Composition of the Board

Zaza Tavadze – Chairman of the Hearing;

Otar Sichinava – Member;

Lali Papiashvili– Member, judge rapporteur;

Tamaz Tsabutashvili - Member.

Secretary of the Hearing: Darejan Chaligava

Title of the Case: The Public Defender of Georgia v. the Government of Georgia.

Subject of the Dispute: Constitutionality of article 10³ of the Ordinance of the Government of Georgia N145 dated July 28, 2006 “On Social Assistance” with respect to article 14 of the Constitution of Georgia.

Participants of the Hearing: Representatives of the Claimant, the Public Defender of Georgia – Gvantsa Khuntsaridze and Tatuli Todua; Representatives of the Respondent, the Government of Georgia – Nino Kvezereli, Aleksandre Toria and Amiran Dateshidze.

I
Descriptive Part

On July 7, 2014 a constitutional claim (registration N603) was lodged to the Constitutional Court of Georgia by the Public Defender of Georgia. On July 8, 2014 the Constitutional Claim N603 was assigned to the Second Board of the Constitutional Court of Georgia for ruling on admission of the case for consideration on merits. Preliminary session of the Second Board of the Constitutional Court without oral hearing was held on October 7, 2014 for ruling on admission of the case for consideration on merits.

Pursuant to the Recording Notice N2/9/603 dated November 11, 2014 of the Second Board of the Constitutional Court the Constitutional Claim N603 was admitted for consideration on merits.

The oral hearing on merits by the Second Board of the Constitutional Court was held on May 19, 2015.

The legal basis for submission of the Complaint is paragraph 1 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, subparagraph “b” of paragraph 1 of article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”, paragraph 2 of article 1 of the Law of Georgia “On Constitutional Legal Proceedings” and subparagraph “i” of article 21 of the organic law of Georgia “On Public Defender”.

The Claimant disputes constitutionality of article 10³ of the Ordinance of the Government of Georgia N145 dated July 28, 2006 “On Social Assistance”, which establishes monthly allowance for reintegration of a healthy child at GEL 90, while for a child with disabilities at GEL 130.

According to article 14 of the Constitution of Georgia, “everyone is born free and is equal before the law regardless of race, colour of skin, language, sex, religion, political or other views, national, ethnic and social affiliation, origin, property or social status, place of residence.”

The Claimant indicates as a sign of differentiation the form of deinstitutionalising and puts differential treatment into two perspectives – 1) from the perspective of a child; 2) from the perspective of a parent. Specifically in one instance children who are the beneficiaries of reintegration and foster care. In another instance between the biological parents and foster parents.

According to the Claimant in a normal situation, when a parent has personal and material ability to care for a child, parents and unrelated persons – foster parents – are not equal with regards to child-care. However as argued by the Claimant for the purposes of deinstitutionalising a child biological parents and foster parents are essentially equal persons, since both have the same duty to care for a child. In one instance a parent makes this decision himself/herself, in another instance – the State does. The degree of responsibility is same in both instances, therefore both parent and foster caregiver have same financial burden. The volume of care expanses do not change based on who is responsible to care for a child. Additionally during the hearing on merits the Claimant used as an argument regarding the equality of biological parents and foster caregivers and defined that when a parent gives the child to State care due to financial problems, the duty of a parent to care for own child disappears, since the law cannot require a person to do something it is not able to.

According to the Claimant children subjected to reintegration and foster care are also equal, since they have equal needs for up-bringing, education and nutrition. Pursuant to current regulation a child that is returned to a biological family is in unequal state compared to that given into the foster care, as he/she does not receive the benefit, which the State established for his/her normal development in case of foster care. The needs of a child are not changed based on who provides care – a biological parent or a foster caregiver.

The Claimant based on paragraph 1 of article 34 the Law of Georgia “On Adoption and Foster Care” indicates that expenses for care is not a salary established by the State for a foster caregiver, instead is fully serves covering the costs for care. Therefore if in both cases the money is directed towards the care for a child, the State imposes heavier burden on a parent than on a caregiver.

The Claimant considers that the disputed provision establishes differential treatment for the use of fundamental rights of a child. It concerns one of the most important aspects of private life of a person – to bring up own child. Additionally it concerns the best interest of a child, which, apart from the exceptional circumstances, requires a child to stay with biological parent. Due to economic poverty and due to the State not giving biological family and foster family the same resource for fulfilling the needs of a child, both parent and a child are deprived of the possibility to use the most fundamental aspect of their family life, which indicates that the discussed differentiation infringes basic human right and provides for the interference with high intensity. Apart from that, the Claimant also states that the difference between the reintegration allowance and foster care payment is big, which additionally indicates towards the intensity of differential treatment. Therefore the disputed provision needs to pass strict scrutiny test, specifically the compelling governmental interest should be established and it should be reviewed whether the State could have achieved the same aim with different means.

The Claimant does not agree with the argument that the differential treatment established by the disputed provision is compensated by non-monetary State social programmes for biological families. The analysis of mentioned social programmes, their scope and the beneficiary circle demonstrates that some of them are not accessible to biological families using reintegration allowance or are accessible for both biological families and the foster caregivers. Additionally such programmes are not permanent. They are tied to State budget and are amended each year, the risk of annulment of such programmes also exist.

Pursuant to the Claimant the aim of allowance for foster care and reintegration is to put children from special establishments into the family environment and deinstitutionalising them. Encouraging social care is not in any way excluded or contradicted by creating identical conditions for biological parents by the State. The Claimant indicates that the best way to achieve deinstitutionalising of children is returning them to their biological parents and this aim is not just unimpeded by placing the comparable persons in same conditions, but quite the contrary it creates more guarantees to achieve it. Therefore the differential treatment established by the disputed provision has no reasonable linkage with the aim of deinstitutionalising and violates article 14 of the Constitution of Georgia.

The Respondent does not agree with the position of the Claimant. According to them reintegration and foster care are institutes with substantially different aims. Reintegration with its substance concerns biological family while the foster care is State service that supports reintegration process and serves the best interest of a child – returning to the biological family.

According to the Respondent the recipient for reintegration allowance is a mother or a father of a child, who has the duty to care, derived from the civil law, or guardian/caregiver, who acquires almost same duties towards the child from the date of being appointed as a guardian/caregiver. While the foster father/mother is a person hired by the State who is paid for performing the duties taken by the contract and, before the child is returned to the biological family or adopted, is obliged to create family environment for a child, so that during the State care period the rights of a child are not violated.

Pursuant to the Respondent a parent has a legal duty to care for a child. A foster parent that is not related to a child has no duty to care before the contract is concluded. Additionally a parent and a foster caregiver cannot be discussed as persons in equal situation, since after the contract is concluded a foster caregiver becomes state service provider and this is the objective for which the State gives him/her different amount of money, which envisages certain encouragement in itself.

Contrasting to the Claimant the Respondent stated that the money, which the State pays for the foster care, is not merely directed to the needs of a child and it also envisages the remuneration of the work of the caregiver, which is indicated by paragraph 2 of article 34 of the law of Georgia “On Adoption and Foster Care”. From the mentioned money one can relatively demark how much is the salary of the caregiver and how much is for reimbursing the costs of child care. Although the amounts are not directly separated and divided, the Respondent also indicates towards the foster care by the relatives and states that since close relatives (grandmother, grandfather) have legal duty to care for relative child, the State does not pay them remuneration and the payment for foster care is GEL 200.

The Respondent additionally underlined that the State equalises the monetary difference between reintegration allowance and payment for foster care with different services provided for the reintegration recipient children. Specifically the reintegration recipient family can receive up to GEL 1000 during one year from the sub-programme of emergency aid to the families under crisis, which also provides for the formula feeding products for the babies up to one year. Reintegrated child can if needed be involved in day centre service and receive the voucher of GEL 130/242 for this service.

During the hearing on merits the Respondent additionally defined that by separating compensation component from the payment for foster caregiver it would be subjected to income tax, which is why the State established unified amount and did not prescribe their components.

The Respondent considers that equalising the payment for foster care to the allowance of biological families carries a risk, since a lot of poor families would be stimulated to give the child to state establishments and only take him/her back after the allowance is provided.

The Respondent states that in order to use the strict scrutiny test to evaluate the interference with article 14 of the Constitution it is necessary to have substantially equal persons towards whom unequal treatment takes place. According to the Respondent in the instant case, as mentioned above there are two completely different relations and the participants thereof are also completely different from each other. Therefore the State cannot ensure equal treatment to them. Hence we have differentiation caused by objective reasons.

Based on provided arguments the Respondent considers that the Constitutional Claim should not be upheld.

To strengthen their arguments the parties indicate towards the practice of the Constitutional Court of Georgia, European Court of Human Rights, international instruments and recommendation, as well as experience of certain countries regarding the issue.

II
Reasoning Part

According to article 14 of the Constitution of Georgia “everyone is born free and is equal before the law regardless of race, colour of skin, language, sex, religion, political or other views, national, ethnic and social affiliation, origin, property or social status, place of residence.”

When discussing conformity of the disputed provision with article 14 of the Constitution, first of the comparative groups should be outlined and it should be established if they are substantially equal subjects. According to the Constitutional Court, “when discussing Article 14 of the Constitution, the issue of essential equality of people should be assessed not in general, but with respect to a specific legal relationship. Discourse on discriminatory treatment is possible only if the persons can be considered as essentially equal subjects with respect to a specific legal relationship. If the differentiation of people is based on their varying factual or legal condition, we shall not be facing the situation to be assessed with respect to Article 14 of the Constitution” (Judgement №2/1/536 of the Constitutional Court of Georgia dated February 4, 2014 on the case of “Citizens of Georgia Levan Asatiani, Irakli Vatcharadze, Levan Berianidze, Beka Buchashvili and Gocha Gabodze v. the Ministry of Labour, Health and Social Affairs of Georgia”, II-19). Therefore the Claimant should not only define the comparative group of persons but also argue the substantial equality between these persons.

The Claimant indicates as a grounds for discrimination the form of deinstitutionalising and puts differential treatment in two aspects: 1) from the perspective of a child – between the children beneficiaries of reintegration and of foster care; 2) from the perspective of a parent – between the biological parents and foster parents.

According to paragraph 2 of article 9 and paragraph 1 of article 10 of the Law of Georgia “On Social Assistance” the common goal of both payments for reintegration and foster care is covering the expanses of child care and up-bringing. This interest equally exists for both the receiving family and biological parents. Similarly the children despite whether they return to biological family or become subjects of foster care have equal legal interest to be cared for and brought up in dignified social conditions. Therefore the comparative groups indicated by the Claimant are substantially equal.

According to subparagraphs “b” and “d” of article 10⁴ of the Ordinance of the Government of Georgia N145 dated July 28, 2006 “On Social Assistance” allowance for foster care to a non-relative is GEL 15 (per one calendar day) and for a child with disability GEL 20 (per one calendar day) (around GEL 450-600 per month). According to the disputed provision a reintegration allowance is GEL 90 per month and for a child with disability GEL 130 per month.

According to the Constitutional Court of Georgia “for the purposes of the right protected by Article 14 of the Constitution of Georgia not every differentiation of essentially equal people is a priori considered to be a discriminatory treatment. Different treatment will not be considered discriminatory if it is based on objective assessment of essentially factual circumstances, takes into account public policy and legitimately balances general interests of the society and the rights of an individual. Differential treatment should have a legitimate aim and there should be reasonable and proportionate correlation between a differential treatment and the intended legitimate aim” (Judgement №2/1/536 of the Constitutional Court of Georgia dated February 4, 2014 on the case of “Citizens of Georgia Levan Asatiani, Irakli Vatcharadze, Levan Berianidze, Beka Buchashvili and Gocha Gabodze v. the Ministry of Labour, Health and Social Affairs of Georgia”, II-23).

The scope of reasonableness of differential treatment can vary according to individual case. “In specific cases, it may imply the necessity of corroboration of presence of legitimate public aims [...] In other cases, the necessity or need for restriction should be tangible; sometimes, the maximum reality of differentiation may be sufficient” (Judgement №1/1/493 of the Constitutional Court of Georgia dated December 27, 2010 on the case of “Political Unions of Citizens: New Rights and Conservative Party of Georgia v. the Parliament of Georgia”, II-5).

According to the established case-law while assessing the disputed provisions the Court uses strict scrutiny or rational differentiation test. The issue, which of them the Court should use, is decided based on various factors, including the intensity of interference and the grounds for differentiation. Specifically if the ground for differentiation is one of those indicated in article 14 of the Constitution or the disputed provision interferes with the right at a high intensity – the Court shall use the strict scrutiny test.

In the instant case based on the grounds for differential treatment there is no basis for using strict scrutiny test, therefore the intensity of differential treatment between substantially equal persons by the disputed provision should be assessed.

According to the Claimant the intensity of differential treatment established by the disputed provision is high, as it concerns the fundamental rights of a child, a child is not given the possibility to be developed in a normal way during the reintegration and it does not serve the best interest of a child – to live in a biological family. Additionally the difference between the amounts of allowance is too large, which also indicates towards the high intensity of differentiation.

The aim of article 14 of the Constitution of Georgia is achieving equality between substantially equal persons and vice versa. It is irrelevant for this constitutional provision how high the standard of protection of a specific right, within the scope of which a party has the interest to be treated equally, is. Furthermore such right may not be protected by the Constitution at all. Therefore, the aim of article 14 of the Constitution ends with prohibiting irrational differential treatment in any field regulated by the Constitution or the law.

The intensity of interference with the right is defined by difference of the possibility to use a specific right or to achieve a legal interest by substantially equal persons. Thus the sensitivity of a specific issue cannot a priori be the argument to establish intensity of differential treatment.

When assessing the intensity of interference with the right the Court evaluates how different the conditions, in which substantially equal persons find themselves, are. Specifically when assessing the issue of differential treatment the necessary criterion is the difference caused by the disputed provision to the human rights situation of substantially equal persons.

Additionally the issue of intensity shall not be decided in isolation, only within the scope of content of the disputed provision. When assessing the magnitude of differentiation the normative environment in which the disputed provision exists should also be taken into consideration. Specifically the provisions regulating same legal relationship and having influence (increase/decrease) on the intensity of differentiation should also be born in mind.

The Claimant also indicates towards the difference between the amount of allowances for the reintegration and foster care, which, naturally indicates towards the differential treatment, however does not reach the level of intensity that would cause the assessment by the strict scrutiny test.

Since there is no basis for using the strict scrutiny test the Constitutional Court shall assess the conformity of the disputed provision with article 14 of the Constitution of Georgia using the rational basis test.

According to the Respondent the primary aim of the State is reintegration. However, when it cannot be achieved, the institution of foster care serves as one of the ways to have the child live in a family environment and serves as an intermediary. According to the position of the Respondent the disputed provision also serves supporting the up-bringing of children in family environment before they are integrated in their biological families. Therefore, pursuant to the Respondent the aim of differential treatment established by the disputed provision is also raising the interest and attracting potential families, which, based on the best interest of children, will ensure their upbringing in family environment.

According to the Preamble of UN Convention on the Rights of the Child of November 20, 1989, the Convention recognises that “the child for the full and harmonious development of his or her personality should grow up in a family environment, in an atmosphere of happiness, love and understanding.” Paragraph 1 of article 20 of the Convention states that “a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.” The second paragraph of the same article provides the duty of the State to ensure alternative care, which may include foster placement, adoption or if necessary placement in suitable institutions for the care of children.

The international law considers family the natural environment for well-being of a child. Family relations have special importance for the emotional development of a child, since it ensures the possibility of child development in peaceful ambience, supporting safe development of child’s skills, abilities and character, realisation of certain rights are also possible in the family.

Based on the interests of a child the State should support up-bringing a child in a family environment. Foster care allows for the possibility of raising a child deprived of parental care in a family environment, which supports development of child’s personality, his/her socialisation and adaptation into the society. Beneficiary does not lose biological family and leaves it temporarily. Therefore the aim of the State – to create a family environment for a child by the foster care institution – should be considered as a valuable legitimate aim.

It is true that the State has the duty to create minimal social conditions for raising, development and support of a child; however which form the State will chose for assistance is dependent on what type of support is necessary to protect the best interests of a child. In a certain case it can be compensation payment, in other establishing special services/privileges, financial support, etc. Nevertheless since the primary duty to care for a child is on a parent, the duty of the State is to support and assist a parent in fulfilling legal duties, including by supporting to build necessary skills or improving socio-economic conditions, including by providing various social support programs instead of substituting the duty of a parent or taking it on, even in one specific field (for instance in supporting the child materially). Therefore the policy of a State to protect the best interests of the child should not simultaneously encourage failure to comply with legal duties of a biological parent and it should create efficient tools for preventing the abuse/manipulation of rights from the parents.

According to the Respondent the difference between the allowance for reintegration and payment of foster care is derived from the substance of these institutions. Unlike biological parents foster parents have no duties towards a child prior to concluding a contract with the State. Foster care is a state service institution, which the State offers to children in order to enter family environment. For this aim it is necessary to find and encourage the willing families, so that more children can exit special establishments into the family environments.

The Claimant does not share the arguments of the Respondent. According to him the differential treatment provided by the disputed provisions can hinder returning of a child to a biological family. Additionally the Claimant defines that the payment for foster care is fully intended for a child and does not envisage the compensation for foster parents’ work.

In order to define the interrelationship between the differential treatment by the disputed provision and the legitimate aim indicated by the Respondent it is necessary to analyse the legal nature of reintegration and foster care, as well as the purpose of reintegration allowance and foster care payment.

According to subparagraph “g” of article 4 of the Law of Georgia “On Adoption and Foster Care” foster care is “upbringing and care by a foster family for a child.” Subparagraph “k” of article 2 of the order of the Minister of Labour, Health and Social Affairs of Georgia N01-20/N “On the Procedures and Conditions for Granting, Suspending, Resuming and Terminating a Reintegration Allowance, and Other Relations Related to Its Provision” reintegration is “return of a child placed in a special establishment to a biological family, guardian/caregiver to live with them”, according to subparagraph “o” of the same article special establishment is “physical or legal entity that provides social services (including foster care) for the persons in need of special care”. This indicates that the receiving family during the period prescribed by the contract participates in providing state service, which envisages creating family environment for a child lacking care.

The institution of foster care does not create impediment for a child to be returned to a biological family. Furthermore as already mentioned being under foster care according to the law means being in a specialised institution, while reintegration is “return of a child placed in a special establishment [including in a foster care] to a biological family”.

Foster family is different from biological family. Specifically biological family (guardian and caregiver) have natural and legal duty of caring for a child, which lasts for undefined period of time, before the conditions set by the law are established. A parent has duty to care derived from legal status and care from him/her exceeds largely to that of foster parent, both in private non-material nature (for instance the right to surname, belonging to a certain social group, etc.) and material nature (for instance the right to inheritance). The starting points are also different and unequal – foster parent should fulfil the criteria prescribed by the law and have the necessary living conditions for providing dignified environment for upbringing a child (for instance a family receiving a living allowance based on the grade cannot be a foster family) and personal skills, which are not required for a parent, etc. It is true that during a reintegration a contract is also concluded (article 6 of the order of the Minister of Labour, Health and Social Affairs of Georgia N01-20/N), however terminating this contract does not always result in returning a child to a special state establishment. According to subparagraph “g” of paragraph 1 and paragraph 4 of article 12 of the mentioned order when reintegration contract is terminated in case there is a satisfactory result, a child is not returned to a special establishment. While in case of foster care when a foster care contract is terminated a foster child is returned into the institution. Specifically, according to paragraph 2 of article 33 of the Law of Georgia “On Adoption and Foster Care” “if an agreement on foster care is terminated prematurely, the child shall be transferred to the guardianship and custodianship authority”.

According to paragraph 4 of article 34 of the Law of Georgia “On Adoption and Foster Care” the period of providing foster care shall be counted towards the working experience of the foster mother/father. This indicates that the State sees foster care as a labour contractual relationship, the conditions of which are defined by both the law and the contract concluded with the foster family.

The reintegration allowance as well as foster care payment is defined by subparagraphs “b” and “g” of article 6 of the Law of Georgia “On Social Assistance” and are both types of social assistance and according to articles 9 and 10 of the same law both are intended for the interests of a child. Simultaneously according to paragraph 1 of article 34 of the Law of Georgia “On Adoption and Foster Care” “expanses of foster care shall be covered from the State Budget in accordance with the Law of Georgia on Social Assistance”, and according to the second paragraph of the same article “a foster mother/father shall receive social allowance for providing foster care; the amount of such an allowance shall be determined by the Government of Georgia”. Therefore the discussed provision differentiates the expanses for child care and social allowance paid to a foster mother/father for foster care. These amounts are not divided form each other, specifically according to article 10⁴ of the Ordinance of the Government of Georgia N145 dated July 28 2006 “On Social Assistance” the payment for foster care includes both the expanses for child care and compensation for the work conducted by foster mother/father.

The amount of compensation is not disputed. Therefore the Court does not discuss whether the allowance is enough for fulfilling the needs of a child and only examines the amount prescribed by the disputed provision in view of article 14 of the Constitution of Georgia. At the same time the Court states that according to the duties of the State envisaged by the Constitution of Georgia and the international law the activities (considering all services) of the State should be directed towards raising and development of a child in a dignified environment, which among others includes assisting biological parents able to care with due allowance, which would support keeping and raising a child in a biological family. This cannot be understood as an impediment to establishing services by the State for reaching the final goal [reintegration], by creating family environment for a child.

Reintegration allowance is minimal guaranteed assistance that is given to a family in case of reintegration regardless to its economical condition. According to the Respondent a child is secured with reintegration allowance despite socio-economic conditions of the family of legal representative of a child (paragraph 2 of article 6 of Annex N1 to the order of the Minister of Labour, Health and Social Affairs of Georgia N01-20/N “On the Procedures and Conditions for Granting, Suspending, Resuming and Terminating a Reintegration Allowance, and Other Relations Related to Its Provision”), however in case of necessity additional services are offered.

According to the Respondent the degree of care towards reintegrated child is not exhausted by the mentioned allowance only and includes a number of special services, which would fit the needs of a child best (for instance, feeding voucher, etc.). Simultaneously, within the current dispute the Court does not face the need to evaluate the degree of functionality and/or quality of these services based on the Claim.

It is evident that the institute of foster care is a state service directed to creating a family environment for children with lack of care and for achievement of this aim the State uses contractual, quasi labour-law regulation. Specifically, although the payment for foster care exceeds the reintegration allowance, apart from child care expanses also serves reimbursing the effort of foster family for providing family environment to a child. This serves achievement of legitimate aim indicated by the Respondent. Therefore the differential treatment between substantially equal persons has rational basis and the disputed provision satisfies the constitutional standards for interference with the right protected by article 14 of the Constitution of Georgia.

III
Ruling part

Based on subparagraph “f” of paragraph 1 and paragraph 2 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, paragraph 2 of article 21, paragraph 3 of article 25, subparagraph “a” of paragraph 1 of article 39, paragraphs 2, 4, 7 and 8 of article 43 of the organic law of Georgia “On The Constitutional Court of Georgia”, paragraphs 1 and 2 of article 7, paragraph 4 of article 24, articles 30, 31, 32 and 33 of the Law of Georgia “On Constitutional Legal Proceedings”

THE CONSTITUTIONAL COURT
RULES:

1. The constitutional claim N603 (the Public Defender v. the Government of Georgia) regarding the constitutionality of article 10³ of the Ordinance of the Government of Georgia N145 dated July 28, 2006 “On Social Assistance” with respect to article 14 of the Constitution of Georgia shall not be upheld.

2. This judgment is in force from the moment of its public announcement on the hearing of the Constitutional Court.

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

4. A copy of the judgment shall be sent to: the parties, the President, the Parliament and the Supreme Court of Georgia.

5. The judgment shall be published in the “Legislative Herald of Georgia” within the period of 15 days.

Composition of the board:

Zaza Tavadze

Lali Papiashvili

Otar Sichinava

Tamaz Tsabutashvili