The Coalition addresses the judicial selection competition that the High Council of Justice (HCOJ) initiated on February 17 to fill 84 vacancies. Applications have already been reviewed and 105 candidates were selected for interviews.
The HCOJ is conducting the competition using legislation that the Constitutional Court of Georgia has declared unconstitutional and which the Parliament of Georgia must amend by July 1. As of now it is unclear how the Parliament will ensure compliance with the Constitutional Court’s judgement and what will change in the rules of judicial selection. Accordingly, it is unclear which of the candidates participating in the selection may be placed on probation, who will be exempted from probation, and what will be the rules for appointing those judges for whom probation is not applicable. Despite the current opaque and unpredictable legislative environment, the HCOJ is continuing the selection process and trying to fill the judicial system vacancies using the existing deficient legislation before amendments are adopted.
It is worth noting that a large portion of HCOJ members will be facing the end of their terms in the nearest future and the remaining time does not allow the current corps of HCOJ to carry out the selection of judges without haste and in full compliance with existing regulations, objectively and based on merit. Additionally, the judicial selection process precludes participation in judicial appointment decisions for those HCOJ members who have not participated in the judicial selection (information analysis and interview) processes.
Beyond the above mentioned, there is a host of circumstances before and after the announcement of the competition that create the impression that the current corps of HCOJ is trying to hastily conduct the judicial selection competition. This further indicates that the HCOJ decision to conduct the competition in haste using imperfect legislation may be based on a prior agreement between certain members of the HCOJ and certain judges regarding their certain appointment.
The Coalition has previously repeatedly made statements regarding the judicial selection processes through which over one hundred judges were appointed in opaque and unjustified manner. Unfortunately, the HCOJ has yet again failed to dispel doubts regarding the opaqueness and lack of objectivity of the judicial selection practices. At the same time, filling the large part of vacancies in the judicial system just before the amendments will diminish the impact of the improved rules of judicial selection.
Convergence of the above circumstances leaves the impression that the HCOJ purposefully did not call the competition in time and did not alleviate the situation caused by the inadequate number of judges in the system. This is wholly the HCOJ’s responsibility. The Coalition appreciates that judges are overburdened and that there are social protection factors related to the end of judicial tenure. However, we believe that the transparent and objective selection of judges is largely the basis for the judicial system’s condition in the decades to come. Based on the above, we call on:
High Council of Justice:
- halt the judicial appointment process until the formation of the new HCOJ.
- not make a decision on the appointment of judges with a probation period before the adoption of the legislative amendments (by July 1, 2017) called for by the Constitutional Court regarding the introduction of rules of appointment for judges with prior judicial experience.
- start active work on the development of proposals for the legislative amendments in cooperation with the Parliament and civil society.
Parliament of Georgia:
- ensure that the lifetime appointment rules are developed timely and in light of the spirit of the Constitutional Court decision. Design a special regulation for the former judges who are already appointed with a probation period for the HCOJ to decide their lifetime appointment based on individual discussion and using pre-set objective criteria.
The Coalition presents information about circumstances which are indicative of important violations, the Council’s attempt to complete the process of appointments before adoption of the legislative amendments, and raise questions with respect to objectivity of the judicial appointment process:
- The competition is carried out in a rush and is problematic. Starting in August 2016, the competition announcement issue was included in the Council meeting agendas. However, discussion on this topic was postponed on the Council Secretary’s initiative without any explanations. Finally, the competition was announced on February 17, 2017. Considering the fact that the majority of the Council members’ terms expire in June 2017, it is expected that the competition will be completed by this time. Correspondingly, in two months the Council has to study cases considered by candidates who have served as judges (at least 325 cases) and background information on all candidates. They also have to interview 105 candidates and make final decisions. Vakhtang Mchedlishvili, a member of the Council who is the President’s nominee, previously often talked about the need to announce a competition, but his suggestion was not considered. Currently, there are 84 vacant positions in the courts. Hence, the courts are overloaded. The Council stresses this issue to justify why the competition is carried out in a rush.
According to the new judicial appointment rules, the High Council of Justice considers candidates applications and supporting documents in five work days and immediately upon completion of the application review publishes the bios of candidates, whose submissions correspond to the requirements established in the law. The list of candidates admitted to the competition was agreed on March 24. However, until now the candidate bios have not been published, and the list was not published until March 29. Also, the competition is being carried out despite the fact that the Council has not brought the internal regulations governing the competition in conformity with the “Third Wave” amendments. The haste with which competition is conducted and various other problems were pointed out by Vakhtang Mchedlishvili, thereby inviting aggressive comments from the other members of the Council.
- The ongoing competition raises doubts about informal collusions. The terms of two-thirds of the Council members expire in June, 2017. Also, according to the Constitutional Court decision, starting from July 1 the rule according to which former judges are appointed for life will come into force. In these circumstances, the interest of former and sitting judges in the ongoing competition raises doubts about informal collusions with the current members of the Council. Interestingly, 85 out of 105 candidates admitted to the second stage of the competition are former or sitting judges.
Special attention has to be paid to the fact that the nine Supreme and Constitutional Court judges participate in the competition. These include Mikheil Chinchaladze, the first Deputy Chair of the Supreme Court, and Otar Sichinava, former Constitutional Court judge. It is well known that at the end of December 2016, the “Third Wave” legislative package was hastily amended right before the third reading. The changes, which were not preliminarily discussed, introduced the rule according to which the three-year probationary term does not apply to the Constitutional and Supreme Court former and sitting judges. They are appointed for life. It needs to be said that for a long period of time the governing political group did not agree to revise the probationary term provisions. Correspondingly, suspicions grow stronger that the above legislative changes were made as a result of informal deals and intended to serve specific persons’ interests.
- The competition terms are not preliminarily defined and the candidates are unaware of for how long and based on which procedure they will be appointed. The Constitutional Court Plenum decision abolished the normative meaning of Article 36, Paragraph 41 of the Law on Common Courts of Georgia, which envisioned the three-year probationary term for Appellate and District (City) court judges with at least three years of experience in the capacity of a judge. This decision, which was issued prior to the announcement of the competition, stimulated a discussion among the members of the Council about the term for which the judges taking part in the competition have to be appointed. Some members of the Council supported the idea to appoint judges for life based on the Constitution. The others supported appointment of judges for a probationary term until July 1st based on the current regulation. The first stage of the competition is completed. Despite this, the Council has not come to an agreement on this issue. Therefore, the candidates are unaware of the rules that will be followed during the competition. Correspondingly, the terms of the competition are unforeseeable.
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