On July 31, 2017, IDFI applied to the Constitutional Court to issue public information. In particular, IDFI requested to receive a copy of conclusion of the Ethics and Disciplinary Commission of Constitutional Court concerning the disciplinary proceedings against the judge Merab Turava launched on September 6, 2015. On September 25, 2017, our organization also applied to the Constitutional Court and requested information whether there were ongoing disciplinary cases against judges, which had not yet been decided.
On 10 November 2017, the Constitutional Court refused to provide public information in violation of the deadlines defined by the legislation. According to the Court, releasing the conclusion on the above-mentioned disciplinary case would cause the disclosure of deliberative secrecy regarding the case of former Mayor of Tbilisi Gigi Ugulava, concerning to which case the disciplinary proceedings were initiated against the judge Merab Turava. Furthermore, the Court pointed out that the conclusion of the Ethics and Disciplinary Commission requested by the IDFI is a matter discussed at a closed session. The closing of the session will lose its importance if the information and the motivation discussed in the conclusion is public for everyone. It is worth mentioning that the Court has previously provided us information, according to which none of the members of the Constitutional Court had supported pre-term termination of the authority of the Judge Merab Turava, on the voting held on December 14, 2016.
As for the letter sent by our organization on September 25, 2017 concerning the ongoing disciplinary cases, the Court left it unanswered.
We believe that refusal to issue the requested public information amounts to restriction of the principle of publicity of information provided by Article 41 of the Constitution of Georgia.
We agree with the fact that the members of the Constitutional Court have the obligation not to disclose the secret of the meeting held in the decision making process or the position of the judges demonstrated in the process of voting, but this does not mean that the accessibility of the Court’s decisions is fully restricted. For these purposes, the main thing is that the position of the judges demonstrated in the process of voting and the essence of the meeting must not become public.
In this case we believe that it is unfounded not to grant public information in the name of protection of deliberative secrecy.
First of all, it is noteworthy that the letter sent by the Court to IDFI did not include the explanation about the link between the conclusion of the Ethics and Disciplinary Commission and the views expressed by the judges regarding the case of Gigi Ugulava. In addition, it is necessary to maintain balance between court decisions and the protection of the secrecy of judges' position. Consequently, even if there was a real connection between the conclusions of the Ethics and Disciplinary Commission and the positions expressed by the judges on the particular constitutional claim, fair balance could be achieved by providing requested public information containing hatched parts.
In this regard, it should also be taken into consideration that the possibility of closing the session is given in the by-law of the Constitutional Court , which is not a law adopted by the Parliament. The Constitutional Court itself, in the case "Giorgi Kraveishvili vs Government of Georgia," established a standard under which the access to public information may be restricted only by law. This formal request is satisfied, whereas (1) the issue is properly regulated by law; or (2) the lawmaker delegated the authority to regulate the matter by another competent authority ". In the present case, there is no normative act indicating that the conclusion of Ethics and Disciplinary Commission is confidential. Therefore, in the formal point of view, it is doubtable whether the Rules of Procedure of the Constitutional Court satisfy the formal grounds for restricting the constitutional right to access public information.
As regards to the non-granting of information concerning the ongoing disciplinary cases, it has come to our attention, that several months ago, the chairman of the Constitutional Court addressed the Ethics and Disciplinary Commission to study the factual circumstances related to the disciplinary case. According to our information, the above-mentioned proceedings are being conducted against the three judges of the Constitutional Court concerning the sharp content of their dissenting opinions expressed in the particular judgment. Taking into consideration that the Court has not yet granted us requested public information, we do not know particular details of the case, including current stage of disciplinary proceeding. The official webpage of the Court does not provide any information in this regard.
There is no doubt that the mechanism of disciplinary proceedings against the judge serves a significant public interest. That being said, the rules and practice of disciplinary proceedings must not allow for the abuse and therefore for influencing the judges.
Indefinite or unreasonably long disciplinary proceedings against a judge and, therefore, the expectation of possible serious disciplinary sanctions pose a threat to the independence of the individual judge. A fortiori, the legislation in relation to the judge of the Constitutional Court envisages only the pre-term termination of the authority as a disciplinary sanction. Therefore, it is important the disciplinary proceedings practice and legislation to be based on to the extent possible transparent procedures.
Based on the above mentioned, we refer to the Constitutional Court of Georgia with following recommendations:
- Fully disclose information about the ongoing and finished disciplinary cases, if necessary, with the proportionate limitation of publicity interest;
- Following the deadlines defined by the legislation on issuing public information;
- The Parliament of Georgia and the Constitutional Court shall initiate the regulating legislation and internal acts on disciplinary proceedings of judges in order to eliminate the risks of abuse of disciplinary proceedings. In turn, IDFI expresses its readiness for active engagement in the process of refining the legislation and representing its own initiatives.
1] Paragraph 3 of Article 19 of the Rules of Court of the Constitution of Georgia
 Decision of the Constitutional Court on case 1/4/757 "Giorgi Kraveishvili vs Government of Georgia", II, P.19
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