Composition of the Board:

1. Konstantin Vardzelashvili – Chairman of the Hearing, Judge Rapportur;

2. Ketevan Eremadze – Member;

3. Vakhtang Gvararmia – Member;

4. Besarion Zoidze – Member.

Secretary of the Hearing: Lili Skhirtladze.

Title of the Case: Citizens of Georgia – David Sartania and Alexan­der Macharashvili v. the Parliament of Georgia and the Ministry of Justice of Georgia.

Subject of the Dispute: Constitutionality of paragraph 4 of Article 74 of the law of Georgia “On Imprisonment” and paragraph 8 of Article 14 of the Order N366 of 28 December 1999 of the Minister of Justice of Georgia “On Approval of the Statute and the Internal Regulation of the Prisons of Strict Regime” with respect to Articles 20 and 39 of the Constitution of Georgia.

Participants of the Hearing: Natia Katsitadze and Alexi Shoshikashvili representatives of the Claimants: David Sartania and Alexander Macharashvili.

I

1. On 24 July 2008, a constitutional claim (registration N458) was lodged with the Constitutional Court of Georgia by citizens of Georgia – David Sartania and Alexander Macharashvili. On 31 July 2008, the mentioned claim was referred to the First Board of the Constitutional Court with a view of deciding the issue of its admission for the consideration on merits.

2. Subparagraph “f” of the first paragraph of Article 89 of the Constitution of Georgia; subparagraph “e” of the first paragraph of Article 19, Article 31, subparagraph “a” of the first paragraph of Article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”; paragraph 2 of the first Article, the first paragraphs of Article 10 and of Article 16 of the law of Georgia “On the Constitutional Legal Proceedings” were indicated in the constitutional claim as a ground for application to the Constitutional Court.

3. It is clarified from the Constitutional Claim that the Claimants are the convicts and serve their sentences for having committed a grave and especially grave offences in the penitentiary institution. The Claimant, D. Sartania serves his sentence in the penitentiary institution of Rustavi N2 General, Strict and Prison Regime. He is allowed to have appointment with his wife and his minor children once in two months with the duration of an hour and only through a glass barrier just like as it is foreseen by paragraph 4 of Article 74 of the law of Georgia “On Imprisonment” and paragraph 8 of Article 14 of the Order N366 of 28 December 1999 of the Minister of Justice of Georgia “On Approval of the Statute and the Internal Regulation of the Prisons of Strict Regime”. Whereas the Claimant, A. Macharashvili is convicted for having committed an especially grave offence for the first time and serves his sentence in the penitentiary institution of strict regime. He is allowed to receive visits from his mother and a minor child only once in a month.

4. The Claimants consider that the restrictions on the number of visits laid down by the challenged norms contradict both Articles 20 and 30 of the Constitution of Georgia and Article 8 of the European Convention of 1950 for the protection of Human Rights. Under Article 20 of the Constitution of Georgia, everyone’s private life shall be inviolable, and under Article 39, the Constitution of Georgia shall not deny other universally recognized rights, freedoms and guarantees of an individual and a citizen, which are not referred to herein but stem inherently from the principles of the Constitution. Also, the right to respect for private and family life is guaranteed by Article 8 of the European Convention on Human Rights in particular, under the first part of this Article “Everyone has the right to respect for his private and family life, his home and his correspondence; There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and 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”.

5. Under paragraph 4 of Article 74 of the law of Georgia “On Imprisonment” and paragraph 8 of Article 14 of the Order N366 of 28 December 1999 of the Minister of Justice of Georgia “On Approval of the Statute and the Internal Regulation of the Prison of Strict Regime”, “the convict, who was awarded with imprisonment for the especially grave offence in the penitentiary institution of strict regime, shall have the right to receive no more than one visit in a month”. The person, who was sentenced to imprisonment in the penitentiary institution of strict regime in case of recidivism, if he previously served the sentence in the form of deprivation of liberty, shall have the right no more than one visit in two months.

6. Limiting the visits for convicts down to the right to receive visit once in a month or once in two months, in the Claimants’ opinion, represent the interference with the right to respect for their private and family life and it cannot be justified and proportionate to the aims the State seeks to achieve by imposing similar restrictions.

7. According to the claim statement, the Claimants do not cast doubt on the necessity to impose certain restrictions on inmates, but they consider that while laying down restrictions and applying them in practice, the character of the offence itself and its gravity and all specific circumstances should be envisaged. In their opinion, the restrictions with regard to this right should not be stricter that it is necessary for security in the democratic society, for the protection of the rights of others and for the purposes of the further prevention of crime.

8. Here, it should be noted that judgments of the European Court of Human Rights as evidences are provided in the claim, which deal with interpretations of the right to respect for private and family life as guaranteed by Article 8 of the European Convention on Human Rights.

9. The Claimants believe that Article 20 of the Constitution of Georgia completely encompasses the right to private life, and among them, the right to inviolability of family life of the prisoner. Pursuant to the mentioned Article: “Everyone’s private life, place of personal activity, personal records, correspondence, communication by telephone or other technical means, as well as message received through technical means shall be inviolable”. This list is followed by the provision of restrictions, under which “Restriction of the aforementioned rights shall be permissible by a court decision or also without such decision in the case of the urgent necessity provided for by law.”

10. The Administering Sitting of the First Board of the Constitutional Court was held on 4 November 2008 with an oral hearing.

II

1. It should be noted that after the administering sitting, according to paragraph 4 of the First Article of the law of Georgia of 26 December 2008 “On the changes and amendments introduced into the law of Georgia “On Imprisonment”, paragraph 4 of Article 74 of the law of Georgia “On Imprisonment” changed: “4. a convict who serves his/her sentence in the penitentiary institution of strict regime, shall have the right to have no more than one visit in a month, besides additional visit as defined by paragraph 4 of Article 48 of this law”.

2. Pursuant to new wording of the mentioned norm, any person, who serves his/her service in the penitentiary institution of strict regime, including those convicted for recidivism, shall have the right to have no more than one visit in a month, besides the additional visit. Consequently, paragraph 4 of Article 74 of the law of Georgia “On Imprisonment” does not any longer establish the different rule for those convicts held in the penitentiary institution of strict regime, who serve their sentence for recidivism. But at the same time, no changes were added to the Order N366 of 28 December 1999 of the Minister of Justice of Georgia “On Approval of the Statute and the Internal Regulation of the Prisons of Strict Regime”, which, in case of recidivism, allows a visit once in two months only. Respectively, the Order of the Minister of Justice of Georgia continues its application towards both Claimants, which only partly corresponds with the new wording of paragraph 4 of Article 74 of the law of Georgia “On Imprisonment”.

3. In order to ascertain the limits of application of Article 20 of the Constitution of Georgia, it is necessary to make structural analysis of both the right to private life and the constitutional norm. The Court should establish whether or not it is possible for this norm to protect such interest of private life as inviolability of family life.

4. The Constitutional right of private life constitutes an indivisible part of the concept of freedom. This is a person’s right to establish and develop relationships with other human beings according to his/her opinion, to determine his/her place, attitude and connection with the external world. The right to private life is a basis for independent development of every individual. The European Court of Human Rights repeatedly pointed out that inviolability of private life is a precondition for individual’s autonomy, independent development and protection of his/her dignity.

5. In the case “citizen of Georgia, Levan Sirbiladze v. the Parliament of Georgia”, the Constitutional Court noted that the right to private life “… shall not subject to exhaustive definition. The limits of freedom of private life, among other things, imply physical and psychological inviolability, physical and social identity of an individual, inviolability of name, intimate life, also a person’s right to establish and develop relationships with people and external world and etc”.

6. It is indisputable that private life of a person, among them, of a prisoner comprises ties and relations with his/her family members and his/her “close circle”. The family life includes relationships established between spouses as a result of marriage or factual cohabiting, human right to develop ties with family members and biological relatives.

7. Establishment and development of such relationship is closely linked with human freedom, his ability to freely express his/her will. By depriving the person of liberty not only the freedom of movement, but also his/her free will to maintain and develop relationships with family members and his/her family people are restricted. It is obvious that deprivation of liberty of a person based on a court decision or the urgent necessity automatically restricts the ties of the prisoner with external world. It is impossible to unrestrictedly enjoy the right to private life in prison.

8. It should also be noted that lawful detention of a person, besides the right to family life, also results in restriction of other aspects of private life and some other rights protected by the Constitution. The right of inviolability of personal correspondence and records as foreseen by Article 20 of the Constitution of Georgia shall not be properly ensured, since the possibility to receive and send messages is restricted. The right of an inmate to freely express his/her opinion, impart information, to carry out employment or economic activity is restricted. Along with it, some restriction, which would usually violate dignity and respect of a human being, is a concurrent effect of the prison life. Intimate life of a person, together with use of personal items, including personal hygienic items, is subject to prison rules and regulations.

9. Nevertheless, deprivation of liberty itself does not result in absolute restriction of the right to private life; lawful detention of a person may not serve as the basis for unlimited interference with any aspect of prisoner’s private life. A prisoner retains the right to private life, however, his/her family or social relationships as well as other aspects of private life are subject to restrictions provided for by law. In the General Comment on Article 10 (persons deprived of liberty) of the International Covenant on Civil and Political Rights, the UN Human Rights Committee referred that “Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment.” (General Comment 21/44, par.3)

10. The prisoner continues enjoying all constitutional rights, save for those rights, absolute restriction of which are foreseen by the Constitution itself (for example, Article 28 of the Constitution of Georgia), although the degree of enjoyment with these rights is different. For instance, the prisoner is provided with the right to found a family, but he/she is restricted to meet his/her family members. Since the right to private life is not absolute, the restriction will be justified if it complies with the test f proportionality.

11. In the case “Hirst v. United Kingdom”, the European Court of Human Rights submits that “prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. For example, prisoners …. continue to enjoy the right to respect for family life … Any restrictions on these other rights require to be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment.”

12. It should be noted that the list of relationships, events or activities that are linked with private life are met in different Articles of the Constitution of Georgia. Grounds and conditions for interfering with the rights protected by the mentioned Articles are different. In the case of Levan Sirbiladze v. the Parliament of Georgia, the Constitutional Court noted that “it would be mistake to limit the whole content of the inviolability of the right to private life to Article 20 of the Constitution. Separate legal components comprising the private life are protected by a number of Articles of Constitution, such as: Article 41, 16, 17 … - moral inviolability; freedom of expression and thought (Article 24), the right to found a family and so on”.

13. The Constitutional Court also indicated that “… Along with a range of legal components of private life prescribed in the first paragraph of Article 20, “private life” in general is stated, which forms the assumption that this concept comprehensively implies the whole sphere of private life, accordingly, Article 20 contains all legal components of private life, including those for protection of which other special norms are enshrined by the Constitution.

Naturally, it is impossible to neglect the fact that during violating any component of private life, inviolability of the right to private life is infringed in general, although, this circumstance does not allow to contend that by violation of any legal components, Article 20 is by all means infringed. At this time, we should envisage the construction on regulation of inviolability of private life provided in the Constitution. Without giving due regard to this, there is a high risk of incorrect interpretation of the content of separate legal components of private life and the limits for permissible interference with them”. (“Citizen of Georgia, Levan Sirbiladze v. the Parliament of Georgia”).

14. According to the judgment of the Constitutional Court of Georgia on the case the Public Defender of Georgia and the Young Georgian Lawyers’ Association v. the Parliament of Georgia, “person’s interest not to allow divulging the information related to private issues and to control impartment of this information, constitutes one of the main aspect of inviolability of the right to private life. Paragraph 2 of Article 41 is connected with Article 20 of the Constitution of Georgia, under which inviolability of private life is protected, …” (Judgment N2/3/406,408 of 30 October 2008).

15. The aforementioned court judgments indicate that the Constitutional Court of Georgia sees different aspects of private life into different constitutional norms.

16. It should be mentioned that private life “… during the period of formation of a right, inviolability of private life often is associated with an isolated sphere of an individual, which was expressed in certain institutional structures: in the protection of home, family and secrecy of messages” (Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, 2nd revised edition, 2005, at 377), the number of such structures have slowly increased (telecommunications, protection of personal data and etc). Protection of these institutions is attached such importance that the idea of inviolability of private life, which represented its underlying ground, often was brought to the background.

17. The goal of Article 20 of the Constitution of Georgia is associated with protection of inviolability of good listed therein. As concerns “private life” in general, it serves to underline the interest, because of which inviolability of personal correspondence, home and work place is protected. If in the footsteps of development of social life, new institutions containing information related to private life will form, then this general phrase will open the list and allow the court to protect those occasions that are not directly listed in the norm. For example, despite the allegedly detailed list, Article 20 does not contain the search of a person, although it is indisputable that exactly Article 20 protects the inviolability of a person, only by protection of requirements foreseen by this Article, it is possible to inspect a person, his/her body, clothes or/and personal item.

18. Under the term of private and family life, we can assume such relationships established and developed in the sphere of private life of a person, that are characterised by more intimacy, because of which they deserve special protection. Exactly that is why the interference with some aspects of private life will be unjustified, even in the event of presence of the grounds as foreseen by Article 20 of the Constitution of Georgia.

19. The urgent necessity and a court decision as foreseen by Article 20 of the Constitution of Georgia may be at the basis of inviolability of home or work place, personal correspondence, information of private nature. But it will be incomprehensible to restrict a person’s right to found a family by the motivation of urgent necessity or based on a court decision. It is incomprehensible that Article 20 of the Constitution of Georgia regulates such aspect of private life as an abortion, homosexual marriage, the right of a parent to raise his/her child based on his opinion and to define the issues related to his/her education and etc.

20. Naturally, the aforementioned aspects of private life may subject to legislative regulations. Restriction of such right may occur in the case provided for by law and based on a court decision only (for example, deprivation of the right to parenthood). In some cases, the goals and conditions for interference may be similar to Article 20 of the Constitution of Georgia, but not their identical. For instance, to restrict or deprive the right to parenthood may occur only with the purpose of protecting the right of a minor, it will be unjustifiable to interfere with the right to parenthood for achieving any other interest.

21. Stemming from the abovementioned, the Constitutional Court once again mentions that Article 20 of the Constitution of Georgia does not contain all aspects of private life, and among them, issue on relationship with family members. The special significance is attributed to family relationships as well as other personal connections with certain circle of human beings in order to ensure a person’s autonomy, his/her free and complete development. Precisely because, Article 16 of the Constitution of Georgia specially foresees the right to free development, and Article 36 cements the state obligation to promote wellbeing of a family. To determine the content and margins of the mentioned Articles will take place in the footsteps of development of the practice of the Constitutional Court.

22. As for reference to the disputed norm with Article 39 of the Constitution of Georgia, it should be noted that the goal of the mentioned constitutional norm is to assure protection of rights and freedoms in the event, if this is not directly foreseen by the Constitution, but derives of constitutional principles and international obligations in the filed of human rights assumed by the State. In addition to this, the practice related to Article 39 of the Constitution of Georgia makes it clear that the mentioned constitutional norm is also applied in the cases, when the content of the right guaranteed by international agreements are broader that it is foreseen by a respective Article of the Constitution.

23. Stemming from the aforementioned, the Claimant can appeal on Article 39 in the event, when a right is not provided by the Constitution of Georgia or the limits of the constitutional right are narrower than this is foreseen by international obligations. Since the constitutional claims relate to such legal aspects that are protected by the Constitution of Georgia, and as the constitutional norm protecting the right, is incorrectly referred by the Claimants, checking of the disputed norm with respect to Article 39 of the Constitution of Georgia is inexpedient.

III

Having been guided by subparagraph “f” of the first paragraph of Article 89 of the Constitution of Georgia; subparagraph “e” of the first paragraph of Article 19, paragraph 2 of Article 21, paragraph 2 of Article 31, subparagraph “a” of the first paragraph of Article 39, paragraphs 5, 7 and 8 of Article 43 of the organic law of Georgia “On the Constitutional Court of Georgia”; paragraph 5 of Article 17, subparagraph “a” of Article 18 and paragraph 2 of Article 21 of the law of Georgia “On the Constitutional Legal Proceedings”,

The Constitutional Court of Georgia
rules:

1. Not to admit the constitutional claim N458 (Citizens of Georgia, David Sartania and Alexander Macharashvili v. the Parliament of Georgia and the Ministrty of Justice of Georgia) for the consideration on merits at the Constitutional Court;

2. The present ruling is final and shall not subject to appeal or revision.

Members of the Board:

Konstantin Vardzelashvili,

Besarion Zoidze,

Ketevan Eremadze,

Vakhtang Gvaramia.