Composition of the Board:

Konstantine Vardzelashvili – President of the Hearing;

Vakhtang Gvaramia – Member;

Ketevan Eremadze – Member;

Besarion Zoidze – Member, Judge Rapporteur.

Secretary of the hearing: Lili Skhirtladze.

Title of the case: Citizen of Georgia Anatoly Kozlovsky v. The Parliament of Georgia.

Subject of the dispute: The constitutionality of Article 1(83)(b-c) of the Law of Georgia of 13 July 2006 “On the Amendments to the Code of Civil Procedure of Georgia” in terms of Article 42(1) of the Constitution of Georgia.

I

1. On 15 November 2007 citizen of Georgia Mr. Anatoly Kozlovsky lodged a constitutional claim with the Constitutional Court of Georgia (registration number 440). The constitutional claim was referred to the First Board of the Constitutional Court of Georgia on 22 November 2007 with the view of deciding about the admission of the constitutional claim for the consideration of the merits.

2. The following are the grounds for the submission of the constitutional claim: Article 89(1)(f) of the Constitution of Georgia, Article 19(1)(e), Article 21(2) and Article 39(1)(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, Article 1(2) and Article 15 of the Law of Georgia “On Constitutional Legal Proceedings”.

3. According to the constitutional claim, in the application of Article 7 of the Law of Georgia “On Recognition of Citizens of Georgia as Victims of Political Repressions and Social Protection of the Repressed”, the claimant requested the City Court of Batumi to qualify the deprivation of property as political repression and recognise him as a victim of political repression.

It appears from the constitutional claim and its annexes that the City Court of Batumi did not admit the aforementioned application under the ruling of 9 June 2007. The ruling after being appealed was upheld by the Chamber of Civil Cases of the Court of Appeal of Kutaisi under the ruling of 18 October 2007. The Courts founded their refusal on Article 1(83)(b-c) of the Law of Georgia of 13 July 2006 “On the Amendments to the Code of Civil Procedure of Georgia” which deleted subparagraph (i) from Article 312(2) of the Code of Civil Procedure. The deleted provision used to establish other facts of legal implication unless legislation provided for a different procedure for their establishment. According to the claimant, based on the very provision individuals used to be recognised as victims of political repressions and the amendment concerned deprived him of the possibility to claim his rights before a court, which runs counter to Article 42(1) of the Constitution of Georgia and therefore should be found unconstitutional.

II

The constitutional right to apply to a court is not an abstract right. In any case the exercise of the aforementioned right requires the existence of a specific right, the protection of which preconditions the possibility of applying to a court. When a person applies to a court in order to be recognised as a subject of a certain right, namely, in this case - a victim of alleged political repressions – a subject authorised to apply to the Court is obliged to show an arguable claim that he/she is a subject of the above-mentioned right. Anatoly Kozlovsky only maintains in his constitutional claim that he wants the status of a victim of political repressions on the account of the deprivation of property. No other evidence can be found in the constitutional claim as to why a court should grant the claimant such a status. of it is only mentioned that on the basis of deprivation of the property he wants to be acknowledged as a victim of political repression. The claim does not include the other assertion on the basis of which the Court will acknowledge the person as the victim of political repression. Where a constitutional claim fails to establish a tangible link between the right at stake and the applicant so that the Court was satisfied that the claimant could be a subject of the relevant right, the Constitutional Court will not be in the position to pronounce itself on the constitutionality.

2. The deleting of Article 312(2)(i) of the Code of Civil Procedure cannot be considered to be leading to the infringement of the constitutional right of access to a court of those who seek the recognition of the status of a victim of political repressions. It is to be borne in mind that the said relationship is not only regulated by the impugned provision. Under Article 6 of the Law of Georgia “On Recognition of Citizens of Georgia as Victims of Political Repressions and Social Protection of the Repressed”, “in accordance with the terms of the present law, the recognition of an individual as a victim of a political repression and restitution of the breached rights shall be effected through court proceedings”. Under Article 7 of the same law, “an application about the recognition of a victim of a political repression shall be filed either directly by the repressed person, his/her legal successor or by a representative with the court within the jurisdiction of which the applicant resides permanently or temporarily”. Under the second paragraph, “an application about the recognition of a victim of a political repression shall be reviewed in accordance with this present law and the rules established by Civil Procedure Code”. This normative reality shows that the Court is an establishment, which recognised an individual as a victim of political repressions.

3. As regards the practice of recognition of an individual as a victim of political repression, the Constitutional Court is not in the position to review it. It is beyond the competence of the Constitutional Court to look into the application or interpretation of a particular provision by a judge. It is, however, worth mentioning that when applying law the accurate interpretation of provisions is a significant guarantee for the protection of legal order, constitutional rights and freedoms. The courts are obliged to define and separate the scopes of application

Stemming from all the above-mentioned, the constitutional claim fails to submit an argumentation required by legislation and necessary for its admission for the consideration of the merits. In particular, in accordance with Article 31(2) of the Organic Law of Georgia “On the Constitutional Court of Georgia” “a constitutional claim or a constitutional submission shall be reasoned…” and under Article 18 of the Law of Georgia “On Constitutional Legal Proceedings”, “a constitutional claim or a constitutional submission shall not be admitted for consideration if either by its form or its contents, it does not conform with the requirements, laid down in Article 16 of the present Law”.

III

In the application of Article 89(1)(f) of the Constitution of Georgia, Article 19(1)(e), Article 21(2), Article 271(1-2), Article 31(2), Article 39(1)(a), Article 43(e)(5,7-8) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, Article 16, Article 17(5), Article 18(a), Article 21(2) of the Law of Georgia “On Constitutional Legal Proceedings), Article 30, Article 31, Article 33(1) of the Rules of the Constitutional Court of Georgia,

The Constitutional Court of Georgia
resolves:

1. Not to admit for the consideration of the merits №440 constitutional claim of Anatoly Kozlovsky v. the Parliament of Georgia on the constitutionality of Article 1(83)(b-c) of the Law of Georgia of 13 July 2006 “On Amendments to the Code of Civil Procedure of Georgia” in terms of Article 42(1) of the Constitution of Georgia.

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

Members of the Board:

Konstantine Vardzelashvili ,

Vakhtang Gvaramia,

Ketevan Eremadze,

Besarion Zoidze.