The Composition of the Board:

Besik Loladze – Chairman of the Hearing;

Otar Sichinva – Member;

Lali Papiashvili – Member;

John Khhetsuriani – Member, Judge Rapporteur.

Secretary of the Hearing: Darejan Chaligava.

Title of the Case: Citizen of Georgia Omar Alapishvili v. the Parliament of Georgia.

Subject of the dispute: Constitutionality of the first paragraph of Article 11 and the first paragraph of Article 19 of the law of Georgia “On Apartments Owners Association” with respect to the first paragraph of Article 26 of the Constitution of Georgia.

Participants of the Hearing: Levan Alapishvili, representative of the Claimant: citizen of Georgia Omar Alapisvili; Batar Chankseliani and Levan Kasradze, representatives of the Respondent: The Parliament of Georgia.

I

1. On 25th of October 2007, a constitutional claim (registration N439) was lodged with the Constitutional Court of Georgia by the citizen of Georgia, Mr. Omar Alapishvili. The Respondent is the Parliament of Georgia. On 30th of October 2007, the President of the Constitutional Court of Georgia referred the constitutional claim N439 to the Second Board of the Constitutional Court for consideration and decision on the matter of admission of the case for consideration on merits. The Second Board of the Constitutional Court partially admitted the constitutional claim N439 for consideration on merits by the Recording Notice N2/1/439 of 25th of July 2008.

2. The disputed norms are the first paragraph of Article 11 and the first paragraph of Article 19 of the law of Georgia “On Apartments Owners Association”. Pursuant to the first paragraph of Article 11, “By entering into force of this [On Apartments Owners Association] law, apartments owners association in such multi-apartment building, that is located in the single track of land and wherein there are more than two apartments under individual ownership, shall be deemed as founded”. Under the first paragraph of Article 19, “Member of the apartments owners association shall be an apartment owner in a multi-apartment building”.

3. The Claimant, based on the decision N107 of the 1st of February 1992 of the Cabinet of Ministers of the republic of Georgia, has purchased, under the rule for privatization, the right of ownership of a dwelling apartment which is located in a multi-apartment building. After enactment of the disputed norms, the Claimant as an individual owner has been announced as a member of apartments owners association. However, he did not express the will to join the association.

4. The Second Board of the Constitutional Court of Georgia considered the merits of the constitutional claim N439 with oral hearing at the open sitting of 5 and 6 May 009.

5. The Claimant submits that the disputed norms are not in conformity with the first paragraph of Article 26 of the Constitution of Georgia, under which the right to freedom of association is protected. The present norm has the content as follows: “Everyone shall have the right to form and to join public associations, including trade unions.”

6. In the Claimant’s opinion, forming or joining a public association constitutes the constitutional right of a person and shall be exercised on a voluntary basis. The first paragraph of Article 26 of the Constitution of Georgia does not permit an exception, under which the obligation of forming or joining public association shall be envisaged.

7. The Claimant refers to Article 20 of the Universal Declaration of Human Rights and the first paragraph of Article 11 of the European Convention for protection of Human Rights and Fundamental Freedoms. He gives special regard to paragraph 2 of Article 20 of the Universal Declaration of Human Rights, under which it is inadmissible to compel a person to join to any association. This speaks about the fact that freedom of association also implies the freedom of not joining association with other persons. The Claimant makes reference to the above mentioned norms of International Law in order to demonstrate that the first paragraph of Article 26 of the Constitution of Georgia protects the freedom of not only “public association”, but “association” in general.

8. The apartments owners association is an organized association of persons, which has its objectives and property. Stemming from this characteristic, the Claimant assumes that apartments owners association belongs to the category of associations within the meaning of the first paragraph of Article 26 of the Constitution of Georgia. The Claimant emphasized the circumstance that the Respondent also designates apartments owners association to associations provided for by the Constitution of Georgia and admits the interference with the freedom of association by the disputed norms.

9. Based on the challenged norms, every individual apartment owner in multi-apartment building, without expression of their will, has been announced as a member of apartments owners association. Based on the freedom of association, it is obliged to have the will of founders and presence of their relevant decision in order to found any association. Hence, in the Claimant’s position, foundation of apartment owners association by law and ensuring that persons automatically join it violates the negative freedom of association as protected by the first paragraph of Article 26 of the Constitution of Georgia.

10. The Claimant considers that fulfillment of those tasks that are assigned to apartments owners association, could be possible without interfering with the freedom of association within the applicable laws. To protect the rights to property of a person from “a bad neighbor” and to compensate feasible individual damage may be possible based on the Civil Code of Georgia. In case of hindering the decision related to taking care of common property, if the risk of damaging property is significant, then even one apartment owner may take decisions without giving a notice to others and bear expenses. Besides, the Civil Code of Georgia imposes certain obligations to “a bad neighbor” with regard to common property.

11. The Claimant does not agree with the argument presented by the Respondent that old regulation on apartments owners association has been ineffective. Pursuant to the law of Georgia “On Apartments Owners Association”, taking a decision at the Association is made much more difficult and requires more majority of the votes than it was prescribed by the old regulations.

12. In the Claimant’s opinion, declaring the disputed norms as unconstitutional and void shall not create any practical or legal problem. In such case, dwellers of multi-apartment buildings shall have the free choice – to form apartments owner association or decide the issues related to management of the common property and taking care of it in conformity with the Civil Code of Georgia.

13. The Respondent, with the solicitation, has applied to the Constitutional Court on the case on attaching the explanatory note to the draft law of Georgia “On apartments owners association”. In his opinion, the legitimate aim and cause for adoption of the draft law are well formulated in the explanatory note. The Board has satisfied the solicitation of the Respondent.

14. The Respondent, like the Claimant, declares that under the first paragraph of Article 26 of the Constitution of Georgia, everyone shall have the positive right to form and join association as well as the negative right to abstain from forming and joining association. Interference with the negative right to form and join apartments owners association in multi-apartment buildings has been occurred by the disputed norms.

15. In the Respondent’s opinion, apartments owners association represents a association within the meaning of the first paragraph of Article 26 of the Constitution of Georgia. Operation of the norms regulating suspension and prohibition of activities of public associations is also extended over it. Prohibition of apartments owners association may entail another consequence, in particular, its liquidation based on indictment ruling with regard to an association.

16. Nevertheless there is an interference with the freedom of association; the Respondent thinks that the disputed norms are constitutional. He refers to paragraph 2 of Article 44 of the Constitution of Georgia (“The exercise of the rights and freedoms of an individual shall not infringe upon the rights and freedoms of others”), besides, the European Convention for Protection of Human Rights, case-law arising from the Convention and other international law norms. In the Respondent’s position, the interference with the freedom of association is constitutional, as it is provided for by law; serves the legitimate aim; is of urgent necessity; the urgent necessity is caused by protection of rights and freedoms of others in the democratic society; is proportionate to the legitimate aim pursued; the fair balance struck between the legal good reached and right to restriction is respected.

17. The disputed norms are part of the law of Georgia “On apartments owners Association” that is they are “provided for by law”. In the Respondent’s view, the challenged norms are just, as they do not provide the state bodies with the right to excessive freedom of action at all. The disputed norms are unambiguous and clearly recount the will of a legislator and do not allow the state bodies to the ground for arbitrary action. Besides, the disputed norms satisfy accessibility requirements of law – they have been published in an official printing journal, and an interested person may obtain the explanatory note of the draft law; also interpretations and comments made by courts on these norms are freely accessible.

18. The Respondent submits that interference provided for by the disputed norms serves the legitimate aim. The aim of the law of Georgia “On Apartments owners association” is to ensure effective legal conditions for administration, exploitation and development of common property of members of apartment’s owners association. This is in the interest of every apartment owner in a multi-apartment building and is directly connected with their rights and freedoms. The legitimate aim of the challenged norms is to protect common rights and freedom of “others” – apartments owners in multi-apartment buildings, in particular, with a view to protecting them, to tread the path for other norms, and to create effective and flexible legal circumstance.

19. For justifying urgent necessity for interference with the freedom of association, the Respondent gives a special regard to aggregate of several factors: First, whether, at the moment of adopting the disputed norms, there were significant omissions in the legislation applicable to the respective field; Second, whether there were indeed common interests of apartments owners in the area of the public life of Georgia, for satisfaction of which the challenged norms were adopted; Third, apartments owners associations were simultaneously founded in all multi-apartment buildings by means of the disputed norms, and apartments owners in multi-apartment buildings were automatically determined as members. Starting of the process regulating relations and satisfying interests of apartment owners, without taking this step, would be impossible. In case of a single destructive act of a co-owner of common property in a multi-apartment building, the action related to maintenance and improvement of common property would be delayed. Even at the time of complete unanimity of apartment owners, it would turn difficult to settle issues from organizational point of view.

20. The Respondent is confident that the Civil Code of Georgia fails to ensure proper protection of interests of apartments owners. Certainly, under paragraph 3 of Article 170 of the Civil Code of Georgia, the law may prescribe an obligation for use or maintenance and storage of the thing, if non-use or non-maintenance of the thing is prejudicial to the public interest, but firstly, the obligation given in this norm is linked with only maintenance and storage of the thing in the given state, and not its improvement and development, and secondly, without apartments owners association, in case of substantial refusal to perform such obligation expressed by any apartment owner, (and such instances are frequent in number), the rest apartments owner would be forced to impose influence on a reluctant apartment owner through a court. All of this would be ineffective and excessively prolonged.

21. The Respondent states that urgent necessity for interference with the freedom of association is caused by the interest to protect “others” rights and freedoms in the democratic society. “Other”, whose rights and freedoms are protected by the disputed norms and the law of Georgia “On apartments owners association” as a whole, are apartments owners and among them, the Claimant and those persons who are against joining an apartments owners association.

22. The Respondent believes that interference with the freedom of association by the disputed norms, providing the factor of urgent necessity, is not as much stricter as it is needed to achieve the legitimate aim. Therefore, the disputed norms fully comply with the criteria of proportionality.

23. The obligation to join an apartments owners association serves protection, development, exploitation, maintenance and administration of the common property of apartments owners, that is protection of the rights of the very these persons. Protected rights, in the Respondent’s opinion, in terms of quality are preemptive in comparison with those obligations, which are provided for by the disputed norms and the law as a whole. Stemming from this, the fair balance between the legal good achieved by interference with the freedom of association and the restricted right is respected.

II

1. On 30th of November 2005, the Constitutional Court of Georgia made a decision N1/5/323 on the case “Citizens of Georgia – Giorgi Vacharadze, Artur Kazarov, Levan Chkheidze, Giorgi Berishvili, Shorena Sokopeli and Nino Archvadze v. the Parliament of Georgia”. The Claimants believed that the norms of the law of Georgia “On lawyers” that envisaged the status of lawyers’ association as legal entity under public law and joining it, infringed the requirements of the first paragraph of Article 26 of the Constitution of Georgia. The Constitutional Court of Georgia has not upheld the given constitutional claim. The position of the Constitutional Court of Georgia on important issues related to the freedom of association has been laid out in the mentioned decision. Concurrently, arising from the constitutional claim N323 and the circumstances of the case, there was no need to give a regard to some moments to the case, on which the Board finds it necessary to emphasize in the motivational part of the decision.

2. Human being, in his/her essence, is not only free, but also is a social being, whose intrinsic requirement is to have relations with other individuals. The freedom of a human being is not freedom from society, this is a freedom within the society, where there are and shall cross a number of convergent or opposed interests. The freedom of association ensures self-realization of a person together with other persons, social, public groups. The principle to freely form public groups and to free associations is respected, which forceful association, even if done against the background of big enthusiasm of its participants, characterized by totalitarian states represents the contrasting occurrence. The big importance is attributed to the freedom of association not only in the light of guarantees of fundamental human rights, but also in the light of establishing democratic, free society and state. The freedom of association has an important function for integration of a person into the democratic society and for formulation of the insight of his/her civil responsibility.

3. During the consideration of the case, a special regard was given to the term “public association” used in the first paragraph of Article 26 of the Constitution of Georgia. It should be noted that International acts and constitutions of various states are distinguished by terminological diversity of the norms ensuring the freedom of association and often their texts, in this sense, are different from one another. However, the essence of freedom of association and its understanding in the democratic world, mainly, rests upon the united concept and in this regard the constitution of Georgia is not the exception. Usage of different terminology does not mean differentiated approach in terms of the goods protected by the fundamental rights and scopes of constitutional protection.

4. Term “public association” is fully in compliance with the view that the most important function of the first paragraph of Article 26 of the Constitution of Georgia is to ensure formation and functioning of free, public groups formed by persons with civil responsibilities in the democratic society. The legal construction of Article 26 of the Constitution of Georgia is also noteworthy. Regulation establishing the freedom of association is divided in two parts. Paragraph 2 of Article 26 guarantees the freedom of political parties, and political associations. Against this background, the term “public association” has been very well chosen in order to indicate associations formed with other non-political purposes and in order to separate in terms of terminology.

5. The first paragraph and paragraph 2 of Article 26 of the Constitution of Georgia protects one of appearances of the right to free development of a human being, that is, the form of its group exercise. By means of the freedom of association, an individual incarnates his/her aims and aspirations together with others within the milieu of communication and exchange of opinions with them.

6. Stemming from the circumstance to the case, the Board does not give regard to the political aspect of the freedom of association, which is provided for by paragraph 2 of Article 26 of the Constitution of Georgia.

7. In its essence, the freedom of association is a multifaceted fundamental right. Besides the positive right discussed above, it has a protective function, the content of which includes the state obligation not to interfere with the freedom of association (status negatives). According to the opinion prevailing in the science and practice, which the Board agrees with, the freedom of association also implies so called “basic group right”, signifying that the collective created by realization of the freedom of association also enjoys the constitutional-legal protection.

8. The first paragraph of Article 26 of the Constitution of Georgia shall not be construed with its literal meaning. The freedom of association would be insufficiently protected, if this freedom only implies the right to form and join an association. Not only the process to form and join an association is protected, but also different sides relating to the existence and functioning of an association, such as: selection of an aim, organization of an activity, decision making, remaining a member of an association, liquidation of an association and etc are also respected. At any stage of association’s existence, non-application of constitutional protection , In the Board’s opinion, would unacceptably increase the risk of arbitrary interference with its activities from the part of the State and would make constitutional and legal protection of the freedom of association ineffective.

9. The first paragraph of Article 26 of the Constitution of Georgia does not directly mentions the right – not to surrender to enforcement while joining association. However, the negative freedom of association arises from the essence of freedom. The freedom means doing what you want to do and not doing, what you do not want to do. That is, the freedom always has both positive and negative component. This is two necessary sides of the one and the same coin. The very fact that a person is granted with the right to join public association, signifies that the constitution of Georgia considers him/her as a subject who makes decision on membership of an association. Respectively, to have the right to association simultaneously implies the concurrent right to avoid joining any association or to freely make decision to leave an association.

10. The negative freedom of association protects a person from introduction of such regulations that would establish forceful membership in associations under private law. To form public groups for fulfilling non-public tasks shall be free from constitutionally and legally unjustified state interference and manipulation. As for obligatory membership in corporations under public law, on this regard, the Constitutional Court of Georgia, by taking account of foreign countries and international experience, indicated in its decision N1/5/33 of 30 November 2005, that “forceful membership in he Georgian lawyers association is constitutionally and legally justified by the reason that the State has founded this association for attaining legitimate public tasks. It is the mixture of private and public interests that can not be fulfilled without one another either by the state or each person by his/her own initiative”.

11. To what extent is any association, among them, apartments owners association created to fulfill public tasks and whether it represents not only formally, but also substantially the corporation under public law, this should be decided on a particular case-by-case basis. In any case, it is worth to underline that application of the first paragraph of Article 26 of the Constitution of Georgia does not extend to corporations under public law – this norm protects the freedom of association and not that of public corporations.

12. As it was stated above, any association of individuals does not fall within the scope of Article 26 of the Constitution of Georgia. According to opinion prevailing in the scientific literature and practice, from the constitutional and legal viewpoint, presence of certain features is necessary in order to admit a unity of persons as an association. The first paragraph of Article 26 of the Constitution of Georgia applies, there are: a) a unity of persons; b) a unity of persons is formed based on expression of free will; c) a unity of persons is formed for long term period; d) a unity of persons has common objective; and e) formation of the will in an unity of persons is duly organized. Precisely, these features as a whole and some of them taken separately make an association different from other unities of persons, such as gatherings, unions formed on objective or natural basis and etc.

13. Subparagraph “a” of Article 3 of the law of Georgia “On apartments owners association” provides the following interpretation of apartments owners association: “apartments owners association – located in residential or non-residential multi-apartment building, among them, owners association of areas used for commercial purposes”. Both physical and legal entities may be regarded as owners. Thus, in the Board’s opinion, from the formal viewpoint, a feature of an association that it represents a unity of persons is at hand.

14. Apartment owners association is a unity established for a long period of time. Furthermore, if we take into account the fact that the criterion of stability in time is not distinguished by great strictness. According to the prevailing opinions, term of validity of an association should permit its separation from so called “momentary associations”, gatherings. Apartments owners association fully complies with this requirement. Its existence, under the law of Georgia “On Apartments Owners Association”, is linked with existence of legal and factual circumstances. Apartments owners association exists until there is a multi-apartment building physically located in one track of land or till all apartments owners residing in that building becomes one person. It is easy to understand that apartments owners associations continues its existence for a long period of time and are characterized by stability in time.

15. Apartments owners association has a statute and organizational structure. It has its chairman and the board of members, at which decisions are made, and the common will of the members of an association is formulated. Therefore, apartments owners association also complies the requirements offered by the criterion on an organizational stability and organized formation of the will.

16. In the Board’s opinion, the association is characterized by the major feature: an association, its formation and activity rest upon the free will of persons, and is free from enforcement of any kind. The moment of free will does not have only formal, but also primarily substantial significance. In formation of an association, the subjective factor, that unites members of an association and is decisive for joining, being, working and leaving an association, takes the lead. An association is not simply unity of persons – this is the unity motivated by subjective aspirations of persons around the common ideas and aims. As it was already stated above, the sphere for forming and working of the free public groups of persons is protected and not in general, a group of any persons, which complies with some formal features of an association, but is formed on other grounds, rather than the subjective aspirations and free will of its members.

17. The discussion given above and the practice of the Constitutional Court of Georgia exclude the chance for legal entities of Public Law to fall within the scope of the first paragraph of Article 26 of the Constitution of Georgia. The Constitutional Court in its decision N1/5/323 of 30th of November 2005 indicated that … “the first paragraph of Article 26 of the Constitution of Georgia does not include the Georgian lawyers’ association, as it represents public-legal association and accordingly rests upon the principle of obligatory membership. The first paragraph of Article 26 of the Constitution considers only legal entities under private law, the main feature of which is voluntariness of an association… Because of the fact that the Georgian lawyers’ association is not legal entity under public law, the principle of voluntariness which is characteristic for a private association, is not applied to it.” Apartments owners association both formally and substantially does not belong to the category of legal entities under public law, as it does not exercise the public tasks, but its objective is to serve the private interest. Article 13 of the law of Georgia “On Apartments owners association” explicitly states that: “tasks of apartments owners association are: maintenance, exploitation and development of common property”. However, service of private interests does not still mean that apartments owners association a priori is an association within the meaning of the first paragraph of Article 26 of the Constitution of Georgia.

18. Membership in apartments owners association is based not on subjective decision of a person, but on the objective circumstance, that he/she has an ownership over apartment in multi apartment building. Membership of apartments owners association, in such case, is neither the self-realization of a person, nor the form of group exercise of the right to free development, but stems from the nature of the property itself and is the reality conditioned by objective circumstance to satisfy basic requirements for everyday life and existence. Apartments owners association occurs due to the objective factor of legal dependence towards an immovable thing. Membership in an association stops automatically as soon as the property right on an apartment is lost, that is, upon extinction of this objective factor. Subjective dependence of a person does not have decisive importance here either.

19. Stemming from the above mentioned, association provided for by the law of Georgia “On apartments owners association”, formally and substantially, does not comply with the requirement that it is the result of expression of its members’ free will. A person, by joining apartments owners association, does not make realization of positive freedom of association as provided by the first paragraph of Article 26 of the Constitution of Georgia. Under such conditions, there is no point in speaking about the negative freedom of association.

20. In addition, the Board does not exclude anybody to raise maintenance, exploitation and development of the common property in the rank of self-realization, to find like-minded people, even those ones who are not apartment owners in a particular multi-apartment building and to form an association together with them. Such association, despite its outward resemblance, will be distinct from apartments owners association precisely by the fact that it is the product of realization of subjective aspirations and free will and not that of objective circumstances.

21. An association is a unity formed in order to achieve a certain aim. At the same time, it is not sufficient to formally list aims and tasks, as their definition should be the product of free will of the founders of an association. Apartments owners association has tasks objectively deriving from its nature and not aims in the light of the above mentioned. The tasks of an apartments owners association are conditioned by necessity of maintenance of the common property. Members of apartments owners association can not set other goals to fulfill their subjective aspirations within the framework of apartments owners association, or can not reduce the tasks set out for the association, as it contradicts the nature of an association itself. For this reason, they will have to form an association of another kind. Stemming from this, apartments owners association fail to comply with even this requirement laid out for an association – it is not independent in formation of its aims and definition of aims is not exercised based on free will of its members.

22. Since apartments owners association is not the product of free will, it is impossible to suppose that it may set and implement any aim or aims defined by the Constitution. Moreover, suspension or prohibition of activities of an apartments owners association is inconceivable to occur. We should not forget that in this case, despite the aims of apartments owner association, major uniting factor of an association – common property, objective requirement of its maintenance, exploitation and development still continues to exist. Because of apartment owners’ opinions, to suspend and prohibit implementing these tasks, of course, would be without common sense and would lead us to absurdity. It is obvious that apartment owners association is unable to fall within the scopes not of the first paragraph of Article 26 of the Constitution of Georgia, but also within the scope of those norms that regulate matters related to the aims and activities of an association and in case of their unconstitutionality, matters related to the relevant measures.

23. Institutions similar to apartment owners association are widespread in many countries. Stemming from the specificity of the case under consideration, it is interesting to provide the example of France. Matters on association in France is regulated by the law “On associations” adopted in 1901. Despite the fact that this law superseded many other laws and brought the regulations on associations together, certain unities of persons still remained within the scope of operation of special laws. Among them, owners associations (Associations syndicales) are worth to be noted, to which the law of 1865 applies. In case of owners associations, the negative freedom of an association is not assured. The ground for it is that despites its name, owners association is not an association within the meaning of the law of 1901 and Article 11 of the European Convention for Protection of Human Rights. It is regarded as the form of administration of the common property. The decisive difference, in general, between associations and owners associations is that relations in owners association are tied with the immovable property and not with a person, and while changing an owner of an immovable property, membership in owners association is also passed over, together with property.

24. In the Board’s opinion, the arguments provided in the motivational part of the judgment is sufficient to conclude that apartment owners association is not an association pursuant to the first paragraph of Article 26 of the Constitution of Georgia. Hence, there is no interference with the freedom of association by the disputed norms. As far as there is no interference with the basic right, the Board does not finds it necessary to discuss constitutionality of the interference and assess the relevant arguments provided by the parties to the case.

III

Stemming from the abovementioned, having been guided by subparagraph “f” of the first paragraph and paragraph 2 of Article 89 of the Constitution of Georgia, subparagraph “e” of the first paragraph of Article 19, paragraphs 2 and 8 of Article 21paragraphs 2, 4, 7 and 8 of Article 43, and the first paragraph of Article 45 of the organic law of Georgia “On the Constitutional Court of Georgia”, the first paragraph and paragraph 2 of Article 7, paragraph 4 of Article 24, Articles 30, 31, 32, and 33 of the law of Georgia “On the constitutional Legal Proceedings”

The Constitutional Court of Georgia
rules:

1. Not to uphold the constitutional claim N439 (citizen of Georgia OmarAlapishvili v. the Parliament of Georgia).

2. The present judgment shall be in force from the moment of its public delivery at the hearing of the Constitutional Court.

3. The present judgment is final and shall not subject to appeal or revision.

4. Copies of the present judgment shall be sent to the parties, the Supreme Court of Georgia, the President of Georgia and the Government of Georgia.

5. The present judgment shall be published in “Sakartvelos Sakanonmdeblo Matsne” within 15 days.

Members of the Board:

Besik Loladze,

Otar Sichinava,

Lali Papiashvili,

John Khetsuriani.