Conflict of Interest in the Nomination Process of Candidates of Supreme Court Justices

Rule of Law | Publications | Blog Post 5 August 2019

Interviews are being undertaken at High Council of Justice for the sake of nomination of candidates of Supreme Court Justices. Zurab Aznaurashvili and Levan Tevzadze are shortlisted candidates. According to a member of High Council of Justice - Nazi Janezashvili, aforementioned shortlisted candidates have close relation with the members of the High Council of Justice - Tamar Oniani and Irakli Shengelia. In particular, Zurab Aznaurashvili is a brother of Tamar Oniani’s spouse and Levan Tevzadze is a brother of Irakli Shengelia’s spouse. Despite obvious conflicts of interest, members of the High Council of Justice have not made statements about this fact and they participated in secret ballot as well as in the process of interview. Refusal to self-recusation was explained in a way that their participation in the interview was not inconsistence with the Organic Law of Georgia on General Courts since the aforementioned law regulates conflicts of interest in case of appointment of judges and not nomination of the candidates.

 

In the modern democratic and constitutional state, the main reason of prohibition of conflicts of interest is to minimize subjectivism and partiality. The same approach is in the Organic Law of Georgia on General Courts, that regulates different procedures for appointment of judges in the first and second instances of the court on the one hand and on the other nomination of the candidates of the Supreme Court Justices. The cornerstone of the conflicts of interest serves good governance, that is based on equality and equal access on the common good for everyone. [1] Its main aim is to exclude subjective approach in the decision making process in different branches of the government and to avoid getting any kind of benefit by using public authority. [2] European Convention of Human Rights, in the context of the right to fair trial, highlights independent and impartial tribunal established by law. [3] Apart from the independence and impartiality, in the process of exercising judicial authority, integrity has a special importance and in this context reliability and objectivity toward the judiciary has an important role from the society’s point of view.

 

The new rule on the selection of Supreme Court Justices in the Organic Law of Georgia on General Courts entered into force a bit later, in a few months after constitutional changes. [4] Before aforementioned changes, in the recommendation of the Venice Commission, special focus was on the conflicts of interest in the process of nomimation of candidates. [5] According to the Venice Commission, draft law should have considered avoiding conflicts of interest in the nomination process. [6] Apart from the allocation of member of High Council of Justice as a candidate from the nomination processes, Venice Commission also recommended the legislator to consider cases for recusation when the candidate is a spouse, close relative etc. of the member of High Council of Justice in order to avoid any kind of perception in society that the member of High Counsel of Justice would have any kind of subjectivism and partiality. [7]

 

To reduse subjectivism in the process of nomination of candidates, OSCE ODIHR has also recommended legislators, to review the draft law.[8] Recommendation underlined that the High Council of Justice should meet that international standards covering conflicts of interest in the process of nomination and appointement of judges and to exclude any kind of conflicts of interest that might be caused by candidate’s cooperation to the member of High Council of Justice and/or other cases, and that all in similar cases, participation of member sof High Council of Justice should have been excluded in the nomination processes. [9]

 

Despite of the recomendations of the Venice Comission and OSCE ODIHR, in terms of conflicts of interest, legislator regulated only the rule on participation of the member of High Counsel of Justice in the contest. [10] It should be highlighted that in the process of the appointment of the judges, the Organic Law excludes conflicts of interest. The members of High Council of Justice are obliged to recuse themselves in the process of appointement of judges in the lower instanes of the court. [11] Namely, according to the law, in case of the circumstances when objectivity, independence and/or impartiality of the member of High Council of Justice is questionable, the member(s) has to announce about that and avoid him/herself to take participation in the decision making process. [12]

 

According to the law of Georgia on “Conflict of Interest and Corruption in Civil Service”, if civil servant is obliged to decide the case in collegial organ, in which he or she has estate or any other private interest, he or she shall inform other members of this organ or his/her direct supervisor about that and refuse to participate in decision making process. [13] Apart from this, civil servant has to be attentive to any existing or potential conflicts of interest and to make all possible measures to avoid any kind of conflicts of interest.[14] The aforementioned law covers also members of High Council of Justice. [15] Therefore despite the fact that in the process of nomination, the Organic Law of Georgia on General Courts does not directly includes the same regulation as it is in appointment process, in case of private interest, the member of High Counsel of Justice shall recuse him/herself according to the Law of Georgia on “Conflict of Interest and Corruption in Civil Service.”

 

It should be highlighted that nomination of the candidates of Supreme Court Justices is even more important than the appointement of the judges in lower inctances of the court, since the Supreme Court of Georgia is the highest and last cassation instance of the court, where justices are appointed lifetime, until the age defined by the law. Therefore, it is important the members of the High Council of Justice to consider high interest in society, actuality of the case and to express high level of integrity that is broader than the narrow definition of the law and to exclude such facts that might cause perceprtion of subjectivism and partiality in society. Close relation between the candidates and the members of High Council of Justice cause lack of reliability, impartiality and Integrity of the members that is confirmed by the above mentioned recommendations of Venice Comission and OSCE ODIHR. Refusal of self recusation of the members of High Counsel of Justice makes negative influence on the whole process of nomination. Citizens’ outlook and attitude toward the state is formed by their negative or positive imagination on the public administration. Positive or negative imagination of the citizens is originated from the single cases that is in the agenda during exercising authority in defferent branches of the government.

 

 

[1] Good governance covers principles of responsiveness and accountability, that foresees an effective mechanism in order to avoid public administration with negligence of integrity

 

[2] This is also a cornerstone of law of Georgia on “Conflict of Interest and Corruption in Civil Service”

 

[3] European Convention of Human Rights, Article 6

 

[4] On the 1st May of 2019

 

[5] Urgent opinion of Venice Commission on selection and appointment of Supreme Court Justices available at: https://www.venice.coe.int/webforms/documents/?pdf=CDL-PI(2019)002-e

 

[6] Venice Commission, Urgent opinion on selection and appointement of Supreme Court Justices, para. 50-51

 

[7] Ibid, para. 52

 

[8] OPINION ON DRAFT AMENDMENTS RELATING TO THE APPOINTMENT OF SUPREME COURT JUDGES OF GEORGIA JUD-GEO/346/2019 [AlC], Warsaw, 17 April 2019 available at: https://www.osce.org/odihr/417599?download=true

 

[9] ibid, para 64

 

[10] Law of Georgia on General Courts, Article 341, paragraph 16

 

[11] Law of Georgia on General Courts, Article 353, paragraph 2

 

[12] Ibid

 

[13] Law of Georgia on “Conflict of Interest and Corruption in Civil Service”, Article 11, paragraph 1

 

[14] ibid, Article 134, paragraph 2

 

[15] ibid, Article 2, paragraph 1, subparagraph “r” and Article 21 paragraph 1

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