Transparency International Georgia evaluated the existing legal regulations and established practices for promotion at the Georgian Courts. The study analyzes decisions made by the High Council of Judges on the promotion of judges in 2015-2020. The study has shown that the promotion system is uses by the clan of influential judges as one of the important levers to maintain internal influences.

The vast majority of promotion decisions are based not on merit, but on the personal, narrow interests of an influential group of judges. This is made possible by existing legal framework, including the rules of the composition of the High Council of Justice and respective decision making regulations.

Key findings:

• In transitional democracies, merely establishing high standards for the promotion of judges cannot ensure the effectiveness of the justice system. It is important that, in the process of promotion, the dangers emanating from the influential judges within the judiciary that may infringe upon the independence of individual judges are taken into account;
• The existence of a “captured” High Council of Justice (HCJ) threatens the [efforts] to ameliorate the judiciary and to make it truly independent. The power concentrated in the hands of the HCJ allows it to engage in manipulation using appointment/promotion of judges and staff-related decisions. In such a situation, dangers of nepotism and favoritism appear, which strengthens governance which is based on the principles of corporatism.
• The key problem with judicial promotion is the use of the powers granted by the HCJ for unsound purposes. When a judge is transferred to a court of a higher instance, no staffing needs of a specific court are considered. The interviewing process is also superficial and non-essential: it only lasts a few minutes and is mainly concerned with the candidates’ motivation; given the lack of substantiation for the decisions made by the HCJ by secret ballot, it is unclear whether the HCJ does indeed apply the established rules and criteria based on merit when it gives preference to a specific candidate.
• The HCJ is not consistent with regard to the process of making staff- related decisions. Interestingly, 35 judges have been promoted without competition since 2015, the judges are transferred from various courts mainly to Tbilisi Court of Appeals. There are only three cases when judges were transferred to Kutaisi Court of Appeals. The trend of transferring judges mainly to Tbilisi Court of Appeals raises questions, considering the fact that district courts suffer from the lack of judges a lot more; another example illustrating this situation is the promotion of Judge Nino Sharadze by transferring her from the Civil Cases Panel of Gori District Court to the Administrative Cases Panel of Tbilisi Court of Appeals, as a result of which Gori District Court did not have a judge to consider civil cases for six months.
• The existing rule of judicial promotion is mainly used by the HCJ to carry out a so-called rotation of judges between courts. Precisely this kind of staff manipulation allows the so-called clan to maintain its influence within the judiciary. For example, in November 2019, Vasil Mshvenieradze was promoted from his judicial post in the Administrative Cases Panel of Tbilisi Court of Appeals to the Investigation Panel of the same court. After that, by the order of 31 July 2020, he was transferred to the Civil Cases Panel of Kutaisi Court of Appeals. Furthermore, Mshvenieradze replaced Dimitri Gvritishvili as the chairperson of Kutaisi Court of Appeals, while the latter was transferred to Tbilisi Court of Appeals, also by the order of 31 July 2020. Since December 2020, Mshvenieradze has been back in Tbilisi Court of Appeals as a judge on the Civil Cases Panel and the chairperson of the court.
• The existing practice of judicial promotion threatens to eliminate a possibility of more qualified judges getting into courts of higher instances. Considering the reality prevailing in the judiciary and the unsubstantiated decisions made, it remains unclear for an objective observer whether or not judges are selected based on the established criteria. Furthermore, the opaque procedure makes it possible to prevent a promotion of a candidate, who demonstrates better results in terms of integrity and competence.
• The practice of promoting judges to the courts of higher instances increases the risks of cronyism and favoritism in the judiciary. Conducting the process in an expedited and unsubstantiated manner raises suspicions with regard to the goals and motivation behind the decisions made by the HCJ, which further undermines public trust in this process. In addition, the judges who are promoted are usually the ones who are loyal to the influential group.
• Using the existing practice of promotion, the group of influential judges in the judiciary staff the largest and the most influential courts with supportive and loyal cadres. In Tbilisi Court of Appeals, based on Article 37 of the Organic Law [on Common Courts], the process of judicial appointments without competition became particularly active in parallel with the competition for judicial positions at the Supreme Court in July 2019. As a result of this process, 22 judges were promoted by transferring to the Court of Appeals. Twelve of them participated in the competition for the Supreme Court judgeship.
• The influence of the judges promoted to Tbilisi Court of Appeals in the judiciary usually strengthens quickly. There are many examples of fast-tracked careers of judges promoted to Tbilisi Court of Appeals. The case of Levan Mikaberidze should be noted among them. He was promoted to a post in Tbilisi Court of Appeals for the first time in 2019. Several months later, Mikaberidze became a judge of the Supreme Court and a member of the Chamber of Qualification. At the Conference of Judges on 26 May 2021, he was elected a judicial member of the HCJ.
• The rule of making decisions concerning promotions ensures that only judges are in control of this process. According to international good practice, it is better if other professional members participate in the process. Correspondingly, decisions in the HCJ should be made based on the rule of bilateral support, namely, with participation of non-judicial members.
• Making decisions concerning promotions by secret ballot cannot ensure that the process is transparent. The existence of secret ballot rules out proper substantiation of decisions and subsequent appeals against them.

In order to solve problems:

• Decisions on promotions should be made by the double 2/3 majority of non-judicial and judicial members of the HCJ. However, at the same time, the Parliament must ensure that the HCJ is staffed with neutral and independent judicial members.
• The rule concerning the appointment of judges without competition envisaged by Article 37 of the Organic Law should be an exception and should not allow transferring to courts of a higher instance. The analysis of the practice has demonstrated that the HCJ has been using this article to promote judges rather than based on the needs of specific courts. The decisions to promote judges must be made solely based on competition in accordance with Article 41 of the Organic Law. Correspondingly, the HCJ must comply with the obligations established by the Organic Law and develop criteria for judicial promotions.
• Decisions concerning judicial promotions should be made by open ballot since secret ballot rules out proper substantiation and a possibility to appeal the results.
• The HCJ decisions must be properly substantiated and be subject to appeal.

We hope that the findings and recommendations of this study will be taken into account by the members of the HCoJ, the relevant bodies of the executive and the legislature.

Research Methodology: The main findings of this report are the result of an in-depth study of the state of the judiciary, which includes a detailed analysis of existing legislation and decisions of the HCoJ, a study of existing attitudes based on communication with judge and non-judge members of the HCoJ, and an analysis of public opinion data. However, the research findings are not based on the interviews given in the report and they are intended solely to depict existing attitudes.

This publication was made possible by the support of the American people through the United States Agency for International Development (USAID). The opinions expressed in the study belong to Transparency International Georgia and may not reflect the views of EAST WEST MANAGEMENT INSTITUTE, USAID or the United States Government.