Supreme Court of Georgia

Batumi City Court Applied to the Constitutional Court of Georgia

Published: 04/02/2014

On March 31, 2014, Batumi City Court suspended the petition of the prosecution of the Autonomous Republic of Adjara concerning the resignation of member of the municipality Mr. Murman Abashidze.

According to the case files the accused Murman Abashidze is the member of the municipality from June, 2010.

To the opinion of Batumi City Court, the Article 159 of Criminal Procedure Code (grounds for dismissal of the defendant) contradicts with the Article 29 of the Constitution of Georgia and the matter whether the law is constitutional should be applied to the Constitutional Court.

Batumi City Court considers that the grounds for the appeal to the Constitutional Court are the following:

According to the Art.29 (1) of the Constitution of Georgia, every citizen of Georgia shall have the right to hold any public office if they meet the requirements established by law.

According to the Art.29 (2) the Law shall define the requirements for public office.

With the analysis of this provision the conditions of the activities of the member of municipality are determined by the Law on Local Self-Government.

The Law on Local Self-Government, which regulates the activities of the members of the municipalities, including the rules of termination of the authority, does not envisage suspension of the authority for the members of the municipality and there is no official who is authorized to enforce the court judgment.

According to the Art.2 (1) and (2) of the Law on Local Self-Government, Georgian citizens exercise their right on local self-governance in conformity with the Georgian Constitution and the present law. They enjoy the right to elect and be elected in local self-governance bodies according the rule established by the present law and the electoral legislation.

According to the Art.21 (1) of the abovementioned law the Municipal Council is elected for a term of 4 years by the citizens, registered in the territory of the municipality, on the basis of direct, universal, equal suffrage through a secret ballot, according to the procedure established by the Organic Law of Georgia - "Election Code of Georgia".

According to the Art.32 (5) of the abovementioned law the office term of the Council Member commences on the day of their election and in ceases with the election of a new composition of this body.

According to the Art.159 of Criminal Procedure Code of Georgia the defendant shall be dismissed from an occupied position (employment) if there is a probable cause that further occupation of a position by him/her will hinder investigation, repairing the damage caused by the crime or the defendant will continue to be engaged in criminal activity.

According to the Art.160 (3) of Criminal Procedure Code of Georgia the court order on defendant’s removal from an occupied position (employment) shall be binding upon director of relevant institution, enterprise and organization, who is obliged to, after receiving the order, execute it without delay and inform the court on it.

Batumi City Court considers that Criminal Procedure Code allows for the possibility that the public official elected by Georgian citizens - the Council Member - could be resigned, which may contradicts with the Art.29 of the Constitution of Georgia and could be assessed as the interference in the rights of Murman Abashidze that are guaranteed by the Constitution. Therefore in order to assess whether the Art.159 of criminal Code of Georgia is constitutional, should be applied to the Constitutional Court.