News

13
September2019

The Coalition assesses the process of selection of Supreme Court justices at the High Council of Justice

On May 10, 2019, the High Council of Justice (HCoJ) commenced the process of selection of Supreme Court judicial candidates to be nominated to the Parliament of Georgia. The process lasted for 4 months and was finalized on September 4, 2019.

The publicity and transparency of this process deserves a positive assessment, as it allowed a wider society to realistically perceive the state of the judiciary and the integrity and competence of both acting judges and members of the HCoJ.

The competition did not attract representatives of different legal professions. Very few representatives of the bar and academia participated.  This was allegedly caused by cronyism and the lack of openness of the judiciary, undesirable position of fair-minded lawyers in the court system, the lack of trust in the competition procedures (unsubstantiated decisions, secret vote) and in the selection body (HCoJ).

The process of selection of Supreme Court justices was based on legislative amendments adopted by the Parliament. However, the regulatory framework was itself flawed. During the drafting process, the ruling party did not demonstrate a political will to ensure competitiveness of the selection process aimed at the submission of the most qualified candidacies to the Parliament. The ruling party did not even take into account the recommendations of an important international partner, the Venice Commission. Consequently, the legislative framework allowed the formation of a list of candidates suiting the interests of the dominant group of judges and the ruling party.

The selection process revealed several problematic issues that were neglected by HCoJ. There were clear legal grounds for the recusal of two judge members, Tamar Oniani and Irakli Shengelia, due to the participation of their relatives in the competition. Despite this, they refused to recuse themselves. Zaza Kharebava, a non-judge member did not refrain from participation either, even though the study of several documents revealed that his candidacy was submitted to the Parliament by an unauthorized entity back in 2017. This was grounds for termination of his authority.  Nevertheless, he took part in the process. This case is even more interesting, as the recusal of these three candidates would have significantly decreased the power of the dominant group of judges in the system and would have allowed a consensus-based decision making involving non-judge members of the HCoJ. Thus, it would have decreased the chances of getting the list of candidates that was finally adopted on September 4.

The HCoJ made a decision about nominations without studying the information on several candidates. The university diploma of the acting Prosecutor General, Shalva Tadumadze, remains questionable. The study of papers shows that Mr. Tadumadze studied at N. Dumbadze Humanitarian Institute in the period of 1993-1998, while according to the Public Registry, the institute was established in 1994 and received a license to operate as an educational institution in the same year. The HCoJ did not express its interest in the matter and did not explore how Mr. Tadumadze had been admitted to the Institute in 1993, when it was established in 1994. Only one non-judge member of the Council raised a question regarding the diploma during the interview with the Prosecutor General.

 

The final list of 20 candidates includes 5 nominees out of 10 individuals from the initial problematic list. The Prosecutor General and his deputy also ended up on the list, which was largely predictable. The current list includes influential judges, their affiliates and candidates associated with the ruling party. Additionally, some of the judges whose previous work raises questions, including questions related to corruption allegations, were included the list. It is worth mentioning that after the first secret vote held in the Council, the Public Defender’s Office revealed a pattern which was allegedly followed by the Council members in the process of decision-making.

Several significant shortcomings of the selection process are discussed in greater detail below. 

Selection Process at the HCoJ

 

Composition of the HCoJ

Two members of the HCoJ, Tamar Oniani and Irakli Shengelia, had a clear conflict of interest with the candidates, Zurab Aznaurashvili (Oniani’s brother-in-law) and Levan Tevzadze (Shengelia’s brother-in-law). The Organic Laws of Georgia on Common Courts and on Conflict of Interest and Corruption in the Public Service hold members of the HCoJ liable for declaring a possible conflict of interest in advance and refraining from the decision-making processes related to judicial candidates.  Nevertheless, neither Tamar Oniani nor Irakli Shengelia declared the existence of a conflict of interest in advance and refused to recuse themselves from the process. Despite several statements[1] and addresses made by the civil society organizations  , neither of the two stepped out of the process, and both participated in interviews and the secret vote.

It came to our attention that the candidacy of Zaza Kharebava, an acting non-judge member, had been submitted to the Parliament by an unauthorized entity. This is a severe violation of the Rules of Procedure of the Parliament of Georgia and the Organic Law of Georgia on Common Courts, and grounds for termination of powers of a HCoJ member. Even though back in May 2019 the Coalition addressed[2] the Speaker of the Parliament with a request to review this matter, the legislative body has not discussed this issue up to now.  Correspondingly, Zaza Kharebava has maintained the status of member of the HCoJ and thus participated in the selection process of Supreme Court justices. Zaza Kharebava’s participation in the Council had critical importance, as 11 nominated candidates received minimal votes from the Council (10 votes). In these cases his vote was decisive.

The Secretary of HCoJ, Giorgi Mikautadze (who was one of the candidates for the Supreme Court), did not preside over the sessions of the Council. However, he was still in control of the staff responsible for collecting and checking information about the candidates for Supreme Court Justice. Hence, he kept the levers for influencing the process. 

The first secret vote

On June 20, 2019, the first secret vote was held at the HCoJ. Each member had to select no more than 20 candidates out of 137 registered individuals. As a result, the 50  top candidates were allowed to the next stage of the process — the interviews. After observing the voting procedure, the Public Defender’s Office identified a specific pattern, according to which, a part of ballots was marked, raising a reasonable doubt that several members of the Council had colluded[3] with each other.

 

Refusal of HCoJ to issue public information on candidates

In order to ensure greater transparency of the process, certain guarantees were included in the Organic Law, including the obligation of a candidate to allow the disclosure of information concerning his/her candidacy (including personal information other than the medical records). The day after the first secret vote, several civil society organizations requested information on candidates from the Council. The Coalition was interested in collecting and processing information on candidates before commencement of interviews in order to inform the public about individuals interested in taking seats at the Supreme Court. However, HCoJ first refused to disclose information about candidates, citing the obligation to protect their personal data. The refusal was based on an incorrect interpretation of the law, according to which the applicant’s consent only referred to handing over his/her information (including personal data) to the Parliament of Georgia, rather than making this information public.

 

Following the statements made by representatives of the Public Defender’s and State Inspector’s offices, who emphasized the importance of publishing information on candidates for the selection process, the Council decided to issue the data on candidates shortlisted for the next stage of the competition, the interviews. The decision was made 5 days prior to the commencement of interviews, leaving insufficient time for processing data on 50 candidates and eventually diminishing the importance of making this information public.  

The interviews

Interviews were held from July 17 to August 15, 2019. 49[4] candidates were interviewed.

 

  • Duration of the interviews

At the beginning of the interviews, the Council aimed to hold 5 interviews per day, with a duration of 45 minutes to an hour. However, the interview of the first candidate and the number of questions raised by the members demonstrated that it was impossible to hold more than two interviews a day during the working hours.  Despite this, at first the timeframe of interviews was kept irregular, lasting for 10-11 hours without a break. The non-judge members objected to this kind of work schedule. Ana Dolidze and Nazi Janezashvili stepped out of the interviews held after the working hours several times. The Coalition concluded that irregular working hours were damaging the process of selection and violating the rights[5] of candidates, the Council staff and monitors.

 

The judge members of the Council rejected the non-judge members’ proposition  to decrease the number of interviews per day. Consequently, the interviews were held beyond any reasonable timeframe, until July 26. These circumstances supported the doubts that the majority of the Council members aimed to finalize the process as quickly as possible. However, since July 26, in response to one of the judge member’s initiative, the Council decided to decrease the number of interviews to two per day. This has to be assessed as a positive development.

  • Verbal attacks against the non-judge members

The interviews were held in a non-constructive manner. There were several instances when colleagues addressed each other in an unethical or impolite manner. The judge members of the Council interrupted and verbally attacked Ana Dolidze and Nazi Janezashvili during the interviews because of the critical nature of questions. They became particularly hostile when questions concerning the problems of judiciary, Mikheil Chinchaladze and Levan Murusidze, existence of the clan-based governance in the system and the judges’ dissenting opinions were asked.  The judge members of the Council accused Ana Dolidze and Nazi Janezashvili of an attempt to destabilize the process and turn it into an “interrogation” of candidates.  

  • The questions asked

The transparency of interviews and their TV broadcast were highly important aspects of the process of selection of Supreme Court candidates. The idea was to familiarize the public with the candidates and ensure credibility and legitimacy of the process. Transparency of the process allowed the wider public to observe the professional qualifications and integrity of judges deciding cases in the court. It also revealed the level of their general education, values, argumentation and analytical skills, and attitudes to important and topical issues.

Prior to the interviews, the members of the Council agreed that they would not ask questions about specific statutory norms. Instead, the questions had to assess the candidates’ analytical skills and their values. However, monitors observed several instances, when such norm-specific questions were asked, especially during interviews of non-judge candidates or candidates with critical opinions about the problems of the judiciary.

The statistics collected by the Coalition during interviews revealed that non-judge members of the Council, Nazi Janezashvili and Ana Dolidze, asked more questions than other members of the Council. The tone of questions posed by judge members of Council to the candidates, who openly talked about problems in the court system, was aggressive and ironic. This created an impression that the judge members were trying to create a perception that these candidates were incompetent, thereby putting psychological pressure on them.

  • The candidates’ answers and their assistance by Council members

During interviews the majority of candidates revealed a lack of in-depth knowledge of the European Court of Human Rights case law. Unfortunately, most of them demonstrated a superficial understanding of fundamental human rights. Notably, there were cases when the majority of Council members (judge members particularly) asked directed questions (mostly while “following up” with a question). Also there were cases when they gave hints or suggested answers to questions asked by other members of the Council.

  • The second secret vote and nomination of candidates

During two weeks after completion of the process of interviews, the members of the High Council of Justice scored the candidates[6].  The scores assessing the candidates’ integrity are not clear, because the lowest scores were given to candidates who openly talked about the problematic past of the court system, while highest assessment was given to candidates who did not admit that there are or have been systemic problems in the court system.

On September 4, 2019, the Council carried out the second secret vote to reveal the Supreme Court nominees for the Parliament of Georgia. The top 20 candidates were identified. Afterwards, the Council members voted for each candidate individually. All of them received the number of votes required for nomination (2/3 of the Council members). The list of nominees did not coincide with the 20 candidates who received the highest scores.

Notably the list of nominees included the judges who were included in the list of 10 candidates submitted to the Parliament in December 2018.[7]  The list excluded candidates whose biography, and knowledge and experience, revealed in the process of interviews, created a positive impression, while the qualification and integrity of several candidates who ended up on the list raise significant doubts.

The statistics related to interviews:

Duration of interviews: 3:08 minutes.

The longest interview: Merab Gabinashvili, 5:55 minutes.

The shortest interview: Shota Laitadze, 1:34 minutes.

The biggest number of questions, 160 was posed during Zurab Aznaurishvili’s interview.

The smallest number of questions, 37 questions, was posed in Shota Laitadze’s interview.

Nazi Janezashvili, a Council member asked the biggest number of questions, 1384 (including 408 legal questions, 65 questions about work experience, 911 questions of general nature).

Shota Kadagidze, a Council member, asked the smallest number of questions: 109 (including 92 legal questions and 17 questions of general nature).

The Council members asked a total of 4101 questions (including 2224 legal questions, 130 questions about work experience, and 1747 questions of general nature).

To sum the points raised above, it is clear that in the process of developing the legislation, the ruling party did not demonstrate a political will to ensure selection the most competent candidates for the Supreme Court. The confirmation of 20 nominees submitted to the Parliament will increase the influence of the ruling party and dominant judges in the Supreme Court, thereby undermining prospects for the creation of a proper justice sector.

It needs to be reiterated that the analysis of developments related to this issue and the nomination of predictable candidates make us believe that the process was mostly formalistic and was not directed at solving the problems of the justice system. The legal framework created by the Parliament allowed the High Council of Justice to enforce the interests of the dominant group of judges and the ruling party, thereby  exacerbating the state of the justice sector. 

 

 

 

 

 

 



[1] 17 July, 2019 Statement of the Coalition for an Independent and Transparent Judiciary - http://coalition.ge/index.php?article_id=213&clang=1

[2] 14 May, 2019 Statement of the Coalition for an Independent and Transparent Judiciary -

http://www.coalition.ge/index.php?article_id=208&clang=1

[3] 28 June, 2018 Statement of the Public Defender’s Office (PDO) - https://bit.ly/2kHlPZE

[4] One candidate - Amiran Dzabunidze - withdrew his candidacy a day prior to the interview.

[5] 24 July, 2019 Statement of the Coalition for an Independent and Transparent Judiciary - http://coalition.ge/index.php?article_id=214&clang=1

[6] Assessment of judicial candidates http://bit.ly/2lWr8od

[7] Tamar Alania, Merab Gabinashvili, Giorgi Mikautadze, Nino Kadagidze, and Paata Silagadze.