The Venice Commission, the Council of Europe’s (CoE) advisory body for legal affairs, adopted at its 124th online Plenary Session (8-9 October 2020) its opinion on the Georgian Parliament’s recent amendments to the Law on Common Courts.
The Venice Commission opinion comes after the Parliament of Georgia, on September 30, greenlighted amendments reviewing the selection of Supreme Court Justices without awaiting relevant feedback from the CoE, despite requesting its opinion on September 22.
The document underlined that “Georgia’s situation is an unusual one and requires a very high level of transparency”, as the High Council of Justice (HCoJ), the chief body overseeing judicial processes in the country and responsible for putting forward Supreme Court Judges, has struggled to establish credibility in the Georgian judicial system.
The Commission noted that certain amendments to the Organic Law on Common Courts “go in the right direction,” in particular, decisions to abolish voting by secret ballot during the selection competition, and to introduce greater transparency by conducting candidate’s interviews in public hearings and by providing publicized written reasoning for each HCoJ member vote.
The document noted, however, that additionally disclosing the identity of HCoJ members and their voting decisions would provide greater transparency in the selection process of Supreme Court Justices by allowing for public scrutiny of HCoJ members. Consequently, the measure would enhance public trust in the HCoJ as a body and deter political decision making, the Venice Commission stated.
The Commission also expressed its concern towards the insufficient appeal mechanism put in place by the draft amendments. While the Qualifications Chamber of the Supreme Court has the power to cancel an initial HCoJ decision, it lacks the ability to issue a second appeal, the document noted.
The inability to issue a second appeal empowers the same composition of the HCoJ to maintain its original decision even if the decision was biased or flawed, the Venice Commission stated. Thus, the Commission recommended that HCoJ’s second decision also be open to a second and final appeal to the Qualifications Chamber.
According to the opinion, the Venice Commission also recommended that “reference be made to the need for equal treatment of candidates by following standardized interviews” to ensure the fair and equal treatment of all candidates.
The Venice Commission opinion further recommended to modify the eligibility criteria for candidates by introducing “a higher age requirement and more emphasis on a candidate’s experience as well as judgment, independence and diversity.”
The Commission also underlined its recommendation to implement an anti-deadlock mechanism, needed for situations in which candidates have received the necessary number of votes to be nominated to the second ballot, but not 2/3rd of the required votes, if this requirement is kept.
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