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Public Defender files constitutional lawsuit, demands procedure for selection of Supreme Court Judges be declared unconstitutional

By Levan Abramishvili
Tuesday, November 12
The Public Defender of Georgia lodged a constitutional lawsuit with the Constitutional Court of Georgia and requested that the rule of the selection of Supreme Court Judges by the High Council of Justice be declared unconstitutional.

The Public Defender held a press conference on November 11, saying that the procedure for selecting Supreme Court judicial candidates violates the constitutionally guaranteed rights of a Georgian citizen to hold public office (Constitution, 25-1), to have access to a fair trial (Constitution, 31-1, first sentence) and the principle of an independent and impartial trial (Constitution, 31-1).

According to Nino Lomjaria, the constitutional lawsuit is based on the findings of the Venice Commission and the OSCE Office for Democratic Institutions and Human Rights (ODIHR), as well as the factual circumstances identified as a result of monitoring the selection process (by the Public Defender of Georgia, OSCE/ODIHR).

“The Parliament of Georgia considered the opinions of the Public Defender, OSCE/ODIHR, and other stakeholders, but agreed only with some of them. In this regard, we should particularly emphasize the secret and unreasonable decision-making in the process of selection of candidates, as well as the lack of opportunity to appeal against those decisions,” noted Lomjaria.

In a special report published as a consequence of observing the Council of Justice's selection of judicial applicants, the Georgian Public Defender reflects on the several flaws connected with the secret ballot.

Certain representatives of the High Council of Justice consulted with each other and worked in a coordinated manner to help the pre-agreed candidates in the process of selecting judicial candidates for the Supreme Court, the Ombudsman’s Office has found. This revealed that the confidentiality of the vote and selection did not guarantee that the Council chose applicants based on the evaluation system and qualifications, or that Council members were protected from the influence. “Under such circumstances, the secrecy of the ballot only impeded public oversight over the process,” notes the Public Defender.

The second major flaw in the process that the Ombudsman has found is that the evaluations and scores granted when assessing the conscientiousness and expertise criteria were not substantiated, which inevitably increased the risk for manipulation, including through scores.

As the Council is not obligated to substantiate its decision including why it favored one applicant and dismissed the other, the Ombudsman indicated that the candidates are unable to prove in court that their rejection was incorrect.

“The rule fails to ensure a fair process and candidates who meet the requirements of the law are unjustifiably prevented from being selected in accordance with their professional or other personal advantages,” noted Lomjaria.

It should be noted that the High Council of Justice continues the process of selecting candidates from the Supreme Court by secret ballot. On October 31, another ballot was held and three candidates were nominated for one vacancy. The ballot showed the same problems that we saw during the selection of the previous 20 candidates.

“The Council has still not defined a procedure that would select candidates based on conscientiousness and competence criteria. Consequently, it is not possible to say that the selected three candidates were better than the other 12 candidates according to the conscientiousness and competence criteria,” reads the statement of the Ombudsman.

In the constitutional lawsuit, the Public Defender also demands that the Constitutional Court of Georgia suspend the disputed norms until the case is fully resolved.

It is noteworthy that even if the Constitutional Court suspends the controversial norms before the final decision, this will not stop the process of hearing or voting on the already selected candidates in the Parliament. The Public Defender notes that it can have an impact on future vacancies or re-selection of candidates by the Council of Justice in case the already nominated candidates are not approved by the Parliament.

One of the non-judge members of the Council, Anna Dolidze has positively assessed the Ombudsman’s decision to appeal to the Constitutional Court, however, said that the motion is too late since it cannot affect the list of 20 people that are being discussed in the Parliament.

Dolidze noted that she has been voicing her opposition with the draft law from the very beginning, pointing out that the rule was not in line with the recommendations of the Venice Commission. “Then, unfortunately, we did not hear any support from the Public Defender,” noted Dolidze with disappointment.

“If the Public Defender had voiced her opinion when this fight was in peak, even if it was just a harsh public statement, it would have been very important. But, unfortunately, Nazi Janezashvili [another non-judge member on the Council] and I were left alone in this fight,” said Dolidze.

Dolidze said she asked the Public Defender publicly in August to get involved in the process and make a statement on the discrimination. According to her, the Ombudsman could have had an impact back then. “Today, when the toughest phase is over, the step is interesting, but it will not bring any results,” she added.

“It would have been better if the Public Defender had suspended this process before the list of candidates were forwarded to the Parliament, but it is better late than never,” said expert Khatuna Lagazidze on the Public Defender’s lawsuit.

The Chairperson of the Procedural Issues And Rules Committee of the Parliament of Georgia Giorgi Kakhiani has also responded to the Ombudsman’s statement. “I cannot recall anyone mentioning the unconstitutionality of the changes that we have made and based on which the selection of the judges was carried out,” he noted.

After the constitutional amendments, the Supreme Court expanded the total number of judges from 16 to 28, while at the same time 10-year mandates were extended to lifetime tenure.

The High Council of Justice was given the authority to nominate candidates for parliamentary appointment. After the selection process, the Council provided a list of 20 candidates to the Parliament of Georgia for approval.

The OSCE Office for Democratic Institutions and Human Rights (ODIHR), the co-rapporteurs of the Parliamentary Assembly of the Council of Europe, independent experts and non-governmental organizations have all found abundant shortcomings in the selection process of the Supreme Court Judges, especially concerning the secret ballot voting.