Composition of the Board:

Besik Loladze – President of the Session, Judge Rapporteur;

Otar Sichinava – Member;

Lali Papiashvili – Member.

Secretary to the session: Darejan Chaligava.

Title of the case: Citizen of Georgia Vakhtang Tskipurishvili v. the President of Georgia.

Subject of the dispute: Constitutionality of Ordinance of the President of Georgia of 28 February 1996 #197 “On the Urgent Measures of Restoration and Reconstruction of Accommodation Buildings and Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi”; of Ordinance of the President of Georgia of 1 December 1997 #704 “On Partial Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi”; and of Resolution of the President of Georgia of 26 July 1996 #180 “On the Programme of Restoration and Reconstruction of Accommodation Buildings and Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi” in terms of Articles 6(2), 21(2-3) and 42(9) of the Constitution of Georgia.

Participants of the case: Citizen of Georgia Vakhtang Tskipurishvili, claimant.

I

1. On 4 October 2007 a constitutional claim of citizen of Georgia V. Tskipurishvili v. the President of Georgia was registered in the Constitutional Court of Georgia (registration number 438). With the view of deciding about the admissibility for the consideration of the meritsN438 constitutional claim was referred to the Second Board of the Constitutional Court of Georgia under the Resolution of the President of the Constitutional Court of Georgia of 31 October 2007.

2. Article 89(1)(a, f) of the Constitution of Georgia; Article 19(1)(e), Article 31(1-2), Article 39(1)(a-b)(2) of the Organic Law “On the Constitutional Court of Georgia”; Article 51(1-3) of the Law of Georgia “On Normative Acts”; Article 10(1) and Article 16 of the Law of Georgia “On Constitutional Legal Proceedings” are referred to in the constitutional claim as the ground for the application to the Constitutional Court.

3. According to the constitutional claim, during December-January events of 1991-1992 claimant V. Tskipurishvili was robbed off an automobile owned by him.

4. #197 Ordinance of the President of Georgia of 28 February 1996 “On the Urgent Measures of Restoration and Reconstruction of Accommodation Buildings and Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi” does not provide for the compensation of the damage coused by a robbery of an automobile. In the claimant’s view the aforementioned amounts to the violation of Article 6(2) of the Constitution of Georgia. The aforementioned provision stipulates that the legislation of Georgia corresponds to universally recognised principles and norms of international law. The claimant invokes Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms as well as the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by UN General Assembly Resolution 40/41 of 29 November 1985 (Annex a) “victims of the crime”, Articles 1-2).

5. The claimant believes that #197 Ordinance of the President of Georgia of 28 February 1996 contradicts Article 21(2-3) of the Constitution of Georgia due to the failure to apply to the persons being robbed off their automobiles by illegal formations.

6. The claimant also points out that Ordinance of the President of Georgia of 28 February 1996 #197 contradicts Article 42(9) of the Constitution of Georgia.

The failure of the impugned provision to comply with Article 24(9) of the Constitution is allegedly caused by the refusal of the court of general jurisdiction to compensate the damage to the claimant since it is not provided for by the respective acts of the President and found that the abovementioned fell within the realm of criminal law.

7. With regard to #704 Ordinance of the President of Georgia of 1 December 1997 “On Partial Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi” the claimant observes: “The contents of the aforementioned Ordinance once more prove that the issue “attempted” to be regulated by the author of the Ordinance yet again fail to provide for the requirements of Article 6(1-2), Article 21(2-3), Article 42(9) of the Constitution”. It is not clear from the constitutional claim as to how exactly the violation of the aforementioned provisions of the Constitution is displayed.

8. The constitutional claim fails to adduce evidence to substantiate the unconstitutionality of #180 Resolution of the President of Georgia of 26 July 1996 “On the Programme of Restoration and Reconstruction of Accommodation Buildings and Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi”. The claimant only observes that the Law of Georgia “On Normative Acts” does not provide for a normative act under the title of a “resolution”.

9. In the constitutional claim the claimant also emphasises the violation of the requirements of the Law of Georgia “On Normative Acts”. The impugned acts are not registered in the State Register of Normative Acts and are not assigned a state-registration code. In the claimant’s opinion, therefore, the impugned acts are null and void stemming from the Law of Georgia “On Normative Acts”.

10. The claimant attached documents to the constitutional claim, which, in his opinion, consolidate the arguments presented in the constitutional claim. These are the following documents:

#183 Order to the Mayor of Tbilisi adopted by the Cabinet of Ministers of the Republic of Georgia on 26 January 1993; #c-274 Letter to citizen V. Tskipurishvili, issued by the Deputy President of Mtatsminda District Gamgeoba of Tbilisi City Municipality’s City Management on 23 February 1993; letter #12/5/5/2-c-16 to citizen V. Tskipurishvili issued by the Head of Information Provision and Analysis Division of Information and Analysis Department of the Ministry of Internal Affairs of Georgia adopted on 24 March 2005; the minutes of Governmental Commission’s hearings (#2 (5/39) – 5 March 1996, #4 (7/39) – 19 March 1996, #5 (10/39) – 26 March 1996, #6 (11/39) – 2 April 1996) held on restoration and reconstruction of accommodation buildings and compensation of material damage of the population suffered from the December-January events of 1991-1992 in Tbilisi; application of citizen V. Tskipurishvili of 5 September 2007 to the Head of the Administration of the President of Georgia;#6944 Letter to citizen V. Tskipurishvili issued by the Head of Correspondence, Coordination, Analysis and Processing Office of the Administration of the President of Georgia issued on 24 September 2007; Application of citizen V. Tskipurishvili of 28 august 2007 to the Minister of Justice of Georgia; Letter #01/27/01-2234 to Citizen V. Tskipurishvili issued by the Head of Processing Department of the Ministry of Justice of Georgia on 3 September 2007; Application of citizen V. Tskipurishvili of 12 September 2007 to the Head of Processing Department of the Ministry of Justice of Georgia; Letter of 24 September 2007 to Citizen V. Tskipurishvili issued by the Head of Processing Department of the Ministry of Justice of Georgia.

11. The administrative oral hearing of the Second Board of the Constitutional Court was held on 16 April 2008. The claimant observed that his house was not damaged during the December-January events of 1991-1992. He requests, however, that the damage be compensated to those individuals who during the events at stake suffered a damage of another kind. The claimant supposes that the declaration of unconstitutionality of the impugned acts by the Constitutional Court will bound a court of general jurisdiction to adopt a decision to the effect of compensating the damage inflicted to him.

12. At the administering hearing the claimant observed that he suffered the damage from State officials and particularly from the members of the Military Council. However, no evidence has been adduced to substantiate the claim that either he was robbed off the car or State or local Self-Government officials were involved in that.

13. The reference in the constitutional claim to the Law “On Normative Acts” was substantiated by the claimant with the argument that the Constitutional Court is entitled to hold the impugned legal acts null and void in accordance with Article 51(2-3).

14. At the Court hearing the claimant took out Article 89(1)(a) of the Constitution of Georgia and Article 39(1)(b) of the Organic Law of Georgia “On the Constitutional Court of Georgia” from the ground for application to the Constitutional Court.

15. At the Court hearing the claimant as an additional evidence, presented to the Court a decision of 26 April 2002 adopted by the Board of Administrative and Tax Issues of the Regional Court of Tbilisi, which defined solidarity responsibility of the Ministry of Finance of Georgia and the City Hall of Tbilisi to pay the relevant compensation to 157 victims of December-January events of 1991-1992. In the claimant’s view the aforementioned judgment of the court and upholding his claim proves the fact of inflicting damages to the population in December-January of 1991-1992.

16. The claimant reduced the claim at the administrative hearing. Namely the claim was decreased in terms of the constitutionality of #180 Resolution of the President of Georgia of 26 July 1996 “On the Programme of Restoration and Reconstruction of Accommodation Buildings and Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi”.

II

1. Under Article 16(1)(e) of the Law of Georgia “On Constitutional Legal Proceedings”, a claimant is obliged to adduce evidence, which in his/her opinion substantiate the reasoning of the constitutional claim. In the light of the jurisprudence of the Constitutional Court the pieces of evidence submitted by a claimant are to meet certain standards. Namely, a claimant is requested to argue how the contradiction between the impugned provision and constitutional norm invoked is manifested. The reasoning of a constitutional claim must be relevant in terms of the contents of an impugned provision. If there is no such argumentation, a constitutional claim is manifestly ill-founded (#2/3/412 Ruling, 5 April 2007).

2. The impugned acts provide for certain measures for the restoration and reconstruction of accommodation buildings and compensation of material damage of the population suffered from the December-January events of 1991-1992 in Tbilisi. As it appears from the constitutional claim and administrative hearing, the claimant does not belong to the group of individuals whose accommodation buildings were damaged. Stemming from this, there is not even a potential threat that the impugned provisions present to the claimant. The argumentation submitted by the claimant, apart from being contradictory and obscure, is neither linked to the impugned acts in terms of the contents. Therefore, the head of the constitutional claim, which concerns the constitutionality of the impugned acts with regard to Article 21(2-3) of the Constitution of Georgia does not meet the requirements of Article 16(1)(e) of the Law of Georgia “On Constitutional Legal Proceedings”.

3. The same can be observed with regard to the claimant’s argument on the relation of the impugned acts with Article 42(9) of the Constitution. The impugned acts do not regulate the compensation of illegal damage inflicted by State or self-government bodies/officials. Again the argumentation submitted in the constitutional claim is not related to the impugned provisions in terms of the contents.

4. The claimant raises the constitutionality of the impugned acts with regard to Article 6(2) of the Constitution of Georgia. The Claimant applies to the Constitutional Court as a citizen. Under Article 39(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, a citizen can lodge a constitutional claim with the Constitutional Court, where he/she believes that his/her rights and freedoms recognised by Chapter Two of the Constitution of Georgia are infringed or may be directly infringed upon. Article 6 does not fall within Chapter Two of the Constitution. Therefore, the claimant is not an authorised subject to raise the constitutionality of the impugned acts with regard to Article 6(2) of the Constitution of Georgia.

5. As mentioned, the claimant does not qualify as affected by the application of the impugned acts. The claimant himself maintains that. He suffered damage not because his accommodation building collapsed or was otherwise damaged but due to the robbery of his owned automobile. It is to be mentioned, however, that the claimant has not produced any official document, which would prove the aforementioned fact. The claimant likewise failed to prove the fact that he suffered damage from an illegal action of a State or self-government bodies/officials. Therefore, the claimant failed to substantiate that the impugned acts violate or can directly violate in the future his rights and freedoms recognised by Chapter Two of the Constitution, which would enable him to apply to the Constitutional Court.

6. In accordance with Article 89(1)(f) and Article 19(1)(e) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, the Constitutional Court examines the constitutionality of normative acts with regard to the basic rights and freedoms recognised by Chapter Two of the Constitution of Georgia. The Constitutional Court, therefore, when exercising these competences only considers the constitutionality of normative acts and not of any legal acts. In the light of the jurisprudence of the Constitutional Court (#1/7/436 Ruling, 9 November 2007) in order to decide about the normativity of a legal act the Court should bear in mind not only formal but substantive specifications as well. The Board accepts this approach. A legal act may be formally issued/adopted as a normative act but the act or its major part may fail to qualify as a normative act due to its substantive contents. There is a possibility for a different instance, where an act might be issued/adopted in the form of individual legal act but have normative contents. There can be cases, where the body which used to issue a normative act no more exists, is no more entitled to issue a normative act or issues a normative act but in another form. The normative acts of certain category are therefore taken out from the list of normative acts provided for by the Law of Georgia “On Normative Acts”. All mentioned above does not prevent the Constitutional Court from considering the constitutionality of an which has not ceased its legal effect and continues to apply.

7. Under #197 Ordinance of the President of Georgia of 28 February 1996 “On the Urgent Measures of Restoration and Reconstruction of Accommodation Buildings and Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi”, the President of Georgia sets up a governmental commission, approves its personal composition, issues specific order to the Commission, Tbilisi Municipality, the Ministry of Finance and State Chancellery. This Ordinance does not contain a normative rule although it formally appears to be a normative act. The same can be observed with regard to #704 Ordinance of the President of Georgia of 1 December 1997 “On Partial Compensation of Material Damage of the Population Suffered from the December-January Events of 1991-1992 in Tbilisi”. Stemming from the abovementioned, the consideration on the constitutionality of the impugned acts does not fall within the competence of the Constitutional Court.

8. Within the scopes of its competence under Article 89(1)(f) of the Constitution of Georgia and Article 19(1)(e) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, the Constitutional Court of Georgia considers the constitutionality of a legal act and not its compliance with other normative acts. Hence, the examination of the compatibility of the impugned acts with the Law of Georgia “On Normative Acts” goes beyond the competence of the Constitutional Court of Georgia.

III

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

The Constitutional Court of Georgia
resolves:

1. Not to admit #438 constitutional claim (Citizen of Georgia Vakhtang Tskipurishvili v. the President of Georgia) for the consideration of the merits;

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

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

Board Members:

Besik Loladze,

Otar Sichinava,

Lali Papiashvili.