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Lawyers against Legislation Amendments

April 22, 2008
Tamar Gurchiani
Gela Mtivlishvili, Kakheti


On January 17 2008 amendments were introduced to the Georgian Procedural Code. The new edition of the Article II, Paragraph V states the following: “Court shall not accept the suit from the administrative body unless the petitioner has had the opportunity to bring the administrative suit to the court only once, which has been envisaged under the General Administrative Code.” Lawyers aver that such amendments restrict their freedom to bring appeal cases to the court, and claim that the Georgian Constitution, as well as standards of international law is being circumvented, under the various amendments.

The initiators of the amendments were Council of Justice and a special commission working on administrative issues within the Parliamentary Legal Committee. Levan Bezhashvili, former chairperson of the Legal Committee, defined that the aim of the amendments were to relieve the situation at the courts. “The Council of Justice and a special commission prepared the text of the project on the legislative amendments. This was done by staff judges and professors from the university. I agree that everybody has right to appeal to the court and it is guaranteed under the constitution. However, according to the recent amendments, the law making body can introduce new procedures to restrict the process,” stated Bezhashvili.

Georgian Supreme Court reported that similar procedures also exist in foreign judiciary system. “The implemented legislative changes benefits to citizens most of all because if they are not obliged to bring suit to the administrative body before first having appealed to the court. This way they need not pay extra fees for the court related to the reaching of a verdict. It is also a method that requires for petitioners to take less time with legal proceedings. Citizens are authorities to appeal to the court under the Georgian Constitution and nobody can be deprived of that right,” said Nana Vasadze, a spokesperson for the Georgian Supreme Court.

Tamar Gurchiani, the Project Coordinator to Support the Transparency and Accountability, lawyer for the Georgian Young Lawyers Association (GYLA), claims just the opposite. “One point is introduction of the amendments to the code but the second point is the result of the changes. The amendments might really be positive for the judiciary system, the number of cases under discussion will reduce but in parallel to it the administrative bodies will be overwhelmed with work. Similar situation might have negative impact on the human rights.”

-if courts will be discharged from the number of cases and the administrative bodies will be authorized to decide administrative arguments, what will be bad in this situation?

-Before the amendments we had several alternatives for appealing against the unacceptable verdict. For example, we could appeal against the administrative act at the higher administrative body, at an official with higher position or at the court. Today, we lack similar possibilities. According to the amendments we will not be able to appeal directly to the court with the request to annul the initial verdict or some other complaints. Before appealing to the court we should go through the bureaucratic establishments at the administrative body that contradicts with the Georgian Constitution Article 42, ‘e’ which states that every person has right to appeal to the court to protect his/her rights and freedoms. Right on fair court means freedom to make a choice between appealing to the administrative body or the court. Based on the amendments the citizens, tax-payers have been damaged mostly because according to the old edition of the law if a person appealed to the higher instance s/he was discharged from the fare at the court. Today, similar phrase is removed from the law.

-that means, if previously unpaid fare did not hinder case discussion at the court, today it will be hindered?

-yes, it will. Before the changes, a person could appeal to the court and unpaid fare did not hinder case discussion at the court. Currently, there is no similar statement in the law. The new edition of the law does not recognize similar guarantee. That means that even unpaid state tax might be an obstacle to be discussed in a legal case. Consequently, who cannot afford paying taxes will be unable to appeal to the court.

-Tamar, what can you say about the experience of the administrative bodies in the discussion of administrative suits, do they have similar practice?

-Administrative bodies do not have similar experience at all. Based on the results of the survey the GYLA carried out in 2007 the personnel of the administrative bodies have no idea what to do in similar cases. Within the framework of the survey we sent letters to 60 administrative bodies and only ten out of them provided us with the information about discussed cases. They had discussed only 21 administrative suits on the freedom of getting information. 18 out of discussed suits belonged to the GYLA. 50 administrative bodies replied to our request that they had not discussed administrative appeals. The survey revealed that administrative suits were mostly discussed by the ministries. Thus, we can assess that local institutions have worse situation. According to the statistics, district boards, municipality councils, local tax institutions, etc lack not only practice of discussing the administrative suits but they are simply disable to do it. This data and current situation shows that Georgian citizens are not protected at all.”

Irakli Shavishvili, an expert in economics, also criticizes the legislative amendments. “According to the amendments that have been introduced to the Administrative Procedural Code, a taxpayer has the only right to pay taxes but that person is deprived from all other rights,” said Shavishvili.

According to the statistics provided by the Supreme Court, courts of all instances have received 3, 862 administrative suits for the last three months of 2007. In the first quarter of 2008 (January, February, March) the number of cases reached 2,042.

The GYLA is working on the suit against the legislative amendments. Tamar Gurchiani concluded how they would appeal to the court in the nearest future.

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