This Affects You Too campaign responds to the Constitutional Court’s provisional decision
The campaign This Affects You Too would like to respond to the provisional decision (protocol statement) made by the Constitutional Court of Georgia on 29 December 2017 on the case “The Public Defender of Georgia, citizens of Georgia Avtandil Baramidze, Givi Mitaishvili, Nugzar Solomonidze and others (the total of 326 constitutional lawsuits) versus the Parliament of Georgia”.
We would like to remind the public that 326 citizens of Georgia filed on 6 April 2017 a lawsuit to the Constitutional Court, asking to rule unconstitutional the legislation regulating secret surveillance since, in the opinion of the petitioners, it contradicts the decision that the Court itself made on 14 April 2016. Later on, the Ombudsman’s Office of Georgia also filed a lawsuit with the Court. Furthermore, for the first time in the history of independent Georgia, the Georgian Presidential Administration presented an amicus curiae position which, in turn, coincided with the petitioners’ position.
Unfortunately, with the decision made on 29 December 2017, the Court did not uphold the petitioners’ claim, stating that the regulations they have challenged create a qualitatively different reality and thus do not contradict the decision that the court made one year earlier.
It is noteworthy that the court accepted the aforementioned lawsuits for definitive hearing not because it is planning to overrule (change) its practice but because it did not see any contradiction between the challenged legislation and its 14 April 2016 decision.
We believe that, for a modern rule-of-law state, it is particularly important that the law and the court practice are consistent, unambiguous and comprehensible. The decisions made by the Court, the precedent law it establishes have to be clear and understandable for the public and their essence cannot change when a change occurs in the composition of the Court.
Naturally, the campaign This Affects You Too does not agree with the assessment made by the six members of the court that the norms regulating secret surveillance are qualitatively different from the legal framework which had already been recognized as unconstitutional by the Court itself.
We find it particularly difficult to understand the Court’s discourse with regard to obtaining internet communication in real time. We believe that the legislation remains unchanged at least in this part and the circumstance that the scope of authority of Personal Data Protection Inspector (with regard to conducting inspection) that existed before was formally written out in the law, does not change the status quo since, according to the Constitutional Court’s own standard, “We would be dealing with similarity of essence not only when a norm would be repeating, word for word, the essence of a norm that was ruled unconstitutional but also when a rule contained by a challenged norm would have essentially similar legal outcome.”
Correspondingly, it is important that the Court fully understands its responsibility in the process of ongoing legal proceedings and, when assessing the constitutionality of the challenged regulations, analyses all of the threats, risks or negative influence that such legislation could cause for everyday life of ordinary citizens as well as for any public person, including for professional activities of judges themselves and the reputation of the Constitutional Court as an institution and the degree of trust towards it.
We hope that, in the format of definitive hearing, we will be able to convince the court that the current legislation is as ineffective, flawed and contradictory to the Constitution as were the regulations that existed as of 14 April 2016.
And finally, despite the fact that the issue of encroachment on the right to private life is not a matter assessed solely by the national courts and it is possible to use an international mechanism of protection of human rights, the role of the national courts and the decisions they make in this process, are extremely important.
To enhance the citizens’ trust in the judiciary, the Constitutional Court should be able to make decisions that are important for the protection of human rights and to defend the decisions it already made. This is important not only for the establishment of proper standards of human rights protection but also to protect the reputation of the Court itself so that the legislative body does not pass regulations overruling the Court’s decisions every time.
 The protocol statement made by the Court on 29 December 2017 is accompanied by divergent opinions of the following members of the Constitutional Court: Giorgi Kverenchkhiladze, Irine Imerlishvili and Maia Kopaleishvili.