The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 21 July, 2017, the Constitutional Court of Georgia adopted the Judgement in the case of “Citizen of Georgia Nugzar Kandelaki v. The Parliament of Georgia” (constitutional complaint №598).

The complainant challenged Article 35(6) of the Law of Georgia on Lawyers, according to which the decision of the Ethics Commission of the LEPL Georgian Bar Association on imposition of the disciplinary penalty can be appealed only before the Supreme Court of Georgia. The complainant pointed out that the Supreme Court of Georgia is a cassation court, which excludes the possibility that this institution will consider and decide the case as a first instance court. The complainant argued, that the Law does not provide the procedure for appeal against the decision of the Ethics Commission and consideration of an appeal. Moreover, taking the decision by the Supreme Court, as a first intance court rules out the possibility to appeal against it.

In view of all the abovementioned, the complainant alleged, that the disputed provision contradicted the right to fair trial protected under Paragraphs 1 and 2 of Article 4 of the Constitution of the Georgia.

According to the respondent, the Parliament, it was true that implicitly the Constitution of Georgia grants the Supreme Court mandate to function as a cassation court, however, this does not exclude fulfillment of other powers by this institution. As to the procedures of proceedings, the respondent explained, that there was a unequivocal case law established by the Supreme Court of Georgia with regard to the consideration of the decisions of Ethics Commission, due to which the complainant should not encounter the problems of foreseeability. As to the claim related to appeal, the representative of the Parliament of Georgia stated, that the disputed rule ensures adjudication of the case by the court of highest instance, which guarantees even higher standard of protection of a person, on theone hand and ensures even better the highly competent adjudication of the case.

The Constitutional Court of Georgia noted, that under the Constitution, the Supreme Court of Georgia is empowered to decide a case, which is not related to fulfillment of the cassation function, provided it will not impede fulfillment of the competence directly granted by the Constitution, that is cassation function in other cases. Moreover, despite the fact, that the legislation does not provide for the rule of appeal against the decision of the Lawyers’ Ethics Commission and procedure for consideration of the case, there is an uniform case law of reviewing legality of decisions of the Lawyers’ Ethics Commission by the Supreme Court of Georgia since 2008. More specifically, the Supreme Court of Georgia employs analogy of law for reviewing the decisions of the Lawyers Ethics Commission and applies the procedure provided in the Law of Georgia on Disciplinary Liability of Judges of Common Courts and Disciplinary Proceedings, constitutionality of which was not questioned by the complainant.

The Constitutional Court of Georgia also did not share the arguments of the complainant, alleging that he had his possibility to use the right of appeal restricted. The Constitutional Court of Georgia explained, that in a given case, consideration of the case of disciplinary transgression and adoption of the respective decision falls upon the Lawyers Ethics Commission, whereas the disputed rule entitles the complainant, to challenge the decision made by the latter institution, before the Supreme Court of Georgia. Thus he is not deprived of an opportunity to appear before the objective Court, present his arguments and be granted a reasoned judgement. The Constitutional Court of Georgia emphasized the fact, that in certain cases, in view of the legal nature of the case, it might be necessary that for the full realization of ones right to fair trial a person be granted an opportunity to challenge before more than one judicial instance the measure adopted against them, that restricts their rights. However, in the present case, the Constitutional Court of Georgia did not see such a necessity.

In view of all the above-mentioned, the Constitutional Court of Georgia decided that the disputed rule did not contradict Article 42, Paragraphs 1 and 2 of the Constitution of Georgia.