Composition of the Board:

Konstantine Vardzelashvili – President of the Hearing;

Besarion Zoidze – Member;

Ketevan Eremadze – Member, Judge Rapporteur;

Vakhtang Gvaramia – Member.

Secretary of the hearing: Lili Skhirtladze.

Title of the case: Citizen of Georgia Levan Sirbiladze v. the Parliament of Georgia.

Subject of the dispute: The constitutionality of Article 1298(10) of the Organic Law of Georgia “The Election Code of Georgia” in terms of Article 20 of the Constitution of Georgia.

I

1. On 19 May 2008 a constitutional claim was lodged with the Constitutional Court by citizen of Georgia Levan Sirbiladze (registration number 454). On 27 May 2008 the First 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. An administrative hearing without an oral hearing was held on 28 October 2008.

2. The legal ground for lodging the constitutional claim is as follows: Article 89(1)(f) of the Constitution of Georgia; Article 19(1)(e), Article 39(1)(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 16 of the Law of Georgia “On Constitutional Legal Proceedings”.

3. Under the impugned provision “with the view of preventing from and reacting to the breaches during elections video observation and video recording means can be used. The video recording data shall not be public information under the General Administrative Code of Georgia. The request for imparting the video recording data gathered by the elections administration at the electoral precinct commission during parliamentary elections of Georgia of 2008 can be filed by the individual entitled to be at the electoral precinct. The individual concerned is obliged to indicate in the submitted application/complaint the exact timing of the violation in the tape. The applicant can only request to watch 15 minute interval of the recording with the accurate indication of the timing of an alleged violation. The application/complaint shall not be considered if it fails to meet the above procedure. The applicant shall be entitled to watch the recording only after the consideration of the application/complaint by the Regional Election Commission or in case the disputed is considered by a court”.

4. In claimant’s opinion, the impugned provision runs counter to Article 20 of the Constitution of Georgia guaranteeing the inviolability of privacy.

It is maintained in the constitutional claim that video recording by cameras installed at electoral precincts amounts per se to compiling the information by the State. Moreover, this information contains data as enables the identification of a person. Hence, the necessity for the respect for private life and further storage and protection of information containing personal data. In order to consolidate his viewpoint, the claimant invoked the judgment of the European Court of Human Rights in the case of Peck v. the United Kingdom.

5. The claimant believes that while an electoral precinct is a public place, there is no automatic expectation that all the information gathered at such a place can be publicly available. According to the constitutional claim, the impugned provision fails to comply with Article 20 of the Constitution securing the respect for private life by omitting the guarantees against arbitrary use of the personal information gathered at an electoral precinct and failing to offer regulation for the respect of private life in the procedure of imparting information.

6. It is maintained in the constitutional claim that the Election Code is an organic law and therefore, the relations governed by the impugned provision cannot be covered by the standards of the protection of personal information and the provisions about the inviolability private life set out in the General Administrative Code of Georgia and the Law of Georgia “Freedom of Speech and Expression”.

7. The claimant also requests to cease the application of the impugned provision until the end of the consideration of the merits by the Constitutional Court of Georgia in accordance with Article 25(5) of the Organic Law of Georgia “On the Constitutional Court of Georgia”.

II

1. The right to respect for private life is one of the most fundamental rights. Generally, the right to respect for private life implies the private sphere of an individual’s life and development. The right to respect for private life means on the one hand an individual’s possibility to design and develop his/her own private life, according to his/her own opinions and independently, and on the other hand the possibility to be protected and ensured against the interference on the part of the State and other persons. Accordingly, the right to respect for private life guarantees free development of an individual as it enables a person to share information, opinions and impressions without public interference and scrutiny.” Within the scopes of this right “individuals are guaranteed with the respect for their physical and moral security, name, personal data, home, correspondence, telephone conversations, the confidentiality of family and sex life and other respective rights. Each of these components defines the rationale of the right to respect for private life and bears independent contents in itself” (the Georgian Young Lawyers Association and citizen of Georgia v. the Parliament of Georgia 26 December 2007).

2. The right to respect for private life comprises of numerous legal components. It is noteworthy that in the light of the wide and multifaceted contents of private life, it is impossible to provide for its exhaustive definition. The European Court of Human Rights, having a voluminous jurisprudence in this regard, also points out the impossibility of a comprehensive definition of this concept: “[t]he Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life”” (Niemietz v. Germany of 16 December 1992, at para. 29).

3. It would be a mistake to confine the right to respect for private life to Article 20 of the Constitution of Georgia. Various aspects of private life falls within Article 16, Article 36, Article 41 etc. of the Constitution of Georgia.

2. While, it is natural that the infringement of any aspects of private life generally amounts to the violation of the right to respect of private life, this does not mean that any such infringement necessarily amounts to the violation of Article 20 of the Constitution of Georgia. The specific construction of the regulation of the right to respect for private life given in the Constitution should be borne in mind. Otherwise, there is a high risk of misunderstanding the scopes of the interference within the various legal components making up the notion of private life.

3. When defining the contents of any constitutional right, the form of and scopes for the interference with the given right is of essential importance. Interferences vary from right to right, which is obvious from Chapter Two of the Constitution. Certainly the different scopes for interferences do not allude to the different degree of importance attached to a particular right.

The different form, substance or degree of an interference with a right indicates different public interest for the attainment of which the interference is necessary. Moreover, any interference must certainly be proportional. These circumstances guarantee striking a fair balance between private and public interests in each particular case. Different degrees of interference can be relevant in terms of various legal components of a right. This is the case with the right to respect for private life. For instance, the rights set out in Article 20 of the Constitution of Georgia can be limited by a court decision or in case of urgent necessity determined by law. As regards the interference with such aspects of private life as the inviolability of information stored in official records and related to individual’s health condition, property or other private matters, it can only be permissible with the consent of the individual concerned, save the cases envisaged by law, where it is necessary for the interests of State security or public safety, for the protection of health and the rights and freedoms of others.

4. In those cases, where the Constitution provides for specific regulation of a particular legal component of a right, different contents of and scopes for the interference with a right, the constitutionality of interference with a right must be undoubtedly reviewed only in terms of the specific provision regulating the limitation of the right; otherwise, the constitutionality cannot be properly reviewed.

5. Participation in elections is a public process. However, this does not excludes the relevance of private life, the protection of which is equally important in a specific (either public or private) sphere, irrespective of their origin. It was mentioned above, however, that it is essential to find the accurate scopes for the protection of the respective aspects of private life being at stake. Otherwise, both the protection of private and public interests will be equally doubtful.

It is noteworthy that the claimant does not see a problem in the recording of the election process in general. According to the constitutional claim private life can be infringed through making public a video, tape where the claimant is recorded as a participant of the election processes. The claimant, however, does not specify which legal aspect of his private life, what kind of private information was under the threat of going public. He failed to show an arguable claim that video recording at an electoral precinct, the storage of the information gathered this way and its subsequent dissemination amounts to infringement of private life guaranteed by Article 20 of the Constitution. It is not clear, accordingly, how exactly his private life was interfered with.

Without pointing out the particular aspect of private life it is certainly impossible to identify the respective provision of the Constitution protecting it. The claimant maintains the possibility of his private life infringement in abstracto. There is not single evidence in the constitutional claim asserting that the claimant was under the actual danger of infringement of his rights under Article 20 of the Constitution through the impugned provision.

Under the legislation in force, the claimant should indicate certain circumstances, which entitle him/her to apply to the Constitutional Court on the account of violation of the rights under Chapter Two of the Constitution. In accordance with Article 16(1)(e), a constitutional claim “shall bear a reference to the evidence, which in the claimant’s opinion, corroborate the constitutional claim; A similar requirement is stipulated by Article 31(2) of the Organic Law of Georgia “On the Constitutional Court of Georgia” under which, a constitutional claim must be reasoned and there must be the evidence which, in a claimant’s view, will substantiate the claim.

The constitutional claim fails to meet the above requirements of the legislation. Under Article 18(a) “a constitutional claim … shall not be admitted for the consideration if either by its form or its contents, it does not conform with the requirements, laid down in Article 16 of the present Law”.

III

In the application of Article 89(1)(f) of the Constitution of Georgia, Article 19(1)(e), Article 21(2), Article 271(1), Article 31(2) and Article 39(1)(a), Article 43(5,7-8) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 17(5), Article 18(a) and Article 21(2) of Law of Georgia “On Constitutional Legal Proceedings”; Article 27(2-3), Article 30, Article 31 and Article 33(1) of Rules of Constitutional Court of Georgia,

The Constitutional Court of Georgia
resolves:

1. Not to admit #454 constitutional claim (Levan Sirbiladze v. the Parliament of Georgia) regarding the constitutionality of Article 1298(10) of the Organic Law of Georgia “The Election Code of Georgia” in terms of Article 20 of the Constitution of Georgia for the consideration of the merits.

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

Members of the Board:

Konstantine Vardzelashvili

Besarion Zoidze

Ketevan Eremadze

Vakhtang Gvaramia