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Does ECHR Limit the Sovereignty of Georgia?

12 October, 2021

On October 7th, 2021, Shota Martinenko, the host of the “Alt-Info,” proclaimed that the international agreements signed by Georgia are above the Constitution and that the state is powerless to enforce the law without the decision of Strasbourg, ultimately limiting the sovereignty of the country. Shota Martinenko even brought the example of Armenia, claiming that, in this regard, it benefits from a higher degree of autonomy from Russia.

 

Shota Martinenko, Host at “Alt-info”: “The fact that international agreements, in general, are above the constitution, or the fact that the national court can no longer do anything until the final judgment from Strasburg is being released…That is an indication of restricted sovereignty ... Armenia, for example, now has immeasurably higher autonomy from Russia than we have from the West ..."

The comment of Shota Martinenko is manipulative and does not depict the existing picture accurately. According to Georgian legislation, the Constitution is a hierarchically superior document, meaning that the international agreements which Georgia accedes to (including the Convention for the Protection of Human Rights and Fundamental Freedoms) must be in line with the Constitution. Hence, the assertion that the West is trying to limit Georgia's independence is manipulative.

  • The Constitution of Georgia is the Supreme Document

The hierarchy of legislative acts in Georgia is regulated by the Organic Law on Normative Acts. According to paragraph 3 of Article 7, the Constitution and constitutional law occupy the first place in the hierarchy, followed by the constitutional agreement (between the state of Georgia and the Apostolic Autocephalous Orthodox Church of Georgia), and lastly, by international treaties and agreements.

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Source: ORGANIC LAW OF GEORGIA ON NORMATIVE ACTS

Hence, if the state wants to join a specific international agreement, the agreement needs to be constitutional, not contrary to the Constitution of Georgia or the constitutional agreement, or it is possible to amend the constitution, which will allow the state to recognize the relevant international agreement.

In addition, Georgia enforces the law on International Treaties of Georgia, which also underscores the supremacy of the Georgian Constitution and the Constitutional Agreement to international treaties. Consequently, if the latter is in conflict with the Constitution, it is possible to appeal and suspend it in the Constitutional Court. Article 21 of the Law on International Agreements of Georgia states that “if an authorized subject enters a constitutional appeal to the Constitutional Court of Georgia before an international treaty is recognized as binding, the Constitutional Court of Georgia shall make a decision on the constitutionality of the international treaty.  If the Constitutional Court determines the international treaty to be incompliant with the Constitution of Georgia, the above treaty may be recognized as binding for Georgia only after the respective changes are made to the Constitution in accordance with the established procedure.”

The text of the Constitution also confirms the fact that the Constitution is above international agreements and treaties. Article 4 of the Constitution of Georgia states that “the legislation of Georgia shall comply with the universally recognized principles and norms of international law. An international treaty of Georgia shall take precedence over domestic normative acts unless it comes into conflict with the Constitution or the Constitutional Agreement of Georgia.”

Paragraph 4 of Article 47 of the Constitution prohibits the ratification of the appealed agreement until the court renders a final judgment.

  •   ECHR Judgements and the Georgian Constitution

The European Court of Human Rights is an international tribunal established by the 1950 European Convention on Human Rights, which makes the Convention a "living organism". The Convention protects fundamental human rights and freedoms, including the right to life, freedom of thought, conscience, religion, freedom of expression, freedom of assembly and association, and more. The Convention also prohibits the death penalty, slavery, and forced labor.

First and foremost, the European Convention is located under international treaties and agreements in the hierarchy. With this in mind, here too, the Constitution and the Constitutional Agreement stand above it. On the same principle as in other agreements, in this case, Georgia could not accede to the Convention if any part of it contradicted the Constitution of Georgia.

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European Convention on Human Rights

Noteworthy, the Convention for the Protection of Human Rights and Fundamental Freedoms protects fundamental human rights, which are guaranteed by the Constitution of Georgia as well, making these two documents coincide.

Convention for the Protection of Human Rights and Fundamental Freedoms

Georgian Constitution

“Everyone’s right to life shall be protected by law.”

“Human life shall be protected. The death penalty shall be prohibited.”

„Everyone has the right to freedom of thought, conscience and religion.“

“Everyone has freedom of belief, religion and conscience.”

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“Torture, inhuman or degrading treatment, and the use of inhuman or degrading punishment shall be prohibited.”

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.“

“Freedom of opinion and the expression of opinion shall be protected. No one shall be persecuted because of his/her opinion or for expressing his/her opinion.”

“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

“Everyone, except those enlisted in the Defense Forces or bodies responsible for state and public security, shall have the right to assemble publicly and unarmed, without prior permission.”

As for the comparison with the autonomy of Armenia, despite the fact that Armenia remains an independent state today, Russia still manages to make not only Armenia but also other members of the Commonwealth of Independent States (CIS) dependent on in various ways. In contrast, Georgia is completely free to choose whether to cooperate with Europe or not.

Unlike in Europe, Russia is actively trying to maintain its influence in the CIS countries (including Armenia) through various means and political tools.

In this regard, the Carnegie Endowment for International Peace provides a number of tools for maintaining  influence:

  • Frozen Conflicts and Divided Polities;
  • Military Bases in Armenia;
  • Incentives and Threats;
  • Gas imports and subsidized energy;
  • Bilateral debt

For more on the topic, see the article of “Myth Detector:”

The message, as if the West is interfering in the sovereign affairs of Georgia, has been stirred up by anti-Western and Kremlin actors for years now. The assertion voiced on Alt-Info that membership in international agreements limits Georgia's sovereignty and independence is the repetition of the same message. For more on this topic, see:


By Irakli Iagorashvili


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