representatives of the Parliament of Georgia set forth the following arguments in favour of their position:

1. The term “decision” in article 18.2 of the Constitution of Georgia shall be widely construed and “resolution” envisaged in impugned rules shall be considered as its variety.

2. Adoption of a resolution on deprivation of liberty with deliberations in the courtroom and without oral hearing is not incompatible with article 43.3 of the Constitution of Georgia as right to defence emerges from the moment of arrest or detention of a person and thus a person cannot exercise the right in the process when the decision on imposition of arrest is being taken.

3. The Respondent did not recognized the claim in part of the inability of appeal of a resolution envisaged in the impugned norms, though it stated, that a draft of the law, under which resolution on imposition of arrest will be subject to appeal is considered in the Parliament of Georgia.

The Respondent did not accept also the claimants’ arguments in respect of impartiality of a court.

All the three specialists summoned before the court stated, that adoption of a resolution on imposition of arrest with deliberations in the courtroom and without oral hearing, does not provide a person with possibility to defend himself in person or through legal assistance, which results in violation of right to fair trial and thus article 42.1 and 42.3 of the Constitution of Georgia. The specialist also took analogous approach in respect of inability to appeal against a court resolution, which in their opinion, is manifestly incompatible with right to fair trial enshrined in article 42.1 of the Constitution of Georgia and article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Opinions of the specialists in respect of the nature of a misdemeanour differed.

Based on the examination of the material of the case, information in the constitutional complaints and arguments set forth by the Respondent, reports of the specialists and evidence in the case, the First Chamber of the Constitutional Court made the following findings, crucial for the decision:

1. The Constitutional Court of Georgia, like constitutional courts of several European states (Germany, Austria, Italy, etc.) is guided in the assessment of constitutionality of a normative act by proportionality principle. Case-law of the European Court of Human Rights is also entirely based on this principle.

Proportionality principle emanates from the idea of a rule-of-law state and its basic function is to determine the extent to which the human rights may be restricted. It ensures certain balanced, proportional correlation between liberty and its restriction and prohibits restricting human rights severely than it is necessary in a democratic society.

Proportionality principle is a constitutional criterion to assess legality of human rights’ restriction. Therefore it is substantial for constitutional control.

Pursuant to article 7 of the Constitution of Georgia: “The state shall recognise and protect universally recognised human rights and freedoms as eternal and supreme human values. While exercising authority, the people and the state shall be bound by these rights and freedoms as directly acting law.” This norm may be considered as the general basis for proportionality principle, though it does not exhaustively determine its substance. The specific substance of the principle is identified in the case-law of the Constitutional Court, as proportionality principle presents determining criteria for the Constitutional Court in ascertaining proportionality and thus constitutionality of human right’s restriction.

The Constitutional Court will assess in given case whether the proportionality principle was met by the impugned norms in restricting the fundamental rights, namely right to personal security and right to fair trial. These rights, per se, as well as defining their scope by the State according to the proportionality principle and provision of adequate procedures for their protection, are directly related to the principle of a rule of law state and in the main determine its substance.

II. The Constitutional Court of Georgia States, that article 208.7 (the part concerning arrest for manifest and gross disrespect for court) of the Criminal Procedure Code of Georgia and article 212.6 (the part concerning arrest for manifest and gross disrespect for court) is incompatible with article 42.1 and 42.3 and article 18.1 of the Constitution of Georgia due to the following findings:

1. Under article 42.1 of the Constitution of Georgia: “1. everyone has the right to apply to a court for the protection of his/her rights and freedoms.” This article sets forth the right to a fair trial, the scope of which is determined in the Constitution and in international legal instruments. This rights encompasses not only right to apply to a court (bring a complaint), but it also ensures comprehensive legal protection of a person. In the first place, right to fair trial means that all the decisions of the state officials, which violate human rights, may be challenged in the court and legally assessed. Moreover, in order to achieve a fair hearing of a specific case and adopt an objective decision, the following minimum rights are included here: rights of a person to apply a court, to demand fair public hearing of its case, express his opinions and defend himself in person or through legal assistance, have one’s case heard in reasonable time frame and a case be considered independent and impartial tribunal.

The Constitutional Court has defined in several judgments the substance and scope of fair trial on the basis of relevant provisions of the European Convention for Protection of Human Rights and Fundamental Freedoms and its case-law. In the judgment of December 2, 2004 in case of LLC Uniservice v. The Parliament of Georgia, the Constitutional Court of Georgia stated, that “Convention of the European Council for Protection of Human Rights and Fundamental Freedoms of November 4, 1950 (entered into force in Georgia on May 20, 1999) fully authorizes the parties to support their arguments before the Constitutional Court with the provisions of European Convention. The same rule is applied in respect of case-law of the European Commission of Human Rights and European Court of Human Rights, which specify the substance and scope of the rights enshrined in the European Convention.”

In the present case, when ascertaining constitutionality of the impugned norms, the Constitutional Court of Georgia will also assess their relation to the relevant provisions of the Convention. The constitutional right to fair trial is expounded by article 6.1 of the Convention for Protection of Human Rights and Fundamental Freedoms, which states: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Constitutional Court considers it is necessary to construe whether the relationships regulated by the impugned norms are encompassed by constitutional right to apply to a court to the extent, as it is defined by article 6 of the Convention for Protection of Human Rights and Fundamental Freedoms.

The Constitutional Court points out, that European Court of Human Rights and European Commission for Human Rights before it, widely constructed article 6 of the Convention on the ground of its fundamental meaning for the functioning of democracy, “in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 para. 1 (art. 6-1) would not correspond to the aim and the purpose of that provision.”(see, inter alia, the Delcourt judgment of 17th January 1970, "As to the Law" paragraph 25).

Article 6 ensures fair trial in determination of a criminal charge against a person. However, “criminal charge” is autonomous concept for the Convention purposes and its application does not depend on definition of this term in the national legislation. Inter alia, the European Court stated in the Judgment of February 27, 1980, in the case of Deweer v. Belgium, that "substantive", rather than a "formal", conception of the "charge" shall be preferred and the Court shall look behind the appearances and investigate the realities of the procedure in question (par. 44). Autonomous meaning of the term is underscored in several judgements. (see, inter alia, the Judgements of August 29, 1997 in the cases of A.P., M.P. and T.P. v. Switzerland, par. 39; E.L., R.L., and J.O.-L v. Switzerland, par. 44 ).

If the offence is classified as “criminal” under national law of the respondent state, article 6 will be applied to the proceedings. However, classification in domestic law is not decisive for applicability of fair trial guarantees under article 6. In the Judgement of June 8, 1976 in the Case of Engel and Others v. The Netherlands, the European Court declared: “If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention.” (par. 81).

It was decided in the same judgement, that in a society subscribing to the rule of law, an act for which deprivation of liberty is imposed as punishment belong to the "criminal" sphere (par.82). In the Judgment of March 23, 1994, in Case of Ravnsborg v. Sweden the European Court stated, “Notwithstanding the non-criminal character of the proscribed misconduct, the nature and degree of severity of the penalty that the person concerned risked incurring ...may bring the matter into the "criminal" sphere”.(par.35).

Taking into consideration all the abovementioned, for the purposes of the constitutional complaints, the Constitutional Court shares the approach of the European Court and considers, that, article 6 of the Convention shall be applied to the impugned norms, as they prescribe deprivation of liberty (arrest up to 30 days) as penalty.

Right to apply to a court is not absolute. The European Court stated in this respect, that the right of access calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals. Moreover, inter alia, in the case of Ashingdane v. the United Kingdom, the European Court defined the general scope of limitation of this right: “a limitation will be compatible with Article 6 para. 1 (art. 6-1) a. if it pursues a legitimate aim and b. if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. These preconditions shall be met in order the limitations applied not to restrict the access left to the individual to such an extent that the very essence of the right is impaired.”

The Constitutional Court of Georgia shall ascertain in the present case, what the legitimate aim of the limitation is and whether there is a reasonable proportionality between the aim pursued and the prescribed limitation.

The legitimate aim of the impugned norms is to achieve efficient and fast justice, to ensure order in court, to prevent demonstration of gross and manifest disrespect for the court and protection of its authority.

To achieve this goal, the legislator chose adoption of a resolution with deliberations in the courtroom and without oral hearing by the chairman of the hearing (judge) or chairman of a court on imposition of up to 30 days arrest on a person, demonstrating gross and manifest disrespect for court. The resolution may not be appealed.

In order to ascertain, whether there is a reasonable proportionality between the abovementioned aim and the means employed here, and thus to ascertain whether the impugned norms guarantee right to fair trial, the Constitutional Court will assess only those facets of fair trial, in respect of which the Claimants allege that the impugned norms are incompatible. These are 1. right to be informed promptly of any charge against him and right to defend himself in person or through a legal assistance, when the issue of deprivation of his liberty is being decided; 2. right to be heard by an impartial court; 3. right of appeal against a judicial decision.

2. The Constitutional Court of Georgia considers that the impugned norms are incompatible with article 42.3 of the Constitution of Georgia, which states, “3. The right to defence shall be gguaranteed.”

Right to defence is essential part of the right to fair trial and in general it implies that a person is able to defend himself in person or through legal assistance of his choosing.

The Claimants allege that article 208.7 of the Criminal Procedure Code of Georgia and article 212.6 of the Civil Procedure Code of Georgia are incompatible with article 42.3 of the Constitution of Georgia due to the fact, that a resolution on deprivation of liberty is adopted without oral hearing (Only article 208.7 of the Criminal Procedure Code regulates oral hearing issue) and with deliberations in the courtroom (both impugned norms regulated this issue), which deprives a person possibility to have a counsel, to have adequate time and facilities for the effective defence in person or through a legal assistance of his choosing. Moreover, a person is not informed on his constitutional rights at the moment of arrest.

The Constitutional Court will not share the argument of the Respondent that the impugned norms do not conflict with “right of defence as the right of defence emerges from the moment when a person is arrested, not when the issue of his arrest is being decided.”

Right to defence enshrined in article 42.3 of the Constitution of Georgia is not circumscribed with the preconditions set forth in article 18.5 of the Constitution of Georgia, which states. “5. An arrested or detained person shall be informed about his/her rights and the grounds for restriction of his/her liberty upon his/her arrest or detention. The arrested or detained person may request for the assistance of a defender upon his/her arrest or detention, the request shall be met.” It is true to state, that right to defence emerges under this article from the moment of the arrest or detention of a person. However, it does not exclude right of a person to defend himself in the proceedings when the deprivation of liberty is being imposed, the right guaranteed under article 42.3 of the Constitution of Georgia and article 6, paragraph 3 of the European Convention for Protection of Human Rights and Fundamental Freedoms, which states:

“3 Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence;

c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so

require;”.

The Constitutional Court will not share another argument of the Respondent that if person is granted the right to appeal against the Resolution, the problem will be solved, as a person will be granted possibility to defend himself from the moment of arrest, as it is guaranteed in article 18.5 of the Constitution of Georgia.

The Constitutional Court of Georgia states in this respect, that even if the impugned norms provided for appeal against a resolution, access to legal assistance after being arrested would not meet the requirements under article 42.3 of the Constitution, as the latter provision guarantees right to defense from the moments when a court judges his liability for an offense.

Thus article 42.3 of the Constitution of Georgia includes article 18.5, though its scope is not circumscribed with article 18.5 requirements, and it is much wider and provides a person with right to defense in cases, when a court imposes on him deprivation of liberty.

The Constitutional Court considers, that the deprivation of liberty without oral hearing under the impugned norm (article 208.7 of the Criminal Procedure Code of Georgia) limits a person to be present at the proceedings and have a say in it, which is basic element of fair trial. Moreover, it shall be noted, that in certain cases, right to oral hearing may be restricted. For example, criminal trial in absence of the defender may be permitted under exclusive conditions, if the authorities acted with due efficiency, but could not notify a person on the court hearing (Judgment in the case of Colossa v. Italy, February 12, 1985). Trial in absence of a defender may also be in the interest of justice in certain cases of sickness. (Opinion of the European Commission of Human Rights in the case of Eslin and Others v. Germany, July 8, 1978). Person can waive this right, but all events of such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. (Case of Poitrimol v. France, November 23, 1993). Moreover, if an offender denies attending the proceeding, he shall be entitled to defend himself through legal assistance. (See the case of Pelladoah v. The Netherlands; The European Court found violations of article 6, par. 1 and par. 3, clause “c” of the Convention.)

Trial in upper instance without oral hearing will not always be considered to be violation of constitutional rights, if the right to defense was guaranteed in the proceedings which entailed deprivation of liberty. It is noteworthy, that European Court of Human Rights does not consider the presence of an offender at the appeal proceedings as important as his presence at the first instance trial. If the appellate instance court merely examines questions of law, it is not necessary to hold an oral hearing with participation of a defendant. The distinction shall be drawn between this case and when an appellate court examines questions of both fact and law. To ascertain whether a person is entitled to attend the hearing, the European Court will assess whether an appellate court needs presence of defendant in order to ascertain the facts.

Finally, the Constitutional Court of Georgia considers, that under article 42.3 of the Constitution of Georgia, a person who is being imposed deprivation of liberty, shall be entitled to express his opinion or have a legal counsel for his defense, which is mostly not feasible, when the case is tried without oral hearing, or with deliberations in the courtroom. It is true, that there are cases, when it is not necessary to hold an oral hearing (we mentioned above these cases.). It is also possible, that deliberations in the courtroom do not violate right to defense, when for example, a party to the litigation, who is being imposed deprivation of liberty for demonstration of disrespect for court is present in the courtroom together with his legal counsel. However, the following precondition shall be considered: guaranteeing right to defense requires not merely having a legal counsel in physical sense, but also being provided with adequate facilities to prepare one’s defense. Therefore, the legislator shall provide minimal, reasonably sufficient time for a person to have adequate possibility to defend himself in persons or through legal assistance.

In the case of Citizens of Georgia Firuz Beriashvili, Revaz Jimsherishvili and the Public Defender of Georgia v. The Parliament of Georgia, January 29, 2003, the Constitutional Court of Georgia noted that defending party shall be granted reasonable, sufficient time and facilities to exercise full right of defense, which presupposes the time and the facility, which would guarantee full possibility for preparation of the defense according to the degree of complicacy of a particular criminal case.

In this respect that the Chamber points to the approach taken by the European Court of Human Rights, “..the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive” (Case of Artico v. Italy, May 13, 1980, par. 33)

Article 208.7 of the Criminal Procedure Code of Georgia and article 212.6 of the Civil Procedure Code of Georgia do not meet these requirements and conflict with article 42.3 of the Constitution of Georgia.

Nonetheless, the Constitutional Court considers it is crucial to point out, that so-called “summary litigation” is widely used in similar cases both in continental and common law states. This procedure authorizes a chairman of the hearing to immediately take steps for prevention of an offence. However, legislation in place in the majority of the states ensures that person is provided with the minimum of guarantees encompassed in the right to fair trial when a person is deprived his liberty through summary litigation. In number of states (USA, England, Scotland, etc.) these guarantees are: 1. Suspension of litigation and granting short time, for consideration and analysis of his conduct by an offender; 2. Obligation of a judge to inform in detail a person on the nature of an offense and liability for it; 3. Possibility for a person to give explanations or apologize for his actions; 4. Handling the issue of legal assistance.

This approach is taken by multiple states, though in most states of civil law, litigation on disrespect of court is separated from the main litigation and authorized body will initiate separate administrative or criminal proceedings on it.

Therefore, the Constitutional Court of Georgia notes, that there is no uniform approach among the states on the prevention of disrespect for court. However, the fact that all the democratic states shall consider is that legitimate aim of preservation of authority of judiciary and efficient justice shall not be pursued at the expense of violation of fundamental human rights.

It is constitutional obligation of the state in Georgia to protect fundamental human rights.

3. The Chamber notes, that members of the Chamber took different opinions in respect of constitutionality of the impugned norms from the perspective of judicial impartiality principle.

In the opinion of the part of the members of the Chamber – Justice Ketevan Eremadze and Justice Konstantine Vardzelashvili, the impugned norms do not conflict with one of the basic principles of right to fair trial – impartiality of the court due to the following circumstances:

The Justices do not agree with the argument of the Claimant, that the Judge, who was addressee of gross and manifest disrespect in court, will necessarily be biased when adopting the resolution on deprivation of liberty, as he is a victim, a prosecutor and an arbiter simultaneously.

Access to right to fair trial is mainly determined by the impartiality of court.

In general, impartiality of court is crucial in democratic, rule of law state and this is the criterion on which turns the confidence of public in judiciary. For this reason, article 42.1 and article 6, par. 1 of the European Convention for Protection of Human Rights and Fundamental Freedoms command that the judiciary shall be impartial.

To determine the impartiality of national courts, the European court applies subjective and objective impartiality test. (See, inter alia, Case of Haushildt v. Denmark, may 24, 1989, par. 46; see also Case of Piersack v. Belgium, October 1, 1982, par. 30). The content of both tests were specified in case-law. The subjective test refers to the personal conviction of a particular judge in a given case. Generally the personal impartiality of a judge must be presumed until there is proof to the contrary. (See, inter alia, Case of Haushildt v. Denmark, may 24, 1989, par. 47) Thus the proof shall be presented, which would confirm that the judge was biased, acted to disadvantage of the applicant, expressed non-favorable opinions or was involved in the trial for personal purposes.

Under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. (Case of Fay v. Austria, February 24, 1993, par.30). To determine objective impartiality of the court, the suspicions of an applicant is important, though not decisive. Whether the suspicions may be objectively justified is crucial in this case.

We consider that generally determining the issue of impartiality of the court under subjective and objective tests is crucial in each given case. However, this finding cannot serve as criterion for determining constitutionality of any given norm.

Under the impugned norms, deprivation of liberty is imposed for demonstration of gross and manifest disrespect for court, not for a judge. The term “court” is wider, and its content is not circumscribed with a particular judge, judging particular case. It encompasses number of subjects – a judge, parties and other participants to the litigation, public attending the hearing. Hence, disrespect for court may be addressed not merely to the judge, but also to any subjects mentioned above.

As it was stated above, legitimate aim of the impugned norms is to effect full and efficient justice, to ensure holding of hearing, which finally, serves to protect authority of judiciary. The same aim is pursued in preventing of disrespect against any subject and naturally, it shall be decisive also in case, when the disrespect for court is addressed against dignity and honour of a judge, as a person. Naturally, the presumption of impartiality of a judge shall still be ruling, as in the process of judging he constitutes the court and thus he has no right to be biased and to pronounce faulty, unfair judgement. First of all, this is necessary for his authority and authority of the whole judiciary.

From the abovementioned, it is incorrect to state unequivocally, that a judge will be biased in each case regulated by the impugned norms. This is not unequivocal truth even in the case, when the demonstrated disrespect is addressed towards a person of a judge. In certain cases, despite the presumption of impartiality of a judge, he might not be objective, though in each case, this will not depend on the content of impugned norms, but on a judge and his approach to his position, to the judicial branch and hence to his ability not to be subjected to personal, subjective factors in the process of adjudication. When the facts are present, which may cast doubt on impartiality of a judge or court, the judge is obliged to transfer the case for to other judge for trial.

This obligation is set forth in the legislation. Under article 108.1 of Criminal Procedure Code of Georgia, “If the facts enlisted in article 105-107 of the present Code are present, a judge, a prosecutor...are obliged to recuse themselves.”

Article 105.1 of the same Code enlists grounds, which exclude that a judge took part in adjudicating. Moreover, this list is not exhaustive; under 105.1, clause “v”, one of the grounds for recusation of a judge is “other fact, which cast doubt on his objectivity and impartiality.”

Analogous norms are also given in the Civil Procedure Code of Georgia. In particular, article 31.1, clause “d” states, that a judge shall not adjudicate over a case, if he “personally, directly or indirectly, is interested in the outcome of the case, or there is other fact, which casts doubt on his impartiality.” Moreover, under article 32, “if there are grounds of recusation, a judge is obliged to recuse himself.”

Therefore, if there is suspicion, that a judge might be partial, first of all, he is obliged to recuse himself. It shall be underscored, that it is a judge, who is empowered to decide: 1. if there is any legal grounds for recusation in a given case; 2. if he is able to be impartial.

Moreover, even if the issue of recusation is raised by another subject, i.e. party to the litigation, it is also decided in certain cases by a judge. For example, under article 108.4 of the Criminal Procedure Code of Georgia, “issue of recusation, raised against the majority of judges or against the whole composition of a court, is resolved by the whole composition of a court by majority. When a single judge adjudicates over a case, the issue of recusation is decided by that judge.” The obligation of a judge to be impartial and fair even when the issue of his recusation and partiality is being judged emanates from these norms. No norm can compel a judge to be impartial; it depends solely on his capability and his personal qualities.

A judge is not and shall not be merely a highly qualified lawyer; much more is expected from him. Even the most refined and precise legislation cannot serve as guarantee for impartiality of a judge. The legislation cannot relieve a judge from bearing extremely heavy responsibility – to assess the facts of a case fairly, impartially and adequately; it cannot substitute the personal qualities which would enable a judge to perform the functions of fair and impartial arbiter. A judge is guided by his inner conviction in taking a decision. Thorough knowledge of legislation is by all means necessary for structuring the inner conviction, though this is only foundation, which shall be duly used and at this point come to the forefront the personal qualities of a judge – his ability to give fair and unbiased evaluation to the facts of the case. Without such ability, a judge will always be tempted to misuse the law, even if he properly knows it. Thus taking objective decision based on inner conviction will always cause suspicions.

It is evident from the above-mentioned that in each case a judge (court) is in a better position to evaluate gravity of disrespect for court and whether the disrespect is addressed towards his person. Therefore the judge shall be entitled to assess in each given case whether he is able to be impartial and to take a decision adequate to the offence. A judge is obliged to be impartial in evaluation at the same time. However, whether a judge was actually unbiased and impartial shall be assessed by a higher instance court (Case of De Cubber v. Belgium, October 26, 1984).

Moreover, the Constitutional Court notes the following: it is true that the impugned norm do not legalize biased court, though considering the reality, it would be better, if a legislator excludes the possibility that the law is misunderstood or misapplied due to prejudices. The likeliness of misapplication will be excluded, if there is in addition special legislation which would expressly specify procedures for recusation, self-recusation and trial by different judge in cases when the disrespect is addressed to a judge. If there is a serious doubt, that a judge cannot be impartial due to certain reasons, he shall abstain from participating in the trial, as the court shall not only be impartial, it shall also be seen to be impartial. Confidence of the public to the court shall not be threatened. From this standpoint, several states provide additional guarantees. Both in civil, as well as common law countries, where summary procedures are applied to analogous cases, if there is a threat of bias, chairman of the hearing may transfer the case to different judge for trial.

Furthermore, the Constitutional Court refers again to the case-law of the European Court of Human Rights. In case of Piersack v. Belgium, October 1, 1982, the European Court stated unequivocally, that any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (par. 30 (a)).

In evaluation of the judicial impartiality, the following approach of the European Court shall be considered: judiciary shall be granted maximum of discretion in judging the cases, if they are to give appearance of impartiality.

From this perspective case of Kyprianou v. Cyprus, December 15, 2005 is of particular importance. The Grand Chamber found violation of impartiality under both subjective and objective tests. The following aspects raised the issue under the subjective test of impartiality: the same judges tried and imposed arrest for the offence of contempt of court, to who personally the offence was addressed. The European Court of Human Rights considered that conduct of the applicant was personally insulting for judges and they sentenced him acknowledging being insulted as persons by the applicant.

However, it is noteworthy, that the Grand Chamber of the European Court examined the facts of the given case in order to find violation of impartiality principle and did not review generally the Cyprus law on contempt of court.

It is interesting, that court of Ireland found in relevant cases that disrespect for court is not an offence aimed at personal dignity of a judge; it obstructs due implementation of justice. Power to evaluate this conduct and impose punishments is considered as indispensable element of functioning of rule of law state and entailed by authority of judiciary. It ensures the effective and due implementation of justice.

Due to above considerations, we deem that the impugned norms are not in conflict with the principal requirement of fair trial – the impartiality of court.

4. The Chamber finds persuasive the argument of the Claimant that article 208.7 (the part concerning arrest for manifest and gross disrespect for court) of the Criminal Procedure Code of Georgia and article 212.6 (the part concerning arrest for manifest and gross disrespect for court) of the Civil Procedure Code of Georgia are unconstitutional due to deprivation of ability to appeal against the resolution.

It is noteworthy, that the Respondent did not point to any counterarguments in this respect. The only argument of the Parliament of Georgia was that, draft of amendments to the Criminal Procedure Code of Georgia is being prepared, which provides for appeal of the resolution.

The Constitutional Court has pronounced several times on the content of fair trial in respect of the necessity to appeal against a court decision.

In the case of Oleg Svintradze v. Parliament of Georgia, March 17, 2005 the Constitutional Court stated, that article 42.1 of the Constitution of Georgia, comprises not merely right to trial by first instance court, but it also extends to right of appeal to the higher instances. This article constitutes a guarantee of access to justice. The Court considers that any deprivation of liberty, even based on legal grounds, shall be accompanied with right to appeal to a higher instance.” In case of LLC Uniservice v. The Parliament of Georgia, December 21, 2004, the Court noted, “Challenging a court decision before the higher instance court, a person exercises his right enshrined in article 42.1 of the Constitution of Georgia.”.

The impugned norms provide for imposition on an offender punishment as harsh as arrest is. The Constitutional Court of Georgia considers, that deprivation of right to challenge the court resolution essentially violates right of an arrested person to fair trial. Conditions of an arrested person are not changed due to the fact, whether his liberty was deprived on the basis of ruling, order or resolution. Thus he shall be entitled to have reviewed the legality of deprivation of liberty, no matter what the ground of its deprivation is.

From this standpoint, the position of the Federal Constitutional Court of Germany is interesting, “Right to judicial protection implies: right to apply to court, right to equality of arms and right to have judicial decisions reviewed” (1 PbvU 1/02- Decision of the Plenary Meeting of the Federal Constitutional Court of Germany, April 30, 2003, 1 1/02, part C.I.16).

It is true, that the Federal Constitutional Court of Germany notes in number of its decisions, that right to judicial protection is not unlimited (BVerfGE 1, 433 <437>- Decision of the Federal Constitutional Court of Germany 1, 433 <437), and the procedural boundaries of a dispute is determined by law (BVerfGE 54, 277 <291> - Decision of the Federal Constitutional Court of Germany 54, 277 <291>). It is also stated, that it is prerogative of the legislator to determine according to the interest of parties, how many instances would be available to exercise right to apply to court (BVerfGE 54, 277 <291> - Decision of the Federal Constitutional Court of Germany, 54, 277 <291>); the Court also underscored several times necessity to control acts of judiciary, as “right to appeal provides possibility to remedy the possible defects that took place in the proceedings.” (Decision of the Plenary Meeting of the Federal Constitutional Court of Germany, April 30, 2003, 1 1/02, part C.II.44).

In the same decision (1 PbvU 1/02- Decision of the Plenary Meeting of the Federal Constitutional Court of Germany, April 30, 2003, 1 1/02) it is stated, that “inability to appeal to the higher instance would violate right to apply to court” (1 PbvU 1/02- Decision of the Plenary Meeting of the Federal Constitutional Court of Germany, April 30, 2003, 1 1/02, C.II.44).

The Constitutional Court of Georgia shares the position of the Claimant in respect of incompatibility of the impugned norms with article 6 and article 5.4 of the European Convention for Protection of Human Rights and Fundamental Freedoms and article 2 of its Protocol No. 7.

Generally, article 6 does not provide the right to appeal against a judicial decision. However, the European Commission for Democracy through Law (Venice Commission) noted in its opinion N277/2004, 2004, that inability to challenge a decision may cause violation of right to access to court provided in article 6.

Right to liberty and security, provided in article 5 of the Convention is fundamental human right. It is noteworthy, that article 5 encompasses the relationships regulated by the impugned norms, as no matter what is the nature of an offence, they are punished with deprivation of liberty.

The deprivation of liberty shall be considered as exclusionary measure and shall be allowed exclusively when there is convincing arguments for it. Restrictions shall not be applied merely on the ground that initiatives of the government are necessary and appropriate. Hence, besides the exhaustive list of the cases when the person may be deprived of his liberty, article 5 of the Convention also provides the right of an arrested person to have decided the lawfulness of his detention or arrest by a court and to be released immediately if the detention is not lawful. Article 5.4 states, “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

In order to determine the relation of the impugned norms to the aforementioned article of the Convention, the Constitutional Court finds it important to determine the purpose, content and scope of this article: 1. the article is extended to all persons who were deprived of the liberty due to arrest or detention; 2. pursuant to this norm all the detained or arrested people are entitled to apply to court; 3. court shall decide speedily legality of detention, which implies both, the speedy access of the detained person to the court for review of legality of detention and carrying out the judicial control in reasonable terms.

In this respect the Constitutional Court deems it necessary to state, that efficient and active mechanism for appeal shall be installed, which would make it actually possible to speedily review legality of a resolution and redress of the rights of an arrested person, if the detention is found illegal by the court.

It is also noteworthy, that article 5.4 of the Convention is of separate importance. In the case of De Wilde, Ooms and Versyp v. Belgium, June 18, 1971, the European Court stated, "everyone who is deprived of his liberty, lawfully or not, is entitled to a supervision of lawfulness by a court.” (par.73). However the European Court noted, that article 5.4 of the Convention do not extend to the cases, when the arrest is imposed on the ground of conviction decision of the court pursuant to article 5.1. clause “a” of the Convention, taking into account that such a decision emanates from the proceedings, where the relevant guarantees were provided (see, inter alia, Case of De Jong, Baljet and Van Den Brink v. The Netherland, May 22, 1984, par. 57).

It is important to note, that it is not always necessary that the procedure under article 5.4 be attended with the same guarantees, as those required by article 6.1 of the Convention, “it must have a judicial character and provide guarantee appropriate to the kind of deprivation of liberty in question.” (Case of Niedbala v. Poland, July 4, 2000, par.66).

The Constitutional Court of Georgia considers that in this respect article 42.1 of the Constitution of Georgia shall be constructed in the light of article 6 and article 5.4 of the Convention and also article 2 of its Protocol No. 7.

Article 2 of the Protocol No. 7 states,

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”

From this perspective, the Judgement of European Court of September 6, 2005 in the case of Gurepka v. Ukraine is interesting. The applicant was imposed 7-days arrest for contempt of court, which he could not challenge under the legislation in force. The European Court admitted the case in respect of article 2 of Protocol No. 7 and examined its merits as follows: in the light of its settled case-law, there was no doubt that, by virtue of the severity of the sanction, the present case was criminal in nature and the purported administrative offence was in fact of a criminal character attracting the full guarantees of Article 6 of the Convention and, consequently, those of Article 2 of Protocol No. 7.

The Constitutional Court of Georgia considers, that the impugned norms violate also article 2 of the Protocol No. 7, as offence which is punished with arrest of up to 30 days, may not be considered for the Convention purposes, as exception permitted under par. 2 of this article.

Finally it shall be stated that deprivation of right of appeal under the impugned norms conflicts with article 42.1 of the Constitution of Georgia, the content of which in the present case is constructed in the light of afore-mentioned articles of the Convention.

Moreover, the Constitutional Court of Georgia considers, that in the present case, deprivation of right to have checked legality and grounds for arrest violates right to liberty and personal security enshrined in article 18 of the Constitution of Georgia, as a person shall not be deprived of liberty and shall not be unlawfully arrested. “Guarantee of legality of arrest is right to demand judicial review of grounds of imposition of detention on remand” (the Constitutional Court of Georgia, Judgement of March 17, 2005 in the case of Oleg Svintradze v. the Parliament of Georgia.)

Due to all the aforementioned, the Constitutional Court of Georgia considers that when imposing deprivation of liberty, provision of right to defend oneself in person or through a legal assistance and right to appeal against the decision, will not obstruct pursuing the given legitimate aim.

Adoption of decision on imposition of arrest without oral hearing and with deliberations in the courtroom, if a person is not provided with right to defence and it there is no possibility to review the legality of the decision, and hence when the legislator does not guarantee the minimum of entitlements constituting the essence of right, violates the principle of proportionality. Therefore the Constitutional Court considers that restrictions of right to security and right to fair trial set forth in the impugned norms are not proportional to the legitimate aim pursued by these norms.

III. The claimants allege that article 208.6 of Criminal Procedure Code of Georgia and article 212.5 of Civil Procedure Code of Georgia are incompatible with article 18.2 and article 42.1 of the Constitution of Georgia and article 6 of the Convention for Protection of Human Rights and Fundamental Freedoms.

The main arguments in favour of unconstitutionality of the norms are as follows: 1. Deprivation of liberty shall be effected with decision, not resolution; 2. a. Arrest up to 30 days is not adequate punishment for an offence, to which it is applied; b. due to its nature, the norms establish liability for administrative offence, and therefore it shall be included in the Code of Administrative Offences; c. Criminal Procedure Code and Civil Procedure Code shall not contain substantive norms and hence establish specific offences. 3. The basic principle of fair trial – impartiality of court is violated.

The Chamber notes, that that members of the Chamber took different opinions in respect of constitutionality of the impugned norms.

In the opinion of the part of the members of the Chamber – Justice Ketevan Eremadze and Justice Konstantine Vardzelashvili, article 208.6 of the Criminal Procedure Code and article 212.5 of the Civil Procedure Code do not conflict with article 18.2 and article 42.1 of the Constitution of Georgia.

1. The impugned norms do not conflict with article 18.2 of the Constitution due to the following circumstances:

Under article 18.2 of the Constitution of Georgia, “2. Deprivation of liberty or other restriction of personal liberty without a court decision shall be impermissible.” The purpose of this rule is to ensure that human liberty is not deprived or restricted otherwise by non-judicial body or official that means only court is empowered to decide these issues.

As for the term “decision”, the Constitutional Court considers that is shall be extensively constructed. In this respect the Court cannot accept the argument of the Claimant and the specialist in the present case Ms. Irina Akubardia, alleging that content of this constitutional term is exhaustively defined in article 44.6 of the Criminal Procedure Code of Georgia, under which the court sentence, ruling, ordinance and order present court decisions. It is true that resolution is not mentioned in the list, though it does not mean unequivocally that the resolution may not be considered to be “decision” for purposes of article 18.2 of the Constitution.

The Constitutional Court considers that content of the terms of the Constitution do not always coincide with the definitions provided in the legislation, though it does not terminate the obligation of the legislator to give adequate and comprehensive definition of a constitutional term.

In the present case, the legislation does not determine the legal nature of “resolution” as a judicial act, in contrast to other types of judicial decisions (judgment, ruling, ordinance, order (article 44.6-11 of Criminal Procedure Code of Georgia)), which can be considered to be flaw in the legislation.

The legislation provides merely the following information in respect of resolution: in administrative procedure, resolution as separate judicial act is not adopted; it is part of an order or ordinance (article 21³.7, clause “d”, article 21¹⁸.7, clause “e”, article 21³.8, clause “d”, article 21¹⁸.8, clause “e” of Administrative Procedure Code of Georgia).

In cases, enlisted in article 184 (Sending Claim and Attached Documents to Respondent), article 212 (Measures applicable to Person Disrupting Order on Court Hearing) and article 335 (Temporary Court Resolution) of the Civil Procedure Code of Georgia, a court is empowered to adopt resolution. In number of cases, “resolution” means oral resolution of a court (judge), which shall be described in the protocol in compulsory manner (article 288, clause “g”).

Several articles of Criminal Procedure Code of Georgia (84.4, 86.2 clause “c”, 94.2, 98.3, 140.13, 178.2, 199.6, 208, 283.4, 293.1, 329.2, 369.1, 437.3, 456.3, 460.1, 530.2, 542.3, 571.3, 604.1, 635) provide for adoption of resolution at different stages of criminal litigation. In number of cases here, it is not a judge, who adopts a resolution (98.3; 283.4; 369.1), sometimes it is consistent part of the specific order of a judge (article 140.13, article 178.2, article 293.1). In certain cases, issues related to the preparation stage of a hearing are dealt with in resolution, or measures are implemented to protect order in the courtroom; resolution is also adopted on the issues of enforcement of judgment (article 604).

Based on the analysis of the enlisted norms, is shall be stated that the legislation does not provide specific and comprehensive definition of “resolution”. In contrast to other judicial acts, resolution is adopted to address issues related to different organizational issues of litigation. Purpose of resolution is to ensure conduct of proceedings, not the substantial implementation of justice. However, this does not unequivocally means that resolution may not be considered to be a court decision.

Under article 4.1. of the Organic Law of Georgia on Common Courts: “ a judicial act, as well as writ of the court to carry out its functions and its resolution are mandatory for each physical and legal person, state and local government body on the territory of Georgia.” Under article 10 of the Civil Procedure Code of Georgia, “court decisions (judgments, ordinances), also writs of the court to carry out its functions and its resolutions is compulsory for every state, social or private enterprise, establishment, organization, official or citizen on the territory of Georgia and they shall be observed.”

It is true, in the present norms the legislator do not consider the resolution on equal footing with other judicial acts, though in stipulating the mandatory character of court decisions, court resolution is not excluded from the list of mandatory acts.

Even if an act adopted in cases envisaged in the impugned norms had had any other title set forth in article 44 of the Criminal Procedure Code of Georgia (judgment, ruling, ordinance, order) in stead of “resolution”, the issues raised by the Claimants, as well as problem of constitutionality of impugned norms could not have been solved. In determining of constitutionality, decisive importance shall be granted to the issues resolved by an act and the procedure of its adoption, not a formal aspect related to the title of an act on imposition of arrest.

If a resolution were adopted in full compliance with the requirements of fair trial in deprivation of liberty, the issue of determining of constitutionality of the impugned norms would not be raised at all, the finding confirmed by the representatives of the Claimants.

However, the Constitutional Court states, that a judicial decision, which is adopted for deprivation of liberty, shall not only be mentioned by relevant legislation, but its form, substance and rule of adoption shall also be adequately specified.

2. Number of opinions was expressed in the proceedings in respect of type of liability imposed for offences set forth in the impugned norms. In the view of Claimants, due to its substance, it presents liability for administrative offence. In Respondent’s view, “punishment for violation of procedural norms does not fit the scope of administrative arrest.” Mr. Otar Gamkrelidze, a specialist in the case noted, that as the offence set forth in the impugned norms do not belong to criminal, civil or disciplinary offences, hence we shall assume that it is an administrative offence.

In the view of Ms. Irina Akubardia, “on one hand, disruption of order in the court room, demonstration of gross and manifest disrespect for court may be considered as procedural offence, which entails procedural liability, application of criminal procedural coercion.” However this is not a definite view of the specialist; she also expressed a different opinion in her report; in particular she stated, “on the other hand gross and manifest disrespect demonstrated for court may be thought to better belong to administrative offences within the classical typology of offences, as disrespect per se, taken separately does not present a crime.” Finally she concludes in this respect, “It shall be concluded that the impugned norm is of mixed construction. There is mixing of administrative resolution and judicial adjudication rules to some extent in this norm.”

Ioseb Baratashvili explained to the Court, “considering the fact, that arrested person is not charged under Criminal Procedure Code, that he does not acquire status of convicted person, we can assume, that offence contained in article 208 of Criminal Procedure Code and article 212 of Civil Procedure Code are of administrative nature.” The same specialist noted that after suspension of the impugned norms by the Constitutional Court, resolutions adopted pursuant to these articles were challenged and judged in administrative proceedings.

In this respect the Constitutional Court points out to the Ordinance of July 26, 2006 of the Supreme Court of Georgia, which also considers that offence, set forth in the impugned norms, is administrative offence. The Ordinance states, “Considering the facts of the case, conduct of certain people presents administrative offence from the perspective of its legal nature, and the decision of a court is a decision adopted on imposition of administrative penalty on a offender. It is true that the Court was guided by provision of article 208 of the Criminal Procedure Code in adoption of the challenged resolution, though it does not mean, that the present case constitutes punishable act, set forth in the criminal law. It is also noteworthy that liability for disruption of order in court is also included in civil procedural legislation, which is also used in administrative procedure. All the actions which disrupts the order in court, presents administrative offence, despite the fact, which branch of procedural law sets forth the procedure for imposing liability on an offender.”

Thus, the Constitutional Court notes, that it is evident from analysis of different, even contradictory opinions of scholars, practicing lawyers, and law-enforcement officials, that content of offence is not precisely formulated in the norms, which causes that norm shall be construed in each case of its application and due to its non-specific, vague nature, its construction is also inconsistent.

Moreover, not only its type, but the content of the norm is also vague. In particular, under article 366 of the Criminal Procedure Code of Georgia, disrespect of court is crime, which is demonstrated through insulting of a participant in the litigation. The crime is punished with fine, or from 180 up to 240 hours of community works, or deprivation of liberty up to one year. The aggravating circumstance is to committing the offence against a member of the Constitutional Court, a judge, or an arbiter.

Thus, it is a crime on one hand to demonstrate disrespect for court, expressed in insulation of a judge or an arbiter, whereas the impugned norms set forth liability for gross and manifest disrespect for court. In both cases, disrespect for court is present, though the offence set forth in the impugned norms is not a crime under criminal law, and because the length of arrest is considerably short in contrast to the punishment set forth in the Criminal Code for this crime, we shall presume that this is less grave an offence than the crime of the Criminal Code. However, this cannot be unequivocally asserted, as a judge directly imposes arrest for an offence set forth in the impugned norms, whereas article 366 of the Criminal Code provides also for less grave penalties – imposition of fine or community work. Moreover, it shall be ascertained what “gross and manifest” disrespect means and whether it overlaps with insulation, or whether disrespect, even gross and manifest, is present exclusively until there is no insulation. As according to article 366, disrespect contains insult, we need to presume that disrespect for court may take form of insult of a judge, as well as of a participant and attending public. This presumption is not excluded by the letter of the impugned norm.

The Constitutional Court of Georgia notes, that the both article 366 of the Criminal Code of Georgia, as well as the impugned norms aim to protect authority of judiciary, unhindered and due implementation of justice. However, the legislator adopted the impugned rules in order to give additional regulations independent from the Criminal Code of Georgia and hence, the new norms should be separated with the due precision from the old norms which regulate the same relationships.

Finally, the Constitutional Court of Georgia states:

It is not for the Constitutional Court of Georgia to identify type of a given offence. Hence, in the present dispute, the Court has not to ascertain whether criminal or administrative offence is contained in the impugned norms and which legislative act shall regulate this issue. However, to summarize all the abovementioned, it shall be stated: when the legislator introduces arrest as sanction, 1. it shall explicitly define the content of the offence, for which the sanction is imposed and 2. the offence shall expressly and manifestly differ from other offence with different sanction, which is also addressed against the same protected object. These requirements shall be observed, as an offender shall be informed for what conduct he is arrested and on the other hand, law enforcement authority (a judge) shall be able to apply the norms properly and adequately.

The impugned norms do not meet these requirements.

In this respect the case-law of the European Court of Human Rights shall be referred to. It is reiterated in the number of judgments, that: the law shall be accessible, foreseeable and certain and it shall contain guarantees to avoid arbitrariness. Moreover, certainty of law requires that all norms, providing for deprivation of liberty shall be sufficiently precise to enable a person, if need be with appropriate advice, to foresee to a degree reasonable in the circumstances, the consequences which a given action may entail.

In the case of Wloch v. Poland, October 19, 2000, the European Court of Human Rights concluded, that a rule which is uncertain to the degree of confusing the competent bodies, does not meet the requirement of certainty.

Finally, it shall be noted, that type and content of an offence do not matter, the only important fact is that deprivation of liberty is imposed for committing it. The condition of a person deprived of liberty is not improved by classifying the offence as criminal, administrative or some other type. The fundamental principles of justice do not take different substance in respect of different types of offences. The litigation shall be carried out in accordance with all the principles of fair trial despite of the type of an offence.

It is also not for the Constitutional Court to assess legality and adequacy of a sanction for any given offence. This is the issue of expediency, not constitutionality. By this logic adequacy of sanction for any offence contained in the legislation in force may be assessed against the yardstick of constitutionality.

4. Opinions of the two members of the Chamber (Justices Ketevan Eremadze and Konstantine Vardzelashvili) in respect of the claimants’ plea for declaring article 208.6 of the Criminal Procedure Code of Georgia and article 212.5 of the Civil Procedure Code of Georgia to be incompatible with article 42.1 of the Constitution of Georgia is identical to those stated in section II, clause 3 of the motivational part of the present decision.

Other two members of the Chamber- Justices Besarion Zoidze and Vakhtang Gvaramia consider that article 208.6 of the Criminal Procedure Code of Georgia and article 212.5 of the Civil Procedure Code of Georgia are unconstitutional with respect to article 18.2 and article 42.1 of the Constitutional of Georgia due to the following circumstances:

1. Assessing constitutionality of article 208.6 of the Criminal Procedure Code (and thus of article 212.5 of the Civil Procedure Code alike), the organic link which exists between sections 6 and 7 of article 208 of the Criminal Procedure Code (and thus sections 5 and 6 of article 212 of the Civil Procedure Code) shall be considered. Article 208.8 of the Criminal Procedure Code of Georgia sets forth rule of adoption of a resolution by a chairman of the hearing (a judge) or chairman of the court, which is adopted without oral hearing and with deliberations in the courtroom. This means that the decision is taken immediately after committing an offence and under article 6 of this article it is also enforced immediately. Hence a briefly taken decision is immediately enforced. This is reasonable reading of section 6, even independently from section 7. Under the normative order in force, the law application is focused on section 7, as a norm expressly stating a given rule. This fact blurs to certain extent necessity to identify the analogous realm at different location. When section 7 is invalidated, issue of invalidation of section 6 is necessarily raised, in order to exclude possibility that the latter will factually affect the validity of the norm declared unconstitutional.

A chairman of a hearing takes decision in “summary” (simplified) proceedings, which means that decision is taken not merely immediately, but also by the same court (which is the chairman of hearing in the present case). In this case, invalidating only section 7 of article 208 would be only one serious step for transforming the litigation in this respect. The summary nature of proceedings emanates from organic unity of sections 6 and 7 of article 208, which presents the subject of the claim.

The impugned article 208.6 fails to meet requirements of impartiality of court. When the relevant article of the Constitution of Georgia mentions the “court”, it means impartial and independent court. If any normative act violates these principles, that act shall be declared unconstitutional. The Court in this case will not assess constitutionality of length of arrest. The impugned norm shall be declared invalid on the ground of unconstitutionality of the rule of deprivation of liberty. The organic part of this rule is not only requirement that arrest shall be imposed in accordance with due process, but also proper determination of a court authorized to impose sanction, which shall be impartial court. When the normative grounds of bias of the court are present, this violates judicial guarantees of protection of human liberty.

2. We cannot deem article 208.6 to be constitutional and justify this opinion stating that implications of bias or error of a chairman of a hearing may be recovered through appeal to a higher instance court. Right to appeal is an important opportunity to exercise right to impartial and fair trial. However, it shall be considered, that right to fair trial first of all means right to have impartial and fair decision taken and not merely right to appeal against a decision of a court. Citizen shall get fair and impartial trial in the court, which examines the case on its merits. The legislator is bound to install such a mechanism of trial (decision-making) which ensures that a person concerned is granted possibility to have his rights protected by a normatively flawless court and is provided with relevant procedural guarantees from the very first contact with the system of justice. The historically approved way of implementation of justice from the lowest to the higher instances shall be guaranteed in the manner, that every next instance is to recover bias or error and not to usurp the functions of a lower court which tries a case on its merits, in the present case decides the issue of arrest.

3. In the present case, the impugned norms are not justified with the aim of unhindered implementation of justice. Each action taken in this respect shall fit in the structure of impartial and fair trial. It would be error not to consider the decision on imposition of arrest as the special interest from this perspective. Justice is not merely trial by a judge. It is of crucial importance, that in each case, this authority be constitutionally justified. Legislative norms shall not provide for possibility of biased decision and for cajoling of a judge, as a person carrying out the justice. A judge, as a person may be misled, though normative realm shall not contribute to it. It is inadmissible, that law puts a judge in a position, where he realizes himself not as a judge, but as a de-gowned subject. In the present situation, a judge may abuse judicial authority, as he is vested with excessive powers (obligations).

Thus, the guarantee of impartial and infallible court is not merely personal and professional preparedness of a judge for it, but also the nature of legislation. Fair trial implies reasonable legislative binding of a judge. It is inadmissible to enact objective grounds for bias.

The case-law of the European Court gives fundamental constructions on judicial impartiality. It is circumscribed basically with evaluation of non-normative realm of judicial impartiality. However, rarely the normative grounds causing partiality are also referred to.

Hence, the impugned norms do not pass the proportionality test recognized in the case-law of the European Court. This principle requires that not only reasonable and adequate means are used for pursuing a legitimate aim, but also creating such preconditions which would exclude to the highest extent possible, possibility of error or bias from the subject who applies it. Thus, both the objective and subjective conditions of proportionality principle shall be ensured. The adequate means for pursuing a legitimate aim is employed, when the law enforcing subject is accurately determined.

4. We cannot agree with the unequivocal position of the Claimants, that when applying the sanction of the impugned norms, judge acts as a victim, though we cannot ignore this fact as irrelevant. The conclusion on whose interests were offended by the disrespectful conduct depends on a particular offence. The disrespect for court may be expressed with or without insult of a judge. Thus, rights and reputation of a judge may be offended simultaneously with authority and reputation of court.

Whereas the disrespect for court, is mostly expressed through showing disrespect for a given judge, in that case it is easily possible, that intentionally or unintentionally, the judge is separated from the court, from its organism and put his dignity (interest), as of person in the centre of his judicial power, when making the resolution of arrest. It is evident from the complaint, that the judge imposed an arrest because of swearing at his mother. Regarding the way our society reacts to such humiliation and generally, the good protected by law, it is easily possible, that a judge suffers a nervous breakdown and takes inadequate decision. Only within the scope of obligation of tolerance shall a judge carry out functions of a judge The judge can express himself as a person in implementation of judicial functions only within the scope of obligation of tolerance; only here, he may judge the conduct of other people. When the evaluation of a given case cannot fit in this scope, the power of judge shall not be extended further.

In evaluation of the impugned norm is shall be regarded that there can be drawn no strict demarcation line between the position of a judge and that of a court.

The judgment of the European Court in the case of Kyprianou v. Cyprus, December 15, 2005 points to the possibility of bias of a court under the impugned norms. On the hearing of Assize Court the judges found the conduct of a lawyer personally insulting. The offended judges examined the case against the lawyer and imposed an arrest. The Grand Chamber of the European Court decided that the Assize Court was biased in the case of the lawyer and it violated right of a lawyer to the impartial court. The European Court pointed to the fact that common law summary proceedings which provides for the same court to examine contempt of court cases was not justified in the present case and the case should be transferred to another court. The European Court found violation of article 6 of the European Convention. It shall also be considered, that the Chamber of the European Court gave negative evaluation to the summary proceedings related to similar cases generally. In evaluation of the impugned norm it shall be taken into account that in majority of the civil law states the case of contempt of court is separated as a distinct proceeding and the competent authority initiates administrative or criminal procedures in respect of it.

5. The fact, that the impugned norm threatens the impartiality of court is confirmed by drafts of normative acts presented by the Respondent at the Court hearing, such as the draft laws on “Amendments and Supplements to the Criminal Procedure Code of Georgia” and “Amendments and Supplements to the Civil Procedure Code of Georgia”. In the explanatory notes of these normative acts it is stated, “The reason for adopting the draft law is frequent facts of obstructing implementation of justice, as well as flaw in the legislation. In particular... when disrespect is demonstrated for a court (judge) and the same judge imposes liability, we assume that this is violation of principle of judicial impartiality.”

New wording of article 208.6 of the Criminal Procedure Code contained in the draft law states, “If a gross and manifest disrespect is demonstrated for a court, a chairman of the court is authorized, on the ground of application by a judge, or a judge – on the ground of application by the chairman of a court, to adopt a resolution on arrest of a person for up to 30 days. The Resolution shall be immediately executed. If the resolution concerns a party to the proceedings, the court hearing may be suspended for that period.” Wording of article 212.5 of the Civil Procedure Code contained in the draft law is analogous.

It is evident from these draft laws, that the legislator is interested in revision of the impugned norms. We consider that the legislator shall regulate the issue in the manner, that the impartiality of a judge is not taken for granted, is not exaggerated and therefore objective and fair trial is not ignored. Both are incompatible with the legal order, to state unequivocally that a judge will be biased and to state that he will be impartial in each case. If there is constitutionally unflawed legislation, the presumption of impartiality of judges will serve as important foundation for independent and peaceful running of court system.

If the organic link between sections 6 and 7 of article 208 is taken into account, we need to conclude that right to impartial court is violated by article 208.7 of the Criminal Procedure Code and article 212.6 of the Civil Procedure Code in the case before us.

Due to the different opinions described above, the votes of members of the Chamber were split equally in the deliberations room during taking the decision. Under article 21.6 of the Organic Law of Georgia on Constitutional Court of Georgia, “If, while taking the decision on a constitutional complaint, the votes of the members present at the hearing of the Plenum/ Chamber are equally divided, the constitutional claim shall not be upheld.”

Therefore, the First Chamber of the Constitutional Court states, that article 208.6 of the Criminal Procedure Code of Georgia and article 212.5 of the Civil Procedure Code of Georgia are not incompatible with article 18.2 and article 42.1 of the Constitution of Georgia.

Pursuant to article 89, section 1, clause “f” and section 2 of the Constitution of Georgia, article 19, section 1, clause “e”, article 21, sections 2 and 6, article 23, section 1, article 25, sections 2 and 3, article 39, section 1, clause “a”, article 43, section 2, 4, 7 and 8 of the Organic Law of Georgia on Constitutional Court of Georgia, article 32 and article 33 of the Law of Georgia on Constitutional Litigation,

The Constitutional Court of Georgia:

I. Upholds partially the constitutional complaint of Mr. Onise Mebonia and Mr. Vakhtang Masurashvili v. The Parliament of Georgia and declares unconstitutional article 208.7 (in part concerning arrest for manifest and gross disrespect for court) of the Criminal Procedure Code of Georgia and article 212.6 (in part concerning arrest for manifest and gross disrespect for court) of the Civil Procedure Code of Georgia in respect of articles 18.1, 42.1 and 42.3 of the Constitution of Georgia.

II. Holds that article 208.7 (in part concerning arrest for manifest and gross disrespect for court) of the Criminal Procedure Code of Georgia and article 212.6 (in part concerning arrest for manifest and gross disrespect for court) of the Civil Procedure Code of Georgia shall be invalidated from the moment of publishing of the present judgment.

III. Dismisses the constitutional complaint of Mr. Onise Mebonia and Mr. Vakhtang Masurashvili v. the Parliament of Georgia on unconstitutionality of article 208.6 of the Criminal Procedure Code of Georgia and article 212.5 of the Civil Procedure Code of Georgia in respect of article 18.2 and 42.1 of the Constitution of Georgia.

IV. Holds that the present judgement enters into force from the moment of its public announcement at the session of the Constitutional Court;

V. Holds that the present judgement is final and cannot be challenged or reviewed;

VI. Holds that copies of the present judgement shall be sent to the Parties, the President of Georgia, the Government of Georgia, the Supreme Court of Georgia;

VII. 7. Holds the present judgement shall be published in “Legislative Bulletin of Georgia” within 7 days.

Konstantine Vardzelashvili (Chairman of Hearing)

Vakhtang Gvaramia

Ketevan Eremadze (Judge Rapporteur)

Besarion Zoidze