ODIHR report: shortcomings abound in nomination and appointment of Supreme Court Judges in Georgia

The OSCE Office for Democratic Institutions and Human Rights (ODIHR) has found that the nomination and appointment of Supreme Court Judges in Georgia are lacking transparency and accountability despite some positive measures to build public trust in the judiciary.

Ingibjörg Sólrún Gísladóttir, ODIHR Director has emphasized that it is vital to carry out the lifetime appointment of judges independently and transparently.

“ODIHR has been monitoring the process in Georgia to help strengthen the country’s judicial independence. The recent constitutional amendments significantly increased the number of Supreme Court judges appointed for life. It is, therefore, crucial to have a fair, independent and transparent process to ensure that only the most qualified and competent candidates are appointed,” said Gísladóttir.

The ODIHR monitoring exercise evaluates the compliance of nominating candidates for the Supreme Court Judges positions with the relevant legal framework, international standards, and good practices. The report states that numerous shortcomings were found in the nomination process.

The report reads that the candidates were treated unequally, the transparency was limited and the interviews with the applicants were ‘highly disorganized’, all because “the High Council of Justice (HCJ) did not adopt rules of procedure or a code of conduct for the hearings to ensure a fair and orderly process.”

Furthermore, ODIHR report notes that the tensions within the HCJ were very high during the process, which resulted in frequent hostile remarks and heated arguments that dominated the interviews and created an unprofessional atmosphere.

The ODIHR monitors that observed the interviews also noted that the substance of the hearings differed extensively, about the number and content of the questions, the method of questioning and the duration of the interviews, “contrary to the principle of equal treatment.”

The ODIHR report states that the opportunity for legal redress is significantly hindered, as the HCJ is not required to provide a reasoned explanation of the decisions taken on shortlisting, determining the ranking, or the final selection of the 20 candidates to be put up for nomination.

“The right to effective legal remedy against HCJ’s actions and decisions is not sufficiently guaranteed in the legal framework. This left the nomination process under the final authority of a judicial oversight body, rather than a court of law, challenging OSCE commitments and international standards. non-judge members publicly indicated their intention to submit dissenting opinions on some nominees, although one of the non-judge members did not participate in the voting,” reads the report.

Some positive changes have also been noted by ODIHR. For instance, ODIHR states that introducing an open competitive recruitment process that enables substantial public scrutiny of the system is a commendable step towards promoting transparency and accountability in Georgia and building public trust in the judiciary. “However, very few of ODIHR’s recommendations from previous legal reviews have been addressed, and several shortcomings remain.”

As for the transparency of the interviews, the OSCE body notes that public notice of the hearings was very short, and the venue could not accommodate the high level of interest to observe and report on the process. Positively, the Public Broadcaster live-broadcasted the hearings on social media and audio recordings of the hearings were posted online, says ODIHR.

A previous ODIHR Legal Opinion on the appointment process welcomed the introduction of an open appointment procedure and the efforts of parliament to fill potential gaps by elaborating more detailed provisions on the selection criteria and procedures. At the same time, it also noted a number of key shortcomings, including a lack of guarantee for transparency in the decision-making process to ensure that decisions are taken based on genuine and objective considerations.

As per the request of the Public Defender of Georgia, ODIHR’s team started its work on June 29, 2019. This has included monitoring the interviews of all 49 candidates before the High Council of Justice and related meetings.

“ODIHR’s monitoring team will continue to follow the appointment process by monitoring the hearings in the Parliament, and will issue a final report with recommendations approximately two months after the end of the nomination process,” reads the official statement.

Due to the importance of the selection process and the high interest of the society in this topic, The Public Defender addressed OSCE ODIHR and requested for them monitor the process and by the end of May 2019, the organization expressed its readiness to get involved and observe the process.

The legal opinion prepared at the request of the Public Defender of Georgia was published on 17 April and provided an assessment of the compliance of the draft amendments with international standards and OSCE commitments and noted several shortcomings.

Recent constitutional amendments increased the number of judges on the Supreme Court from a minimum of 16 to a minimum 28, changed term appointments to lifetime tenures, and gave the HCJ the authority to nominate candidates for parliamentary appointment. On 1 May 2019, amendments regulating the new process were adopted.

The OSCE ODIHR provides support, assistance, and expertise to participating States and civil society to promote democracy, rule of law, human rights and tolerance and non-discrimination.