Composition of the Board:

Besik Loladze – Chairman of the Hearing; Juge Rapporteur;

Otar Sichinava – Member;

Lali Papiashvili – Member.

Secretary of the Hearing: Darejan Chaligava.

Title of the Case: Citizens of Georgia, Vakhtang Tirkia, Sergo Tirkia, Khvicha Gogia and Mamuka Shengelia versus the Parliament of Georgia.

Subject of the Dispute: Constitutionality of subparagraph “d” of the first art of Article 37 of the Labor Code of Georgia with respect to paragraphs 1 and 4 of Article 30 of the Constitution of Georgia.

Participants of the Hearing: Representatives of the Claimants, Raisa Liparteliani and Anna Tvaradze.

I

1. On 25th of June 2008, a constitutional claim was lodged with the Constitutional Court of Georgia by citizens of Georgia, V. Tirkia, S. Tirkia, Kh. Gogia and M. Shengelia. The constitutional claim was registered with the number N456. On 2nd of July 2008, the President of the Constitutional Court of Georgia referred the Constitutional claim N456 to the Second Board of the Constitutional Court with a view to considering and deciding the issue of admitting it for the consideration on merits.

2. The Claimants were employed by the Ltd. “Poti Sea Port”. On 23 October 2007, the Director General of the Ltd. “Poti Sea Port” issued orders, under which the employment relations with the Claimants were terminated from 25 October 2007. The legal basis for termination of employment relations was indicated subparagraph “d” of the first part of Article 37 of the Labor Code of Georgia.

3. V. Tirkia, S. Tirkia, Kh.Gogia and M. Shengelia together with other persons and Georgian Trade Union Confederation of employees of the Sea Transport and Fisheries filed a claim before the Civil Court of Poti. The Civil Court of Poti did not uphold the claim. The Court decision rests upon subparagraph “d” of Article 37 and Article 38 (dissolution of employment agreement) of the Labor Code of Georgia.

4. Arising from the constitutional claim, the disputed norm is subparagraph “d” of Article 37 of the Labor Code of Georgia, which reads as follow: “1. The grounds for termination of employment relations are: … d) dissolution of employment agreement”.

5. In the Claimants’ opinion, the disputed norm contradicts paragraphs 1 and 4 of Article 30 of the Constitution of Georgia. They referred to the judgments of the Constitutional Court of Georgia on the cases “citizen of Georgia, Maya Natadze and others v. the Parliament of Georgia and the President of Georgia” and “Avtandil Chachua v. the Parliament of Georgia”. Stemming from these judgments, freedom of labor implies no only the freedom from compulsory labor, but also obligation of the State is to assure that its citizens are employed and protect their labor rights. The right to choose an occupation, also the right to be protected against unemployment and against such regulations which directly foresee or provide the possibility of groundless, arbitrary and unfair dismissal from the work, are ensured by the Constitution.

6. The Claimants consider that subparagraph “d” of the first part of Article 37 of the Labor Code of Georgia gives an employer the ground for arbitrariness and for dismissal of an employee from the work. Stemming from this, the disputed norm is not compatible with the Constitution of Georgia and the standards enunciated in the judgments of the Constitutional Court of Georgia.

7. Based on subparagraph “f” of the first paragraph of Article 89 of the Constitution of Georgia; subparagraph “e” of the first paragraph of Article 19, paragraph 5 of Article 25, Article 31, subparagraph “a” of the first paragraph of Article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”; paragraph 2 of Article 1, paragraph 1 of Article 10 and Article 16 of the law of Georgia “On the Constitutional Legal Proceedings”, the Claimants require: 1) to admit and consider the constitutional claim; 2) to recognize subparagraph “d” of the first part of Article 37 of the Labor Code of Georgia as unconstitutional with respect to paragraphs 1 and 4 of Article 30 of the Constitution of Georgia; 3) to temporarily suspend the operation of the disputed norm before rendering a final decision on the present case.

8. On the First of December 2008, the Second Board of the Constitutional Court of Georgia by a recording notice N2/4/456, decided to conduct an administering sitting with an oral hearing. The Administering sitting of the Board with an oral hearing was held on 2nd of December 2008.

9. Representatives of the Claimants, A. Tvaradze mentioned in his explanation made at the administering sitting, that the constitutional claim N456 should be admitted for the consideration on merits, as it both formally and substantially is compatible with the requirements of the law of Georgia “On the Constitutional Legal Proceedings”.

10. A. Tvaradze also indicated that the Claimants consider as unconstitutional not in general the institute on dissolution of employment agreement, but its form, which places an employee under fettering conditions. The law of Georgia “On the Constitutional Legal Proceedings” allows increasing the claim requirement as to extend it to Article 38 (dissolution of employment agreement) of the Labor Code of Georgia, in the opinion of the representative of the Claimants, recognizing the disputed norm as unconstitutional shall entail respective changes to the mentioned Article of the Labor Code of Georgia.

11. In the opinion of R. Liparteliani, representative of the Claimants, to recognize the disputed norm as unconstitutional will automatically entail recognizing Article 38 of the Labor Code of Georgia as unconstitutional. He agreed with the opinion presented by A. Tvaradze and mentioned that she is not against dissolution of employment agreement. Unconstitutionality of the disputed norm and not the institute in general creates the problem, stemming from its content weight.

II

1. Article 37 of the Labor Code of Georgia is devoted to the grounds for termination of employment relations. The title of this Article is also relevant – “Grounds for termination of employment relations”. Separate grounds for termination of employment relations, including dissolution of employment agreement are listed in the first part of Article 37. When the Claimants dispute the constitutionality of subparagraph “d” of the first part of Article 37 of the Labor Code of Georgia, then they should logically put forward arguments either on dissolution of employment agreement as one of the grounds for termination of employment relations, is unconstitutional or on the unconstitutionality of the institute on dissolution of employment agreement in general.

2. Representatives of the Claimants clearly declare that they do not consider the institute on dissolution of employment agreement as unconstitutional. This is shown both by the text of the constitutional claim and by the claim requirement. The argumentation of the Claimants are not directed, in general, against reasoning the unconstitutionality of the institute on dissolution of employment agreement, and the claim requirement is not directed against recognizing this institute as unconstitutional.

3. The Claimants did not depict in the constitutional claim and did not also present the reasoning before the Constitutional Court at the administering sitting in what the unconstitutionality of dissolution of employment agreement as one of the grounds for termination of employment relations is expressed.

4. The attention is paid in the constitutional claim on the fact that the disputed norm provides an employer with the ground for arbitrariness and unfair and unconditional dismissal of an employee from the work. In the opinion of R. Liparteliani, representative of the Claimants, the disputed norm is unconstitutional because of the effect of its contents. The Board considers that the Claimants’ opinion on the contents of subparagraph “d” of the first part of Article 37 of the Labor Code of Georgia is incorrect.

5. The institute on dissolution of employment agreement, the rule and terms for dissolution of an agreement are not regulated by the challenged norm. The disputed norm represents part of the list of grounds for termination of employment relations and not the norm regulating the dissolution of employment agreement. Stemming from this, it is potentially impossible to discuss about subparagraph “d” of the first part of Article 37 of the Labor Code of Georgia as the norm that might establish arbitrariness from he part of an employer when dissolving an employment agreement.

6. Subparagraph “d” of the first part of Article 37 of the labor Code of Georgia is wrongly chosen as a target for the arguments presented by the Claimants, as they perceive the disputed norm as one that regulates dissolution of employment agreement. The Board, referring the approach taken by the Constitutional Court of Georgia (Ruling N2/3/412, II-9); Ruling N2/4/420, II-7; Ruling N2/9/450, II-10), considers that the evidences presented by the Claimants, which are based on erroneous understanding of the challenged norm, does not comply with the requirements of subparagraph “e” of the first part of Article 6 of the law of Georgia “On the Constitutional Legal Proceedings”.

7. The Claimants’ erroneous insight on the contents of the disputed norm preconditioned non-existence of contents reference between their argumentation and subparagraph “d” of the first pat of Article 37 of the Labor Code of Georgia. For reasoning the constitutional claim it is necessary that the reasoning provided in it should in terms of content, concern the disputed norm (Ruling N2/3/412, II-9; Ruling N2/2/438, II-1). Therefore, the evidences presented by the Claimants also in this sense, do not conform with the requirements of subparagraph “e” of the first paragraph of Article 16 of the law of Georgia “On the Constitutional Legal Proceedings”.

8. In the opinion of A. Tvaradze, representative of the Claimants, recognition of the disputed norm as unconstitutional will result in the changes to Article 38 of the Labor Code of Georgia, and R. Liparteliani, another representative of the Claimants thinks that recognition of the disputed norm as unconstitutional will automatically be followed by recognition of the abovementioned Article of the Labor Code of Georgia as unconstitutional. Pursuant to the first paragraph of Article 26 of the organic law of Georgia “On the Constitutional Court of Georgia” and the first paragraph of Article 11 of the law of Georgia “On the Constitutional Legal Proceedings”, the Constitutional Court is not authorized to discuss about the constitutionality of the law as a whole, if the Claimant demands only recognition of a particular norm (provision) of the law as unconstitutional. The Constitutional Court has the strict limits established by law and it shall not discuss about the constitutionality of those norms that are not challenged, moreover, when the scope of their regulation is different from that of the disputed norm. The Constitutionl Court shall not recognize the norm as unconstitutional, constitutionality of which it did not discuss. Thus, the Claimants’ position is obviously based on the erroneous expectation. Stemming from the approach taken by the Constitutional Court of Georgia (Ruling n2/8/448, II-7,8,9; Ruling N2/9/450, II-12), as well as in the similar cases, the argumentation of the Claimants does not comply with the requirements of paragraph 2 of Article 31 of the organic law of Georgia “On the Constitutional Court of Georgia” and subparagraph “e” of the first paragraph of Article 16 of the law of Georgia “On the Constitutional Legal Proceedings”.

9. Under subparagraph “f” of the first paragraph of Article 16 of the law of Georgia “On the Constitutional Legal Proceedings”, the Constitutional claim should contain the gist of the claim requirement. Here it is implied that the requirement developed by the Claimants should be comprehensible, clear, without any obscurity and ambiguity. The Board considers that the claim requirement developed in the constitutional claim N456 does not comply with the abovementioned criteria and contradicts the argumentation of the Claimants by themselves. As it was already stated, the Claimants do not have any complaints on dissolution of employment agreement in general. However, the Claimants demand recognition of the norm regulating exactly this issue, as unconstitutional.

10. From the discussion provided in the present paragraphs of the motivational part of the Ruling, we may conclude that the constitutional claim N456 should not be admitted for the consideration on merits in accordance with subparagraph “a” of Article 18 of the law of Georgia “On the Constitutional Legal Proceedings”.

11. The Claimants also demanded temporarily suspending the operation of the disputed norm before rendering a final decision, but they did not present the relevant reasoning with regard to this demand, neither in the constitutional claim nor at the administering sitting. The circumstance that the constitutional claim N456 is not admitted for the consideration on merits and the Constitutional Court of Georgia does not render the decision in this regard, excludes the discussion on suspension of the operation of the disputed norm.

III

Stemming from the abovementioned and based on paragraph 2 of Article 21, paragraph 2 of Article 31, paragraphs5 and 8 of Article 43 of the organic law of Georgia “On the Constitutional Court of Georgia”; subparagraphs “e” and “f” of the first paragraph of Article 16 and subparagraph “a” of Article 18 of the law of Georgia “On the Constitutional Legal Proceedings”,

The Constitutional Court of Georgia
rules:

1. Not to admit the constitutional claim N456 (citizens of Georgia, Vakhtang Tirkia, Sergo Tirkia, Khvicha Gogia and Mamuka Shengelia v. the Parliament of Georgia) for the consideration on merits.

2. The present ruling is final and shall not subject to appeal or revision.

3. Copy of the present ruling will be sent to the parties.

Members of the Board:

Besik Loladze,

Otar Sichinava,

Lali Papiashvili.