20 წელი ადამიანის უფლებებისთვის ბრძოლაში
At the March 26 session of the High Council of Justice (HCOJ), judge-member Sergo Metopishvili announced that he plans to put forward an initiative for closing the HCOJ sessions to the public on the official agenda. We believe the judge-member’s initiative contradicts both the law and the principles of democratic governance. Such initiatives can only be damaging to the transparency of the HCOJ’s work, the possibility of voicing dissent at the HCOJ, and the reputation of the judiciary.
The High Council of Justice is a collegial body and falls under the regulations of Chapter 3 of the General Administrative Code. Specifically, according to the law, the HCOJ is obliged to conduct its sessions in an open and public manner. The HCOJ judge-member’s initiative on conducting sessions behind closed doors contradicts the legislation, the nature of collegial bodies, and the principle of openness.
The High Council of Justice must be accountable to the public. This is first and foremost served by the openness and publicity of the sessions. According to Opinion #10 of the Consultative Council of European Judges “transparency in the actions undertaken by [a Judicial] Council must be guaranteed. Transparency is an essential factor in the trust that citizens have in the functioning of the judicial system and is a guarantee against the danger of political influence or the perception of self-interest, self-protection and cronyism within the judiciary.”
The existence of influential groups and their activities, which is one of the factors hindering the HCOJ’s independence, have been revealed precisely thanks to the sessions’ openness. Numerous legal gaps in the judiciary, significant problems in the work of the HCOJ, and the need for specific reforms have also been identified through observation of the open sessions of the HCOJ. Judge Sergo Metopishvili’s initiative can only serve the interest of hiding information regarding the fundamental problems and challenges in the work of the HCOJ and suppressing dissent inside the HCOJ.
Additionally, the HCOJ’s judge-member’s declared disrespect for the principle of openness and the wish for holding the sessions behind closed doors is damaging for the reputation of the judiciary. A judge, who should himself be the main defender of the right to public trial, is now voicing opposition to openness and publicity of the HCOJ’s work, thereby seriously undermining the authority and public trust of the judiciary.
We call on the High Council of Justice to adequately assess the damaging effects of Judge Sergo Metopishvili’s initiative on judicial independence, trust towards and reputation of the judiciary, and principles of democratic governance. We call on the HCOJ to publicly affirm its respect to the fundamental principles of law and preclude any encroachment on them.
The Coalition for an Independent and Transparent Judiciary is representing the interests of former Judge Maia Bakradze in a case against the High Council of Justice (HCOJ). The Coalition applied to the Court in an effort to establish discrimination by the HCOJ. The Coalition considers that the HCOJ treated Maia Bakradze differently because she was the chairperson of Unity of Judges and was known for her critical views of the court system.
Today, the lack of dissenting opinion and real discussion are one of the main challenges facing the judiciary and the High Council of Justice. Members of the judiciary refrain from publicly discussing the problems of the system and openly express contempt for the public’s criticism. Judges’ open expression of dissent and criticism is met with harsh reactions from the HCOJ. One vivid example is the refusal to appoint former judges to the bench because of their critical actions and opinions.
Maia Bakradze, the Chair of Unity of Judges, participated in two judicial selection competitions after completing her judicial term. Although she met all the criteria set by the legislation, the HCOJ decided not to reappoint her as a judge. The HCOJ’s interviews with her as a judicial candidate were not directed towards evaluating her by any set criteria, but rather towards revealing the candidate’s positions towards some publicly voiced critiques of the system.
Given the importance of this case for the Georgian justice system, the Public Defender of Georgia submitted an amicus brief to the City Court.
Tbilisi City Court did not rule in favor of Maia Bakradze. The decision of the court was not sufficiently substantiated legally. The substantiation is lacking to such a degree that reviewing its legal grounds is impossible.
Unfortunately, the first instance court failed to ensure that the case was heard objectively and without bias, an indication of the difficulty of bringing a case against the HCOJ. The court’s decision is not based on a comprehensive review and evaluation of all circumstances relevant to the case.
Given all of the above, the Coalition for an Independent and Transparent Judiciary is appealing the Tbilisi City Court decision to the Tbilisi Court of Appeals.
Recent developments in the judiciary once again exposed the extent of the systemic problems in the judiciary. It is clear that the reforms implemented in the court system in recent years failed to achieve their main objective of having justice delivered by independent and impartial judges whose integrity and competence are not in doubt.
The main challenges remaining to date include:
· Insufficient political will for improving the judiciary
The three waves of judicial reforms implemented to date have not obtained their objective of improving the judiciary. The main reason for this is that the legislative changes were incomplete, belated, and often adapted to the interests of the influential group of judges. The ruling party is also responsible for appointing non-judge members to the High Council of Justice (HCOJ), the majority of whom failed to demonstrate sufficient integrity and without whose support the HCOJ could not have made its judicial appointments and other important decisions.
Today we are hearing outraged statements from some members of the parliamentary majority and ruling party regarding the lifelong appointment of judges. When almost half of Georgia’s judges are already appointed for life using opaque procedures, such reactions from the governing party are belated. It is clear that the government is trying to shift the blame for the situation in the judiciary.
· Clan-based governance of the judicial system
At all stages of judicial selection and appointment, we are left with the feeling that judicial appointments are based on the candidates’ loyalty to the influential group and probable nepotism. There are valid concerns that the HCOJ is using its authority and legislative deficiencies to eradicate dissent from the system and to further strengthen its own positions. In this situation judges are reluctant to make critical statements regarding the problems inside the judiciary. The developments regarding Batumi City Court Judge Irakli Shavadze are proof of this. The judge’s statement indicates signs of a crime that should be investigated.
Today, court chairs are perceived as chiefs/superiors of other judges. This was further proven by the collective statement issued by judges of Batumi City Court. Judicial administrative positions are usually held by members of the same group, yielding special powers within the judiciary. The February 26 decision of the HCOJ is a proof of this. This decision appointed the HCOJ and influential group member Levan Tevzadze as the Chair of Criminal Chamber at the Tbilisi Court of Appeals, likely as a result of nepotism.
· Opaque and unsubstantiated judicial appointment decisions
Unfortunately, the current membership of the HCOJ is continuing with the established faulty practices of judicial appointment. On February 22, the HCOJ appointed 44 judges for life. Among them were judges towards whom the public has a very strong negative attitude due to their past high-profile decisions. The appointment process was for the most part held behind closed doors, and one non-judge member of the HCOJ, Anna Dolidze, was not allowed to participate in the selection and appointment process of 14 judges.
In this difficult situation, the Coalition believes it is necessary to critically revisit the steps made regarding the judiciary and to acknowledge the problems. For this purpose, the Coalition is starting its “Make Courts Trustworthy” campaign and demands that:
· the political leadership acknowledge its share of responsibility for the crisis in the judiciary;
· the judiciary be freed from clan governance;
· the Prosecutor’s Office take interest in and fully investigate all probable cases of crimes related to the judicial system;
· the Parliament implement real reforms, based on which the influential group within the judiciary can no longer abuse legislation for its illegitimate purposes.
1. Article 42 of the Constitution
2. Multinational Georgia
3. American Chamber of Commerce
4. Georgian Small and Medium Business Association
5. Civil Integration Foundation
6. Georgian Lawyers for Independent Profession
7. Business and Economic Center
9. Center for Protection of Constitutional Rights
10. International Society for Fair Elections and Democracy
11. The Union 21st Century
12. Georgian Young Lawyers Association
13. Human Rights Center
14. Transparency International Georgia
15. Union of Meskhetian Democrats
16. Liberty Institute
17. Civil Development Agency
18. United Nations Association of Georgia
19. The European Law Students’ Association Georgia
20. Civil Society Institute
21. Open Society Georgia Foundation
22. Institute of Democracy
23. Institute for Development of Freedom of Information
24. Tbilisi Media Club
25. Human Rights Priority
26. Human Rights Education and Monitoring Center
27. Foundation for the Support of Legal Education
28. Institute of Civil Engagement
29. Association of Law Firms of Georgia
30. Association of Young Economists of Georgia
31. Eurasia Partnership Foundation
32. European Choice of Georgia
33. Partnership for Human Rights
34. Human Rights Network
35. Georgian Democratic Initative
36. Sapari Union
37. Rehabilitation Initiative for Vulnerable Groups
38. Institute for Democracy and Safe Development (IDSD)LLPL "Frema"