borjgali1964black hawkდადეს წინასწარი დასკვნის სრული ტექსტი - 20 გვერდია
http://www.venice.coe.int/webforms/documen...L-AD(2017)013-e * * *
http://www.venice.coe.int/webforms/documen...L-AD(2017)013-e * * *
2. Proportional electoral system
27. The change from a partly majoritarian to a fully proportional electoral system (Article 37
paragraph 2) or to a regional proportional system corresponds to a long-time request of the
Parliamentary Assembly of the Council of Europe and the Venice Commission as well as of
Georgian civil society and most of the political parties, and is to be welcomed.
3. 5% threshold
30. In its 2007 resolution on the state of human rights and democracy in Europe, the CoE’s
Parliamentary Assembly opted for a 3% threshold for parliamentary elections in “wellestablished
democracies”7
.
* * *
10. Children’s rights
73. In its 2014 Report on the Protection of Children’s Rights25, the Commission observed that
the standard setting activity that has been undertaking more recently by the Council of Europe
has inevitably increased awareness among member States about the importance of the
constitutional expression of the children’s rights and recommended that the member states
provide, according to their constitutional system, constitutional guarantees for the recognition
and protection of children’s rights. Although Draft art. 30(2) sates briefly that “the rights of
mothers and children shall be protected by law”, it is advisable that this right be formulated in a
separate constitutional provision.
* * *
2. Right to marriage
59. Articles 30 of the draft amendments defines the marriage explicitly as “a union between a
woman and a man (…) based on equality of rights and free will of spouses.” and narrows the
scope of the right to marriage as guaranteed under the current Art. 36(1) which provides that
“Marriage shall be based on equality of rights and free will of spouses” without implying that
marriage can be agreed only between opposite sexes.
- 13 - CDL-AD(2017)013
60. With regard to the right to marry in particular, the Venice Commission in its opinion on the
constitutional reforms of Armenia held that the provisions of the equality of marriage should not
be interpreted to exclude the recognition of the union of persons with the same sex17
.
61. The Committee on Economic, Social, and Cultural Rights of the United Nations calls upon
member states to legally recognize the relationships between same-sex partners18. Likewise,
the ECtHR has held that the European Convention on Human Rights (ECHR) requires member
states to provide legal recognition for same sex couples; non-recognition of the legal status of
relationships between same-sex partners appears to amount to a violation of Article 8 and
Article 14 ECHR19
. In the case of Schalk and Knopf v. Austria, the European Court, after having
observed that marriage has deep rooted social and cultural connotations which may differ
largely from one society to another, it reiterated that it must not rush to substitute its own
judgment in place of that of the national authorities, who are best placed to assess and respond
the needs of society20
.
62. As of March 2017, thirteen European countries legally recognize and perform same-sex
marriage, namely Belgium, Denmark, Finland, France, Iceland, Ireland, Luxembourg, the
Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom. An additional fourteen
European countries legally recognize some form of civil union, namely Andorra, Austria,
Croatia, Cyprus, the Czech Republic, Estonia, Germany, Greece, Hungary, Italy, Liechtenstein,
Malta, Slovenia, and Switzerland21
.
63. Under the current Constitution of Georgia, the introduction of same-sex marriage by law (or
by constitutional interpretation) would comply with the Constitution. This solution – to let the
ordinary legislator decide – is satisfactory and preferable in that it leaves more room for future
developments in this matter. If the draft amendments now explicitly exclude same-sex
marriage, it should be clarified that this does not apply to same-sex partnerships. Georgia like
any other CoE member state is obliged to comply with ECHR standards and therefore must
provide legal recognition (such as civil unions or registered partnerships for same sex couples).
The wording of Article 30 (1) of the draft amendments does not exclude the introduction of civil
partnership (for same sex couples and for mixed sex couples) under the Georgian Civil Code,
and should in no case be interpreted as prohibiting same sex partnership
საკონსტიტუციო ცვლილებების პროექტის განხილვა, ვენეციის კომისიის დასკვნა - დებატები (ერთიანი თემა)
