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 17 May, 2017, the Grand Chamber of the Constitutional Court of Georgia adopted the judgement in the case of "Citizen of Georgia Kakha Kukava v. The Parliament of Georgia".

The complainant challenged the Articles 134(1), Article 134(2), Article 143(8) and words of Article 167(1) of the Election Code of Georgia with regard to the first sentence of Article 28(1), Article 29(1) and Article 29(2) of the Constitution of Georgia.¹ Under the disputed provisions, person was not allowed to participate in the elections of members of the municipal assembly, mayor/head of executive body of local government, unless s/he had permanently resided on the territory of Georgia for 2 years prior to elections.

In view of the complainant party, right of a person to take the respective elective position, in case they receive enough votes for victory in elections falls under the scope of Article 28(1) of the Constitution. However, in order to reach the stage of victory one needs to participate in voting, which is the constitutional right of everyone in case they meet the constitutional conditions. Moreover, the complainant noted, that both elective and appointment positions fall under Article 29 of the Constitution of Georgia.

The complainant considered, that state has no right to introduce residence requirement for enjoyment of the right to stand for local self-government election, as no such requirement is stipulated in the Constitution of Georgia. However, had the legislator had such power, in complainants opinion, the two-year term of permanent residence in Georgia would still be unjustified and unexplainable. According to the constitutional complaint, the disputed provisions did not differentiate between the citizens of Georgia who are permanent or temporary residents abroad. Moreover, it was not clear, what permanent residence on the territory of Georgia implied and this criterion did not meet the requirements of foreseeability.

The respondent party did not agree with the complainants arguments. The representative of the Parliament of Georgia explained that introducing the criteria for participation in elections, the State carries out its positive obligation and introducing the residence requirement it brings elections within constitutional limits. In view of the respondent, residence requirement is a strong guarantee, which ensures the solid link of a member of the municipal assembly, mayor and head of the local government with the state. The respondent also noted, that the right to stand for election of member of the municipal assembly, mayor/head of executive body of local government does no fall within the scope of Article 29 and it should only be reviewed under Article 28 of the Constitution.

First, the Constitutional Court elaborated on the separation of scopes of Article 28 and Article 29 of the Constitution. According to the Court’s explanation, if elections, as a procedure for taking the office is required by the Constitution of Georgia, then the right to hold that position is protected under Article 28 of the Constitution, whereas if the Constitution of Georgia does not require election for taking the office and holding elections is required by the ordinary legislation, the issue of constitutionality of access to such office, should be reviewed with regard to the right of holding public office. Providing this interpretation, the Constitutional Court overruled the approach established by the Judgement of 14 April, 2016 in the case of “Citizens of Georgia – Salome Kinkladze, Nino Kvetenadze, Nino Odisharia, Dachi Janelidze, Tamar Khitarishvili and Salome Sebiskveradze v. The Parliament of Georgia”, according to which right of mayor/head of executive body of local government to take the public office, was considered to fall, inter alia, under the scope of Article 28 of the Constitution.

Reviewing the constitutionality of requirements towards the candidate of member of municipal assembly, the Constitutional Court noted that introducing requirements for taking the elective office is not incompatible with democratic governance. At the same time, the Court considered it unacceptable to introduce requirements, which are not provided by the Constitution for the elections, which should be held according to the Constitution and the legitimate aim of restriction of this right cannot be ensuring selection of the best candidate and/or the candidate who is objectively the most fit for the elective position. The Constitutional Court explained, that exception can be introduced, when the aim of the requirements prescribed by the law is to prevent those risks, which are entailed by electing a certain person in an office. The elections of the municipal assembly are provided by the Constitution of Georgia. However, the Constitution does not provide for the special requirements for members of the municipal assembly, which were provided in the disputed rules. Moreover, the respondent party did not point out any danger, prevention of which was served by the disputed rules and it could not be discerned from the essence of the disputed regulations either. Therefore the Court considered that the disputed provisions were not compatible with the right of elections enshrined in Article 28 of the Constitution.

Reviewing the requirements for the candidate of mayor/head of executive body of local government, the Constitutional Court paid particular attention to the fact, that the disputed rule imposed the obligation on the candidates not to live in a specific self-governing unit, but to live generally on the territory of Georgia. The Court declared, that the restriction provided in the challenged provisions cannot serve as guarantee of involvement of a person in a political life of the State, or an unconditional and unparalleled means for achieving this goal. Meeting the requirement set forth in the disputed provisions cannot in itself ensure involvement of that person in the political life of the state. Moreover, the restriction is not tailored in a way to ensure knowledge of necessities of a specific self-governing unit. In view of this, the Constitutional Court decided, that the disputed rules did not comply with the right to hold public office under the Constitution of Georgia.

The dissenting opinion of the Member of the Constitutional Court, Maia Kopaleishvili is appended to the Judgement.

1. The subject of the dispute fully: constitutionality with regard to the 1st sentence of Article 28(1) and Paragraphs 1 and 2 of Article 29 of the Constitution of Georgia of the words of Article 134(a), “and permanently resided in Georgia... including, for at least 2 years prior to the day of appointment of elections”, words of Article 134(2), “who permanently resided in Georgia... including, for at least two years prior to the day of appointment of elections”, words of Article 143(8) “in Georgia... including the fact of permanent residence for the last 2 years” and words of Article 167(1) “and for the last 2 years prior to the day of appointment of elections permanenly resides in Georgia” of the Organic Law of Georgia “Election Code of Georgia”.