The composition of the Chamber:

Mr Besarion ZOIDZE (Chairman of the Sitting),

Mr Vakhtang GVARAMIA (Rapporteur Judge),

Mr Iakob PUTKARADZE

Mr Nikoloz SHASHKIN.

Secretary of the sitting: Ms Darejan Chaligava

Parties to the case: Applicants – Tamaz Kilanava (at the same time the representative of other applicants), Nugzar Kandelaki, Manana Nasaridze, Madona Ghibradze and Lali Archvadze; Respondents – representatives of the Parliament of Georgia: Marine Robakidze, Leading Specialist, the Unit of Representation in Courts, Legal Department, Apparatus of the Parliament of Georgia, Ioseb Lomashvili and Levan Kasradze, Invited Specialists of the Legal Department, Irina Akubardia, Specialist, Associated Professor of Law at Ivane Javakhishvili Tbilisi State University; Witnesses – Valeri Tsertsvadze, Secretary of the High Council of Justice of Georgia and Lasha Kalandadze, Acting Chairman of the Tbilisi Appellate Court.

The applicants, respondents and witnesses participated in the public court hearings held on April 13 and 25 and May 2, 5 and 10, 2006.

Title of the case: The Georgian Citizens – Tamaz Kilanava, Nugzar Kandelaki, Manana Nasaridze, Madona Ghibradze and Lali Archvadze v The Parliament of Georgia

Subject of the dispute: Constitutionality of Article 88³ (concerning the liquidation of a regional court) of the Georgian Organic Law on the Courts of General Jurisdiction dated June 13, 1997, vis-à-vis Article 30.4 of the Constitution of Georgia.

On February 16, 2006, a constitutional claim №357 submitted by the Georgian citizens Tamaz Kilanava, Nugzar Kandelaki, Manana Nasaridze, Madona Ghibradze and Lali Archvadze was transmitted to the First Chamber of the Constitutional Court of Georgia in order to be accepted for substantive consideration. An open preliminary sitting was held on February 27, 2006. On March 10, 2006, the Chamber of the Court accepted the constitutional claim to be substantively considered (Recording Notice №1/1/357).

The constitutional claim was filed on the basis of Article 89.1 (f) of the Constitution of Georgia, Article 19.1 (e) and Article 39.1 (a) of the Organic Law on the Constitutional Court of Georgia and Article 10.1 of the Georgian Law on Constitutional Proceedings.

According to the claim, the applicants were appointed judges for a term of 10 years and exercised their authorities in the civil, administrative and criminal appellate chambers and investigative collegiums of the regional court. Until the expiry of the 10 year term, judges of these courts were artificially assigned to the reserve for the reason of the liquidation of the regional courts. They were dismissed from their positions and assigned to the reserve of judges of the courts of general jurisdiction. As a consequence, their labor rights guaranteed by Article 30.4 of the Constitution of Georgia were infringed.

The applicants claim that pursuant to Article 54.1 (n) of the Organic Law on Courts of General Jurisdiction the liquidation of a court related to the change of a court system serves as a ground for releasing a judge from his/her position. In the given circumstance, in fact the reorganization of the regional courts took place and that, of course, did not constitute a legal ground for releasing judges from their offices. Therefore, the legislature adopted the impugned rule, Article 88³ of the Organic Law on Courts of General Jurisdiction and gave the name “liquidation” to the reorganization process in the courts. After the adoption of the impugned rule there were only structural alterations in the regional court. Its main function, considering cases at the appellate stage, remained unchanged. Only the collegiums considering cases in the first instance were liquidated and the name of the court was modified.

Based upon Article 54¹.1 of the Organic Law on Courts of General Jurisdiction, the applicants note that the liquidation of a court is authorized only at the time of change of a court system and this did not take place in the given case. They explain that they are not opposed to the administrative measures prescribed by law. They only argue that “there were measures taken on the basis of the impugned law not in fact stipulated by law”.

In the view of the respondents, the representatives of the Parliament of Georgia, in case a necessity of taking administrative measures appears, a state may interfere with the authority of judges who are in connection with such measures. The removal of the applicants from their positions and their assignment to the reserve was based on the law. However, the applicants themselves consented to be assigned to the reserve.

Invoking Article 2.1 of the Organic Law on Courts of General Jurisdiction where a regional court is not included in the enumeration of the courts of general jurisdiction, the respondents claim that the liquidation of the regional courts took place. Therefore, the impugned rule did not infringe the labor rights of the judges dismissed as a result of the liquidation of the regional courts and assigned to the reserve. The contested norm is in full conformity with Article 30.4 of the Constitution as well as the requirements established by international legal acts.

The specialist, Irina Akubardia agreed with the applicants that in fact liquidation and not reorganization of the regional courts took place. The current court system is formed in accordance with authorities of the courts and the hierarchy, in particular, the court system was established in the following manner: a court of first instance – the district (city) court, a court of second instance – the appellate court and a court of cassation – the Supreme Court of Georgia. In the opinion of the specialist, the disputed rule did not cause any change of the court system because the procedure of considering cases on the first, second instances and the cassation instance remained unchanged. Furthermore, no different rules concerning case proceedings were introduced. The specialist makes a reference to Article 107 of the Constitution according to which the current legislation regarding the court system is legally binding until the adoption of organic laws on the court system. In the given case no new organic law was passed.

From the standpoint of the specialist, not only must guarantees prescribed by law for judges be ensured but it is also necessary to preserve the term of office of judges and not to intrude on their authority invoking a necessity of implementing administrative measures.

The witness Valeri Tsertsvadze stated that the liquidation of the regional courts was exercised as a result of the adoption of the contested rule. The termination of offices of all members of the regional courts was carried out. Some judges working on cases at that moment were transferred to the appellate court in order to complete the consideration of those cases. Others were assigned to the reserve on the basis of their personal applications. Further, new judges were appointed as a result of the competition. In addition, all staff members of the apparatus of the regional court were dismissed and the auditing of material values of the court was fulfilled. In this case, no change of a court system took place.

The witness Lasha Kalandadze noted that the cases under consideration of those judges who were assigned to the reserve were transmitted to the judges to whom these cases had been assigned. With regard to the unconsidered cases, they were passed on to the chancellery and were reassigned in compliance with the Law on the Allocation of Cases and the Assignment of Authorities to Other Judges.

On the basis of considering the merits of the case, the First Chamber of the Constitutional Court of Georgia analyzed the details of the constitutional claim submitted by the Georgian citizens Tamaz Kilanava, Nugzar Kandelaki, Manana Nasaridze, Madona Ghibradze and Lali Archvadze, the evidence given in the case, the oral presentations of the parties at constitutional proceedings, the specialist’s report, the evidence given by the witnesses and determined the following circumstances:

I. The Chamber of the Court holds that the applicants worked as judges of the Tbilisi and Kutaisi Regional Courts. As it is lucid from the relevant Presidential Orders, they were removed from their positions and were assigned to the reserve due to the liquidation of these courts in line with Article 54.1 (n) and Article 54¹.2 of the Organic Law on Courts of General Jurisdiction. As Article 54.1 (n) provides for, the ground for dismissing a judge from his/her position is “the liquidation of the court related to change of a court system as well as reducing of offices of a judge”.

In the applicants’ view, it would be impossible to dismiss them unless Article 88³ (concerning the liquidation of the regional court) was added to the Organic Law on Courts of General Jurisdiction with the amendment dated 23 June, 2005. This Article was ultimately formulated as such:

“1. The President of Georgia and the High Council of Justice of Georgia shall ensure the settlement of legal, human resources, organizational and other questions related to the liquidation of regional courts as well as High Courts of the Autonomous Republics of Adjara and Abkhazia and the formation of appellate courts until November 1, 2005.

2. Judges of regional courts and high courts of the autonomous republics having been assigned to criminal cases being considered in the first instance before July 15, 2005, shall be dismissed in accordance with the liquidation process from the moment of completion of the consideration of those cases”.

The applicants contend that the recent legislative amendments did not bring about either a change of the court system or the liquidation of the regional court. In fact, the reorganization of the regional court took place and may not be a ground for dismissing them from their positions. Therefore, their labor rights enshrined in Article 30.4 of the Constitution of Georgia were breached through ungrounded dismissal.

II. The First Chamber of the Constitutional Court finds that in order to determine the constitutionality of the impugned rules it is necessary to ascertain whether a change of the court system took place. A change of the court system implies substantial transformations within the system causing its systemic and functional reorganization.

Since Georgia gained independence, a serious change within the court system took place by virtue of the adoption of the Organic Law on Courts of General Jurisdiction dated June 13, 1997. The adoption of the given Law was stipulated by Article 107.1 of the Constitution of Georgia which is read as such: “According to the Constitution, the current legislation regarding the court system is legally binding until the adoption of the organic law on the court system”. The court system was based on laws passed in different periods. The Law on the Court System in the Republic of Georgia was of major importance among these laws. The Law was approved by the Supreme Council of the Republic of Georgia on December 28, 1990. The Organic Law on Courts of General Jurisdiction essentially reversed that system. Arbitration and military courts were eliminated. The three stage court system was established. Until these recently adopted amendments, the following court system was in effect in accordance with Article 2 of the mentioned Law: “the district (city) court, the regional court, the high court of the autonomous republic, the Supreme Court of Georgia”.

The Chamber of the Court does not share the applicants’ position that the legislative amendments made to the Organic Law on Courts of General Jurisdiction cannot be assessed as a change of the court system. Although, the three level structure was maintained, important functional changes were introduced. Regional courts as well as high courts of the autonomous republics were eliminated and appellate courts were instituted. In accordance with Article 2.1 (current edition), “the courts of general jurisdiction of Georgia are as follows: the district (city) court, the appellate court, the Supreme Court of Georgia”. Only district (city) courts (specialized judges) adjudicate cases falling within their competencies in the first instance. A magistrate judge within the district (city) court is the newly emerged institution. The genuine appellate court was founded. The preceding regional court was not the court of this type because it considered cases in the first instance as well. These amendments facilitated the establishment of the principle of sequenced hearings. Although, the appellate court had to initiate its duties since the adoption of the Organic Law on Courts of General Jurisdiction but it was not formed separately. The regional court replaced it and considered cases in the second instance as well.

The Supreme Court of Georgia endured fundamental transformations too. It took the form of the genuine court of cassation because it no longer considers cases in the first instance. The important fact should be taken into account that with the Constitutional Law dated February 6, 2004, paragraph 5 was added to Article 82 of the Constitution of Georgia. This paragraph calls for the consideration of cases by a jury in courts of general jurisdiction in circumstances and in accordance with procedures as established by law.

The stated circumstances and other legislative amendments allow the contention that the Organic Law on Courts of General Jurisdiction was significantly renewed and, accordingly, this fact may be assessed as an event equal to a change of the court system.

The Chamber of the Court does not agree with the applicants that a change of a court system must be stipulated by the Constitution of Georgia. While realizing the true meaning of Article 107.1 of the Constitution of Georgia, on which the applicants base their argument, it is not correct to use such an approach. As it was said, it provides that the previous legislation regarding the court system will be legally binding until the adoption of the Organic Law on Courts of General Jurisdiction.

III. The change of the court system results in not only the liquidation of courts but also their reorganization. The cited legislative amendments imply both.

The legislator connected the dismissing of judges from their positions with two primary circumstances: the change of the court system and, accordingly, the liquidation of the court. To follow this logic, liquidation of the court without changing the court system (that may take place) would not have caused the dismissing of judges from their positions.

Liquidation of the regional court is envisaged by the disputed Article 88³ but the applicants themselves developed controversial views and doubted the relation of the impugned Article with the liquidation of the regional court. As to the respondents, they found that the legal ground for the liquidation of the court was Article 2 of the Organic Law on Courts of General Jurisdiction.

The Chamber of the Court notes that the caution of the applicants towards the interpretation of the essence of the impugned norm may be explained by the imperfection of Article 88³. The point is that the title of this Article directly indicates to the liquidation of regional and high courts of the autonomous republics but, according to its essence, it is determined to settle legal, human resources, organizational and other issues related to the liquidation of these courts and the creation of appellate courts. The rational interpretation of this Article demonstrates that it instructs the liquidation of regional courts and high courts of the autonomous republics. Naturally, it would be better for the legislator to directly establish the liquidation of the courts. Such interpretation is also supported by the fact that no other normative act providing for the liquidation of these courts is present in the case.

Arising from the aforementioned, it would be logical to conclude that the liquidation of the regional courts on the basis of the contested rule is related to the change of the court system, the circumstance prescribed by Article 54.1 (n) of the Organic Law. Hence, in fact the impugned rule authorizes the liquidation of regional courts and high courts of the autonomous republics in relation to the change of the court system. Such formal and legal veracity may be ascertained on the basis of the interpretation of the disputed rule.

But what really happened, the liquidation of the regional court or reorganization? The applicants find that it was reorganization and it could not be a reason for dismissing them from their positions and assigning them to the reserve. In relation to this, the Chamber of the Court points out that the legal (normative) veracity provided in the impugned rule and the factual reality given as a result of the application of the disputed rule should be distinguished from each other. The Constitutional Court is authorized to assess the constitutionality of a certain provision of the impugned rule vis-à-vis the Constitution. This provision envisages the liquidation of the court as a consequence of the change of the court system. The liquidation laid down in the disputed norm as the basis of the dismissal of judges may take place only when the court system is changed. In the light of the foregoing, the impugned rule does not contain any unconstitutional element. But if practical implementation of the rule is not in consistency with its essence then the source of infringing the applicants’ rights sought to be found not in the meaning of the rule but in its execution. The Constitutional Court is not empowered to adjudicate the constitutionality of the application of the disputed rule.

In the light of that aforementioned, the Chamber of the Court concludes that the claim should not be accepted.

IV. In spite of rejecting the claim, in the view of the Chamber of the Court, it would be adequate for the constitutional status of a judge and relevant international norms to refine those clauses laid down in Article 54¹ of the Organic Law which are dealt with dismissing judges, to guarantee the opportunity to regain a position as a judge and to ensure judges not to be assigned to the reserve (or to reduce the number of such judges). Due to the fact that through assigning judges to the reserve their judicial authority is in fact terminated during the remaining term, the legislature is obligated to provide those judges with social guarantees adequate to a high status of a judge and reasonably equal to those current judges enjoy.

The Chamber of the Court also observes that while dismissing a judge from the office as a result of the liquidation of the court in connection with the change of the court system, judicial morality of a judge is not the question that should be assessed. Such conditions afford a situation in which a decent judge with high morality is out of the court. As it is evident from the case materials, the applicants’ explanations, there are many such judges dismissed as a consequence of the liquidation of the regional court. Accordingly, the legislature is required to create such legal mechanism which will exclude the possibility of dismissing so called “undesirable” and “unreliable” judges from the court. Perfect and fair legislative will tends to be the real guarantee for the independence and non-replacement of a judge.

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

The Constitutional Court holds that:

1. The №357 constitutional claim of the Georgian citizens - Tamaz Kilanava, Nugzar Kandelaki, Manana Nasaridze, Madona Ghibradze and Lali Archvadze submitted against the Parliament of Georgia and challenging the constitutionality of the provision of Article 88³ of the Georgian Organic Law dated June 13, 1997, concerning the liquidation of the regional court vis-à-vis Article 30.4 of the Constitution of Georgia shall not be accepted;

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

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

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

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

1. Besarion Zoidze (Chairman of the Sitting);

2. Vakhtang Gvaramia (Rapporteur Judge);

3. Iakob Putkaradze;

4. Nikoloz Shashkin.