Composition of the Board

Konstantine Vardzelashvili – Chairman of the Hearing;

Ketevan Eremadze – Member;

Maia Kopaleishvili – Member, Judge Rapporteur.

Secretary of the Hearing: Lili Skhirtladze

Title of the Case: Citizens of Georgia - Ucha Nanuashvili and Mikheil Sharashidze v. the Parliament of Georgia

Subject of the Dispute: Constitutionality of paragraph 1 of Article 110 and paragraph 2 (December 27, 2011 version) of the same article of Organic Law of Georgia "the Election Code of Georgia" with respect to article 14 and paragraph 1 of article 28 of the Constitution of Georgia.

Participants of the Hearing: The Claimants - Ucha Nanuashvili and Mikheil Sharashidze; Representative of the Parliament of Georgia - Zurab Macharadze.

I
Descriptive Part

1. On December 12, 2012 a constitutional claim (registration N547) was lodged to the Constitutional Court of Georgia by the Citizens of Georgia Ucha Nanuashvili and Mikheil Sharashidze. On December 17, 2012 N548 Constitutional Claim was assigned to the First Board of the constitutional Court of Georgia for ruling on admission of the case for consideration on merits. Preliminary session of the First board of the Constitutional Court without oral hearing was held on April 4, 2013.

2. Pursuant to the Recording Notice of April 4, 2013 N1/1/548 of the first board of the Constitutional Court of Georgia the claim was admitted for consideration on merits.

3. The oral hearing on merits was held on January 30, 2014.

4. The legal basis for submission of the Constitutional Claim is: subparagraph “f” of paragraph 1 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, paragraph 5 of article 25 and subparagraph “a” of paragraph 1 of article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”, paragraph 2 article 1, paragraphs 1 and 2 of article 16 of the Law of Georgia “On Constitutional Legal Proceedings”

5. The Claimant disputes:Constitutionality of paragraphs 1 and 2 of Article 110 of Organic Law of Georgia "the Election Code of Georgia" with respect to article 14 and paragraph 1 of article 28 of the Constitution of Georgia.

6. According to the paragraph 1 of Article 110 of Organic Law of Georgia "the Election Code of Georgia" "For parliamentary elections of Georgia, 73 single-seat majoritarian electoral districts, among them 10 majoritarian electoral districts in Tbilisi, shall be established", According to the second paragraph "For parliamentary election each municipality (Self-governing city, County), except Tbilisi, constitutes single-seat majoritarian electoral districts (December 27, 2011 version).

7. As a result of amendment of organic law of Georgia "Election Code of Georgia" adopted on March 7, 2014 paragraph 2 of article 110 of the same law was formulated as follows "For parliamentary elections of Georgia, single-seat majoritarian electoral districts shall be established and their borders shall be defined by decree of the CEC not later than July 1 of the year of the regular Parliamentary elections of Georgia".

8. 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 opinions, national, ethnic and social affiliation, origin, property or social status, place of residence". According to paragraph 1 of article 28 of the Constitution "Every citizen of Georgia, who has attained the age of 18, have the right to participate in referenda and elections of state and self-government bodies. Free expression of the will of voters shall be guaranteed".

9. The Constitutional Claim indicates that the Claimants are citizens of Georgia, which are registered as voters in Tbilisi N2 (Vake) and N3 (Saburtalo) single-seat majoritarian electoral districts.

10. According to the Constitutional Claim, derived from the constitutional principle of Democracy guaranteed by article 5 of the Constitution of Georgia in order to establish governance through people existence of possibility to participate in politics through election needs to be ensured. Participation of voters and expression of their will is main precondition for elections. The sole purpose of elections is to ensure expression of voters' political will and its adequate transformation into the election results. In cases when election procedure does not ensure adequate transformation of voters' political will into the election results, it can be considered that such procedure does not serve the purpose of elections. Therefore there is a necessity for an election system, which ensures proportional transformation of voters' votes into the results of elections most effectively. Specifically, in the election of legislative body the political will of a voter should be proportionally transformed into the mandates in the Parliament. The electoral system must ensure fair election of representatives of citizens which have different political views.

11. According to the statement of the Claimant, electoral districts, especially in relation to election held by majoritarian system, constitutes administrative units of utmost importance, within the districts expression of voters' will and its transformation into parliamentary representation should be ensured.

12. The Claimant party indicates that in the electoral system of proportional representation same number of voters has equal opportunity to have desired political union represented in the Parliament of Georgia proportionally to their votes. The Claimant considers that same proportion and balance should be maintained through the election held via majoritarian system. Through the election held via majoritarian system, same number of voters should have equal opportunity to directly elect majoritarian Member of Parliament, as it is in the election held via proportional representation election system.

13. The Claimant party considers important that the number of voters in the single-seat majoritarian electoral districts established for parliamentary elections to be more or less equal. This will ensure equal opportunity to elect majoritarian member of the Parliament for equal number of voters registered in different electoral districts. The mentioned disproportion causes violation of principle of equality of votes, which leads to inadequate results of the elections. The Claimant party indicates that in majoritarian electoral system protection of equal number of voters in different districts i.e. "Electoral Geography" has crucial importance. Improper use of "Electoral Geography" results in inadequate results of the elections. Thereby, the Claimant indicates, that the subject of dispute of the Constitutional Claim is the rule of formation of single-seat majoritarian electoral districts.

14. The Claimant party has offered an average calculation of how much the number of votes in each single-seat majoritarian electoral district should be. The clamant party indicates, that in order the principle of equality of votes not to be violated, the entire number of voters - 3 613 851 should be divided by 73 (number of majoritarian districts) and therefore each Member of Parliament should be elected by 49 504 voters. Thereby in each electoral district averagely 49 000 voters should be registered. Certain deviation is allowed from this number, which according to the internationally established practice should not exceed 10-15%.

15. Based on all above mentioned, the Claimant party considers that the disputed provision contradicts the principle of equality before the law protected by article 14 of the Constitution of Georgia and discriminates voters based on the place of residence. Based on paragraph 1 of article 49 of the Constitution of Georgia and article 3 of organic law of Georgia "Election Code of Georgia", the Claimant party concludes, that voters of Georgia, as equal subjects, shall be enjoying equal electoral right for the purpose of article 14 of the Constitution of Georgia. To substantiate this argumentation the Claimant party refers as an example to the number of registered voters in N3 Saburtalo electoral district and Kazbegi electoral district. Based on the numbers the weight of a vote of a person registered in Kazbegi is 22 times higher compared to the vote registered in Saburtalo or Vake electoral districts.

16. The Claimant party indicates that it is impossible to ensure complete equality with respect to the electoral right. Certain differentiation might be allowed in several occasions, but differentiation shall be reasoned and serving achievement of a legitimate aim. According to the Claimants' opinion such exception might be allowed for High Mountain or difficultly reachable areas, as well as regions densely populated by ethnic minorities. However, according to the position of the Claimant party existing disproportion between number of votes is not conditioned by the mentioned legitimate aims.

17. The Claimant party also considers that the disputed provisions contradict right protected under paragraph 1 of article 28 of the Constitution of Georgia, namely equal electoral right and equality of votes (equal suffrage). If state does not fulfil its positive obligation to provide fair electoral conditions and environment, the right established under the article 28 will become illusory and unfunctional.

18. To substantiate their argumentation the Claimant party additionally refers to the judgments of the Constitutional Court of Georgia and the European Court of Human rights, as well as the report of the Organisation for Security and Co-operation in Europe and the opinion of Venice Commission.

19. Based on all above mentioned the Claimant party considers, that the disputed provisions contradict article 14 and paragraph 1 of article 28 of the Constitution of Georgia.

20. The Claimant party additionally indicated during the hearing on merits that members of the parliament elected via majoritarian system, similar to the member of the parliament elected via system of proportional representation, are representatives of entire Georgia, not solely the territorial unit they are elected from. These two systems manly differ in rule and procedures of holding the elections. Article 52 of the Constitution of Georgia does not differentiate members of the Parliament elected via majoritarian and proportional representation electoral systems. Both, members of parliament elected via majoritarian system and proportional representation system have the same functions; however in one case each voter enjoys equal right to vote, while equality of votes is violated in another case.

21. Although, each Member of Parliament protects rights of every individual and is representative of entire Georgia, the Claimant party considers that the Member of Parliament elected via majoritarian system, additionally is representing the interests of certain region, therefore purpose of majoritarian systems at some level is territorial representation as well. The Claimant considers that the existence of majoritarian system has its importance, since it ensures maximum representation of interests of each region in the Parliament of Georgia. At the same time, the Claimant party considers the most possible equalisation of number of voters in each electoral district necessary, in order to protect the principle of equality of votes together with the principle of territorial representation.

22. The Claimant party considers that if the disputed provisions are declared unconstitutional equalisation of number of voters in different districts should happen via uniting the smaller neighbouring election districts and separation of large election districts. According to the opinion of the Claimant party such decision bears neither legal nor practical risks, since in many occasions several regions face identical problems. Moreover, it is important to recount the number of voters in electoral districts and re-evaluate election districts based on quantity of voters after certain period of time has lapsed.

23. During oral hearings on merits the Respondent party referred to article 4 of the Constitution of Georgia, according to which after appropriate conditions are created and local self-government bodies have been formed throughout the entire territory of Georgia, two chambers shall be set up within the Parliament of Georgia: the Council of Republic and the Senate, one of the Chambers of the Parliament – the Senate will be based on the principle of territorial representation. The respondent states that it is impossible existing Single Chamber Parliament to be considered identical to the mentioned system, but it is also clear that legislator intends to ensure representation based on the territorial principle. To substantiate the mentioned argument the Respondent refers to the amendments of December 27, 2011 changing paragraph 1 of article 49 of the Constitution of Georgia, according to the amendment the number of MPs was reduced from 75 to 73. The Respondent explained that this change was resulted by losing the state control on two municipalities.

24. The Respondent considers that existence of mentioned legitimate aim – ensuring the territorial integrity excludes possibility for implementing the principle of equal representation in the elections held through the majoritarian system. The artificial redistribution of voters in the electoral districts might result creating privileged conditions for certain electoral subjects compared to the others.

25. With respect to article 14 of the Constitution of Georgia the Respondent states that the issue whether right to equality before the law includes equality of votes is not uniformly decided in international practice. There is a position claiming that principle of equality covers only equality of voters in the voting process and not equal influence on the results of elections. Therefore it is not state obligation derived from the Constitution of Georgia to ensure equal weight of the votes and regulating this issue is subject of parliamentary discretion.

26. The Respondent also indicates that if the disputed provision is declared unconstitutional there will be no legal provision left regulating the formation of electoral districts for by-elections. The Respondent indicates that by-elections are held annually in case a Member of Parliament elected from a majoritarian electoral district loses its seat. Declaring the disputed provisions unconstitutional might cause merger or division of several electoral districts, therefore it might become impossible to identify in which electoral district by-elections should be held. The respondent defines that in case the Constitutional Claim is upheld, elimination of mentioned legal vacuum is possible only by postponing enforcement of the court judgment.

27. Based on paragraph 1 of article 14¹ of the law of Georgia “On Constitutional Legal Proceedings”, the non-profit legal person “Georgian Young Lawyers’ Association” presented the amicus curiae opinion.

28. The Amicus Curiae considers that the disputed provisions contradict principle of equality before the law protected by article 14 of the Constitution of Georgia and it discriminates based on place of residence. The disputed provisions differentiate defined group of citizens from others being in the similar situation and give more value to their vote compared to others'. To specify, because of territorial borders the votes of small group of people have same value as votes of the substantially larger group of people. The Amicus Curiae further indicates that in the process of creating self-governing units existing Georgian legislation does not create an obligation to try to equalise the number of inhabitants in different municipalities. The Amicus Curiae considers that efficient exercise of electoral right should not depend to the place of residence.

29. The Amicus Curiae states that the principle of equality is not derived separately from the content of article of 28 of the Constitution, its systemic interpretation with other constitutional provision is needed. Article 49 of the Constitution of Georgia guarantees election of the Parliament of Georgia as a result of exercising equal suffrage. Therefore, the Amicus Curiae considers that the right to participate in parliamentary elections guaranteed by article 28 of the Constitution of Georgia also includes exercising the right to participate with the vote equal to others' in accordance to paragraph 1 of the article 49 of the Constitution of Georgia.

30. The Amicus Curiae refers to the principle of Popular Sovereignty enshrined in article 5 of the Constitution of Georgia, according to which the source of state power in Georgia is the people, which exercise the power, among others, by their representatives. This constitutional principle requires each vote to have equal power in the elections of a representative body, while in existing situation parliament is the representative body of a territorial unit, not the people.

31. The Amicus Curiae draws attention to the article 4 of the Constitution and indicates that the principle of territorial representation, which is defined by the mentioned article will be enforced only after reinstatement of territorial integrity of Georgia, the existing regulation does not stipulate any exception from principle the of popular representation. The regulation of article 4 of the Constitution of Georgia is not in force and cannot be the basis of adoption of any legal document. Simultaneously the principle of territorial representation creates the basis for deviation from the popular representation principle only in case it is prescribed by the Constitution of Georgia. According to the current version, self-governing entities and 10 single-seat majoritarian districts of Tbilisi are not based on Constitutional Law and cannot fall within the scope of article 4 of the Constitution. Apart from that mentioned institution is content-wise different from the territorial units established by paragraph 3 of article 4 of the Constitution of Georgia.

II
Reasoning part

1. Paragraph 1 of article 28 of the Constitution of Georgia recognises electoral right and indicates that "every citizen of Georgia, who has attained the age of 18, have the right to participate in referenda and elections of state and self-government bodies. Free expression of the will of voters shall be guaranteed." According to the definition of the Constitutional Court of Georgia "every citizen of Georgia, who has attained the age of 18, has active electoral right. He/she, as a voter, is able to participate in an election - vote and elect bodies of state and local self-government" (The Judgment №1/1/257,268 of the Constitutional Court of Georgia on the case of "Citizens of Georgia - Guram Sanadze and Irakli Kotetishvili v. the Parliament of Georgia" dated January 24, 2005).

2. "Elections are an institutional mechanism, which makes democracy operational. In order to secure “government by the people”, the people shall participate in politics and the best way to this is the elections. Elections by themselves create the feeling and faith among individuals that they directly take part in the state administration (by electing their choices or by being elected)" (The Judgment №1/1/493 of the Constitutional Court of Georgia on the case of ""Political Unions of Citizens "the New Rights" and "Conservative Party of Georgia" v. the Parliament of Georgia" dated December 27, 2010, II-8). Elections ensure practical realisation of the principle of democracy and participation of citizens in performance of state power. Fair election process contributes to the establishment of modern, pluralistic society and creates the foundation for democratic social order. Democratic social order is based on the idea of self-determination of each citizen and respecting a human dignity. In the modern state legitimacy of the government acting in the name of people should be derived from the will of the people. The election is the mechanism which creates a possibility for realisation of Popular Sovereignty. The election compatible to the constitutional standards, based on free, universal and equal suffrage constitutes a foundation of a democratic system.

3. According to the paragraph 2 of article 1 of the Constitution of Georgia "The political structure of the State of Georgia is a democratic republic". Furthermore paragraphs 1 and 2 of article 5 recognise that "People shall be the source of state authority in Georgia. People exercise their power through referenda, other forms of direct democracy, and their representatives". Idea behind Popular Sovereignty is that each citizen participates in the formation of government and is involved in the performance of state power this way. The Popular Sovereignty is substantially implemented through the principle of representative democracy. Each citizen of Georgia gives his/her power to his/her representatives by voting for them and this way legitimises making important decisions, governing the state by them.

4. The fair, well structured electoral process is fundamental element of democratic governance. Obviously, well designed election system alone is not enough for existence of democratic state, but election is vital for its functioning and constitutes utmost important prerequisite for existence of democratic state. Fair nature of electoral process is derived from many factors, including electoral system. The formation of electoral system is part of a political process, but this process should not go beyond the boundaries established by the constitution. "It is of high importance as to how elections take place, in the first place, how is the elections legislation, to what extent it comprises of sufficient and necessary guarantees that as a result of elections, its citizens shall achieve “government by the people”. This result is achievable, if participation in elections is equally accessible to all citizens" (The Judgment №1/1/493 of the Constitutional Court of Georgia on the case of ""Political Unions of Citizens "the New Rights" and "Conservative Party of Georgia" v. the Parliament of Georgia" dated December 27, 2010, II-8). Article 28 of the Constitution of Georgia securing the right to fair elections establishes constitutional legal standard for protection of the right and requires creation of necessary guarantees for its realisation. The electoral right does not necessarily require establishment of any specific electoral model. Constitutional requirement from existing electoral model is to ensure free and equal reflection of people's will in the process of government formation.

5. Paragraph 1 of article 28 of the Constitution of Georgia establishes constitutional legal guarantee for every citizen of Georgia to participate in the elections of state and self-government bodies founded on free expression of their will. Realisation of electoral right implies possibility for every citizen to influence results of the election. Therefore, decreasing influence of the vote substantially restricts the active electoral right.

6. The electoral right will lose its substance if equal access to it is not ensured. The purpose of election is to ensure representation adequate to will of citizens; therefore elections should ensure representation appropriate to the free, true will of the citizens during formation of state and self-governing bodies. Formation compatible to true will of citizens will be impossible if election system does not ensure adequate transformation of citizens will into the election results. In order to ensure fulfilment of the mentioned objective legislator is obliged to create suitable guarantees, which give citizens equal access to the election and equal opportunities to influence final results of elections. Only through such system it is possible to provide democratic representation, which will have social legitimacy derived from the will of citizens.

7. The Claimants dispute constitutionality of paragraphs 1 and 2 of the organic law of Georgia "the Election Code of Georgia". It should be mentioned that subject of our assessment is the wording as of December 27, 2011 of paragraph 2 of article 110 (On March 7, 2014 the disputed provision was amended). The Claimant party refers to the improper designation of electoral district and disproportion in allocation of parliamentary mandates caused by the disputed provisions. According to the Claimant’s argumentation the number of population significantly differs between electoral districts and parliamentary mandates are unequally allocated, which diminishes “weight” of citizens' vote. In certain occasions disproportion is so high, that number of voters registered in one district is 22 times more than the number of voters registered in another.

8. Based on above mentioned the Constitutional Court should decide whether election system establishing the mentioned allocation of mandates on election districts is compatible with article 28 of the Constitution of Georgia.

9. According to paragraphs 1 and 2 of article 110 of the organic law of Georgia "the Election Code of Georgia” (wording as of December 27, 2011) for parliamentary elections of Georgia, 73 single-seat majoritarian electoral districts shall be established, among them 10 majoritarian electoral districts are set to be in Tbilisi, the other districts match self-governing units – municipalities. According to subparagraph “e” of article 110 of the organic law of Georgia "the Election Code of Georgia” the Central Election Commission of Georgia (CEC) “establishes electoral districts and specifies their boundaries by the decree”. According to article 18 of the same law “electoral districts, their boundaries, names, and numbers shall be determined by decree of the CEC as provided by this law”. Based on the mentioned provisions by decree N62/2012 of June 11, 2012 of the Central Election Commission of Georgia “On Establishing Electoral Districts, Determining Their Boundaries, Names, and Numbers for 2012 Parliamentary Elections” 73 single-seat majoritarian election districts were created, among them 10 in Tbilisi – Mtatsminda, Vake, Saburtalo, Krtsanisi, Isani, Samgori, Chughureti, Didube, Nadzaladevi and Gldani electoral districts and 63 in local self-governing units - Sagarejo, Gurjaani, Sighnaghi, Dedoplistskaro , Lagodekhi, Kvareli, Telavi, Akhmeta, Tianeti, Rustavi, Gardabani, Marneuli, Bolnisi, Dmanisi, Tsalka, Tetritskaro, Mtskheta, Dusheti, Kazbegi, Kaspi, Gori, Kareli, Khashuri, Borjomi, Akhaltsikhe, Adigeni, Aspindza, Akhalkalak, Ninotsminda, Oni, Ambrolauri, Tsageri, Lentekhi, Baghdati, Kharagauli , Terjola, Sachkhere, Zestaponi, Mestia, Vani, Samtredia, Khoni, Chiatura, Tkibuli, Tskaltubo, Kutaisi, Ozurget, Lanchkhuti, Chokhatauri, Abasha, Senaki, Martvili, Khobi, Zugdidi, Tsalenjikha, Chkhorotsku, Poti, Batumi, Keda, Kobuleti, Shuakhevi, Khelvachauri, Khulo electoral districts.

10. The Claimant indicated, that the Central Election Commission published information on entire number of citizens eligible to vote in 2012 parliamentary elections, according to which for 2012 parliamentary elections Vake N2 electoral district had 99 241 registered citizens eligible to vote, Saburtalo N3 electoral district had 128 545 registered voters, while Kazbegi N29 electoral district had 5 810 registered voters. Hereby, Kazbegi electoral district has 17 times fewer registered voters compared to number of voters registered in Vake electoral district and 22 times fewer compared to Saburtalo electoral District. Similarly Gldani electoral district has 154 898 registered voters, while Krtsanisi electoral district has – 47 039, Abasha electoral district has – 22 024. Number of voters registered in Gldani electoral district is about 3 times higher compared to voters registered in Krtsanisi electoral district and 7 times higher compared to voters registered in Abasha electoral district.

11. Notwithstanding the above-mentioned, one Majoritarian mandate is allocated on each electoral district and voters of each district have the right to elect single majoritarian Member of Parliament. Therefore, ability of voters of Vake, Saburtalo and Gldani electoral districts to influence results of elections of Majoritarian Member of Parliament is much lower compared to the same ability of citizens resident in other electoral districts which have fewer registered voters.

12. At the same time, as it was already mentioned the disputed provision – paragraph 1 of Article 110 of the organic law of Georgia "the Election Code of Georgia" defines, that 10 single-seat majoritarian districts should be established in Tbilisi. According to the information published by the CEC, the number of registered voters in 10 majoritarian electoral districts created in Tbilisi exceeds 1 million (1 024 455 voters), while entire number of registered voters in all districts is 3 613 851, Hereby around 28% of entire number of voters is registered in 10 districts established in Tbilisi, while 10 out of 73 parliamentary mandates, i.e. around 14% of mandates are allocated on Tbilisi. Therefore, in case of allocating 10 single-seat majoritarian electoral districts in Tbilisi, it is not possible to create 63 other single-seat majoritarian electoral districts which will be even to the Tbilisi districts. Therefore, the regulation of paragraph 1 of Article 110 of the organic law of Georgia "the Election Code of Georgia" constitutes one of the sources of restriction of the claimants’ electoral right.

13. In majoritarian elections it is practically impossible to ensure absolute equality between “weight” of votes, since there will always be the comparatively smaller and bigger districts, which will elect same number of Member of Parliament. At the same time the election system which gives several times bigger “weight” to votes of citizens registered in one district, compared to others registered in another district, does not create equal opportunities of voters to equally influence results of the elections and causes significant deviation from the principle of equality of votes.

14. According to the argumentation of the representative of the Respondent, the Parliament of Georgia, mentioned deviation from equality of votes is reasoned by the election system established by the Constitution of Georgia and specificity of majoritarian elections. According to the opinion of the representative of the Respondent majoritarian elections does not entail ensuring popular representation, but representation of territorial units – municipalities, which is reasoned by the fact that majoritarian election by essence implies territorial representation.

15. According to paragraph 1 of article 49 of the Constitution of Georgia “Before the conditions under Article 4 of the Constitution of Georgia have been created, the Parliament of Georgia shall consist of 77 members elected by a proportional voting system and 73 members elected by a majoritarian voting system”, while according to paragraph 1 of the article 4 “After appropriate conditions have been created and local self-government bodies have been formed throughout the territory of Georgia two chambers shall be set up within the Parliament of Georgia: the Council of Republic and the Senate”. Therefore, before creation of two chambers - Council of Republic and the Senate - within the parliament, the Parliament of Georgia consists of 77 members elected by a proportional voting system and 73 members elected by a majoritarian voting system.

16. The selection of election system compatible with constitutional standards constitutes one of the most important institutional decisions for democratic social order. Election system determines correlation between votes and corresponding mandates (of state and local self-governing bodies), regulates transformation of received votes into the mandates.

17. It is defined by the Constitution of Georgia that the Parliament of Georgia consists of members elected by proportional voting system as well as by a majoritarian voting system. Therefore, the Constitutional Court faces the need to assess argument of the Respondent and determine whether majoritarian election system established by the Constitution implies territorial representation and whether mentioned territorial representation entails representation of local self-governing units – municipalities.

18. The principle of popular sovereignty established by article 5 of the Constitution of Georgia is also expressed in article 52 of the Constitution. According to the mentioned article Member of Parliament is representative of entire Georgia. At the same time the Constitution does not entail territorial representation. As it was also indicated by representative of the Parliament of Georgia article 4 of the Constitution implies creation of upper Chamber of the Parliament – Senate (which will consist of representatives elected from the territorial units and 5 member appointed by the President of Georgia) only “after appropriate conditions have been created and local self-government bodies have been formed throughout the territory of Georgia”. Therefore, according to the Constitution of Georgia, electoral system based on territorial representation principle should be enforced only “after appropriate conditions have been created”.

19. Furthermore, it should be mentioned, that according to the relevant provisions of the Constitution self-governing units do not possess appropriate legitimacy for having constitutional power to elect their representatives into the Parliament of Georgia. According to paragraph 4 of article 2 of the Constitution of Georgia the citizens of Georgia registered in a self-governing unit regulate the affairs of local importance through local self-governance and according to paragraph 1 of article 102¹ of the Constitution “Powers of local self-government shall be delimited from those of state bodies. A self-governing unit shall have its own and delegated powers”. The legitimacy given to self-governing units by the Constitution consists of regulating “affairs of local importance”. The constitutional legitimacy of self-governing units does not include participation in the formation of bodies of central government, including the Parliament.

20. Hereby, the Constitutional Court of Georgia does not uphold the position of parliament according to which the majoritarian system for parliamentary elections established by the Constitution implies representation of territorial units, local self-governing bodies, into the Parliament of Georgia. The electoral system constitutes a mechanism, instrument by which the appropriate legitimacy should be transferred from its source to the state body (or public official) receiving the legitimacy. Since the Constitution does not indicate participation of territorial unit into the process of formation of the Parliament and territorial units do not have constitutional legitimacy to have representatives in the Parliament, majoritarian electoral system by itself could not be considered as a source of mentioned legitimacy.

21. According to the model of governance established by the Constitution of Georgia, the Parliament of Georgia as a highest representative body implements power indicated by the Constitution transferred from the people, sole subject established by the Constitution. The majoritarian electoral system does not a priori imply ensuring territorial representation. The majoritarian electoral system has several characteristics which ensure specific allocation of parliamentary mandates. The majoritarian electoral system serves personified representation. In such system the people directly elect certain subject, direct connection between voter and an elected individual is higher.

22. The Constitutional Court of Georgia indicates that the electoral geography and determination of electoral districts significantly influence entire election process and realisation of electoral right. The equality of votes and arming the voters with equal abilities shall be governing principle while defining electoral districts, electoral geography. The electoral legislation should aim to set electoral district’s boundaries in a way to ensure equality of votes and adequate representation. This entails that the number of votes in different electoral districts should be as equal as possible, in order to mostly ensure equal “weight” of votes.

23. The Constitutional Court bears in mind that achievement of absolute equality might not be possible, but mentioned differentiation is allowed only in cases when it is legitimately reasoned. Factual difficulties might arise during administering electoral process, which might cause impossibility of allocation of electoral districts in a way to achieve identical "power" of the votes. However, the government should try to minimise mentioned inequality and not to decrease "weight" of some citizens' votes solely due to the administrative difficulties.

24. In the process of allocation electoral districts administrative boundaries as well as geographical specificities and other socially important criteria might be taken into consideration. In some occasions due to the specificity of certain regions allowing reasonable disproportion between electoral districts might be necessary. However any of such regulations shall be constitutionally assessed with respect to electoral right and right to equality before the law. Introducing elements of territorial representation should not cause obvious and unjustified inequality. An influential power of votes of citizen registered in territorial units should not be diminished to such a level that will cause essential restriction on citizens participation into the process of government formation. According to the definition of the Constitutional Court of Georgia, derived from the idea of popular sovereignty, the Constitution of Georgia requires every citizen to be armed with equal opportunity to participate (influence) in the decision making process of government. Some level of deviation from equality of votes might be justified in case when important circumstances, suitable constitutional-legal basis exist and not in any situation for ensuring representation of any territorial unit.

25. It is worth mentioning that principle of equality of votes is widely recognised international standard. For example, analogous standards are indicated in recommendations of European Commission for Democracy through Law ("Venice Commission"). According to the Venice Commission's Code of Good Practice In Electoral Matters of 2012 the equal suffrage is one of the main electoral principle which implies constituency boundaries to be drawn in such a way that seats in parliament representing the people are distributed equally to the number of voters. The maximum admissible departure from the distribution criterion should not exceed 10% except in really exceptional circumstances (a demographically weak administrative unit of the same importance as others with at least one lower-chamber representative, or concentration of a specific national minority); in such circumstances departure should not go beyond 15%. Reference to equal suffrage is included in recommendations of the Organisation for Security and Co-operation in Europe (OSCE) and Venice Commission which were issued in relation to Georgian electoral legislation.

26. In the present case, in order to ensure territorial representation, the Parliament of Georgia automatically linked electoral districts to the municipalities without considering the number of voters registered there. Mentioned approach caused substantial departure from equal suffrage and essentially decreased influence of some voters on the electoral process. The electoral geography defined by the disputed provision results in the situation when election districts on which parliamentary mandates are allocated, substantially differ from each other in terms on number of voters registered there. The existing departure is so high, that it causes disproportional representation and inadequately reflects representation of Georgian citizens in the highest representative body.

27. It is worth mentioning that as a general rule, municipality constitutes a stable territorial unit; change of its boundaries, its separation and merger is conducted based on the procedure established by the law. Specifically, according to the organic law of Georgia “Local Self-governance Code” (article 10) the Parliament of Georgia decides on establishing, withdrawing of municipalities and changing its boundaries based on the referral of the Government of Georgia and with involvement of the representative body (Sakrebulo) and population of the relevant municipality. Therefore, linking the election districts to the municipalities may aim towards avoidance of danger related to the manipulation with boundaries of election districts.

28. Generally, in the process of administering the election, the risk that certain political power might create the electoral geography desirable for him and allocate boundaries of electoral districts in a way to privilege some political subjects exists. Obviously, legislator is obliged to create sufficient legal guarantees and eliminate possibility for the mentioned manipulation. Avoidance of the mentioned risks should be conducted by employing means proportionate to the legitimate aims intended to be achieved. Moreover, difference between electoral districts should not be greater than it is absolutely necessary for ensuring effectiveness in administering the election. Legislator is obliged on the one hand to ensure prevention from manipulation with boundaries of electoral districts and on the other hand to provide that voters will have equal opportunities to influence on final results of the election.

29. As it was already indicated the main purpose for exercising electoral right protected under paragraph 1 of article 28 of the Constitution of Georgia is transformation of voters will into the final results of the elections. Therefore, the ability of the voter to influence final results of the elections is important component of the right. Decreasing the power and influence of the vote by the disputed provisions obviously deprives the voters the opportunity to effectively enjoy their active electoral right. Contrary to this, the ability to influence election result is increased for the voters whose vote power is increased. The mentioned electoral system arms citizens with unequal opportunities and does not ensure holding elections compatible with the Constitution. The mentioned electoral system does not ensure adequate transformation of voters will into the final results of the elections, thus unarguably contradicts to the principle of democratic governance.

30. The Constitutional Court indicates that since as a result of the disputed provision the weight of votes of some citizens is multiple times higher than the weight of votes of other citizens, it causes disproportion of high intensity. Because of the number of voters registered in certain municipalities the influential power of substantial part of voters is so diminished that it results in unreasoned, unjustified restriction of electoral right. As it was already noted, in some occasions departure from principle of equal suffrage is allowed but it is necessary that the departure is minimal and reasoned by objective factors.

31. By this judgment the Constitutional Court finds that the departure from equal suffrage is not justified by the legitimate aim – territorial representation of municipalities indicated by the Respondent; since firstly it was established that municipalities do not constitute subjects, which, based on their constitutional legal status, should necessarily have the representative in the Parliament of Georgia. Furthermore, it was not established, that every self governing unit - municipality has legal interest on territorial representation which can justify the differentiation prescribed by the disputed provisions.

32. Based on all above mentioned paragraphs 1 and 2 (version of December 27, 2011) of Article 110 of the organic law of Georgia "the Election Code of Georgia" is unconstitutional with respect to paragraph 1 of article 28 of the Constitution of Georgia.

33. The Claimant also requests declaration of paragraphs 1 and 2 (versions of December 27, 2011) of Article 110 of the organic law of Georgia "the Election Code of Georgia" unconstitutional with respect to article 14 of the Constitution of Georgia.

34. 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 opinions, national, ethnic and social affiliation, origin, property or social status, place of residence". This constitutional provision establishes basic right of equality before the law and creates basis for fundamental constitutional principle of equality before the law "which in general implies the guarantee of equal terms for legal protection of individuals. The quality of ensuring equality before law is an objective criterion for assessing the degree of the supremacy of law that is restricted by the preference of democracy and human rights in the country. Therefore, this principle represents both the ground and aim of democratic and rule of law based state" (The Judgment №1/1/493 of the Constitutional Court of Georgia on the case of "Political Unions of Citizens "the New Rights" and "Conservative Party of Georgia" v. the Parliament of Georgia" dated December 27, 2010, II-1; The Judgment №1/3/354 of the Constitutional Court of Georgia on the case of "Citizen of Georgia Tristan Mamagulashvili v. the Parliament of Georgia" dated June 11, 2013, II-2). According to the definition of the Constitutional Court of Georgia the basic right to equality before the law has particular importance in relation to electoral process. „ Equality, in general, is a constituent part of the essence of the right of election. During the election process, the state has an obligation to introduce the conditions that assure equality. In this process, its major function is not to restrict anyone or privilege anyone without reasonable corroboration" (The Judgment №1/1/493 of the Constitutional Court of Georgia on the case of "Political Unions of Citizens "the New Rights" and "Conservative Party of Georgia" v. the Parliament of Georgia" dated December 27, 2010, II-8).

35. The basic essence and purpose of article 14 of the constitution of Georgia is " that the state equally treat persons being on analogous, similar, materially equal terms, “shall not permit to consider substantially equal as unequal and vice versa” (The Judgment №2/1-392 of the Constitutional Court of Georgia on the case of "Citizen of Georgia Shota Beridze and others v. the Parliament of Georgia" dated March 31, 2008, II-2; The Judgment №1/1/493 of the Constitutional Court of Georgia on the case of "Political Unions of Citizens "the New Rights" and "Conservative Party of Georgia" v. the Parliament of Georgia" dated December 27, 2010, II,2; The Judgment №1/1/477 of the Constitutional Court of Georgia on the case of "The Public Defender of Georgia v. the Parliament of Georgia" dated December 22, 2011, II-68).

36. According to the established case law of the Constitutional Court of Georgia while assessing the constitutionality of the disputed provision with respect to article 14 of the Constitution, first of all it should be identified whether compared individuals (groups of individuals) are substantially equal. For reaching such conclusion it is necessary the mentioned individuals to be in a content-wise similar category based on any ground. Compared individuals should be substantially equal with respect to specific circumstances and legal relationship.

37. According to the argumentation of the Claimant party the disputed provisions set imbalanced election districts and cause differentiation between voters. Specifically, the voters registered in bigger (in terms of number of voters) electoral districts are discriminated against the voters registered in smaller (in terms of number of voters) electoral districts.

38. In the present case compared groups – voters registered in different electoral districts are substantially equal. The citizens holding active electoral right are substantially equal with respect to electoral process, because they have equal interest to have access to universal elections and through this way participate in decision-making process of government.

39. After establishing that the compared individuals are substantially equal the constitutional Court shall determine whether the disputed provision treat them differently. In this case it is clear that the disputed provision cause differentiation between the substantially equal individuals – voters registered in different electoral districts. The Constitutional Court has already established by this judgment that the vote weight and the ability to influence election results of voters registered in different electoral districts are different, which is caused by inequality between the numbers of voters registered in different districts. The voters registered in small electoral districts have 10 times (or more) better opportunity to influence final results of elections and elect majoritarian Member of the Parliament.

40. Taking into consideration the Judgment N1/1/477 of the Constitutional Court of Georgia dated December 22, 2011 on the case of "The Public Defender of Georgia v. the Parliament of Georgia" it must be noted that violating a certain constitutional right does not always entail violating right to equality at the same time. However when the provision results in violation of election right of citizens registered in a specific electoral district due to unreasonably increasing the weight of other voters' vote and thus differentiates certain categories of voters from others, it is impossible for such a provision to be in compatibility with the constitutional right of equality before the law (mutatis mutandis, the Judgment N1/1/477 of the Constitutional Court of Georgia on the case of "The Public Defender of Georgia v. the Parliament of Georgia" dated December 22, 2011, II,79)

41. Based on all above mentioned the Constitutional Court declares that the following wording of paragraph 1 of Article 110: “among them 10 majoritarian electoral districts in Tbilisi” and paragraph 2 (version of December 27, 2011) of the same article of the organic law of Georgia "the Election Code of Georgia" contradict to the right to equality before the law and are unconstitutional with respect to 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 1 of article 23, paragraphs 1, 2 and 3 of article 25, paragraph 5 of article 27, subparagraph “a” of paragraph 1 of article 39, paragraphs 2, 4, 7 and 8 of article 43 and article 45 of the organic law of Georgia “On The Constitutional Court of Georgia”, paragraphs 1 and 2 of article 7, articles 30, 31, 32 and 33 of the Law of Georgia “On Constitutional Legal Proceedings”

THE CONSTITUTIONAL COURT
RULES:

1. The Constitutional Claim N547 (Citizens of Georgia - Ucha Nanuashvili and Mikheil Sharashidze V. the Parliament of Georgia) shall be upheld.

2. Following wording of paragraph 1 of Article 110: “among them 10 majoritarian electoral districts in Tbilisi” and paragraph 2 (version of December 27, 2011) of the same article of the organic law of Georgia "the Election Code of Georgia" shall be declared unconstitutional with respect to article 14 and paragraph 1 of article 28 of the Constitution of Georgia.

3. Following wording of paragraph 1 of Article 110: “among them 10 majoritarian electoral districts in Tbilisi” of Organic Law of Georgia "the Election Code of Georgia" shall be declared invalid from the moment of publishing this Judgment.

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

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

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

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

Composition of the board:

Konstantine Vardzelashvili

Ketevan Eremadze

Maia Kopaleishvili