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TDI
May/1930

Two Constitutional Claims of Religious Organizations in the Venice Commission’s Bulletin

The decisions of 2018 of the Constitutional Court of Georgia on two constitutional claims of religious organizations are included in the electronic bulletin on Constitutional Case-Law, produced by the European Commission for Democracy through Law, also known as the “Venice Commission.”

The e-Bulletin regularly reports on the case-law of constitutional courts and courts with equivalent jurisdiction in Europe and beyond, including case-law of the European Court of Human Rights, the Court of Justice of the European Union and the Inter-American Court of Human Rights. The Bulletin’s aim is to allow judges and constitutional law specialists to be informed quickly about the most important judgments rendered in the field of constitutional justice. According to the Venice Commission, the exchange of information and ideas among courts in different countries with similar or different legal traditions, in the field of judge-made law, is of vital importance.

The Constitutional Court of Georgia announced decisions on N671[1] and N 811[2] constitutional claims on 3 July 2018. The Court held that the provisions of the Law on State Property and Tax Code of Georgia contradict to the constitutional right to equality and accordingly, declared them unconstitutional.

A group of religious organizations challenged provisions of the Tax Code (Article 168.2.b) and the Law on State Property (Article 63.1), under which, the construction, restoration, and painting of churches and cathedrals commissioned by the Patriarchate are exempted without credit from Value Added Tax. The provisions also allow for the transfer, free of charge, of state-owned property to the Georgian Orthodox Church.

The bulletin pays attention to the reasoning of constitutional court which says that although the Constitution acknowledges the outstanding role of the Georgian Apostolic Autocephalous Orthodox Church, the inference cannot be drawn that this provision bestows the outright bestowal of any privileges to that particular church. That would vitiate the essence of the constitutional right to equality. The Constitutional Court further noted that the recognition of the outstanding role of the Georgian Orthodox Church is associated with its historical importance; it does not serve to establish legal privileges for Orthodox Christianity in the present.

According to the Court, the differentiated treatment introduced by the contested legal rules is not rationally related to the proclaimed legitimate objectives. It accordingly amounts to unjustified discrimination and is in contradiction with the constitutional right to equality. The discrimination outlined above could be remedied, either by abolishing the privileges under the disputed provisions altogether or by extending them to other comparably equal religious organizations. The Constitutional Court noted that Parliament should decide on this issue in accordance with the Constitution by 31 December 2018. After that, the disputed legal provisions would be declared invalid.

It is noteworthy that Parliament of Georgia had 6 months to amend relevant regulations in accordance with the decisions of the Constitutional Court, however, it did not take any measures for doing so and did not reveal the will to ensure the right to equality for religious organizations. The unconstitutionally recognized legal norms were declared void on 31 December 2018.

In both cases, the religious organizations were represented at the Constitutional Court by Tolerance and Diversity Institute (TDI) and Constitutional Law Clinic of Tbilisi Free University.

Tolerance and Diversity Institute (TDI) carries out strategic litigation within the framework of East-West Management Institute’s (EWMI) "Promoting Rule of Law in Georgia" (PROLoG) project, funded by the United States Agency for International Development (USAID).

 

[1] Judgement of the Constitutional Court of Georgia, claim N 1/2/671, 3 July 2018.

[2] Judgement of the Constitutional Court of Georgia, claim N 1/1/811, 3 July 2018.