Composition of the Board:

Besik Loladze – President of the hearing;

Otar Sichinava – Member, Judge Rapporteur;

Lali Papiashvili – Member.

Secretary to the session: Darejan Chaligava.

Title of the case: Framework Convention on Tobacco Control Implementation and Monitoring Centre in Georgia v. the Parliament of Georgia.

Subject of dispute: The constitutionality of Article 4(2), Article 5(3)(a-b), Article 6(1)(b) of the Law of Georgia “On Tobacco Control in Georgia”; Article 8 of the Law of Georgia “On Advertisement” (under the head of tobacco product advertisement) and Article 208 of the Code of Georgia of Administrative Violations (under the head of reference to Articles 1553-1556 and 1711-1713) in terms of Article 15 and Article 37 of the Constitution of Georgia

Participants to the case: Giorgi Bakhturidze, Director of the Framework Convention on Tobacco Control Implementation and Monitoring Centre in Georgia (respondent) and Andro Bzhalava, representative of the claimant.

I

1. The Framework Convention on Tobacco Control Implementation and Monitoring Centre in Georgia lodged constitutional claim (registration number 441) with the Constitutional Court of Georgia on 16 November 2007. With the view of deciding about the admissibility for the consideration of the merits, the constitutional claim was referred to the Second Board of the Constitutional Court of Georgia on 22 December 2007.

2. Article 89(1)(f) of the Constitution of Georgia; Article 19(1)(e), Article 39(1)(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 1(2) And Article 15(1) of the Law of Georgia “On Constitutional Legal Proceedings”.

3. In the constitutional claim the claimant requests the Court to declare unconstitutional Article 4(2), Article 5(3)(a-b), Article 6(1)(b) of the Law of Georgia “On Tobacco Control in Georgia”; Article 8 of the Law of Georgia “On Advertisement” under the head of tobacco product advertisement and Article 208 of the Code of Georgia of Administrative Violations under the head of reference to Articles 1553-1556 and 1711-1713 in terms of Article 15 and Article 37 of the Constitution of Georgia.

4. In the claimant’s opinion, the existence of the flawed legislation on tobacco product control in Georgia violates the constitutional rights to life and to live in healthy environment. This, due to the increase in the number of smokers, causes the rise in the death toll. The Statute of the Framework Convention on Tobacco Control Implementation and Monitoring Centre aims at monitoring the implementation of the Framework Convention on Tobacco Control. The fact that legislation of Georgia fails to comply with the standards of the Framework Convention on Tobacco Control and other international agreements prevents the claimant organisation to fully attain its objectives and, therefore violates its rights.

5. Article 4(1) of the Law of Georgia “On Tobacco Control in Georgia” provides for the list of the no-smoking facilities. Article 4(2) obliges those in charge of the facilities to ensure special areas for smokers. In the claimant’s view the provision of special areas for smokers in the no-smoking facilities differs essentially from and runs counter to the requirements of Article 4(1) and is accordingly unconstitutional. The unconstitutionality of the impugned provision is also substantiated by its failure to comply with Article 8 of the Framework Convention on Tobacco Control of 21 May 2003.

6. Under Article 5(3)(a-b) of the Law of Georgia “On Tobacco Control in Georgia”, “[o]rganisation and carrying out of medical or educational activity by those in tobacco industry shall be prohibited if it involve: a) display of tobacco products or trade marks of tobacco manufacturing companies; b) display of logotype.” The claimant believes these norms contradict Article 13(1-2) of the Framework Convention on Tobacco Control. Under the Convention, the Parties undertake a comprehensive ban of all tobacco advertising and sponsorship.

7. In the claimant’s view, Article 6(1)(b) of the Law of Georgia “On Tobacco Control in Georgia” is incompliance with Article 11 of the Framework Convention on Tobacco Control. In accordance with the impugned provision, a medical warning must occupy 5% of the front face of the box, whereas under Article 11 of the Convention, such a warning should be 50% or more of the principal display areas of the outside packaging.

8. The claimant believes that Article 8 of the Law of Georgia “On Advertisement” should be null and void under the head of tobacco product advertisement. The Law of Georgia “On Advertisement” should provide for the ban of any direct or indirect advertisement of tobacco products and their use and cross-border tobacco advertising. Such requirements are stipulated in Article 13(1-2,7) of the Framework Convention on Tobacco Control.

9. In the claimant’s opinion, Article 208 of the Code of Georgia of Administrative Violations should also be declared null and void under the head of reference to Articles 1553-1556 and 1711-1713. The reference to the Articles should be moved into Article 209 of the Code of Georgia of Administrative Violations. In such a case, a competent official of the Ministry of Internal Affairs will be entitled to decide about administrative violations instead of a court. This will simplify the procedure of deciding about administrative violations and will increase nontax incomes due to the improvement of management and introduction of more penalty sanitations.

10. According to claimant, the Framework Convention on Tobacco Control stipulates the international standards of life in an environment protected from tobacco and tobacco smoke, which are in direct compliance with the requirements of Article 15 and Article 37 of the Constitution of Georgia. The impugned provisions ran counter to particular Articles of the Framework Convention on Tobacco Control and accordingly they are in violation of the right to life guaranteed by Article 15 and the right to live in healthy environment set out in Article 37 of the Constitution of Georgia.

11. Furthermore, the claimant requests the Constitutional Court to order the Parliament of Georgia to nullify the impugned provisions and to take immediate measure for the comprehensive implementation of the Framework Convention on Tobacco Control with the view of endorsing the Constitution of Georgia, norms of international law and public interests.

12. The administrative oral hearing of the Second Board of the Constitutional Court of Georgia was held on 17 April 2008. At the hearing the claimant’s representative maintained that based on the particularity of the claimant organisation, its Statute and activity, the organisation is entitled to apply to the Constitutional Court with regard to Article 15 and Article 17 of the Constitution of Georgia. The representative believes the declaration of the unconstitutionality of the impugned provisions by the Constitutional Court will result in the enforcement of the provisions of the Framework Convention on Tobacco Control.

13. At the administrative hearing the claimant’s representative decreased the constitutional claim with regard to Article 37 of the Constitution of Georgia. In the view of the claimant’s representative, the impugned provisions ran counter to the following provision of Article 37(3): “Everyone shall have the right to live in healthy environment…”. Moreover, the impugned provisions fail to comply with Article 37(4) under which: With the view of ensuring safe environment, in accordance with ecological and economic interests of society, with due regard to the interests of the current and future generations the state shall guarantee the protection of environment and the rational use of nature.”

14. The claimant’s representative decreased constitutional claim in other respect as well and submitted that he does not argue about the constitutionality of Article 8 of the Law of Georgia “On Advertisement” (under the head of tobacco product advertisement) and Article 208 of the Code of Georgia of Administrative Violations (under the head of reference to Articles 1553-1556 and 1711-1713).

II

1. Under Article 31(2) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, a constitutional claim must necessarily contain evidence substantiating the reasoning of the constitutional claim. An analogous obligation is provided for by Article 16(1)(e) of the Law of Georgia “On Constitutional Legal Proceedings” implying that the evidence submitted in a constitutional claim must be of substantive and not formal nature and point out the unconstitutionality of an impugned provision.

2. The Constitutional Court reiterates the requirements, which must be met by evidence submitted in the constitutional claim. Firstly, there must be an argumentation of the claimant present and relate to a respective provision of the Constitution of Georgia (#2/3/412 Ruling, II,8). The claimant must be aware of the accurate contents of the constitutional provision with regard to which the issue of constitutionality is at stake (#2/4/420 Ruling, II,7).

3. The Constitutional Court is satisfied that #441 constitutional claim does not meet the above standards. In order to demonstrate the unconstitutionality of the impugned provisions the claimant adduces evidence, which allege their incompliance with certain requirements of an international agreement – the Framework Convention on Tobacco Control. The claimant also points out the collision of Article 4(1) and Article 4(2) of the Law of Georgia “On Tobacco Control in Georgia”. There is no evidence submitted by the claimant, which would objectively enable substantive discussion by the Constitutional Court in case of the admission of the constitutional claim for the consideration of the merits.

4. The claimant’s discussion is not related to the constitutional provisions with regard to which the constitutionality of the impugned provisions is put at stake. The failure of the impugned provisions to comply with an international agreement ratified by the State or a legislative act does not automatically amount to their incompatibility with certain articles of the Constitution of Georgia.

5. Moreover, the claimant is not aware of the accurate contents of the respective provisions of the Constitution of Georgia. Article 15 of the Constitution of Georgia protects the life of an individual, which is irrelevant in terms of the claimant being a legal entity. A legal entity does have health either and cannot exercise the Constitutional right to live in healthy environment enshrined in Article 37(3) of the Constitution of Georgia. Life and health can only be enjoyed by an individual as a living human being. Stemming from the aforementioned, any claim of a legal entity about either direct or indirect violation of its right to life and health is manifestly ill-founded.

6. Article 37(4) of the Constitution of Georgia is about the protection of environment and rational use of nature and is no way linked with the impugned provisions in terms of the contents.

7. It is also evident from the above circumstances that the claimant is not a competent subject to apply on the account of the right to live in healthy environment. In accordance with Article 39(1)(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, the Constitutional Court can be seized by an individual who believes that his/her rights and freedoms recognised by Chapter Two of the Constitution of Georgia are infringed or may be directly infringed upon. Therefore, a claimant must be the subject of a constitutional right in order to be eligible for claiming the violation of that right.

8. Under Article 45 of the Constitution of Georgia, the basic rights and fundamental freedoms set out in the Constitution with due regard to their contents shall apply to legal entities as well. The claimant as a legal entity is a legal category, a fiction, which, as already mentioned, due to its nature, cannot be the subject of the right to life and the right to live in healthy environment. Therefore, these rights do not fall into the category, which, due to their contents can apply to a legal entity.

9. The circumstance that the claimant aims at monitoring of the implementation in Georgia of the Framework Convention on Tobacco Control and thereby at ensuring individuals with safe environment for life and health does not give rise under the jurisprudence of the Constitutional Court of Georgia to the entitlement to apply to the Court where neither present nor future violation of the very rights of the claimant can be established. The Constitutional Court of Georgia reiterates that the right to lodge a constitutional claim for the protection of the interests of others in the application of Article 39(b) of the Organic Law of Georgia “On the Constitutional Court of Georgia” only rests with the Public Defender of Georgia (the so called “abstract review”). Therefore, the statement of the claimant’s representative about the entitlement to apply to the Constitutional Court of Georgia to be derived from the Statute, particularity and activity of the organisation is manifestly ill-founded.

10. As mentioned above, in the constitutional claim the claimant points out the incompatibility of the impugned provisions with other legislative acts and international agreements. The Constitutional Court is satisfied that the review of these issues within the scopes of the competences set out in Article 89(1)(f) of the Constitution of Georgia is impossible and ultra vires. The Constitutional Court of Georgia recalls that the said norm of the Constitution “is a lex specialis and does not serve the establishment of the compatibility of normative acts with international agreements. The only act binding upon the Constitutional Court in such case when reviewing the constitutionality of a provision is the Constitution of Georgia and the Constitutional Court’s task is to interpret the Constitution and not international agreements” (#2/2-389 Judgment, II,5).

11. The discussion about the request of ordering the Parliament of Georgia to the effect of immediate measures of comprehensive implementation of the Framework Convention on Tobacco Control is likewise beyond the competence of the Constitutional Court of Georgia.

12. Finally, the Constitutional Court concludes against the admissibility of #441 constitutional claim for the consideration of the merits of in the application of Article 18(a-c) of the Law of Georgia “On Constitutional Legal Proceedings”.

III

Stemming from the abovementioned, in the application of Article 21(2), Article 31(2), Article 39(1)(a), Article 43(5,8) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 16(1)(e) and Article 18(a-c) of the Law of Georgia “On Constitutional Legal Proceedings”

The Constitutional Court
resolves:

1. Not to admit #441 constitutional claim (Framework Convention on Tobacco Control Implementation and Monitoring Centre in Georgia v. the Parliament of Georgia) for the consideration of the merits.

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

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

Board Members:

Besik Loladze,

Otar Sichinava,

Lali Papiashvili.