OSCE/ODIHR on Shortcomings in Nomination, Appointment of Supreme Court Judges in Georgia
“The nomination and appointment of Supreme Court Judges in Georgia is lacking transparency and accountability despite some positive measures to build public trust in the judiciary,” according to the new report of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), released on September 10.
“The recent constitutional amendments significantly increased the number of Supreme Court judges appointed for life. It is therefore crucial to have a fair, independent and transparent process to ensure that only the most qualified and competent candidates are appointed,” ODIHR Director Ingibjörg Sólrún Gísladóttir said.
ODIHR monitoring finds shortcomings in nomination process of Supreme Court judges in Georgia, negatively impacting transparency and fairness. Read more here: https://t.co/JID42WbAy2 ??
— OSCE/ODIHR (@osce_odihr) September 10, 2019
The ODIHR monitoring team consisting of two national and one international monitors began its work on June 29, monitoring all candidate interviews before the High Council of Justice (HCoJ) as well as the voting for the final 20 candidates to fill the vacant seats at the country’s top bench last week.
According to the report, the HCoJ “did not adopt rules of procedure or a code of conduct for the hearings to ensure a fair and orderly process.” This led to “unequal treatment of candidates, further limited transparency and contributed to highly disorganized interviews.” Moreover, tensions within the HCoJ were very high during the process, which, according to ODIHR monitors, “resulted in frequent hostile remarks and heated arguments that dominated the interviews and created an unprofessional atmosphere.”
ODIHR monitors observed that the substance of the hearings widely differed with regard to the number and content of questions, the manner of questioning and the length of the interviews, contrary to the principle of equal treatment. While overall, the questions posed covered issues related to the evaluation criteria of competence and integrity, ODIHR monitors noted significant differences in how candidates were questioned and treated and at times HCoJ members indicated in various ways their support or opposition of a candidate. Still, the mixed composition of the HCoJ with both judge and non-judge members contributed to the substance of the interview process,” according to the report.
The report also noted that the final 20 candidates “did not coincide with the top 20 based on the scores received, as five of the top-scored candidates were not among the 20 selected.” It said, as the HCoJ “is not required to provide a reasoned explanation of the decisions taken on shortlisting, determining the ranking, or the final selection of the 20 candidates to be put up for nomination,” the opportunity for legal redress is significantly hindered.
Legal framework
ODIHR said that although the final amendments to the Law of Georgia on Common Courts addressed a few its recommendations including the introduction of some provisions to avoid conflict of interest within the HCoJ when HCoJ members are also candidates and the removal of the requirement for non-judge candidates to pass the judicial qualification examination, key shortcomings remain, which include:
- insufficient assessment criteria and a secret ballot selection procedure which along with the expedited timeline undermines the merit-based selection system;
- the absence of a requirement for a reasoned decision for the ranking and nomination of candidates based on the established evaluation criteria;
- insufficient guarantees against discrimination and a lack of mechanism to achieve gender balance and diversity;
- inadequate regulation of conflict of interest in the nomination process;
- the lack of a clear right for candidates to challenge decisions of the HCoJ before a judicial body.
It also noted that,” the adopted amendments fail to provide safeguards to prevent the politicization of the appointment process before the parliament.” According to ODIHR, “the Georgian legislation foresees a merit-based selection process and provides that the HCoJ’s decisions throughout the process are to be based on two main criteria of competence and integrity, which are further broken down into sub-criteria.” “However, the requirement for merit-based decision-making is seriously undermined by the use of secret votes throughout the process and the absence of a requirement for justification of the rankings and nominations,” it noted.
The lack of transparency in the HCoJ’s decision-making procedures may result in arbitrarily decided judicial appointments, potentially undermining the integrity of the appointment process and resulting in a violation of Article 6 of the European Convention on Human Rights, which provides basic guarantees for an independent and impartial tribunal,” it also stated.
According to ODIHR, the HCoJ did not adopt any regulations to supplement the legislation and further elaborate on the various stages of the nomination process to enhance transparency and accountability, as well as ensure an objective, merit-based process and greater gender balance and diversity in the Supreme Court.”
Candidate Hearings
According to the report, procedural rules for conducting the interviews were not adopted by the HCoJ, “which left the process disorganized and without any clarity and consistency in terms of structure and format.” It said that despite ODIHR recommendations, “there were no standards for the number or content of questions, the manner and timing of questioning, or the length of the interviews, and no rules of conduct were in place to ensure a fair and orderly process.”
Each interview was essentially improvised, with limited rules verbally discussed and changed on an ad hoc basis that did not serve to ensure any level of consistency in the process and did not provide candidates with advance notice about the nature of the proceedings,” ODIHR reported.
It then noted that “there were also observed discrepancies in the tone that each candidate was interviewed and the nature of the questions, with some candidates offered favored conditions, undermining the fairness of the process,” while “many members approached other candidates in a more hostile manner.” “Overall, the questions covered in each interview broadly related to the established evaluation criteria of competence and integrity, though members widely differed in the focus of their questions,” according to ODIHR.
The ODIHR monitoring team will continue to follow the process through the next stage when the HCoJ nominations are considered by parliament and will issue a final report providing a comprehensive assessment of the entire process as well as recommendations going forward. ODIHR calls on parliament of Georgia “to critically review the process before the HCoJ and address procedural deficiencies identified to ensure the process enjoys greater confidence and results in the merit-based selection of the most qualified candidates.”
On May 1, the Parliament of Georgia made amendments to the Law on Common Courts, clarifying the selection and nomination procedures of the Supreme Court judges. Shortly after the law approval, the High Council of Justice announced a competition for filling 20 vacancies in the Supreme Court. A total of 139 candidates submitted applications, and 50 of them were shortlisted through secret ballot on June 20. Two of the shortlisted candidates – Levan Tevzadze and Amiran Dzabunidze – withdrew their names, so the interviews were held with the remaining 48.
At present, 20 of the 28 seats on the Supreme Court are vacant, including the position of chairperson. The parliamentary Committee on Legal Issues will now vote for each of the 20 nominees of the HCoJ. If supported by the majority of lawmakers, each candidate will be appointed to the Supreme Court for a lifetime tenure.
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