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Constitutional Court of Georgia partially satisfied the Constitutional Claims №1673 and №1681 (‘Londa Toloraia and Public Defender of Georgia vs. Parliament of Georgia’)
On November 17, 2022 the first board of Constitutional Court of Georgia partially satisfied constitutional claims №1673 and №1681 (‘Londa Toloraia and Public Defender of Georgia vs. Parliament of Georgia).
The disputed norms with the constitutional claims determined annulment of the rules and its subsequent consequences of the position of State Inspector's Service and a state inspector. Namely, according to the disputed norms, from the 1 March, 2022 the State Inspector's Service and the position of a state inspector were annulled. For that reason, until the expiration of the full term of office, a state inspector with the deputies were dismissed from their positions.
According to the complainants, on the basis of the disputed norms, no new bodies were established that in terms of competences would be different from that of State Inspector's Service. Besides, the qualification requirements were not changed and a state inspector fully met all those requirements, which were imposed to the new heads of services. Nevertheless, the official authority of a state inspector and deputies was terminated unconditionally.
According to the position of the Parliament of Georgia, the legitimate goal of the amendments implemented by the legislative body in relation to the State Inspector's Service were to improve effective institutional arrangements, control of legal procession of personal data in terms of expanding the investigative sub-location within the scope of the investigation, e and, also, to avoid conflict of interest. Based on the respondent’s argumentation, since the State Inspector’s Service and the position of the State Inspector did not constitute an institution explicitly mentioned in the Constitution of Georgia and since the latter was an office created on the basis of the law, the Parliament of Georgia had a broad discretion to create an independent body or bodies implementing similar substance and functions.
The Constitutional Court noted that that any interference with the right protected by Article 25 of the Constitution that is related to the constitutional institutions and positions, should be assessed strictly. By the reference of the Constitutional Court, the court in each particular case should evaluate whether the legislative body acted in accordance with the constitutional requirements during the implementation of the reform and whether measures were taken to protect the rights of those officials or to reduce damage, whose guaranteed term of office would be endangered due to the implementation of the institutional reform.
Per Constitutional Court’s assessment, the case concerned the dismissal of an official with a guaranteed term of office due to the annulment of the institution itself, which implied a conflict of different values. Although the latter did not reduce the importance of maintaining the determined term of office as a guarantee of independence within the context of individual or institutional independence, at the same time, it did not make it an unsuitable means for achieving the goal of the reform.
As noted by the Constitutional Court, in this particular case, the dismissed State Inspector was not appointed or offered one of the positions of the head of two new bodies, or automatic re-appointment on the foregoing positions, or fair compensation due to the premature termination of the authority, which would have been an important mechanism in terms of reducing the intensity of interference with the right and minimisation of the damage, as long as the termination of authority was not related to any violations or non-compliance with service duties. Thus, offering the appointment of the former State Inspector to the position of the head of the Personal Data Protection Service (any equivalent positions to the deputies), or in case of such impossibility - provision of appropriate social guarantees, could have been a less restrictive means.
Regarding the issue of premature termination of the authority of the deputy state inspectors, the Constitutional Court indicated that despite their official status was not equal to the position of the state inspector, however, since the case concerned civil servants who were dismissed from their positions not because of violations committed or incompatibility with the position, but because of the implementation of institutional reform and, without being awarded any compensation - large or small - the Court concluded, based on the institutional reforms, termination of deputy state inspectors’ authority without offering an equivalent position or fair compensation, also could not meet the requirements of the second sentence of the first paragraph of Article 25 of the Constitution of Georgia.
Thus, the Constitutional Court ruled that the unconditional premature dismissal of the state inspector elected with a guaranteed term of office and his/her deputies, without offering an adequate, equivalent position or fair compensation, could not meet the constitutional standards of protection of the right to unhindered performance of public service activities.
The dissenting opinion of Giorgi Kverenchkhiladze, judge of the Constitutional Court of Georgia, is attached to the decision.
Subject of Dispute: a) On the constitutional claim No. 1673: Paragraph 2 of Article 55 2 of the Law of Georgia "On Personal Data Protection" and the Law of Georgia "On the Service of the State Inspector" (Law of Georgia No. 1312 of December 30, 2021 - website, 13.01.2022) 27 1 The constitutionality of the first paragraph of the article and the second sentence of the article 28 1 in relevance with the second sentence of the first paragraph of the article 25 of the Constitution of Georgia; b) on the constitutional claim No. 1681: a) "About the Special Investigation Service" of the normative content of Article 2, Sentence 2, Article 19 of the Law of Georgia, which includes criminal cases under the State Inspector, 27 1 Article 1, 2, 3, 4, 6 and - constitutionality of clauses 7, paragraph 5 of article 1 and clause 29 of article 28 in relation to sentence 2 of clause 1 of article 25 of the Constitution of Georgia; b) the first paragraph of Article 26, Articles 40 11, 40 12, 40 13, 40 14, 40 15, 40 16 of the Law of Georgia "On Personal Data Protection", Article 41, Paragraph 3, Article 42 and 55 Constitutionality of paragraph 5 of Article 2 in relation to paragraph 2 of paragraph 1 of Article 25 of the Constitution of Georgia.
