Identity

The Claim that the Constitutional Court made the Orthodox Church equal with Sects is False

16 August, 2018

On July 17, 2018, the leader of the People’s Party, Mamuka Giorgadze, while on air at TV Obiektivi, stated that the decision of the Constitutional Court made the Orthodox Church of Georgia (OCG) equal to sect.

Mamuka Giorgadze: “Just a while ago, the Constitutional Court basically made the Orthodox Church of Georgia equal with other [churches], ultimately dragging it to the sect level. We have not protested it, no specific steps have been taken in this regard in order to prevent it.”

The claim that the decision of the Constitutional Court altered the status of the Orthodox Church and made it equal to the sects, is false. The Constitutional Court decided that the entries concerning the Autocephalic Orthodox Church of Georgia in the Tax Code of Georgia and the Law of Georgia on State Property are unconstitutional. This decision does not have anything in common with the legal status of the OCG, as defined by the Constitution.

Fact 1. The Constitutional Court adopted two decisions related to the OCG on July 3. The first decision (N 1/2/671) concerned the exemption of the OCG’s construction activities of cathedrals and churches, as well as restoration and painting activities from the Value Added Tax (VAT). The second decision (N 1/1/811) concerned the act of assigning  the OCG with the right to receive state property free of charge. None of the aforementioned decisions concern the legal status of OCG.

The decision N 1/2/67 made by the Constitutional Court on July 3, intends to remove the entries of the Tax Code of Georgia, which envisaged tax exemption for the construction, restoration and painting of churches under commission by the Patriarchate of Georgia (Article 168 of the Tax Code of Georgia).

The decision N 1/1/811  concerns the possibility of the state handing over the property free of charge only to the OCG (Law of Georgia on State Property, Article 63, Paragraph 1).

The Constitutional Court decided that both norms contradict the Article 14 of the Constitution of Georgia, which emphasizes the right of equality before the law. The Constitutional Court mentioned that in these specific legal relations (building churches, painting, restoration and the possibility of the state handing over the property free of charge) all religious organizations are substantially equal subjects. Disputed norms differentiate between substantially equal subjects, due to which, the Court deemed the given norms discriminative and, hence, decided that they contradicted the Constitution of Georgia N 1/2/671, Paragraph 16, N 1/1/811, Paragraph 10);

The Constitutional Court explained that the recognition of the special role of the Church (defined by the Article 9 of the Constitution) is connected to its historical contribution and does not aim to create a privileged legal condition for the OCG in the present N 1/1/811, Paragraph 20; N1/2/671, Paragraph 35);

In addition, the fact that giving certain rights to the Church does not hinder other religious organization from enjoying the same rights, was one of the main arguments of the Constitutional Church N 1/1/811, Paragraph 23);

The given decisions of the Constitutional Court are not associated with changing the status of the OCG. Moreover, the Constitutional Court considers the entry in the Constitution of Georgia regarding the special role of the OCG in the process of decision-making and argues, to what extent are these norms connected to the special role of the OCG. Taking into account that the Constitutional Court did not consider the appealed norms to have any kind of connection to the special role of the OCG and noted that the entry on the special role does not require a different treatment envisaged by the appealed norm, the Constitutional Court decided to amend the existing entries in the Law of Georgia on the State Property and the Tax Code of Georgia, due to the discriminatory nature of the appealed norms.

It should also be noted that the Constitutional Court postponed the enactment of both decisions until December 31, 2018, which means that the Court left a possibility to the Parliament of Georgia to amend the faulty norms itself in a way that would correspond to the Constitution of Georgia. The Parliament of Georgia has to decide whether to take away the existing privileges from the OCG or expand them in order to cover all religious organizations, thereby resolving the hitherto existing discrimination.

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Fact 2. The Constitutional Court is not authorized to rule on and define the status of the OCG.

The authority of the Constitutional Court of Georgia is determined by the Article 89 of the Constitution of Georgia and the Article 19 of the Organic Law of Georgia on the Constitutional Court. According to them, the Constitutional Court verifies the compliance of various legal acts and actions with the Constitution of Georgia.

The Constitutional Court is not authorized to change the status of the OCG. It obeys the constitution and acts in the framework, defined by the Constitution, which says that the OCG has a special role due to its historical contribution.

Only the Parliament of Georgia is authorized to amend or revoke the legal status of the Church. The Constitutional Court, which bases on the Constitution, adopted by the Parliament, cannot possibly make a ruling, which contradicts the Constitution.

Fact 3: The status of the OCG is determined by the Constitution of Georgia and the Constitutional Agreement signed between Georgia and the Orthodox Autocephalic Church of Georgia.

Recognition of the special role of the Church is expressed in the following ways:

  1. According to the Article 9 of the Constitution of Georgia, “the state recognizes the special role of the Orthodox Autocephalic Church of Georgia”;
  2. The Article 6 of the Constitution of Georgia requires that the international treaties and agreements, as well as organic or conventional laws be in accordance with the Constitutional Agreement, which underlines the fact that the existing legal agreement between the OCG and the state is prioritized over other legal documents and stands above them hierarchically;
  3. The Constitutional Court of Georgia, in its July 3 decision ( N 1/1/811) concerning the role of OCG, mentions that the special role of the Church is not a mere ascertainment of the fact and that it will have specific legal outcomes:

“Recognition of the special role of the Church, at first sight, is associated with ascertaining the historical fact. However, its importance is not exhausted only by the specific conditions. Constitutional norms regulating the relations between the state and the Church directly indicate it. First, it is exactly in these norms  that the special role of the Church is acknowledged. For instance, the Constitution of Georgia holds that it is mandatory to sign the Constitutional Agreement between the state and the Apostolic Autocephalic Church, whereas the Article 6, Paragraph 2 of the Constitution of Georgia requires that the international treaties and agreements be in accordance with the  Constitutional Agreement, which indicates the legal importance of the existing agreement between the state and the Church in the hierarchy of normative acts”;

     4. The existing Constitutional Agreement Between Georgia and the Apostolic Autocephalic Orthodox Church of Georgia envisages specific positive concessions to the OCG. The Article 6, Paragraph 5 determines that “the liturgical products manufactured by the Church – the production, import, delivery and donation – are exempt from taxes”.


Prepared by  Mariam Nutsubidze
Myth Detector Lab