“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.

Council composition

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 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:

  1. Tamar Oniani, a member of the High Council of Justice, to recuse herself from the further stages of the process of selection of Supreme Court Justices;
  2. The Parliament of Georgia to immediately review the lawfulness of selection of Zaza Kharebava as a member of the High Council of Justice;
  3. Zaza Kharebava, a member of the High Council of Justice to voluntarily abstain from engaging in all review and voting procedures of the Council until the lawfulness of his selection is considered by the Parliament.

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. The Venice Commission 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. 

 

 

 

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).

  • According to the requirements of the Law on State Inspector’s Service, the Selection Commission must submit at least two candidacies to the Prime Minister.
  • Thus if only one candidate meets the qualification requirements, a competition must be re-announced. In order to avoid a new competition, the Commission decided to admit the applicants who failed to pass the first stage of the competition to an interview. 

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 Parliament of Georgia shall not support the candidates selected in violation of the rules of the competition;
  • The Prime Minister shall announce a new competition;
  • The State Inspector’s Office shall be provided with sufficient funds to ensure an effective launch of the investigational mechanism on July 1, 2019.  

 

Annex

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

  *Mandatory structure of the commission:
  • A member of the Government;
  • Chairperson of the Parliament Human Rights and Civil Integration Committee                    
  • Chairperson of the Parliament Legal Committee
  • Deputy Chairperson of the Supreme Court
  • First Deputy Prosecutor General or Deputy Prosecutor General
  • Public Defender or a representative of the Public Defender’s Office
  • A person with a relevant experience selected by the Public Defender 

The Parliament of Georgia elects the State Inspector by the vote of the majority of the full composition.

On June 4, 2019, a group of independent lawyers composed of legal practitioners and University law professors have filed in Parliament of Georgia a draft resolution recognizing clan-based governance in the judiciary and envisaging remedial actions.

 

 

The resolution is initiated by following lawyers – Kakha Kozhoridze, Kakha Tsikarishvili, Ana Natsvlishvili, Maia Bakradze, Besik Sisvadze, Ucha Nanuashvili, Tamar Laliashvili, Zaza Khatiashvili, Soso Baratashvili, Lia Mukhashavria, Irakli Kordzakhia, Besik Loladze, Irakli Kupradze, Levan Totladze, Lasha Arveladze, Khatuna Grigalashvili, Irakli Gabrichidze, Tamar Gegelia.

 

 

The draft resolution is supported by following Non Governmental Organizations – 1. Article 42 of the Constitution 2. Human Rights Center 3. Human Right Priority 4. Human Right Advocates for Justice 5. Independent Labor Union of Lawyers 6. International Organisation for the Protection of Human Rights and Social Security of Prisoners 7. Legal Union Jerarsi.

 

 

Resolution is supported by following political groups: 1. Development Movement 2. European Georgia 3. Political party “For Justice” 4. Republicans 5. Free Georgia 6. Free Democrats 7. Law and Justice 8. Civil Movement of Georgia

 

 

Resolution is supported by more than 300 facebook users.

 

Please find attached draft resolution. We shall be happy to recieve your thoughts and comments:

 

 

 

 

Resolution of the Parliament of Georgia concerning clan-based governance in Georgian judiciary.

Parliament of Georgia

 

Acknowledging that the independent judiciary is cornerstone for ensuring the rule of law and protection of human rights without which there can be no justice or long term stability of the country.

 

Acknowledging that, in 2004 the judiciary got rid of the systemic corruption and took steps for its institutional development, however, an organized group of judges (clan of judges) were formed in the judiciary which seized judicial government and ensured the obedience of the court system towards the executive power and the execution of political assignments through various formal and informal mechanisms.

  

 

Whereas one of the main election promises coming to power in 2012 was the restoration of justice and formation and independent judiciary, for the purpose of which in 2013-2016 the government has drafted a legislative package and started a new stage of the judicial reform. However, due to different reasons, these changes could not bring about the rehabilitation of judicial system and increase public trust. The judicial clan, an organized group of judges, which was governing and controlling the judiciary under previous government has regained power inside judiciary, took over High Council of Justice, started to expel its opponents and appoint its supporters, often against public opinion and in conflict with the interests of justice.

 

Recognizing that the crisis existing in the judicial system has until now never become the subject of adequate political-legal evaluation, which has deepened the existing crisis and brought judicial reform in the deadlock.

 

 

Recognizing that as the result of recent legislative changes, HCOJ was delegated a power to staff the judicial system for lifetime, including Supreme Court.

 

Recognizing that in 2018, HCOJ presented to the Parliament of Georgia a 10 member list candidates for the vacancies in the Supreme Court s composed without proper criteria and reasonable procedures. The procedure of the creation as well as the contents of the list raised large public protest, which finally resulted in breaking up of the majority of the ruling party and political crisis. The Chair of the Parliament legal committee resigned in protest. The Georgian Parliament has suspended the deliberation of the list, while the active part of the society requested the resignation of the members of the clan.

 

Recognizing that in March 2019, Georgian Parliament, in the light of large public protest and criticism from international organizations, including OSCE and Venice Commission, approved legislative amendments in the law of common courts of Georgia granting large discretion to HCOJ to staff Supreme Court of Georgia through secret ballot.

 

 

Acknowledging that the clan and its leaders started to be involved in political process, actively participating in political election debates and undermining the principle of political neutrality of judicial power.

 

 

Acknowledging that the clan based governance in judiciary undermines genuine judicial values, inspires fear, conformism, nepotism, secret deal making culture, bans critical opinion and individualism from the courts, thus morally destroys the court system and corrupts the newcomers.

 

Envisaging that the reinforcement of clan based governance in the judiciary implies the long term formation of the defective obedient judiciary, which will  neither gain public trust nor ensure the protection of human rights, peaceful solution of the conflicts and endanger the peaceful and democratic development of the country. Based on the above mentioned, the Parliament of Georgia rules the following:

  1.  Clan based governance and its consequences should be negatively evaluated.
  2. Through a special decree, the Parliament should create a commission studying the state of judiciary, which shall include the representatives of parliamentary, as well as non parliamentary political parties, civil society organizations and academic circles.
  3. Before September 1, 2019, the Commission should study the state of Georgian judiciary, particularly, concerning the clan based governance and present a plan for the rehabilitation of judicial system as well as legislative package for the elimination of clan-based governance and its negative consequences.
  4. Before December 1, 2019, the Parliament of Georgia should take legislative actions for the elimination of clan-based governance and real reform of Georgian judiciary.  

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[1], 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”.

Signatory Organizations
Human Rights House Tbilisi on behalf of its member organizations:
Ø  Human Rights Center (HRIDC)
Ø  Article 42 of the Constitution
Ø  Media Institute
Ø  Safari
Ø  Georgian Center for the Psycho-Social and Medical Rehabilitation of Torture Victims (GCRT)
Georgian Young Lawyers’ Association (GYLA)
Georgian Democracy Initiative (GDI)
Human Rights Education and Monitoring Center (EMC)
Democracy Research Institute (DRI)
Tolerance and Diversity Institute (TDI)
Open Society Foundation (OSF)
Partnership for Human Rights (PHR)
Media Development Foundation (MDF)
Institute for Development of Freedom of Information (IDFI)
Transparency International Georgia (TI)
 


[1] 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)

Center ,,Empathy’’

Human Rights Center

 


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.

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 justice;

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 . [1]

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. [2]

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.” [4]

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. [5] 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. [6]

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. [7]

The 16th protocol of the convention was ratified by Georgia in 2015. [8]

The courts with the right to request an advisory conclusion were named: the Supreme Court of Georgia and the Constitutional Court of Georgia. [9]

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;” [10]

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. [11]

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.

 


[1] 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

[2] Ibid.

[3] Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms

[4] Protocol No.16 of the Convention for the Protection of Human Rights and Fundamental Freedoms

[5] Ibid. Article 10

[6] Ibid. Article 1

[7] Ibid. Article 4

[8] Resolution of the Parliament of Georgia on Ratification of the Protocol No.16 of the Convention on Human Rights and Fundamental Freedoms

[9] Georgia - Reservations and Declarations for Treaty No.214 - Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms

[10] Preamble, Protocol No.16 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

[11] 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.