The Venice Commission, advisory body in the Council of Europe, has criticized the amendments by ruling Georgian Dream lawmakers to the Law on Common Courts in December 2021 which brought new grounds for misconduct of justices, as well as amended rules of reallocation, secondment, and recusal.
The opinion, unveiled on June 20, “regretted” that the changes were done with “excessive haste, lacked transparency as to its motives and aims, and was conducted without inclusive and effective consultation.”
It underlined that the “combined effect” of the December 2021 amendments “may in the specific context of Georgia create a chilling effect on judges’ freedom of expression and internal judicial independence.”
Reallocation of Judges
Regarding the changes to the reallocation of judges, the Commission said at first glance, the rule appears to be reasonable. However, it said, the amendment is not clear as to the qualification requirements for such second-round appointments as compared to the first round of appointments.
The opinion added that it is also “unclear” whether the High Council of Justice, the body overseeing the judiciary, can appoint judicial candidates with lower scores in the evaluation than those rejected in the first round, which could lead to the HCoJ circumventing qualification principles and endangering the principle of judges being elected on merit.
Transfer, Secondment of Judges
Changes to Article 37(1) of the Common Courts Law, regulating the transfer of judges, now allow the HCoJ to transfer a judge to another court, without drawing lots or geographic restrictions as it was previously. Per the Venice Commission, this lets the HCoJ “freely pick judges to be seconded against their will to serve in a court anywhere in Georgia.”
The Venice Commission also said the secondment without the consent of the judge for up to four years, as increased by the amendments, is “clearly disproportionate.”
The commission stressed that while irremovability of judges is not absolute, as a general rule, the transfer of judges without their consent is only permissible in exceptional cases, as recognized in the European Court of Human Rights. It also highlighted that the irremovability of judges in relation to their independence is also emphasized in the Judgments of the Court of Justice of the EU.
“It is hard to see how the change to a non-random selection procedure with no geographical limitation can be justified,” the Commission stated.
Overall the commission noted that the arguments put forth by the government in this regard were not “credible” and that certain sections can be described as ”quite vague and broad” and “not clear.”
The critical opinion also noted that the amendments “significantly increase the powers of the HCoJ over judges and represent a serious interference with a judge’s safety of tenure,” while the main safeguards against “abuse in the old Law have been abolished…”
“While the amendments to Article 37’1 are problematic in themselves, they are particularly worrying in the specific context they were made in. Most interlocutors the Venice Commission delegation met claimed that the true aim of the 2021 Amendments was to allow the HCoJ to control and silence judges.”
Recusal of Judges from Trials
In reference to changes regulating the recusal of judges from the trial, the Commission noted that the amendments seem to introduce additional safeguards.
But it noted that having “continue violation of labor discipline” as the ground for a severe action such as recusal the “criterion seems too vague and broad.” It added that the time limits for reviewing an appeal seem “too short” for judges to defend themselves in the event of a recusal.
The Commission reiterated the “fundamental importance that any interference with the tenure and irremovability of judges respect the principle of proportionality.”
HCoJ Terms of Office; Disciplinary Misconduct
The Commission said the explanatory report does not provide any particular justification for the amendment of Article 47, paragraph 12 amendment, which lifts the restriction on serving on the HCoJ for more than one four-year term in a row.
Citing the Consultative Council of European Judges (CCJE) it said “in principle, re-elections of full-time members should be avoided in favor of longer fixed terms to ensure independence.”
Pointing to the addition of an “expression of opinion by a judge in violation of the principle of political neutrality” as a disciplinary offense, the Commission stressed that a judge has the right to freedom of speech.
A judge’s right and duty to independence and impartiality suggests that his or her freedom of expression and the right to the political association may be legitimately restricted, it said, adding, however, that judges should not be barred completely from engaging in societal activities outside their official functions.
“In regulating judges’ impartiality, a balance must be struck between the fundamental right to freedom of expression and the legitimate interest of the state to ensure an impartial and non-political judiciary,” they added.
Also Read:
- Venice Commission Welcomes Court Law Changes, Repeats Outstanding Recommendations
- Venice Commission, ODIHR Issue Second Joint Opinion on Draft Electoral Amendments
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