Parliament Considers Ombudsman’s Initiative on Expansion of Constitutional Court Authority
On February 29, 2016, the Parliament’s Committee of Human Rights and Civil Integration considered a bill on expansion of the authority of the Constitutional Court, and accordingly, the areal of its constitutional control, following the Public Defender's appeal.
Today the Constitutional Court examines the constitutionality of only normative acts in relation to the rights and freedoms enshrined in the Chapter 2 of the Constitution of Georgia, while the bill offers examination of constitutionality of individual legal acts and enforced decisions of common courts as well. According to the bill, the authority of the Constitutional Court goes beyond exercising control of norms and carries out constitutional control on the basis of a real claim. The similar model is effective in an authoritative court, such as the German Federal Constitutional Court.
The prerequisite for admissibility of constitutional suits concerning individual acts and enforced decisions of common courts is expiration of legal protection remedies. However, the bill allows for exceptional cases too.
According to the bill, declaration of an individual legal act as unconstitutional will result in its invalidation as soon as the relevant decision takes effect or is published by the Constitutional Court. If the Constitutional Court declares a contested decision as unconstitutional during evaluation of the constitutionality of common court decisions, it will lead to invalidation of that decision and the case will be sent to the court for reconsideration.
The Constitutional Court will be granted the authority to determine the issue of compensation or reimbursement at the applicant's request. This will happen only in cases if there is no other legal remedy for implementing this.
It is noteworthy that according to the initiative, as an exception, within one year after the law takes effect, it will be allowed to appeal against the decisions of commons courts, which have taken effect since 24 August 1995, even if the term for appealing against them has already expired. The exception is a kind of response to the request for the restoration of justice in the public. Introduction of the mentioned mechanism will create the possibility to reveal and correct flaws in the field of protection of human rights and freedoms, due to which the fundamental requirements of the Constitution were violated.
Over the past few years the Georgian judiciary has been characterized by serious weaknesses. The shortcomings, which deprived citizens of the right to a fair trial guaranteed by the Constitution, have been mentioned in the Public Defender's parliamentary reports. Accordingly, the Public Defender considers that certain means and mechanisms should be provided for proper implementation of the right of victims of injustice to a fair trial.
According to the legislative proposal, amendments will be made to the Constitution of Georgia, the Organic Law of Georgia on the Constitutional Court, the Law on Constitutional Legal Proceedings, and the criminal, civil and administrative procedural law. Expansion of the powers of the Constitutional Court will significantly increase its workload, and therefore, will lead to the increase in its number of judges and collegia. Also, according to the bill, at least one assistant will be appointed to each judge in order to strengthen the office of the Constitutional Court.
The Public Defender expresses readiness to actively participate in further discussions around the initiative. We hope that the Parliament and the State Constitutional Commission will consider the initiative of the Public Defender regarding the expansion of powers of the Constitutional Court.