We would like to respond to ongoing discussion in the High Council of Justice regarding the possible lifetime appointment of Tbilisi Court of Appeal judges Levan Murusidze and Maia Sulkhanishvili before the expiration of their three year probation period. Council meetings [1] revealed that all except one member support the automatic lifetime appointment of the former Supreme Court judges.

Council members state that they are obligated to make this decision due to legal amendments that went into force in February 2017 as part of the ‘third wave’ of judicial reform. According to these amendments, the three year probation period does not apply to existing or former members of the Constitutional Court and the Supreme Court. However, a normative act in Georgia can be extended to previous cases only if it explicitly states so, which is not so in the above case. In addition, the new regulation cannot be extended to judges that had already been appointed for a three year probation period, because the third wave of reforms introduced a new procedure for appointing judges that is different from the one used to evaluate and appoint Murusidze and Sulkhanishvili for the probation period.

According to the February 15, 2017 decision [2] of the Constitutional Court, the regulation that allowed persons with at least 3 years of judicial experience to be nevertheless appointed with a probation period was declared unconstitutional. The Constitutional Court gave the Parliament until July 1, 2017 to adopt a relevant legislative change. It seems that the High Council of Justice has decided not to wait for the Parliament to implement this change, since most of the Council members will see their terms expire in June 2017. This raises a suspicion that the Council, with its current composition, is trying to take advantage of existing legal circumstances to secure a lifetime appointment for Levan Murusidze, whose initial appointment in January of 2016 resulted in strong public dissatisfaction.

The main problem with the position held by the High Council of Justice is that it plans to appoint judges without any consideration of whether they deserve lifetime appointment. The explanation offered by the Council, that it is obligated to do so by law, cannot serve as a valid substantiation, since, according to the Georgian Constitution, the High Council of Justice is the only state body authorized to appoint judges. Since it was the Council that appointed Murusidze and Sulkhanishvili for a three year probation period, it may not interpret the law in a way that frees it from the obligation to consider the lifetime appointment of each judge individually and to substantiate its decision.

Therefore, we call on:

• The Parliament of Georgia – to find a solution for judges already appointed for a three year probation period and include this regulation in the legislative amendments to be implemented before July 1 as per the decision of the Constitutional Court. One option would be to allow these judges to request the High Council of Justice to grant them lifetime appointment before the expiration of their three year probation period, after which the Council would have to consider each case individually and make a substantiated decision.
• The High Council of Justice – to take into consideration the importance of public trust towards the judiciary and not grant lifetime appointments to the former Supreme Court judges who have not finished their probation period before the adoption of new regulations by the Parliament.

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Transparency International Georgia

Institute for Development of Freedom of Information

Human Rights Center

Article 42 of the Constitution

Partnership for Human Rights

International Society for Fair Elections and Democracy