Composition of the Chamber

Vakhtang Gvaramia – Chairman of the hearing

Ketevan Eremadze – Member, Rapporteur Judge

Besarion Zoidze – Member

Secretary of the Hearing: Lili Skhirtladze

Title of the Case: Georgian Young Lawyers Association and citizen of Georgia – Eka Lomtatidze v. the Parliament of Georgia.

Subject of the Dispute: The constitutionality of a conjunction “or” following the words “only by the order of a judge and by the resolution of a prosecutor” in art. 2(2) of the Law of Georgia on Operative-Investigatory Activity with respect to art. 20(1) of the Constitution of Georgia.

Participants of the Hearing: Claimant and representative of Georgian Young Lawyers’ Association – Mrs. Ekaterine Lomtatidze, the representative of the Georgian Young Lawyers Association – Mrs. Ketevan Abashidze; Respondents: representative of the Parliament of Georgia - Mr. Batar Chankseliani, Mr. Ioseb Lomashvili and Mr. Levan Kasradze; Specialist – Dean of law department of Tbilisi State University of Economic Relations, Mr. Venedi Benidze; Witnesses – Mr. Murtaz Zodelava, Head of Legal Division of the General Prosecutor’s Office of Georgia and Mr. George Obgaidze prosecutor of the same division.

I

1.On 24^th October of 2006 the constitutional claim (registration No 407) was submitted to the Constitutional Court by Georgian Young Lawyers’ Association and Citizen Mrs. Ekaterine Lomtatidze. On 14^th November of 2006 by N1/7/407 recoding notice, the first Chamber of the Constitutional Court of Georgia admitted the case for examination on merits.

The legal basis of the constitutional claim is art. 42, art.89 (1) (e) of the Constitution of Georgia, art.19 and art.39 of the Organic Law of Georgia on the Constitutional Court of Georgia, art.15 and art.16 of the Law of Georgia on Constitutional Proceedings.

2.The constitutional claim disputes constitutionality of the first sentence of art.9(2) of the Law of Georgia on Operative-Investigatory Activity, pursuant to which “undertaking of such an operative-investigatory activity which limits legally protected confidentiality of communication through telephone or through other technical means, is allowed only by the order of a judge and by the resolution of a prosecutor, or on the basis of a written application of a person, who is a victim of illegal conduct, or if there is data of an illegal conduct, for which criminal code of Georgia establishes imprisonment for not less than 2 years”.

According to the constitutional claim, the mentioned norm is incompatible with art. 20 of the Constitution of Georgia, pursuant to which “Everyone’s private life, place of personal activity, personal records, correspondence, communication by telephone or other technical means, as well as messages received through technical means shall be inviolable. Restriction of the aforementioned rights shall be permissible by a court decision or also without such a decision in the case of an urgent necessity provided for by the law.”

3.According to the claimants, art. 20 of the Constitution of Georgia permits limitation of various aspects of privacy only on the basis of a) the decision of the court; b) without the decision of the court, in the case of the urgent necessity. In contradiction to this, operative-investigatory activity which limits privacy of communication by telephone or by other technical means is permitted by the disputed norm in three cases: a) by the order of a judge and the resolution of a Prosecutor; b) on the basis of a written application of a person, who is a victim of an illegal conduct; c) if there is data of an illegal conduct, for which criminal code of Georgia establishes imprisonment for not less than 2 years. According to the claimants, the latter two conditions permit conduct of an operative-investigatory activity without the order of a judge, despite that these conditions are neither in line with the concept of urgent necessity nor the Law on Operative-Investigatory Activity considers them as such.

4.During the examination on merits, claimants clarified that the disputed norm is a special norm in terms of object and rule of conduct of an operative-investigatory activity. The norm does not fully encompass all operative-investigatory activities listed in art. 7(2) (h) and (i) of the same law. Legislator has singled out specific type of an operative-investigatory activity by the object of the activity and has established a different regulation of it than provided for by the general norm. The claimants consider art. 7 of the Law on Operative-Investigatory Activity as a general norm. In their opinion, there is a collision between special and general norms. In accordance with the existing law, in the case of collision, the special norm shall be applied. This enables the body, undertaking operative-investigatory activity, in applying the disputed norm, not to take into account requirements of art. 7(2)(h) and (i) and of art. 20 of the same law. Claimants assert that because of existence of the conjunction “or” in the disputed norm such an action of the relevant body will not be in line with the law.

In the claimants’ opinion, the word “or” in the disputed norm is followed by the conditions and not by legal grounds for undertaking operative-investigative activity. For them finding the substantive difference between the conditions and legal grounds is a difficult task, but they maintain that a ground is prior to a condition. According to them, the ground for undertaking an activity is defined by art.8 of the law and if legislator implied by conditions in the disputed norm the legal grounds for undertaking operative-investigatory activity, then it would have defined them in art.8 of the law.

The claimants think that the disputed norm is vague and allows drawing different interpretations. In particular, the conditions, following the conjunction ‘or”, could be applied each cumulatively with first condition of the same norm. According to them, the possibility of interpreting a norm in two different ways indicates that the norm is vague. However, they also state that vagueness of a norm does not automatically mean that the norm is unconstitutional. The norm can be deemed unconstitutional only if from one of the interpretations of the norm it follows that there is a threat of violation of the constitutionally entrenched right. The problem of vagueness of a norm should be resolved through interpretation of the norm, but the obligation of faithful interpretation is an insufficient guarantee for protection of a right. In the claimants’ opinion, the problem of vagueness of the disputed norm is resolved neither by reading it in conjunction with other norms of the law.

During the examination on merits, in accordance with art.13 (2) of the Law on the Constitutional Proceedings the claimants have decreased scope of their claim. In their opinion, if the conjunction “or” following the words “by the resolution of a prosecutor’ is taken out from the disputed norm, then the two conditions given in art. 9(2) will be understood as the grounds for conducting operative-investigatory activity. The conditions listed in the norm would lose facultative meaning and it will be possible to undertake operative-investigatory activity only by the order of a judge or by the resolution of a prosecutor.

5. According to the respondents, the claimants’ interpretation of the first sentence of art.9 (2) of the Law on Operative-Investigatory Activity is not correct. This norm is a general rule, which establishes: 1. on what kind of legal acts should the conduct of an operative-investigatory activity, which limits privacy of communication through telephone or through other means, be based upon; and 2. based on what circumstances can a relevant body start the mentioned activity. The last two conditions of the disputed norm are only grounds for starting an operative-investigatory activity and do not represent the procedure of conducting such an activity. According to representatives of the respondent, the relevant body should start operative-investigatory activity in accordance with the procedure established by art.7 of the same law and this will eliminate the possibility of limiting human rights through sidestepping judiciary. In the case of urgent necessity, when the law does not require order of the judge for initiating operative-investigatory activity, the lawfulness of the activity is ultimately decided by the court. In the respondents’ opinion, the contents of the disputed norm should be established in conjunction with other norms of the same law. An interpretation of the disputed norm in isolation will result in violation of art. 7 as well as art.9.

The respondent’s opinions concerning interrelation of art.8 and art.9 (2) are contradictory. Initially, the representatives of the respondent stated that art. 9(2) established additional ground, different from the one established by art.8. Art.8 is a general rule in terms of establishing conditions for conducting operative-investigatory activity, unlike the disputed norm, which is special in this sense. Additionally, it is prohibitive and limits powers of the law enforcement bodies while undertaking the mentioned operative-investigatory activity. Without such an additional condition, an operative-investigatory activity would be regulated by general conditions established by art. 8. This would broaden the possibilities of undertaking such activities and would create more threat to the protection of human rights. Later the representatives of the respondent stated, that art.8 establishes exhaustive grounds for undertaking operative-investigatory activity and that it also encompasses those conditions defined in art.9.

The respondent’s position concerning vagueness of the disputed norm is also inconsistent. In their response, they stated that the norm is not vague and that it clearly defines rights and obligations of the state as well as of individuals. According to them, the vagueness of the norm means that it allows for its different readings and applications. In the present case, a different interpretation of the norm is impossible if it will be read in the whole context of the law. Later, on the proceedings, the representative of the respondent clarified, that the norm could have been to some extent inaccurate. The representative also did not exclude the possibility of taking out conjunction “or” from the norm and modify it so that the contents and aim of the norm would not be lost. Later the representatives of the respondent stated, that existing formulation of the norm does not hinder interpretation of the norm in line with the law and the Constitution. In the concluding statement, they again changed their position and stated, that the norm is accurate in terms of its content as well as in terms of legal technique and that the existence of the conjunction “or” in the norm ensures better its proper reading and application.

In the respondent’s opinion, generally conjunction “or” indicates optionality, but in the present case it provides for cumulative character of conditions established by the disputed norm. Taking out the conjunction will result in the elimination of an obligation to read and apply the norm with regard to the context of the law and also in the loss of the intent of the legislator.

6.In the opinion of the invited specialist – Mr.Venedi Benidze, Professor and the Dean of the Legal Department of Tbilisi State University of Economic Relations, the disputed norm represents synthesis of relevant laws of the foreign countries. In his opinion, the first sentence of the art.9(2) of the law on Operative-Investigatory Activity, establishes a different type of rule, than that provided for by other norms of the same law, on conduct of the operative-investigatory activity, related to recording of communication through telephone or through other means. Notwithstanding that other norms of the same law require a judge’s order or a prosecutor’s resolution for a conduct of operative-investigatory activity, the disputed norm establishes different regulation of the relation. In his opinion, the basis of such an interpretation is given by the conjunction “or”. When undertaking of an operative-investigatory activity is possible without an order of a judge and a resolution of a prosecutor, the conjunction “or” produces two independent and alternative legal grounds. According to the specialist, this is conditioned by the following: when this disputed norm was adopted, it was acknowledged in the legal science, that if an individual had applied to the operative-investigatory body with a request to record his/her communication, then recording would not be deemed as a limitation of the constitutional right of the individual and thus would not produce necessity of reviewing its lawfulness by a court.

On the basis of the mentioned reasons, he thinks that the disputed norm is unconstitutional. The vagueness of the disputed norm allowing its several interpretations also indicates that the norm is unconstitutional. Mr. Benidze states, that taking out the conjunction “or” would change wholly the definition of the disputed norm. It would limit capacity of operative-investigatory bodies. In this case, the conditions following the conjunction would lose an independent, alternative character of undertaking operative-investigatory activity and would become additional restrictive conditions for operative-investigatory bodies. In his opinion, in the present case, it does not matter whether the disputed norm is special or general by nature, because general as well as special norms should be in line with the Constitution.

7. Invited witness on the hearing – Mr. Murtaz Zodelava and Mr. George Obgaidze, staff members of the General Prosecutor’s Office of Georgia, addressed the issues of practical application of the disputed norm. According to their explanation, an operative-investigatory activity which limits confidentiality of communication through telephone or through other means is undertaken only by the order of the court. In the case of urgent necessity it is conducted by the resolution of the prosecutor, which would later be reviewed by the court. The first sentence of the art.9 (2) of the Law of Georgia on Operative-Investigatory Activity is a limiting norm for operative-investigatory body. In the first part of the norm, there is a formal ground for conducting operative-investigatory activity, while in the second part (following conjunction “or”) there is a material ground. If conditions established by the second part of the disputed norm are not present, than the body exercising operative-investigatory activity cannot apply to the court or to the prosecutor and cannot request conduct of the operative-investigatory activity listed in the same norm.

According to witnesses’ explanation, existence of the conjunction “or” in the disputed norm may produce vagueness but does not hinder the General Prosecutor’s Office to interpret it in line with the Constitution and the law and establish consistent application practice. The General Prosecutor’s office supervises activities of operative-investigatory bodies and within the period of existence of the disputed norm, there was no case, when the operative-investigatory activities, listed in the second sentence of the art.9 (2) of the Law on Operative-Investigatory Activity, were conducted without the order of a judge. In their opinion, nonexistence of conjunction “or” in the disputed norm would not hinder operative-investigatory body to interpret and apply the norm in the way it does at present.

II

1. The fundamental constitutional principles assist in identifying contents of the Constitution and, at the same time, define main direction of the state development. When deciding particular disputes, the Constitutional Court is obliged to analyze the constitutional norm separately as well as in the whole context of the Constitution, so that these norms through interpretation are in line with the value order given in the Constitution. Only through this way can the constitutional norm be interpreted coherently, ensuring right constitutional review of a disputed norm.

2. The principles of democracy and rule of law are the most important ones among the constitutional principles. They are the foundation of every other constitutional norm as well as other constitutional principles. The constitutional order is founded on these principles. Apart from this, they oblige the state to be bound by the Constitution, which means that no branch of a government has the right to act only on the basis of expediency, a political necessity or other ground. A Government should act on the basis of the Constitution and the laws. Only in this way can just legal order be produced, without which there is no chance for democratic state under the rule of law.

3. Fundamental constitutional principles are guarantees for protection of human dignity. Dignity and personal freedom of the individual are reflected in the human rights, their protection and full realization. Therefore, disproportional interference within these rights violates human dignity also. Generally, fundamental rights obligate the state to guarantee self-realization of personal freedom of every individual. This requires cautiousness and keeping balance by the state while interfering in the right or establishing scope of regulation. From this perspective, the significant guarantee is norm-principles that ensure democracy and rule of law and define the scope and substance of relation between the state and the individual. In particular, “The state authority is exercised within the boundaries set by the Constitution” (art.5, Para 1 of the Constitution); “The state shall recognize and protect universally recognized human rights and freedoms as eternal and supreme human values. While exercising authority, the people and the state shall be bound by these rights and freedoms as directly acting law” (art.7).

4. The right to privacy is one of the most important rights. The particular constitutional guarantee of the right is reflected in art.20 of the Constitution. The right of privacy guarantees physical and moral inviolability, as well as inviolability of his/her name, personal records, privacy of housing and intimate life, privacy of correspondence and communication. Each of the above mentioned, while guaranteeing the right to privacy, also has independent meaning.

Generally, privacy denotes private sphere of individual’s life and development. As to the right to privacy, it on the one hand, means the capacity of the individual to lead his/her life independently according to his/her views and on the other hand, be protected against interference from the state or other person in his/her private life.

Protection of the right to privacy is guaranteed by obligations of the state stemming from the same article. On the one hand there is a positive obligation of the state to ensure respect for private life and effective enjoyment which, first of all means elimination of obstacles hindering personal freedom of an individual. On the other hand, the state has a negative obligation not to interfere in the right protected by the art.20 of the Constitution and thus ensure protection of an individual against arbitrary interference from the side of state authorities.

It should be stated, that as private life is a very broad concept, it is impossible to give precise definition to the right to privacy. The European Court of Human Rights, whose case-law is very rich regarding the right to privacy, in many judgments also indicates to the impossibility of fully defining the right to privacy. “The court does not think possible and necessary to define concept of “private life” exhaustively” (Niemietz v. Germany, 16^th December 1992, par. 29).

5. In the given dispute it is not a task of the Constitutional Court to define fully the right to privacy. At the same time, the specificity of the claim is that neither the text of the norm, nor its separate provision is disputed, but its vagueness and the possibility of its different interpretation.

The Constitutional Court while examining the case on merits is confined by the contents of the claim. It is the obligation of the court to analyze, interpret and evaluate constitutional norms as well as a disputed norm. Therefore, the court should deliberate only on constitutionally acceptable limits to the right of privacy of the communication through telephone or through other means. The court should also answer the question on what is the vagueness of a norm and when and in what cases a vague norm is unconstitutional.

6. Written as well as oral communication is protected within the right to inviolability of communication through telephone or through other means. The aim of the Constitution in this case is to protect communication between persons through any means. The state is prohibited from accessing contents of the communication as well as controlling with whom and by what intensity the communication persisted. At the same time this right is not absolute.

7. While protecting individuals’ dignity through adequately guaranteeing human rights, the state is at the same time obliged to take into account the interrelation of the state and individual in the democratic, social state under rule of law. Therefore, legislation should be produced to maintain and support social coexistence, but with the condition that every individual’s private sphere is protected.

“One of the most important preconditions for the stability of a modern state is right and just allocation of priorities between private and public interests, establishing balanced relationship between the state and the individual. This is first of all reflected in the legislative definition of the scope and the content of a particular right.” (2007.07.03 N1/2/384 Judgment, Citizens of Georgia - David Jimshelashvili, Tariel Gvetadze and Neli Dalalishvili v. The Parliament of Georgia)

Fundamental constitutional principles equally require realization of private and public interests necessary for democratic state governed by rule of law and protection of reasonable and proportional balance between them.

8. The Constitution provides for limitation of the right to privacy and also establishes the scope of acceptable interference by the state with the right. Interference with the right to privacy of communication by telephone or by other technical means is a significant limitation of the right to privacy. This right is one of those rights, in defining of which the authority draws line between a democratic and police state.

Generally secret surveillance on individuals is characteristic to a police state. At the same time, protection of constitutional order, state and national interests and order, prevention of crime, ultimately contributing to effective protection of human rights, is an obligation of a democratic state under the rule of law. The limitation of the right is contributing to the protection of mentioned public interests.

Interference with the right on the basis of public interests is also provided for by art.8 of the European Convention on Human Rights, pursuant to which interference with a right is acceptable when it is necessary in a democratic society in the interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Within the range of the above mentioned public interests, the position of the majority of states regarding the aims and grounds for restriction of right provided by the legislation is more or less analogous. The public interest which should be balanced against private interest in this case is given in art.2 of the Law on Operative-Investigatory Activity, while grounds are given in art. 8 of the same law.

9. It is an obligation of every democratic state to take all measures necessary to prevent serious threats to the stability of democratic institutions. Because of these threats, the state should be able to conduct secret surveillance on those individuals from whom such threats may stem from. In this case secret interference with the right ensures protection of public interest.

Obviously, the rights of those individuals who threaten constitutional order, existence of democratic state and others’ rights and freedoms cannot be protected by the Constitution.

The existence of the above mentioned public interests is not sufficient for constitutional interference in the right. There should be an obvious necessity for protection of public interest. The legislator should put in place adequate mechanisms to ensure that in the cases of interference with the right, with the intention to protect public interest, the protection of the latter is really necessary.

Apart from this, state with the intention of eliminating a serious threat does not have a right to take all measures that it deems adequate. The interference in the right, because of its secretive character, creates risk of arbitrariness, which could have deleterious effects for a whole democratic society. Therefore, in the democratic state, the interference in the right is lawful only then, when there will be effective mechanism in the legislation that would protect against abuse of power. The state which keeps its citizens under the risk of secret surveillance, should not have unfettered powers. Otherwise, an unbalanced legislation, aimed at protection of democracy, may make democracy itself very fragile.

10. The constitutionally established scope of interference with the right reflects the balance between private and public interest. In particular, pursuant to art. 20(2) of the Constitution the limitation of mentioned right is only permissible by a court decision or urgent necessity provided for by the law.

This constitutional norm gives discretion to the legislator to define the contents of the right to privacy, but with the condition that the will of the legislator will be adequate to the requirements of the Constitution.

In the given case, we should analyze how a legislator balanced private and public interests and how clearly and unequivocally it reflected this balance in art 9(2) of the Law on Operative-Investigatory Activity.

11. In the given dispute, it seems that the problematic nature of the norm is connected with its vagueness. Generally, the legislator is obliged to adopt the laws that satisfy criteria of foreseebility and unambiguousness. This obligation of the legislator stems from the principle of the rule of law. A product of the legislator can only be deemed to be the law if it satisfies quality requirements of a law. The latter implies that the law should be compatible with the principle of the rule of law and legal certainty. The quality of a law requires that legislative regulation is so clear that an individual, whose rights are interfered with, could comprehend legal situation and direct its actions accordingly.

In this regard, the approach of the European Court of Human rights is interesting. In number of judgments, the court has stated that a particular law should be accessible to an individual who should be able to foresee its effects on him/her. Additionally, the law should not be contrary to the rule of law principle. (Laender v. Switzerland, 26 of March 1970, Para. 50; Kruslin v France, 24^th of April 1990, Para.27; Huvig v France, 24^th of April 1990; Kopp v. Switzerland 25^th of March 1998, Para.55; Malone v. United Kingdom, 2^nd of August 1983 Para.67; Barthold v. Federal republic of Germany 25^th of March of 1985, Para.45; Griogoriades v. Greece 25^th of November 1997, Para.37).

The Constitutional Court of Georgia has stated regarding foreseebility and accessibility of a legal act that “the norm should be clear and compatible with the requirements of certainty. An individual should be able to comprehend what the law requires from him/her and adapt his actions to this requirement. The Constitutional Court, while analyzing compatibility of other norms with the constitutional ones, should establish whether violation of a right was a result of uncertainty of a norm” (The judgment of the Constitutional Court of Georgia,26.10.2007, N2/2/389 Citizen of Georgia Maia Natadze and others against the Parliament and President of Georgia.)

In the present case, the Constitutional Court should examine whether the certainty of the norm is of sufficient degree to rule out the possibility of violation of the constitutional right. Obviously, this does not concern the cases when constitutional right is violated because of illegal act. Examination of such issues is outside the competence of the Constitutional Court. The decisive significance has the following factor: whether a norm, read and applied adequately to its texts and contents, contains risk of violation of the constitutional right.

12. The vagueness of the norm, which is evaluated by the criteria of foreseebility and accessibility, in conjunction with the proportionality principle, plays a significant role in establishing constitutionality of a given norm.

As was mentioned above, a right is interfered with in order to realize certain public good. While examining on the basis of the proportionality principle whether there were violation of a right or not, due attention should be drawed to the extent of the potential threat to the public good. This protected good, on the one hand, is a particular right, necessary limitation of which is an issue, and on the other hand, public interest, for the protection of which it is necessary to interfere with the right. If preconditions of interference with the right are not clear and sufficiently specific, this will create risk of exaggerated interference with the right as well as incorrectly satisfying the interest. Therefore, reasonable and proportional balance between private and public interests will not be made. The norm regulating interference with the right would also not satisfy requirements of proportionality principle.

13. In the given dispute the art. 9(2) of the Law on Operative-Investigatory Activity should be examined on the basis of foreseebility. It should be also stated, that examination of the limiting norms of the right to privacy of the communication through telephone or through other means on the basis of accessibility and foreseebility should be much stricter, than it is applied in relation to compatibility of other norms with the Constitution, because of the following: a) the nature of the interference with the right – an operative-investigatory activity is conducted in secret. Pursuant to art. 5(1) of the law on Operative-Investigatory Activity the conduct of this activity is “strictly confidential”. Therefore, particular individuals do not know when this activity is conducted in relation to them; b) an individual does not participate in the proceedings in which the necessity of conducting operative-investigatory activity is decided. Therefore, he/she knows nothing about the lawfulness of such an activity and furthermore, lacks capacity to avoid interference from the state; c) It is difficult to protect interests of third persons also. These are persons who are not the primary objects of the operative-investigatory activity. They could be objects of secret control only then when they communicate with those persons through telephone or through other means that are the primary object of secret surveillance. The third persons do not expect any control from the state and thus cannot defend themselves.

On the basis of the above mentioned, the protection of this sphere of private life should be of higher degree. The law should give clear and specific aims, tasks and grounds for interfering with this right. The rule allowing interference should be unambiguous, clear and foreseeable, so that individuals know when they maybe subject to the risk of interference with their right.

In this regard the position of the European Court of Human Rights is noteworthy. “…tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a “law” that is particularly precise. “

14. Specificity of the protected sphere of the right and the nature of interference gives additional requirements for the law:

a) The accuracy, foreseebility and accessibility of a law encompass also the necessary condition, that the scope of a permissible action of those persons in power to interfere with the right be specific and clear. Such a requirement for the legal act is necessary for limiting and controlling those in power to interfere. In order a law to be compatible with the principle of rule of law, it should ensure effective protection of the right against arbitrary interference from the state. This, first of all, means that the law itself should clearly and in sufficient detail define powers of a public authority in this sphere. Therefore, the law should not allow that the public authority itself defines the scope of its permissible actions. If the person responsible for the interference in the right does not know clearly and accurately the scope of his permissible actions, the risk of an exaggerated interference and also the temptation to abuse the power will rise. For ensuring realization of a state authority within the confines set by the Constitution, the norm should be sufficiently clear to rule out its subjective interpretation and application.

b) The foreseebility is also important for timely and effective judicial review. Citizens should know in what circumstances, on the basis of what grounds, their rights maybe interfered and be able to enjoy the right to apply to the court, which has a decisive importance for full protection of the right. Therefore, it is important to have the following legal guarantee: pursuant to art.6 (2) of the Law on Operative-Investigatory Activity, “person, who thinks that as a result of an action of the operative-investigatory body his/her rights and freedoms have been violated, can appeal lawfulness of such an action to the higher state body, to the prosecutor or to the court”
However, if the law is not sufficiently clear, then it will be impossible to foresee what is deemed unlawful and thus the right to access to the court will also be fragile.

15. Generally requirements regarding the state are stricter as the intensity of interference with the right becomes serious. Legislators are under the obligation to provide a public authority with guiding directives, which make foreseeable possibility of making certain decision, necessity, correctness and lawfulness of such a decision, and at the same time enable citizens to have an idea about the measures that will be taken against them.

Foreseebility of a law is a directive for the legislative body and also a limiting factor for government and judicial branch. A Legislature is obligated to establish clear boundaries for a public authority.

16. It should be stated, that the possibility of inconsistent interpretation of a norm would not always indicate its unconstitutionality. The possibility of different interpretations of a norm, furthermore, existence of unconstitutional practice on its basis, does not mean that the norm is unconstitutional, in the same manner as the constitutional practice established on the basis of a vague norm is not decisive for its constitutionality.

The vagueness of the norm does not go beyond its constitutionality threshold if it is possible to reasonably interpret it through legal methodology, so that the real contents of the relations regulated by the norm is demonstrated with sufficient clarity.

Thus, in order to examine constitutionality of the norm, first of all its contents should be identified. For this reason it is necessary to interpret it.

17. The will of the legislature, as well as, the will of the law should be established through interpretation. In particular cases, legislature may not express its will with sufficient clarity, accuracy and with adequate specificity. Therefore, in these cases the text of the norm will not be reflective of the opinions and desires of the legislator and the will of the legislator will be different from the will of the law. In these cases, the person applying the norm should understand the true aim of the legislator and in this the norm should help him. The person applying the norm first of all grounds its judgment on the text of the norm. If from the text it is impossible to identify the will of the legislator, then the will of the law should be decisive. The law should be understood and conceived the way it is written. In the application of the norm, priority should be given to the will of the law, as the opinions and objectives expressed during the legislative process, on which the draft laws are grounded and which are not expressed in the adopted law, will not be of use for justification of a particular decision made in the application of the norm. The person applying the norm is obliged to guide itself by the text of the norm, by the reality expressed and not the one that should have been expressed in the norm. Thus, in this case, his/her judgment will be the right one, compatible with the law, but not reflective of the will of the legislature.

18. In order to identify the will of the legislature the respondent, on the ground of the request of the Constitutional Court, submitted stenographic records of the Law on Operative-Investigatory Activity on the hearing. It should be noted that at the time of the adoption of the law, one of its most important innovation was introduction of a judicial control, specifically, that such an operative-investigatory activity, restricting privacy of communication by telephone or by other technical means, could not be undertaken without the order of a judge. This fact was emphasized by the initiator of the law - the Minister of Justice, as well as, by the Chairman of the Committee of the Parliament of Georgia on Constitutionality, Legal Issues and Legality.

It appears from the stenographic records that, while adopting the law, the general will was that such an interference in the human rights should be possible only by the order of a judge. However, there is no evidence of this will specifically towards art.9 (2).

It should be noted also that on the hearings the representatives of the respondent has expressed contradictory and inconsistent opinions regarding art.9 (2), which is provided in the descriptive part of this judgment and shall be examined in the motivational part.

Despite general motivation of the legislature, that such an interference in the right should be subjected to judicial control, the representatives of the respondent could not provide any conclusive evidence of the will of the legislator that it wanted this position to cover the cases of art.9(2) as well. Furthermore, the inconsistent position, expressed by the respondent, demonstrated more clearly the problems associated with this norm in terms of its foreseeability and necessity of its interpretation.

19. Although the subject of the topic is only constitutionality of conjunction “or” in art.9 (2), the court cannot sidestep examination of the norm in whole. The court should establish the content of the norm and decide whether it is in conformity or not with art. 20(1) of the Constitution. It should be noted here, that the court is not examining constitutionality of separate conditions given in the norm and, thus, is not able to ascertain their constitutionality or unconstitutionality.

20. Art. 9 of the law on Operative-Investigatory Activity is titled as “Conditions for conducting operative-investigatory activity”. It is supposed that specific conditions for conducting operative-investigatory activities are given in the second paragraph of this article .At the same time, this norm intentionally relates only to an operative-investigatory activity that limits legally guaranteed privacy of communication by telephone or by other technical means. According to the norm, conduct of such activities is permissible in the following conditions: 1. only by the order of a judge and a resolution of a prosecutor; 2. or on the ground of a written application of a person, who is a victim of illegal conduct; 3. or, if information about an illegal conduct is present, for which, under the criminal law, the penalty is more than two years of imprisonment. It is notable, that all participants of the proceeding – parties, witnesses and specialists agreed about the existence of these conditions in the disputed norm. However, their positions regarding functions of these conditions were different.

21. In the given dispute it is important to establish, how these conditions are related to each other, whether the given text of the norm enables interpretation suggested by the respondent, in particular that the first condition should be considered as a common rule for the conduct of a specific operative-investigatory activity relative to the remaining two conditions, as well as, relative to the grounds of such an activity. In order to understand this, firstly it is necessary to interpret the norm grammatically.

The first condition is related to the remaining two through conjunction “or”, which ensures interrelationship among these conditions. Therefore, the meaning of the disputed word in isolation, as well as, in the context of the whole norm should be understood through grammatical interpretation.

The word “or” is a conjunction. Generally, conjunction does not have independent meaning and is only connecting two words of the sentence or two sentences and establishes interrelationship between them. Conjunctions connect such two words or two sentences that are equal to each other. The conjunction “or” involves choosing one from number of alternatives or realization of one from number of possibilities through eliminating the remaining. Additionally, if conjunction is repeated than there should be comma before it. (A. Shanidze, Foundation of Gramatics of Georgian Language, I, Morphology, 1953. Also, L Kvachadze, Georgian Language, part 1, Lexis, Phonetics, Graphics and Morphology, 1981)

On the basis of the above mentioned the conjunction “or” in art.9 (2) connects two equal conditions with each other and implies choice of one. In other words there are two alternative conditions.

It is noteworthy, that respondents’ position regarding this is not consistent and clear. On the one hand, he recognizes that from grammatical perspective the conjunction “or” implies alternatives. At the same time pointing to the technical fault of the norm, deems acceptable taking out of the word, but in a manner that the meaning of the norm stays the same. However he also states, that in the case of nonexistence of the conjunction in the norm, it will be read anyway with the same meaning. The respondent also claims that the conjunction “or” specifically ensures his version of interpretation of the norm and that nonexistence of the word will change the meaning.

It should be noted, that necessity of the word “or” was not claimed by the witnesses. They stated that even if there is no conjunction, the norm will be interpreted anyway with the same meaning. Additionally, they stated that the word “or” makes the norm vague.

It is also interesting that, the second and the third conditions given in art.9 (2), which are connected to each other through conjunction “or”, are considered by the respondent, as well as, by the witnesses as alternatives to each other. They have not provided any firm argument on why conjunction “or” in the same norm, in one case implies cumulativeness and in the other alternativeness.

Such a contradictory position, when respondent does not know what meaning has the disputed word in the norm, points to inaccessibility and vagueness of the norm.

In the judgment of 19 October of 2000 on the case Volokh v. Poland, the European Court on Human Rights stated that the norm which is so vague that it confuses authorities is not compatible with the requirements of the law.

The only argument which was most frequently alleged by the respondent to support his position was the following: the respondent’s version of interpretation of the norm is a result only of reading it in conjunction with other norms and in the context of the whole law. This type of argument allows supposing and implies indirect recognition, that the norm taken separately is not read with the meaning suggested by his version of interpretation.

Thus, through grammatical analysis of the norm, there is not one rule and two grounds, but three equal alternative conditions. The existence of the disputed word “or” conditions such interpretation.

22. In examining the constitutionality of the norm, its reasonable interpretation requires taking into account the following: “the disputed norm should not be considered in isolation from other related norms, because such approach may lead the Constitutional Court to make wrong inferences…. if by faithful interpretation of the norm there is no possibility of applying it arbitrarily and against human rights that the norm would fully satisfy the requirements of legal security. (Judgment of 26^th October 2007, N2/2/389 on the case of the citizen of Georgia Maia Natadze and others v. The Parliament and the President of Georgia). However the following also should be taken into account: when the meaning of a certain provision is dependent upon the context of law, accuracy in the application of the norm and foreseebility of results should be ensured towards the norms taken as a whole. .

23. Before examination of art. 9(2) of the Law on Operative-Investigatory Activity in the context of the other norms of the same law, it is necessary to analyze the following issues: 1) what is the meaning of the conditions for limitation of the right provided for by the second sentence of the art. 20 (2) of the Constitution? 2) Do the last two conditions in art.9 (2) of the mentioned law constitute urgent necessity?

24. The constitutional condition (order of the judge) for interference with the right to privacy ensures a priori control on an operative-investigatory activity by an independent and neutral body. Obviously, this is to prevent abuse of power by the authorities. Nonpolitical nature of judiciary makes it neutral and independent. An independent law-abiding judge can in every particular instance make right and justified decision about the necessity of interference with the right.

However, existence of court decision itself does not mean proportional interference with the right. The decisive is existence of proper legal guarantees in the legislation for ensuring proportional restriction of a right on the ground of a court decision.

Therefore, it should be noted that this condition of limitation of a right does not mean the possibility of making decision without having appropriate legal regulation. Without this, the risk that the authorities would abuse power would be too high. In order to prevent arbitrariness and excessive interference in the right the answer about when and how this decision is made should be provided for by the law.

The judgment of the court should be the right one and justified. This should be made possible by the legislation; it should be sufficiently specific and clear that the judge could apply it correctly. Apart from this, there should be exhaustive answers about what issues the judgment should cover.

Thus, limitation of a right on the ground of a judgment of a court is one of the most important constitutional guarantees for the protection of the right as well as for keeping the right balance between the private and public interest.

25. As an alternative ground for the limitation of the right, the Constitution provides the condition of urgent necessity. As through grammatical analysis it was established that the conjunction “or” in art. 9(2) of the Law on the Operative-Investigatory Activity provides for alternativeness of conditions, it is of importance to examine whether the 2^nd and 3^rd conditions satisfy the definition of urgent necessity provided by art.20 of the Constitution.

26. For this reason it is important to analyze the following issues: What the urgent necessity provided for by the art.20 of the Constitution means? Who is responsible for establishing in each particular case whether there is urgent necessity or not and on the basis of what criteria the person should determine this?

According to the Constitution, it is only within the powers of legislature to provide reglamentation for the urgent necessity in any particular case. Therefore, the Constitution requires that no condition, even if it falls within the definition of urgent necessity, shall be a ground for limitation of a right without the order of a court unless it is expressly provided by the legislation. At the same time, the condition provided by the law, which may be used as a ground for interference with the right without the order of a judge, shall be fully compatible with the definition of urgent necessity provided by the constitution.

An urgent necessity involves such cases, when, on the basis of proportionality principle, realization of public interest provided by the constitution, is impossible for objective reasons, without inevitable, timely limitation of private interests. However, it should be unequivocal that protecting public interest through other means is clearly impossible. Urgency indicates a short period of time, in which it is impossible to get an order of a judge and therefore necessitates urgent action.

In the Law on Operative-Investigatory Activity the legislature defined as urgent necessity such cases, when delay can result in elimination of important factual data or it will be impossible obtain these data (art.7(4)).

It is noteworthy that, the constitutional condition for limitation of the right does not require that the cases of urgent necessity be mentioned with the same title, though for more clarity this is desirable. Therefore art. 7(4) of the mentioned law may not consider exhaustive cases of urgent necessity.

The existence of urgent necessity should be found out through analysis and interpretation of the norm. Thus, the will of the legislature concerning whether certain case falls under urgent necessity should be sufficiently clear in order to rule out any possibility for misapplication or misinterpretation of the norm and the risk of arbitrariness which would result in the violation of the right.

However, even legislator is not absolutely free in giving content to this concept. A decision on this issue should be made in accordance with the Constitution. The assessment whether this decision complies with the requirement of the constitution, is within the competence of the Constitutional Court.

As regards the second and third conditions provided by art.9 (2) of the Law on Operative-Investigatory Activity, they constitute additional grounds for initiating operative-investigatory activity. An urgent necessity provided by the law is not a ground, but a state, condition, which may or may not be present independently whether there are any grounds for interference with the right, including the ground provided by art. 9(2) of the mentioned law.

Therefore, as these conditions themselves do not constitute urgent necessity, which was also ascertained by each participant of the proceedings, then in cases of their presence the interference in the right shall be legitimate only by the order of a judge.

27. It should be examined, whether the rule provided by the Law on Operative-Investigatory Activity, which limits privacy of communication by telephone or by other technical means, also applies to the mentioned conditions. The law for this operative-investigatory activity specifically establishes a rule (art.7 (2) (H) and art.7 (3)) according to which this activity shall only be conducted by the order of a judge on the ground of prosecutor’s motion. It should be noted that this rule is repeated in art. 20 of the same law.

Thus on the one hand there is the will of legislature concerning the rule for conduct of such operative-investigatory activity. On the other hand, grammatical interpretation of art.9 (2) gives possibility to make contrary inferences.

The fact, that the rule is mentioned a number of times in the law and is also provided by art. 9(2) in which it is connected with other two conditions with conjunction “or”, allows making the following inferences:

In the cases of presence of the grounds provided for by art. 8 of the law, conduct of the mentioned operative-investigatory activity is possible only in accordance with the rule provided by art.7 (3) and art. 20.

The legislature specifically for limiting privacy of communication by telephone or by other technical means deemed the grounds provided by the art. 8 insufficient and established additional grounds (the 2^nd and 3^rd conditions of art.9 (2)) the separate existence of which, as respondent claims, is necessary for narrowing scope for interference and ensuring effective protection.

Along these two conditions the legislature has established additional condition to which it gave a general character in the above mentioned norms. The fact that general rule is given in the disputed norm as one of the alternative conditions, rules out its application as a rule in relation to other two conditions.

If the legislature wanted to add a ground to this operative-investigatory activity and at the same time keep unchanged the general rule, it would have been sufficient to write in art.9(2) only the 2^nd and 3^rd conditions, on which the rule necessitating an order of a judge would have applied.

On the basis of the above mentioned, reading of art.9 (2) and the mentioned norms together supports the position that it is impossible to read the norm in the manner proposed by the respondent.

28. In many legal acts there are ambiguous formulations. Their interpretation and application is wholly dependent upon the practice. Therefore, it is obvious, that in the case of vague norm, while examining its compatibility with the constitution, it is of high importance how it is applied in practice.

It should be noted, that according to the testimony of witnesses and submissions of specialists/experts the limitation of right to privacy of communication by telephone or by other technical means is only executed by the order of a judge. However, witnesses, specialists and respondents do not rule out a possibility that the norm may be applied by a person responsible for conducting operative-investigatory activity in the manner suggested by the claimant.

Examination of constitutionality of the application of a norm in practice is beyond the competence of the Constitutional Court, however examining in what way the norm may be applied after through its correct interpretation is obviously an important factor for deciding whether the norm is constitutional or not.

If the application practice of a vague norm complies with the constitution this of course indicates, to some extent, constitutionality of this norm, because it is supposed that if application of the norm is constitutional then this means that it can be interpreted in a consistent manner. Thus, in this case the vagueness of the norm and its unconstitutionality is doubtful. However, strict adherence to this argumentation could result in retaining of unconstitutional norms beyond the ones whose application practice is constitutional. Consistent application practice does not automatically mean that the norm is not vague or is not unconstitutional. A consistent and correct application practice of the norm may well be a result of high competence or good will of those applying it. However, this does not rule out even one instance of applying and interpreting the norm in contradiction to the Constitution. Therefore, in such a case the decisive is the text of the norm, whether it can be clearly interpreted in conformity with the Constitution. The norm should be clear and foreseeable to allow its correct interpretation and application.

Such a legal regulation, whose application raises risk of error, is not in line with the requirements of transparency and accuracy of legal acts.

29. Ultimately, through interpretation of the norm the following inferences can be drawn: although, interpretation of art.9 (2) of the Law on Operative-Investigatory Activity by the claimant and by the respondent are contradictory, none of them, as well as witnesses do not rule out a possibility of interpreting the norm in both ways. Furthermore, the respondent as well as the witnesses not only rule out, but also indicate to the vagueness of the norm.

As a result of interpretation of the norm it has been found out that, the disputed conjunction “or” stipulates alternativeness of the provided conditions and this is not ruled out through interpreting art. 9(2) in conjunction with other norms of the same law.

It should be noted, that nonexistence of the disputed word would have resulted in such an interpretation of the norm which has been suggested by the respondent and witnesses. However, this has been neither acknowledged nor rejected by the respondents and witnesses.

30. Therefore, the norm does not comply with the requirements of transparency and accessibility and through its reasonable interpretation using legal methodology; one version of its meaning is not compatible with the Constitution.

In particular the disputed word “or”, which causes problems with the norm, results in non compliance with the requirements of the principles of foreseebility and legal certainty and thus is not compatible with art. 20(1) of the Constitution.

31. In art. 9 (2) of the Law on Operative-Investigatory Activity there is a comma before the disputed conjunction “or”. The claimant also requires repealing it.

It should be noted, that in the norm the mentioned comma does not have independent meaning. Its existence is a result of a grammatical rule that when a conjunction “or” is repeated a comma shall be used before it. In the given case the conjunction “or” is repeated and therefore there is a comma before it. Thus, by recognition of the disputed word as unconstitutional the necessity of putting before it comma will be eliminated.

III

On the basis of art. 89 (1) (f) and art. 89 (2) of the Constitution of Georgia, art. 19(1)(e), art. 21(2) and art.21 (6), art.23 (1), art.25 (2) and art.25 (3), art. 39(1) (a), art 43(2),(4), (7) and (8) of the organic Law on the Constitutional Court of Georgia, art.32 and art.33 of the Law on Constitutional Proceedings,

THE CONSTITUTIONAL COURT
RULES:

1. The constitutional claim submitted by the claimants - Georgian Young Lawyers Association and Mrs. Ekaterine Lomtatidze v. The Parliament of Georgia shall be upheld and the word “…, or..” following the words “only by the order of judge and resolution of the prosecutor” in the first sentence of art.9 (2) of the Law on Operative-Investigatory Activity be recognized as unconstitutional with respect to art.20 (1) of the Constitution.

2. The word “…, or...” following the words “only by the order of a judge and the resolution of a prosecutor” in the first sentence of art. 9(2) of the Law on Operative-Investigatory Activity is void from the publication of this judgment.

3. This judgment is in force after its official announcement on the hearing of the Constitutional Court;

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

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

6. The judgment shall be published in the Legislative Bulletin of Georgia within 15 days.

Vakhtang Gvaramia (Chair of the Hearing)

Ketevan Eremedaze (Rapporteur Judge)

Besarion Zoidze