OSCE/ODIHR: ‘Political Wrangling Compromises the Independence of Appointments to Georgia’s Highest Court’

OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) said in its “Second Monitoring Report on the Nomination and Appointment of Supreme Court Judges in Georgia” that “while legal reforms regulating the appointment of Supreme Court judges in Georgia are an important step toward improving the independence of the judiciary, they fail to ensure an impartial process based on clearly defined and objective criteria without the influence of partisan politics.”

• Parliament Puts 14 Judges on the Top Bench for Lifetime Tenure
• September 2019 – OSCE/ODIHR on Shortcomings in Nomination, Appointment of Supreme Court Judges in Georgia

In the report released on January 9, ODIHR noted that “the final appointments took place during an opposition boycott, initiated following parliament’s failure to adopt a proportional election system, and amidst a high level of political tension and public protest,” further underlining that “the decision to proceed in the current political environment further calls into question the sincerity of the authorities’ stated aim to have an open, transparent process that garners wide political support and builds public confidence in the judiciary.”

The report underlined that while “recent amendments to the appointment process significantly improved the openness and transparency of the selection of Supreme Court Judges and the granting of nomination authority to the judicial oversight body is in line with international good practice,”  “a number of key shortcomings in the legal framework remain that undermine the aim of a merit-based selection process, including the use of secret votes and the lack of obligation for substantiated decisions, insufficient provisions on conflict of interest, the absence of safeguards against arbitrary decisionmaking, the granting of unfettered discretion to parliament, and the lack of guarantee of the right to appeal against decisions at all stages.”

ODIHR report also reads that “the High Council of Justice (HCJ) and parliament generally implemented technical aspects of the process in line with the law and met legal deadlines, though neither sufficiently exercised their authority to regulate the process to ensure objectivity, fairness, consistency and order.”

Saying that “the HCJ did not adopt procedures or a code of conduct for the hearings to ensure a fair and orderly process,” the report stressed “ODIHR monitors noted that this enabled the unequal treatment of candidates, further limited transparency and contributed to highly disorganized interviews.”

The report further reads that “ODIHR monitors observed frequent debates and conflicts over the procedures and noted that the Chairperson [of Parliament’s Legal Issues Committee] was inconsistent in his application of the rules and announced new procedures during the process.” It highlighted that “the required opening quorum was not met in a number of hearings and attendance by Committee members beyond their own time for questions was generally low, particularly during the period for questions from the representatives of the Public Defender, civil society and academia.”

Speaking of “the Legal Committee[‘s December 12 decision to] recommended appointment of 14 of the 19 nominees based on votes cast almost exclusively by ruling party members and absent any substantive discussion or reasoning on the candidates’ merits,” the report noted that “this approach undermined a transparent, merit-based selection process, failed to adequately inform parliament, and increased the risk that partisan preferences would guide the plenary vote.”

The report also stressed that although committee chairpersons are required by law to exercise their powers in a fair and impartial manner, “the Legal Committee Chairperson’s efforts to maintain neutrality and treat all participants fairly were negated by some of his statements, comments and warnings that were partisan in nature and the inconsistency in application of the rules.”

“On occasions, the [Legal Issues Committee] chairperson criticized questions of opposition MPs or directly engaged them in political debates and some opposition MPs abruptly left the hearing room saying they perceived unfairness or bias treatment.”

Speaking of candidate hearings at the Legal issues Committee, the report further noted that “citing a judges’ duty of impartiality, candidates often refused to answer, or avoided answering questions of a political nature even when arguably the question touched on legitimate issues of judicial independence or the judges’ legal position on issues of public interest.” The report further underscored that “candidates also refused to respond to questions that called for explanation of their past court decisions (at times on-going cases) or those of their colleagues even if the cases were publicly controversial and raised concerns about the judge’s motivations and impartiality.”

The report also noted however, that “overall, despite the politicized nature, the hearings covered a broad range of issues relevant to assess the merits of the candidates.” It further noted that “the participation of representatives of the Public Defender, civil society, the legal profession and academia enhanced the quality of the hearings by broadening the issues covered and providing relief from the more political and highly contentious subjects.”

Speaking of shortcomings in the Parliamentary Committee Conclusions, the report noted that

“the conclusion submitted to the plenary was only the names and voting results of the recommended nominees, without substantive findings on the merits of the candidates.”

It underscored that “the lack of a Conclusion that, to the highest extent possible, assessed the merits and qualifications of each candidate, limited parliament’s ability to vote on the candidates on the basis of their professional merits rather than political preferences.” “This is a key risk of a system of parliament appointed judges and limited transparency”, the report added.

Speaking of plenary vote, the report found out that “there was no opportunity for debate or a substantive discussion on the merits of each of the nominees, which is not in the line with the Rules of Procedure.” It then added that “the successful nominees were favourably voted by the vast majority of the MPs, on average 87 votes or 95 per cent in favour, and the five unsuccessful candidates received an average of one vote (1 per cent) in favour.” It also brought attention to the fact that “the vast majority of MPs abstained from the vote for the five unsuccessful candidates” and that “notably, almost all GD [ruling Georgian Dream party] Committee members had inconsistent abstention patterns between their committee votes and plenary votes, indicating that at plenary they were aligning their votes with their party.”

In recommendations part, ODIHR noted that “Parliament should consider, without delay, amending the legislation in line with unaddressed recommendations in the 2019 ODIHR Legal Opinion to bring the legal framework further in line with international standards and
recommendations, and OSCE commitments.”

ODIHR recommends the Georgian parliament “to establish eligibility criteria that requires more years of experience and extensive human rights experience to ensure higher standards for the candidate pool” and to “amend timelines to allow a thorough examination of candidates’ merits prior to shortlisting and schedule hearings that allow for sufficiently substantive interviews.”

It also called on parliament to “ensure inclusive, extensive and effective consultations with civil society on any initiatives for legal reform of the judicial system and to involve civil society throughout judicial selection process.”

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