“Neither Competitive nor Transparent” — US Embassy Appointment of 2 HCoJ judges

By Natalia Kochiashvili

Thursday, November 4

The Council consists of 15 members, including the chairperson elected out of the judge-members for a 4-year term. There are 9 judge-members overall, including the Supreme Court Chair, appointed by the Conference of Judges. Of the 6 non-judge members, 5 are elected by the Parliament, and one is named by the President.

“Hastily appointing members of the High Council of Justice is the 5th step back.” Hartzel said.

On October 31, 2 members of the High Council of Justice (HCoJ) were elected at an extraordinary conference of judges that came a day after the October 30 local runoffs. Paata Silagadze and Giorgi Goginashvili, both judges of the Investigative Panel of the Tbilisi Court of Appeals, were nominated and elected for 4-year terms in place of Tamar Oniani and Tea Leonidze, both resigned based on a personal decision.

Leonidze, appointed in October 2020, resigned 3 years early, while Oniani, appointed in March 2018, resigned 4 months before her term ended. The HCoJ announced their resignation only after the replacements had already been appointed.

Silagadze was previously nominated for a position at the Supreme Court but was voted down by Parliament in 2019. He was named again as a top court candidate shortly after, but the Parliament halted the appointments in early 2020.

Judge Silagadze is considered to be a member of the so-called ‘clan’ by non-governmental organizations working on court issues. It is also known that his brother is a big donor to the Georgian Dream. The latest high-profile case associated with his name is 'Cartographers' Case'. He declared the lawyers' lawsuit inadmissible, which appealed against the decision of the City Court to remand Natalia Ilyichova and Iveri Melashvili in pre-trial detention.

Judge Goginashvili's name is connected with many high-profile cases. He sentenced Colonel Sergo Tetradze to imprisonment as a measure of restraint. In November 2012, Goginashvili sentenced Bacho Akhalaia to pre-trial detention in the case of former high-ranking officials of the Ministry of Defense, while Giorgi Kalandadze and Zurab Shamatava were released on bail. In 2014, he sentenced the ex-mayor of Tbilisi Gigi Ugulava to imprisonment, which led to riots in the court and the arrest of people.

Ana Dolidze, then a non-judge member of the council, was excluded from the trial during the 2018 hearing on the appointment of judges, including Goginashvili. NGOs then wrote that this shows the problem of complete inadmissibility of dissent in the judiciary.

The conference came amid criticism from the Coalition for an Independent and Transparent Judiciary, uniting about 40 CSOs, which urged the judges on October 29 to refrain from the vote until the rules on the composition of the Council are amended for electing the judge-members 'in a transparent and fair environment.'

The coalition wrote that given the need to reconsider the composition of the board and the procedure for selecting members, and 5 available vacancies for non-judges, having a guaranteed vote for an influential group in the judiciary gains particular importance. The set-up of a conference raises reasonable doubts that an influential group in the judiciary is trying to make this important and strategic decision in the absence of reforms and the face of the country's acute political crisis when the public interest is shifted to different topics.

CSOs pointed out that the HCoJ ‘for years, along with the government, has become one of the main actors undermining justice,’ and allows the ‘group of influential justices to maintain its power’ over the judiciary. The Coalition highlighted that the announcement for electing the 2 judge-members did not clarify why the posts would be vacant either, as all 9 positions had been previously filled.

The Democratic Initiative of Georgia (GDI) considers that the election of 2 new members of the HCoJ at the XXX Conference of Judges without necessity at the time when the spotlight of the public interest is on other topics, is a successful attempt by the clan to form an HCoJ with ‘credible and loyal judges’ and therefore maintain the influence over the Council for years to come. According to the GDI, exactly 2 candidates were nominated for the 2 vacant positions, who gained the support of the absolute majority of the judges present without any appeal, presentation, or statement and received 257 and 253 votes out of 266 judges present.

“The lack of practice of competition and dissent in the judiciary in recent years is particularly alarming, which indicates a critically low degree of independence of the individual judge. Once again, this clearly shows the need for fundamental and substantive reform of the judiciary.” GDI wrote.

The sector also expressed concern that seats for 5 of the 6 non-judge members, to be elected by the Parliament, have remained vacant for about 5 months now, after the previous holders concluded their terms because the Georgian Dream party has ‘refused to appoint new non-judge members based on a consensus with the parliamentary opposition.’

Earlier in May local CSOs, as well as U.S. Ambassador Kelly Degnan and EU Ambassador Carl Hartzell called for an immediate pause in any judicial appointments, until judiciary reforms envisaged in the EU-brokered April 19 deal were adopted. GD lawmakers argued the Parliament was not entitled to halt the elections to the HCoJ seats until spring 2022, the deadline for the said judicial reforms. Subsequently, 4 judge-members were elected to the HCoJ on May 26. The GD canceled the EU-mediated deal in July.

The US embassy in Georgia believes that the process of appointing members was neither competitive nor transparent, noting that when the Conference of Judges hastily makes important decisions without competition and transparency, it demonstrates an unwillingness to embrace reforms that would increase transparency, accountability, and public trust in the appointment process, the candidates, and in the HCoJ.

“A single candidate was offered for each vacancy. There was little advance notice of the intent to fill the seats left open by the preterm resignations. There was no opportunity for consultations or participation by a broad range of qualified candidates, nor meaningful engagement by relevant interlocutors and civil society. It is disappointing that the Judiciary missed the opportunity to show transparency and failed again to elect its representatives through a competitive and democratic election process.”

EU Ambassador to Georgia Carl Hartzel also responded to the appointment of judges, writing that the appointments were hasty, non-transparent, and non-competitive. The statement recalled previous 4 setbacks for Georgia’s judiciary – the appointments to the Supreme Court on July 12, failure to fulfill the necessary conditions to receive an extra ˆ75 million in EU macro-financial assistance by September 2021, backtracking on amending rules on appointing the Prosecutor General, and “the lack – so far – of credible investigation and prosecution of the organizers of the 5 July violence targeting over 50 journalists and activists.

The EU calls once more on the Georgian authorities to uphold their reform commitments, including in the justice sector, in the interest of Georgian citizens, and of the future of EU-Georgia relations. While the EU remains fully committed to supporting Georgia’s reforms in line with the EU-Georgia Association Agreement, the EU’s assistance to Georgia remains conditional on progress on key reforms.