The constitutionalization and safeguarding of social rights persist as a considerable challenge to this day. The international system of human rights, developed based on liberal ideology, has been structured around the belief that a market economy oriented towards free competition should have a substantial impact on social welfare. This approach saw a robust economy as a prerequisite for a decent quality of life, wherein the market, through the creation of sufficient employment opportunities and wealth, was perceived to “generate prosperity”. This approach shifted the responsibility for upholding social rights from the state to individuals and the private sector. The aforementioned seemingly outdated rhetoric remains deeply rooted in the core foundations of state social policies. This approach has impeded the acknowledgment of social rights and the establishment of a proper system of protection, rendering the issue of its enforcement through the courts moot. However, in the present day, the contemporary doctrine of human rights clearly opposes this standpoint. It assigns a pivotal role to the judiciary in terms of upholding social rights.
Why should I be interested in this topic?
The issue of social protection and security in Georgia remains a matter of acute concern, given the persistently high poverty rate in the country. According to data from 2022, 15.6% of the population remains below the absolute poverty line. In 2022, the number of allowance recipients reached 659,005. Despite this, the administration and regulation of the subsistence allowance persist as problematic issues. Against this background, it is even more crucial to elevate the role of the judiciary in addressing matters related to social protection.
Our comment
According to Georgian legislation, the adjudication of issues related to the right to social security in the court does not align with the concept of a welfare state and places the citizen in an unequal confrontation with the state.
What does the idea of the welfare state entail?
The preamble of the Constitution of Georgia considers the firm will of its citizens to be the establishment of a social state. This declaration stands as the constitution's material principle, outlining the state's fundamental objective. While various interpretations of the social state exist, in a broad sense, it embodies the active engagement of the state in organizing and managing the economy. The concept of a welfare state revolves around the notion of equitable wealth distribution, which is regulated by the state. According to this principle, the state assumes the responsibility for the social welfare of its citizens, ensuring the establishment of dignified living standards. This may encompass financial assistance tailored to diverse needs, as well as providing state-financed services such as healthcare, education, and other essential services.
What is the developmental course of this idea in Georgia?
Following Georgia's regaining of independence, the protection of social rights did not emerge as a priority under the rule of any political elite. On the contrary, a notably anti-social economic policy unfolded over the years, effectively eradicating social welfare from the political agenda. Even the Constitutional Court failed to contribute to the improvement of social protection policies. It upheld the conventional perspective on social rights, wherein executive authority assumes a privileged, predominant role in social protection matters. In this context, the constitutional amendment of 2017-2018 held significant importance, as it mandated state entities to operate within the framework of the concept of a social state. This change explicitly tasked the state with the obligation of guaranteeing the social protection of its citizens. This regulation increased the role of the court in safeguarding social rights and imposed substantial obligations on it to establish socially sensitive practices.
Access to court
Access to justice stands as the most crucial component in safeguarding social rights and ensuring their judicial enforcement. The court's role in relation to issues concerning the protection of social rights depends on this matter. Imposing artificial barriers not only restricts an individual's ability to defend their rights but also undermines the court's mandate to exercise control over executive bodies.
We will focus on two issues of accessibility:
- Expenses;
- Legal aid.
In the course of disputes related to social protection, individuals listed in the registry of socially vulnerable persons and beneficiaries receiving allowance are exempted from state fees and other expenses. However, if a person seeks the imposition or revocation of an allowance, they are exempt only from state fees and may be responsible for other associated costs incurred during the court proceedings.
In relation to the matter of social security, the availability of extensive, cost-free legal aid is limited. Such assistance encompasses not only legal advice, but also preparation of documents and representation in court. Under the law, such comprehensive legal aid depends on the complexity and significance of the case at hand. As per information received from the Legal Aid Service, there are no regulations or guidelines that precisely define the elements of complexity and importance of a case. Hence, the assessment is conducted based on the specific circumstances of each case. This means that a person will not be granted such support in all instances. Between 2022 and September 2023, the service provided 666 consultations concerning social protection, represented 106 people in court, and 8 people in administrative bodies.
In publicly accessible court cases, disputes initiated by individuals receiving benefits are rarely found. For instance, as of 2020, only 7 judgments from the Court of First Instance concerning subsistence allowances are publicly accessible. Among these, only 1 case involves a citizen as the initiator of the dispute. The remaining 6 cases are initiated by the agency against the allowance recipient, seeking reimbursement of aid received “excessively” or “incorrectly” in favor of the state budget. According to the data of 2019, 9 out of 10 cases were initiated based on the same grounds. Without additional information, it is difficult to assess what could be the reasons behind the low number of disputes initiated by the beneficiaries. Nevertheless, barriers to accessibility may pose a substantial obstacle for citizens in this regard.
Competition between unequal parties
Disputes related to subsistence allowance are based on the adversarial principle and principle of disposition.
The principle of disposition confers the responsibility of conducting the case upon the disputing parties. Party initiates a dispute, he/she holds the autonomy to define the subject of the dispute, modify the claim, withdraw or/and acknowledge it, or resolve the case through settlement. Under this principle, the court does not have the right to exceed the scope of the claim, even if it deems such action necessary for the just realization of the right.
According to the adversarial principle, the responsibility of determining the subject of proof and the burden of proof of the facts related to the dispute lies entirely with the involved parties. The essence of the adversarial principle is predicated upon the equal standing of the parties. Thus, the meaningful implementation of this principle is contingent upon ensuring the parity of the parties, specifically in terms of their equal access to procedural and legal “resources”. Otherwise, this principle is counterproductive, always benefiting the stronger party in disputes between unequal parties. Social security disputes are characterized by an evident imbalance between the parties involved. On one side stands the state, equipped with administrative and financial resources, and on the opposing side is the citizen, disputing their own poverty against the same state, frequently, lacking access to adequate protection and, consequently, the opportunity to employ procedural mechanisms effectively.
Even though the first expectation of the law in administrative disputes is indeed competition, - assertion of positions by the involved parties, the adversarial principle should not be misconstrued to exclude the role of the court and assign the responsibility for determining justice only to the parties. Besides the adversarial principle, the court bears the inquisitorial duty to impartially and comprehensively investigate the case. The court must ensure the proportionality of human rights, public and private interests, and ensure the balance between the parties in an unequal position. Elevation of the inquisitorial role holds paramount importance in social disputes, where the court is tasked with deliberating on the necessity of the allowance and the corresponding obligation to mobilize state efforts. However, observation of the practice suggests that the courts often tend to interpret this principle narrowly or fail to apply it adequately.
This issue is particularly evident in cases where the state disputes the “excessive” receipt of the allowance by the citizen and demands its return. In such instances, the court typically doesn't assess the fairness of the state's claim. Instead, it essentially performs a notarial function, confirming the state's claim in the dispute. Furthermore, the practice demonstrates that the state often imposes artificial obstacles, hindering citizens from enjoying the right to social protection. Consequently, individuals find themselves not only struggling to secure a living allowance but also to retain it. During the re-verification process, their poverty rate may change based on one-time cash benefits or earnings from the iron collection, and they might be obligated to reimburse any “excessive” aid received back to the budget. In these disputes, the parties hold a dominant role, although even within the framework of adversarial principle, the court can create socially sensitive practices by exercising its inquisitorial powers. One illustrative instance of this could be the utilization of the right to appeal to the Constitutional Court. Yet, as per the available information, no submissions related to social issues have been made to the Constitutional Court thus far.
Admissibility of cases
About 14 decisions of the Supreme Court of 2023-2022 related to subsistence allowance can be found. Among these, the court deemed 11 cases as inadmissible. During the assessment of a case's admissibility, the court primarily focuses on the legal provisions underpinning the issue at hand. However, in certain instances, the court does not discuss the specific case, where it established a standard regarding subsistence allowance and based on which it considers that there is no need to render a new judgment on such a matter. It is within the power of the Supreme Court to render a precedent-setting decision. Such a decision would not only impact the dispute at hand but also serve as guiding a standard for policymakers and involved parties. By employing reasoning articulated in this landmark case, the court can apply it when evaluating the admissibility of future cases related to subsistence allowance.
Summary
Protecting and enforcing social rights through the courts poses significant challenges, given the ambiguous and weak role of the judiciary. The existing barriers to court access are compounded by instances where the court merely acts as a “notary”, failing to effectively utilize the inquisitorial powers vested by the law. Addressing these issues necessitates not only improvements in judicial practices but also changes in legislation. These amendments should empower the court to play a more active role in social security cases. Ensuring the effective enforcement of social rights demands the improvement of the legal aid system, requiring both legal regulations and institutional strengthening of the service.
The article was prepared by the Komentari with the support of the USAID Rule of Law Program funded by the United States Agency for International Development (USAID) through the East-West Management Institute (EWMI). The views expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of USAID and EWMI.
