Composition of the Board:

Besik Loladze – Chairman of the Hearing, Judge Rapporteur;

Otar Sichinava – Member;

Lali Papiashvili – Member.

Secretary of the Hearing: Darejan Chaligava.

Title of the Case: Citizen of Georgia, Alexander Dzimistarashvili v. the Parliament of Georgia.

Subject of the Dispute: Constitutionality of paragraph 3 of Article 5 of the law of Georgia “On Fees for Postponement of Mandatory Military Service” with respect to Article 16 of the Constitution of Georgia.

I

1. On the 1st of April 2009, a constitutional claim was lodged with the Constitutional Court of Georgia by a citizen of Georgia, Alexander Dzimistarashvili. The Constitutional claim was registered with number N475. By the resolution of the President of the Constitutional Court of Georgia, the Constitutional claim N475 was referred to the Second Board of the Constitutional Court of Georgia with a view to deciding the issue of admitting it for the consideration on the merits.

2. The subject of the dispute is the conformity of paragraph 3 of Article 5 of the law of Georgia “On Fees for Postponement of Mandatory Military Service” with respect to Article 16 of the Constitution of Georgia. Under the disputed norm, “if application of the right to postponement contradicts the requirements of paragraph 2 of this Article, then a person’s right to exercise the postponement will be terminated and he will be called up for mandatory military service”. Paragraph 2 of Article 5 establishes that a person with the age no older than 25 shall exercise the right to postponement of mandatory military service only twice.

3. In February, 2008, the Claimant was called up for mandatory military service. He exercised the right to postponement of mandatory military service with a period of 18 months, for which he paid the fees in the amount of 2000 GEL. The given period was to be expired in August 2009. However, on 26 of January 2009, the Claimant was summoned to the district military department and was explained that after 28 February, when he would turn 25 years, he would be called upon for mandatory military service, despite the fact that 18 month period for the postponement would not have been expired.

4. The Claimant considers that the disputed norm contradicts Article 16 of the Constitution of Georgia, by which the right to free development of a person is recognized. Stemming from Article 16, the State does not interfere in directing the activities of a person from the negative angle. This norm of the Constitution assures any person with the right to plan a future activity and life without the state interference.

5. Those main arguments are formulated in the constitutional claim, which, in the Claimant’s opinion, confirm the unconstitutionality of the disputed norm: 1. the goal of the law is to restore the right to free development of a person to the conscripts with a period of 18 months. The disputed norm contradicts this goal and reduces the number of months that were determined; 2. A person for achieving postponement pays the fee foreseen for a period of 18 months, but is released from the mandatory military service by a period less than 18 months; 3. The person is not paid back the amount who paid for the part of the period, he did not enjoy; 4. The legislator does not foresee the circumstance by which means the person managed to pay the fee required for the postponement.

6. Pursuant to paragraph 5 of Article 25 of the organic law of Georgia “On the Constitutional Court of Georgia”, the Claimant demands suspending operation of the disputed norm before rendering a final decision by the Constitutional Court. The Claimant considers that non-suspension of operation of the disputed norm will have irremediable effects. It would be impossible to interrupt the service by a person being at the Military Service, as he had already started carrying out certain programs. The Claimant took bank credit for paying the postponement fees and if the operation of the disputed norm would not be suspended, he would face the problems with regard to paying the credit. In the event of satisfying the constitutional claim, persons who served the Military service by this period, will apply to the common courts and will demand compensation from the State. Therefore, in the Claimant’s opinion, suspension of the disputed norm also conforms the interests of the State.

7. The Second Board of the Constitutional Court of Georgia with the oral hearing considered the issue of admitting the constitutional claim N475 for the consideration on merits on 9 June 2009.

8. In the opinion of the Claimant’s representative, the circumstance that a person may exercise the right to postponement of mandatory military service only twice before reaching the age of 25 does not amount to the interference with the right foreseen by Article 16 of the Constitution of Georgia. He considers that the right to postponement of mandatory military service is not guaranteed by the Constitution, rather it is the right acquired by the legislation.

II

1. Requirement for reasonability is one of the most important conditions presented by the legislation towards the constitutional claim. According to paragraph 2 of Article 31 of the organic law of Georgia “On the Constitutional Court of Georgia”, the constitutional claim should be reasoned. The Claimant should adduce those evidences which in his opinion corroborate the grounds of the claim. The requirement of subparagraph “e” of the first paragraph of Article 16 of the law of Georgia “On the Constitutional Legal Proceedings” are almost analogous. In the event of unfulfilling these norms of the legislation, the Constitutional Court based on subparagraph “a” of Article 18 of the law of Georgia “On the Constitutional Legal Proceedings”, refuses to admit the constitutional claim for the consideration on merits.

2. The Claimants should manage to show content interrelation between the disputed norm and the norm of the Constitution towards which he brings up the issue of constitutionality. Otherwise, the Constitutional Court considers that the requirement of subparagraph “e” of the first paragraph of Article 16 of the law of Georgia “On the Constitutional Legal Proceedings” are breached (Ruling N2/15/398; II-1). The disputed norm foresees the interruption of exercise with the right to postponement of mandatory military service in certain cases. The Claimant considers the termination of the right as interfering with the scope protected by Article 16 of the Constitution of Georgia. He should reason that exercise of the right to postponement of mandatory military service is included in the scope protected by Article 16 of the Constitution of Georgia and represents one of expressions of the right to free development. The Board considers that the constitutional claim and the position taken by the Claimant at the administering sitting do not satisfy the aforementioned requirements.

3. In order to consider the constitutional claim as well reasoned by the Constitutional Court, the Claimant should explain as to where there is the contradiction between the disputed norm and the particular norm of the Constitution (Ruling N2/3/412l II-8). The Claimant explains that the right to postponement of mandatory military service is not constitutional right and represents the right acquired by the legislation. As it was stated above, discussion of the Claimant would have the ground and possible contradiction would be distinguished between the disputed norm and the norm of the constitution only then if he tried to corroborate that the right to postponement is the right acquired based on Article 16 of the Constitution of Georgia. But, issue of deciding the right to postponement of mandatory military service is the legislator’s discretion and not the necessity stipulated by the constitutional norm, then the Claimant’s reasoning on the possible contradiction of the disputed norm with Article 16 of the Constitution of Georgia is groundless. When the Constitution does not obligate the legislator to award the right to postponement of mandatory military service to conscripts and it depends on the legislator’s discretion, any contention with regard that Article 16 of the Constitution of Georgia restricts the legislator to deprive the mentioned right is unclear. If awarding the right to postponement is the legislator’s discretion, then he will decide the limits as to under what age and by what period the interested persons will be awarded by the mentioned right. Establishment of the limits of the legislative right is to be decided by the legislator and falls beyond the competence of the Constitutional Court.

4. It is to be envisaged that the disputed norm refers to the circumstances as grounds for interruption of enjoying the right to postponement, given in paragraph 2 of Article 5 of the law of Georgia “On Fees for Postponement of Mandatory Military Service”. The Claimant clearly indicated that none of the grounds provided here do not amount to interference with the right foreseen by Article 16 of the Constitution of Georgia. Consequently, the Claimant’s opinions on interference with the basic right and its restriction are unclear. His reasoning obviously bears a contradictory nature, which once again illustrates the groundless of the constitutional claim (Ruling N2/8/448; II-6).

5. In the Board’s opinion, the aforementioned circumstances stipulate the groundless of the main and additional arguments adduced by the Claimant. Instead of reasoning unconformity of the disputed norm with Article 16 of the Constitution of Georgia, the Claimant’s reasoning acquires the form of assertion the unconformity of different norm of Article 5 of the law of Georgia “On Fees for Postponement of Mandatory Military Service”. Decision of such issues falls beyond the competence of the Constitutional Court of Georgia.

6. Stemming from the fact that admission of the constitutional claim N475 for the consideration on merits does not occur, the Board does not find it necessary to discuss about suspending the operation of the disputed norm before rendering a final decision on the case.

III

Stemming from the abovementioned and based on paragraph 2 of Article 31, paragraphs 5 and 8 of Article 43 of the organic law of Georgia “On the Constitutional Court of Georgia”; subparagraph “e” of the first paragraph of Article 16 and subparagraphs “a” and “c” of Article 18 of the law of Georgia “On the Constitutional Legal Proceedings”,

The Constitutional Court of Georgia
rules:

1. Not to admit the Constitutional Claim N475 (citizen of Georgia, Alexander Dzimistarashvili v. the Parliament of Georgia) for the consideration on the merits;

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

3. Copy of the present ruling will be sent to the parties.

Members of the Board:

Besik Loladze,

Otar Sichinva,

Lali Papiashvili.