Composition of the board:

Konstantine Vardzelashvili – Chairman of the Hearing;

Vakhtang Gvaramia – Member;

Ketevan Eremadze – Member, Rapporteur Judge ;

Besarion Zoidze – Member.

Secretary of the Hearing: Lili Skhirtladze.

Title of the Case: Public Defender of Georgia vs. the Parliament of Georgia.

Subject of the Dispute: Constitutionality of art.22.2 of the Law of Georgia on Social Assistance with respect to art. 42.1 of the Constitution of Georgia.

Participants of the Hearing: Representatives of the claimant – Giorgi Mshvenieradze and Tamar Tcharbadze; Representatives of the respondent – Batar Chankseliani and Levan Kasradze; Witness – Deputy Director of Social Service Agency Moris Wamalashvili.

I

1. On 3rd September 2007 constitutional claim of the Public Defender (Reg. N 434) was lodged with the Constitutional Court of Georgia. By the Recording Notice of 29th October, 2007 N1/4/434 of the First Board of the Court the case was admitted for consideration on merits. The hearings on merits took place on 9th and 10th June, 2009.

2. The legal grounds for the constitutional claim are indicated to be the following: art.89.1 (f) of the Constitution of Georgia, art.39.1 (b) of the Organic Law of Georgia on the Constitutional Court of Georgia, art.21.1 (i) of the Organic Law on Public Defender and art. 1.2 of the Law of Georgia on Constitutional Proceedings.

3. According to the constitutional claim the subject of the dispute is art. 22.2 of the Law of Georgia on Social Assistance, pursuant to which “Assessment methodology of socio–economic conditions, as well as the level set by the Government of Georgia and the amount of social assistance is not subject to appeal.” The claimant alleges that the provision contradicts art.42 of the Constitution of Georgia, according to which “Everyone has the right to apply to a court for the protection of his/her rights and freedoms.”

4. The Public Defender claims that social protection of the citizens’ is an obligation of the state and not a manifestation of good will. He claims that the principle of social state creates certain obligations for the state to solve social problems of the population, ensure adequate social security for certain category of persons ( for example for the victims of war or of armed conflict, pensioners and others) and generally creates obligation to protect social rights, which requires that relevant measures by undertaken timely. To support the position he points to the judgment of the Constitutional Court of Georgia on the case of Bachua Gachechiladze, Simon Turvandashvili, Shota Buadze and others vs. The Parliament of Georgia (18th April, 2002 N1/1/126, 129, 158).

The claimants also point to range of provisions of international conventions, which recognize rights to social assistance and social security and state’s corresponding obligations in this sphere. In specific these are: International Covenant on Economic, Social and Cultural Rights, European Social Charter, Universal Declaration of Human Rights and others.

Although in the constitutional claim public defender recognizes the rights of social assistance and of social security as constitutional rights on the basis of art.39 of the constitution, but on the hearing his representative G. Mshvenieradze confirmed that for this dispute it did not matter whether the rights were deemed as constitutional rights. According to the representative, social assistance is one of the aspects of social security measures. The need for social assistance arises because of poverty, while in cases of social security the state supports beneficiaries because of some risks, independently of material needs.

According to the public defender, the state is obliged to justify that any restriction of social schemes is a result of deterioration of economic situation, or increase of number of beneficiaries, or decrease of budgetary income or by other factors. However this does not free the state to undertake low cost programs to ensure social security of the most vulnerable social groups.

According to the constitutional claim, any legal act concerning social protection, including those that define methodology for assessing social-economic conditions, the amount of social assistance and the level, belong to acts regulating legal rights and thus should be subjected to appeal to court for the protection of the rights of social assistance and social security.

Apart from this, the representative of the claimant stated, that restriction of appeal of the mentioned acts not only endangers social rights but other rights as well, including the right to privacy, to non-discrimination, right to property…etc.

5. At the Court hearing the representatives of the public defender stated, that the impugned act interferes with the right to access ordinary as well as the constitutional court.

Concerning socio-economic assessment methodology the claimants stated, that this act should be regularly updated, as value of its separate components is subject to changes in time. In the concluding speech of the claimant, it is pointed out that certain components of welfare index is not related to assessment of socio-economic conditions and do not allow for accurate assessment of the welfare of a family. Therefore, he thinks that access to court in this regard would contribute to refinement of the methodology.

Concerning socio-economic level, the claimant stated that in the absence of judicial control, the state could unjustifiably raise the level. According to him, the level, that expresses the amount that was directed from the state budget for social protection, could be acknowledged as inadequate, if it is proven that state should have made available more money and should have covered more beneficiaries.

According to Mr. Mshvenieradze, the court while examining the methodology, the level and the amount of social assistance, pursuant to art.2 of the International Covenant on Economic, Social and Cultural Rights, should consider whether the state undertakes all the possible measures within the accessible resources to improve social conditions, as well as whether these measures are proportional to changes in the budget. According to him, if for instance when budgetary income increases and the amount of social assistance stay on the same level, the citizen has a right to demand increase in the amount through judiciary. The representative of the claimant stated, that state should undertake at least such measures that would ensure proper realization of the right to life.

According to the representatives of the claimant, judicial control of the methodology, the level and the amount, would not involve the judiciary in redistribution of budgetary resources. This would only be a control and protection of human rights through judiciary.

6. According to the representatives of the respondent, in order to access the judicial institution, one has to identify a right which he/she wants to protect through judiciary. In their opinion, right to social protection is not acknowledged in national law as an unconditional right, but rather as a support of the state, a manifestation of a good will.

According to the respondent, the impugned provision is not a prohibition of the right to access the court but rather should be viewed as a restriction, because the claimant can apply to the constitutional court. At the same time this restriction is proportional and constitutional, as the rights violated by the impugned provision can be protected in the constitutional court. The respondents are of the opinion, that art.42 of the Constitution does not protect choice of the persons to refer to both judicial institutions. It is important for the state to create effective mechanism for protection of a right, even if it be in one of the judicial institutions. This satisfies requirements of art.42 of the Constitution.

Prohibition of access to ordinary courts is justified according to the respondent by the following: a) The opportunity to access the constitutional court is allowed by the Law of Georgia on the Constitutional Court of Georgia, which stands on a higher hierarchical level than the Law of Georgia on Social Assistance; b) The opportunity to access the Constitutional Court is allowed by art.89 of the Constitution.

As for the legitimate purposes of the impugned provision, the respondent stated the following: a) the impugned norm prevents intersection of the competences of the constitutional and ordinary courts; b) contributes to efficiency of delivery of justice; c) contributes to effective protection of rights, the opportunity of which is higher in the constitutional rather in ordinary court, judging from the competences of the former.

Apart from this, on the hearing the respondent unambiguously indicated that protection of social rights by the judiciary may violate principle of separation of powers.

7. The witness on the case, Deputy Director of Social Service Agency – Mr. Tsamalashvili has explained the legal specifics of the methodology for assessment of socio-economic conditions, the level and the amount set by the Government. According to him social security comprises many components, including pension, discounts, tax discounts, shelters and others. Social assistance is one of such components, but not a necessary one. Social assistance is a kind of benefit which is given by the state within its available resources to those in need of such assistance. It is possible that there be no social assistance in a state. A different kind of benefit is pension, which is given on the basis of a right, independently of whether the beneficiary is acknowledged as poor or not.

The witness stated that there are different methods and schemes for distribution of social assistance in different countries. Each of them has its pros and cons. In Georgia a so called scoring system is used – a statistical method, that is based on assessment of welfare of a family, as of an economic unit.

According to Mr. Tsamalashvili this method, although does not guarantee 100% accuracy, but is nonetheless effective. It is a complex mathematical formula, which includes many variables, approx. 180 indicators, on the basis of which family welfare index is determined. In his opinion, the methodology is accurate in identifying target groups, but is inflexible for individual cases; in other words it does determine chronic poverty, but cannot reflect individual cases that are out of context.

The witness also mentioned that the methodology gets outdated in time, therefore there are works continuously to update it and this necessitates large administrative resources. Any changes in methodology should be a result of serious statistical research and analysis. The Department of statistics monitors 4000 families and the methodology refined on the basis of their conclusions.

Although the witness acknowledged theoretical possibility of judicial control of the methodology, he nevertheless stated three arguments which conclude in his opinion that judicial control will be unreasonable: a) this is related to complex researches which judiciary is not capable of undertaking. Apart from his, changes in methodology without prior researches may violate others rights; b) Social assistance is not a benefit based on a right and thus it is an exclusive competence of the government whom it will recognize as below poverty line and to whom it will provide support; c) A decision of a court on the basis of the impugned norm may radically increase beneficiaries of the assistance, which then may largely burden state budget.

II

1. Pursuant to art.42 of the Constitution “Everyone has the right to apply to a court for the protection of his/her rights and freedoms.”

The Constitutional Court has repeatedly stated that art.42 is an instrumental right, which ensures protection of rights and legal interests through judiciary. On the case of Citizen of Georgia Anatoly Kozlovsky vs. the Parliament of Georgia, the Constitutional Court established that realization of the right to access court “… requires existence of a right, protection of which conditions opportunity to access judiciary.”

Apart from this, art. 42 of the Constitution obliges the state to ensure access to court not only in cases of violation of a right, but in resolution of every issue, that directly or indirectly affects content and scope of a right. It should also be mentioned, that right to access court is not an absolute guarantee. The right can be restricted with conditions that are necessary in a democratic society for the legitimate purpose.

2. Prior to examination of the contention that the impugned norm violates the constitutional right, it is necessary to assess contents of the impugned provision itself.

Pursuant to art.22 of the Law of Georgia On Social Assistance “Assessment methodology of socio–economic conditions, as well as the level set by the Government of Georgia and the amount of social assistance is not subject to appeal.” We should consider a) what is the methodology for assessment of socio-economic conditions, as well as the level and amount?

b) What effect they have on the constitutional rights stated by the claimant? c) What kind of interference in constitutional right of fair trial is given by the words “is not subject to appeal”? and d) whether this interference is proportional ?

Assessment methodology of socio-economic conditions is a methodology for calculation of family welfare index with the purpose to register socially vulnerable groups in a database. The methodology is adopted by N126 Order, dated 4th August 2005 of the Government of Georgia. On the basis of this methodology a person applying for socially vulnerable status is given a rating score.

The level set by the Government is defined by marginal score, which denotes poverty line. Pursuant to art.7 of the Order N145, dated 18Th July 2006 of the Government of Georgia, the marginal score for receiving survival allowance is 57001. Pursuant to art.5 of the same order, the right to survival allowance is granted to a family, whose score is below the marginal score. Therefore, the impugned norm with respect to the level and the methodology covers only the allowance receivable by a family.

What concerns, the amount given in the Law of Georgia on Social Assistance: Survival allowance, family assistance, reintegration allowance and compensation for adoption of child is regulated by Ordinance regarding Social Assistance N145, dated 28th July 2006 of the Government of Georgia; The amount of Living subsidy by the Ordinance regarding Monetization of Social Allowances, N4, dated 11th January 2007 of the Government of Georgia.

3. As was mentioned above, in the claimant’s opinion the right, protection of which is prohibited by the impugned norm, is the right to social assistance and the right to social security. Apart from this, the claimant also alleges that the impugned provision contradicts art.42 of the Constitution in the cases when the methodology, the level and the amount set in accordance with the Law on Social assistance results in violation of the right of equality before the law or other fundamental rights.

4. As these rights are guaranteed by the international treaties, there scope and substance should be determined by analysis of relevant provisions.

Pursuant to art.9 of the UN Covenant on Economic, Social and Cultural Rights “The State Parties to the present Covenant recognize the right of everyone to social security, including social insurance.” Art.11 establishes “right of everyone to an adequate standard of living”. Art.12.1 of the European Social Charter also obliges the states to create and maintain social security system, while art.12.3 ensures progressive improvement of social security system.

5. The Constitutional Court has examined whether the impugned provisions threaten protection of the mentioned rights. The opinion of Justices has equally divided regarding justiciability of the right to social assistance and social security, in specific whether it should be allowed that the methodology, the level and the amount set in accordance with the Law on Social Assistance be appealed in court.

On the basis of the above mentioned, none of the opinions of the Justices can be authoritative to render the judgment on the issue. Dissenting Opinions of Justices Mrs. Ketevan Eremadze and Mr. Besarion Zoideze are attached to the Judgment.

6. Concurrently, the Court Board is unanimous regarding the necessity of access to court if other rights are violated on the basis of he impugned provision.

Prohibition of Discrimination and equality before the law is recognized as by the Constitution of Georgia, as well as by other treaties ratified by Georgia. In accordance with the Covenant on Economic, Social and Cultural Rights as well as with the European Social Charter, the state when realizes the rights guaranteed by these acts, is obliged to ensure effective protection against discrimination regarding realization of these rights.

Pursuant to art.2.2 of the UN Covenant on Economic, Social and Cultural Rights “ The States Parties to present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Therefore realization of social rights without discrimination is an independent right.

7. For the resolution of the dispute it is sufficient that there be relation between the mentioned secondary legal acts and the right to equality of law and a reasonable legal basis for a dispute. According to case-law of the Constitutional Court, as well as of the European Court of Human Rights, for there to be interference in the right to equality, it is necessary for there to be differentiated treatment of the persons who are in substantially similar condition.

At the same time, within the scope of this dispute the Court is unable to assess whether the methodology, the level and the amount set by the normative act is in conflict with the right to equality.

The secondary normative act defining the assessment methodology of socio-economic conditions, establishes criteria, on the basis of which the rating score is given to potential beneficiaries. This score determines according to the set level who will receive assistance. On the basis of the methodology categories of individuals are differentiated in order to identify potential beneficiaries; for example there is range of indexes calculated on the basis of individual’s sex, age, residence …etc.

It is possible that this kind of differentiation does have a reasonable and objective ground, which could pass non-discrimination test. However, it is beyond the scope of this dispute for the Court to assess this. Whether differentiated treatment amounts to discrimination should be assessed in individual cases by the relevant court.

In this case, the Court cannot eliminate possibility of differential treatment and possibility of reasonable dispute regarding discrimination. However, only within the scope of an individual case, competent court can assess, whether differential treatment on the basis of the methodology passes discrimination scrutiny. Therefore, right to access the court should be guaranteed as a mechanism for protection of right to equality.

8. Identically to the assessment of the methodology, the Court is unable within the scope of this dispute to examine whether the level and the amount set by the impugned act is in conflict with any of the constitutional rights – this is also to be examined by the competent court in individual cases.

Although it is true that in the absence of examination of constitutionality of lawfulness of the level and the amount, the presumption of their constitutionality is in force, but in case of dispute chances of their (un)conformity with the constitution and legislation is equal. Therefore in case the Constitutional Court concludes that these acts are constitutional, this would mean that there is not even a theoretical chance that the components of the impugned norm contradict any constitutional right. Such an examination is beyond the scope of the competences of the Constitutional Court, because: a) the dispute in the case is not regarding constitutionality of the methodology, the level and the amount; b) the issue of lawfulness is within the competence of ordinary courts.

On the basis of the above mentioned the Court holds that the impugned provision is not in line with the Constitution.

9. As the impugned provision dos not specify to which court it prohibits appeal, it should be assumed that it refers to both – as to ordinary courts as well as to the Constitutional Court of Georgia.

The respondents’ arguments in this regard are ill-founded, because of the following:

The fact that the respondent alleges conflict between art.39 of the Organic Law on the Constitutional Court of Georgia and art. 22.2 of the Law on Social Assistance, automatically means that the impugned provision prohibits access to the Constitutional Court. Naturally, prohibition of the impugned provision would not limit the Court to examine such constitutional claims, but this can only be done through resolution of the legal conflict.

It is not argued that in the process of application of law, a judge should use the act which stands on a higher hierarchical level, but this does not mean that below standing act is not in force. Pursuant to the Law on Normative Acts, a normative act loses force automatically only in two instances: a) if the term has expired for which it was adopted (art.50.1 (a)) b) The act adopted on the basis of a normative act which has been recognized as not valid has no force, independently whether it is recognized as such or not (art.50.4). In all other instances for a normative act to lose its force it is necessary to recognize it as invalid; this can be done through higher normative act (art.50.1(b)) or by the decision of competent state body (art.50.1(c)). In the case there are not the above mentioned grounds, therefore the provision should be acknowledged as being in force.

The Constitutional Court’s competence is limited by examining only constitutionality of normative acts, which differs from the competence of examining lawfulness of acts. If the Constitutional Court resolves constitutionality issue by referring to higher legal provision, it will not accomplish its function. By resolving the norm conflict through giving priority to the act standing on higher level of hierarchy, the Court will not examine the substance of the provision, but would instead be forced to examine constitutionality of the higher standing provision, otherwise it will not be able to justify conformity of the impugned provision with the Constitution by referring to the higher provision. By this the Court will go beyond the scope of the claim – it will examine not the impugned provision, but instead on the provision standing on higher level, (un)constitutionality of which is not alleged by the party. Apart from this, if the Court allows for such precedent it will oblige itself in future to examine in every case whether the impugned provision is in line with any of other provisions standing on higher level of hierarchy, which is a competence of the ordinary courts and would result in confusion of competences.

Apart from the above mentioned, if one accepts the arguments of the respondent, the impugned norm does not prohibit access to the ordinary courts, as pursuant to art.3.1 of the Organic Law on Ordinary Courts “Every individual has right to access court on its own or through representative to protects his rights and freedoms”. This is also an Organic Law and thus has a priority over the Law on Social Assistance.

Apart from this, the contention of the respondent, that art.3.2 of the Organic Law on Ordinary Courts, in contrast to Organic Law on the Constitutional Court of Georgia, by establishing that every person shall be judged by the court whose jurisdiction it belongs to, allows regulation of issues of jurisdiction and justiciability by other legal acts, including that of the impugned provision of the Law on Social Assistance, is ill-founded. Analysis of the legislation does not allow for such a conclusion. Pursuant to art.1.2 of the Organic Law on Ordinary Courts “Justice is a form of realization of judicial authority and it is exercised through civil, criminal and administrative proceedings by ordinary courts”. Art.2 of the same law establishes system of ordinary courts. Taking this into account, art.3.2 means only that a person, who refers to ordinary courts for the protection of his/her rights, is obliged to refer to the courts of relevant jurisdiction i.e. cases are distributed in the system and among the courts on the basis of types of the cases. Therefore, jurisdiction according to art.3.2 refers to the rule of distribution of cases in the ordinary court system. This is substantially different from prohibition of competence to review certain kind of cases in ordinary courts.

Apart from this, the Code of Administrative Procedure also points to the competence of the ordinary courts to review disputes raised by the impugned provision, in specific art. 2.1(a) establishes that: “Subject of administrative dispute at the court may be: a) conformity of administrative act with the legislation”. This provision does not state any exception regarding prohibition of appeal of secondary normative acts and at the same time the impugned norm cannot take precedent over it, as any conflict between these norms should be resolved in favor of the one adopted later (the impugned provision is adopted on 29th December, 2006, while the provision of the administrative procedural code 28th December, 2007).

On the basis of the above mentioned, the impugned provision cannot impede person to apply to the constitutional as well as to ordinary court.

Furthermore, it is absolutely groundless to refer to art.89 in order to claim, that the impugned provision could not prohibit what is guaranteed by the Constitution. Similarly to art.89, access to the court guarantee is established by art. 42.1. It is not logical to claim constitutionality of a provision, by referring to the fact of existence of the provision, with respect to which the impugned norm is examined.

On the basis of the above mentioned, the impugned provision taken independently, prohibits appeal of the methodology, the level and the amount without any exception as to the constitutional as well as to the ordinary courts.

10. Thus through analysis of the impugned provision we have found out that: a) Risk of interference by the methodology, the level and the amount in human rights cannot be theoretically all together eliminated; b) The impugned provision, taken independently, excludes possibility of appeal of the methodology, the level and the amount in constitutional and ordinary courts. In light of this, in order to conclude regarding the constitutionality of the impugned provision, the legitimate aim stated by the respondent and issues of proportionality should be examined.

11. In the opinion of the representatives of the respondent, as the Law on Social Assistance gives full discretion to Government to regulate issues raised by the impugned provision, examination of lawfulness in ordinary courts of the methodology, the level and of the amount would be possible only with respect to the Constitution, and is the competence of the Constitutional Court of Georgia. Furthermore, the respondent excludes any possibility of examining disputed issues in ordinary courts with respect to international treaties, as he claims that international treaties does not constitute part of the legislation of Georgia. Pursuant to art.2.1 (a) of the Code of Administrative Procedure, subject of an administrative dispute in a court of law can be conformity of administrative act with the legislation of Georgia. All these mentioned, excludes possibility of appeal in ordinary courts of Georgia as alleged by the respondent.

These arguments of the respondent are groundless because of the following:

a) Although it is true that the legislator grants wide discretion to the government for regulation of the issues raised by the impugned provision, but that does not give basis to claim that, generally, exercise of discretionary powers by government is not subject to judicial control at all. Delegation of powers does not mean that exercise of the delegated powers is beyond the scope of the judicial control. It is true, that delegation of powers without material standard or specific criteria, makes judicial control more difficult, but this does not exclude judicial control.

b) The ordinary court examines conformity of secondary normative acts not only with respect to specific laws, but generally with respect to legislation. Therefore, while examining the methodology, the level and the amount of social assistance with respect to legislation, a court will not limit itself only with the Law on Social Assistance. The respondent could not provide evidence that would exclude possibility of examining the secondary normative acts with the legislation. It would be unjustified to allege, that none of the laws or secondary acts give any ground or criteria to examine lawfulness of exercise of this competence. This could be ascertained only by the ordinary court. Therefore, the Constitutional Court cannot exclude possibility of judicial examination of issues raised by the impugned norm with respect to certain legal act.

c) It is noteworthy, that within the scope of administrative proceedings, it is possible to examine impugned orders with respect to international treaties. Respondent’s argument, that international treaties do not constitute the legislation of Georgia is also not justified. According to their interpretation, pursuant to art.5 of the Law on Normative Acts, international treaties do not constitute part of the legislation of Georgia, as on the basis of the mentioned provision, the legislation of Georgia is comprised of legislative and secondary normative acts (paragraph 3), and pursuant to first paragraph of the same article, international treaties and conventions ratified by Georgia do not constitute legislative acts of Georgia.

Pursuant to art.6.1 of the Law of Georgia on International Treaties of Georgia “International Treaty of Georgia is part of the legislation of Georgia”. We think that these two laws should be read together, especially in light of the fact that the Law on Normative Acts does not contain prohibitive provision - direct statement that international treaties are not part of the legislation of Georgia.

Therefore, as the Constitutional Court cannot exclude possibility of examination of conformity of the methodology, the level and the amount with respect to the legislation and at the same time there is a reasonable legal basis for examination of their conformity with the international treaties, the arguments of the respondent become groundless, that in case of appeal of these components in ordinary courts, the latter would examine them with respect to the Constitution and this would result in interference in the competences of the Constitutional Court.

Therefore, as there is no possibility for duplication of the competences of the constitutional and ordinary courts, this falls short to be a legitimate aim for the impugned provision. Furthermore interference in the right without any legitimate aim is sufficient to hold that interference is not proportional.

12. Apart from this, the claim of the respondent, that custom fee at the Constitutional Court is lower than at the ordinary courts, does not give ground that freeing from high fee be viewed as a legitimate aim for prohibition of access to court.

Avoidance of expensive justice loses its significance if exercise of justice is altogether rejected. Low cost justice is unarguably a legitimate aim for ensuring effective right to access to judiciary. However, rejecting the right to access court altogether cannot be a justification for this legitimate aim.

13. It is also groundless to justify prohibition of access to ordinary courts by the argument that constitutional court offers more effective remedy. This cannot be deemed as a legitimate aim either, because constitutional and ordinary courts offer different legal remedies and cannot be viewed as alternatives of each other. In this respect, the Court would only emphasize the following:

Pursuant to art.39 of the Organic Law on Constitutional Court of Georgia, the constitutional court rules on conformity of only normative acts with respect to the Constitution and only in those cases when there is a violation of the rights guaranteed by the second chapter of the Constitution or there is a direct threat of such a violation.

The Constitutional Court of Georgia in each individual case, while ruling on the admissibility of the case on examination on merits, should examine among other issues whether violation of the right, which is alleged by the party, is a right guaranteed by the second chapter of the Constitution, especially when the case concerns social rights, as the catalog of these rights is rather limited in the Constitution of Georgia.

As we mentioned above, issue of acknowledgement of certain social right as a constitutional right should be resolved within relevant dispute. If the Constitutional Court holds that the right is not a constitutional one, or there is no relation between the impugned provision with the constitutional right, the Court will not admit the case on merits. Therefore, the respondent’s argument that the methodology, the level and the amount being subject to appeal only in the Constitutional Court is sufficient for holding the impugned provision constitutional, is groundless, as the Constitutional Court may not even admit the case on merits, if it concludes that there is not relation between the impugned provision and the constitutional right.

In the ordinary courts it is possible to examine lawfulness of the issues raised by the impugned provision with the law as well as with international treaties.

The results of the proceedings at the Constitutional and Ordinary courts also differ. The Constitutional Court recognizes unconstitutional acts as void ex nunc, while at the ordinary courts applicant may require to recognize act void ex tunc also.

14. Therefore, the constitutional and ordinary courts have different competences; they offer different legal remedies and substantially different results.

In light of this, appeal in one of them cannot be deemed as an alternative for another, cannot substitute it and cannot guarantee full legal remedy for violation of a right. Therefore, prohibition by the impugned provision of appeal only to ordinary courts is already an interference with the right to access court. Furthermore, as the above mentioned arguments demonstrate the interference with the right cannot be justified by the mentioned purposes being legitimate, naturally interference with this motive cannot pass proportionality muster.

15. On the basis of all the above mentioned, the impugned provision is not in conformity with the art.42.1 of the Constitution, because it precludes access to court in case of violation of the right to equality or other fundamental rights.

III

On the basis of art.89.1(f) of the constitution of Georgia, art. 19.1(e), art.21.2, art.23.1, art.25.2 and art.25.3, art.39.1(b), art.43.2,4,7,8 of the Organic Law on Constitutional Court of Georgia and art.32 and art.33 of the Law on Constitutional Proceedings,

the Constitutional Court
r ules:

1. Public Defender’s constitutional claim be UPHELD and art.22.2 of the Law on Social Assistance be recognized an unconstitutional with respect to art.42.1 of the Constitution of Georgia;

2. Art.22.2 of the Law on Social Assistance shall be recognized as invalid from the moment of publication of this judgment;

3. This judgment is in force form the moment of public announcement of it on the Constitutional Court Hearing;

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

5. The copy of the judgment shall be sent to the parties, the President of Georgia, the Government of Georgia and the Supreme Court of Georgia;

6. The judgment shall be published in Georgia’s Legislative Bulletin within 15 days.

Members of the Board:

Konstantine Vardzelashivili ,

Vakhtang Gvaramia,

Ketevan Eremadze,

Besarion Zoidze .

Dissenting Opinion of the members
of the Constitutional Court – Ketevan Eremadze and Besarion Zoidze - regarding reasoning part of the judgment N1/2/434, 27th August 2009 of the First Chamber of the Constitutional Court of Georgia

We express our respect to the Members of the First Chamber of the Constitutional Court of Georgia and at the same time on the basis of art.47 of the Organic Law on the Constitutional Court of Georgia and art. 7 of the Law on Constitutional Proceedings present our dissenting opinion regarding the reasoning part of the Judgment N1/2/434, 27th August 2009.

1. We fully agree with the reasoning given in the judgment and think that it is a sufficient ground for recognizing art.22.2 of the Law on Social Assistance as unconstitutional, however we think that the impugned provision in the first place affects the rights of social assistance and of social security and creates threat of their violation, and we think this to be the main ground for unconstitutionality of the provision. It is also noteworthy that claimant applied to the Constitutional Court mainly to resolve this problem. Pursuant to the law, the Court is obliged to resolve all the issues admitted on merits, independently of their difficulty.

2. Pursuant to art.42.1 of the Constitution “Everyone has the right to apply to a court for the protection of his/her rights and freedoms.” This provision establishes right to fair trial, the contents and scope of which has been interpreted extensively by the court. “Right to fair trial is one of the most important mechanisms, which regulates dispute relations between the individual and state as well as between private individuals, ensures effective realization of constitutional rights and protection from unjustified interference in rights”. (Judgment of the Constitutional Court of Georgia N1/1/403, 19th December 2008 on the case of Citizen of Georgia Elena Kirakosiani and Citizen of Canada Husein Ali vs. the Parliament of Georgia). The right to fair trial in the first place means appeal and legal assessment in court of all the decisions (actions) of the state authority, which violates human rights. From this perspective, realization of the right to fair trial “is related to the principle of rule of law and substantially defines its content” (Judgment of the Constitutional Court of Georgia N1/3/393,397, 15th December 2006 on the case of Onise Mebonia and Vakhtang Masurashvili vs. the Parliament of Georgia). As the first function of the state under rule of law is full realization and adequate protection of human rights and freedoms, the right to fair trial, as a measure of realization of the principle of rule of law, means possibility of protection of all the interests in the judiciary, which constitutes rights. It is unequivocal that art.42 of the Constitution grants every person right to access court for the protection of his/her not only constitutional, but as well as right guaranteed on the level of legislation and international treaties. The most important guarantee for realization of any right is possibility of its protection in the court of law. If there will not be possibility of prevention of violation of a right or compensation for a violation, the rights itself will be under question. Therefore, prohibition of access to court or unjustified restriction of it not only violates right to fair trial, but threatens also those rights for the protection of which it is prohibited to access judiciary.

For this reason art.42 does not differentiate among rights, does not restrict application of it to certain rights and does not enable the legislator to leave some rights without judicial protection. At the same time, this constitutional restriction does not apply only to the legislator. None of the branches of authority can differentiate rights on the basis of justiciability.

Therefore, if there is a right, pursuant to art.42 of the constitution there is right to its protection in the court of law.

3. Another issue is to what extent individual can exercise his right to fair trial. The Constitutional Court has stated number of times, that right to fair trial is not an absolute right. In connection with this, the European Court of Human Rights has established that right to fair trial requires regulation from state, which may differ according to time and place, according to needs and resources. Apart from this, ECHR has defined general scope of restriction of the right on the case of Ashigdane v. UK: the restriction should serve legitimate purpose and there should be reasonable proportionality between the means and ends. The Constitutional Court of Georgia assesses interference with rights, including with the right to fair trial on the basis of this principle. It is necessary to satisfy these conditions, as restriction on rights should not be stretched to the extent so that the core of the right is violated.

4. The scope of the right to fair trail is also delimited by the contents of the right for the protection of which an individual access the court. While protecting a specific right in judiciary, an individual cannot demand more than it is guaranteed by the right. Therefore, the scope of protection of a right in court is conditioned by the scope of the right to be protected.

5. According to the claimant, the impugned provision prohibits protection of right to social security and of social assistance in the court of law.

Therefore within the scope of this dispute we should establish: a) whether the rights to social security and to social assistance are guaranteed on the level of legislation; b) whether the impugned provision provides a threat to the protection of these rights.

6. Generally, social rights are recognized as “expensive rights”, realization of which, in contrast to political and civil rights, is mainly dependent on state budget. Therefore states approach to recognition of social rights is rather cautious. It is quite often that there are restricted numbers of social rights in the Constitutions of range of countries. The approach to right to social security and to social assistance is also not consistent. From this perspective, concrete measures of the state in social sphere are recognized as states support. Similar point is made also in art.5 of the Law on Social Assistance.

In the current dispute it is not the task of the Constitutional Court to find out which social rights are guaranteed by the Constitution and which not, as well as not to rule on whether the rights to social security and right to social assistance are guaranteed by the Constitution; furthermore this is not required by the claimant as well. These issues should be dealt in individual cases. In the current case it is sufficient to find out whether the rights to social security and to social assistance are rights guaranteed by the Georgian legislation and whether there is a possibility of violation of these rights on the basis of the impugned provision.

Recognition of social security and of social assistance as rights by range of international treaties is a sufficient ground for creation of state obligation to ensure protection of them. Georgia by ratification of certain international treaties, independently of the impugned provision of the Law on Social Assistance, has recognized social assistance and social security which is not argued by the respondent either.

7. In international treaties that acknowledge the right to social security, there are declaratory provisions (art.9 of the International Covenant on Economic, Social and Cultural Rights, art.12 of the Social Charter of Europe) as well as provision defining its content (UDHR art.22 and art.25).

The right to social security includes also right to adequate standard of living. However this latter carries also some aspects of the right to social assistance. This right is defined by art. 11 of the International Covenant on Social, Economic and Cultural Rights, as well as by art.27 of the Convention on Child’s Rights.

8. Similarly to other rights, the right to social security is guaranteed by corresponding responsibilities of the state.

Similarly to Civil and Political Rights, Economic, Social and Cultural Rights oblige states to respect, protect and realize the rights. Obligation of respect requires from state to restrain itself from unjustified interference with the right, obligation of protection – prevent violation of these rights by third persons; Obligation of realization –adequate legal administrative, budgetary, judicial and other measures for the full realization of rights.

At the same time, all the obligations ensuring realization of right are coming from the characteristics of the right itself. Therefore burden on the state is different in case of civil and political rights and in case of social rights.

9. The state obligations regarding social rights are stemming from the principle of social state. Although it is true that principle of social state is guaranteed in the preamble of the constitution as a social goal of the state, but this does not give grounds for claiming that this principle is only a declaratory one, a programmatic provision, which does not carry any obligations of state. The constitution, the main function of which is to define frame of relation between the state and society, cannot contain unrealistic goals. From this perspective, inexistence of some obligations, questions the goal itself.

However at the same time, there is no answer in the Constitution regarding when and how should the purpose of social state be achieved. This principle obliges the state, but does not state how it should be fulfilled. Otherwise it would have threatened principle of democracy, as formation of political will would not have been done through choice among alternative ways, but through constitutional obligation. Therefore, the principle of social state gives wide discretion to the state regarding what it should do in this direction; set the priorities i.e. independently choose methods for achieving the purpose.

In general, the principle of social state serves the purposes of security, human dignity and freedom of individual. From this perspective, this is a constant purpose of the state. Because of this the main rationale behind the principle is the following: a) creation of social security; b) achievement of social justice; c) guarantee of minimal standard of living; d) establishment of general well-being in society. However there is a common agreement regarding the priority of necessary and fundamental measures to be undertaken in this direction; these are the following: 1) recognition of social rights in the legislation; 2) to provide elementary living conditions in case of incapacity and poverty of individuals. From this perspective, for practical realization of the principle of social state, an unconditional obligation of the state is constant progress. Here the state does not have right of choice, as choice in this case means choice between creation of social state or altogether rejecting it.

10. With respect to socio-economic rights, obligations of state are given in range of international documents. Pursuant to art.2 of the International Covenant on Economic, Social and Cultural Rights “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”. These conditions, although on the one hand indicate that socio-economic rights are programmatic and gradually realizable rights, but on the other hand, establish state’s specific obligations.

The wording of “available resources” does not mean possibility for the state to constantly indicate on not having enough resources to ensure social rights and does not give right to refuse to fulfill the minimum obligations. Inability to deliver obligations does not mean inexistence of such obligations. If the Covenant would not create minimum obligations for state, it would lose its significance.

State’s obligations may vary within defined scope, but it is important that state act in good faith to satisfy these obligations.

“Progressive realization” naturally indicates that realization of socio-economic rights cannot be achieved with one step and within very short time, as it is organically dependent on available resources. However, this does not in any case mean that the obligation does not have concrete substance. It obligates states to undertake measures to realize social rights within the possibly short period of time.

“The obligation ‘to achieve progressively the full realization of the rights’ requires States parties to move as expeditiously as possible towards the realization of the rights. Under no circumstances shall this be interpreted as implying for States the right to defer indefinitely efforts to ensure full realization. On the contrary all States parties have the obligation to begin immediately to take steps to fulfill their obligations under the Covenant.” (The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights UN doc. E/CN.4/1987/17, Annex; and Human Rights Quarterly, Vol. 9 (1987), pp. 122–135)

The international treaties oblige the state to progressively fully realize the rights – i.e. this is a fully achievable purpose, which obliges the state of constant progress in this sphere. The states should systematically care to make resources available, make concrete and real steps, so that there be positive dynamics with respect to social rights and this is irreversible. “Otherwise the international obligations of states is pointless, which means that states actions in this direction should have stability and be of evolving character and be distinct with positive dynamics” (The Judgment of the Constitutional Court of Georgia N1/3/136, 30th December, 2002).

11. On the basis of the above mentioned, it should be taken into account that it is impermissible to talk about the obligations of state in cases when the individual does not make all the necessary to realize his/her abilities. The pre-condition for having the rights is that the individual makes all the possible within his abilities to use its property and abilities to ensure adequate standard of living.

It should be mentioned that the state does not have obligation to care about individuals, to deliver to them material resources, needless to say to provide luxury to them. State is obliged to create such an environment that individuals have possibility of self-realization. Obligation of additional support is only in those cases, when an individual independently of his actions is unable to take care of himself or the resources at hand to him are not sufficient.

12. Whether a person would benefit from the right to social assistance, in this specific case by survival allowance, is directly related to the assessment methodology of socio-economic conditions, because exactly this is a mechanism for calculation of family welfare index, on the basis of which a rating score given to a family decides the issue of receipt of survival allowance. Therefore, it has a substantial importance, what is the methodology, whether it gives an accurate possibility to identify the person really in need of this allowance.

According to the Law on Social Assistance, survival assistance is given to so called “poor families”. Despite that the word poverty involves estimation and the criteria of its definition may vary, it is unarguable that in this category there are definitely people who do not have elementary living conditions and are faced with real threat to their physical existence. On the basis of this, state’s resources cannot be a factor defining poverty. Recognizing this as criteria automatically means that state which does not have resources for social assistance of those below poverty line, or directs available resources to other priorities, does not have poor people and does not have need for social assistance and social security.

Poverty is assessed no by state according to its available resources, but according to real situation of an individual, where a minimum threshold is individual’s being on margin of physical existence. Therefore it is of decisive importance, on the basis of what principles and what components the methodology is being developed.

Within the scope of this case, the methodology is not subject of the dispute, therefore the Court cannot assess whether it really reflects conditions of individuals living below poverty line. However, it cannot be excluded that the methodology may contain threat to rights, which is confirmed by the witness as well. A mere error in the methodology caused by unintentional mistake or intentionally, may affect possibility for the person on the margin of poverty to receive survival allowance. Assistance may be given to a person who should not be in the category of beneficiaries, or alternatively those really in need may be left out of support. At the same time, the methodology may contain risk of discriminating among those in substantially equal conditions. Furthermore, as methodology is a constantly updated document, one cannot rule out a possibility of it changing in a negative direction to human rights.

13. According to the witness on the case, the level given in the impugned provision is established only on the basis of state resources. Therefore it can change and may change negatively. In specific, a rating score can be downgraded, which means that some category of individuals who were recognized as being below poverty line may not receive assistance any more. They may be left out of the assistance not because their situation has improved, but for the reason that state has set different priorities and elimination of poverty has been given a lower priority to other goals. Therefore, the level (its change) may affect right to social assistance.

The issue regarding ability of the state to take effective social measures does not rebut need for social assistance and existence of this right.

14. What concerns the amount of social assistance, of course, there is no right for a set amount. An amount of social assistance is a practical realization and substance of right to social assistance. As an individual has right to social assistance and social security, they should have real substance. If state’s assistance does not change anything and he/she cannot have elementary living conditions, the right is not realized. From this perspective, in case of monetary assistance, its amount has decisive importance. It is important that assistance do not have a symbolic character.

15. On the basis of the above mentioned, the impugned provision affects rights of social assistance and social security. When there is a risk of interference with right by the methodology, the level and the amount there should be right to access court of law as guaranteed by art.42 of the Constitution. Regarding the issue we fully agree with the reasoning provided in Para 8 of the Judgment.

16. We also fully agree with the position of the Constitutional Court of Georgia, that purposes for interference in the right stated by the respondent could not be deemed as legitimate ones, which is why we think that interference on the basis of that purposes in the rights of social assistance and social security could not be recognized as proportional and in line with the Constitution.

17. Apart from this, we think it is important to emphasize the following:

Despite the fact, that the respondent mainly supported his claim by the argument that the methodology, the level and the amount is subject to appeal to the constitutional court, he also stated during the proceedings that generally judicial review of this type of cases may violate principle of separation of powers.

Judiciary has an important role in full realization of the principle of separation of powers– it, on the one hand, is a means for the individuals to protect themselves from arbitrariness of state, and on the other hand, an additional means for the state to ensure functioning of the branches within their relevant competences. However, this cannot be achieved if the judiciary it does not fulfill its role or if it oversteps its competences. Therefore it should be clearly stated where the line is drawn in terms of judicial institution’s powers and obligation following from the principle of separation of powers.

Naturally, because of nature of social rights, adjudication of this right in judiciary requires from this latter special caution and self-restraint in order not to violate principle of separation of powers. However, though it can be the case that a court in an individual case may not act within the limits of the principle of separation of powers, however it is not an argument for altogether rejecting the judicial control in this sphere. In each individual case the court should decide how to act within the scope of this principle, and any incorrect decision in this regard is a problem of lawfulness.

The principle of separation of powers requires on the on hand independence of branches of authority, clear line between their respective competences. In this respect, naturally judiciary does not have authority to substitute legislative or executive authority, resolve the issue within their competences and in case of unlawfulness substitute decision of political authority with its opinions. Judiciary cannot impose its position to government regarding what is correct economic and social policy.

Obligation of the judicial institution is to examine constitutionality and lawfulness of decisions of political authority, which is in principle different from resolving the issue or substituting its judgment. Judiciary examines and establishes violation of constitution and legislation. Therefore judiciary is bound by resolving a legal and not a political issue, which itself follows from the principle of separation of powers.

At the same time, the principle of separation of powers requires mechanisms of checks and balances. When decision-making, their execution and control on the process is a prerogative only of the political authority, then the requirements of the principle of separation of powers are not met. In such case, there is no legal protection against states arbitrariness, abuse of power or at least from an error. This is against the principle of legal certainty. Taking social rights out of the judicial review, the political branch is given absolute freedom regarding making certain decisions or executing them. If the political branch would be itself a sole examiner of the measures undertaken to solve vital problems of individuals, then it will be under question whether it will make all the necessary decisions, or whether it will realize those decisions.