Composition of the Board:

Besik Loladze – the President of the Board, Judge Rapporteur;

Otar Sichinava – Member;

Lali Papiashvili – Member;

John Khetsuriani – Member.

Secretary of the hearing: Darejan Chaligava.

Title of the case: Citizen of Georgia Salome Tsereteli-Stievens v. the Parliament of Georgia.

Subject of the dispute: The constitutionality of the wording “…and with the permission of the Agency” in Article 44(5) of the Law of Georgia “On Civil Acts Registration” (as amended on 28 December 2008) in terms of Article 36(1) of the Constitution of Georgia.

Participants of the Court hearing: Ketevan Abashidze and Tamar Khidasheli, representatives of the claimant; Batar Chankseliani and Levan Kasradze, representatives of the Parliament (respondent).

I

1. On 18 May 2007 citizen of Georgia Salome Tsereteli-Stievens lodged a constitutional claim with the Constitutional Court of Georgia (registration number 425). On 25 September 2007 additional evidence was adduced by the claimant: a copy of the permission by the Agency, issued for the marriage registration between citizen of Georgia Salome Tsereteli-Stievens and citizen of the United States of America Matthew Ryen Stievens and a copy of the application in the specialised authority #1 for the registration of the marriage.

2. The Second Board of the Constitutional Court admitted #425 constitutional claim for an administrative hearing on 25 October 2007 recording notice #2/3/425. The administrative hearing of the case was held on 1 and 28 April 2008.

3. The impugned provision is the following wording “…and with the permission of the Agency” in Article 44(5) of the Law of Georgia “On Civil Acts Registration” (as amended on 28 December 2008). Under the provision, it is required to obtain a permission of the Agency in case of the marriage with a foreigner or a stateless person.

4. On 9 September 2006 the claimant married citizen of the USA Matthew Ryen Stievens. Under the impugned provision, a request for the permission of the Agency was filed in the relevant civil registry authority. The amount of the fee 120 GEL has been paid. The permission is not required from individuals if they are both citizens of Georgia.

5. On 21 March 2008 the Parliament of Georgia adopted a law amending the Law of Georgia “On Civil Acts Registration”. Under Article 1(15)(b) of this law, Article 44(5) of the Law of Georgia “On Civil Acts Registration” was formulated in the following wording: “registration of the marriage with a foreigner or a stateless person is conducted in accordance with a rule, stipulated by the Civil Code of Georgia and this law”. Under this wording the provision does not contain the requirement of permission from the Agency in case of the marriage with a foreigner or a stateless person.

6. Article 13(6) of the Law of Georgia “On Constitutional Legal Proceedings” stipulates that “after admitting a case by the Constitutional Court for the consideration of the merits, annulment or invalidation of an impugned act shall not result in termination of the constitutional legal proceedings before the Constitutional Court, if the case concerns human rights and freedoms recognised in Chapter Two of the Constitution of Georgia.” Therefore, the annulment of the impugned provision did not result in cancellation of the main hearing of case #425.

7. According to the claimant, the impugned provision is in breach of the freedom of marriage. According to Article 36(1) of the Constitution of Georgia, “marriage shall be based upon equality of rights and free will of spouses.” Freedom of marriage is one of the aspects of natural rights, stipulated by Article 14 of the Constitution of Georgia. Freedom means discretion of a human being to live and make a choice according to his/her will. Such a freedom is limited only with the freedom of others according to Article 44(2 )of the Constitution of Georgia.

8. The claimant suggests that if the exercise of the freedom depends on the permission of an administrative body, it constitutes a limitation of the natural freedom. Such a limitation may be justifiable only as long as it has a legitimate aim and is necessary in the democratic society.

9. Article 1118(1) of the Civil Code of Georgia in case of a marriage of fore­igners in Georgia requires an official certificate issued by the corresponding bodies of their counties, verifying that there are no impediments to the marriage. The claimant suggests that the requirement of such a certificate has a legitimate aim. It guarantees the monogamy principle and free will principles of the marriage; it prohibits marriage between close relatives. The situation differs in the case of the civil registry agency permission requirement. Permission is not related to the impediments to the marriage. It is an independent, obligatory document. Moreover, no legitimate aim of the agency may be observed with regard to the permission of the agency.

10. It may not be an aim of the permission to protect the Georgian citizen and control impediments to the marriage. A document related to this issue has to be presented to the Civil Registry Agency along with the application about the marriage registration. The requirement of the permission is not justified either by strategic interests of State safety or security. In this regard the Civil Registry Agency may not act within its competences.

11. The claimant reviews the procedure, related to the issuance of permission by the civil registry agency. In fact, it turns out that the necessary documents for permission have to be provided repeatedly. An application for a marriage registration already contains appropriate data and additional documents and information, which shall be presented repeatedly in order to obtain a marriage permission. Marriage permission procedure does not require from a person concerned any new information or document for a civil registry agency.

12. The formal character of the permission requirement is proven by the fact that review of the submitted application and supplementary documentation does not need even one day. The claimant and her fiancйe have received the permission from the head of the civil registry agency on the same day of the application. The head of the Civil Registry Agency is responsible for the efficient functioning of the central staff of the civil registry agency and 91 territorial entities. Therefore, there is a reasonable doubt that the signature made on the application of the permission, which means issuing the permission, is merely a formal fulfillment of the legal requirement, which does not serve any legitimate or rational aim.

13. In order to consolidate her viewpoint, the claimant invoked the jurisprudence of the United States Supreme Court. In the case Loving v. Virginia the United States Supreme Court pronounced itself: “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

14. During the hearing of the constitutional claim the representatives of the claimant Ms. Abashidze invoked the jurisprudence of the European Court of Human Rights. In the case of Hamer v. United Kingdom the court held, that the State could interfere in such terms of the marriage like disability, approval and prohibition of marriage between the relatives. Other kind of interference is inadmissible, because it would be an essential interference, which may limit the human right in an unjustified way, without any legitimate aim.

15. According to the representative of the claimant, T. Khidasheli, the respondent has not introduced arguments in favor of the constitutionality of the provision. Although Article 36(1) of the Constitution does not contain in expresso the right to marriage, undoubtedly this article contains the right to the recognition of a marriage in a positive sense. During the review of the foreign countries legal practice, the respondent did not indicate the differences between the Georgian and foreign reality. The alleged examples do not neglect the possibility like that in Georgia, also in another country the permission has only the character of a procedural barrier, which does not have any sense and creates an unjustified obstacle.

16. The representatives of the respondent did not agree with the augments of the claimant. They observed that the constitutional claim shall not be upheld because manifestly ill-founded. According to the literal meaning of Article 36(1) of the Constitution of Georgia, it has only a prohibitive, negative character. This provision does not indicate that there is a freedom of marriage, but it implies that the marriage may not be conducted under any pressure or similar influences.

17. The representatives of the respondent assume that during the permission issuance the Civil Registry Agency is bound by the Civil Code of and Article 39 of the Law of Georgia “On Civil Acts Registration”. It cannot impose new requirements for the permission on the marriage registration. The Agency shall issue permission in any case, if there are no impediments to the marriage between the persons and they fulfill requirements for the marriage, set up by Georgian legislation. Therefore, if we comprehend Article 36(1) of the Constitution of Georgia with the contextual explanation and suppose that it contains a positive right to marriage, the impugned provision does not constitute the limitation of this right and the interference from the State.

18. In case the Constitutional Court is satisfied that the impugned provision resulted into the limitation of the right, envisaged in Article 36(1) of the Constitution of Georgia, according to the representatives of the respondent, such interference does not go beyond the limits, set up by international law and the Constitution of Georgia. The representatives of the respondent point out the jurisprudence of the European Court of Human Rights, interpreting Article 12 of the European Convention on Human Rights. Namely, in the case of Hamer v. the United Kingdom the Court found that some limitations might be set by national legislation. Exceptions are mentioned also in the Constitution of Georgia. Namely, Article 47(1) of the Constitution of Georgia states, that “1. Foreign citizens and stateless persons residing in Georgia shall have the rights and obligations equal to the rights and obligations of citizens of Georgia with exceptions envisaged by the Constitution and law.”

19. The position of the respondents’ representatives about the legitimacy of the impugned provision has been included in the final submissions. Different legal regime of the marriage with foreigners was established because the registration of the marriage with a foreigner has a different legal implication that creates special legal relations, other than in case of the marriage between citizens of Georgia. It is related to the citizenship and creation of rights and obligations of children/adopted children. For example, under the Organic Law of Georgia “On Citizenship” an individual married to a citizen of Georgia is entitled to obtain the Georgian citizenship under advantageous conditions. Citizenship of a child or an adopted child after the marriage between a citizen of Georgia and a non-citizen, regulated by Articles 12, 20 and 21 of the Organic Law of Georgia “On Citizenship” is an important issue. After the marriage with a citizen of Georgia, a citizen of a foreign country is entitled to additional rights and obligations. Therefore, in legal terms, in case of the marriage of a Georgian national with a foreign citizen it is not enough to register the marriage only in a territorial unit of the agency, - the Civil Registry Agency itself is also concerned.

20. In order to strengthen their argumentation, the representatives of the respondent have provided examples from several countries and some relevant information by the Research Department and Office for Information Support of Legislative Process of the Parliament of Georgia. In their opinion, in these countries there are limitations similar to those in Georgian legislation.

II

1. A democratic society is made up from free individuals. The primary goal of the constitutional legal order in such a society is to safeguard the freedom and the free development of an individual. The society of free individuals is a core of the democratic and rule of law State; it is an essential premise of and a guarantee for its successful development. The Constitution of Georgia concentrates on the freedom and free development of an individual generally, as well as specifically, in different aspects of social life. Article 36(1) of the Constitution of Georgia is dedicated to this goal, declaring “marriage shall be based upon equality of rights and free will of spouses.”

2. Article 36(1) of the Constitution of Georgia is a provision with various implications. Such traditional and essential ethical and existential institutes and values as marriage and family are protected herein on the constitutional level. The constitution protects the institution of marriage and family from a State interference and some actions, which would contravene and undermine their sense, significance and basic principles.

3. The marriage and family are indispensable components of the private life on an individual. The degree of freedom is especially high in this sphere. Freedom of marriage is a manifestation and a part of individual freedom and freedom of development of an individual. Undoubtedly, Article 36(1) of the Constitution of Georgia, along with its institutional guarantee recognises a basic human right.

4. Aims and essence of Article 36(1) of the Constitution of Georgia are much broader than it is evident from its literal meaning. The sphere protected by this Article is quite extensive and includes marriage as well as a joint family life and divorce.

5. Free development of an individual, which is also reflected in the freedom of marriage, incorporates positive, as well as negative freedom of an action. Therefore, positive, as well as negative freedom of marriage is protected. Article 36(1) of the Constitution of Georgia guarantees the freedom of marriage with the chosen partner to all, also to foreign citizens. It is inadmissible to force anyone to marry or found a family. Moreover, it is unacceptable to create obstacles by the State for those who wish to marry and intervene in their affairs in a disproportionate and intolerable manner for a democratic society. Consequently, the Constitutional Court of Georgia may not accept the opinion that only negative freedom of marriage is guaranteed on the constitutional level.

6. It shall be noted, that marriage-like partnership or partnership without the marriage is not a protected subject matter of Article 36(1) of the Constitution of Georgia. In fact, it assumes a legally established and recognised form of marriage. As it is disclosed from the documentation submitted to the court, marriage between the claimant and her husband, which was concluded in accordance with legislation in force, is a legally established form of marriage and it falls within the protection of Article 36(1) of the Constitution of Georgia.

7. In order to get the marriage registered and exercise their constitutional rights, the claimant and her husband along with other relevant documentation have obtained Civil Registry Agency permission. The Civil Registry Agency permission is a separate document. It was formulated clearly in Article 44(5) of the Law of Georgia “On Civil Rights Registration” (as amended on 28 December 2005), which declared the permission of the agency as a separate document. The impugned provision did not allow marriage without the Civil Agency Registry permission or in case of a refusal to grant permission. It is confirmed by Article 16(1) of the Law of Georgia “On Civil Acts Registration”, which requires certain documentation for the civil act registration. In order to get marriage registered between a citizen of Georgia and a foreign citizen, a permission of a Civil Registry Agency is needed as well. Without such permission, civil acts – marriage registration would be refused. As it turns out, establishment of an obligatory Civil Registry permission by the State has created an obstacle for the claimant, in the exercise of the freedom of marriage. There is a restriction of the freedom of marriage allowed, which shall be examined on constitutional legal grounds.

8. As mentioned above, the institution of marriage is a subject to legal regulation. Therefore, it means that the legislator sets some requirements for those willing to marry. In the opinion of the Constitutional Court of Georgia, requirements related to the marriage shall be aimed at the protecting this important public institution and its fundamental principles and it shall have a significant, unambiguous legitimate purpose.

9. As regards the requirements set by the impugned provision it had an obligatory character for those who wished to marry; breaching this provision in fact meant the inability to realise the decision of marriage, therefore, the aim of such a requirement should have been very important, clear and neccessary to be achieved. Consequently, there shall be a strict attitude towards the aim of the impugned provision and its legitimacy.

10. Article 47(1) of the Constitution of Georgia does not offer a justification for the establishment of the impugned provision. Under the first paragraph, the Constitution and laws may establish certain exceptions regarding the rights and freedoms of foreign citizens. Nevertheless, as mentioned above, the freedom of marriage equally concerns citizens of Georgia and foreigners and stateless persons. As regards the restriction of the freedom of marriage to foreign citizens by law, it shall be examined as a generall restriction of the freedom of marriage. Moreover, most importantly, the claimant is a citizen of Georgia and not a foreign citizen and as far as the restriction concerns her, it is incorrect to invoke Article 47, because the addressee of this is not a citizen of Georgia.

11. As regards the establishment of the provision, it is not evident either from the documentation, required by the Constitutional Court, or from the provision itself, what legitimate aim did the permission of the Civil Registry Agency serve that was neccessary in the democratic society. The document, introduced by the representatives of the respondant, reveals, that the question of the staff of the Parliament of Georgia related to the legitimate aim of the Civil Registry Agency permission has not been answered by the Civil registry Agency.

12. The Constitutional Court of Georgia analysed the rationale of the permission institution to be given by the Civil Registry Agency and the procedure of the permission issuance. Such an analysis could be helpful to establish the aim of the impugned provision. As it turns out, despite the fact that the permission by the Civil Registry Agency, issued by the head of the Agency, was a separate, obligatory document for the marriage registration, any additional information or documentation was not required to obtain it. Consequently, a permission of the Civil Registry Agency was an independant document, that did not have any independent meaning or aim. The Civil Registry Agency did not examine or reveal any new facts and circumstances while issuing a permission.

13. As stated by the representatives of the respondant itself, the Civil Registry Agency issues a permission for the marriage in any case, if there are no impediments to the marriage between the marrying couple and if they satisfied the requirements for the marriage set by law. Naturally, there is a logical question: why is the permission and an additional barrier neccessary, if those who wish to marry have introduced documentation, that there are no circumstances preventing the marriage, also other documents, required by the law? The credible answer to this question has not been received by the Constitutional Court either as a case documentation, nor at the hearing on the merits

14. The Constitutional Court could not regard it as a legitimate aim of the Civil Registry Agency permission, that the marriage with the citizen of the foreign country may have special legal consequences, related to the obtaining of Georgian citizenship, citizenship of the children and other issues. It is not clear, why should there be any additional and obviously formal barriers with regard to the marriage between a citizen of Georgia and a foreign citizen because of any possible legal consequences. Besides, registration of the marriage and obtaining of Georgian citizenship are two absolutelly different procedures. Moreover, during the registration of the marriage it is impossible to solve issues related to obtainment of Georgian citizenship by a foreign citizen, the citizenship of children and adopted children. Therefore, despite the argumentation about the legitimate aim, the respondant could not argue bifore the court any valuable good for a democratic society, which deserved to be protected by the restriction, established in the impugned provision.

15. As regards the examples from the foreign countries, the Constitutional Court could not find any identical institute of the Civil Registry Agency permission in the presented material. Besides, the mere existance of such an institute in any foreign country may not be an argument, proving that it is in accordance with the requirements of the Constitution of Georgia. Under the jurisprudence of the Constitutional Court of Georgia, “generally, the legal institute is one issue, but there is another issue of its legal arrangement which may be in accordance or against the Constitution.” (Ruling #2/1-370,382,390,402,405. I,1). Moreover, the Constitucional Court of Georgia states: “it is a positive trend to consider the experience of the developed countries and international organisations in the legislative process, but it shall not be an essential purpose. Several circumstances shall be taken into account during such consideration. Firstly, the Georgian version of the implemented institute shall be able to fit in the Constitution of Georgian-legal environment...” (Ruling #/1-370,382,390,402,405. II,2). The Board does not see any grounds to change the case-law and indicates that the institute of permission by the Civil Registry Agency contradicts the requirements of Article 36(1) of the Constitution of Georgia and violates the freedom of marriage of the claimant.

III

In the Light of the above-mentioned argumentation, in the application of Article 89(1) (f) and Article 89(2) of the Constitution of Georgia; Article 19(1)(e), Article 21(2) and Article 21(8), Article 43(2-4,7-8); Article 45 of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 7(1-2); Article 13(6); Article 24(4); Articles 30, 31, 32 and 33 of the Law of Georgia “On Constitutional Legal Proceedings”,

the Constitutional Court of Georgia
r esolves:

1. To uphold constitutional claim #425 (citizen of Georgia Salome Tsereteli-Stievens v. the Parliament of Georgia);

2. To declare the wording of Article 44(5) of the Law of Georgia “On Civil Acts Registration” (as amended on 28 December 2008) “…and with the permission of the Agency” unconstitutional in terms of Article 36(1) of the Constitution of Georgia;

3. The judgment shall enter into force from the moment of its public announcement at the hearing of the Constitutional Court;

4. The judgment shall be final and not subject to appeal or review;

5. A copy of the judgment shall be dispatched to the Parties, the Supreme Court of Georgia, the President of Georgia and the Government of Georgia;

6. The judgment shall be promulgated in “Sakartvelos Sakanonmdeblo Matsne” within 15 days.

Members of the Board:

Besik Loladze,

Otar Sichinava,

Lali Papiashvili,

John Khetsuriani.