Georgia’s laws on the selection of the Supreme Court candidates have been so controversial, that on September 16 they even warranted a critical remark by the top EU diplomat, Josep Borrell at the European Parliament Plenary Session.
Weeks after the split-vote ruling by the Constitutional Court gave the existing law a green light, the Georgian Dream party has put forward a bill to amend the much-debated selection process, claiming these revisions follow recommendations of the Venice Commission.
Landmark Ruling Splits the Court
On July 30, the Constitutional Court of Georgia issued a split 4-to-4 ruling, which quashed the appeal from the Public Defender, who argued that the lack of transparency and arbitrary procedures in a selection process might lead to biased appointments of unqualified judges to the Supreme Court, infringing the right to a fair trial in Georgia.
The judgment bears crucial importance for the country’s judicial system and its state of the rule of law, as it retained in force a weighty normative act that has already enabled the lifetime appointment of 14 Supreme Court judges in Georgia. The Supreme Court is the seat of the ultimate legal remedy within the Georgian common courts’ system, and its impartiality has been repeatedly called into question by human rights watchdogs and politicians alike, due to the claims that judges with close ties to the ruling party pressure and manipulate their colleagues in decisions that are sensitive to the party – something that became known as the “clan rule”.
The four judges that voted against the Public Defender’s appeal are precisely the ones whose particular loyalty towards the ruling party was often highlighted by their opponents. Some watchdogs expressed fears, that the appointment of the fourteen has effectively completed the takeover of the Court system by the ruling party.
Arguments of the Appeal
The Public Defender argued that there are several significant shortfalls in the procedure by which the High Council of Justice (HCoJ) selects the candidates before they are submitted to the Parliament’s approval.
Namely, during the short-listing, the HCoJ votes in a secret ballot and does not have to substantiate its decisions. The Public Defender argued that when combined, these two provisions mean that the HCoJ may exclude the qualified candidates and – conversely – select the candidates based on criteria that are not transparent to the public.
The claimant also argued that the procedures unfairly prioritize professional experience and the length of tenure over competence and qualification. It also noted that the criteria for preliminary selection of the candidates were vague and based on insufficient information, prejudicing some potentially qualified candidates.
When taken together, the claimant argued, the Supreme Court risks to be filled with judges that do not meet the Constitutional requirements. This infringes upon violating the right to a fair trial – guaranteed under Art. 31 of the Constitution – by denying citizens access to the impartial and independent process. The claimant also said the selection process in place also infringes the right of persons to hold public office pursuant to Article 25 of the Constitution.
Arguments of the Constitutional Court
In its ruling, the Constitutional Court disagreed with the appeal, pointing out that the constitutionality of appointment was guaranteed by the final vote by the Parliament, which makes its political decision, while HCoJ only has a limited power of nomination. It noted that the Parliament follows complex procedures such as committee hearings, and MPs are bound by the Constitution to select the candidates according to their competence and conscientiousness.
The Court also held that the model and structure of the HCoJ offer sufficient guarantees for neutrality with relevant competence, allowing it to fulfill its function in compliance with the Constitution, and multiple phases in the selection process of the Supreme Court judges by the HCoJ ensure proper decision making. Thus, the Court found, that the absence of the need to substantiate its decisions does not contravene the spirit of the Constitution.
As regards the secret ballot, the Court argued that the mechanism was designed to protect decision-makers from external interference and influence, and from control or pressure from the third parties, thus providing additional guarantees for impartiality. The Court noted that the claimant failed to present sufficient argumentation to prove that the open vote was preferable to a secret ballot, or why the secret ballot was against the Constitution.
Who Voted for Quashing the Appeal
The group of four judges who refused to revise the disputed norms was incidentally the very same ones whose appointment to the bench has triggered controversy and allegations of their being beholden to the ruling party. These are: Merab Turava – the newly-appointed Chairman of the Constitutional Court known for his involvement in cases such as ownership dispute over Rustavi 2 TV Channel; Manana Kobakhidze – former MP from the ruling Georgian Dream party-list until 2017 and First Parliamentary Vice-Speaker in 2012-2016; Eva Gotsiridze, a judge whose appointment in 2017 sparked criticism among the opposition and civil society groups due to questions over her pro-government activities as a member of the HCoJ, and rejection of her bid to join the ECtHR on Georgia’s behalf; and Khvicha Kikilashvili, whose delayed appointment as a Constitutional Court Justice in April amid the pandemic was criticized by the civil society outfits, that argued that the state of emergency was misused to avoid the public oversight of the process.
The decisive role played by Judge Kikilashvili in the ruling of July 30 was highlighted in the Ombudsman’s statement, noting that his appointment during the state of emergency by Supreme Court judges – selected under the very same disputable procedures – “raises suspicions about the motive of the decision”.
The ninth judge Vasil Roinishvili recused himself from the hearing. Roinishvili argued that although in 2019 he refused to be appointed as the Supreme Court justice after nomination under the challenged normative act and thus he had no personal interests in the disputed process, he claimed his participation in the hearing could still have raised doubts regarding his impartiality.
Four Judges Disagree
The remaining four judges Teimuraz Tugushi, Irine Imerlishvili, Giorgi Kverenchkiladze and Tamaz Tsabutashvili, released a lengthy dissenting opinion, agreeing with the claimant that that disputed norms are infringing the constitutionally guaranteed the right to a fair trial.
Arguments of the judges included the inability of the Council members to take an informed decision to shortlist the candidates in the initial phase of the selection. Referring to the argument of their colleagues, they said the parliament has no role at this stage – even if the legislative body rejects the presented candidates, the new ones will be selected from already formed shortlist.
The dissenting judges also said the scores that the candidates get in a selection process, are in no way linked to the outcomes of a secret ballot, and that there are few transparent criteria for the decision-making process throughout the next phases. They argued that at the final stage of the selection, before casting their secret ballot, HCoJ members do not usually exchange views or agree on the final decision in consultation. The dissenting opinion also referred to widespread international criticism towards the existing procedures.
Despite the split vote, the final negative outcome of the judgment was made possible: under the Law of Georgia on the Constitutional Court of Georgia, if votes of members present at a Plenary/Board session are equally split when resolving a constitutional claim, the claim shall be dismissed.
What now?
The Deputy Public Defender Giorgi Burjanadze told Civil.ge that the Constitutional Court’s decision was based “on legal nonsense” that considered the powers of the HCoJ and the Parliament on an equal plane. He said that unlike the Parliament, the HCoJ is a professional body with indirect legitimacy and must substantiate its every decision.
CSOs as well as the Ombudsperson appear to be less optimistic about the new GD-sponsored bill, as it still leaves much room for the HCoJ to defy the principles of credibility and transparency. However, even if the ruling party decides to address all shortfalls of the law as recommended by local and international watchdogs, the damage has been done – the faulty normative act has already ensured the lifetime appointment of 14 – the biggest number of Supreme Court judges.
The Constitutional Court’s decision is final and can not be appealed. The international courts may have jurisdiction, if a private claimant in a criminal or civil case argues for her right to a free trial infringed upon by the Supreme Court, based on Public Defender’s argument.
As for the national courts, the ruling from July 30 has confirmed yet again the nearly complete takeover of all instances and branches of the Georgian judicial system by the ruling Georgian Dream party.