Composition of the Plenum:

Giorgi Papuashvili – Chairman of the Hearing;

Vakhtang Gvaramia- Member;

Qetevan Eremadze – Member;

Konstantine Vardzelashvili-Member;

Zaza Tavadze- Member;

Maia Kopaleishvili – Member, Judge Rapporteur;

Otar Sitchinava – Member;

Lali Papiashvili – Member;

Joni Khetsuriani– Member.

Secretary of the Hearing: Darejan Chaligava

Title of the Case: Public defender of Georgia V. parliament of Georgia

Subject of the Dispute: Constitutionality of Article 42 section 5¹of the Criminal Code of Georgia: “If a convicted person is minor and insolvent the court will impose the payment of the fine to which he was sentenced, on his or her parent, custodian or guardian.” With respect to article 39, article 40 clause 1 and article 42, clause 5, first sentence.

Participants of the Hearing: Representatives of the Claimant-Public Defender of Georgia Tamar Charbadze; Representative of the Respondent, the Parliament of Georgia - Zurab Dekanoidze and Tamar Khintibidze; Specialist - Head of the Analytical Department of the Ministry of Justice of Georgia, Otar Kakhidze.

I. Descriptive Part

1. On February 16, 2007 the constitutional complain (registration N^o 416) was lodged with the Constitutional Court of Georgia by the Public Defender of Georgia. Pursuant to the recording notice N^o2/2/416 of the second chamber of the constitutional court of 29 Mai, 2007 the case was admitted for consideration on merits.

2. The second chamber of the Constitutional Court held the hearing on merits of the case on 15 September, 2009 the second chamber found that the present case raises rare and particularly important legal issues of constitutional interpretation. Therefore pursuant to article 21¹of the organic law of Georgia on the Constitutional Court of Georgia the case was transferred to the plenum on the bases of the ruling of the chamber of 13 July, 2010.

3. The plenum of the Constitutional Court of Georgia adopted recording notice on 30 June, 2010 in order to admit the case for consideration on merits. Hearings on merits of the case were held on 15 and 16 September, 2010.

4. 2. The legal ground for submission of the constitutional claim is indicated to be the following: article 89(1) of the Constitution of Georgia, article 19(1), article 39(1(b), article 21(i) of the Organic Law of Georgia “On Public defender article 1(2) of the Law of Georgia “On Constitutional Legal Proceedings”.

5. In his constitutional claim the Public Defender requires to review compatibility of article 42, section 5¹ of the Criminal Code of Georgia with the principle of “individualization of punishment” which in his opinion is not explicitly stated in the Constitution of Georgia but pursuant to article 39 of the Constitution of Georgia follows from the constitutional principles. To substantiate his argument the claimant refers to the judgment N^o 1/51 the Constitution of Georgia of 21 July, 1997. According to the author of the constitutional claim in the above judgment the Constitution decided that individualization of punishment was one of the basic principles. In view of the claimant due to the fact that the Constitution of Georgia sets the high standard of human rights and fundamental freedom the principle of individualization of punishment is emanated by the principles of Constitution of Georgia.

6. The public defender thinks that in criminal law person can be found guilty only by the final judgment of conviction of the court. At the same time making the judgment a court necessarily assesses what is an unlawful act committed by a person, whether his actions are blameworthy and this is the way he makes a judgment. According to the statement of the Public Defender the punishment shall be appointed for that person who committed an unlawful act. According to the disputed norm the punishment is imposed not on the person who was found guilty but on his legal representative. This is what violates the principle of individualization of punishment.

7. Additional evidence presented in the constitutional claim is the criminal law provision of the number of European states, which in the opinion of the claimant explicitly recognize principle of individualization of punishment. Moreover the claimant points to the case law of the international criminal court, court of European Union and Federal Constitutional Court of Germany which in the opinion of the author of the constitutional complain substantiate claims presented.

8. The claimant thinks that fine which is punishment for the criminal law purposes and presents type of criminal liability is imposed on the parent (custodian, guardian) of the insolvent minor, whereas there is no blameworthy act committed by them. Thus the disputed norm violates requirement set forth in article 42, clause 5 of the Constitution of Georgia. The claimant thinks that criminal liability (fine) is imposed on the parent without commission of crime and guilty judgment only because his/her minor child has no independent income. In the opinion of claimant this amounts to the imposition of criminal liability for the crime committed by the other person. Thus the disputed norm contradicts article 40, clause 1 of the Constitution of Georgia. The representative of the Public Defender explained that article 40 and article 42, clause 5, first sentence of the Constitution of Georgia is the source of principle under which no one shall be punished if their guilt is not proved in a given act. However under the disputed norm fine is imposed on the parent (custodian, guardian) who has committed no unlawful act neither is he found guilty.

9. At the hearing on merits of the case representative of public defender Tamar Charbadze reiterated

in her explanation and stated that the disputed norm violates principle of individualization of punishment guaranteed in article 39 of the Constitution.

10. The representative of the claimant explains that principle of individualization of punishment as well as prohibition of liability without guilt are not explicitly stated in the Constitution, however, they are inherently entailed from the general nature of the Constitution. Article 39 Constitution of Georgia serves exactly the goal to underscore the norm-principles recognized by the Constitution and also to provide additional arguments.

11. Tamar Charbadze asserts that it is impossible for disputed norm to achieve the goal stated in article 39 of the Criminal Code of Georgia. According to which the aims of punishment are to restore justice, to prevent new crime and to resocialize the offender.

12. The representative of claimant states that the most effective way to achieve the goals of punishment is to influence directly the convicted person. When the fine is paid by the parent (custodian, guardian) instead of minor degree of influence of punishment on convicted person is very low. On the other hand in her opinion fine can have negative effect on the other members of offender’s family.

13. In her concluding opinion the representative of the public defender stated that punishment presents a logical and legal consequence of the guilty judgment adopted in accordance with law. In the specific case fine which is punishment for purposes of criminal code is imposed on the parent without crime and guilty judgment only because that his/her minor child has no independent income therefore in this case fine is impose on parent without any act because failing to comply with the obligations of the parent to their children which led to the commission of crime is not punishable under the effective criminal law

14. At the hearing Tamar Charbadze declared that there is no meaningful difference between imposition of fine and enforcement of the imposed fine, because fine as monetary sanction heavily burdens not the minor who committed the crime but his/her parent is compelled to pay.

15. Tamar Charbadze states that the legislation does not specify what kind of obligation is imposition of the payment of the fine. In her opinion payment of fine impose on the parent is legal obligation failure to comply with which is ground for liability and the disputed norm sets forth purely criminal law obligation which in view of the principle of individualization of punishment has no bases in the Constitution.

16. Representative of the claimant thinks that legislation does not clearly regulate the case when parent does not or can not pay the fine imposed on his/her minor child. Parent is not convicted to apply article 42, clause 6 of the Criminal Code of Georgia to him/her. Pursuant to article 381, clause 1 of the Criminal Code of Georgia it is a crime not to comply with the final judgment or other decision of the court or to obstruct its implementation. Therefore there is a theoretical chance that this norm will be applied against the parent as the parent is not convicted person to change the punishment. This type of problem would be excluded by the original text of article 83 of the Criminal Code of Georgia, according to which minor could be sentenced to fine only if he had independent income (or other property).

17. In view of the above mentioned representative of Public Defender claims that article 42, clause 5¹ shall be declared unconstitutional in respect with article 38, article 40, clause 1, article 42 clause 5 first sentence of the Constitution of Georgia.

18. Representatives of the Parliament of the Georgia does not agree with the claims of the claimant in respect with unconstitutionality of the disputed norm. In his explanation representative of respondent stated that it is crucial for resolution of the present dispute to identify which legal category the obligation of the parent provided in the disputed norm to pay the fine imposed on the minor child falls into. It also should be ascertain whether imposition of fine on the parent violates principle of individualization of punishment.

19. The representative of the respondent stated that according to the disputed norm subject of the criminal prosecution and punishment is minor convict against who the guilty judgment is adopted. Therefore, representative of respondent thinks that criminal punishment, fine is imposed only on him/her. Legislator does not involve parent in criminal relationship. Person who is liable under the criminal procedure is minor.

20. The representative of respondent thinks that obligation of the parent to pay the fine imposed on minor can not be considered as imposition of measure of criminal liability, punishment, because criminal punishment is not impose on parent. At no stage of litigation is parent a subject of criminal prosecution nor is the guilty judgment made against him, the respondent considers the obligation impose by the disputed norm to be obligation of the parent which is related to performance of the unfulfilled monitory obligations of the child. In respondents opinion the parent obligation in the disputed norm is relate to the nature of fine as monetary payment.

21. Representative of the respondent states that fine provided in the criminal code is monetary sanction of dual nature. In the first place through the fine criminal liability is imposed on the minor namely the state expresses its clearly negative attitude towards the action of minor. At the same time the fine has physiological significance for minor convict because his/her actions give rise to certain type of monetary obligations at the same time due to its nature fine has monetary equivalent which is enforce according to the rule absolutely identical to those applied in other brunches of law.

22. The respondent draws parallel with regulations present in legislative acts of other brunches of law to substantiate its argumentation. The representative of Parliament of Georgia underscores article 994 of the Civil Code of Georgia pursuant to which parent is liable for financial obligation of the child which the child is not able to perform.

23. Moreover the respondent refers to the Code of Georgia of administrative offenses, which in his opinion contains a regulation similar to article 42, clause 5¹ of the Criminal Code of Georgia and sets forth obligation of parent to pay the fine imposed on the child whereas act of parent is not considered to be administrative offense and administrative sanction is not impose on him/her, in particular article 290, clause 2 of Code of Administrative Offenses provides that if the person of the age from 18 to 18 years who commits petty hooliganism and has no independent income fine will be paid by parents or their substitutes.

24. The respondent explained that legal nature of the parents’ obligation is not related to the specific brunches of law. It is related to status of parent legal relationship between them and their children because all the above mentioned articles and the disputed norm are based on the same underpinning that unperformed financial obligation of children are performed by their parents. In all the three cases the burden of parents’ obligation is the same. They are compelled to meet the obligation which emerged without their participation. Therefore it is impossible to analyze these rules as different from each other and to qualify them as giving rise to different types of legal liability.

25 The representative of Parliament of Georgia states that performance of the financial obligation of the minor child by their parents cannot amount to criminal punishment, because it is devoid of personal character. In case of personal punishment it is impossible that the punishment impose on one person be discharged by another therefore in case of financial sanction this is acceptable due to the nature of fine as universal and compensable sanction.

26. Where respondent explains that incorporation of the disputed norm in the Criminal Court of Georgia the legislator has not imposed on parent any new obligation. Here we have traditional duty of parents, guardian, custodian introduced in the Criminal Code. In the opinion of respondent the legislator deemed it necessary for purposes of criminal policy to introduce additional mechanisms aiming at enhancement efficiency of fine as monetary penalty and to apply the sanction to minors despite the fact whether they can pay or are insolvent which would influence on crime prevention.

27. The respondent explains that disputed norm does not impose liability on parent; it introduces obligation which in the opinion of the respondent shall not be considered as liability. They explained that obligation and liability are distinct legal categories not only terminologically but also in view of their substance. Thus there is no violation of requirements article 42, clause 5 of the Constitution.

28. Representatives of the respondent claim that the allegation of Public Defender in respect with unconstitutionality of disputed norm shall not be up held, because in their opinion the disputed norm fully complies norms and principles set forth in the Constitution of Georgia. In particular they explain that the disputed norm does not consider the parent as subject of the crime set forth in the criminal court, neither deals it with the of guilt of parent, therefore, they cannot see any link or conflict between the disputed norm and article 39, and article 40 clause 1 the Constitution of Georgia.

29. The specialist in the case Otar Kakhidze explained that the disputed norm fully complies with the requirements of the Constitution of Georgia. In his speech at the hearing on merits of the case Otar Kakjidze underscored before the Constitutional Court specificity of relationships between children and parents. In his opinion relationship between parents and children is more than only blood or biological connection. Before child becomes adult they are in intense legal relationship with their parents and legislation does not separate strictly these two subjects from each other.

30. The specialist explains that this is unique social-legal relationship with specific range of rights and duties. Parent is not “other person” they function as guarantors of interest of children they are care givers, people who are responsible to bring them up and meet various obligation.

31.Otar Kakhidze notes that financial obligations cause by unlawful act of minor is performed by parents this is universal principle and it is also enshrined in the Georgian Legislation.

32. The specialist explained, if minor causes damage to someone or if penalty will be imposed on him for the commission of administrative offense, or if fine will be impose on him for commission of crime and s/he cannot meet this financial obligations with their income due to the compensable nature of financial penalties and also due to specific legal relationship between children and parent penalty will be imposed on parent.

33. This principle in view of the specialist aims to introduce specific mechanism to address unlawful act of minor: damages inflicted to third person shall be compensated, administrative and criminal sanctions shall also be enforced in this case the legislator considers a minor to be a person who reimburses financial obligation of minor.

34. The specialist links the mechanism of imposition of fine on parent stated in the disputed norm to the unique social-legal relationship between parent and child, also peculiar responsibility of parent in building personality of minor.

II
Reasoning Part

Relation of the Disputed Norm to First Sentence of Article 42, Clause 5 of the Constitution of Georgia

35. In the dispute based on Constitutional Claim N^o 416 the Constitution of Georgia shall decide issue of constitutionality of article 45, clause 5 ¹ of the Criminal Code of Georgia with respect to article 42, clause 5 , sentence 1, article 40 clause 1 and article 39 of the Constitution of Georgia. Therefore we shall ascertain the substance of the disputed norm legitimate aim and its relation to the above mentioned constitutional articles. This will provide possibility to find out in the present dispute whether the disputed norm is constitutional. The disputed norm states: “If a convicted person is minor and insolvent the court will impose the payment of the fine to which he was sentenced, on his or her parent, custodian or guardian.” The claimant states that the disputed norm is part of the Criminal Code, which regulates relationships related to crime, therefore, they think legally and logically there is ground for conclusion that the disputed norm imposes criminal liability on parent (guardian, custodian). Punishment shall be imposed on the offender whereas pursuant to the disputed norm ground for imposition of criminal liability on the parent (custodian, guardian) is insolvency of the minor convict instead of commission of any act prohibited by the Criminal Code. Thus, based on his arguments the claimant thinks that the disputed norm violates fundamental principles of criminal law “no crime without law” (nullulum crimen sine lege,) “no punishment without law” (nulla poena sine lege) and “no punishment without guilt” (nulla poena sine culpa).

37. In the present dispute the Constitutional Court of Georgia has to ascertain the following issues in the first place: 1.Whether the disputed norm provides for the criminal liability of parent (custodian, guardian) of insolvent minor convict, or 2. Whether practically the disputed norm imposes on parent (custodian, guardian) criminal liability or in other words whether the imposition of payment of fine on parent (custodian, guardian) amounts to imposition of criminal liability on him and hence whether it contradicts article 42, clause 5, first sentence of the Constitution of Georgia. Pursuant to article 42, clause 5, first sentence of the Constitution of Georgia, “no one shall be held responsible on the ground of an action which did not constitute an offence at that time it was committed”. This provision of the Constitution sets forth grounds of imposition of liability and provides guarantee that any crime and punishment shall be clearly defined in the criminal law. It is based on the well-known principles- “no crime without law” (nullulum crimen sine lege,) “no punishment without law” (nulla poena sine lege). First sentence of article 45, clause 5 of the Constitution provides guarantee against the broad construction of Criminal Law to the detriment of individual (legal analogy). It also obliges adjudicating court to construe legal norm in a way that would enable individual to clearly see which of his action or failure to act will cause criminal liability. The guarantee in the Constitutional Probation is indispensable element of the principle of legality. Principle of legality protects individuals from arbitrary application and abuse state mechanism of criminal repression. At the same time it provides possibility to foresee in his/her elements that are prohibited by criminal law.

39. In the judgment of the Constitutional Court of Georgia “the Public Defender of Georgia, citizen of Georgia Elguja Sabauri and citizen of Russian Federation Zviad Mania v. the Parliament of Georgia” (judgment of the Constitutional Court of Georgia 13 Mai, 2009, N^o 1/1/428, 447, 459 ). The Constitutional Court of Georgia, that article 42, clause 5 of the Constitutional Court of Georgia guarantees principle of legality (nullulum crimen sine lege). The first sentence of paragraph 5 of Article 42 of the Constitution of Georgia ensures a person’s ability, pursuant to beforehand defined, publicly accessible and non-individualized legal rules, to predict what actions are criminal offences and to accordingly conduct his own behavior, which is an important guarantee against arbitrary persecution and prosecution.

40. First sentence of article 45, clause 5 of the Constitution: 1) prohibits criminal responsibility for those acts which did not present criminal offence at the time of their commission, 2) unequivocally demands that bases of criminal liability shall be act (offence).

“The responsibility, as an objective category of law and a normative reality, is connected with the action in general.” (Judgment of the Constitutional Court of Georgia 13 Mai, 2009, N^o 1/1/428, 447, 459 in the case of “the Public Defender of Georgia, citizen of Georgia Elguja Sabauri and citizen of Russian Federation Zviad Mania v. the Parliament of Georgia”).3) Requires that only that person can be held responsible for commission of crime who committed the crime. Therefore this rule of the Constitution sets forth principle of individualization of criminal liability (personal liability principle), which the claimant referred to in her arguments. Personal liability principle stipulates that only that person will be held liable who have committed guilty action and not any other third party who is not the subject of a specific criminal law relationship. Person cannot be held liable for the act in which his guilt is not proved. Principle of the personal liability in criminal law requires that liability of the person can emerge if he personally and individually is guilty for an action or failure to act. This is crucial principle in Criminal Law as criminal liability is strictly personal. Personal liability principle protects individual from liability for those actions that he did not commit, personal liability principle sets forth not merely formal legal guarantees but also applies in different brunches of substantive law.

41. For the purposes of solution of present dispute the Constitutional Court deems it necessary to the view the claimant reasoning on the bases of provision of the Criminal Court. It shall also be interpreted when coercive measures can be considered as punishment. Liability provided by the law has the criminal character when the criminal legislation defines it as such. At the same time liability can be provided by something else than criminal legislation but due to its seriousness outcomes and degree of restriction of rights it can amount to punishment. Particularly when liability takes classical forms of punishment. When we define essence and legal nature of the liability provided by law the goal for achievement of which it is used shall also be regarded. Therefore, nature, function, goals and other elements of liability is what distinguishes criminal liability from other types of coercive measures.

42. According to article 1, clause 1 of the Criminal Code of Georgia, “the Criminal Code of Georgia set forth ground of criminal liability determines what acts are criminal and sets relevant punishment or other types of criminal measures.” Article 2, clause 1 of the same code states “criminality and punishability of the act is determined by criminal law effective on the date of its commission.” According to article 7, clause 1, “ground of criminal liability is crime that is an unlawful and guilty act set forth in this court...”

43. It is evident from above mentioned norms and in view of the principle of legality crime means an act provided in the criminal law of according to the Criminal Code of Georgia. It is noteworthy that the criminal law is law of action, the object of criminalization is not a personality but act of capable person this in its turn points to the fact that composition of the criminal act shall be essentially described in the criminal code, if an action is not essentially described it is impossible to ascertain unlawfulness and quilt of the act without of which in their turn it is impossible to clarify the action as crime and to impose criminal liability on them.

44. The effective Criminal Code does not contain description of unlawful and guilty action of the parent (guardian, custodian) of an insolvent, minor convict. Qualification of act as crime and hence imposition of criminal liability take place after procedural measures which confirm that conduct over person complies with the composition of the criminal act provided in the criminal law. Criminal norms address human acts. The legislator intimidates with punishment those people who will fulfill the composition of crime. The premise of application of punishment is presence of guilt whereas only unlawful act can be guilty.

45. According to the disputed norm it is minor not her/her parent(custodian, guardian) who is convicted for commission of unlawful and guilty act; fair punishment in criminal case is determined for minor not his/her parent (custodian, guardian). The parent (custodian, guardian) is not subject of criminal prosecution at any stage of criminal proceedings according to the disputed norm parent (custodian, guardian) is not transformed into the party of the criminal legal relationship. It does not follow from the disputed norm that parent (custodian, guardian) is considered guilty in any action prohibited by criminal law. Moreover from legal perspective crime is committed only if it is proved by the final conviction judgment against the person (presumption of innocence). Judgment of conviction is adopted against the minor at the same time no legal consequence is applied to the parent (custodian, guardian) which follows from the conviction judgment (criminal records, crime recidive, etc.) If a parent (custodian, guardian) cannot pay the fine (despite the fact that case will fall under the Law of Georgia “on enforcement proceedings and will be subjected to the coercive enforcement measures on property”), punishment impose on minor –fine will be subtitled by other punishment – community service day fine restriction of liberty or imprisonment under the rule set forth in article 52, clause 6 of the Criminal Code of Georgia.

46. Punishment as the special measure of state coercion is response of the state to committed crime as it was already mentioned if there is no punishability legally provided for an act it means that the act is not a crime. As the punishment has strictly personal character punishment will be impose only on criminal not any other person. The disputed norm clearly states that the punishment (fine) is imposed on the insolvent minor convict therefore purpose of the criminal law is not to impose criminal liability on parent (custodian, guardian) of insolvent minor.

47. In view of the above mentioned ascertain that mere fact of presence of the disputed norm in the criminal code and imposing the fine of the insolvent minor on the parent (custodian, guardian) under the disputed norm presents imposition of criminal liability on parent (custodian, guardian) is groundless.

48. To ascertain the goals and substance of the disputed norm it is also important to take in to account nature of fine as criminal punishment. The disputed norm is comprised in article 42 of the criminal code which determines the legal nature of criminal punishment-fine and the rule of its application. According to this rule: a. fine is monetary payment b. it can only be imposed on the convict in view of the financial conditions of the latter which is determined by his property, income and other circumstances. g. fine can be employed as additional sanction even in case if it is not mentioned in the relevant article in Criminal Code as such. d. in case of insolvent of minor convict payment of fine will be imposed by parent (custodian, guardian). e. if convict fails to pay the fine or if the payment is impossible it will be changed for convict with other sanction.

49. On the bases of historical legal analyses it can be said that this punishment was introduced in the criminal law as alternative to classical punishments (imprisonment, capital punishment) application of fine as sanction is related to certain monetary laws for a person which is considered as sufficient and adequate response of the state to the act committed by individual.

50. Fine is considered to be ideal criminal sanction from the perspective of the liberalism it is given priority over other forms of sanctions because it can’t be enforce through sparing state resources and infliction of less pay to offender; however it does not make fine as imperfect criminal sanction. Fine employed for criminal purposes retains nature of punishment; it is individualized and addressed to the guilt over person. Fine is employed against individual offender through restriction of right to property seizure of the property (money).

51. in view of the historically established nature money has distinctive characteristic in contrast to freedom it allows for substitution which can be transferred from one person to another without losing its significant. The distinctive nature of fine in contrast to other criminal sanctions is reflected in the fact that it is possible for fine to be paid by other person instead of offender so that the criminal liability purposes be achieved at the same time person who pays the fine will not be considered as liable person. Fine has unique nature which makes it such a criminal sanction which can be performed legally by other person instead of criminal.

52. When the payment of fine sentenced to the insolvent minor convict is imposed on parent (custodian, guardian) obligation to pay the fine shall not be considered as identical to imposition of fine. Otherwise it would be necessary that state action contain elements and purposes of imposition of criminal liability. It is noteworthy that when the payment of fine to which insolvent minor convict was sentenced is imposed on their parent (custodian, guardian) the state action does not reflect the goals of imposition of criminal liability-punishment on the parent (custodian, guardian); this goals are to restore justice to prevent new crime to resocialize offender nor are additional legal elements of criminal liability present.

53. In view of the above mentioned imposition of the payment of fine which was sentence of insolvent minor convict under article 42, clause 5¹ of the criminal code of Georgia cannot be considered as imposition of criminal liability and thus the disputed norm does not violate principle of personal liability.

54. It is also for the Constitutional Court of Georgia to ascertain the goal of legislator when it establishes obligation of the parent (custodian, guardian) to pay fine imposed on the insolvent minor convict.

55. It shall be taken in to account that the obligation of the parent (custodian, guardian) entrenched in the disputed norm which is to pay sum of fine imposed as punishment on the insolvent minor convict follows from the specific legal relationship between this people and is related to the whole range of distinctive features of criminal liability of minors.

56. Legislation first of all is guided by the Constitutional and international legal principles of personal liberty and security it is the task of legislature to ensure protection of the best interest of minor to facilitate social rehabilitation of minor offender end not to use serious sanctions when it is not necessary. The goal of disputed norm is to apply later penalty to the individual offender- fine as alternative to restriction or deprivation of liberty or other harsh punishments.

57. Legislator can contain obligation of a parent of minor offender (his/her substitute) to care out certain activities which can help to the interest of rehabilitation of offender for example coercive measure for corrective influence can be employed which means imposition of obligation on parent his substitute or specialized state body that they have corrective influence on minor (article 93, criminal code of Georgia). Parent as well as his minor child is obliged to participate in the named coercive measures. This obligation does not belong to the category of criminal punishments though imposes certain restriction on the parent (as well as his substitute or specialized state body) emergence of such an obligation is not incidental emergence of certain rights of human are firmly linked to the emergence of relevant obligations. Rights of a parent (custodian, guardian) from the very beginning implies emergence of relevant legal obligations in this case binding of parents rights with his obligations of care are present.

58. The legislation of Georgia recognizes special link between parents and children unique status of parents ensuing obligations. Parents are entitled and obliged to bring up their children into respectful members of society to care for their physical, mental spiritual and social development.

59. Minor as well as adult enjoy right to free personal development. Therefore the state protects them from constitutional legal perspective mental and physical capabilities of minor are in the process of development therefore they need special care this is why legislator states that it is parent (custodian, guardian) who have obligation of care for minors.

60. Opinion that when fine of minor convict is paid by his parent (custodian, guardian) degree of influence of punishment on minor convict is low in groundless, because of the fact that enforcement of fine is related to money as transferable good this characteristic of money makes the payment of fine devoid of personal nature which would be present in case of restriction of liberty or imprisonment. thus if restriction of liberty or imprisonment have personal character enforcement of fine is related to the process of transfer of money which is transferable good to the state therefore effect of personal influence on the offender (and degree of effect) is independent from the enforcement procedure (payment or fine or placement of person in the imprisonment facility) and it is directed only against personality of offender.

Relation of the disputed norm with article 40 clause 1, of the Constitution

61. Claimant thinks that the disputed norm also contradicts article 40, clause 1 of the Constitution of Georgia which states: “person shall be presumed innocent until his guilt is not proved according to the legal procedure and final judgment of court of conviction”

62. The named article of Constitution generally stipulates presumption of innocent in the present dispute the court is not required to give full interpretation of presumption of innocent however the court indicates that presumption of innocents is the guiding principle if criminal law which inter alia implies that everyone shall be treated on the bases of presumption that they are innocent until the due process is conducted and the judgment of conviction is adopted by the court which confirms his guilt. Therefore, it is impermissible to consider person as offender without due process.

63.In order to find out whether clause 1 of article 40 was violated it shall be first ascertained whether parent is recognize as guilty person offender. Only afterwards can we find out whether the state was obliged to protect the guarantees of presumption of innocent. In respect with the disputed norms the court declares that it does not cause the parent of insolvent minor to be found guilty to be considered as offender and to be posed to criminal liability. As we already mentioned the disputed norm does not establish criminal liability for any action of the insolvent minor convicts’ parent. Therefore, it fully complies with article 40 clause 1, of the Constitution.

Relation of the Disputed Norm with Article 39 of the Constitution of Georgia

65. Pursuant to article 39 of the Constitution of Georgia, “The Constitution of Georgia shall not deny other universally recognised 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.”

66. The Constitutional Court has stated the following with respect to this article: “The goal of this constitutional norm is to ensure protection of rights and freedoms in case, when it is not explicitly stated in the Constitution, but are emanated by the constitutional principles and international obligations incurred by the state in the field of human rights... Claimant can refer to article 39, when a right is not contained in the Constitution of Georgia, or scope of the constitutuional right is narrower than that required by the international obligation.” (Ruling of the Constitutional Court of Georgia 10 June, 2009 no. 1/2/458 in case of “Davit Sartania and Alexandre Macharashvili v. the Parliament of Georgia and Ministry of Justice of Georgia”).

67. It was already found the principles, which were allegedly violated according to the claimant, is enshrined in article 40 and article 42 of the Constitution. Therefore there is not need to review constitutionality of the disputed norm with respect to article 39.

III
Resolution Part

On the basis of article 89(1)(f) and article 89(2) of the Constitution of Georgia; article 19(1)(e), article 21¹, article 26(2)(a)), article 27(1), article 43 (2,4,7,8) of the Organic Law of Georgia "On the Constitutional Court of Georgia", article 7(1,2), article 24(1,2), article 29(4), article 30, article 31, article 32, and article 33 of the Law of Georgia “On Constitutional Legal Proceedings”,

The Constitutional Court of Georgia

resolves:

1. The constitutional claim (registration no. 416) in the case of “Public Defender of Georgia v. The Parliament of Georgia” not be upheld.

2. The judgment be in force from the moment of its public announcement at the hearing of the Constitutional Court;

3. The judgment be final and not subject to appeal or review;

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

6. The judgment be published in “Legislative Gazette of Georgia” within 15 days.

members of the Plenum:

Giorgi Papuashvili

Vakhtang Gvaramia

Qetevan Eremadze

Konstantine Vardzelashvili

Zaza Tavadze

Maia Kopaleishvili

Otar Sitchinava

Lali Papiashvili

Joni Khetsuriani