Published on 16 June 2025
FOURTH SECTION
Application no. 15498/24
Jimsher TSKHADADZE
against Georgia
lodged on 31 May 2024
communicated on 29 May 2025
SUBJECT MATTER OF THE CASE
The application concerns domestic proceedings initiated by the applicant who argued that his dismissal from his position as a bailiff at the Tbilisi City Court – on the grounds of having reached the mandatory retirement age of fifty, as prescribed by a special statutory provision governing that post – constituted age-based discrimination, given that the general statutory retirement age was sixty-five.
On 25 May 2016 the applicant instituted proceedings against the Tbilisi City Court before the Administrative Chamber of the same court. Subsequently, in June 2016, he also initiated proceedings before the Constitutional Court of Georgia. In both sets of proceedings, the applicant contended that his dismissal, effected pursuant to Article 59 of the Organic Law on Common Courts, had been discriminatory and, consequently, unconstitutional.
As it appears from the case file, the applicant requested the first-instance court to initiate constitutional referral procedure under Article 6 of the Code of Civil Procedure. This provision allows a court, on its own initiative, to stay the proceedings and refer a matter to the Constitutional Court if it considers that the relevant legal provision may be unconstitutional, in whole or in part. The applicant’s request was rejected on the grounds that the constitutional referral procedure lies within the court’s discretion, and the judge did not deem it necessary to trigger it.
On 14 December 2018 the Constitutional Court accepted the applicant’s appeal and declared Article 59 of the Organic Law on Common Courts unconstitutional in so far as it provided for the compulsory retirement of court bailiffs at the age of fifty. The Constitutional Court found that such difference in treatment, when compared to the general retirement age, lacked sufficient justification and thus amounted to unjustified age-based discrimination. The ruling specified that it would have a prospective effect, applying from the date it was published on the Constitutional Court’s website.
On 23 December 2021 the Tbilisi City Court dismissed the applicant’s application. It acknowledged the Constitutional Court’s finding that the legal provision underlying the applicant’s dismissal was unconstitutional, but emphasized that such a finding could only have a prospective effect, as expressly provided for in the domestic legislation and stated in the Constitutional Court’s judgment. It could not, therefore, apply to the applicant’s dismissal retroactively. Accordingly, the first-instance court found that the applicant’s dismissal had a lawful basis at the time it had occurred. The applicant appealed arguing, among other things, that at the time the Constitutional Court delivered its ruling, the dismissal order had not yet become final due to the ongoing judicial proceedings challenging its validity. Therefore, according to the applicant, the judgment of the Constitutional Court should have been applied to his labour dispute.
On 21 September 2022 the Tbilisi Court of Appeal overturned the lower court’s judgment. While acknowledging the general principle that the Georgian Constitutional Court’s findings do not have retroactive effect, it made a reference to the constitutional referral mechanism that allows a judge, in cases of doubt as to the constitutionality of a legal provision, to refer the matter to the Constitutional Court. The appellate court considered the applicant’s situation similar to that mechanism, even though the Constitutional Court had been seized by the applicant himself rather than by a judge. It found that the proceedings in the applicant’s case had, in effect, been stayed pending the outcome of his constitutional complaint considering, on the one hand, the normally short processing time of labour disputes and, on the other hand, the multiple postponements made in the applicant’s case by the first-instance court. Accordingly, and given that his case had not yet been finally adjudicated by the courts of general jurisdiction, the Constitutional Court’s ruling ought to have been applied by the lower court as if the Constitutional Court had been seized by the trial judge by means of the constitutional referral mechanism.
On 15 April 2024 the Supreme Court of Georgia overturned the judgment of the Tbilisi Court of Appeal. While it acknowledged the reasoning provided by the appellate court, it held that the principle whereby the Constitutional Court’s judgments do not have retroactive effect could not be revoked by means of a judicial interpretation or by analogy with another procedure such as the constitutional referral mechanism and its legal consequences.
The applicant complained about age-based discrimination, the length of the related labour dispute, and his inability to successfully litigate his case before the domestic courts. He relied on Articles 6 and 14 of the Convention, and Article 1 of Protocol No.12 thereto.
QUESTIONS TO THE PARTIES
1. Has the applicant suffered discrimination on account of his age, contrary to Article 1 of Protocol No. 12, given that he was forced to retire at an age different from that set for the general population (see, for instance, Molla Sali v. Greece [GC], no. 20452/14, §§ 133-37, 19 December 2018)?
2. Did the applicant have a fair trial, within the meaning of Article 6 § 1 of the Convention, as regards the effects of the Constitutional Court’s findings? In this respect, did the domestic courts approach the matter without excessive formalism (see, for instance, Zubac v. Croatia [GC], no. 40160/12, § 97, 5 April 2018)?
3. Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?