The Election of the Public Defender 2022: Interim Review

News | Rule of Law and Human Rights | Article 24 October 2022

The term of office of the current Public Defender, Nino Lomjaria, expires on December 8, 2022. According to the 12th priority defined by the European Union, Georgia must “ensure that an independent person is given preference in the process of nominating a new Public Defender (Ombudsperson) and that this process is conducted in a transparent manner”.[1]

 

The Public Defender of Georgia is a constitutional body responsible for the supervision of the protection of human rights within the territory of Georgia, elected for a term of 6 years by a majority of at least three fifths of the total number of the Members of Parliament.[2] Taking into consideration the current  composition of the Parliament of Georgia, the election of a public defender requires the support from the opposition.

 

1. Political context of the election of Public Defender and amendments in the Rules of Procedure of the Parliament of Georgia (one-off regulation)

 

The instances of attacks and attempts from the ruling party to discredit the current Public Defender have increased in recent years. This is indicated in the report of the European Commission of August 12, 2022, regarding the implementation of the Association Agreement during 2021. According to the report: “The office came under pressure for being vocal on certain politically sensitive issues, including the Tbilisi Pride and the imprisonment conditions of former President Saakashvili, and attempts were made to undermine its independence and to cast doubts over the integrity of the office and its staff.”[3]

 

In the context of the implementation of the 12th priority defined by the European Commission, the ruling party initiated the process to adopt amendments to the Rules of Procedure of the Parliament of Georgia. As a result, a rule for an exception in  the election of the Public Defender was defined in the transitional provisions of the Rules of Procedure. These rules will be used only during the current process of the election of the Public Defender.[4]

 

The amendment defined different procedures for the selection of Public Defender candidates. These important aspects should be highlighted:

 

1. A working group/competition commission was created for the selection of the Public Defender, which must be composed after consultations with the subjects eligible for nominating candidates for the Public Defender.[5]

 

2. The authority to announce the competition and to define the conditions of the competition and the composition of the working group was given to the Chairperson of the Parliament.

 

3. The competition commission evaluates each candidate (by four different criteria). But it  should be mentioned that the assessments of the commission are not compulsory. The relevant subject is entitled to nominate any candidate, regardless of the assessment presented by the commission.

 

4. If the number of candidates nominated by the relevant subjects at the plenary sitting is fewer than 7, the process of the selection will start over.

 

The adoption in the Rules of Procedure was prepared by the ruling party and supported by a part of the opposition. The amendment was put to a vote three times, with no votes  against it.

 

2. The rules of evaluation of the candidates for the position of the Public Defender

 

Pursuant to the amendment in the Rules of Procedure, on September 14, 2022, the Chairperson of the Parliament of Georgia issued the decree on the Approval of the “Rule of Submission of Candidates of the Public Defender of Georgian for 2022 to the Parliament of Georgia” (the Rule). According to the Rule, after the submission of applications, candidates are evaluated by the commission, which is composed of representatives of the civil society, including representatives of the academic and professional communities. As mentioned above, before selecting 9 members of the commission, the Chairperson of the Parliament conducts consultations with subjects eligible for nominating candidates. It is unknown to us whether these consultations were conducted and which members of the commission were named by which subject.

 

2.1. Criteria for the evaluation of potential candidates

 

According to the Rule issued by the Chairperson of the Parliament, members of the commission evaluated candidates without an oral hearing, only based on the documents submitted by the candidates. The commission assessed the candidates by these four criteria:[6]

 

 

2.2 Documents submitted by the candidates

 

According to the rule, candidates were obligated to submit various documents to the commission. All of them were formal documents to verify candidates’ identification and resume (CV). Aside from these, however,  a candidate could submit additional documents verifying their experience in human rights and fundamental freedoms at their discretion.

 

2.3 Ability to obtain additional information

 

In order to make an unbiased assessment, with the help of the office of the Human Rights and Civil Integration Committee, a member of the commission was able to obtain/verify additional information along with the documentation submitted by the candidates, if necessary.

 

2.4 Principles of the evaluation of the candidate

 

Each member of the assessment working group evaluates each candidate by certain criteria from 0 to 10. Maximum points given by one member to one candidate is 40. But the decree of the Chairperson defines an opportunity for a member of the commission to abstain from evaluation if they consider that the information was insufficient for  assessing a candidate by any of the criteria. According to the Rule, this kind of abstention must not be interpreted as a positive or negative assessment from a member of the commission towards a candidate.

 

2.5. Eligibility for submitting a justification

 

An evaluator was eligible to attach an explanation/justification regarding the given points. Providing an explanation/justification, however, was not an obligation of a member of the commission. The function of the commission was to provide the subjects eligible for nominating candidates with the most complete information about the candidates. Such evaluation carried out by the commission is not binding, instead being a  kind of recommendation that the Parliament is not obligated to take into account.

 

2.6. Key dates regarding the election of the new public defender of Georgia

 

 

 

3. Results of the working group/competition commission activities

 

A total of 19 candidates took part in the competition for the position of the Public Defender. Among them are three candidates who were jointly nominated by civil society organizations (52 organizations in total).

 

On September 28, 2022, a working group/competition commission for the selection of Public Defender candidates was established.[7] It was assigned to evaluate potential candidates for Public Defender, in accordance with identified criteria, only on the basis of submitted written documentation.

 

3.1. Period of activities of the working group/competition commission

 

On September 29, the acceptance of applications of candidates for Public Defender was concluded.[8] October 13 was defined as the final deadline for the work of the competition commission. The competition commission worked for 14 calendar days.

 

On October 13, the evaluations of the candidates were published on the website of the Parliament of Georgia. In 10 working days, the competition commission had to be able to make a professional evaluation of the candidates, taking into account 4 fundamentally important criteria, based only on written documentation. From our point of view, a full-fledged professional evaluation of 19 candidates within 10 working days is impossible, especially without interviewing them.

 

3.2. Restriction of interviews with candidates and lack of proper information for professional assessment of candidates

 

According to the order of the Chairman of the Parliament of Georgia, the selection of potential candidates for Public Defender should only be made on the basis of written documentation. It appears that this limitation had a significant impact on the quality of candidate evaluation, especially on the assessment of those candidates about whom less information is available in the public space. The candidates were not given the opportunity to present their position regarding the reasons why the commission member might reduce points allocated to them. On the other hand, the lack of interviews deprived the members of the commission of a countervailing opportunity, as they could not get answers to the questions they were interested in, which evidently affected the quality of the evaluations.

 

3.3. Reasoning for the evaluations of the working group members

 

In a number of cases, the members of the competition commission used the opportunity to present justifications/explanations of the scores. The submitted explanations differ from each other in terms of form, as well as in terms of content, and some members of the commission did not provide explanations at all. In some instances, the evaluations do not take into account all the relevant circumstances for the assessment of the applicable component. For example, the "impartiality and independence" of a potential Public Defender candidate was evaluated with a maximum of 10 points just because he/she is not a member of any political party. It should be emphasized that the lack of an opportunity to conduct  interviews with the candidates had an immense negative impact on both the quality and the reliability of the evaluation of the candidates.

 

3.4. High percentage of refraining from evaluating the candidates and the rating of the candidates

 

Each candidate was evaluated by 9 members of the commission with consideration of 4 core components. In each component, one candidate could get a maximum of 10 points. Thus, the maximum score awarded by one evaluator to one candidate could be 40 (4*10), and the maximum number of total points could be 360 ​​(40*9). As already mentioned above, a commission member was able to refrain from evaluating a specific candidate. This ability  was actively exercised by the members of the competition commission.

 

 

The rate at which the members of the commission refrained from the evaluation varied widely with candidates, and ultimately amounted to 40% of the total number of the criteria to be evaluated. We believe that this number would have been much lower if interviews with potential Public Defender candidates were conducted, with a proper procedure and duration.

 

It should be emphasized that, according to Article 3(6) of the evaluation rule, “abstention from evaluating a specific candidate in relation to any criteria cannot be interpreted as a positive or negative view of the evaluator towards this candidate".  After the publication of the results, several leading media outlets disclosed the rating of the contestants’ scores. Unfortunately, the cases of refraining from the evaluation of the candidate by the members of the commission were not taken into account when compiling the score rating.[9] The final marks awarded to the candidates are presented in the form of a table.

 

 

The high number of unrated criteria, the lack of justifications and explanations, in our opinion, among other reasons, was likely caused by the short duration of the working group's activities. It is impossible to fully evaluate 19 candidates within 10 working days.

 

This is especially true in present circumstances, when the evaluation took place without interviews, a vast majority of the candidates had little experience of working in the political-legal space, and little was known to the general public about their professional or personal characteristics. In our opinion, the challenges identified with regard to the proper professional evaluation of the candidates were for the most part caused by the the problems of the selection procedure of the potential Public Defender candidates discussed above.

 

The high rate of refraining from evaluation of candidates, as well as the challenges in terms of justification and consistency of evaluations, raise the question: to what extent will the results of the competition help the political entities nominating the candidate for Public Defender? Otherwise, to what extent was the main goal of the competition commission achieved - to make a full-fledged professional assessment of the candidates and thereby help the political entities authorized to nominate a candidate for Public Defender.

 

4. Developments after the evaluation of the candidates

 

On October 21, parliamentary factions and political groups nominated candidates for the position of the Public Defender.[10] It must be mentioned that the ruling party has not nominated a candidate. On August 31, the ruling party stated their position that they would not nominate a candidate for the position of the Public Defender.[11]

 

1. Two political groups and one faction (political group: “Reforms Group”, political group: “Lelo – Partnership for Georgia”, and faction: “United National Movement – Unified Opposition “Unity Makes Strength”) nominated three candidates nominated by civil society sector (Ana Abashidze, Nazi Janezashvili, and Giorgi Burjanadze);

 

2. Political group “European Socialists” nominated two candidates: Tinatin Erkvania and Lela Gaprindashvili;

 

3. Political group “Girchi” nominated one candidate: Iago Khvichia;

 

4. Political group “Citizens” nominated 19 candidates: all of them expressed their willingness to be elected as the Public Defender. Before the nominations, the political group explained that "they are not going to approach the candidates with favoritism".[12]

 

Nominating all of the candidates from political group “Citizens” raises a number of questions, especially taking into account the fact that this political group supported the one-off rule for the selection of the Public Defender (amendment in the Rules of Procedure of the Parliament of Georgia). However, we will not evaluate the named fact in this perspective. The fact of nominating all 19 candidates is important, as it clearly indicates that the evaluations of the commission have not become a basis for professional filtering of the candidates - the Parliament will vote for all 19 candidates during the plenary sitting.

 

Summary 

 

Electing a truly independent Public Defender through a transparent and inclusive process is one of the 12 priorities defined by the EU in order to grant the candidacy status to Georgia.

 

The aim for the establishment of the competition commission could only have been the professional assessment of the applicants who had expressed the desire  to be named as a candidate for Public Defender and, respectively, helping politicians in making informed decisions during the candidate selection. However,several factors, such as the short working time period , the inability to conduct interviews, the high number of cases where members of the commission abstained themselves in particular, had a severe impact on the realization of the primary function of the commission.

 

In order to avoid the collapse of the ongoing procedure, at least 7 candidates should be selected by the Parliament. This requirement is a significant formal obstacle for reaching the political consensus and electing the next Public Defender with cross-party support.

 

_________________

 

[1]European Commission, “Commission Opinion on Georgia's application for membership of the European Union” Brussels, 17.6.2022, COM(2022) 405 final.

[2] Article 35, paragraph 1 of the Constitution of Georgia.

[3] Association Implementation Report on Georgia, Brussels, 12 August 2022. Available here.

[4] The Rules of Procedure of the Parliament of Georgia, article 2283

[5] Subjects eligible for nominating a candidate for the position of the Public Defender are: a fraction and a group of non-faction members of the parliament consisting of at least 7 persons, also a parliamentary political group. According to the article 228¹ of the  Rules of Procedure of the Parliament of Georgia: “Before the recognition of the authority of the Parliament elected in the 2024 elections, at least two MPs may form a parliamentary political group (‘political group’) in accordance with the requirements determined through the Rules of Procedure for the formation of a faction (except for the requirement for the minimum number of MPs).” A political group enjoys the same rights as a faction, except for the rights of a faction determined by the Constitution of Georgia. Before the recognition of the authority of the Parliament elected in the 2024 elections, a political group is entitled to nominate a candidate for the position of the Public Defender of Georgia.

[6] Decree of the Chairperson of the Parliament of Georgia of September 14, 2022, on the Approval of the Rule of Submission of Candidates of Public Defender of Georgian for 2022, article 3, paragraph 3.

[7]Order of the Chairman of the Parliament of Georgia dated September 28, 2022 N1/435/22 "On the establishment of a working group for the evaluation of persons wishing to be nominated as a candidate for the Public Defender of Georgia in 2022".

[8]Statement of the Chairman of the Parliament of Georgia dated September 15, 2022,see the link

[9]Institute for the Development of Freedom of Information (IDFI), "Results of the Selection Competition for Public Defender Candidates: Actual Ranking of Candidates",see link

[10] Information on candidates for the Public Defender of Georgia nominated by the authorized subjects of the Parliament. see the link.

[11] Mamuka Mdinaradze’s statement. Available see the link

[12] Interpressnews, statement of L. Ioseliani,  see the link.

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