Author: Giorgi Davituri
A number of high-ranking political officials have lately made statements about constitutional complaints having been illegally replaced, with some demanding a launch of investigation.
The Georgian Parliament has requested the Constitutional Court to recuse several judges from two constitutional cases (the so-called Cables-Ugulava and the Rustavi 2 cases), also citing possible replacement of complaints as the basis for the motion. Lawyers of the Rustavi 2 case have also appealed to the Constitutional Court with a request to recuse judges from their case, citing public statements made by these judges as the basis for the request.
Considering the importance of the issue, IDFI decided to conduct a legal analysis of the situation based on information requested from the Constitutional Court and published in media.
1. Registration of the Constitutional Complaint №764 (the so-called Cables Case)
According to public information received from the Constitutional Court, representatives of individuals arrested in the Cables Case appealed to the Constitutional Court on June 3, 2016 with a request to clarify their constitutional complaint during its registration process. As a result of this, the registration process was halted. However, on the same day, the unregistered constitutional complaint was nevertheless sent to the members of the First Chamber of the Constitutional Court simply as an informative document and not in the form of a registered constitutional complaint. In other words, a total of two documents were sent to the First Camber of the Constitutional Court: the unregistered complaint (as an informative document) and later the registered one.
By Georgian law, a document shall be recognized as a constitutional complaint only after its registration as such. Therefore, a constitutional complaint is legally non-existent prior to its registration. This means that a constitutional complaint can be replaced only after registration, which, in this case, has not taken place, since the registration record for Constitutional Complaint №764 is identical to the electronic version as well as the recording notice approved by the Constitutional Court. In other words, the contents of the constitutional complaint have not been replaced after its registration.
We cannot have all the information about the events leading up to the registration of the constitutional complaint, however, we believe that statements related illegal replacement of constitutional complaints and the necessity of criminal liability must be substantiated. Public statements on this topic include a speculation that some Constitutional Court judges had personal interests in the Cables Case and that the Court ‘assisted’ the plaintiffs in formulating their complaint.
Cables Case was approved to be taken for consideration on merits on the part of the claim that disputes the constitutionality of Article 182 of the Criminal Code in relation to Article 18, and Article 42, Paragraph 5 of the Constitution. The same subject of dispute was already being considered by the First Panel of the Constitutional Court through another constitutional complaint (№740).
Therefore, the Constitutional Court could consider the same subject of dispute and indirectly solve the problem without launching proceedings on the Cables Cases (through Constitutional Case №740), meaning that there was no need to replace the constitutional complaint for this purpose.
2. Registration of the Constitutional Case №681 (the so-called Rustavi 2 Case)
Constitutional Complaint №681 was registered in the Constitutional Court on November 6, 2015. On November 9 the representative of the plaintiff addressed the Constitutional Court with a motion to consider “clarified (updated) constitutional complaint”. (Clarified complaint was attached to the motion). According to the updated constitutional complaint, the plaintiff requested the court consider the constitutionality of the disputed provision regarding an additional Article of the Constitution (Article 24).
According to Georgian law, registration of a constitutional complaint is an administrative process. After registration, any new documents, including motions related to the case received by the Constitutional Court shall be considered by the judges considering the case.
According to the recording notice of the Constitutional Court of November 13, 2015, Constitutional Complaint №681 was transferred to the First Panel of the Constitutional Court for approval for consideration on merits as soon as the complaint was registered on November 6, before the “clarified constitutional complaint” was submitted.
Decisions on documents related to cases that are already under court proceedings are made by the judges considering the case and not by the Secretary of the Constitutional Court or an authorized employee of its Organizational Department (Apparatus).
2.1. Legal Nature of the “Clarified Constitutional Case”
Legislation on the Constitutional Court is unfamiliar with the term “clarification of a complaint”. However, in practice, this term is used when a plaintiff applies to clarify an ambiguous claim within their constitutional complaint.
In the Rustavi 2 Case, the plaintiff had added Article 24 of the Constitution to their claim, which, in its essence, constitutes a new request, which, in our opinion, cannot be considered to be a clarification. Instead, this change should be considered as an additional claim and not its clarification.
The First Chamber of the Constitutional Court examined the extended constitutional complaint with both versions of the complaint available to it. While the fact that the judges were unanimous in their decision to approve the “clarified complaint” for consideration may be subjected to substantive criticism, it cannot be considered a violation of the registration process and/or replace of the complaint.
In terms of substantive criticism, worth mentioning is the decision of the Constitutional Court regarding Constitutional Reference of the Supreme Court of Georgia N608/609, by which the Court “extended the claim” on its own initiative by adding Article 42, Paragraph 5 of the Constitution. There is no difference between a complaint submitted by a natural person and a constitutional reference in terms of extending a claim.
Constitutional litigation and the practice of the Constitutional Court is a dynamic and living process. The Court constantly sets certain standards through its acts. While the substantive side of Court decisions may be debated, it is important not to use such a debate as an instrument for politicizing constitutional justice.
According to Georgian law, the Constitutional Court is not obligated to include substantiation in its protocols. However, for the sake of clarity and to dispel doubts, the Constitutional Court could have included its reasoning for accepting the clarified constitutional complaint in its recording notice on the Rustavi 2 Case. This would remove all ambiguity and make known the Constitutional Court’s common approach towards this issue.
3. The so-called Replaced Complaints, Public Statements and Motions to Recuse Judges
Parties to the court proceedings have requested the Constitutional Court to recuse the judges considering the case. It should be noted that in their motions both the Parliament and the representatives of Rustavi 2 point to public statements made by these judges.
Parallel to the so-called high-profile cases being considered by the Constitutional Court, public interest towards the Court itself has increased significantly, which, unfortunately, has led to the politicization of its activities. Public statement made by the media, politicians and others have created a public perception that there has been a division among judges of the Constitutional Court based on their political interests.
Such attitude towards the Constitutional Court poses a threat to constitutional control and public trust towards the institution. The fact that the motions of recusal point to statements made by individual judges as basis for their request makes these statements part of constitutional justice and further aggravates the situation.
Parties do have the right to motion for recusal. They can invoke any argument, fact or circumstance, which, in their opinion, supports the motion. However, we believe that the parties, especially the Georgian Parliament, which is also the country’s highest representative body, must understand that the legal instruments at their disposal should not be used to politicize constitutional justice.
We believe that the constitutional complaints registration process was open. All of the documents were available to all of the judges, who were well informed when making the decision to approve the complaints for consideration on merits.
The Constitutional Court had to postpone hearings on several occasions due to lack of a quorum. The reasons for the absence of judges are unknown to us. However, there have been reports that create an impression that Plenum of the Constitutional Court is unable to carry out constitutional review.
The permanency of constitutional justice is a vital guarantee of basic human rights and freedoms. We share the opinions expressed in the statement made by the Coalition for Independent and Transparent Judiciary. We believe that the continuity of constitutional review must not be hindered by the political nature of cases being considered by the Constitutional Court and the public statement made about it. Judges must fulfill their constitutional obligation and take part in court proceedings.
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