Composition of the Board:

Besik Loladze – President of the hearing;

Otar Sichinava – Member;

Lali Papiashvili – Member, Judge Rapporteur.

Secretary of the hearing: Lili Skhirtladze.

Title of the case: Citizen of Georgia Lia Surmava v. the Parliament of Georgia.

Subject of the dispute: The constitutionality of Article 1106 and Article 1151 of the Civil Code of Georgia in terms of Article 14 and Article 36(1-2) of the Constitution of Georgia.

Participants of the hearing: Citizen of Georgia L. Surmava (claimant); Representatives of the claimant L. Mukhashavria and N. Kvaratskhelia.

I

1. On 4 April 2008 citizen of Georgia L. Surmava lodged a constitutional claim with the Constitutional Court of Georgia (registration number 448). On 10 April 2008 constitutional claim #448 was referred to the Second Board with the view of deciding about its admissibility for the consideration of the merits.

2. The following are invoked as the legal basis for the application to the Constitutional Court: Article 42(1) and Article 89(1)(d-e) of the Constitution of Georgia; Article 19(1)(e), Article 25(5), Article 31, Article 39(1)(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 10(1) and Article 16; the judgment of Batumi City Court of 18 April 2007 on the recognition of claimant L. Surmava and respondent T. Murvanidze as co-owners of an accommodation house.

3. The impugned provisions are Article 1106 and Article 1151 of the Civil Code of Georgia. The title of Article 1106 is “Definition of Marriage”. The provision reads as follows: “Marriage shall be a voluntary union of a woman and a man for the purpose of founding a family and registered at a territorial branch of the Civil Register Agency (legal entity of public law within the Ministry of Justice of Georgia.” The second impugned (Article 1151. The Effect of Marriage Registration) provision reads as follows: “Only a marriage registered at a territorial branch of the Agency shall give rise to spousal rights and obligations.”

4. Claimant L. Surmava has been in civil partnership with R. Murvanidze since 1993. In 1998 the claimant and R. Murvanidze got married in an Orthodox Church. The claimant produced the marriage certificate issued by the Church dated 30 July 1998. According to the claimant, she and R. Murvanidze jointly purchased and refurbished an accommodation house in the course of co-habitation. R. Murvanidze died in 2005. The claimant faced problems in the recognition as a co-owner of the house. Batumi City Court found in the reasoning part of its judgment of 18 April 2007 that there was no legal basis for upholding L. Surmava’s claim concerning her recognition as a co-owner of the half of the disputed property.

5. In the claimant’s opinion, the court neglected Article 3 of the Constitutional Agreement between the State of Georgia and the Apostolic Autocephalous Orthodox Church of Georgia, which recognises marriage in a Church. Despite the fact that the Constitutional Agreement stands higher than a law of Georgia in the hierarchy of normative acts established by the Law of Georgia “On Normative Acts”, the court gave priority to the Civil Code of Georgia. This resulted in the infringement of the claimant’s both property and non-property rights.

6. The claimant argues that Article 36(1) of the Constitution of Georgia not only enshrines the right to freely choose a spouse and take a decision to marry with him/her, but also the right to opt for the most acceptable and desirable way – civil marriage or religious marriage. This freedom of choice is afforded by Article 3 of the Constitutional Agreement between the State of Georgia and the Apostolic Autocephalous Orthodox Church of Georgia, under which “the State shall recognise marriage in a Church.” In the light of this wording, the individuals who got married in a Church should not have any doubts about the legal effects of such a marriage. These circumstances misled the claimant otherwise she and R. Murvanidze would do their best to get their marriage registered by an Agency.

7. The claimant believes that upon conclusion of the Constitutional Agreement, the Parliament of Georgia should have amended the Civil Code of Georgia in order to bring religious marriage to the same level as civil marriage.

The Parliament of Georgia has not effected the aforementioned amendments, which resulted in the infringement of the claimant’s basic rights. In her opinion, “this is an impermissible legal and constitutional shortcoming, which necessitates an immediate correction”. The claimant is assured that the existing legal shortcoming runs counter to Article 36(2) of the Constitution of Georgia, under which “State shall promote the well-being of a family”.

8. According to the constitutional claim the claimant is discriminated against based on religious grounds, which amounts to the violation of Article 14 of the Constitution of Georgia. The priority given to the Orthodox Christian religion and religious marriage places the claimant and her deceased spouse in an unequal condition vis-а-vis other couples, who, despite religion gave priority to civil marriage. The women, who has been in civil marriage do not find themselves in the same situation as the claimant after being widowed. Whereas, the claimant’s property and non-property rights have been violated and due to the impugned provision she is deprived of an effective judicial remedy too.

9. The claimant apart from the claim to declare the impugned provisions unconstitutional also requests: 1. to suspend the application of the impugned provisions until the final judgment of the Constitutional Court of Georgia; and 2. to discontinue the dispute before a court of general jurisdiction on the account of recognition of the claimant as a co-owner of the accommodation house and reimbursement of the expenses incurred until the final judgment of the Constitutional Court.

10. The Second Board of the Constitutional Court of Georgia decided by its recording notice #2/2/448 of 22 September 2008 to hold an oral administrative hearing. Oral administrative hearing of the Board was held on 23 September 2008.

11. Representative of the claimant, L. Mukkhashavria observed at the administrative meeting that there is no ground for inadmissibility of #448 constitutional claim for the consideration of the merits. The constitutional claim, both in terms of the form and the contents, meets the requirements of the Law of Georgia “On Constitutional Legal Proceedings”.

12. L. Mukhashavria observed that during religious marriage a certificate is issued but the spouses are not warned that such a marriage does not give rise to legal effects. Under these circumstance individuals find themselves outside normative regulation and protection. This cannot reconcile with Article 36(2) requesting the protection of the well-being of a family.

13. In L. Mukhashavria’s opinion after the application of the Constitutional Agreement between the State of Georgia and the Apostolic Autocephalous Orthodox Church of Georgia, there are two legal forms of marriage, one of which is determined by the aforementioned Constitutional Agreement and another by the Civil Code of Georgia. The problem is posed by the word “only” in Article 1151 of the Civil Code of Georgia. In case of invalidation of this wording, the courts of general jurisdiction will be afforded greater leeway in the application of Article 3 of the Constitutional Agreement. Moreover, the both forms of marriage will be having legal effect for spouses. The Parliament of Georgia will be obliged to amend the legislation accordingly.

14. According to L. Mukhashavria, since the Civil Code of Georgia came into force, the courts of general jurisdiction have developed jurisprudence against the recognition of legal effects of marriage. This case-law has not changed in the aftermath of the Constitutional Agreement which is not appropriate.

15. The claimant’s representative believes that in case of adding the wording “or, religious marriage as well” to Article 1106 of the Civil Code of Georgia, the constitutionality problem would cease to exist and the Article would apply to religious marriage too.

16. The claimant’s representative redeemed the mistake made in the constitutional claim under the head of the legal basis of the application to the Constitutional Court. The claimant clarified that the impugned provisions contradict the part of Article 14 of the Constitution of Georgia guarantying equality before law irrespective “other opinions”. L. Mukhashavria, however, further observed that considering the way the claimant was brought up, the priority given to religious marriage was related to religious believes.

17. The claimant’s representative withdrew other claims related to the application of the impugned provisions and suspension of the proceedings before a court of general jurisdiction until the final judgment of the Constitutional Court. She also specified the constitutional claim in terms of Article 1151 of the Civil Code of Georgia and maintained that the word “only” had to be declared unconstitutional.

18. At the administrative hearing the claimant motioned the Constitutional Court for leave to adduce further evidence. The Constitutional Court upheld the motion and the claimant submitted the decision of Kutaisi Appeal Court adopted on 31 October 2007 (case #2/b-831-07) and the judgment of the Supreme Court adopted on 15 May 2008 (case ##-968-1269-07).

19. The claimant maintained at the administrative hearing that there was no legal impediment to her civil marriage with R. Murvanidze, including religious believe. She and R. Murvanidze being rthodox Christians gave priority to religious marriage. They were not aware that such a marriage did not give rise to legal effects.

II

1. The Constitutional Court of Georgia has developed requirements in its jurisprudence for a constitutional claim and its reasoning. The Board is satisfied that any constitutional claim the admissibility of which is being examined must be scrutinised in the light of those very requirements.

2. The Constitutional Court is competent to examine the substance of the claims submitted in constitutional claim #448 and at the administrative hearing (ruling #2/3/441, II-1). The claimant makes a special emphasis on the inactivity of the Parliament of Georgia and the mistakes in the jurisprudence of the courts of general jurisdiction. In the claimant’s opinion, stemming from Article 3 of the Constitutional Agreement between the State of Georgia and Apostolic Autocephalous Orthodox Church of Georgia, which recognises marriage in a Church, the Parliament of Georgia should have amended the respective legislation of Georgia. The inactivity on the part of the Parliament of Georgia caused the shortcoming in legislation in contravention to Article 36(2) of the Constitution of Georgia, i.e. the State obligation to promote the well-being of a family. In the constitutional claim and at administrative hearing the claimant only gave information as to the incompatibility of the impugned provisions and constitutional agreement. It remains unclear why the claimant deems the impugned provision unconstitutional and what are her substantiating arguments. The claimant’s discourse cannot be considered substantial argumentation. She does not enable the Board to have a perception of the claimant’s opinions regarding unconstitutionality of the impugned provisions.

3. The arguments presented by the claimant in the constitutional claim and at the administrative hearing appear to be contradictory. She is confident that religious marriage and its legal effects are recognised by Article 3 of the Constitutional Agreement between the State of Georgia and the Apostolic Autocephalous Orthodox Church of Georgia. The claimant, however, questions her own submission, when she requests amendment of the Civil Code of Georgia, which is a normative act positioned lower in terms of hierarchy, so that the Constitutional Agreement took its effect in practice. The provisions of the Constitutional Agreement in the case of their divergence from those of the Civil Code of Georgia must apply anyway as having superior legal effect. This does not require amending the Civil Code of Georgia and scrutiny of the issue on the Part of the Constitutional Court.

4. In the claimant’s opinion the fact that individuals are not warned after religious marriage that it does not entail legal effects results into their being outside the realm of legal regulation and its protection, which is completely incompatible with Article 36(2) of the Constitution of Georgia. Hence a question, if the claimant is assured that religious marriage, stemming from the Constitutional Agreement, is a form of marriage recognised and can give rise to legal effects, then why she thinks the couples should be warned as to the contrary? Moreover, it is unclear, what is the link in this context with Article 36(2) of the Constitution, at least, stemming from the fact that the addressee of this provision is the State and not the Church?

5. The claimant argues on one hand, that the impugned provisions discriminate against her on the account of her believes. On the other hand, according to the constitutional claim and the administrative hearing there was no impediment to civil marriage of the claimant with R. Murvanidze, including religious or other believes. The claimant had an expectation that religious marriage would have legal effects and due to that they did not registered their marriage. It appears that because of this wrong expectation and on the account of the claimant’s viewpoint she found herself in a different situation from those in civil marriage.

6. The paradoxical arguments above cannot be considered by the Constitutional Court substantiating the constitutional claim and in compliance with the requirements of Article 31(2) of the Organic Law of Georgia “On the Constitutional Court of Georgia” and Article 16(1)(e) of the Law of Georgia “On Constitutional Legal Proceedings”.

7. The final submissions at the administrative hearing are based on the wrong expectations about the legal effects of upholding the constitutional claim. In the opinion of the claimant’s representative, deleting the word “only” in Article 1151 of the Civil Code of Georgia will result in equal effects for the two forms of marriage. As it is obvious the claimant’s representative believes that after the enactment of the Constitutional Agreement there are two legal forms of marriage and why the form established by a higher normative act should need the amendment of the other act providing for the second form of marriage in order to have a legal effect and why this would give a court of general jurisdiction “far more leeway in application Article 3 of the Constitutional agreement”.

8. In case the word “only” is deleted, Article 1151 of the Civil Code of Georgia will read as follows: “A marriage registered at a territorial branch of the Agency shall give rise to spousal rights and obligations.” The Board is of opinion that the provision will not be altered contextually. The requirement of marriage registration will still be in force. It should not be either overlooked that the provision concerned regulates civil marriage and is not concerned with religious marriage. It would be necessary to make addenda to Article 1151 and other relevant provisions instead of abrogating the Article entirely or partially in order to have it applied to religious marriage as well. In the light of the above-mentioned, no changes will take effect in the claimant’s status.

9. The Board believes that the arguments submitted, which are based on wrong expectations fail to meet the requirements of Article 31(2) of the Organic Law of Georgia “On the Constitutional Court of Georgia” and Article 16(1)(e) of the Law of Georgia “On Constitutional Legal Proceedings”.

10. As mentioned the claimant tries to make the point that the impugned provisions contradict the superior normative act – the Constitutional Agreement. However, the Constitutional Court of Georgia recalls that the incompatibility of an impugned provision with a superior normative act does not automatically amount to its unconstitutionality (#2/3/441 Ruling 2/3/441, II-4). The Constitutional Court, in such cases, not only finds a constitutional claim to be manifestly ill-founded but also holds that it is beyond its competence to pronounce itself on the incompatibility between different normative acts (#2/3/441 Ruling, II-5).

11. In the opinion of the claimant’s representative adding the words “or religious marriage as well” to Article 1106 of the Civil Code of Georgia would eliminate the issue of constitutionality. The Board maintains that it is beyond its competence to move addenda into the impugned provisions. The Constitutional Court pronounces itself on constitutionality of impugned provisions and declaring those provisions unconstitutional results in the invalidation of the act or of its part. The Constitutional Court does not carry out positive constitutional review. The authorised body to add certain words to Article 1106 of the Civil Code of Georgia is the Parliament of Georgia and not the Constitutional Court.

12. The claimant makes a special emphasis on the jurisprudence of the courts of general jurisdiction, where according to the claimant, the Constitutional Agreement is ignored and preference is given to the Civil Code of Georgia, which is an inferior normative act under the Law of Georgia “On Normative Acts”. The claimant believes that this practice caused the infringement of her property and non-property rights. The problems related to the interpretation of certain provision and their interpretation in specific contents is beyond the competence of the Constitutional Court of Georgia (#/15/398 Rulling2, I-3), #2/16/404 Ruling, II-3). The subject matter of the review carried out by the Constitutional Court is the constitutionality of a provision and not the expediency of application of certain norms by courts of general jurisdiction.

III

In the light of the above-mentioned, in the application of Article 21(2), Article 31(2), Article 43(5,8) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 16(1)(e), Article 18(a,c) of the Law of Georgia “On Constitutional Legal Proceedings”,

The Constitutional Court of Georgia
resolves:

1. Not to admit N448 constitutional claim (Lia Surmava 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 dispatched to the parties.

Members of the Board:

Besik Loladze

Otar Sichinava

Lali Papiashvili