“Article 42 of the Constitution” reflects on the ongoing competition on the vacancies of judges of the Supreme Court of Georgia and believes that the secret deal among the members of the Council of Justice on the candidates of the members of the Supreme Court, including the gaps revealed during the competition, puts the legitimacy of the entire process under suspicion.
At the initial stage of the competition, the Coalition for the Independence and Transparency of Judiciary, referred to the circumstance which created a legitimate basis for the withdrawal of several members of the Council, including the participation in the process of the unauthorized member and the incompatibility of the interests, these appeals have been left with no response.
Candidates participating in the contest
At the beginning of the trial, despite the NGO sector, many qualified and highly reputable lawyers refused to participate in the competition, which was due to distrust towards the process. However, the Chief Prosecutor Shalva Tadumadze participated in the competition, while the Prosecutor's Office had not yet completed investigation of the cases related to the Supreme Council of Justice or its authorities (including the leakage of qualification tests in December 2015, as well as the fact of supposed beating of an underage Giorgi Mikautadze in the summer of 2016). Everyone has the right to participate in the competition if he/she meets the requirements set by the law but not as an acting chief prosecutor. This may not violate the law directly, however, it creates obvious risks of undesirable influences and impacts.
Acting Secretary of the High Council of Justice Giorgi Mikautadze participated in the competition as well. Two non-judge members of the High Council of Justice spoke about the inadmissibility of participation in the competition. Implementation of powers in the capacity of the chairperson of the council, when the same person is a candidate to become a judge was evaluated by the Coalition for Independent and Transparent Judiciary as a conflict of interests. However, these demands have been left with no response.
Closure of the information about the Candidates
The High Council of Justice refused to disclose applications and attached documents submitted by the candidates participating in the selection of the judges of the Supreme Court to a number of organizations, citing personal data protection. According to the amendments made to the Organic Law on Common Courts on May 1, 2019, this information (except the health status of a candidate) should be public and accessible to everyone. Furthermore, according to the Article 44 of the General Administrative Code of Georgia, the information about the candidate, who is a public official, is public and cannot be closed by the motif of personal data protection. It is obvious that in this case the High Council of Justice of Georgia has violated the requirements of the law.
The first stage of the competition
According to the Law of Georgia on Common Courts, each member of the Council is obliged to make decisions independently and individually. Nevertheless, the results of the first stage of the competition disclosed by the Public Defender of Georgia show that at least 9 people in the High Council of Justice acted with a co-ordinated scheme to bring concrete candidates to the second stage of the competition. Among them, there is a list of ten people composed by the High Council of Justice in December 2018, except for three, who have willingly abandoned the competition.
The scheme was carried out as follows:
The first (4-person) marked 20 of the same candidate.
The second (3-person) group circled 20 one and the same candidates (but completely different from the first group).
The third (2-person) group also 20 circled 20 one and the same candidates (15 out of which were the candidates marked by the second group and 5 other candidates).
According to the “Article 42 of the Constitution” the likelihood that such results should be established without the prior agreement among the members of the High Council of Justice virtually impossible. These facts once again prove that the judiciary is facing the governing crisis that cannot be improved by the judiciary system without assessment and adequate response.
Based on all the above mentioned, the “Article 42 of the Constitution” calls:
1. Parliaments of Georgia
- To initiate a review of the resolution on clan governance in court system, this was submitted to the Parliament on June 4, 2019.
- In the shortest possible time, consider the issue of termination of the authority of the member of the High Council of Justice Zaza Kharebava.
- To ensure the participation of the Coalition for Independent and Transparent Judiciary representatives in the working group of the Legal Issues Committee.
2. The High Council of Justice of Georgia
- To consider and decide on the elimination issue of the member of the High Council of Justice- Tamar Oniani from the course of the competition.
- To ensure the publicity of the candidates' data.
1For more precision, the net mathematical probability of such results is as follows: The net mathematical probability of marking the two identical ballot papers equals to 1 / (5 * 1023), the probability of marking the three identical ballot papers equals to 1 / (2 * 1047) and the probability of four similar bulletins comes to 1 / (1 * 1071). For instance, one-in-a-billion chance in math is expressed as 1 / (1 * 109).
"Article 42 of the Constitution" responds to the fact of breaking up of the demonstrators with the use of forceful methods on June 20 and believes that the actions of the government have gone beyond the frames set by the Georgian legislation and has turned into repression from the disproportionate response action.
Yesterday, participants of peaceful protest gathered in front of the parliament building of Georgia in protest of the Russian politician's ceremonial reception that supported the recognition of the occupied territories as independent states. Participants also demanded to take responsibility and resign from the Chairman of the Parliament.
Under the circumstances the state failed to assess the level of severity of the dissatisfaction amongst the population accurately and was not able to de-escalate the critical situation. As a result, the manifestation escalated into the violent confrontation between the police forces and the members of the rally.
Demonstrators were dispersed with use of the tear gas, rubber bullets and water cannons by the Special Forces and police. Following the dispersion of the main part of the rally, law enforcers continued to use rubber bullets and tear gas against the protesters. Finally, according to various data, 240 people were injured during the dispersal in Tbilisi, including at least 12 journalists; some people lost their eyes and suffered severe surgery.
Considering the number of the casualties and the degrees of the corporal injuries, "Article 42 of the Constitution" believes that the State used critically disproportionate, unreasonable and repressive force against the participants of the demonstration. Preventing the possible illegal actions of certain individuals cannot justify the brutality and crimes carried out by the authorities.
"Article 42 of the Constitution," believes that for the de-escalation of the situation it is important that the government takes all legal measures to find the officials behind the orders to use the disproportionate force and hold them accountable in accordance with the law.
"Article 42 of the Constitution" offers legal assistance to all the people who have suffered as a result of the violent dispersion of the demonstration or have been illegally detained.
The Coalition is extremely concerned by the refusal of the High Council of Justice (the Council) to disclose public information regarding judicial candidates for the Supreme Court to the society. Under the May 1, 2019 amendments to the Organic Law of Georgia on Common Courts, this information (except for the candidates’ medical records) is public and has to be accessible to everyone. By refusing to release public information, the Council is violating the law.
More specifically, in its June 13 letter, the Council refused to disclose applications and supporting documents submitted by participants of the competition for the selection of Supreme Court justices for the reasons related to the personal data protection, even though this information is public under the law. The law, thus interpreted, raises doubts about the Council’s intention to hide information on certain candidates.
The original draft of legislative amendments included a clause according to which the candidate-related information submitted to the Council was supposed to be confidential. In response to harsh criticism raised by this clause, the Chair of the Parliament Legal Committee, Anri Okhanashvili, while presenting the draft law in the Parliament, clearly stated that it would be amended. Eventually, this provision was removed from the bill. was also urging the Parliament to ensure maximal disclosure of information on candidates. In this context, a different interpretation of the law by the Council is arbitrary and is detrimental to the credibility of the competition.
In the debates over the draft legislation, the Government representatives reiterated that their version of the bill was aiming at an “unprecedentedly transparent” selection of Supreme Court Justices. The Council’s recent decision makes the competition for the selection of Supreme Court justices less transparent compared to the selection of any other public official. Under Article 44 of the General Administrative Code of Georgia, the information regarding a candidate for a public office is open and cannot be closed due to considerations related to the personal data protection.
The Coalition believes that the Council’s decision to conceal documents related to candidates eliminates likelihood of public trust in the results of the competition. As of today the Council has only published the candidates’ short biographies on its webpage and the society does not have an opportunity to check validity of this information and supporting documents. Stakeholders are unable to review the documents provided by candidates including their researches, court decisions and other relevant information that can be used for the evaluation of their competence and integrity.
The Coalition is calling on the High Council of Justice to immediately disclose the information submitted by candidates (except for their medical records) and collected by the Council and suspend the competition procedures in the meanwhile.
The Coalition for an Independent and Transparent Judiciary responds to the commencement of the selection of Supreme Court Justices and calls on two members of the High Council of Justice (the Council) to recuse themselves from the next stages of the review.
On June 7, 2019 the High Council of Justice of Georgia started the process of consideration of judicial candidates for the Supreme Court of Georgia. Prior to the registration of candidates, it became evident that the judge member of the Council, Tamar Oniani, and one of the applicants, Zurab Aznaurashvili were relatives. According to the Organic Law of Georgia on Common Courts, a member of the High Council of Justice is required to disclose a conflict of interest in advance and abstain from participating in the decision-making process regarding a specific candidate. The requirement to inform a collegial body about existence of personal interests and to recuse oneself from the decision-making process is also established in the Law of Georgia on Conflict of Interest and Corruption in Public Service. Even though the accuracy of the information regarding Tamar Oniani’s familial connections with one of the candidates for the position of Supreme Court Justices was confirmed during the session, she neglected the requirements of the law, namely, she failed to inform the Council about the conflict of interest in advance. Furthermore, she refused to recuse herself from the process regardless demands of several non-judge members of the Council raised during the session.
On May 14, 2019 the Coalition for an Independent and Transparent Judiciary addressed the Parliament of Georgia with a request to study lawfulness of selection of another member of the High Council of Justice, Zaza Kharebava. During the selection process, the candidacy of Zaza Kharebava was presented by an organization, which was not eligible to do so. This is a severe violation of the Rules of Procedure of the Parliament of Georgia and the Organic Law of Georgia on Common Courts and represents a clear ground for the termination of his authority. However, despite the significance of this issue, the Parliament has not yet discussed it and Mr. Kharebava continues carrying out his duties in the Council, including participation in the review and voting procedures for the selection of judicial candidates for the Supreme Court.
The selection of Supreme Court Justices consists of several stages where each of the Council members’ votes is important. Participation of certain members of the Council in this process while lawfulness of their engagement raises legitimate questions in the society makes it difficult to carry out an objective, fair, and impartial selection of Supreme Court Justices. This may undermine the public trust in this process.
In light of these arguments, the Coalition urges:
Coalition for an Independent and Transparent Judiciary responds to the procedural violations in the competition for the selection of the State Inspector and the failure to provide financial guarantees for the Inspector’s office
On May 17, 2019, The Government of Georgia announced a call for the position of State Inspector. The Selection Commission, as suggested by the existing legislation, included the Chair of one of the Coalition’s member organizations— Georgian Young Lawyers’ Association (GYLA)—and the Deputy Public Defender of Georgia. Both of them are asserting that the competition was held with severe violations.
Only one out of the seven applicants who were invited for an interview (2nd stage of the competition) had fulfilled all the requirements established by the Commission’s Statute – this applicant only submitted a letter of motivation as required. On June 1, 2019, the Commission interviewed five candidates who came for an interview and selected two candidates to be submitted to the Prime Minister, despite the fact that one of the two had not passed the first stage of the competition. On the 3rd of June, 2019, both candidacies were submitted to the Parliament of Georgia for review (see the illustration of the procedure for selecting the State Inspector in the annex below).
Therefore, this process raises a reasonable suspicion that the Commission members’ decision was motivated by an intention to appoint a predetermined candidate for the positon of State Inspector
There were further violations in the communication with the members of the Commission and decision-making procedures.
The Coalition negatively assesses these procedural violations. It should be noted that the competition carried in violation of the law can undermine the legitimacy of the State Inspector’s future work.
This process is even more alarming in the context of the public statement made by the acting State Inspector on May 29th. The statement revealed that the Government of Georgia has not assigned adequate funds to ensure operation of the Inspector’s office. It is worth mentioning that the office was temporarily shut down twice, due to insufficient financial guarantees. Furthermore, according to the information provided by Tamar Kaldani, the list of staff required for fulfilling investigative duties from 1st of July onwards is not yet determined.
The critical need for activating the State Inspector’s Office (whose limited investigative powers are extended to possible wrongdoings by representatives of certain law enforcement bodies) is confirmed by the statistics from recent years, where in almost every case, the investigation of an offence allegedly committed by a representative of a law enforcement body representative does not generate any results.
Consequently, the Coalition calls on to the Parliament and Government of Georgia to take the following actions:
The procedure for the selection of the State Inspector
under the law on the State Inspector’s Service
Prime Minister submits 2 candidacies to the Parliament of Georgia
Commission submits at least 2 but not more than 5 candidacies to Prime Minister
Competition commission is created under the Prime Minister’s order
Commission develops a statute including rules and terms for the submission of candidacies
The Parliament of Georgia elects the State Inspector by the vote of the majority of the full composition.
Please find attached draft resolution. We shall be happy to recieve your thoughts and comments:
May 29 marks two years after the disappearance of the Azerbaijani journalist Afgan Mukhtarli in Tbilisi. Based on the decision of the local court he is currently serving the prison time in Azerbaijan for the illegal border crossing, smuggling and resistance to the police.
The investigation by the Georgian investigative authorities into alleged abduction of Mukhtarli is still ineffective, without any progress. The number of requests Afgan’s advocates called on the government, including the request to grant the victim status to Afgan Mukhtarli and his wife, have been left unanswered.
Even though 30 civil society and media organizations have addressed the Parliament of Georgia, it refused to create the temporary commission on investigation of the alleged abduction of Mukhtarli in Georgia.
Currently, the case of Afgan Mukhtarli is examined in the European Court of Human Rights with priority status. The application that concerns the violation of several rights guaranteed by the European Convention of Human Rights is lodged both against Georgia and Azerbaijan. (Mukhtarli v. Azerbaijan and Georgia, Application No. 39503/17). The governments of both states have submitted answers to the questions asked by the Court. The questions posed before the government of Georgia were in regard to the alleged abduction of Mukhtarli, as well as the ineffective investigation.
The disappearance of Afgan Mukhtarli from Tbilisi and his reappearance in Azerbaijani prison has resulted in many negative consequences for Georgia’s domestic or international public image. The questions about Mukhtarli case by the international partners of Georgia, like the United States of America, European Union or European Council, as well as international organizations working on human rights violations, have been left unanswered.
Successful completion of the Mukhtarli case in the European Court of Human Rights will not only bring financial damage to Georgia but once again will hurt its public image of a democratic state oriented at protection of the human rights. Whereas, if the investigative authorities had conducted the effective investigation, this additional damage could have been avoided.
Signatory organizations once again urge the investigative authorities of Georgia to take all the necessary measures for the effective investigation of Afgan Mukhtarli’s alleged abduction, reveal offenders and punish them.
* Interests of Afgan Mukhtarli on the national and international level are protected by the Human Rights House Tbilisi member organization “Article 42 of the Constitution”.
 See also “Case of Afghan Mukhtarli, Facts and Evaluation” Report, Human Rights House Tbilisi, May 2018. Available at: https://hrht.ge/wp-content/uploads/2018/10/ENG__Online.pdf
On 19th May snap elections are going to be held in several electoral districts. During the last few weeks political activities in Zugdidi electoral district reached the highest threshold of tension. We consider that all the parties involved in electoral processes must abstain from escalating the situation in all the possible ways. It is really important to give all the candidates the opportunity to carry out their electoral campaign in a peaceful environment and the voters as well mustn’t be precluded from the free expression of their will.
A few days ago United National Movement (UNM) Mayoral candidate and her accompanying persons were physically insulted. At this moment police have arrested one person. Moreover, three days ago a video recording in which Gia Danelia, a member of Zugdidi City Assembly, is supposed to be involved. The report recounts how Dandelia speaks about the instruction provided for pressure, bribery and abduction of voters. Yet it is unknown when the recording was made.
Except for the attacks against the candidate of the UNM and above-mentioned recording, during the last few days situation has escalated on several occasions in Zugdidi City Assembly and District Election Commission, where the clashes broke out between UNM supporters and police.
We are informed that on the Election Day the candidates and their political parties are going to mobilize several thousand activists in order to involve them in the electoral process, that’s why there is a risk of physical confrontation between the parties.
Hence, we call on all the political parties to abstain from aggression and confrontation by all means available, in order not to damage the electoral process. Moreover, we call on law enforcement authorities and investigatory bodies to use all legal tools in order to maintain public order and effectively investigate possible violations of law.
Transparency International Georgia (TIG)
Georgian Democracy Initiative (GDI)
Georgia’s Reforms Associates (GRASS)
Human Rights Education and Monitoring Center (EMC)
Institute for Democracy and Safe Development (IDSD)
International Society for Fair Elections and Democracy (ISFED)
Article 42 of the Constitution
Open Society Georgia Foundation (OSGF)
Partnership for Human Rights (PHR)
Institute for Development of Freedom of Information (IDFI)
Human Rights Center
On May 10, 2019, under the
decision of the High Council of Justice the process to select the
candidates to be nominated to the Parliament of Georgia for the
position of Judge of the Supreme Court of Georgia has begun.
A competent citizen of Georgia of 30 years of age who has a higher legal education with at least a master’s or equal academic degree/higher education diploma, at least five years of working experience in the specialty, has the command of the official language, may be appointed (elected) as a judge (Organic Law of the Common Courts, Article 34).
Although there is a fair
share of nihilism in the society and professional circles regarding
the candidate selection process of the Supreme Court judge position
in the High Council of Justice as well as in the parliament;
However, it is important to highlight the role and importance of
the Supreme Court of Georgia in Georgian
The judges of the Supreme Court should be selected by high participation of candidates, through a transparent process, so that this process will not remain in the hands of the parties concerned.
Considering this circumstance, the main purpose and activity of which is the establishment of human rights and fair principles is the day when the current process should not be held without active participation of the professional circles.
On the contrary, in order to improve the position of the Supreme Court judges to be elected to the standard and to minimize the potential of misuse of this process of to the legislation, it is necessary to consider as many conscientious and qualified candidates for to fill the vacancy as possible.
Therefore, we call on to all practitioners operating in Georgia, lawyer, attorneys, prosecutors, academic representatives, who meet the criteria established by the law of the Supreme Court of Georgia to participate in the election of Supreme Court judge contest.
Article 42 of the Constitution, under the law of Georgia will monitor the selection process, in the High Council of Justice, as well as in Parliament.
The European Court of Human Rights created a precedent of issuing an advisory opinion
The European Court of Human Rights created a precedent of issuing an advisory opinion
The European Court of Human Rights used its the authority to issue an advisory opinion for the first time throughout its practice under Article 16 of the Convention for the Protection of Human Rights and Fundamental Freedoms requested by the French Court of Cassation . 
The advisory opinion is important both in terms of content and as an instrument by which the European Court of Human Rights created the first precedent of its enhanced authority.
In case of childbearing through surrogacy, when the child is born via surrogate mother abroad:
• Human Rights and Fundamental Freedoms of the European Convention Article 8 of protection of privacy rights, the state will have to take into account the possibility that the relationship between the child and the non-biological mother may be recognized as a legal relationship between parent and child, when the birth certificate issued abroad recognizes the non-biological mother as "legal parent."
• Such a possibility does not necessarily mean the obligation to register in the State and in the Register of Civil Acts. The alternative path may also be a child adoption mechanism by the non-biological mother, if the internal legislation ensures quick and efficient implementation of the procedure, in accordance with the best interest of the child. 
According to the advisory opinion, the European Court of Human Rights has enlarged and specified the scope of the right protected by Article 8, taking into consideration the new reality created by the possibility of childbirth through surrogacy. The Eurasian Court's explanations clearly demonstrate the living nature of the mechanism of social life, and therefore the fundamental role of courts in the transformation process.
The second fundamental aspect is related to the conceptual conclusion as an instrument. Under Article 16 of the Convention, which was adopted on October 2, 2013 and entered into force on 1 August 2018, the European Court of Human Rights was granted the right to issue the advisory opinions on the basis of the application of the national courts. Article 1 of the Protocol is as follows:
“Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.” 
Each High Contracting Party to the Convention shall, at the time of signature or when depositing its instrument of ratification, acceptance or approval, indicate the courts or tribunals that it designates as highest courts.  The requesting court or tribunal may seek an advisory opinion only in the context of a case pending before it. The requesting court or tribunal shall give reasons for its request and shall provide the relevant legal and factual background of the pending case. 
If the Grand Chamber issues a consultation conclusion, it should be substantiated, however, the conclusion does not have a mandatory nature and does not involve the decision of the national courts to decide on the case conclusion. 
The 16th protocol of the convention was ratified by Georgia in 2015. 
The courts with the right to request an advisory conclusion were named: the Supreme Court of Georgia and the Constitutional Court of Georgia. 
The relevant amendments were made in the Organic Law of Georgia on the Procedural Legislation and the Constitutional Court of Georgia. The courts, seeking an advisory opinion apply to the European Court of Human Rights on their own initiative. The right of a Party to request the use of this mechanism is not envisaged by the applicable legislation, court informs the parties about applying to the European Court of Human Rights and for its advisory conclusion.
According to the preamble of Protocol No.16: “Considering that the extension of the Court’s competence to give advisory opinions will further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity;” 
This mechanism can be considered as a preventive instrument designed to reduce the appeal to the European Court of Human Rights at the earliest stage of the proceedings, through the involvement of a recommendatory nature by the European Court.
The negative side of the mechanism is the expansion of the powers of the European Court of Human Rights and its actual interference in the process of domestic proceedings, but the weakness of this argument is in the non-binding opinion. 
The effective functioning of the mechanism depends largely on the readiness of states (highest courts) to use this mechanism and to avoid further violations of the Convention.
 ADVISORY OPINION
concerning the recognition in domestic law of a legal parent-child
relationship between a child born through a gestational surrogacy
arrangement abroad and the intended mother Requested by the French
Court of Cassation
 Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms
 Protocol No.16 of the Convention for the Protection of Human Rights and Fundamental Freedoms
 Ibid. Article 10
 Ibid. Article 1
 Ibid. Article 4
 Resolution of the Parliament of Georgia on Ratification of the Protocol No.16 of the Convention on Human Rights and Fundamental Freedoms
 Georgia - Reservations and Declarations for Treaty No.214 - Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms
 Preamble, Protocol No.16 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
 Protocol No. 16 of the European Convention on Human Rights 13/07/2015, the need for elaboration of the protocol, the official goals and procedures.
The Human Rights House Tbilisi and its member organizations echo the ongoing criminal proceedings into the murder case of the human rights defender Vitali Safarov and call on the Government of Georgia to ensure comprehensive and effective investigation. It is particularly alarming that the murder was committed based on hate motives by the members of the ultranationalist, neo-Nazi group.
On September 30, 2018, human rights defender Vitali Safarov, 25, was killed in Tbilisi. As witness statements demonstrate, the conflict started in a café in the downtown Tbilisi and then continued in the street – the reason of the violence against Vitali Safarov from the side of the members of the neo-Nazi/ultranationalist groups was his human rights activism, ethnicity and liberalism and the fact that he was not speaking Georgian with his foreign guests of the café. According to the expert statement, Vitali Safarov had 9 wounds, 4 of them were incompatible with life. Currently, two persons are defendants – they are the members of the so-called neo-Nazi group.
Vitali Safarov worked for the Center for Participation and Development (CPD); he was also the team member of the project Tbilisi Shelter City. He was actively engaged in organizing youth camps and different projects on tolerance and against racism, xenophobia and discrimination. It is alarming that the human rights defender became a victim of the representatives of the group, which instill racism and xenophobia in the society.
In the past years, violent actions and demonstrations of various ultra-nationalist and neo-Nazi/fascist groups have become one of the acute challenges for the State of Georgia. They are aggressive and intolerant towards liberal people. Recently, many hate-motivated incidents happened against migrants or other groups on racial and ethnic grounds. The murder of Vitali Safarov is particularly noteworthy as it refers to the hate-motivated murder of an individual based on racial intolerance. At the same time, the interviews with the witnesses of Vitali Safarov’s murder reveal that during the past two years “Emergency and Operative Response Centre – 112“and criminal police had received multiple calls about the violent acts committed by the defendants. The witnesses noted that police never reacted to their phone calls. It once again demonstrated the threat of increasing number of hate-motivated crimes in the Georgian society and the state institutions are obliged to ensure the elaboration of effective preventive measures to combat them.
As the threat of hate-motivated crimes has significantly increased recently, the effective litigation of those cases is still a key challenge. Regardless positive legislative amendments, in particular – the implementation of the Article 531 in the Criminal Code of Georgia – definition of the aggravating circumstance for the crime committed on discriminatory grounds or intolerance, in practice, it is still a problem for the representatives of the investigative bodies and prosecutor’s office to define the real motive of the crimes in such cases.
It can be proved by the low statistics of the use of the norm at the stage of investigation and also in the later stage, when the court examines the case. Consequently, this norm is not properly implemented in practice that indicates the lack of qualification of investigative officers and of the state’s will to fulfill its international obligations. Among them, the State’s obligation to “undertake all appropriate means” and to “implement the policy for the elimination of all forms of racial discrimination.”
It is worth to mention that the Prosecutor’s office determined the hate motive in the murder case of Vitali Safarov only after the Human Rights Center, the organization which defends interests of Vitali Safarov’s family, recommended several times that the investigation changes the qualification of the criminal case and determines the hate motive in it together with the group murder. We positively assess that the Georgian Prosecutor’s office fulfilled the recommendations, namely, the investigation added aggravating circumstances to the charge: intentional murder due to racial, religious, national or ethnic intolerance and changed the qualification of the crime into group murder.
The under-signatory organizations believe that effective litigation into Vitali Safarov’s murder case is particularly important because it refers to the murder committed with the hate motive. Similar crimes create threat and scare those groups or individuals who share the human rights values, are tolerant, have liberal approaches and raise voice in the defense of others’ rights and against discrimination.
Considering the abovementioned, the Human Rights House Tbilisi and its member organizations call on the Government of Georgia:
Human Rights House Tbilisi on behalf of member organizations:
See report „RACIAL INTOLERANCE AND XENOPHOBIA RIGHTS OF FOREIGN NATIONALS IN GEORGIA”, p. 24.
 International Convention on the Elimination of All Forms of Racial Discrimination, Article 2(1).
This statement concerns the Studio Monitor’s investigative report and information circulated by different media outlets (https://bit.ly/2H3D9Ai), which reveal that the requirements of the Law of Georgia on Common Courts were violated in the process of selecting Zaza Kharebava, a non-judge member of the High Council of Justice, by the Parliament of Georgia. Under the law, a violation of this requirement is the basis for terminating the authority of a member of the Council.
This case attracted the Coalition’s interest. We studied documentation supporting Zaza Kharebava’s selection available on the Parliament’s website and came to the conclusion that he was confirmed in violation of the law. Correspondingly, we are calling on the Parliament to consider this issue and terminate Zaza Kharebava’s authority under Point 4, Article 212 of the Parliament Rules of Procedure.
Under Point 3, Article 219 of the Parliament Rules of Procedure, effective at the moment of Zaza Kharebava’s nomination (June 2, 2017), “a non-entrepreneurial (noncommercial) legal entity is eligible to nominate a candidate for the membership of the High Council of Justice, if for 2 years prior to the announcement of the competition this organization has been providing representation in court lawsuits.” A similar requirement is envisioned in Point 5, Article 47 of the Law of Georgia on Common Courts.
These norms clearly require a nongovernmental organization nominating candidates to be engaged in court representation, implying legal aid services for physical or legal persons (an authority to represent clients in court disputes).
Zaza Kharebava was nominated by Nonentrepreneurial Noncommercial Legal Entity (NNLE), Charity Humanitarian Center Apkhazeti. The nominating organization submitted certain documentation to prove that court representation has been one of the spheres of its work for 2 years prior to the announcement of the competition. All of these documents refer to cases where NNLE Charity Humanitarian Center Apkhazeti was one of the parties, instead of representing someone else’s interests. At the moment of submission of documents, the organization nominating Zaza Kharebava did not meet the requirement established in the law. More specifically, no evidence was presented to confirm that one of the organization’s spheres of activities is court representation. Thus, this organization was not eligible to nominate a candidate for membership of the High Council of Justice, while confirmation of an unqualified organization’s candidate by the Parliament clearly violated the Parliament Rules of Procedure and the Law of Georgia on Common Courts.
Point 1, sub-point “K” of Article 48 of the Law on Common Courts establishes that one of the grounds for terminating a HCOJ member’s authority is “selection or appointment of this candidate by an ineligible body or in violation of the rules established in this law.”
In view of these circumstances, the process of selection for Zaza Kharebava violated Point 5, Article 47 of the Law of Georgia on Common Courts, as well as Point 3, Article 219 of the Parliament Rules of Procedure (effective at the moment of his nomination). Thus we are addressing you to consider this case and terminate the office of Zaza Kharebava, a non-judge member of the Council, based on Point 4, Article 212 of the Rules of Procedure.
The Coalition for an Independent and Transparent Judiciary reacts to the legislative changes on the selection of Supreme Court justices by presenting a concluding opinion on the content and process of adoption of the amendments.
The anticipated significant increase in the number of Supreme Court justices raises the importance of the process of their selection. Decisions on the composition of the Supreme Court may have a critical impact on the Georgian justice system for several decades in the current context of public mistrust, systemic crisis and the presence of a group of influential judges. The Coalition has been raising these issues in the process of development of legislative amendments.
The ruling party did not demonstrate a strong will to create a legislative framework that would establish practical and effective barriers for the group of influential judges. Throughout the process of developing legislative changes, the Parliament did not express readiness to consider deserved, rational and justified criticisms or suggestions made by local stakeholders. The draft amendments developed by the Parliamentary majority were revised only after receiving highly critical assessments from international organizations.
Despite certain changes made to the initial draft, the Coalition finds amendments to the Law on Common Courts of Georgiaconcerning nomination and selection of Supreme Court justices, unsatisfactory. We believe that the adopted law allows the influential group of judges in the High Council of Justice (HCOJ) to adopt convenient decisions regarding nominations. In light of the Council’s shaken reputation and the level of mistrust in the processes that took place in December, the adopted amendments may not convince qualified individuals outside the court system that if they decide to apply, the selection process will be fair and objective.
This critical assessment of the draft law by reputable international organizations (Venice Commission and OSCE ODIHR) largely coincides with the Coalition’s position. The Embassy of the United States, the EU Delegation and the Council of Europe Office in Georgia submitted a joint position paper regarding these amendments. The authors of the draft law considered only part of these suggestions. However, several key recommendations were omitted:
The selection of candidates equipped with qualifications, experience, and personal qualities corresponding to the high status of Supreme Court justices requires the following:
The current Parliament should not fill in more than 50% of vacancies in the Supreme Court.
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.