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 10 November, 2017, the Constitutional Court adopted the Judgement in the case of “Citizen of Georgia – Lali Lazarashvili v. The Parliament of Georgia” (constitutional complaint №642).

The subject of dispute in this case was constitutionality of Article 70(1) and Article 77(1) of the Organic Law of Georgia on Common Courts with regard to Article 14 of the Constitution of Georgia.

Article 70(1) of the Organic Law of Georgia on Common Courts provides for entitlement to state compensation for those judges of the Supreme Court, whose powers were terminated due to expiration of the term of office or reaching the retirement age. Under Article 77(1) of the same Law, the right to state compensation is also granted to those judges, whose powers were terminated in the period from 1 January 2005 until 1 January, 2006 based on the personal application.

The complainant’s powers as of the member of the Supreme Court were terminated on the basis of her personal application in 2010. Therefore, she considered that due to the disputed provisions she was in a discriminatory situation, which violated right to equality before the law enshrined in the Constitution of Georgia. Moreover, during the hearing for examination of the case on merits, the complainant specified, that she applied for eradication of differentiation through granting her the right of compensation, not through revoking the right of compensation of persons already falling within the above-mentioned categories.

The respondent explained, that it is discretionary power, not obligation of a state to grant the right to state compensation. Entitlement to compensation is related to such objective grounds, as reaching the retirement age or expiration of term of office, whereas termination of office on the ground of personal application does not present such a circumstance. In view of the above-mentioned, the named categories of persons are not substantially equal and right to equality before law is not violated in their case. At the same time, the respondent recognized the constitutional complaint in the part, where claim referred to constitutionality of Article 77(1) of the Organic Law of Georgia on Common Courts of Georgia with regard to Article 14 of the Constitution of Georgia.

Based on the analysis of the competence and mandate of the Constitutional Court of Georgia, which is determined by the Constitution, the Court stated, that it is a negative legislator. Its task is to carry out constitutional review and to invalidate unconstitutional provision and/or its parts or normative content. The Constitutional Court is not authorized to form a new legal order, to adopt new rules, including constitutional rules or widen the scope of application of the disputed provision. This is not compatible with the constitutional principle of separation of powers.

The disputed provisions provide for right to state compensation for some former members of the Supreme Court of Georgia. They do not prohibit provision of compensation to some other members of the Supreme Court. Therefore, the Constitutional Court declared, that the disputed provision does not contain the normative content, invalidation of which would lead to appointment of compensation for the complainant.

Thus, the claim of the complainant is not related to invalidation of any normative content of the disputed provision, but creation of a new normative order, in which she would also be entitled to receive the state compensation. Thus substantially, the complainant requested a measure identical to positive action of adding a rule to the legislation, which the Constitutional Court is not authorized to do.

Therefore the Constitutional Court did not uphold the constitutional complaint №642.

The concurring opinions of the Members of the Constitutional Court – Giorgi Kverenchkhiladze and Maia Kopaleishvili, as well as dissenting opinion of the Judge, Lali Papiashvili is appended to the Judgement.