Tbilisi – on September 16, 2019, the Georgian Young Lawyers Association and Transparency International – Georgia presented the seventh monitoring report of the High Council of Justice of Georgia of the year 2018, which assesses the legislation regulating the activities of the Council and the activity of the Council while selecting/appointing judges, transparency of the Council activity, a rule and practice of appointing the chairperson of the court and disciplinary liability of judges.

Monitoring revealed the following tendencies: 

The Council failed to ensure proper implementation of the “Third Wave” of the Judicial Reform in practice. The authors of the report believe that this innovation has been unable to essentially eliminate the problems prevailing in the judiciary system, moreover, in some cases, it even contributed to their exacerbation. The existing statutory framework effectively supports and strengthens an influential group of judges. This influential group (Commonly referred as the “Clan of Judges”) using the loopholes in the legislation, extends its powers to the entire judiciary.

During the monitoring period Judges were appointed to the positions with the same shortcomings that the reform (Third Wave) itself intended to eliminate. The problem of all-out unacceptance of pluralism and critical opinion still remains in the new composition of the Council that prevents subjective reasoning and justification of discussions. The accountability system of judges still remains ineffective, which contains a threat to their independence. The vicious practice of appointing acting chairpersons of the court/chamber/panel is maintained. Legislation is characterized by such flaws, which leave a wide range of possibilities for the Council to take unsubstantiated and subjective decisions: Namely:

• The group of influential judges exerts influence over the other judges through their appointment/dismissal mechanisms and subordinates them to their own goals. Defective legislation utilized while selecting/appointing judges enables the Council to give a non-objective and non-transparent flow to the process: the rule of appointing a judge through the secret voting makes it possible for the Council members to take a decision without considering the results of the individual evaluation of the candidates. Candidates that are refused an appointment have no legal recourse against refusal, no substantiation of evaluation of judges is envisaged; the process of interviewing candidates is not formalised the share of interview in the overall evaluation score of judges is not determined, which allows for broad opportunities for arbitrariness at the interview stage; the stage of the candidates’ background check is just a formality.
• During the competition conflict of interest instances have been identified. Despite being prohibited by the law, the Council members participate in the process of interviewing competing candidates, have access to confidential information available to the Council as a result of the candidates’ background check. This creates unfair and unequal conditions for Council members participating in the competition compared to other candidates.
• The competence of conducting the qualification examinations enables the Council to fully control the process of selection and appointment of judges, since the qualification exam, as well as the admission of students (to the High School of Justice) and, ultimately, the appointment of judges, is entirely in the hands of the Council. It gives the Council excessive power and ability to inappropriately influence over the process of selection-appointment of judges.  
• The Council appoints the chairpersons of the court/panel/chamber without the relevant criteria and procedures, mostly in the non-competitive environment. The process of interviewing has a formal character and leaves the impression that the appointment of certain candidates had been decided in advance; unregulated mechanism of appointing the acting chairperson proves to be a problem that makes it possible to impose this authority on a specific person for sort of indefinite and on an uncertain ground.
• The overwhelming majority of the Council votes are sufficient for appointing or dismissing an inspector. This allows the judicial members to appoint a desirable member and to dismiss him or her the minute they lose control over this person. Especially in the conditions when only general grounds susceptible to manipulation are established for his or her dismissal.
• Despite the positive changes made, existing statistics show that the mechanisms of disciplinary proceedings are ineffective. Adherence to the statutory time limits and delay in disciplinary proceedings continues to be a problem. The rate of termination of disciplinary proceedings is high.
• In the reporting period, cases of improper preparation for sessions were reported. Significant problems in this regard are illustrated by the fact that the Council members were often provided with necessary documents on weekends for a Monday session or during the session itself points to serious problems in session preparation. As in previous years, there were cases in 2018 as well when discussions were postponed for this reason.
• Since 2018, the Council produces session protocols only in audio format. This change constitutes a significant reduction in transparency compared to previous years when the Council produced video-audio protocols. Audio recordings are not able to fully reflect the situation in the session hall.
• Low transparency of the High Council of Justice is illustrated by the fact that in 2018, 34 judicial candidates requested closed interviews. Competition for admission into the High School of Justice was also completely closed.
• For the seventh year in a row, the authors of the report have highlighted the issue of (through the media) the public coverage of Council meetings. Nevertheless, during the reporting period, media outlets were covering mainly the opening of hearings and were not allowed to fully record the course of the session.

As a result of the monitoring, relevant recommendations have been provided. We hope that the main findings and recommendations revealed by the monitoring will be taken into account by the members of the Council, executive and legislative bodies. The Georgian Young Lawyers Association (GYLA) and Transparency International – Georgia will continue to monitor the Council.

The implementation of the monitoring project was made possible by the generous support of the American people through the United States Agency for International Development (USAID). GYLA and Transparency International Georgia are responsible for the content of the report. It might not necessarily reflect the views of USAID, the US government or, East-West Management Institute (EWMI).