Composition of the Board:

Besik Loladze – President of the Hearing, Judge Rapporteur;

Otar Sichinava – Member;

John Khetsuriani – Member.

Secretary of the hearing: Darejan Chaligava.

Title of the case: Citizen of Georgia Shalva Ramishvili v. the Parliament of Georgia.

Subject of the dispute: The constitutionality of the wording “or is placed in a penitentiary establishment following conviction under a court judgment” of Article 5(2) of the Organic Law of Georgia “The Election Code of Georgia” in terms of Article 7 and Article 28 of the Constitution of Georgia.

Participants of the Court hearing: Tamar Khidasheli, representative of citizen of Georgia Shalva Ramishvili (claimant).

I

1. On 25 July 2007 a constitutional claim was lodged with the Constitutional Court of Georgia by citizen of Georgia Shalva Ramishvili (registration number 431). On 17 September 2007 the Second Board of the Constitutional Court of Georgia was referred the constitutional claim with the view of deciding about its admissibility for the consideration of the merits.

2. Claimant, citizen of Georgia Mr. Shalva Ramishvili is convicted. He was found guilty of extortion under the judgment of Tbilisi City Court of 29 March 2006. At present he serves punishment in a penitentiary establishment. The term of the deprivation of liberty is due to expire on 27 August 2009.

3. The claimant invokes the following as the ground for seizing the Constitutional Court: Article 42 and Article 89(1)(f) of the Constitution of Georgia, Article 19(1)(e), Article 39(1)(a) the Organic Law of Georgia “On the Constitutional Court of Georgia”, Article 1(2), Article 15(1), Article 16(1)(2,7) of the Law of Georgia “On Constitutional Legal Proceedings”.

4. The constitutional claim concentrates on Article 7 and Article 28 of the Constitution of Georgia. According to the claimant, the limitation of the rights set out in Chapter Two of the Constitution, namely of the rights enshrined in Article 28 should be reviewed in terms of Article 7 of the Constitution of Georgia. The claimant maintains that stemming from the jurisprudence of the Constitutional Court of Georgia, Article 7 of the Constitution of Georgia presents a general ground of the principle of proportionality.

5. It is maintained in the constitutional claim that in terms of the structure, the impugned provision and Article 28(2) of the Constitution of Georgia are identical; however, in terms of the contents, the limitation of the active right to vote does not end where Article 28(2) does In order to understand the teleological meaning of the constitutional provision, both grammatical and systematic analysis are needed. In such a case the interpretation of Article 28(2) of the Constitution of Georgia in the light of Article 7 of the Constitution will be the following: An individual having been either declared as lacking legal capacity by a court or placed in a penitentiary establishment following conviction under a court judgment is not eligible to take part in elections or referendum as long as it is necessary to attain a legitimate aim in the democratic society. The impugned provision disproportionally restricts the right to vote enshrined in Article 28 of the Constitution. The restriction cannot be considered proportional in terms of the legitimate aims, which can be sought by the State in the given case.

6. The claimant draws parallels between Article 28 of the Constitution of Georgia and Article 3 (right to free elections) of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. Neither of these provisions contains a requirement that the active right to vote should be limited in proportion to a legitimate aim. It appears, however, from the jurisprudence of the European Court of Human Rights, that disproportional limitation of the active right to vote is impermissible. In consolidation of his argument the claimant invokes the judgment of the Constitutional Court of Georgia adopted on 15 December 2006 in the case of Citizens of Georgia Vakhtang Masurashvili and Onise Mebonia v. the Parliament of Georgia; the judgments of the European Court of Human Rights in the cases of Mathieu-Mohin and Clerfayt v. Belgium, Hirst v. the United Kingdom and Sauvй v. Canada.

7. An administrative hearing of the Second Board of the Constitutional Court of Georgia was held on 5 December 2007. The Court heard the observations of the claimant’s representative about the issues related to the admissibility of the constitutional claim for the consideration of the merits. The claimant’s representative confirmed the circumstances pointed out in the constitutional claim and reiterated the constitutional claim. The representative believes that there is no reason for turning down the constitutional claim.

8. In the opinion of the claimant’s representative, the Constitution should be regarded a living organism that permanently evolves keeping pace with the current situation at national and international level in terms of human rights law. This should be borne in mind when interpreting constitutional provisions. She believes that some those individuals being in penitentiary establishments should be entitled to the active right to vote taking into consideration the respective seriousness of crimes committed. The claimant’s representative is satisfied that Article 28(2) of the Constitution instructs the legislator to regulate the issue at stake in accordance with the human rights law in force.

II

The claimant is a citizen of Georgia. In accordance with a court judgment he serves his sentence in a penitentiary establishment. In order to be eligible for the application to apply to the Constitutional Court of Georgia the requirements of Article 39(1)(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia” must be met. Under the law, a constitutional claim may be lodged with the Constitutional Court by a citizen if he/she considers that the rights and freedoms recognised by Chapter Two of the Constitution of Georgia are violated or can directly be infringed in the future. This means that the claimant must be a subject of the basic right. Stemming from this it should be examined if the claimant is a subject of the right set out in Article 28 of the Constitution in the first place.

2. The provisions of Chapter Two of the Constitution determine not only the contents and scopes of the basic rights but groups of their subjects as well. In some cases these groups are unlimited, and sometimes they are confined to various specifications. The majority of the provisions of Article 28 of the Constitution of Georgia serve exactly this aim. Under Article 28(1) the right to vote cannot be exercised by those who are not citizens of Georgia or by those who are citizens of Georgia but have not turned 18. Under Article 28(2) citizens recognized as lacking legal capacity by a court or are placed in a penitentiary establishment following a conviction by a court cannot exercise the active right to vote. Under the Constitution, these citizens, are isolated from the elections and there is no other precondition save the termination of their being in a penitentiary establishment, which will bring then back to the group of the subjects of the right to vote. The Constitution expressly states that a citizen, serving sentence in a penitentiary establishment “shall have no right to participate in elections and referendum.” This wording prevents the legislator from widening the group of the subjects of the right to vote. Even if the impugned provision is declared unconstitutional this will not allow him to leave the boundaries of the prohibition set by Article 28(2) of the Constitution of Georgia. It requires the amendment of the respective constitutional provision, which is beyond the competence of the Constitutional Court of Georgia. Hence, the claimant is not a subject of the basic right in terms of which the constitutional claim is lodged with the Constitutional Court.

3. The principle of proportionality is applied in the review of the constitutionality of an impugned provision. It establishes to what extent the impugned provision corresponds to the Constitution from substantive-legal viewpoint. Stemming from the above-mentioned, first of all, it must be clarified whether the Constitutional Court is authorised to review the constitutionality of the impugned provision. If the Constitutional Court is satisfied that the contents of the impugned provision are identical to those of those of Article 28(2) of the Constitution, the Constitutional Court will not be able to review the impugned provision, since it will amount to the consideration of the constitutionality of a constitutional provision. Moreover, it is impossible to review the actions of the legislator if the Constitution does not allow a leeway from constitutional provisions.

4. As mentioned above, the Constitutional Court believes that Article 28(2) of the Constitution has an express purpose – to exclude from the group of the subjects of the right to vote a citizen serving punishment following a court judgment in a penitentiary establishment. It would be illogical to interpret this provision broadly. It has an express, imperative and preventive nature and excludes any loose interpretation. There is no prohibition to the same effect contained in Article 3 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. In the light of the above-mentioned, the parallel drawn by the claimant is correct in terms of Article 28 of the Constitution of Georgia as long as it is beyond the scopes of direct set by the said Article and relates to the various limitations of the right to vote, which are likely to occur. In this field, the jurisprudence of the Constitutional Court of Georgia, specifically, the judgment of 24 January 2005 in the case of citizens of Georgia Guram Sanadze and Irakli Kotetishvili v. the Parliament of Georgia is analogous to the case-law of the European Court of Human Rights.

5. It is worth mentioning that there are similar exceptions from the principle of universal suffrage generally in constitutions and it is not only characteristic to the Constitution of Georgia. This is a case, where it is the Constitution, which directly narrows down the group of individuals eligible for the passive right to vote. Article 28 already discussed above can serve as an example in this context and Article 49(2) as well, under which a citizen can be elected a member of the Parliament from the age of 25. Article 70(1-2) of the Constitution is of the same nature; it unconditionally narrows down the group of individuals having the passive right to vote for presidential elections. When the Constitution gives legislator discretion to a certain degree, the constitutional provision is far broader in the latter cases. E.g. under Article 70(10) the inadmissibility to run for President is determined in accordance with the Constitution and Organic Law. In such a case the preconditions for the exercise of the passive right to vote are defined not directly by the Constitution but by the legislator, based on the Constitution, bearing in mind the constitutional principles and provisions.

6. The wording of Article 5(2) of the Organic Law of Georgia “The Elections Code of Georgia” “or is placed in a penitentiary establishment following conviction under a court judgment” is a direct transfer of the constitutional prohibition by the Parliament of Georgia in the Organic Law. The impugned provision is analogous to the provision contained in Article 28(2) of the Constitution and the review of its constitutionality is not within the competence of the Constitutional Court of Georgia.

7. The claimant’s representative also raised the constitutionality of the impugned provision in terms of Article 7 of the Constitution of Georgia. Legislation excludes such a wording of a constitutional claim. A citizen of Georgia is only entitled to apply to the Constitutional Court if he/she believes that an impugned provision is in breach of his/her constitutional rights recognised by Chapter Two of the Constitution. Article 7 of the Constitution does not fall within Chapter Two. It is worth mentioning that neither Article 7 recognises a basic right. In its #2/2-389 judgment adopted on 26 October 2007 in the case of Citizen of Georgia Maia Natadze and others v. the President of Georgia, the Constitutional Court held that “Article 7 of the Constitution does not contain the scopes for constitutional review, as long as establishes the constraints for the State and not a substantive right.” In case of admission of the constitutional claim for the consideration of the merits, the Constitutional Court is not limited with the provisions recognizing a basic right. In the aforementioned judgment of the Constitutional Court of Georgia it is also stated that: “While the constitutional principles do not formulate the basic rights, the impugned provision is also subject to the review in terms of the fundamental constitutional principles, jointly with various constitutional provisions and in that regard the review must be carried out in the overall context.” However, in order to bring attention to a particular constitutional principle, it is not necessary to invoke the Article establishing the principle in the constitutional claim formally and in contradiction to legislative requirements.

III

In the application of Article 21(2), Article 39(1)(a), Article 43(5,8) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 17(5), Article 18(b-c) of the Law of Georgia “On Constitutional Legal Proceedings”

The Constitutional Court of Georgia
resolves:

1. Not to admit #431 constitutional claim (citizen of Georgia Shalva Ramishvili v. the Parliament of Georgia) for the consideration of the merits;

2. The ruling shall be final and not subject to appeal or review.

3. A copy of the ruling shall be dispatched to the parties.

Members of the Board:

Besik Loladze,

Otar Sichinava,

John Khetsuriani.