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On 12 July 2016, during his visit to the talk show, Choice,

the Chairman of the Parliament of Georgia, Davit Usupashvili, talked about the legislative changes regarding the Constitutional Court of Georgia. "The process was regulated at the very last moment by the involvement of the President of Georgia, the Prime Minister of Georgia and me (Chairman of the Parliament of Georgia) and we now have a law which is approved, recognised and confirmed by the Venice Commission," said Mr Usupashvili.

FactCheck

took interest in the accuracy of this statement.

In March 2016, with the initiative of the Human Rights Protection Committee, changes were prepared concerning the Organic Law of Georgia on the Constitutional Court and the Law of Georgia on Constitutional Litigation. This bill of changes was followed by considerable outcry from the very beginning. According to the assessment of the Parliamentary Opposition, the planned changes, given their content, were effectively "a punitive mechanism against the Constitutional Court" and "served to weaken the Court as well as block and paralyse its work." In addition, the Opposition believes that the Government of Georgia is trying to gain influence over the Constitutional Court which is connected with its dealings concerning the Rustavi 2 case.

Non-governmental organisations have also commented upon the legislative changes, addressing the Parliament with recommendations and calling upon them to exercise more transparency vis-à-vis this specific piece of legislation. "It is of vital importance for the changes not to create the impression that they have been initiated by the government because they are dissatisfied with the specific decisions of the Constitutional Court and not to represent any negativity on the part of the governing political party concerning the work of the Court," reads the statement made by various non-governmental organisations.

It should be pointed out that the bill changed constantly during the discussion stage with articles being added and MPs not having any prior knowledge but only learning about these particular articles during plenary sessions of the Parliament. This often caused confusion and made the discussion of these norms almost impossible.

Finally, the Parliament adopted the aforementioned bill by first hearing on 27 April 2016, by second hearing on 13 May 2016 and by third hearing on 14 May 2016 (on Saturday, during an extra session). Despite the promise made to the Venice Commission, the Commission received a copy of the bill only after it was adopted by third hearing upon which the Co-Speakers of the Parliamentary Assembly of the Council of Europe expressed their regret.

The Venice Commission also focused upon the rush adoption (two months) of legislature aimed at large-scale institutional changes.

On 31 May 2016, after receiving the Venice Commission’s Preliminary Report, the President of Georgia, Giorgi Margvelashvili, vetoed the bill sent to him by the Parliament of Georgia for signature and returned it to the Parliament with appropriate notes and corrections. “All the issues present in the Venice Commission’s Report have been included word-for-word in our veto,” stated Mr Margvelashvili.

It should be noted that due to time limitations, the Venice Commission’s Preliminary Report

touched only upon the bill’s most important clauses. The Commission positively assessed some of the changes (rules for the election of the chairperson, imposition of the automatic case distribution system, systematic publishing of differing or similar opinions and immediately making the Constitutional Court’s decisions active following their publication on the Court’s website). However, the Commission also focused upon three main problems and provided recommendations to the Parliament for their improvement. We forthwith present President Giorgi Margvelashvili’s notes concerning the Venice Commission’s three recommendations and his subsequent veto of the bill.

The President’s first note

concerns the quorum necessary for the plenum of judges to make a decision. According to the previous (active prior to the changes) version of Point 1 of Article 44 of the Organic Law of Georgia on the Constitutional Court, the Constitutional Court’s plenum was allowed to make decisions only if at least six of the nine judges were present at the hearing. The changes envisaged the quorum’s increase from six to seven judges. In addition, the changes also provided for the increase in the number of votes necessary for the decision from a simple majority to at least six votes.

The Venice Commission analysed these changes with regard to the transfer of power from the panel of judges to the plenum and concluded that the aforementioned changes would make it more difficult for the Constitutional Court to exercise its main function – identifying and removing unconstitutional norms from the legislature. Hence, the Commission recommended a decrease in the number of votes in the plenum necessary to make decisions.

The notes make it clear that Mr Margvelashvili used only a part of the recommendations given in the Venice Commission’s Preliminary Report. Specifically, according to his proposed version, the plenum will only be allowed to make decisions if at least six judges are present at the hearing whilst the votes of a majority of the members of the entire plenum is necessary to make a decision. However, as an exception to the rule, the President of Georgia deemed it necessary to request two-thirds of the votes when the plenum discusses Georgia’s organic laws with at least seven of the nine judges being present during the discussion. It should also be noted that the Venice Commission does not recognise any exceptions and its recommendation for the decrease in the two-thirds of the votes covers organic laws as well.

The President’s second note

covers the issue of the unilateral transfer of a case by a member of the panel of judges to the plenum (nine judges). Specifically, the changes allow a single member of the panel of judges to motion unilaterally for the transfer of a case to the plenum. The Venice Commission expressed its doubts about strengthening the powers of a single judge and giving him the opportunity to individually dominate the rest of the panel of judges. "It seems to be sufficient that the opinion of the judge making the request contradicts earlier case law. If this is so, it is rather odd. Why should a case go to the plenary simply because one board member develops a position which contradicts earlier case law? This would make sense only if a majority of the board is developing such a position," reads the Report.

The Venice Commission also focuses upon the fact that the plenum needs the votes of at least six of the nine judges in order for it to reject the hearing of a case which it has been transferred by a single judge. "Requesting a two-thirds majority to reject such a request seems excessive. This provision could easily be abused by a judge," states the Report. Hence, according to the Venice Commission’s recommendations:  1. The clause which enables one single judge to transfer a case from the panel to the plenum must change and 2. The need for the plenum’s argument-based decision to reject the request must also be abolished and a simple majority should be able to make this decision.

Of additional highlight is that the President’s note did not at all concern the transfer of a case to the plenum at the request of a single judge. It discussed the cancellation of an argument-based decision in the case of a refusal and the need to change the quorum. However, even this part does not fully coincide with the Venice Commission’s recommendations because they state that a simple majority of the judges must be authorised to refuse the request whilst the President’s proposal indicates that a majority of the entire plenum is necessary. Hence, the President does not share the Venice Commission’s recommendations "word-for-word" in this case either.

The Venice Commission’s Report also focused upon the new rules of norm suspension

which prohibits the panel of judges in session from suspending the norm until a case has been concluded and grants this authority to the plenum alone. The Commission finds it unreasonable that a preliminary decision, which by nature demands urgent action, will be taken with much more complicated procedures (which means transferring a case from the panel to the plenum and back in order to get a final decision). "It seems strange that the final decision of the unconstitutionality of a legal provision can be made by the board whereas a mere interlocutory decision on the suspension of the same provision can only be taken by the plenary session," reads the Report. Despite this, the President of Georgia deemed it unnecessary to veto the new procedure for norm suspension.

On 3 June 2016 during its extra session, the Parliament of Georgia fully accepted the President’s notes and sent the bill to the President for signature once again. The Venice Commission’s Final Report about these changes has not yet been published.

Days after the changes were enacted, Merab Turava, a judge of the First Panel of the Constitutional Court of Georgia, used the authorities granted to him by these changes and motioned for the transfer of two of the most important cases under consideration (constitutional complaints connected to the Rustavi 2 case and the so-called Cables Case) to the plenum. On 15 June 2016, the plenum of the Constitutional Court of Georgia approved Mr Turava’s motion and accepted these cases for consideration.

It should also be noted that on 13 June 2016 the Parliamentary Minority registered a complaint (No.768) in the Constitutional Court of Georgia about the legislative changes adopted by the Parliament of Georgia upon which the Constitutional Court has not yet started discussion. Hence, the Constitutional Court itself will have the final say about the changes to the Law on the Constitutional Court.

Conclusion

The Venice Commission has yet to publish its final report about the changes to the Organic Law of Georgia on the Constitutional Court; however, it should be noted that the preliminary recommendations given by the Commission have only party been reflected in the President of Georgia’s notes and, consequently, in the final version of the bill adopted by the Parliament. Specifically, despite the Venice Commission’s recommendations, the President deemed it unnecessary to decrease the quorum needed to make decisions with regard to organic laws from two-thirds. He also did not react to the right of a single judge to motion the transfer of a case from the panel to the plenum and changed the quorum necessary to reject such a motion from two-thirds to an absolute majority rather than a simple one. The President also did not change the new rules of norm suspension.

FactCheck concludes that Davit Usupashvili’s statement is MOSTLY FALSE.