The State of the Judicial System 2016-2020
Despite ongoing reforms, the judicial system is yet to be freed from unhealthy influences:
- The observation on the judicial system for years has shown that, in the course of time, the authorities abandoned the idea of creation of an independent judiciary. Since 2016, the Georgian Dream party has implemented two waves of the justice reform, although the approach of the authorities was mainly fragmentary and inconsistent. In certain cases, the reform only served to strengthen the interests of a narrow group. Currently, the administration of the judiciary is entirely in the hands of a narrow group of influential judges, which is referred to as the so-called “clan”.
- The final outcome of the process of selection of judges of the Supreme Court has shown that the goal of the authorities was not to staff the Supreme Court with conscientious and qualified judges. The majority of the selected judges are perceived to be pursuing the interests of influential judges in the judiciary or of the authorities. The authorities have failed to ensure the adoption of legislation that is in line with international practice, which made it easier for the parliamentary majority to achieve the pre-planned outcome of the selection process. And ultimately, the Supreme Court was mainly staffed with individuals lobbied for in advance by the authorities rather than highly qualified candidates taking part in the competition.
- The influence of clan governance has gone beyond the limits of the system of common courts and also penetrated the Constitutional Court. Distrust towards the Constitutional Court emerged after the process of staffing it with new members got underway. Staffing the Constitutional Court with individuals devoted to the parliamentary majority and to the group of influential judges has damaged the Court’s authority to a considerable extent and decreased the public’s trust in its decisions.
The past four years have also seen positive changes in certain directions in the system of common courts:
- The years 2016-2020 saw the implementation of “two waves” of the justice reform and important legislative changes. The changes included the introduction of electronic allocation of cases; the introduction of the Office of Independent Inspector of the High Council of Justice in the judicial system; and improvement of the norms on disciplinary liability of judges and on legal proceedings.
- Important steps were taken to increase the transparency and openness of the activities of the High Council of Justice. The law established the obligation to publish the minutes of sessions of the Council on the Council’s website, as well as the obligation to publish decisions taken by the Council – including statistical information on reports submitted by the Independent Inspector and on the initiation of disciplinary prosecution and imposition of disciplinary liability – on the same website. At the same time, the High Council of Justice was tasked with substantiating certain decisions taken by it.
The present report covers the period of 2016-2020 and, accordingly, almost entirely coincides with the period between parliamentary elections. The report brings together the main findings revealed by studies and assessments of TI Georgia and other organizations during this period. These include the assessment of legislative amendments made with the aim of reforming the judicial system and of the existing normative framework, as well as the analysis of developments around the Constitutional Court and of facts of high public interest.
Important developments of the years 2016-2020
“Cooperation” of the group of influential judges and the political authorities
The present chapter discusses the important developments of 2016-2020 that were related to the judicial system. On the basis of the analysis of these facts, we can say that the group of influential judges in the judicial system enjoys the direct or indirect support of the authorities. The close cooperation of the authorities with the group of influential judges is related precisely to the parliamentary elections of 2016.
We can say that the cooperation between the group of influential judges in the system of common courts and the authorities started with a statement of the former Prime Minister, Bidzina Ivanishvili, at the beginning of 2016. Ivanishvili expressed his clear support for Judge Levan Murusidze, calling him a “victim of the system” of the previous government.
The links between the judiciary and executive branches of government were further reinforced after the parliamentary elections of 2016. In November 2016, Vano Zardiashvili, who is a relative and close friend of the most influential judge and former prosecutor, Mikheil Chinchaladze, became an MP on the slate of the Georgian Dream and took the position of the First Deputy Chairperson of the Legal Issues Committee of the Parliament. After that, he actively lobbied for legislative initiatives that brought about a considerable increase of the power of the clan.
In December 2016, the Parliament passed a legislative package of the “third wave” of the reform in the third reading. At the Parliament, the text of the draft laws was changed several times unexpectedly and without a public hearing. Almost all of the changes served the interests of only the influential group. Among other things, the Parliament ultimately failed to include the provisions that had been assessed positively by the Venice Commission (for example, the Parliament refused to introduce the rule of election of chairpersons of courts, and the High Council of Justice retained the right to appoint them).
In addition, several months before the expiration of the 10-year tenure of Mikheil Chinchaladze – the leader of the group of influential judges – as a judge of the Supreme Court, at the final stage of consideration of the draft law, the Parliament made an amendment, with procedural violations, which made it possible to appoint current and former judges of the Supreme Court for life without a probation period. This amendment gave rise to a doubt that it had been customized specifically to Mikheil Chinchaladze.
In June 2017, the Parliament elected four new non-judge members of the High Council of Justice. The majority of the elected members express unconditional support for the judge members in all decisions to this day.
The authorities have expressed overt support for the group of influential judges of the judiciary on several occasions, although, among these occasions, the statement made in February 2019 by the Political Council of the Georgian Dream should be emphasized. The statement addressed the developments unfolding around the Supreme Court, which showed clear support for the judicial clan. The Political Council accused all those who expressed a differing and critical opinion of having a political interest and taking part in the National Movement’s “orchestrated attack” on the judiciary.
This was followed by a statement of Irakli Kobakhidze, the Chairperson of the Parliament, about odious judges on TV Pirveli: “[The judicial] system has changed without changes in its composition, and people who did bad things on a massive scale now do good things”.
The justice reform of 2016-2020
Since the parliamentary elections of 2012, the Georgian Dream party has implemented “four waves” of the judicial reform. Despite the fact that a certain part of the reforms envisaged positive initiatives, the approach of the authorities was mainly fragmentary and inconsistent. In certain cases, the reform served to strengthen the interests of only a narrow group of influential judges. The observation on the judicial system for years has shown that, in the course of time, the authorities abandoned the idea of creation of an independent judiciary. Currently, the administration of the judiciary is entirely in the hands of a narrow group of influential judges, which is referred to the so-called “clan”.
The “third wave” of the justice reform
In 2014, the Minister of Justice presented the legislative package of the “third wave” of the justice reform, whose individual provisions (for example, clearer grounds for the appointment and transfer of judges) were assessed positively in the Venice Commission’s opinion.
The judicial reform that started in 2014 only became law in February 2017. During this interval, the draft law was amended from time to time. The reasons for the amendments were unclear for the public. These processes were preceded by closed meetings between representatives of the judiciary and the authorities (including the Prime Minister and the Minister of Justice). In the process of implementation of the “third wave” of the legislative reform, the authorities’ political support for the group of influential judges (judge members of the Council and judges loyal to them) became evident, as a result of which a number of positive initiatives that were initially envisaged disappeared from the legislative package and the critically important reform got protracted.
In December 2016, the Parliament passed the legislative package of the “third wave” in the third reading. At the Parliament, the text of the draft laws was changed several times unexpectedly and without a public hearing. Among other things, in the final wording the Parliament failed to include the amendments that had been assessed positively by the Venice Commission (for example, introduction of the rule of election of chairpersons of courts). The President vetoed the draft law and returned it to the Parliament with motivated remarks, although the Parliament didn’t take the President’s remarks into consideration and gave the final approval to the amendments of the “third wave”.
As a result of the third wave of the reform, the following legislative amendments entered into force:
The “fourth wave” of the justice reform
In January 2018, the Parliament started to consider yet another package of amendments to the Organic Law of Georgia on Common Courts. The work on the “fourth wave” of the reform proceeded in an isolated manner, without the participation of professional groups and civil society organizations, which was assessed negatively by the Coalition for an Independent and Transparent Judiciary. Later, after the events of December 2018, the NGOs refused to enter the existing format of the task force on the “fourth wave” of the reform. At the same time, non-judge members of the Council of Justice, Ana Dolidze and Nazi Janezashvili, as well as representatives of opposition parties, left the task force.
It should also be noted that in February 2019, the Coalition again got involved in the activities of the task force on the judicial reform, as the authorities decided to change the format. The Coalition raised five pivotal issues at the meeting, which, in their opinion, would create the prospects for conducting the process of selection of judicial candidates in a relatively fair environment and weaken the risks of nomination of candidates at the Parliament by only one interest group. Irakli Kobakhidze, who presided at the task force, didn’t show the readiness to take any of the issues into account, due to which the Coalition left the task force again. It is noteworthy that the authors of the draft law were still compelled to take account of a part of the issues raised by the Coalition after the recommendations of the Venice Commission.
The “fourth wave” of the reform was finally completed at the end of December 2019. As a result o the reform:
Despite the four waves of reform, the following challenges still remain in the system:
Important legislative amendments made in parallel with the waves of reform
In December 2018, at a session of the High Council of Justice, the Secretary of the Council, Judge Giorgi Mikautadze, unexpectedly presented a 10-person list of candidates for membership of the Supreme Court. It was in connection with this process that the Parliament started work on the procedures and criteria for the selection of judges.
Finally, draft law regarding the procedure of selection of judges of the Supreme Court that had been independently initiated by Eka Beselia, Irakli Kobakhidze, and European Georgia were registered at the Parliament. Non-judge members of the High Council of Justice, Ana Dolidze and Nazi Janezashvili, also submitted a legislative proposal on the same topic to the Parliament. One more non-judge member of the Council, Irma Gelashvili, also sent her opinions to the task force. The Coalition for an Independent and Transparent Judiciary submitted its opinions and recommendations to the Parliament.
The parliamentary majority passed the amendments to the Law on Common Courts in the first reading without waiting for recommendations and views of the Venice Commission. The committee discussions on the draft law took place against the background of severe debates and criticism.
Finally, the Venice Commission released its opinion on the draft law prepared by the so-called “Cabinet of the Chairperson of the Parliament”.
What is written in the opinion of the Venice Commission
In its opinion, the Venice Commission notes that staffing the Supreme Court by the current Parliament – in a situation when the trust in the High Council of Justice is low and the country is awaiting elections – cannot deserve a proper degree of trust. Therefore, the Venice Commission calls upon the current Parliament to only appoint the number of judges that is necessary for the functioning of the Court, but not fill more than half of the existing vacancies.
In addition, the Venice Commission recommends that:
In May 2019, the Parliament, with 87 votes against 33, finally passed the draft law in the third reading, without taking account of a considerable part of the recommendations of the Venice Commission. The draft law only reflected the recommendation in which the Venice Commission pointed to the abolition of the qualification exams for judicial candidates. The Ambassador of the European Union to Georgia, Carl Hartzell, made a statement and assessed the Parliament’s giving so little time to the consideration of the recommendations of the Venice Commission as a “missed opportunity”. The authors of the draft law failed to take account of such important recommendations as:
- nomination of candidates by open voting and by a well-reasoned decision;
- ruling out the conflict of interest;
- ensuring adequate involvement of non-judge members at the time making a decision on the nomination of candidates;
- involvement of the civil society in the task force of the Legal Issues Committee.
In July 2020, yet another package of amendments to the Organic Law of Georgia on Common Courts was initiated at the Parliament. The legislative initiative dealt with the High Council of Justice’s obligation to substantiate decisions taken in connection with judicial candidates for the Supreme Court and with the possibility to appeal the said decisions by the candidates. The Coalition for an Independent and Transparent Judiciary released a statement regarding the draft amendments to the Organic Law of Georgia on Common Courts initiated at the Parliament of Georgia and refused to get involved in the task force. The refusal of the NGOs was caused by the formal character of the process and by the lack of desire to achieve a real outcome. In addition, it was clear from the start that the draft law would not have a substantial effect on fundamental problems in the process of selection of judges of the Supreme Court.
In the opinion of the NGOs, the proposed amendments cannot change the situation in the judiciary. It is impossible to improve the process of selection of judges without reforming the High Council of Justice itself. Improvement of the procedures for the selection of the Supreme Court judges should encompass the stages of both selection of candidates by the High Council of Justice and voting at the Parliament of Georgia.
On September 30, the Parliament of Georgia passed the amendments to the Law on Common Courts, which concern the procedure for the selection of the Supreme Court judges, in the third reading. The decision was made at the last plenary session of the 9th Parliament with 83 votes against none. The opposition didn’t take part in the voting.
The ruling party also had consultations with international partners regarding the amendments. In addition, the authorities asked for the opinion of the Venice Commission on September 21, after co-rapporteurs of the Parliamentary Assembly of the Council of Europe (PACE) urged Georgian authorities to request Venice Commission opinion. However, the Parliament passed the amendments without waiting for the Venice Commission opinion. On October 5, Peter Stano, the lead spokesperson for foreign affairs and security policy of the EU, released a statement regarding this issue, expressing regret that the Parliament had not waited for the release of the Venice Commission’s opinion.
The amendments provide for:
Developments around the Supreme Court
At the end of December 2018, the High Council of Justice, without any procedures and based on an informal agreement, sent the Parliament the 10-person list of candidates to be appointed to the Supreme Court. The list included both Mikheil Chinchaladze and members of the Council – Dimitri Gvritishvili and Giorgi Mikautadze. The candidates had been selected with gross procedural violations and in a non-transparent and accelerated manner, while the final list clearly expressed the interests of the group of influential individuals in the judiciary. This process was soon harshly criticized by NGOs, critically minded non-judge members of the High Council of Justice, the Public Defender, and other professional groups.
With the aim of stopping the accelerated approval of judges of the Supreme Court, Eka Beselia resigned from the position of the Chairperson of the Legal Issues Committee of the Parliament. According to several MPs of the Georgian Dream, including Eka Beselia, Irakli Kobakhidze, Vano Zardiashvili, and several other MPs had been demanding that she consider and approve the list submitted by the judicial clan in an accelerated manner. Against the background of public and political pressure, the Legal Issues Committee of the Parliament refused to consider the said issue in an accelerated manner. Later, the individuals nominated by the Council withdrew their candidacies themselves.
Against the background of suspension of the consideration of the 10-person list at the Parliament, the Council scheduled an interview with Levan Murusidze (a judge who has examined a number of high-profile and politically motivated cases in the past) with the aim of appointing him for life, and finally, at the same session, Levan Murusidze was appointed to the judicial office for life. The civil society, as well as a part of MPs and critically-minded members of the Council, assessed this act as the Council’s “reply to the Parliament” due to suspension of the consideration of the nominated candidates.
It should be noted that, as a result of the developments surrounding the Supreme Court, other MPs also started to gradually leave the parliamentary majority along with Eka Beselia. Finally, against the background of these developments, the Georgian Dream party lost the constitutional majority in the Parliament.
In January 2019, Irakli Kobakhidze stated that the work on the regulation of the procedure of selection of the Supreme Court judges by law would continue in the format of the task force. The absolute majority of this task force consists of members of the judicial clan and MPs who are considered to be their allies. Accordingly, at the spring session of 2019, the Parliament of Georgia started to regulate the issues of selection and appointment of judges and – with this purpose – to work on draft amendment to the relevant normative acts. Unfortunately, even with these amendments, the legislative body failed to create a completely orderly legal framework which would establish certain barriers and restrictions for the group of influential judges.
May 2019 saw the beginning of a repeated process of selection of candidates at the High Council of Justice, which proceeded in accordance with flawed legislation. Finally, in September 2019, the Council put 48 candidates to a secret vote and approved a 20-person list to be submitted to the Parliament. One of the members of the Council, Ana Dolidze, didn’t take part in the voting.
The Coalition for an Independent and Transparent Judiciary assessed the process of selection of judicial candidates for the Supreme Court at the Council. In the opinion of the Coalition, the analysis of the developments, including the nomination of predictable candidates, showed that the process mostly had a formal character and was not directed at addressing the extremely grave problems in the justice system. Ultimately, the flawed legislation made it possible to form the list in such a way that was mainly in the interests of the influential group in the judiciary and the authorities.
The OSCE Office for Democratic Institutions and Human Rights (ODIHR), which monitored the process at the Council, released a report. The report was mainly in line with the assessments of the coalition of NGOs and was sharply critical of the process that had taken place at the Council. The report also dealt with the issue of the conflict of interest and substantiation of decisions by the Council, which, according to the report, could have caused a violation of the right to a fair trial.
At the same time, co-rapporteurs of the Parliamentary Assembly of the Council of Europe (PACE) expressed concern about the process that had taken place at the Council and noted that now the Parliament already had a unique opportunity to correct the mistakes made at the time of selection of the judges. They also expressed hope that, from the 20-person list, the Parliament would only appoint the minimum number of judges needed to ensure the proper functioning of the Supreme Court. The statement also dealt with shortcomings in the process conducted at the Council, the failure to provide reasoned decisions, and a clear conflict of interest, as well as the lack of uniform criteria.
In addition, in November 2019, the Public Defender applied to the Constitutional Court in connection with the unconstitutionality of the procedure for the selection of judicial candidates for the Supreme Court and demanded that it suspend the disputed norms. Ultimately, the Public Defender’s application was not granted.
On December 12, 2019, the voting on the judicial candidates for the Supreme Court was also accompanied by grave violations at the Legal Issues Committee of the Parliament. Several MPs demanded an opportunity to make a speech and evaluate the candidates, although the chairperson didn’t let them do so. In parallel, a technical break was announced at the session, during which journalists were forcibly made to leave the hall and prevented from carrying out their professional activity without any legal grounds. After the resumption of the session, the MPs were given an opportunity to make assessments, which was followed by voting. The Legal Issues Committee supported 14 candidates.
The plenary session was also scheduled quickly, on the same day, and the judicial candidates for the Supreme Court were put to the final vote. The MPs voted in support of election of the very 14 candidates for life who had been recommended by the Legal Issues Committee.
Finally, the Supreme Court was staffed with the following individuals:
The positions are indicated as of the time of nomination of candidates.
The final outcome of the process of selection of the Supreme Court judges has shown that the goal of the authorities was not to staff the Supreme Court with conscientious and qualified judges. In reality, the process of selection of judges had a formal character. In addition, the majority of the selected 14 judges are perceived to be pursuing the interests of the influential judges in the judiciary or of the authorities.
Developments around the Constitutional Court
The beginning of an examination of high-profile cases in the Constitutional Court from the beginning of 2016 caused the intensification of political pressure on the Court. During this period, the Constitutional Court examined the cases of the former Mayor of Tbilisi, Gigi Ugulava, Rustavi 2 and the National Bank, as well as the so-called “Cable case”.
In September 2017, the Parliament adopted constitutional amendments, according to which the right to nominate members and the Chairperson of the Supreme Court was given to the High Council of Justice. Distrust towards the Constitutional Court emerged after the process of staffing it with new members got underway.
On December 1, 2017, the Parliament elected Eva Gotsiridze – who had openly supported the appointment of Levan Murusidze – as a judge of the Constitutional Court. Before being elected, Eva Gotsiridze spoke about the reasons for supporting him and practically admitted that her decision had been motivated by external factors rather than the law. She explained that a large part of judges “took their cues” from Levan Murusidze and, accordingly, if he left the system, this part of the judges could identify with this fact and use the final years of their tenure “inappropriately”. In addition, in February 2017, the Parliament of Georgia elected Manana Kobakhidze – a representative of the parliamentary majority and the First Vice-Speaker of the 8th Parliament – as a member of the Constitutional Court. This decision was preceded by criticism by civil society.
The power of the group of influential judges of common courts in the Constitutional Court increased especially after April-May 2020 when, at the time of the state of emergency and the pandemic crisis, the Plenum of the Supreme Court selected, through non-transparent procedures, two new candidates, Khvicha Kikilashili and Vasil Roinishvili, for membership of the Constitutional Court. Despite the fact that the vacancy had existed since December 5, 2019, the Plenum practically took advantage of the state of emergency and filled the vacancy at the time when the public’s attention was low due to the situation in the country. This step of the Plenum of the Supreme Court further deepened the distrust towards the judiciary. It was a member appointed precisely during this period, Khvicha Kikilashvili, who sealed the fate of the claim filed by the Public Defender which concerned the unconstitutionality of the procedure of selection of the Supreme Court judges. The claim was not granted, and four of the eight judges – Merab Turava, Khvicha Kikilashvili, Eva Gotsiridze, and Manana Kobakhidze – supported this decision. Four judges – Teimuraz Tugushi, Irine Imerlishvili, Giorgi Kverenchkhiladze, and Tamaz Tsabutashvili – wrote a dissenting opinion.
Judges of the Constitutional Court who were appointed during the years 2017-2020 also sealed the fate of the election of the President of the Constitutional Court in the summer of 2020. In particular, on June 25, 2020, Merab Turava was elected as the President of the Constitutional Court. The voting was secret, and it’s difficult to say exactly which five colleagues supported his candidacy, although the number of supporters of Merab Turava coincides with the number of those who had nominated him for this position. Those who nominated Merab Turava’s candidacy included the following judges of the Constitutional Court: Eva Gotsiridze, Manana Kobakhidze, Khvicha Kikilashvili, Vasil Roinishvili, and Merab Turava himself.
The legislative amendments made in the judicial system since 2016 have been fragmentary and inconsistent. Despite certain positive legislative changes, flaws incompatible with democracy and the principles of the independent judiciary still remain in the system. Lack of individual independence of judges also remains a considerable challenge, as the applicable legislation does not provide sufficient safeguards for the independence of judges. Yet another problem is the closed nature of the judicial system. The system of common courts has suffered from a lack of judges for years, although the group of influential judges does not ensure the inflow of new judges into the system. Based on an assessment of the policy of the authorities in the past four years, it can be argued that, during this period, they have not displayed the political will to create a judicial system that would be impartial and oriented at the protection of human rights.
The process of selection of judges of the Supreme Court has clearly demonstrated to the public that the goal of the authorities was not to staff the Supreme Court with conscientious and qualified judges. Ultimately, the process related to determining the procedure for nomination and election of the Supreme Court judges by the authorities, as well as the disregard for a big part of the recommendations of the Venice Commission, has caused a considerable reputational damage to the country.
As of today, the influence of clan governance of the system of common courts has also penetrated the Constitutional Court. Staffing the Constitutional Court with individuals devoted to the parliamentary majority and to the group of influential judges has damaged the Court’s authority to a considerable extent and decreased the public’s trust in its decisions.