Judge Tughushi: What is the Constitutional Court for if It Refuses Constitutional Control?

“ - Will this road lead me to the Cathedral of the Mother of God?

  - This is Varlami Street. This road will not lead you to the Cathedral.

  - No? So what is the need for it?!

The judges of the Constitutional Court of the Czech Republic included this passage from Tengiz Abuladze’s film Repentance in their dissenting opinion and rhetorically asked, ‘What good is the road if it does not lead me to the Cathedral? What good is the Constitutional Court if it avoids answering questions and solving problems?’

Unfortunately, it is precisely with this passage that I must begin my dissenting opinion regarding the Constitutional Court's ruling No. 3/7/1848,1849 of November 29, 2024: why does the Constitutional Court exist if it refuses to exercise constitutional control?!" writes Judge Teimuraz Tughushi.

The judge believes that the proper consideration of constitutional claims was "a matter of fundamental importance for the protection and strengthening of democracy."

"Instead of doing so, the Constitutional Court did not examine the arguments and evidence in the case and refused to accept the claims for consideration without proper justification. The respondent was not even asked what caused the problems indicated by the claimants. Contrary to my proposal, the case was considered without an oral hearing, even though the legislative framework, as well as the practical aspects of the case, allowed for its resolution through oral hearings, resulting from a proper investigation.

The constitutional claims presented evidence and arguments that clearly demonstrated the risks of violation of constitutional rights arising from the legislation. At the same time, the issues raised in the constitutional claims were so clearly identified that their understanding should not have been difficult not only for highly qualified lawyers but also for any objective observer. The court simply had to see and evaluate the arguments and evidence presented in the claims in their content, which it failed to do.

Accordingly, the Constitutional Court essentially refused to exercise constitutional control, its inherent function in the system of checks and balances enshrined in the Constitution of Georgia," Judge Tughushi concludes.

Voting Secrecy

“The constitutional claim, on the one hand, presented evidence of a potential violation of voting secrecy. At the same time, it was confirmed that the process was conducted in accordance with the electoral legislation, as the judges of the General Court recognized it as lawful. This, in itself, indicated that for the purposes of constitutional proceedings, the court should have considered that the conduct of the voting process in this form followed from the requirements of the law (based on the normative content that the general courts assigned to it), which made it clear that the Constitutional Court needed to conduct a substantive discussion on the compliance of the legislation regulating elections with the Constitution of Georgia. Contrary to this, my colleagues, without analyzing the content of the disputed norms, simply stated that the problems raised by the plaintiff did not stem from them (the disputed norms). This is, on one hand, incorrect, and on the other hand, it amounts to refusing to exercise constitutional control.

The Constitutional Court, in fact, indicates that, in order to assess the constitutionality of the disputed norms, it was necessary for the potential violation of secrecy to be explicitly and specifically provided for in the legislation. However, for the purposes of constitutional control, it is essentially the same whether a law creates the possibility of violating secrecy by name or whether it is conditioned by the content assigned by the general courts to the general rule of secrecy established by the disputed norm. In both cases, the identified content constitutes part of the applicable legislation, the constitutionality of which is the function and obligation of the Constitutional Court to assess.

Accordingly, the Constitutional Court was obliged to consider the case through a substantive review and determine to what extent the conditions for secrecy of the vote determined by the law corresponded to the requirements for secrecy of the vote guaranteed by the Constitution of Georgia. Specifically, in the format of a substantive review, the Constitutional Court should have examined the positions of the parties and assessed whether there were any circumstances that would justify the risks arising from the interpretation of the general courts regarding the secrecy of the vote.

It is also incorrect for my colleagues to state that, even if there were a problem in the legislation regulating elections, the plaintiff appealed against incorrect norms. In this case, not only the general norms regulating the issue of secrecy of the vote were at issue, but also the provisions regulating the voting process and determining the form and procedure for filling out the ballot. My colleagues, in fact, suggested that the problems caused by the “ink leakage” on the ballot do not concern the rules governing secrecy, the voting process, or the technical means used, and the plaintiff should have sought the issue in other, general norms.

Thus, in this case, the general courts established that, despite the risks of revealing the voter’s will, the voting process was conducted in accordance with the law, while the Constitutional Court, citing a misunderstanding of the content of the disputed norms, refuses to assess the content of the law that led to the voting being conducted in the aforementioned manner. As a result, we have a situation in which there is no assessment of whether the voting conducted under the aforementioned conditions meets the constitutional requirements for the secrecy of the vote.”

The Impact of the Court's Failure to Rule on the Merits of the Case on Future Elections

“The evidence presented in the case unequivocally raises important questions in society regarding the violation of the secrecy of the vote in the October 26, 2024 elections. At the same time, the general courts have confirmed that the procedure was conducted in accordance with the election legislation. Under these circumstances, the failure of the Constitutional Court to consider the merits of the case and, in fact, to make any substantive decision threatens the compliance of future elections in Georgia with the Constitution of Georgia.

Given that I did not have the opportunity to hear the position of the election administration on the case, it is difficult for me to conclusively state what their position would be regarding the causes of the problems indicated by the plaintiffs. However, the evidence presented in the case suggests that the Central Election Commission of Georgia was aware of the existing issue before the vote. In particular, Constitutional Claim No. 1848 is accompanied by a letter dated September 17, 2024, from the Georgian Young Lawyers Association, in which they explained to the Central Election Commission of Georgia that the marking fluid left traces on the back of the ballot paper. According to the Georgian Young Lawyers Association, this defect represented a significant challenge that could directly affect the principle of secrecy of elections. In light of this, the organization requested information from the Central Election Commission of Georgia on what steps had been or would be taken to address the issue. By letter No. 01-01/1607 of September 28, 2024, the Chairman of the Central Election Commission of Georgia informed the organization that the ballot paper used in educational and informational meetings was a test version, and that the quality of the ballot paper used on voting day would be different, ensuring the protection of secrecy.

Additionally, the plaintiff presented a recording from a television program in which the Chairman of the Central Election Commission of Georgia explains the voting procedure to a citizen. During the voting simulation, the voter notices the appearance of a marker trace on the back of the ballot paper, to which the Chairman of the Central Election Commission of Georgia responds by stating that the visibility of the marking trace was due to the voter pressing too hard on the special marker. Thus, in one instance, the Chairman attributed the problem to the test version of the ballot paper, while in another, he linked the visibility of the marker trace to the rules for using the special marker. However, both cases demonstrate that the Chairman of the Central Election Commission of Georgia was fully aware of the visibility of the marker trace.

Therefore, there is sufficient evidence in the case to suggest, at least with a high degree of probability, that the problems indicated by the plaintiff were not caused by an error on the part of the election administration, but by premeditated actions. At the same time, the compliance of the voting process with the law has already been confirmed by the general courts. Accordingly, there is nothing to indicate that future elections will be administered differently without legislative amendments.

The elections held on October 26, 2024, undoubtedly raise reasonable doubts in society regarding the secrecy of the vote. The main function of vote secrecy is to protect the freedom of choice, which is primarily ensured by establishing trust with voters and guaranteeing that no one will be able to find out, without their consent, whether they cast a vote or, if they did, in whose favor.

If the public loses trust in the election process, particularly in terms of controlling the will of the voters, each subsequent election will become increasingly difficult to conduct. Accordingly, the disputed norms have the potential to undermine the idea of freedom of choice in future elections.

Against this background, the decision of my colleagues, who did not examine the real nature of the problems raised by the plaintiffs, poses an additional risk to the democratic values enshrined in the Constitution of Georgia. Whether it would have been possible to resolve questions related to the secrecy of the elections in the future by using an appropriate ballot and marker remains unanswered. The Constitutional Court of Georgia did not assess what additional effort a voter would need to ensure that the ballot was placed in a special electronic device in compliance with the principle of secrecy, or whether it was feasible for the average voter to act in a way that would guarantee the secrecy of their choice. Furthermore, the Constitutional Court did not examine or assess what led the Central Election Commission of Georgia to regulate and administer the electoral process in a questionable manner, despite being informed in advance of the potential violation of secrecy. Was this approach driven by technological needs, or could the election administration have organized the election process using electronic means in a way that would have mitigated the risks of identifying marker traces?

Thus,

The Constitutional Court’s failure to properly investigate the case and make a reasoned decision not only failed to address questions regarding the constitutionality of the October 26, 2024 elections, but also contributed to casting doubt on the possibility of holding every subsequent election in Georgia in a free and fair environment.

In this case, the Constitutional Court did not accept the constitutional claims for substantive consideration, even though the case presented numerous pieces of evidence related to practical problems arising from the operation of the disputed norms. In light of this, it is difficult to imagine that the Constitutional Court, in the future, within the framework of abstract control, will address this issue and, through a thorough investigation, either confirm or dispel concerns related to the violation of the secrecy of the vote under the current legislation.

Accessibility of Voters Abroad to Participate in Elections

“Access to participation is not a privilege; in a democratic state, there is a presumption in favor of public participation in elections. Accordingly, barriers imposed on the exercise of the right to vote for any group or category of the general population must be proportionate to the objectives of restricting the right. Any deviation from the principle of universal suffrage threatens the democratic legitimacy of the legislative body thus elected and the actions taken by it.

A significant portion of citizens abroad had to travel long distances (mainly several hundred kilometers) to exercise their right to vote. This created difficulties, and in some cases, may have even prevented them from voting.

According to the Summary Protocol of the Results of Voting in Electoral Precincts Established in Other States for the October 26, 2024 Elections of the Parliament of Georgia, dated November 10, 2024, the total number of voters in the electoral precincts established abroad was 95 910, and the number of voters who participated in the elections was 34 574. It cannot be ruled out that a large portion (if not the majority) of registered voters were unable to participate in the elections due to geographical distance.

Thus, the evidence presented by the plaintiff confirmed the application of the disputed norms to the right to vote.

The evidence in the case made it clear that voters abroad faced not only a simple inconvenience in exercising their right to vote, but, in some cases, significant barriers were imposed on them.

The plaintiff did not present an individual case in which a person abroad had to cover a long distance to vote, but rather a systematic practice confirming the issue. For example, in the United States, polling stations were opened in only three locations (New York City, San Francisco City, and Washington, D.C.), meaning that polling stations were over 1000 kilometers away from the homes of Georgian citizens living in the southeast of the country.

Despite this, the Constitutional Court did not accept the constitutional claims for substantive consideration, arguing that the opening of polling stations abroad required significant human and material resources, which the plaintiff failed to substantiate.

In the present ruling, the Constitutional Court, on its own initiative, cited human and material resources as an obstacle to opening polling stations abroad, although it did not hear from the body that adopted the act itself what the real reason was for refusing to open polling stations in several cities. What was the vision or explanation of the creators of the act? Was it fully or partially related to the factor indicated by the Constitutional Court, or was it due to other circumstances?

I believe that the Constitutional Court should have accepted the case for substantive consideration, investigated the motives of the CEC for opening or not opening polling stations abroad, assessed the burden that opening additional polling stations would place on the state, evaluated the resources available to the state, and made a reasoned decision based on a comprehensive analysis of the case.”