The 1921 Constitution VS The 1978 Constitution - Vol 1 - Property

Although we, the citizens of Georgia, have possessed Georgia as a state entity for many centuries, the first social contract without a king and subjects was concluded between the citizens of Georgia and the state in 1921. This contract, on the one hand, subsequently became the basis for the adoption of a new constitution in 1995. However, the analysis of the period when Georgia was annexed has not yet been completed in society. Furthermore, there is little discussion about the substance: what the 1921 Constitution was, and what the 1978 Constitution was; what "legal benefits" communism took away from us, the echoes of which haunt us to this day. Through an analysis of this period, one can understand what kind of country we could have been today had it not been for the annexation;

Today we have to build a new state governed by the rule of law which, had there been no annexation, would have had a centuries-old tradition that would have taken the country to a completely different stage of development. That is why the essence of why communism and any communist idea is evil requires understanding, including understanding "why I should not like communism." Accordingly, in the first part, during the comparison of the 1921 Constitution and 1978, it will become clear that the 1921 Constitution remains a progressive constitution to this day, while the 1978 Constitution belongs to the past. A constitution is never just a collection of words; it is a metaphysical book that creates the possibility of obtaining those benefits that are called the individuality of an individual, and for the individual, the existence of the state. Our legal tradition is as important to us, or should be as important, as the postulates expressed by Ilia Chavchavadze or the "Tergdaleulebi" movement. The history of the Georgian Constitution is a history that must be directly and immediately active for us, showing what a Constitution is and through what struggle it was adopted: "The Constituent Assembly worked selflessly even when the Russian army approached the city, the roar of cannons was heard, and shells were bursting in the sky... We dispersed only at dawn, when we finally approved our Constitution — the Fundamental Laws of the Republic of Georgia" (Gvazava G., Georgia and the National-Democratic Party (Second Letter, Paris), 1928, 11);

Article 45 of the 1921 Constitution indicates that "The guarantees and rights enumerated in the Constitution do not negate other guarantees and rights which are not mentioned therein, but inherently derive from the principles recognized by the Constitution." Meanwhile, Article 113 of the same Constitution states: "The Republic cares for the dignified existence of its citizens." Subsequently, Article 114 establishes that "Forcible expropriation of property or restriction of private initiative is permissible only for state, public, and cultural needs in the manner prescribed by a separate law. Appropriate compensation shall be provided for the expropriated property unless otherwise determined by law." First of all, Article 113 establishes that the state cares for its citizens, and a dignified existence is impossible if the citizen does not have the guarantee that their property right to any item is protected. The existence of a person, i.e., their life and activities, is constantly connected with property. The right to property, of course, is not of an absolute nature; it can be challenged and even expropriated, but it is such an important right that it can even be considered a personal right. That is, as soon as a person is born, they already possess property rights over objects, including the right to manage any item as they wish and to receive the income they desire from this item. The content of property rights is broader than it might seem at first glance: if a person does not have the right to property and does not know that this item is theirs, then this item could belong to everyone; and if an item belongs to everyone, it means it belongs to no one, and accordingly, no one cares for it;

The Constitutional Court of Georgia, in one of its decisions, provides a broad interpretation of the right to property, stating: "Respect for human dignity, the supreme constitutional value, within its social and economic context, significantly depends on the full realization of the right to property. Property is one of the sources of a person's personal independence and personal development. A person's aspiration to create their own property for the purpose of personal independence and well-being undoubtedly deserves the state's respect, which must be expressed in such legislative regulation of the acquisition of property that ensures, on the one hand, the unhindered enjoyment of the right to property by individual persons, and on the other hand, an effective civil turnover.";

Civil turnover is nothing more than the rapid transfer of property rights from one person to another, where the second person makes a profit from it, which in turn enriches society. Accordingly, a society in which property rights are protected and the state cannot and should not restrict your property will undoubtedly be successful. The right to property as a right will lose its meaning if the state does not commit to protecting it. The obligation does not mean the state should act as a guard over property, but involves both a positive and negative obligation. On the one hand, it must not take anything away from the individual except for urgent and state-level objectives, and on the other hand, the state itself is obliged to create legislation that ensures the person/persons are protected from other individuals as well;

Additionally, in one of its decisions, the Constitutional Court explains: "Consequently, the absence of legal mechanisms for acquiring property would lead to the 'emptying' of the civil concept of property—consisting of the elements of possession, use, and disposal—losing its substance, and would also render the constitutional-legal guarantee of property illusory." Furthermore: "The Constitutional Court of Georgia has repeatedly emphasized and noted that the right to property is not only an elementary basis for human existence but also ensures their freedom, the adequate realization of their abilities and capabilities, and leading a life under their own responsibility. All this naturally predetermines the private initiatives of an individual in the economic sphere, which promotes the development of economic relations, free entrepreneurship, a market economy, and a normal, stable civil turnover.";

Article 114 of the 1921 Constitution is nothing more than expropriation, which today the common courts of Georgia interpret as follows: "An imperative public need is the legitimate aim that justifies interference in the right to property—both in the form of restriction and expropriation. When depriving someone of property rights, an imperative public need is subject to strict and concrete interpretation." In one case, the Supreme Court of Georgia further explained: "The Cassation Chamber notes that the right to property does not have the character of an absolute fundamental right; it is subject to restriction, which must be proportionate. Granting the state the authority to restrict the right to property stems from a heightened interest in protecting certain legal goods, through the social function of the right to property and the possibility of burdening it with obligations. Accordingly, considering the social burden of a thing, the possibility of restricting the private autonomy of the owner to use real estate solely in accordance with their own private interests is not excluded";

Based on this, we can conclude that the protection of property rights was guaranteed by the 1921 Constitution of Georgia and thus fully complied with the constitutions of developed countries. As for the 1978 Georgian SSR Constitution, according to Article 11 of the Soviet constitution: "The following are in the exclusive ownership of the state: land, its subsoil, waters, and forests. The state owns the basic means of production in industry, construction, and agriculture, means of transport and communication, as well as banks, property of state-organized trading, public utility and other enterprises, and the basic urban housing fund..." That is, the state owned and disposed of everything; only it possessed property rights, whereas an individual had no property rights at all, not only over real estate, but even an apartment was the property of the state;

An individual could have: only earned income, and articles of everyday use and personal consumption. That is, the individual was so stripped of rights that they did not have rights to real estate in the way we envision it. Later on, the law even specified how much and what a person could have in ownership or possession, etc. The greatest evil against private property after 1921 was that it not only curtailed all types of rights but, moreover, forcibly confiscated them from the individual and transferred everything into state ownership, doing so without any court rulings; and even if there were any, there was no free and independent court;

Subsequent ideological interpretations of the 1921 Constitution would have inevitably yielded the same kind of legal ideas that the Constitutional Court voices today, for example: "The possibility of acquiring property serves the realization of the fundamental right to property. Consequently, the legislation must ensure the acquisition of property and the possibility of its use, enjoyment of the property. If people do not have access to legal paths to acquire property, this will to some extent render the subsequent protection of property rights meaningless." However, in Soviet Georgia, not only were there no interpretations by the Constitutional Court, but the Constitutional Court itself did not even exist. To understand how the state viewed the concept of property, one example is sufficient. But before that, we must point out that the Soviet constitution considered property not in today's classical sense, but as personal property having auxiliary properties, while property in its essence was outlawed. On the contrary, the state could confiscate this personal property from one person and hand it over to another—in their understanding, a "better Soviet citizen.";

Today this probably sounds ridiculous, but during that period, if, for example, a Soviet citizen intentionally damaged or even destroyed their own car, they would be punished under criminal law because the car was considered not personal, but common property. The logic behind this was: "it is the result of labor" created by the working class; therefore, since it was created by them, the workers effectively have the property rights over it, and consequently, the government representing them. The individual only had the right of possession (in today's understanding, "possession" is viewed somewhat differently). In today's understanding, the individual only had the rights of a holder, because the possession of this car also had to be of benefit to society. Moreover, the state could confiscate this car at any time. This was the kind of legal madness presented by the Constitution of the Soviet Union. Furthermore, the very concept of property rights was perceived as a capitalist remnant, and it was impermissible;

While the 1921 Constitution protected the property rights possessed by the individual, the 1978 Constitution did not even recognize them. Furthermore, the 1978 Constitution contradicted international law: Article 17 of the Universal Declaration of Human Rights, which was adopted and proclaimed by the UN General Assembly on December 10, 1948, with the participation of three Soviet-origin members, establishes that "Everyone has the right to own property alone as well as in association with others" and that "No one shall be arbitrarily deprived of his property." The approach adopted in Soviet jurisprudence and reflected in constitutional principles also differed significantly from the formulas, concepts, and spirit set out in the text of Article 1 of Protocol No. 1 to the European Convention on Human Rights adopted in 1952, according to which every natural or legal person is entitled to the peaceful enjoyment of his possessions. Accordingly, the 1921 Constitution was more in line with the ideas of the modern developed world than the 1978 Constitution. The latter constitution not only contradicted the laws of natural right but also contradicted all philosophical logic, because if I created something or paid money for it, how can it not be mine? Long ago, John Locke had already expressed a similar thought in his Second Treatise of Government: "The great and chief end... of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property.;

Article 61 of the 1978 USSR Constitution imposed an obligation on citizens to protect socialist property as property of the highest value. Such a legal approach fully reflected the Marxist approach to socialist property, which was considered the means of production in a socialist society. This political-economic approach emphasized the superiority of collective and state property over the private property of the individual, which meant that the property rights of every private individual were generally diminished; more accurately, they did not even exist in the constitution. The shackling of property rights subsequently continued in the Civil Code; specifically, the maximum size of a residential house (or part thereof) that a citizen could personally own was not to exceed 60 sq.m of living space and 40 sq.m of utility space (Article 104). An exception to this rule was the case when a second building was used for the recreation or treatment of the owner and their family members at a resort or dacha (summer house) location (Article 105). That is, the state determined who could own how much, but this too was justified by so-called communism, which is nothing more than domination over the individual, including through the deprivation of property rights, when the individual has no right to receive, use, or even have and not use their property;

Such a restriction of property rights was bound to bring economic problems to this system, which eventually manifested themselves. And the so-called myth that some kind of guarantee of property rights could have existed during the Soviet Union is just a myth, just like the myth about the fairness of Soviet law. The 1921 Constitution, even with a 57-year delay, protected the individual more than the 1978 Constitution, which was based not on the will of the individuals living there, but only on the will of a certain circle;