Constitutional Court of Georgia Held Main Hearings of Two Constitutional Claims of Religious Organizations
On July 11-12, 2017 Constitutional Court of Georgia held main hearings of two constitutional claims of religious organizations. In both cases, the interests of claimants were represented jointly, by Tolerance and Diversity Institute (TDI) and Tbilisi Free University Constitutional Law Clinic.
Claim of Religious Organizations on Unequal Tax Regime
On July 12th, 2017 Constitutional Court of Georgia held main hearing of the constitutional claim of eight religious organizations. The claimants requested to find those norms of the Tax Code of Georgia unconstitutional, on the basis of which the tax privileges are granted to only one religious organization (Georgian Orthodox Church). In particular, the norms that were claimed as unconstitutional, exempt from taxes only the Patriarchate of Georgian Orthodox Church in case of realization of religious items, supply of liturgical items, restoration, construction and painting of churches and temples.
Consequently, the above mentioned norms put all other religious organizations in unequal position, create unlawful obstacles and violate those religious groups’ constitutional rights.
In March 2017, the Constitutional Court only partially admitted the claim for the consideration on the merits, concerning the constitutionality of construction of churches and temples, restoration and painting by the order of Georgian Patriarchate in relation with the Article 14 of the Constitution of Georgia.
For now, on the basis of the above mentioned norm, painting churches and temples is free of value-added tax only if the service recipient is the Patriarchate of Georgia.
During the hearing, claimants pointed out, that stated regulation of the Tax Code engenders unequal treatment towards equal subjects with no reasonable and objective justification. Therefore it contradicts the Article 14 of the Constitution of Georgia that provides the protection for the principle of equality.
If the claim is satisfied, construction of religious buildings, restoration and painting will be free of VAT for other religious organizations as well.
It is noteworthy, that Constitutional Court made interesting interpretations of the claimed norms on the admissibility stage. In particular, about the parts of the claim, that court did not take into consideration on the merits, the court stated that noted norms of the Tax Code (Value-added and profit tax) should be interpreted in the way, that will give the same rights to other religious organizations as the Patriarchate of Georgia, since the general norms that regulate religious activities allow possibility for such interpretation.
Given interpretation of the Constitutional Court may have positive effect on the legal status of religious groups and eliminate the negative effect that is caused by the possibility of discriminatory interpretation of vague norms of the law. Claimants hope that if the claim is satisfied, public bodies and Common Courts will take the important interpretation of the Constitutional Court into consideration in the decision making process and all of the religious organizations will be allowed to use the mentioned tax privileges.
Positions of the Parties at the Court Hearing:
The main positions and statements made on the court hearing on July 12th:
The representative of the Georgian Parliament, - defendant party stated that interference with the right protected by the Article 14 has legitimate public purpose. According to the position of the Parliament: “There is a legitimate reason for interference and it’s a restoration, conservation and painting the temples of historic and architectural value… By the Constitutional Agreement the significant role of the Georgian Orthodox Church in the history of the country is recognized”.
Claimants believe, that according to the Constitution, every religious group is equal and discrimination of the persons on the religious grounds is inadmissible. The Constitutional Agreement between the state and Georgian Orthodox Church does not imply such privileges and the 2nd part of the Article 9 of the Constitution has declaratory character and only emphasizes the historical role of the dominant religious group. In addition, the claimants noted, that according to the Constitution of Georgia and the international agreements of Georgia every religious group represents equal entity and basis for the interference in the right should not be the dominant status of the religious group, but the state should create equal conditions for every religious community and eliminate all forms of discrimination.
It is also noteworthy that according to the disputed norm of the Tax Code, the entity that is carrying out the activities with the Patriarchate as a customer is also using the tax privilege for the constructing a new church/temple. The witness called by the defendant party, representative of the Revenue Services, noted that “Determining of the prices for building the churches and temples depends of the business model of the constructor”, but admitted that in the pricing process, taxation is one of the most important factors. Therefore, if the constructor’s order is tax free, the suggested amount could be reduced.
The Claim of Religious Organizations on Norms of the Law of Georgia on State Property
On July 11th Constitutional Court of Georgia held hearing of the claim of the five religious organizations against the Parliament of Georgia.
In particular, the claim was doubting the constitutionality of the norm of the State Property Law, based on which, religious organizations registered as Legal Entities of Public Law (LEPL) (except Georgian Orthodox Church) are deprived of the possibility to purchase the state property. Also, the regulation allows the transfer of state property free of charge only to the Georgian Orthodox Church.
Above noted norms create unlawful obstacles for all other religious organizations, puts them in unequal conditions and violates their constitutional rights except for the Georgian Orthodox Church.
In February 2017 the Constitutional Court of Georgia admitted only the part of the claim for the consideration on the merits about the constitutionality of transferring the state property to the Patriarchate of Georgia free of charge in relation with Article 14 of the Constitution.
Consequently, disputed content of the Law of Georgia on State Property was the provision that creates the possibility of transferring state property free of charge to the Orthodox Church and excludes enjoying the same privilege for other religious groups.
The Positions of the Parties at the Main Hearing:
The claimants requested to abolish the words of the disputed norm: “Apostolic Autocephalous Orthodox” and the indication, generally, of churches as the recipients of the state property for free of charge in the relevant paragraph of the law. Furthermore, it is also necessary to note that the term “church” according to the position of the claimants, considers all confessions, because the monopoly on the term can not be held by any religious group and based on the equality principle guaranteed by the Constitution, normative content of the law should be extended to all religious groups.
According to the position of representatives of the Parliament of Georgia, the defendant party, even if the claim is satisfied, the interests of the claimants can’t be foreseen, because the term “Church”, based on the confirmed information by the State Agency for Religious Issues is only used by the Orthodox community. As the representative of the parliament stated at the court session, according to the State Agency of Religious Issues, other Christian unions do not use the term and don’t identify themselves as a “church”. Obviously the noted position is misleading and absurd, as the large number of religious organizations use the term “church” and in many cases, they are registered with this title in the registry of legal entities.
It is also interesting, that defendant party pointed to “improving existing relations between the Georgian Orthodox Church and the state” as the legitimate reason for the interference in the right.
According to the claimant’s position, the Georgian Orthodox Church carries significant role in the history of Georgia and it is recognized in the constitution, however some type of superior, special status that would exclusively guarantee the privileges and advantages for the Georgian Orthodox Church does not exist and it has equal status as other religious organizations.
By the argumentation of the defendants, the preferential treatment is justified, because the reason for differentiation is the improvement of the relations between the State and Georgian Orthodox Church.
Hearing of both claims, on the norms of the Tax Code and State Property Law of Georgia were held by the First Panel of the Constitutional Court, the decisions of the Court have not been announced yet.