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 11 May 2018 the Second Board of the Constitutional Court of Georgia granted the constitutional complaint of the citizen of Georgia, Tamar Tandashvili, and declared unconstitutional a rule of the Decree of the Government of Georgia (№126 originally adopted on 24.04.2010), which aims at establishing a centralised registry for the socially vulnerable families, who would then be eligible for state-provided social assistance. The disputed provision excluded those persons from registration, who were in unlawful possession of the premises owned by the state without permission of the owner.

The complainant argued that those individuals who lived in the property owned by the state without permission and were entitled by law to the registration (before the disputed legal provision took effect on 1 June 2013) as a socially vulnerable family, were effectively stripped of the possibility to receive state-provided social assistance. By contrast, such assistance was provided to those people, who unlawfully occupied the state-owned premises, yet managed to undergo registration before the contested law was introduced. Based on this argument, the complainant declared that it was subject to a differentiated treatment contrary to the constitutional right to equality (Article 14).

The complainant further noted that as a result of the disputed law, it had to make a difficult decision between their housing and the right to receive social assistance. Therefore, according to the complainant’s position, the disputed law was also in contradiction with the right to dignity (Article 17.1) since it employed the people as the means of achieving the state’s regulatory aim.

The respondent, the Government of Georgia, emphasised that the law in question pursued the important legitimate objective to ensure the protection of state property, and it provided for a proportionate measure in line with the constitutional requirement. To justify the differential treatment, the respondent noted that cancelling the registration of already registered persons would cause difficult economic consequences for them.

The Constitutional Court sided with the complainant’s arguments and indicated that for the purposes of the state-provided social assistance, those persons who lived in the state-owned property without permission, irrespective of the fact when they were entitled to obtain the status of a socially vulnerable family and undergo registration, were substantially equal. The constitutional court also pointed out that there was a differential treatment between comparable persons.

According to the court, in the instant case taking into consideration that one part of the comparable persons could not get social assistance at all, disputed provision interfered with the right at a high intensity, therefore differentiation should be assessed by the strict scrutiny test.

The Constitutional Court stated that differential treatment could be somehow reasonable if it was linked to the date of arbitrary possession of state property, but the disputed regulation differentiated comparable persons by the date of their registration in the social database. Therefore, the measure was not considered suitable to achieve a legitimate aim. Besides, rejecting claimant’s demand for registration in the database should be considered as painful as cancelling the registration for those who were registered before. In conclusion, the court stated that the disputed law unjustifiably restricted the rights of the complainant (and persons with similar status). The Constitutional Court found the foregoing differentiation between the two equal groups of individuals unconstitutional, in violation of the constitutional right to equality.

The Constitutional Court further noted that the state does enjoy the legitimate interest to ensure the protection of their property from unlawful possession. Nevertheless, any measure employed in the course of attaining the mentioned objective must be in line with the constitutional rights and freedoms. The Court indicated that in the present case, to ensure the protection of their property, the state effectively resorted to deprive the complainant (and persons with similar status) of their right to receive social assistance. Hence, the economic hardship of individuals was, in fact, the very measure employed in the given case to achieve the legitimate objective of protecting the state property from unlawful possession. The court concluded that using humans as a mean for achieving the aim violates the right to human dignity.