Since 2004, Georgian judiciary could overcome systemic corruption, however, found itself under strict control of executive power. A small group of persons, the clan, with high administrative positions ensured the obedience of judges towards the political party in power and ensuring execution of the demands of the executive.
The new government, which came to power in 2012 tried to dissolve the defective system of governance in the judiciary but could not do it and finally entered into cooperation with the clan. As the result of this cooperation, the clan obtained additional leverages. From 2017, the clan was provided with the opportunity to appoint Supreme Court Justices for life.
See the article of Chair of Article 42 of the
Constitution - Kakha Tsikarishvili, which describes clan-based
governance in the judiciary since 2007.
Clan based governance in Georgian Judiciary since 2007
Article 42 calls upon Parliament of Georgia to fully acknowledge and reflect in the draft legislative package the Venice Commission opinion concerning the appointment of Supreme Court Judges.
At the same time, it should be noted that the problem existing in the judiciary is much larger than the issue of election of Supreme Court judges. This is also clearly visible in Opinion of the Venice Commission. The clan based governance existing in Georgian judiciary and the low trust towards courts endangers the legal security and the development of the country in the long run. Thus, we call upon Parliament of Georgia to adopt a resolution evaluating clan based governance existing in Georgian judiciary and its negative consequences and take all necessary legislative measures to overcome this problem
Organization “Article 42 of the Constitution” responds to death of two construction workers on March 31, at #31 Chavchavadze Ave. and the peaceful protest rally held by the activists and assumes, that the Government failed to realize fundamental rights of the gathered people.
Workers’ death at the place of employment has been beyond the attention of the state for years;
The lives and health of people at hazardous work is unprotected and risky, and the number of dead and injured workers is alarming.
Effective investigation of death cases and health damage in place of employment still remains a problem, together with granting appropriate qualification to these cases and impunity of those responsible. The State’s labor policy leaves socially vulnerable people even more unprotected, for whom physical work is the only source of income.
Yesterday's manifestation, held to criticize the state's labor policy, where police had to ensure the peaceful conduct of the protest, ended by detention of 6 persons.
Activists, who tried to express their solidarity to the dead by blocking Chavchavadze Avenue, were arrested using disproportionate force for violation of public order and disobedience to the lawful demand of the police.
 According to the Report of the Public Defender’s Office of Georgia, 59 people have died at the workplace and 199 received occupational injuries in 2018. The report is available at: http://www.ombudsman.ge/res/docs/2019033019563052300.pdf?fbclid=IwAR1VRwsh2AXgdoGLwlnQaPBpXxzX399LL1MrCZDYCqei-l1XuLO1OlgrKhU
 The city and district courts have only discussed 35 cases regarding occupational accidents and made decision of imprisonment as a real punishment only in 2 cases. Source: Parliamentary Report of the Public Defender, 2018.
In today’s judgement, as of March 26, in the collective application of individual cases “Berdzenishvili and others v. Georgia” European Court of Human Rights held Russian Federation to pay compensation to the citizens of Georgia.
The case concerns violation of the European Convention of Human Rights against Georgian citizens subjected to an administrative practice of arrest, detention and expulsion in the period from October 2006 to January 2007.
NGO “Article 42 of the Constitution” represented the rights of 7 victims expelled by the Russian Federation. Under the decision of December 20, 2016, the European Court has consolidated these applications into one group “Berdzenishvili and others v. Russia” (no. 14594/07, 14597/07, 14976/07, 14978/07,15221/07, 16369/07 and 16706/07) and established violation of several relevant articles of the Convention, however it has left open the issue of compensation until settlement of an inter-state dispute.
Under the ruling of Grand Chamber of the European Court of Human Rights (ECHR) of January, 2019 over the inter-state case “Georgia v. Russia” Russian Federation has to pay 10 million Euros in compensation for nonpecuniary damages related to mass deportation of Georgians from Russia (see the organization’s announcement here).
After making a decision on compensation for an inter-state dispute, the European Court also discussed and made a judgement on just satisfaction of the applicants on individual cases.
The amount of compensation was determined by the individual cases according to the nature and severity of the violation, however, the European Court shared the principle of determining the amount of compensation set by the Grand Chamber in an inter-state dispute:
· Applicants, who had suffered a violation of their rights under Article 4 of Protocol No. 4 alone (prohibition of collective expulsion of foreign citizens), should receive EUR 2,000 each. (2 applicants represented by the Organization).
· Applicants, who had suffered a violation of rights under paragraph 1, Article 5 (right to liberty and security / right to have lawfulness of detention decided speedily by a court) and Article 3 of the Convention (prohibition of inhuman and degrading treatment) will be awarded EUR 10 000 to EUR 15 000 according to the period of their detention. (5 applicants represented by the Organization).
Under to the same decision, the European Court did not establish a violation of the principle of prohibition of collective expulsion of foreigners against applicants who left the Russian Federation by their own will and there was no official decision of the Russian court or other state authority on their expulsion.
Also, the Court did not find a violation of procedural guarantees related to expulsion of foreigners (Article 1 of Protocol No. 7) against applicants who were illegally residing at the territory of Russian Federation.
The decision of the European Court shall come into force in three months, if the parties do not require the case to be transferred to the Grand Chamber. Russian Federation will have to pay the above compensations within three months from the date when the decision enters into force.
In turn, the Committee of Ministers of the Council of Europe monitors fulfillment of this obligation by the Russian Federation.
TO: The European Commission for Democracy through Law / the Venice Commission
The OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR)
On behalf of the Coalition for an Independent and Transparent Judiciary (hereinafter the Coalition), we would like to address you regarding legislative amendments to the Organic Law of Georgia on Common Courts (hereinafter the draft law), Rules and Procedures of the Parliament of Georgia and Law of Georgia on Conflict of Interest and Corruption in Public Service, which aim to regulate rules and procedures for the selection of Supreme Court justices.
The Coalition represents a unity of 39 non-governmental organizations in Georgia. The goal of the Coalition is to consolidate the advocacy of legal professional associations, NGOs, business associations, and media for an independent, transparent and accountable justice system. The Coalition has been active and vocal about fundamental challenges faced by the Georgian Judiciary since 2011, placing us in a unique position to witness and evaluate the multiple reform stages undertaken by the Georgian governments.
The coalition would like to emphasize that the Georgian judiciary is in a severe crisis, caused by years of failed reform waves, strengthening doubts that the High Council of Justice (hereinafter the HCoJ) is ruled by a group of influential judges, making partial and unjustified judicial appointments. The crisis intensified in December 2018, when the HCoJ submitted a list of nominees for Supreme Court Justices to the Parliament without any selection procedure or transparency of the selection process. Following public outrage, street rallies and special petitions, the process was suspended and the ruling party undertook responsibility to draft necessary legislative amendments, as pursuant to the Constitution of Georgia.
Hence, the coalition would like to draw your attention to the severity of the situation. Our communication builds upon years of experience observing and analyzing HCoJ decision-making procedures and the multiple reform waves. The aim of the communication is to present to the Venice Commission and OSCE/ODIHR the general context against which the present amendments should be assessed and evaluated, and provide a detailed assessment of specific threats posed by the draft law initiated by the Speaker of the Parliament.
II. Background Information/Context
Following the 2012 parliamentary elections, the new government came into power and announced that it would focus on liberating the judiciary from political influences and ensuring the independence of judges. In doing so, the Government of Georgia acknowledged the existence of fundamental challenges within the judiciary and the ultimate need for substantive reforms.
However, the process of implementation of these reforms made it clear that the government failed to show a strong political will for any meaningful and consistent changes. The measures taken within the so-called “three waves” of reform failed to create a strong and independent judiciary. Achievement of the independence of the judiciary is significantly hindered by the dominant judicial group-members who hold important administrative positions within the system. The group members deliver arbitrary decisions and use their high positions to strengthen their influence over the system.
In the light of these failures, the Selection procedure of Supreme Court justices has been substantially changed within the scope of 2017 Constitutional reform. In particular, Supreme Court justices are no longer nominated by the President of Georgia, but rather by the HCoJ.
In May 2017, the Coalition submitted its opinion to the Venice Commission on the Constitutional provisions concerning the judiciary.
The Coalition criticized several changes, including the rules of appointment of Supreme Court Justices. The Coalition believed that delegating exclusive power to nominate Supreme Court justices to the HCoJ could be detrimental to the development of the judicial system, since HCoJ (including the rules about HCoJ composition and operation) fell short of the standards of independence, transparency and effectiveness established by the Venice Commission and other international bodies.
The Coalition believed that in view of the local context in Georgia, the aim of the Venice Commission’s recommendation---ensuring judicial independence---could not be achieved by transferring the nominating function to the HCoJ. On the contrary, it would further consolidate already broad and uncontrolled powers concentrated in the HCoJ and, in view of the Council’s past performance, the proposed regulation could not guarantee the selection of candidates commensurate with the high status of Supreme Court Justice.
On 16 December 2018, amendments to the Constitution entered into force. However, at that moment, the legislation did not provide a transparent procedure for selecting and nominating candidates for Supreme Court Justice and Chairperson Positions.
On 24 December 2018, a week after the amendments to the Constitution entered into force, the HCoJ submitted to the Parliament a list of candidates that was drawn up by several judges behind closed doors. The nomination was made without any procedure. A majority of the nominated candidates had an unacceptable record of judgments.
All of the nominated candidates were acting judges, two of whom were judge members of the HCoJ. The latter clearly demonstrates that HCoJ members abused their high office for personal interests. The criteria for selecting these judges was ambiguous, and it is not clear why other interested persons were precluded from equal participation in a fair, open and transparent competition.
As a result, ten candidates were nominated entirely by 11 members of the HCoJ. At the same time, the remaining members of the HCoJ were uninformed of the candidates to be voted on. The biographies of the candidates were not discussed, and those ten judges were arbitrarily distinguished from other acting judges. This demonstrates serious risks of corruption and nepotism.
Therefore, the nomination of candidates in December 2018 clearly indicated that the dominant group of judges aimed to exercise their influence on the highest instance of the judiciary by taking full control over the judicial system.
On 26 December 2018, following the protests of various public groups, the Speaker of the Parliament postponed the process until the spring session. Later, all of the nominated judges withdrew their candidacies.
In January 2019, the working group led by the Speaker of the Parliament began work on a draft law regarding rules for the selection of Supreme Court justices. However, it was evident that the process of preparing the draft was not aimed at substantive changes and was only focused on superficial improvement of the process.
Furthermore, the composition of the working group did not ensure fair representation of professional and interest groups. The majority of the Group consisted of the same members of the HCoJ and judges who were directly interested in hastened consideration and approval of the list. Various stakeholders protested against the undemocratic format and agenda of the meeting held by the Speaker.
Although the format of the working group was slightly changed amid protests, it became clear that the drafting process mainly served the interests of the influential group of judges and the ruling party was providing unconditional support to the group. As a result, the draft law only aims to strengthen influences of the dominant group within the judiciary and is explicitly tailored to the needs of this group.
A. Eligibility Requirements for Supreme Court Justices
According to the draft law, a person can be considered as a candidate for the Supreme Court Justice if he/she is an acting judge, former judge, or a lawyer with distinguished qualifications, having professional work experience of not less than 5 years and having passed/or planned to pass the judicial qualification examination. Thus, the competition is limited to those candidates who have already undertaken the judicial qualification examination or plan to pass it within one month after applying for the vacancy.
The judicial qualification examination consists of two parts: a) test format; and b) a written examination. Moreover, it is an exam designed as a prerequisite for candidates for the lower court instances (first instance and appellate courts). It should be hereby emphasized that this mandatory requirement has never before been applied to Supreme Court Justices.
Pursuant to the Venice Commission standards, institutional rules have to be elaborated in a way to guarantee selection of highly qualified and personally reliable judges. Moreover, in relation to the Supreme Court Justices, the Venice Commission is of the opinion that there is a special need to open up the system to analytically minded people equipped with complex and relevant interpretative techniques. Therefore, people with diverse law backgrounds outside the judicial system, such as law professors, legal scholars, former barristers and prosecutors should be a desirable and useful addition to the cassation instance court. In addition, the examination is not and should not be deployed as the only tool for the assessment of candidates but their personal qualities, communication and other skills shall be taken into consideration. Lastly, according to opinion No 1 (2001) of the CCEJ, “every decision relating to a judge’s appointment or career should be based on objective criteria…”
Therefore, the Coalition believes that the judicial examination should not be considered as an eligibility criterion for candidates for Supreme Court Justice. The exam cannot be the sole ground of ascertaining qualifications of a candidate. Candidates can be assessed based on clean professional record and demonstrated competence, through impartial and transparent selection procedures.
Furthermore, in light of recent developments in the Georgian judiciary (namely, the flawed nomination of acting judges in December 2018, as discussed above), the requirements of the draft law in relation to judicial examination of candidates outside the judicial system aims to limit highly professional candidates with diverse law backgrounds from gaining access to the Supreme Court. This is an attempt to establish unreasonable barriers for candidates under the pretext of checking their competence and qualifications.
In sum, we strongly believe that judicial examination as an eligibility requirement should be removed. It is clear that the draft law provides an additional barrier, significantly hindering the appointment of people with no judicial experience to a position of the Supreme Court Justice.
B. Conflict of Interest
Pursuant to the draft law, a member of the HCoJ might be a candidate for the Supreme Court Justice and participate in the competition. The present legislative amendments only preclude the HCoJ member from voting in favor of himself/herself, while he/she is still eligible to vote for other candidates (his/her rivals), have access to all of the information regarding other candidates and participate in the assessment process, as well as conduct interviews.
Georgia, along with many European countries, has incorporated a neutral High Council of Justice into its legal system in order to protect and strengthen independence of the judiciary. The role of a judicial council in the appointment procedure is of paramount importance. Therefore, it is crucial for HCoJ members to be neutral, independent and impartial. Underlining the importance of being a member of such council, The Venice Commission even had examined how much working time the members of such bodies should dedicate in order for councils to function properly and fulfill its tasks.
The Coalition believes that if a member of the HCoJ decides to nominate himself/herself for the position of Supreme Court Justice, he/she shall not be able to participate in the decision making process in any form. In other words, the member of HCoJ as an evaluator vis-à-vis the same person as a candidate constitutes a conflict of interest. The conflict is so evident that it poses serious threats to impartial conduct of the competition and gives rise to unequal and unfair treatment of other candidates.
However, the authors of the draft law attempted to justify the given regulation by referring to the Constitutional principle of separation of powers and limited competence of the Parliament to intervene in the functions of the HCoJ. The authors argue that it would be unconstitutional to restrict HCoJ members from evaluating and voting for other candidates.
The Coalition is of the opinion that the Constitutional framework and competences of two constitutional bodies, namely the Parliament and the HCoJ, do not preclude the former from establishing relevant procedures for the latter to select and nominate Supreme Court Justices, including the rules to eliminate potential conflict of interest.
In particular, according to article 25 para.1 of the Georgian Constitution, “every citizen of Georgia shall have the right to hold any public office if the individual meets the requirements established by legislation.” Pursuant to the well-established case law of the Constitutional Court of Georgia, the right to acquire the position of Judge falls within the ambit of the mentioned right as for the purposes of the Constitution, the term “public office” includes a position of the judge of all instances. Furthermore, while establishing requirements for acquiring certain public office position, the Parliament is obliged to act in accordance with the equality clause, by giving equal opportunities to all candidates who wish to be nominated as a Supreme Court Justice.
Moreover, the Constitution also articulates a power of the HCoJ to select and nominate judges of all instances based on their conscientiousness and competence. Therefore, contrary to the justification presented by the framers of the draft law, the whole architecture of the Georgian constitution (including the essence of the principle of separation of powers) clearly demonstrates that both the Parliament and the HCoJ have no discretion, but rather an obligation to ensure equal opportunities for all candidates who meet the requirements established by the Constitution and the law to hold the position of Supreme Court Justice.
The mentioned justification might have been acceptable if the decision on nomination of the Judge had been political (for example, nomination of Supreme Court Justices by the President) or a vacant position should have only been occupied by the members of the same body (for example, the president of the Constitutional Court of Georgia shall be elected only among the nine judges of the Court). In the latter case, it is clear that there is no need to regulate conflict of interest as the circle of potential candidates is naturally limited and all members have an equal opportunity to vote for themselves and for others simultaneously.
On the contrary, the power and obligation of the HCoJ is not to select Supreme Court Justices among its members but to ensure selection of the best candidates based on merit and integrity. In turn, it has not been disputable by any stakeholder at any stage of elaboration of the draft law that the assessment of qualifications and integrity is better achieved through open and transparent competition.
Thus, if the Parliament has a general competence to determine procedures for appointing judges through the competition, it remains unclear why the rules of conflict of interest as an indispensable element of every competition cannot be set forth in the legislation in a complete manner.
In conclusion, the Coalition considers that the draft law shall ensure that if a member of the HCoJ presents a statement to participate in the competition, his/her position shall be suspended throughout the competition period.
C. Formation of the Longlist of Candidates
According to article 341(7) of the draft law, after the formal requirements have been met by the candidate, the HCoJ uses a secret ballot to decrease the number of participants, using a relative majority principle. It is important to note that at this stage, the only information available to members of the HCoJ is the fact that the candidate meets the formal requirements for the vacant position.
Although formation of the longlist of candidates might serve some legitimate aims, the Coalition considers that the given procedure is excessively vague and entirely based on the will and subjective interests of individual members of the HCoJ. Pursuant to opinion No 1 (2001) of the CCEJ, “every decision relating to a judge’s appointment or career should be based on objective criteria […].” However, a lot depends on what sort of “objective” criteria are used, and how they relate to more “subjective” elements.
Moreover, the Venice Commission, in its opinion on the Concept Paper on the Reform of the high Judicial Council of Kazakhstan, stated: “the decision to nominate the candidate in the phase of competition is taken by the HJC by voting. This voting will necessarily reflect the sum of subjective perceptions (by the members of the HJC) of the moral and professional qualities of the candidate. There is nothing wrong in the appointment decision being based partly on such subjective perceptions. It is important, however, that the law describes the relation between more “objective” and more “subjective” elements in the overall assessment of the candidate.”
However, unlike the situation referenced above, the draft law does not contain any single criterion or general implication for the members of HCoJ on how the decision on the formation of the longlist of candidates could be made, other than subjective opinions. Therefore, at this stage, all the procedures with regard to selection of candidates suffer from a main defect—vagueness and uncertainty. The latter would additionally demotivate otherwise professional candidates from even participating in a selection process.
D. Final Selection and Nomination of Candidates.
After the completion of voting on the short list of candidates, the final voting should be conducted and decision on selection and nomination of candidates be made by a 2/3 majority of the HCoJ. The Coalition shares the position of the Venice Commission reiterated in many opinions and reports that the composition of the High Judicial Councils should ensure a fair balance between judicial independence and self-administration on the one hand, and the necessary accountability of the judiciary on the other hand, to avoid cronyism and corporatism within the judiciary.
Taking into consideration the Georgian context and recent developments in HCoJ in December 2018, as discussed above, the Coalition believes that the final decision on selection and nomination of candidates should be made with the support of a 2/3 majority of judge members and 2/3 majority of lay members, and the decisions must be duly substantiated. The latter position unanimously agreed between all interested local stakeholders, and is supported as the most fitted solution for the existing crisis by the Council of Europe office, Delegation of the European Union, and the U.S. Embassy in Georgia.
E. Absence of Reasoned Decision
In addition, the draft law does not contain any obligation for the HCoJ to deliver a collective reasoned decision on selection and nomination of certain candidates for the position of Supreme Court Justice. However, the Coalition believes that this is a vital element to make the decision making process more transparent for public scrutiny.
Therefore, the Coalition shares a position of the Venice Commission expressed in its opinion on the Draft Law on the Judicial Council of North Macedonia. In particular, the draft law should contain a requirement of a collective reasoned decision on selection and nomination of candidates for Supreme Court Justice, reflecting the position of the majority of the HCoJ, accompanied by dissenting opinions of members who voted against, if they wish to give their reasons.
F. Assessment of the Nominated Candidates by the Parliament.
Based on the recommendations of the Coalition, the Rules of Procedure of the Parliament already envisage the creation of a working group in order to facilitate compliance of the candidates with the requirements of the legislation. However, the legislative initiative does not foresee the rules related to composition and duties of the working group.
In order to diminish the risk of biased conduct of the competition by the HCoJ, impartiality of the parliamentary working group is of the utmost importance. The Coalition believes that the working group should consist of highly reputable independent members, who will examine the completeness and accuracy of the information about the candidates, retrieve additional information from all possible reliable sources as needed, prepare a conclusion related to each nominated candidate and present it to the Legal Issues Committee.
In light of the local context and recent developments in Georgia, the Coalition believes that the adoption of the draft law initiated by the Speaker of the Parliament and nomination of the candidates based on the proposed procedures will have a detrimental impact on the Georgian judiciary.
According to the amended constitution, which came into force in December 2018, the number of Supreme Court justices is increased to twenty-eight. The latter implies that initiated amendments to the Organic law of Georgia on Common Court will be used to select a substantial number of judges (eighteen in total) and appoint them until retirement age, thereby making the current process historic in its relevance and impact.
We hope that the Venice Commission and the OSCE/ODIHR will carefully examine the current situation and take into consideration the existing crisis in the judiciary in the process of preparing its opinion regarding the submitted draft laws.
 More information about the work of the Coalition, can be found at: http://coalition.ge/index.php?article_id=1&clang=1
 Coalition Opinion on the Draft of the Constitution of Georgia, 18 May 2017, http://coalition.ge/files/coalition_opinion_on_const._provisions_regarding_judiciary_-_for_venice_commission.pdf
 Draft law, Art.34
 See Organic Law on Georgia on Common Courts, art. 53(3)
 CDL-AD(2010)004, para.8
 CDL-AD(2018)032, para.71
 CCEJ opinion no10 (2007), para. 56
 CDL-AD(2007)028, para.28
 CDL-AD(2017)019, para.93
 See judgement on the case of Citizen of Georgia Omar Jorbenadze v. Parliament of Georgia, 3/1/659, 15 February 2017
 See Articles 61 and 63 of the Constitution of Georgia
 CDL-AD(2018)032, para.63
 See CDL-AD(2007)028, para.27
 CDL-AD (2019)008, para.18
 Article 205(2)
hour hotline became
operational at “Article 42 of the Constitution” for asylum-seekers,
refugees and humanitarian status holders in
If you seek an advice on asylum procedures and want to know more about your rights as asylum seeker, refugee or humanitarian status holder, call 593 111 405.
A 24 hour hotline is in the framework of UNHCR supported Project “Protecting and Empowering Refugees, Asylum Seekers and Humanitarian Status Holders in Georgia.”
The Coalition for an Independent and Transparent Judiciary has left the Parliamentary Speaker’s working group for designing Supreme Court Justice selection procedures and criteria because the format did not serve as a means for discussing genuine legislative changes, which are to ensure a merit-based approach to the selection process and its transparent and impartial conduct. The unequivocal position of the Speaker during the working meeting made it clear that he does not intend to come up with a draft that would preclude unilateral nomination of Supreme Court Justice candidates by the dominant clan of the judiciary. The Speaker’s position is a clear testament to his and the influential judges’ concerted action, hence making continued work in the format offered meaningless.
Given the importance of the Supreme Court and its role in the judicial system, it is crucially important that the candidates are selected based on objective criteria and lengthy and transparent procedures. Towards this objective, the Coalition has provided its opinions to the working group in writing and these opinions are largely in line with the opinions presented by the US Embassy and EU delegation.
Additionally, the Coalition considers that prior to detailed discussion of the individual provisions of the draft bill, it is essential to reach an agreement on five key issues below:
Unfortunately, the position expressed by the Parliamentary Speaker makes it clear that he objects to the above key issues, which are central to ensuring genuine legislative changes and staffing the highest court of the land via an objective and open process. The Parliamentary Speaker has a principled position regarding voting, and the formula he offers gives the dominant clan in the judiciary a full possibility to determine the nomination of specific candidates in the name of the HCOJ all by itself. This position again illustrates the Parliamentary Speaker’s and the ruling party’s unconditional support for the clan.
In this situation, where the working group only has a formal nature and its sole purpose is to legitimize the process of creating a favorable legislative environment for the clan, the Coalition refuses to continue its participation in the working group.
On behalf of Georgian people, who are deeply concerned with the ongoing state of judiciary in the country, we are contacting you as active supporters of Georgia’s democratic development. On different occasions we have addressed government, political entities and various institutions regarding these concerns. However, we have not approached you on this matter before, as decisions regarding the development of the country should be carried out by its citizens and international partners can only provide their kind recommendations and support in this regard. Nevertheless, we have decided to approach you directly with our grievances, as we see the risks that your name and resources could be misused to legitimize the process, which instead of creating an independent judiciary aims to strengthen influences of interested group within the judiciary.
Georgian population has experienced unfair justice practices on the large-scale throughout its history. Society is fully aware that at present vital decisions are being made regarding the justice system. Unfortunately, latest developments on the subject have demonstrated that the steps taken were not sufficient for the creation of strong and independent judiciary.
Georgian justice system at present is facing certain abnormalities. Activities and erroneous reforms of present and former governments, has enabled small group of judges to take control over the High Council of Justice. Mentioned group uses its capacity to strengthen their power instead of improving the judiciary itself. Societal trust towards the system declines daily and the reform itself is in the dead-end.
It is fallacious to assume that drafting selection procedures and criteria for the Supreme Court judges could straighten the crisis, which the justice system is facing. Only way out of this dire situation is the resignation of members of the so called “clan”, alongside with their 11 supporters sitting at the High Council of Justice and only afterwards we could truly talk about the reformation of the Council.
As of now Chairman of the Parliament facilitates the process of drafting selection procedures and criteria of assigning new members to the Supreme Court. As you might know, multitude of actors protested against the undemocratic format and agenda of the meeting held by the Chairman on 27th of January.
Amidst this tension, Parliament publicizes the news of meeting Speaker of the Parliament with diplomatic corps to discuss the details of apparently finalized version of the draft law. Additionally, according to provided information, certain alterations to the draft has been made based on your recommendations. We cannot be certain how well this information reflects the real context of your meeting, however, we stay hopeful that without the consultation with interested parties the diplomatic corps would have not expressed its support towards the draft.
Draft law about which only general ideas are known to us, seems to be created in a way, to formally officiate the outcomes which the influential group of judges intended to achieve in December last year.
We would like to note that we value the role you have played throughout the year in helping to strengthen and reform the justice sector in Georgia, thusly based on the urgency of the situation we would like to urge you:
- To once again express your clear stand on the outcomes of judicial reforms in Georgia;
- To be cautious your name not to be used to legitimize processes, which do not reflect and express the needs of Georgian people;
- To take into consideration that clear procedures and criteria can only serve its purpose, if the High Council of Justice will be fully renewed in accordance with pluralistic approach.
Maia Bakradze, Former judge at Tbilisi Court of Appeals
Dato Laghidze, White Noise Movement
Kakha Tsikarishvili, Lawyer, Professor of Law
Lia Mukhashavria, Human Rights Priority
Besik Sisvadze, Former judge at Tbilisi City Court
Tea Khamkhadze, Former judge at Tbilisi City Court
Ana Natsvlishvili, Activist/Professor of law
Kakha Kozhoridze, Lawyer
Ucha Nanuashvili, Former Ombudsman of Georgia
Maia Mtsariashvili, former Chairperson at Tbilisi Disctrict Court
Irakli Kordzakhia, Lawyer
Zaza Khatiashvili, Former Chairman of Georgia’s Bar Association
Rati Amaghlobeli, Poet
Ioseb Baratashvili, Lawyer
Vakhushti Menabde, Associated professor at Ilia’s state University
Nikoloz Legashvili, Lawyer
Davit Jandieri, Professor of law/Analyst at the center of strategic analysis
Mamuka Akhvlediani, Former Chairman at Tbilisi City Court
Irakli Gabrichidze, Lawyer
Lasha Tughushi, Liberal Acedemy
Tornike Bakradze, Lawyer/Mediator
Article 42 of the Constitution
Human Rights Center
Transparency International Georgia
Human Right Education and Monitoring Center (EMC)
Open Society Foundation – Georgia (OSGF)
Institution for Development of Freedom of Information (IDFI)
Civic Integration Foundation
Georgian Young Lawyers’ Association (GYLA)
Georgia’s Democratic Initiative (GDI)
UN Association of Georgia
 Evident example is the Khorava street teen-age murder case of December 1, 2017. This problem is raised in the conclusion of the Interim Fact-Finding Commission on Murder of Two Youngsters at Khorava Street on December 1, 2017 http://www.parliament.ge/ge/ajax/downloadFile/101632/%E1%83%93%E1%83%90%E1%83%A1%E1%83%99%E1%83%95%E1%83%9C%E1%83%90
The Grand Chamber of the European Court of Human Rights (ECHR) ruled on January 31 over the inter-state case “Georgia v. Russia” (1) that the Russian Federation has to pay 10 million Euros in compensation for nonpecuniary damages related to mass deportation of 1500 ethnic Georgians from Russia in the period from October 2006 to January 2007.
According to the ECHR judgement:
- this amount shall be distributed by the applicant Government to the individual victims, by paying EUR 2,000 to the Georgian nationals who were victims only of a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion)
- compensation for nonpecuniary damage EUR 10,000 to EUR 15,000 to those of them who were also victims of a violation of Article 5 § 1 (right to liberty and security) and Article 3 of the Convention (inhuman and degrading treatment for detention conditions), taking into account the length of their respective periods of detention.
Under the ECHR decision Georgia shall establish an effective mechanism for such distribution of respective amounts to individual victims under the supervision of the Committee of Ministers of the Council of Europe.
The case originated in an application (no. ) against the Russian Federation lodged with the Court by Georgia on 26 March 2007.
In a judgment of 3 July 2014, the Court held that in the period from October 2006 to January 2007 a coordinated policy of arresting, detaining and expelling Georgian nationals had been put in place in the Russian Federation which amounted to an administrative practice for the purposes of Convention case-law. Such actions of Russian Federation had been a violation of Article 5 of the Convention (right to liberty and security, non-existence of legal remedy), Article 3 (inhuman and degrading treatment for detention conditions), Article 13 of the Convention (right to effective remedy), Article 4 of Protocol No. 4 (expulsion of Georgian citizens in that period was an administrative practice).
“Article 42 of the Constitution” represents the rights of 7 victims
expelled by the Russian Federation in the period from October 2006
to January 2007. Under the decision of December 20, 2016, the
European Court has consolidated these complaints in one group
“Berdzenishvili and others v. Russia” (no. 14594/07, 14597/07,
15221/07, 16369/07 and 16706/07) and established violation of relevant articles of the Convention, however it has left open the issue of compensation until settlement of an inter-state dispute. The issue of distributing compensation to these persons will be decided after today’s ruling.
Another case, where the interests of the victims were protected by the organization – “Shioshvili and others v. Russia” (no. 19356/07), the European Court of Human Rights has satisfied the application and imposed payment of EUR 30 000 to Russian Federation for compensation of nonpecuniary damage. The compensation has already been paid to the victims.
On January 29, Organization “Article 42 of the Constitution” has held a conference on the topic “Promotion of employment of persons with disabilities” at hotel “Iota”, Tbilisi.
At the conference the organization presented report prepared within the project “Employment problems of persons with disabilities” and also recommendations, elaborated during the project implementation. Discussion was held at the end of the conference.
Organization “Article 42 of the Constitution” started implementation of the project “Promotion of employment of persons with disabilities” since October 1, 2018, by financial support of the EBERT fund.
According to Member of the Parliament Eka Beselia, illegal recording containing her personal and family secrets is being circulated in social networks. According to Beselia, this deliberate and sponsored smear campaign was launched against her through media and social networks shortly after her resignation from the post of the Legal Affairs Committee. She had resigned the post in order to suspend the process of the appointment of Supreme Court judges.
There have been numerous instances of circulation of illegal recording for the purpose of blackmail in the past few years. The targets of such blackmail were nearly all politicians or publicly active individuals, especially those well-known for openly criticizing the government. It is fairly obvious that the circulation of the illegal recordings served not only to suppress specific individuals, but to send a message that anyone critical of the government could be a potential target. Notably, this type of blackmail has largely been used against politically active women and is thus a warning to all women that they could be targeted next.
It is very alarming that the timing of the circulation of illegal recordings coincides with the critical statements by Eka Beselia in relation to the processes in the judiciary. It is of deep concern if certain individuals used the illegal recordings as means to stall reforms in the judiciary and protect the interests of the clan of judges that wield significant power within the judiciary.
The production and dissemination of illegal recordings is a crime punishable by the Criminal Code of Georgia. In spite of public protest, none of the instances of circulation of illegal recordings were investigated and no perpetrators have been brought to justice. The sense of impunity encourages and leads to repeat offenses, which constitutes a gross violation of human rights and hinders the democratic development of the country.
Notably, the “This Affects You Too” campaign has been working since 2014 to change the legislation and practice of secret surveillance, as well as protecting the constitutional right to private life. Unfortunately, the ruling coalition that came to power as a result of the 2012 parliamentary elections has not carried out any systematic changes in this regard. In spite of the promises made, the Operative-Technical Agency of Georgia still has unlimited access to data of network operators and all communications between private citizens.
Based on the sense of impunity amongst those who circulate illegal recordings and the lack of a legislative framework, we can assume that the Government has no will to protect its citizens’ right to inviolability of private life.
We call upon the Government of Georgia to timely and effectively investigate this case, to exhibit political will and bring an end the instances of illegal recording blackmail, as well as carry out the necessary legislative changes related to the regulation of secret surveillance.
Coalition for and Independent and Transparent Judiciary submitted recommendations regarding criteria and procedures for the selection of the Supreme Court justices to the Speaker of the Parliament of Georgia, Chair of the Fourth Wave Judicial Reform Working Group.
The Coalition believes that impartiality and transparency of the process of appointment of justices for the highest instance court can be ensured only in case of resignation of those judge and non-judge members of the High Council of Justice who supported submission of the list of the Supreme Court nominees to the Parliament of Georgia on December 24, 2018. The Coalition believes that the Supreme Court judicial candidates can only be selected by the renewed composition of the Council and the process shall resume after relevant legislative amendments are made.
As far as the Working Group led by the Parliament Speaker and the process of work on legislative amendments are concerned, the Coalition thinks that the current composition of the Working Group does not ensure fair representation of professional and interest groups. The majority of the Group are the members of the High Council of Justice and those judges who were directly interested in hastened consideration and approval of the list. If the current composition of the Group is maintained, a discussion of substantive changes becomes impossible and contributes to only superficial improvement of the process. Thus, the Coalition refuses to take part in the Working Group and calls on the Parliament to significantly revise the existing format and composition of the Group.
The Coalition’s recommendations concerning selection of the Supreme Court justices are based on three major principles:
The process of selection of the Supreme Court shall include the following major elements:
The recommendations submitted by the Coalition are supplemented by the judicial candidates’ evaluation criteria and the list of documents and information to be submitted by the persons who want to partake in the competition.
Under the recently amended Constitution the High Council of Justice is responsible for nominating the Chief Justice and Supreme Court judges. So far a procedure and additional qualification requirements for nominating candidates for the positions of the Chief Justice and Supreme Court judges have not been established in the organic law. Despite this fact at the December 24, 2018 meeting the High Council of Justice presented the list of the Supreme Court judicial candidates based on a completely non-transparent procedure and in violation of the legislative requirements. The list was sent to the Parliament for approval. It includes the judges notorious for making unjust decisions in high-profile cases and raising questions due to the lack of independence and impartiality.
We believe that in view of the Supreme Court’s importance and role, its judges have to meet higher standards compared to the first and second instance judges. The Supreme Court has to include professionals, who are not only knowledgeable and experienced, but also highly reputable in professional circles and larger society. The judges, who are not trusted in the society and are not distinguished for an honest and impartial attitude to work, will not be able to ensure justice and will keep the judiciary in the state of the least trusted institution for decades thereby hampering the country’s democratic development.
The ruling party has to adequately comprehend the critical state of the judicial system and recognize its responsibility for the negative outcomes of lifetime appointment of candidates nominated for the Supreme Court.
The Coalition is calling on the Parliament of Georgia to start working on the amendments to the Organic law on the Common Courts aimed at establishing additional qualification requirements corresponding to the high status of a Supreme Court judges and defining the rules for nominating the Supreme Court judicial candidates.
The Parliament of Georgia has to refrain from considering the candidates already nominated by the High Council of Justice prior to the adoption of the above mentioned amendments. The selection process has to be renewed only after the relevant legislative changes are made. The legislative body has to evaluate compliance of the candidates nominated under these rules to the requirements established in the Constitution and the legislation.
The Coalition for Independent and Transparent Judiciary is concerned by the nomination of candidates for the Supreme Court Justice position by the High Council of Justice (HCOJ) on December 24. The nomination was made without observing any procedure and majority of the candidates nominated are associated with unlawful and unjust justice for the society. It is clear that confirmation of the nominated candidates by the Parliament will bring about further strengthening of clan governance of the judiciary and will make independence of judiciary an impossible feat for the decades to come.
The changes to the Constitution of Georgia, which entered into effect upon the swearing in of the newly elected President, aimed at depoliticizing the appointment of the Supreme Court justices and making this process professional and merit-based. This spirit of the Constitution has not been reflected in the Organic Law on Common Courts of Georgia and to this time there are no clear procedures or criteria by which the High Council of Justice is to nominate candidates. Under these circumstances the High Council of Justice did not wait for legislative amendments and submitted to the Parliament a list of candidates that was drawn up by several judges behind closed doors.
The nomination of the candidates by the HCOJ did not observe the Constitutional objectives and even the minimal procedural standards. Specifically:
· The Constitution of Georgia stipulates that judges are selected based on two criteria – competence and integrity. This Constitutional provision requires legislative amendments that would set the rules for checking the qualifications of the Supreme Court judicial candidates against these criteria. The HCOJ nominated the candidates, rather than wait for adoption of such amendments. As a result, among the candidates nominated there are judges, who’s compatibility with these two criteria have not been assessed even formally;
· The Constitution states that the Organic Law sets the rules for judicial appointment and dismissal. Despite this, the HCOJ nominated the candidates before the detailed procedure for nominating Supreme Court judicial candidates was prescribed by law;
· The HCOJ selected the candidates capriciously from a limited group of persons. All of the nominated candidates are acting judges. It is unclear what was the criteria for selecting these judges and/or why other interested persons were precluded from equal participation in a fair, open and transparent competition;
· The ten candidates were nominated upon consultation with only a part of the HCOJ members. Not all members of the HCOJ were informed regarding the identity of the candidates to be voted on. The biographies of the candidates were not discussed at a HCOJ session and there was no substantiation as to why these ten judges were distinguished from the remaining 300 judges currently acting in the judiciary. This shows serious risks of corruption and nepotism;
· The one page letter of the HCOJ to the Parliament does not contain any substantiation regarding the nominated candidates.
The identity of the candidates is important to note. Of the ten, seven are notable for occupying, in past or currently, key positions in the justice system and have influence on all major decisions regarding the management of the judicial branch. The names of Mikheil Chinchaladze, Giorgi Mikautadze, Dimitri Gvritishvili, Tamar Alania, Merab Gabinashvili, Giorgi Tkavadze, and Paata Silagadze have for years been associated with clan governance and corporatism in the justice system. Among them the nomination of the two acting members of the HCOJ, Giorgi Mikautadze and Dimitri Gvritishvili further illustrates that members of the HCOJ abuse this high office for own private interests.
Additionally, among the nominated candidates are the judges who’s certain past decisions have been fiercely criticized by various organizations, including the Ombudsman’s reports. Nomination of these candidates was conducted without studying and addressing a single problem related to the nominated candidates’ biographies.
The only lever to alleviate the existing situation in the judiciary and avert further strengthening and solidification of clan governance rests with the Parliament and the ruling majority. On December 26, after the protests of various public groups and negative reaction from certain members of the ruling Georgian Dream, the Speaker of Parliament made a statement that the Parliament will not make a decision on appointment of Supreme Court Justices in the current session and will return to hearing the issue at the beginning of the spring session.
We command the fact that the ruling government has changed its mind on speedily hearing the issue, however, this is not enough. It is of principle importance, that the Parliament refuse to discuss the existing list of candidates for the Supreme Court appointments.
Based on all of above, the Coalition calls on the Parliament of Georgia to:
· decline the list of the candidates nominated for the Supreme Court appointment;
· immediately start working on legislative amendments which will bring the rules and criteria for selecting the Supreme Court justices in line with the Constitution and international standards;
· start the selection process only after adopting the legislative amendments and nominate the candidates anew, following the rules set.
The Coalition also calls on the Speaker of Parliament, Irakli Kobakhidze and the Chair of the Parliamentary Legal Affairs Committee, Eka Beselia, to meet with the Coalition member organizations and other interested groups without delay, and discuss the Coalition’s proposals regarding the selection and appointment of the Supreme Court justices and set a specific plan of action on this issue.
“Article 42 of the Constitution” responds to initiation of draft law by the Parliament members on suspending enactment of law of Georgia on State Inspector Service. The initiated draft law envisages suspending terms of implementation of measures related to full enactment of law, as well as terms of entry into force of investigative powers granted by law to the State Inspector Service for 6 months (till July 1, 2019);
Establishment of State Inspector Service and its timely introduction is a significant reform, which shall facilitate fight against improper treatment, and impartial and effective investigation of crimes committed by public servants and/or their equal persons against human rights and freedoms.
Timely implementation of this reform is essential for effective enforcement of number of decisions made by the European Court of Human Rights against Georgia on improper treatment, creation of impartial investigation standard and establishment of credibility towards such investigation.
The explanatory note to the draft law indicates that the government of Georgia cannot attain all the measures for handing over all material-technical and financial resources to State Inspector Service and the Prosecutor’s Office of Georgia till January 1, 2019, as it was initially envisaged by the law.
Considering the fact that the law of Georgia on “State Inspector Service” was adopted as early as July, 2018, the preparatory period up to 6 months should have been sufficient to ensure fulfillment of all measures determined by the transitional provisions of the law.
Suspending the enactment of law for more 6 months by the abovementioned reasoning and accelerated discussion of the draft law may contain signs of creating artificial barriers to enacting the law, negatively impacting achievement of important goals, timely and effective implementation of which is part of international obligations undertaken by Georgia.
On December 14, The Constitutional Court of Georgia made decision on the case “Citizens of Georgia – Jimsher Tskhadadze and Mamuka Chanturia vs The Parliament of Georgia”; The lawyer of the organization “Article 42 of the Constitution” - Archil Chopikashvili was protecting the rights of the claimant at the Constitutional Court.
According to the dispute norm, age limit for serving as a bailiff is 50 years. As per claimants’ position, quality of performing bailiff’s duties is connected with specific skills and does not depend on person’s age. Appropriately, the dispute norm under which persons exceeding 50 years of age are restricted to work as bailiffs is discriminative and violates the right to occupy and serve at relevant position in public service.
The Constitutional Court has clarified that in certain circumstances envisaged by law, bailiffs are authorized to use physical force, special means and firearm; accordingly, complete fulfillment of bailiff’s duties is significantly related to person’s physical training and health conditions. Though, evidence examined on this case did not prove that achieving the age of 50 by itself meant the loss of skills required for performing bailiff’s duties. According to the Court, it was also possible to assess the person’s physical conditions in every certain case and determine whether he/she satisfied requirements for performing bailiff’s duties. Consequently, mentioned circumstances excluded the need of releasing bailiffs based on their age. The Court has also determined, that the dispute norm is discriminative, unfairly treating substantially equal persons under and over 50 years of age.
Based on all the above, the Constitutional Court found that the dispute norm violated the right to equality before the law on the one hand, and right to occupy and serve at relevant position in public service on the other.
The new version of the Constitution went into effect at the moment the newly elected President was sworn in. According to it, Supreme Court justices are no longer nominated by the President but rather by the High Council of Justice (HCOJ), and they are appointed for life by the Parliament. The Chairperson of the Supreme Court is selected for a 10-year term by the same procedure.
Notably, at this moment the legislation does not provide a transparent procedure for selecting and nominating the candidates for Supreme Court justice and Chairperson positions. Neither are there clear criteria against which the candidates are to be evaluated.
The Supreme Court is the highest instance of justice over the whole territory of Georgia. Its decisions are final and are not subject to appeal by parties. The Supreme Court plays a huge role in establishing and developing court practices and the interpretation of legal norms. Given the important role of the Supreme Court in the justice system, Supreme Court justices must enjoy high public trust. A justice must be an independent, impartial, veracious and honorable professional who enjoys a good reputation with the public and professional circles.
Since the Constitution of Georgia clearly states that additional qualification requirements for common court judges are determined by Organic Law, it is important to implement appropriate amendments to the Organic Law on the Common Courts before starting the selection process for candidates for the Supreme Court. These amendments should establish additional selection criteria and the procedure for nominating the candidates by the High Council of Justice.
In addition, given the important role of the Supreme Court, we believe that the Organic Law should provide for the same vote requirement for nominating a Supreme Court justice candidate that is required for judges appointed to the first and second instance courts – no less than 2/3 support of the full composition of the High Council of Justice.
To guarantee the selection of the judges of the Supreme Court of Georgia complies with international standards and to ensure public trust in the selected candidates, the interviews with judicial candidates at the High Council of Justice must be open and their biographies must be available for the public.
The Coalition positively assesses Article 205 of the newly adopted Rules of Procedure of the Parliament of Georgia, which obligates the relevant committee to create a working group to assess candidates for the positions of Supreme Court justice and Chairperson in accordance with the requirements provided in the Constitution of Georgia and/or other laws.
We believe that the working group should be made up of those legal professionals and representatives of civil society who uphold principles of democracy and human rights in their work. The working group should be given reasonable time for this process. The candidate hearings in the committee must be public and stakeholders must be allowed to pose questions. This type of process will ensure the maximal engagement of civil society, thereby raising public trust in the process.
The Coalition believes that Supreme Court judges should not be elected before the Organic Law establishes detailed rules for the selection and nomination of candidates by the High Council of Justice.
- We call on the Parliament of Georgia to immediately start working on the amendments to the Organic Law of Georgia on Common Courts.
- We call on the High Council of Justice to refrain from nominating candidates before the relevant legislative amendments are adopted.