Composition of the Board:

Konstantine Vardzelashvili – President of the hearing;

Vakhtang Gvaramia – Member;

Ketevan Eremadze – Member, Judge Rapporteur;

Besarion Zoidze – Member.

Secretary of the hearing: Lili Skhirtladze.

Title of the case: Citizens of Georgia Konstantine Kubaneishvili, Mikheil Gumbatashvili and Teimuraz Mirazanashvili v. the Parliament of Georgia, the President of Georgia and the Ministry of Internal Affairs of Georgia.

Subject of the dispute: 1. The constitutionality of the following: 1. Article 172 (3) of the Civil Code of Georgia; 2. Article 9(1)(u) of the Law of Georgia “On Police”; 3. #317 Order of the President of Georgia of 21 My 2007 “On Identification of the Measures for the Prevention of Infringement of Real Property in Ownership”; 4. #747 Order of the Minister of Internal Affairs of Georgia of 24 May 2007 “On Appro­ving the Procedure for the Prevention of Infringement of Real Property in Ownership” In terms of Article 20(2) and Article 21(1) of the Constitution of Georgia.

Participants of the Court Hearing: Konstantine Kubaneishvili (claimant) and Giorgi Naskidrishvili (claimant’s representative).

I

1. On 11 December 2007 citizens of Georgia Konstantine Kubaneishvili, Mikheil Gumbatashvili and Teimuraz Mirazanashvili lodged a constitutional claim (registration number 445) with the Constitutional Court of Georgia. On 20 December 2007 the constitutional claim was referred to the First Board of the Constitutional Court of Georgia with the view of deciding about its admissibility for the consideration of the merits.

2. The following are invoked as a legal ground for seizing the Constitutional Court: 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” and Article 1(2) of the Law of Georgia “On Constitutional Legal Proceedings”.

3. According to the constitutional claim, the Law of Georgia of 8 December 2006 amending the Civil Code of Georgia, the Law of Georgia of 4 July 2007 amending the Law of Georgia “On Police”,#317 Order of the President of Georgia of 21 My 2007 “On Identification of the Measures for the Prevention of Infringement of Real Property in Ownership”, №747 Order of the Minister of Internal Affairs of Georgia of 24 May 2007 “On Approving the Procedure for the Prevention of Infringement of Real Property in Ownership” run counter to the Constitution of Georgia in terms of Article 20(2) and Article 21(1) of the Constitution of Georgia. Article 20(2) of the Constitution reads as follows: “No one shall have the right to enter the house and other possessions against the will of possessors, or conduct search unless there is a court decision or the urgent necessity provided for by law.” Article 21(1) reads as follows: “The property and the right to inherit shall be recognised and guaranteed. The abrogation of the universal right to property, of the right to acquire, alienate and inherit property shall be impermissible.”

The impugned provisions provide for the possibility of owners to request law enforcement agencies the prevention of infringement of real property without a relevant court judgment by presenting the document certifying legal ownership. This rule should not apply, where an alleged offender produces a written document certifying his/her ownership, lawful possession of or right to use respective real property.

4. The claimants explained to the Court that they are members of a joint partnership “Avtoparekhi 2007”. They jointly possessed about 60 individual detached garages located at №181 B. Khmelnitski street in Tbilisi. The claimants lawfully enjoyed their possession for years. It occupied 2200 square meters. According to the claimants, the aforementioned garages were realised by the Ministry of Economic Development of Georgia without any evidence, which would certify unlawful possession of the claimants. The claimants appealed the decision of the Ministry of Economic Development of Georgia in a court and there is a case pending before the Board of Administrative Cases of Tbilisi City Court. However, on 10 August 2007 through unlawful application of the impugned provisions the employees of #5 Tbilisi Subdivision of the Ministry of Internal Affairs of Georgia carried out forced ejection of the part of joint partnership “Avtoparekhi” members, among them, the applicants to the Constitutional Court, from the area jointly owned by them.

5. In the claimants’ opinion, the impugned provisions vest the law-enforcement authorities with illegal entitlement to arbitrarily resolve the disputes among citizens without due respect to a court decision, i.e. without the consideration of the merits and in extra-judicial proceedings. The persons considered “owners” by law-enforcement bodies manipulate this lacuna and in case of disputes they enjoy advantages vis-а-vis owners of real property. Accordingly, the right to property, as well as Article 20(2) of the Constitution are violated, since the interference with the right to inviolability of house and other possessions is only permitted under the conditions stipulated by law, and based on a court judgment or urgent necessity provided for by law. While the Law of Georgia “On Operative-Investigative Activity” is believed by the claimants to be this law, through enactment of the impugned provisions the State acquired an additional possibility to interfere with the protected field without the involvement of a court and other competent authorities.

6. The claimants believe that the impugned provisions violate Article 6 and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 12 and Article 17 of the Universal Declaration of Human Rights, and Article 17 of the International Covenant on Civil and Political rights.

Moreover, according to the constitutional claim the impugned sub-legislative normative acts fail to comply with the procedure for enactment-issuing normative acts established by the Law of Georgia “On Normative Acts”.

7. The claimants apart from the declaration of the impugned

acts as unconstitutional, request the Constitutional Court of Georgia to suspend the application of #747 Order of the Minister of Internal Affairs of Georgia of 24 May 2007 “On Approving the Procedure for the Prevention of Infringement of Real Property in Ownership” until its final judgment as the application of the impugned act may result in irreversible damage to the claimants.

8. The First Board of the Constitutional Court held oral administrative hearing on 13 March 2008. At the hearing the claimant’s representative specified the constitutional claim. Instead of the Law of Georgia of 4 July 2007 amending the Law of Georgia “On Police”, Article 9(1)(u) of the Law of Georgia “On Police” was referred and the Law of Georgia of 8 December 2006 amending the Civil Code of Georgia was substituted by Article 172(3) of the Civil Code of Georgia.

II

1. The claim in terms of Article 21(1) of the Constitution of Georgia is ill-founded. The claimant both in the constitutional claim and administrative hearing argued the unconstitutionality of the impugned provision by pointing out that the right to property is protected by law-enforcement bodies, in extra-judicial proceedings. There was no argument, however, adduced that Article 21(1) of the Constitution of Georgia provides for the obligation to ensure the respect for the right to property through the judicial procedure only. The Constitutional Court in its #1/2/384 judgment of 2 July 2007 in the case of citizens of Georgia: Davit Jimsheleishvili, Tariel Gvetadze and Neli Dalalishvili v. the Parliament of Georgia pronounced itself on Article 21(1) of the Constitution: “this provision is the guarantee of private property concept and of the basic human right at the same time. Ensuring the inviolability of the private property concept it is directed towards and obliges the legislator to set up the system of provisions, which will not question the existence of the concept. As regards the forms of and scopes for the interference with the right to property, these are determined by Article 21(2-3).

2. The claimant also failed to substantiate the unconstitutionality of the impugned provision in terms of Article 21(2) of the Constitution of Georgia. The claimant could not separate the values protected by Article 21(1) and Article 21(2) of the Constitution, failed to interpret the contents of and the scopes for the right to house and other possessions, did not try to explain the wording “other possessions”, whether lawful and unlawful possession is implied therein, hence, whether the claimants’ situation is in compliance with the requirements of the wording. No arguments were submitted to substantiate that the relations regulated by the impugned provisions are governed by Article 20(2) of the Constitution and that an owner’s right to request the prevention of infringement of his/her real property without a court’s judgment amounts to the interference with the right to respect for private life.

3. At the administrative hearing the claimants’ representative expressed contradictory opinions concerning the reasons of the violation of the claimants’ rights. On the one hand he numerously maintained that the violation was due to the wrong application of the impugned provisions by the law-enforcement bodies, which was explained by their lack of professionalism. The representative expressly stated that the documents at claimants’ disposal was sufficient for the examination of the dispute by a court and maintained that in such a case the claimants’ rights would not be violated. It appears from the arguments that the impugned acts enable the resolution of the dispute by a court and not by the law-enforcement bodies.

4. On the other hand, the claimants’ representative believes that the violation of the constitutional rights is caused by the impugned provisions as well. The only argumentation in this context is that unless the entitlement to the law-enforcement bodies to resolve the disputes, their unprofessional actions would not be the reason for the violation of the claimants’ rights.

5. The Constitutional Court pronounced itself on what impact the practice can make on the review of an impugned provision’s constitutionality in its №1/3/407 judgment of 26 December 2007 in the case of the Georgian Young Lawyers Association and Citizen of Georgia Ekaterine Lomtatidze v. the Parliament of Georgia: “It is beyond the competence per se of the Constitutional Court of Georgia to review the practice of application of a provision. However, it is of decisive importance in deciding about the constitutionality of an impugned provision to scrutinise what are the possibilities afforded by the provision in practice in case of its accurate understanding… the following is of crucial importance: whether a provision contains the risk of violating a constitutional right even in the case the proper understanding and application of its wording.” In the given case, the claimant does not believe that the impugned provision confers a possibility of its improper application, he merely thinks that if there were no impugned provisions the law-enforcement bodies would not be able to violate them. In this context, the improper practice of the application of the impugned provisions cannot be considered an argument for the unconstitutionality of the provision.

4. In the light of the above-mentioned, the claimant could not argue the relation of the impugned provisions with the invoked articles of the Convention. Under Article 16(1)(d) of the Law of Georgia “On Constitutional Legal Proceedings”, a constitutional claim “shall bear a reference to the provisions of the Constitution of Georgia, which in the claimant’s opinion, the impugned act is not in conformity with or which are violated by the latter”. The claimants and their representatives could not argue such a relation of the impugned provisions with the constitutional provisions either in the constitutional claim or at the administrative hearing.

5. In accordance with Article 16(1)(e) of the Law of Georgia “On Constitutional Legal Proceedings”, a constitutional claim “shall bear a reference to he evidence, which in the claimant’s opinion, corroborate the constitutional claim”. A similar requirement is stipulated by Article 31(2) of the Organic Law of Georgia “On the Constitutional Court of Georgia” under which, a constitutional claim must be reasoned and there must be the evidence which, in a claimant’s view, will substantiate the claim.

The constitutional claim fails to meet the above requirements of the legislation. Under Article 18(a) “a constitutional claim … shall not be admitted for the 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”.

5. The Constitutional Court is neither in the position to review the enactment of #747 Order of the Minister of Internal Affairs of Georgia of 24 May 2007 “On Approving the Procedure for the Prevention of Infringement of Real Property in Ownership” in violation of legality principle, as it is beyond its competence.

III

In the application of Article 89(1)(f) of the Constitution of Georgia; Article 19(1)(e), Article 21(2), Article 271(1), Article 31(2) and Article 39(1)(a), Article 43(5,7-8) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, Article 17(5), Article 18(a) and Article 21(2) of the Law of Georgia “On Constitutional Legal Proceedings”; Article 27(2-3) Article, 30, Article 31 and Article 33(1) of Rules of the Constitutional Court of Georgia,

The Constitutional Court of Georgia
resolves:

1. Not to admit №445 constitutional claim of citizens of Georgia Konstantine Kubaneishvili, Mikheil Gumbatashvili and Teimuraz Mirazanashvili v. the Parliament of Georgia, President of Georgia and the Ministry of Internal Affairs of Georgia 1. Article 172 (3) of the Civil Code of Georgia; 2. Article 9(1)(u) of the Law of Georgia “On Police”; 3. #317 Order of the President of Georgia of 21 My 2007 “On Identification of the Measures for the Prevention of Infringement of Real Property in Owner­ship”; 4. №747 Order of the Minister of Internal Affairs of Georgia of 24 May 2007 “On Approving the Procedure for the Prevention of Infringement of Real Property in Ownership” in terms of Article 20(2) and Article 21(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.