ANALYSIS OF THE CONCLUSION OF THE PLENUM OF THE CONSTITUTIONAL COURT IN RELATION TO THE VIOLATION OF THE CONSTITUTION BY THE PRESIDENT OF GEORGIA AND INTERNATIONAL PRACTICE

ანოტაცია

From 2013 until the present, the dispute on the separation of competencies between the leaders of the state government has been ongoing in political life, as well as on an international scale in the field of foreign relations. The field of foreign relations is of national importance and is directly related to the state’s image and foreign policy. The conclusion of the international treaties, as well as the appointment of the ambassadors and representation of the state, has become the subject of dispute at various times. State representation by the President in foreign relations has led to a Constitutional Reference submitted by the Parliament of Georgia to the Constitutional Court of Georgia, alleging a violation of the Constitution by the President for the first time in the country’s history. As a result, according to the conclusion of the Constitutional Court of Georgia dated October 16, 2023, President Ms. Zurabishvili violated the Constitution of Georgia by exercising representation powers without the consent of the Government.

Based on the above, this thesis will analyze the meaning of the representation power in foreign relations, the President’s constitutional status, and the President’s role in foreign relations, acting as the socalled “neutral arbitrator”. This thesis will include a discussion on the roles of the Parliament and the Constitutional Court of Georgia in the political-legal process of Presidential impeachment proceedings. It will also examine the conclusions and decisions of Constitutional Courts in various states regarding alleged constitutional violations by Presidents and disputes over competence.

Keywords: Field of foreign relations, the President, the Parliament, violation of the Constitution, Impeachment

Introduction

Pursuant to the Conclusion of the Constitutional Court of Georgia dated October 16, 2023, President Zurabishvili violated the Constitution of Georgia.[1] The Court found that on August 31, September 1, and September 6, 2023, during her international working visits abroad, the President of Georgia exercised her representation power in the field of foreign relations without obtaining the consent of the Government of Georgia. This action represented a violation of Article 52(1)(a) of the Constitution of Georgia, thereby resulting in a violation of Article 48 of the Constitution of Georgia.[2]

The role of the President of Georgia in the system of separation of powers shall be discussed based on the systemic analysis of the President’s powers. The role of the head of state, embodied by the President, is characteristic of all models of republican governance. The powers of the head of state vary among presidential, parliamentary, and semi-presidential governance models. However, the essence of these different governance models and the separation of powers does not imply leaving any institutions without functions. As a constitutional institution, the President holds the status of head of state. Therefore, representing the President solely as the “State Notary”[3] does not correspond to the essence of the parliamentary governance model.

In relation to the alleged breach of the Constitution by the President of Albania, the Venice Commission argued that in parliamentary regimes, public authority is granted the highest status not because it represents the strongest “authority” but because the objectives it must achieve are considered of greater importance compared to party politics.[4] On the other hand, to achieve these specific objectives, Constitutions grant the President specific powers, whether formal or essential. When executing these powers, the President should not only act impartially but also be perceived as doing so.[5]

The President should benefit from institutional independence in the parliamentary governance model, where power strongly depends on the executive and legislative pillars. This allows her/him to exercise the functions of a neutral arbitrator as the head of state, simultaneously safeguarding state unity and national independence. The President is fully distanced from exercising foreign politics, whereas the Government is the sole institution for exclusively exercising foreign politics, and the Government may grant the President the power to exercise foreign politics. The President is a fully apolitical figure, and her activities are not shaped by the political interests of specific political groups, whether the ruling party or opposition powers. This stands in contrast to the executive authority, which is formed by the political party that has won the parliamentary elections in the parliamentary governance model. The President is a wholly apolitical figure, and her/his actions are not influenced by the political interests of any particular group, be it the ruling party or opposition factions. This starkly contrasts the executive authority, which is comprised of the political party that emerges victorious in parliamentary elections within the parliamentary governance model.

1. Representation Powers of the President of Georgia

Georgian legislation does not define the meaning of representation in foreign relations. The Constitution is a dynamic document, with every reform corresponding to the existing political-legal reality. Given its “dynamic nature”, it is challenging to comprehensively define the meaning of representation and its potential scenarios, as various actions may fall under this function over time. For instance, with the advancement of communication technology and political leaders’ use of social platforms to express their opinions, representation methods have evolved. Thus, when exercising representation, the head of state employs traditional means like phone calls, personal representation, or meetings and utilizes any form of virtual or written expression where the President is depicted as the head of state both domestically and internationally.

It has been subject to interpretation whether any activity of the President is related to foreign affairs. The systematic interpretation of the Constitution of Georgia and the correct interpretation of the state’s existing governance model address this question. Not all powers of the President that imply the involvement of the President in the foreign affairs field require the Government’s consent – only those powers shall be subject to the Government’s consent related to the exercise of foreign policy. Therefore, the following powers shall be separated from one another: the powers that directly imply the foreign policy and those that do not relate to the foreign policy but correspond to the foreign policy implemented by the Government.

The representation power of the President is inherent for the head of state, therefore, the President exercises such power internally within the state, as well as abroad - the President is a state representative in the field of foreign affairs, as well as internally in the “internal field”. The President’s representation of the state may or may not be directly related to exercising the parliamentary governance model. It is evident that in countries with parliamentary governance models, the Government carries out foreign policy. Without an agreement with the Government, the exercise of foreign policy will violate the Constitution. The President’s working visits abroad took place in those countries where such visits serve the purpose of European integration envisaged by the Constitution. To determine whether the President has violated the Constitution, it was crucial to clearly define the contextual component, as the President’s representation cannot automatically be interpreted as the implementation of foreign policy.

No Constitution of a European country indicates that the President’s representation requires the consent of the Government. The agreement or consent mechanism is automatically implied when exercising foreign policy, as the model of parliamentary governance does not support the existence of so-called “bicephalic” foreign affairs. If the parliamentary governance model is present in a country, it implies that the conclusion of an international treaty or the conduct of any negotiation cannot be achieved without the involvement of the Government. This is because it arises from the exercise of foreign policy, which cannot be carried out independently by the President, who is tasked with the function of a neutral arbitrator. Hereby, it is evident that the President, holding the function of a neutral arbitrator, is provided with the symbolic authority to meet the head of state, conduct communication with such persons in any form, express her opinions or make statements, meet those persons on the territory of Georgia as well as abroad within the scope of her apolitical and neutral mandate.

The meaning of representation and whether certain international visits abroad constituted the exercise of foreign policy, along with the main topics and outcomes of such meetings and their contents, should have been the subject of the Court’s discussion. Pursuant to the dissenting opinion presented by the Justices of the Constitutional Court, in particular, Justice Irine Imerlishvili, Justice Giorgi Kverenchkhiladze and Justice Teimuraz Tughushi, in relation to the Conclusion of the Plenum of the Counstitutional Court of Georgia dated 16 October 2023, along with the existence of formal consent of the Government of Georgia, the Constitutional Court was required to determine the contextual nature of the working visit, particularly, whether the President had overridden the scope of her powers through such visit and/or whether she had breached the exclusive power of the Government in relation to the execution of the foreign policy.[6]

The above issue is of crucial importance, as it is possible, for instance, that the President had carried out her working visits with the consent of the Government, although the content of such meetings could have been non-compliant with the direction of foreign policy chosen by the Government. In a scenario where formal consent had been obtained, even though the context of the meeting was not compliant with the Government’s position, the President would have violated the Constitution. The Constitution of Georgia not only formally determines the requirement of the consent of the Government of Georgia for the President’s exercise of her representation powers related to foreign affairs. Not only is the working visit subject to the Government’s approval but also, when exercising representation powers, the position expressed by the President is of crucial importance since representation does not only imply meetings with foreign leaders and leaving the country. If the same logic is applied, it is conceivable that the President could have exercised her representation powers while in Georgia. This exercise of authority could have been directly connected to executing foreign policy duties. In such a scenario, regardless of whether the Government had given its consent, the President’s actions might have led to the articulation of a stance that diverged from the official position held by the Government.

The “unauthorized” formal working visit of the President may not be related to the exercise of the foreign policy. Working visit abroad is a form of representation, but it does not constitute the only form thereof. The so-called “unauthorized working visits” were conducted by the President in the previous years as well – those visits were discussed during the President’s annual hearing at the Parliament,[7] which was followed by the statement of the ruling team.[8] The President stated that on 26 February 2022 she was refused by the Government to conduct international working visits in Paris, Warsaw, Brussels and Berlin, thus, she cancelled all of the official formats and “transformed” working visits into the private meetings, whereas such restrictions were inflicting damages to the state.[9] The Government’s refusal addressed to the President’s visits, was not substantiated.

The dissenting opinion states that “foreign affairs constitute a complex discipline that intends ensuring various different interests of the state, which entails matters related to the state security, economic development and well-being, protection of the human rights and freedoms and etc”.[10] Further, “the purpose of the foreign policy and the impact thereof on the state’s foreign positioning is of essential importance, whereas the place of the exercise of the foreign policy lacks such importance”.[11]

Pursuant to the opinion of the representatives of the Parliament, Article 52(1)(“a”) of the Constitution entails all forms of representative powers and does not leave out any scenario wherein the President can exercise such authority without the consent of the Government, the existence of the consent is mandatory, and the Constitution of Georgia entails no exceptions in this regard.[12] The representatives of the Parliament argued that the defective practice that exists in the mandatory nature of the Government’s consent in relation to the exercise of the representation powers internally within the state is problematic, the practice of requesting and granting consent is not established and requires to be corrected.[13] Does the latter mean that the representation is divided into internal and foreign representations? Would such an approach be acceptable? We believe that it would not be acceptable. The representation lacks a definition on the legislative level, and the requirements for representing the state internally are unclear, necessitating further clarification. It is evident that throughout the years, the President did not require any approval from the Government, and such approvals were obtained only for international working visits.

The Conclusion of the Plenum states that representation by the President entails acting on behalf of the people in any form and before the subjects of international law, various countries, international organizations, their representatives, as well as “any other case, the applicability of which to the requirements of Article 52(1)(a) shall be resolved on a case-by-case basis”.^[14] Therefore, the Conclusion of the Plenum does not entail exhaustive list in terms of defining the representation in the field of foreign affairs and highlights that the exercise of the representation authority by the President shall be resolved on a case by case basis. Due to the fact that the legislation does not define what is meant under the representation within the scope of the Constitution, the sole body that is entitled to define this matter is the Constitutional Court itself. For example, would the refusal of the President of Georgia to engage in phone communication with the President of a foreign state be considered as intended to protect the Constitution [without the respective consent of the Government]? Furthermore, in terms of expressed politics, would the following two scenarios be assessed identically: communication with the President of a European state initiated by the respective President of such European country and phone communication between the President of Georgia and the leader of the occupying country initiated by the leader of the occupying country? How would these two scenarios be assessed without consent from the Government of Georgia? In what format should the President apply for the Government’s consent regarding any statement that may be made pertaining to events taking place in the world? For example, it can be theoretically discussed that the President was also in breach of the Constitution when meeting leaders of various countries on the territory of Georgia, participating in phone communication, or disclosing information on social media channels, all of which represent forms of the President’s representation provided that the President had not obtained the respective approval of the Government of Georgia.

2. Standard of the Powers of the President in Georgia in the Field of Foreign Affairs

Are the President’s authorities in the field of foreign affairs limited to Article 52(“a”) of the Constitution of Georgia? The answer is no, since apart from the authorities listed in this Article, other necessities may require the President’s involvement in foreign affairs that do not necessarily entail carrying out foreign policy. In the dissenting opinion, the justices discuss matters pertaining to foreign affairs but do not solely involve the execution of foreign policy. In particular, “Article 52 of the Constitution of Georgia sets forth certain exclusive authorities of the President of Georgia, the exercise of which may, among other things, require the President of Georgia’s participation in the foreign affairs field. For example, when exercising these exclusive authorities, the President of Georgia may need to hear and analyze the opinions of various international organizations and communicate with different international actors in various forms, which undoubtedly requires no consent from the Government”.[15]

The title of Article 52 of the Constitution of Georgia reads as follows: “Powers of the President of Georgia”; therefore, the purpose of this Article is to determine the scope of the President’s powers, albeit not exhaustively. Pursuant to subsection “I” of the first part of the said Article, the President of Georgia, apart from the listed and determined powers, also “exercises other powers set out in the Constitution”. The latter wording is absolutely clear, as it is not possible to determine the detailed list of the President’s powers, given that the Constitution reflects only general norms establishing the general framework and competencies of constitutional bodies. Subsequently, constitutional bodies may further exercise certain authorities within the scope of such general powers and the legislative framework.

It is noteworthy that pursuant to Article 52 of the Constitution of Georgia, the President “exercises other powers set forth in the Constitution” and not “the powers set out in this Chapter”.[16] The latter confirms the fact that certain powers that are not exhaustively specified in Article 52 may be held by the President as immanent deriving from the status and governance model. For example, the Constitution of Georgia neither indicates that the President is a neutral arbitrator (for instance, does that one of the functions of the President is to defuse conflicts or crisis), nor does it define what is meant under the symbolic and ceremonial powers of the President. Despite the foregoing, the President acting in her capacity as the constitutional body may exercise any authority solely within the scope of the Constitution. Hence, certain powers may be derived not necessarily from Article 52 of the Constitution but from other Articles, whereas any action that exceeds the scope of Article 52 shall be derived from other provisions of the Constitution. The provisions governing various fields may be found in different chapters of the Constitution, for example, Article 78 determines the obligations not only of the President but generally the obligations of the constitutional bodies to adopt any and all measures for the purposes of ensuring integration in the European Union and the North Atlantic Treaty Organization within the scope of their respective powers.

3. Requirement to Obtain the Consent of the Government of Georgia in the Field of Foreign Affairs

The powers of the President of Georgia in the field of foreign affairs that are determined under Article 52(1)(“a”) of the Constitution are exercised in agreement with the Government, except for the power to appoint the ambassadors (wherein instead of “consent” “reference” is indicated). Therefore, the President of Georgia requires the consent of the Government (acting in its capacity as the collegial body) to conduct negotiations with other states, international organizations, conclude international treaties. Based on the consent of the Government of Georgia, the President engages in the process of exercising foreign policy, which is reflected in the process of conducting negotiations by entering into agreements and etc. The said powers, as indicated in the dissenting opinion, cannot be arbitral and ceremonial since the exercise of these powers results in the consequences for the state.[17]

Exercise of the President’s arbitral functions requires certain political independence of the head of state, as “should the President require the consent of the Government of Georgia on each occasion when the President intends to express her position on the foreign political arena, the said position would always be seen as the opinion of the Government of Georgia (in those scenarios as well where deriving from the foreign policy strategy, the Government of Georgia prefers to have the President divulge the said position). The requirement to request formal consent of the Government of Georgia to carry out the abovementioned activity would alter the function of the President and would make the action of the President acting in her capacity as the politically unbiased head of state meaningless.[18]

The Government of Georgia is a collegial, supreme executive body, and it is responsible for certain actions or decisions resulting from the exercise of foreign policy. Therefore, all constitutional bodies shall comply with the foreign policy adopted by the Government.

It is evident that generally, there is a possibility that the President of Georgia damages, imposes a threat to the foreign policy carried out by the Government, provided, however in the particular working visit organized by Ms. Salome Zurabishvili, it cannot be determined whether and how President damaged or hindered the exercise of the foreign policy implemented by the Government of Georgia. Neither the Decision of the Constitutional Court, nor the dissenting opinion entail any evidence that „the President of Georgia has revealed certain messages that are against the foreign policy of the Government of Georgia and/or has spoken on the matters that have somehow exceeded her ceremonial role (acting in her capacity as the head of state) and/or has carried out any activity, that has damaged the foreign policy of the Government of Georgia”.[19] As indicated in the dissenting opinion, throughout the above-mentioned visits the President discussed the matters related to the European integration that were provided by the Ministry of the Foreign Affairs of Georgia.[20] With respect to the content of the meeting, neither the decision of the Constitutional Court, nor the minutes of the hearing indicate that the messages disclosed by the President were contrary to the foreign policy set forth by the Parliament or executed by the Government of Georgia or contrary to the values of the Constitution.

4. Obstruction of the Exercise of the Foreign policy

In relation to the three disputed working visits of the President, the representative of the Government of Georgia stated that „since they are not aware of the content of the meeting, they are unable to indicate which damages could have been inflicted as a result of the actions of the President”[21]. Therefore, the content of certain meetings that should have been important evidence to the Court to render the judgment is unknown. On the basis of the general information, the position of the President and her statements evidence her support for the country’s path to European integration. In this scenario, the Parliament’s intention to remove the President from the position relates to the formal „objection“.

Neither the question of whether the President has conducted negotiations on certain issues resulting in the conclusion of an international treaty nor whether the President has made a statement during certain international meetings that have damaged the country’s interests and European integration has been confirmed. Other reasons that could have been supported by evidence have also not been confirmed. It is noteworthy that the President’s working visit abroad alone should not be construed as a violation of the Constitution, but the content of the speech, which may not require the working visit abroad. When visiting Georgia, the President of a foreign country may request a meeting with the President of Georgia, wherein the President’s statements and the respective messages will be relevant.

The ground for the functioning of the President of Georgia as the constitutional body is the status of a neutral arbitrator, wherein the President should not fear that if every move is not agreed upon with the Government, such moves will be considered a violation of the Constitution. In such circumstances, the head of state will fail to be proactive and productive to protect the state interests. The Constitutional Court requires strong substantiation to prove the existence of a criminal offence or violation of the Constitution. The Court had to assess which particular violation was committed by the President and on what basis of legal argumentation.

5. Degree of Violation of the Constitution of Georgia and Intensity thereof

For the Conclusion of the Constitutional Court, is the nature of the violation, degree, intensity and severity thereof of crucial importance? The violation of the Constitution by the state official must be legally substantiated based on certain arguments and the respective authentic evidence since the final decision of the Parliament is based on political motives. Therefore, the Court is the only impartial body participating in the impeachment procedure, and its legal analysis is the sole impartial analysis on this issue. As stated by the authors of the Constitutional Reference, the President had deliberately and materially violated the Constitution.[22] The Conclusion of the Plenum reads that the authors of the Constitutional Reference expect from the Court the „confirmation of the fact that the Constitution has been violated, wherein the following aspects: intention as to the violation, severity, motivation, outcome and other factors relevant when adopting a political decision by the Parliament (if the Constitutional Court had confirmed the violation of the Constitution by the Parliament), should not have been taken into account”.[23]

On the one hand, the authors of the Constitutional Reference regard the President’s working visits abroad (without obtaining the consent of the Government), as a severe, serious violation, provided that, on the other hand, they urge the Constitutional Court not to take into account „the intention as to the violation of the Constitution, severity, motivation, outcome and other subjective and objective factors”, since they consider it more appropriate to assess the above-mentioned during the adoption of the political decision by the Parliament. The function of the Constitutional Court is to assess whether a violation exists and whether that violation is severe and serious enough to serve as the basis for confirming a breach of the Constitution. For example, the Venice Commission, when discussing the impeachment of the President of Albania, notes in its amicus curiae opinion, that the President may violate the Constitution, however the „severity” of such violation shall be determined.[24]

Pursuant to the statements made during the court hearing, the working visits of the President were based on the notion of European integration enshrined in Article 78 of the Constitution of Georgia, whereas reinforcement of the European choice represents an obligation of each Constitutional body. Hence, the working visits organized by the President were derived from the policy implemented by the Government of Georgia in relation to European integration. On the other hand, the working visits may be formally held with the consent of the Government, although facts or information disclosed during the meeting may damage state interests and may be contrary to the Constitution. Therefore, the mere fact of a formal working visit should not serve as grounds for confirming a violation of the Constitution by the President.

Pursuant to Article 26(4) of the Organic Law of Georgia “on the Constitutional Court of Georgia”, the Court solely assesses the activity that is considered as the reason/ground for initiating impeachment proceedings by the respective members of the Parliament. As noted by Joni Khetsuriani, “When assessing the constitutionality of the actions of the officials, the Constitutional Court shall rely on the results of examination of the characteristic aspects of the constitutional violation (delict), (such as subject, object, subjective part, objective part) and make the respective conclusion on whether the official has violated the Constitution thereafter”.[25] Joni Khetsuriani also explains that the Parliament of Georgia possesses discretionary power to remove the official from the position, hence, when imposing constitutional sanction the Parliament acts based on political motives and not the legal criteria.[26]

If we examine the Constitutions of some European countries, we will notice that the impeachment procedure in relation to the President shall not be initiated in the event of a mere violation of the Constitution, but such action may only be pursued when there is a deliberate violation of the Constitution, not for less severe or minor offences. Pursuant to the Constitution of Germany, Bundestag and Bundesrat are entitled to carry out impeachment of the President before the Federal Constitutional Court in the event of a severe violation of the Constitution or other federal law.[27] According to the Constitution of Italy, the President is not liable for the actions carried out within the scope of the exercise of the President’s authorities, save for the state treason or violation of the Constitution.[28] In the impeachment proceedings against the President, sixteen members elected by lot from the list of citizens qualified to be elected in the Senate (this list being prepared by the Parliament every nine years after the elections, using the same procedure employed when appointing the justices), shall participate alongside the regular justices of the Constitutional Court.^[29] According to the Constitution of Lithuania, the President may be removed from office in the event of gross violation of the Constitution, breach of the oath or commitment of a crime.[30] Pursuant to the Constitution of Albania, the President may be removed from office on the basis of the serious violations (in plural) of the Constitution and commitment of a serious crime.[31]

6. International Practice on the Impeachment of the President

Italy represents an example of an “unauthorized” representation of the state by the President.[32] Vice Prime Minister Luigi di Maio caused an escalation of the relationship with France since he accused the Government of France of conducting an ultra-liberal policy[33] and supported the so-called movement of yellow jackets which protested the decisions adopted by the Government of France in the economic field.[34] The Foreign Affairs Minister was asked to resolve the crisis, although the Minister’s involvement was not convincing for the President Emmanuel Macron, thus, the President of Italy Mr. Sergio Mattarella made a statement which was followed by the telephone call between the Presidents of Italy and France, that was not agreed upon with the Government of Italy. The telephone call resulted in the improvement of the diplomatic relations between the countries and the deepening of the mutual relations in various aspects (such as the working visit of the French Ambassador in Italy and handing over the invitation of the President of France to the President of Italy in relation to the working visit in France).[35] The Presidents even met on several occasions, which became the ground for the conclusion of the treaty on “strengthened mutual cooperation”, which was affirmed by the signatures of the Prime Minister of Italy and the tripartite signatures of the following parties: the President, Prime-Minister and Foreign Affairs Minister of France.[36] The action of Italy’s President, who has been granted “ceremonial” powers based on the Constitution, has saved the country from the crisis in relation to the diplomatic relations with France.[37] “The above-mentioned is a clear example that the parliamentary governance model is also provided with a possibility to affect the foreign policy processes through the President’s statements, without carrying out foreign policy”.[38]

In relation to the violation of the Constitution, the Conclusion of the Constitutional Court of Lithuania refers to the violation of the Constitution by President Rolandas Paksas.[39] The violation entailed the illegal awarding of citizenship to the Russian businessman Yury Borisov, disclosure of the confidential information and usage of the office for financial gains.[40] Pursuant to the conclusion of the Constitutional Court dated March 31, 2004, not all violations of the Constitution are gross violations, as well as the Seimas (Parliament) is not entitled to decide whether the President has grossly violated the Constitution.[41]

The Court explains that the determination of the violation of the Constitution is subject to legal and not political assessment. The fact of the existence of the gross violation may be only determined by the Constitutional Court, and the interpretation that Seimas is allowed to determine the fact of the violation of the Constitution lacks legal substantiation since the legal matter of whether the President has grossly breached the Constitution, may be discussed by the judicial authority, which is constituted based on the professional characteristics, and not by Seimas which represents a political body, the decisions of which reflect the political will of the majority of the members of the Parliament.[42]

Removal of the President from her office represents a constitutional sanction for gross violation of the Constitution, and only Seimas may make such a decision. Further, the Constitution does not refer to the power of the Seimas to object to, amend or make the Conclusion of the Constitutional Court doubtful.[43] The Court explains that during the impeachment procedeeing at Seimi, the evidences are not examined, which either confirms or objects to the fact that the President has grossly breached the Constitution but it is the state’s constitutional obligation to examine certain actions and asses whether these actions contradict the Constitution.[44]

Application submitted by the Chairman of the President of Albania – Gramoz Ruci, to the Venice Commission in the context of the impeachment of the President, which was derived from the fact of cancellation/postponing of the local elections by the President.[45] The President selected the date to conduct the local elections (such date being June 30, 2019), which resulted in preparation for the elections, the creation of a committee, the publication of the list of citizens allowed to participate, the commencement of the election campaign, and so forth.[46] The main opposing parties have relinquished their mandates, departed from Parliament, and boycotted the elections. According to their opinion, there was organized crime aimed at fabricating the parliamentary elections in 2017, the central elections committee was unlawfully appointed, and their rights to create investigation committees were violated.[47]

Given the crisis, the President offered to postpone the elections “in accordance with the wishes expressed by the political parties” and urged all local and international actors, whether non-governmental or international organizations, to participate in restoring dialogue. However, in the end, the President solely postponed the elections.[48] The Central Elections Commission stated that by postponing the elections the President exceeded his competency and his act was of no legal effect, although the elections were held without participation of the opposition and 21,6% of the electorate participated therein.[49] The President stated that he postponed the elections since it would be non-democratic without the participation of the opposition parties, as well as he was afraid of the violent attacks and tensions during the elections.[50] The above-mentioned processes were followed by the impeachment request in relation to the President and the creation of the special investigative committee.[51]

The Venice Commission noted that the legitimate purpose of postponing the elections was to prevent potential conflicts and defend democracy. However, despite the President pursuing a legitimate purpose, the Constitution did not determine the President’s general authority to postpone the elections and appoint a new date respectively. Thus, the President had exceed his scope of competency.[52] Pursuant to Article 90 of the Constitution of Albania, the President may be removed from office via impeachment procedure if there is a gross/severe violation of the Constitution and commitment of a serious crime.[53] The Commission stated that the Constitutional Court should have determined whether the above-mentioned was a violation of the Constitution and, if determined, whether this violation was sufficiently “serious” for the purposes of justifying impeachment under Article 90 of the Constitution of Albania.[54] The Commission argued that the Parliament had to decide whether the impeachment of the President would reduce or increase the tensions in a scenario where one party was dominating in the Parliament and every municipality.[55] Ultimately, the Constitutional Court had to determine whether the actions of the President indicated serious breach that enabled the impeachment by the President, hence, the Venice Commission noted that even if the Court had determined the existence of the “serious violations of the Constitution”, the Parliament had to refrain from this process.[56]

The Venice Commission also noted that various factors were indicating that there was no serious violation of the Constitution by the President since the President was urging the parties to have a dialogue, was trying to achieve an agreement between the parties, postponing the elections could, in fact, assist the parties in reaching a compromise, cumulative actions of the President could have been sufficient to conclude that postponing of the elections fail to meet the necessary criteria of the serious violation that would justify the impeachment.[57] Finally, the President’s impeachment procedure failed to be commenced due to insufficient votes of the members of the Parliament.[58] The investigation committee determined that there was no trustworthy evidence to prove that by postponing of the elections the President violated the Constitution, as a result, the members of the Parliament supported the recommendations of the Venice Commission.[59]

The so-called “second round” of the impeachment was related to the unsuccessful procedure of the impeachment in relation to the President of Albania, provided that at this time the accusations were concerning the statements of the President made before and during the elections.[60] The members of the Parliament supporting the impeachment stated that the actions of Meta have resulted in the political non-stability in Albania, he made politically biased statements prior to the commencement of the election campaign, he supported violence and failed to fulfil the Constitutional obligation acting in his capacity as the head of state and the protector of the national unity.[61] Ultimately, the Court held that the evidence submitted against Meta fail to prove “gross”[62] and “severe violations”[63] of the Constitution.

Another interesting case pertains to Poland. In 2009, the Constitutional Tribunal decided in relation to Poland’s representation in the European Council, in particular, President Lech Kaczyński was of the opinion that in the session of the European Council dedicated to the financial crisis, energy security etc. held in Brussels on October 15-16, 2008, whereas the Prime-Minister Donald Tusk considered this matter as the Government’s competence.[64] The President was denied state fleet for the purposes of travelling to Brussels, although in the end the President participated in the hearing held at the European Council together with the Prime-Minister.[65] Thereafter the President applied to the Constitutional Tribunal in relation to the dispute on competence between the President and Prime-Minister of Poland pertaining to the representation on the sessions of the European Council.[66]

In his argument, the Prime Minister noted that the Council of Ministers is responsible for implementing both internal and external policies of Poland, whereas “representation” in various forms may not necessarily be linked to policy implementation, although he struggled to present a scenario wherein the President was representing Poland in an international arena without it being considered an element of foreign policy, he failed to name the forms of the President’s representation that would be separate from foreign policy.[67]

The analysis of the Constitution directed the Tribunal to the conclusion that the Constitution differentiates between the President’s role as the “supreme representative of Poland” and his role as the “state representative in foreign affairs”.[68] The President lacked the authority to exercise the foreign policy independently, since that power belonged to the Council of Ministers and the said Council had competence over the state affairs that did not belong to the authorities of other state bodies”.[69] The affairs of the said category may include the relations between Poland and the European Union, which does not represent foreign policy in its classical sense and that is also not being considered as the matter of internal policy in its traditional understanding.[70] The Court has interpreted that the President may decide whether to participate in a certain session of the European Council if it considers that this might be beneficial for the purposes of exercising the President’s authorities envisaged under Article 126(2) of the Constitution referring to the protection of the Constitution, state sovereignty, as well as the territorial integrity and its unity.[71] The President’s participation in the sessions of the European Council requires cooperation with the Prime-Minister and the competent Minister, as well as consistent relationship with the European Union on behalf of Poland.[72]

The Court concluded that the Prime Minister was entitled to represent the European Council and express Poland’s respective position, whereas, in exceptional circumstances where the European Council discusses the matters that fall within the scope of the competence of the President, the President may decide whether to represent Poland before the said institute, although the President will be obliged to present the position determined by the Government.[73]

The final conclusion of the Constitutional Tribunal may be construed as follows: pursuant to the Constitution of Poland, the cooperation obligation lies with the President, Council of Ministers and the Prime Minister when exercising Constitutional obligations and authorities.[74] Further, the Prime Minister is obliged to inform the President on the subject matter of the sessions of the European Council and the position of the Council of Ministers, the President is required to get familiarized with the said position determined by the Council of Ministers and inform the Council on the intention to participate in the certain session of the European Council, therefore, mutual readiness and adherence to the participation rules under the respective agreements shall be required.[75]

The Conclusion of the Tribunal entails dissenting opinion. Justice Teresa Liszcz states that the status of Poland’s supreme representative comprises the President’s right to be at any place wherein the events are surrounding Poland.[76] As the supreme representative of Poland and the guarantor of uninterrupted state authority, the President acts independently from the Council of Ministers, this independence primarily pertains to actions that lack legal effect and do not necessitate the adoption of official acts and includes participation in sessions of the political bodies of the European Union.[77] In order for the President to be able to perform the obligations set forth in the Constitution, the President shall be made aware of the political plans of the European Union that are established during the sessions of the European Council, thus, the President is entitled to obtain information on these matters, as well as the President’s status as the supreme representative excludes his participation in the sessions of the European Council with the consent of the Prime-Minister.[78] Alike the Constitutional Tribunal, Teresa Liszcz excludes the fact of presenting different positions by the President and the Government on the forum of the European Council, as well as on any other forum.[79] Pursuant to the opinion of the Justice Teresa Liszcz, for the purposes of cooperation, the President shall be regularly informed by the Council of Ministers on the dates of the sessions of the European Council and all matters to be discussed thereon, so that the President is able to participate in the session and submit the respective position to the Council of Ministers on the agenda of the session.[80]

Pursuant to the dissenting opinion of Justice Miroslav Granat, Poland’s representation in the European Council requires maintaining the simplest forms of cooperation (dialogue) between the Prime-Minister, Council of Ministers and the President that belong to the so-called pre-constitutional tradition and does not necessarily require legislative regulation.[81] The President acting in his capacity as the supreme representative and the guarantor for the uninterrupted state authority that ensures to protect the unity of the Constitution, sovereignty and territorial integrity, shall be able to decide on the matter of representation in the session of the European Council without seeking approval from any other body of the state.[82]

The Venice Commission explains that it is often complicated to determine where the legal substantiation ends and the political argument begins.[83] The Conclusion of the Plenum reads that by relying on international practice, the Constitutional Court of Georgia applies the “standard of clear and convincing evidence”.[84] The legal conclusion of the Constitutional Court shall indeed rely on the cumulation of the clear and convincing, trustworthy evidence and the Court itself shall discuss to what extent the violation is serious to issue positive legal opinion on the removal of the President from the office, since the Parliament indeed relies on the Court’s legal conclusion.

Conclusion

Pursuant to the Conclusion of the Plenum of the Constitutional Court of Georgia, “exercise of the representation authority by the President without obtaining approval of the Government shall always be considered as the violation of Article 52(1)(“a”), irrespective of whether the statements made or positions supported by the President, or whether public statements or actions comply with the vision or tactics of the Government of Georgia on the particular matter or do not comply with the said vision or tactics”.[85] The said interpretation limits the representation authority of the President in the field of foreign affairs and the arbitral role of the President. The public statement made by the President may also be seen as a representation, whereas the statement made by the President may not be related to the execution of the foreign policy and, on the contrary, based on broad interpretation, any statement made in the field of foreign affairs may be directly or indirectly related to the execution of the foreign policy, that makes the impeachment procedure a mechanism for controlling and limiting the President. The Court’s decision does not exhaustively explain the meaning of foreign representation when the Court indicates that the execution of foreign policy without obtaining the Government’s prior consent constitutes a breach of the Constitution by the President. If the said logic is followed, it can be concluded that the President of Georgia has violated the Constitution of Georgia on several occasions, such as when she made a public statement that was not agreed upon with the Government of Georgia.

Convergence between formalism and content is crucial. It is possible that when obtaining formal consent from the Government of Georgia, the President might make “pro-Russian” statements instead of pursuing the European Integration path when exercising representation authority. If the content of the President’s speech is not decisively considered by the Court, in a hypothetical scenario, only the formal requirement will be adhered to, and the contextual component will be disregarded and unassessed. In this particular scenario, would the President violate the Constitution? The Court’s interpretation considers the following scenarios as equal: when the President exercises representation authority independently and acts within the scope of the foreign policy determined by the Government, and when the President exercises representation authority based on formal approval from the Government yet acts contrary to the foreign policy due to the position expressed, resulting in damage to state interests. We believe the aforementioned scenarios are not of the same severity and significance and cannot be considered equal.

The Court upheld the President’s violation of the Constitution without determining and examining the context of those working visits, the severity of the action, and the consequences/outcome of such meetings. When assessing the violation of the Constitution, the Court, whose opinion is precedent, applied a word-by-word method of interpretation and considered the existence of the formal criterion alone sufficient for establishing a violation of the Constitution. We think that the evidence sufficient for confirming the violation of the Constitution was not examined, which is supported by the fact that the contextual nature of the President’s respective meeting was left unassessed.

Bibliography

Normative Acts:

1. The Constitution of Georgia.


2. Organic Law of Georgia on the “Constitutional Court of Georgia”.


3. Basic Law for the Federal Republic of Germany.


4. The Constitution of Italy.


5. The Constitution of the Republic of Lithuania.


6. The Constitution of Albania.

Court Acts:

1. The Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia.


2. Dissenting Opinion of the Constituttional Court Justices Irine Imerlishvili, Giorgi Kverenchkhiladze and Teimuraz Tughushi on the the Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia.


3. Constitutional Tribunal Of Poland, Decision of May 20, 2009, 78/5/A/2009, Ref. No. Kpt 2/08 <http://trybunal.gov.pl/fileadmin/content/omowienia/Kpt_02_08_EN.pdf> [Last access: 05.2024].


4. Dissenting Opinion of Judges Teresa Liszcz and Mirosław Granat to the Decision of the Constitutional Tribunal of May 20, 2009 in the case Kpt 2/08, <https://trybunal.gov.pl/fileadmin/content/omowienia/Kpt_02_08_EN.pdf> [Last access: 18.05.2024].


5. The Constitutional Court of the Republic of Lithuania, Conclusion on the Compliance of Actions of President Rolandas Paksas of the Republic Of Lithuania Against whom an Impeachment Case has been Instituted with the Constitution of the Republic of Lithuania, March 31, 2004, Vilnius, Case No. 14/04 <https://lrkt.lt/en/court-acts/search/170/ta1263/content> [Last access: 18.05.2024].

Scientific Literature and other supporting materials:

1. Gvazava, G., (2016). Across the Constitution – President of the Republic, in the compilation: Chronicles of the Georgian Constitutionalism.


2. Kavelidze, T., (2023). Thesis on the “Authorities of the President and the Government of Georgia in the Field of Foreign Affairs”.


3. The Statement made by the President <https://www.facebook.com/watch/live/?ref=watch_permalink&v=273088481655263> [Last access: 05.2024]


4. The Statement made by the Political Council of the “Georgian Dream – Democratic Georgia” <https://cutt.ly/vwh0P3DU> [Last access: 05.2024].


5. Khetsuriani J., “Power of the Constitutional Court of Georgia in the Process of Impeachment”, „Justice and Law” 2/3(45/46) <https://www.supremecourt.ge/files/upload-file/pdf/martlmsajuleba-da-kanoni-2015w-n2.pdf> [Last access: 05.2024].


6. Albania: Impeachment of the President, Subject to the Meaning of “Serious Violation”, <https://balkansgroup.org/wp-content/uploads/2021/06/Albania_Impeachment-of-the-President_Subject-to-the-meaning-of-Serious-Violation-.pdf> [Last access: 18.05.2024].


7. Biernat, S., ‘Division of Competences in the Field of Foreign Relations in the Polish Constitutional System Stanisław’.


8. Carminati, A., Maccabiani, N., (2022). La prassi del “primo” Mattarella nei rapporti sovranazionali e internazionali, Editoriale Scientifica, Costituzionalismo.it, Fascicolo 2, <https://www.costituzionalismo.it/wp-content/uploads/2-2022-2.-Carminati.pdf> [Last access: 18.05.2024].


9. Endzins, A., (2008). Report “The Role of the Constitutional Court in the System of the Separation of Power” the Venice Commission, 15^th anniversary of the Constitutional Court of Romania Bucharest, December 6-7, 2007, CDL-JU(2007)038, Strasbourg.


10. Opinion on the Score of the Power of the President to set the Dates of Elections Adopted by the Venice Commission at its 120^th Plenary Session (Venice, October 11-12, 2019), <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)019-e> [18.05.2024].


11. <usnews.com> [Last access: 18.05.2024].


12. <constitutionnet.org> [Last access: 18.05.2024].

<www.euronews.com> [Last access: 18.05.2024].

Footnotes

[1] The Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia <https://www.constcourt.ge/ka/judicial-acts?legal=15923> [18.05.2024].

[2] Ibid.

[3] Gvazava G., (2016). Across the Constitution – President of the Republic, in the compilation: Chronicles of the Georgian Constitutionalism, pp. 350-355.

[4] Opinion on the Score of the Power of the President to set the Dates of Elections Adopted by the Venice Commission at its 120^th Plenary Session (Venice, 11-12 October, 2019) <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)019-e> [Last access: 18.05.2024].

[5] Ibid.

[6] Dissenting Opinion of the Constituttional Court Justices Irine Imerlishvili, Giorgi Kverenchkhiladze and Teimuraz Tughushi on the the Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (II-22).

[7] See the Statement made by the President <https://www.facebook.com/watch/live/?ref=watch_permalink&v=273088481655263> [Last access: 18.05.2024].

[8] See the statement made by the Political Council of the “Georgian Dream – Democratic Georgia” <https://cutt.ly/vwh0P3DU> [Last access: 18.05.2024].

[9] See the Statement made by the President <https://www.facebook.com/watch/live/?ref=watch_permalink&v=273088481655263> [Last access: 18.05.2024].

[10] Dissenting Opinion of the Constituttional Court Justices Irine Imerlishvili, Giorgi Kverenchkhiladze and Teimuraz Tughushi on the the Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (III-23).

[11] Ibid (II-24).

[12] The Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (II-17).

[13] Ibid.

[14] Ibid (III-46).

[15] Dissenting Opinion of the Constituttional Court Justices Irine Imerlishvili, Giorgi Kverenchkhiladze and Teimuraz Tughushi on the the Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (II-17).

[16] Chapter IV of the Constitution of Georgia with the title “President of Georgia”.

[17] Dissenting Opinion of the Constituttional Court Justices Irine Imerlishvili, Giorgi Kverenchkhiladze and Teimuraz Tughushi on the the Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (II-15).

[17] Ibid (III-29).

[18] Ibid (III-29).

[19] Dissenting Opinion of the Constituttional Court Justices Irine Imerlishvili, Giorgi Kverenchkhiladze and Teimuraz Tughushi on the the Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (IV-33).

[20] Ibid (IV-34).

[21] Ibid (IV-35).

[22] Dissenting Opinion of the Constituttional Court Justices Irine Imerlishvili, Giorgi Kverenchkhiladze and Teimuraz Tughushi on the the Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (II-11).

[23] Dissenting Opinion of the Constituttional Court Justices Irine Imerlishvili, Giorgi Kverenchkhiladze and Teimuraz Tughushi on the the Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (II-18).

[24] Opinion on the Score of the Power of the President to set the Dates of Elections Adopted by the Venice Commission at its 120^th Plenary Session (Venice, October 11-12, 2019) <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)019-e> [Last access: 18.05.2024].

[25] Khetsuriani J., “Power of the Constitutional Court of Georgia in the Process of Impeachment”, “Justice and Law” 2/3(45/46), 46 <https://www.supremecourt.ge/files/upload-file/pdf/martlmsajuleba-da-kanoni-2015w-n2.pdf> [Last access: 18.05.2024].

[26] Ibid.

[27] Basic Law for the Federal Republic of Germany, Art. 61 <https://www.btg-bestellservice.de/pdf/80201000.pdf> [Last access: 18.05.2024].

[28] The Constitution of Italy, Art. 90 <https://www.constituteproject.org/constitution/Italy_2012.pdf?lang=en> [Last access: 18.05.2024].

[29] The Constitution of Italy, Art. 135 <https://www.constituteproject.org/constitution/Italy_2012.pdf?lang=en> [Last access: 18.05.2024].

[30] The Constitution of the Republic of Lithuania, Arts. 74, 86 <https://www.constituteproject.org/constitution/Lithuania_2019> [Last access: 18.05.2024].

[31] The Constitution of Albania, Art. 90 <https://www.constituteproject.org/constitution/Albania_2012> [Last access: 18.05.2024].

[32] For the detailed example on Italy please see Kavelidze, T., (2023). Thesis on the “Authorities of the President and the Government of Georgia in the Field of Foreign Affairs”, 142-144.

[33] Carminati, A., Maccabiani, N., (2022). La prassi del “primo” Mattarella nei rapporti sovranazionali e internazionali, Editoriale Scientifica, Costituzionalismo.it, Fascicolo 2, 44-50 <https://www.costituzionalismo.it/wp-content/uploads/2-2022-2.-Carminati.pdf> [Last access: 18.05.2024].

[34] Ibid.

[35] Ibid.

[36] Ibid.

[37] Kavelidze, T., (2023). Thesis on the “Authorities of the President and the Government of Georgia in the Field of Foreign Affairs”, 142-144.

[38] Kavelidze, T., (2023). Thesis on the “Authorities of the President and the Government of Georgia in the Field of Foreign Affairs”, 142-144.

[39] Endzins, A., (2008). Report “The Role of the Constitutional Court in the System of the Separation of Power” the Venice Commission, 15^th anniversary of the Constitutional Court of Romania Bucharest, December 6-7, 2007, CDL-JU(2007)038, Strasbourg.

[40] The Constitutional Court of the Republic of Lithuania, Conclusion on The Compliance of Actions of President Rolandas Paksas of the Republic of Lithuania Against whom an Impeachment Case has been Instituted with the Constitution of The Republic of Lithuania, 31 March 2004, Vilnius, Case No. 14/04 <https://lrkt.lt/en/court-acts/search/170/ta1263/content> [Last access: 18.05.2024].

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] The Constitutional Court of the Republic of Lithuania, Conclusion on the Compliance of Actions of President Rolandas Paksas of the Republic of Lithuania Against whom an Impeachment Case has been Instituted with the Constitution of the Republic of Lithuania, March 31, 2004, Vilnius, Case No. 14/04 <https://lrkt.lt/en/court-acts/search/170/ta1263/content> [Last access: 18.05.2024].

[45] Opinion on the Score of the Power of the President to set the Dates of Elections Adopted by the Venice Commission at its 120^th Plenary Session (Venice, October 11-12, 2019) <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)019-e> [Last access: 18.05.2024].

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Ibid.

[50] Ibid.

[51] Ibid.

[52] Opinion on the Score of the Power of the President to set the Dates of Elections Adopted by the Venice Commission at its 120^th Plenary Session (Venice, October 11-12, 2019) <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)019-e> [Last access: 18.05.2024].

[53] Constitution of Albania, Art. 90 <https://www.constituteproject.org/constitution/Albania_2012> [Last access: 15.03.2024].

[54] Opinion on the Score of the Power of the President to set the Dates of Elections Adopted by the Venice Commission at its 120^th Plenary Session (Venice, October 11-12, 2019) <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)019-e> [Last access: 18.05.2024].

[55] Ibid.

[56] Ibid.

[57] Ibid.

[58] See <https://www.usnews.com/news/politics/articles/2020-07-27/albanian-parliament-votes-against-presidents-impeachment> [Last access: 18.05.2024].

[59] See <https://constitutionnet.org/news/albanian-legislators-say-president-exceeded-constitutional-powers-will-not-be-impeached> [Last access: 18.05.2024].

[60] Albania: Impeachment of the President, Subject to the Meaning of “Serious Violation” <https://balkansgroup.org/wp-content/uploads/2021/06/Albania_Impeachment-of-the-President_Subject-to-the-meaning-of-Serious-Violation-.pdf> [Last access: 18.05.2024].

[61] Ibid.

[62] Ibid.

[63] See <https://www.euronews.com/2022/02/17/ilir-meta-constitutional-court-overturns-impeachment-of-albania-s-president> [Last access: 18.05.2024].

[64] Constitutional Tribunal of Poland, Decision of May 20, 2009, 78/5/A/2009, Ref. No. Kpt 2/08 <http://trybunal.gov.pl/fileadmin/content/omo wienia/Kpt_02_08_EN.pdf> [Last access: 18.05.2024].

[65] Ibid.

[66] Constitutional Tribunal of Poland, Decision of May 20, 2009, 78/5/A/2009, Ref. No. Kpt 2/08 <http://trybunal.gov.pl/fileadmin/content/omo wienia/Kpt_02_08_EN.pdf> [Last access: 18.05.2024].

[67] Ibid.

[68] Ibid.

[69] Ibid.

[70] Ibid.

[71] Ibid.

[72] Ibid.

[73] Constitutional Tribunal of Poland, Decision of May 20, 2009, 78/5/A/2009, Ref. No. Kpt 2/08 <http://trybunal.gov.pl/fileadmin/content/omo wienia/Kpt_02_08_EN.pdf> [Last access: 18.05.2024].

[74] Biernat, S., ‘Division of Competences in the Field of Foreign Relations in the Polish Constitutional System Stanisław’, 264-266.

[75] Ibid.

[76] Dissenting Opinion of Judge Teresa Liszcz to the Decision of the Constitutional Tribunal of May 20, 2009 in the case Kpt 2/08 <https://trybunal.gov.pl/fileadmin/content/omowienia/Kpt_02_08_EN.pdf> [Last access: 18.05.2024].

[77] Ibid.

[78] Ibid.

[79] Dissenting Opinion of Judge Teresa Liszcz to the Decision of the Constitutional Tribunal of May 20, 2009 in the case Kpt 2/08 <https://trybunal.gov.pl/fileadmin/content/omowienia/Kpt_02_08_EN.pdf> [Last access: 18.05.2024].

[80] Ibid.

[81] Dissenting Opinion of Judge Mirosław Granat to the Decision of the Constitutional Tribunal of May 20, 2009 in the case Kpt 2/08 <https://trybunal.gov.pl/fileadmin/content/omowienia/Kpt_02_08_EN.pdf> [Last access: 18.05.2024].

[82] Ibid.

[83] Endzins, A., (2008). Report “The Role of the Constitutional Court in the System of the Separation of Power” the Venice Commission, 15^th anniversary of the Constitutional Court of Romania Bucharest, December 6-7, 2007, CDL-JU(2007)038, Strasbourg.

[84] The Conclusion of the Constitutoinal Court of Georgia N N3/1/1797, dated October 16, 2023 on the Violation of the Constitution of Georgia by the President of Georgia (II-2).

[85] Ibid (II-55).