Mr. Giorgi Kvirikashvili

Prime Minister of Georgia

Dear Mr. Prime Minister:

This letter addresses the process of selection of judicial candidates from Georgia for the European Court of Human Rights. 

As you are aware that the Government of Georgia Decree from December 14, 2015 established a governmental commission the purpose of which was to select judicial candidates from Georgia for the European Court of Human Rights and submit the short list of selected candidates to the Government of Georgia for consideration.

The Coalition has positively assessed the Government’s initiative to select judicial candidates for the European Court of Human Rights with the involvement of a Commission despite the absence of such a requirement in the law.   

The Coalition perceived this initiative as reflecting the Government’s willingness to carry out a merit-based selection process, which would be transparent and fair.  This is a precedent which has to be welcomed.

You probably also know that a representative of the Coalition took part in the work of the Governmental Commission created for the selection of judicial candidates for the European Court of Human Rights, in accordance with the above Decree. 

Our involvement in the work of the Commission has demonstrated that the assessments made by representatives of the Executive Government and the ruling party did not intend to evaluate candidates according to the requirements established in the Decree.  Instead, these assessments aimed to promote preliminarily selected candidates to the short list to be submitted to the Government.  This fact has defeated the purpose of the Commission and undermined the entire initiative.

This is clearly demonstrated by the fact that certain highly qualified candidates were not shortlisted while the candidates who received really low scores from representatives of nongovernmental entities (Public Defender, Chair of Georgia Bar Association, and the Coalition Chair) ended up on the short list.

The Coalition believes that it is important to provide information on these issues to you and the public.

In addition, the Coalition is willing to share views on the needs, flaws, and possible solutions to the problems associated with the competition procedure:

Competitive Process

The Coalition believes that it is extremely important to ensure a transparent and inclusive process while selecting judicial candidates for ECHR.  The same is true for the selection of the country representatives in other international consulting or quasi-judicial bodies, when such representation is guaranteed by the quotas assigned to Georgia. We hope that the Government of Georgia will consider this opportunity and decide adequately on these issues.

Regulations Governing the Work of the Commission

• It is advisable to define the rules and procedures governing the work of the Commission in the law rather than a Government Decree – this will increase legitimacy and stability of the process;
• It is also important to meticulously and clearly describe general principles and procedural issues related to the selection of candidates, which were not regulated by the Decree.

Composition of the Commission

• In view of the fact that the Government is authorized to select 3 out of 5 finalists, it is not advisable to include representatives of the Government in the Commission.  Otherwise, we will end up with a situation in which the same person/agency has two votes in the process of selection of candidates – both at the first and second stages of the process;
• It is advisable to include a representative of the President’s Administration as well as a non-majority Member of the Parliament.

Issues that Require Regulation

It is necessary to establish conflict of interest and disclosure procedures;

• In relation to this issue it is important to note that participation of the Deputy Minister in the competition on equal grounds with other candidates in the absence of any restrictions (suspension from office, a mechanism for addressing the conflict of interest) could at minimum be perceived as unfair, particularly in the circumstances, when Minister of Justice was heading the work of the Commission and the Secretariat for the Commission included the Ministry staff members;     
• The procedure should ensure the right to appeal at every stage of the competition, in cases of procedural violations, discrimination, or similar facts;
• We are positively assessing the transparency requirements proposed by the Decree, according to which applications, minutes and decisions of the Commission are to be published. The discussions held by the Commission are also accessible to media. However, in order to keep this transparency meaningful, each member shall not assign one score to each candidate.  He/she shall be obliged (rather than entitled) to assess each candidate according to specific criteria and thereby justify the total score assigned to each candidate.  Otherwise, transparency of the process will be meaningless. The scoresheet templates shall provide for such detailed justifications;
• It is important to clearly define the notion of “the high moral and professional reputation”.  More specifically, the regulation shall list the factors that need to be considered by the members of the Commission while assessing the reputation of individual candidates. That is why the law shall establish a procedure for the so called background check.  More specifically, in order to ensure comprehensive assessment of candidates, information about candidates has to be collected based on a standardized procedure and questionnaires.  Thereby the Commission will be able to assess whether a candidate’s reputation corresponds to the high status of an ECHR judge;
• It needs to be noted that the members of the Commission gave drastically opposing assessment to certain candidates.  In such cases it might be advisable to allow the members of the Commission to openly discuss the differences in opinion.

Dear Mr. Prime Minister,

We hope that the Government will consider important circumstances described above, which have been identified by the Coalition in the process of selection.

We would also like to inform you that the Coalition will publish this letter in media and make it accessible to stakeholders.

Sincerely,

Ana Natsvlishvili

Coalition for an Independent and Transparent Judiciary

Member of the Judicial Candidate Selection Commission for the European Court of Human Rights