NGOs question ongoing promotion of judges in the high council of justice

As reported, at the 19 October 2015 session of the High Council of Justice of Georgia the amendments to the Regulations of the High Council of Justice will be discussed, which must establish the criteria and procedures for the judges' transfer/promotion without a competition. In the absence of relevant rules and given the flawed justification of necessity to use the procedure, the civil society has disapproved the Council's decision of 28 September 2015 on launching the procedure for transferring judges to 7 vacant positions in the Tbilisi Appellate Court without competition.

Interestingly, the Council tries to regulate the process and criteria of non-competitive transfer of judges when the judges wishing to be transferred to 7 vacant positions had already submitted applications in the Council. Amendments to fundamental regulations in the current process and the Council's efforts to speedily adopt the criteria and procedures for promotion of judges, which it had not taken care of for years, discredit this entire process as it is. Further, the process is still developing with significant gaps, thus undermining the independence of entire judicial system:

1. Legislative regulation of judges' transfer/promotion without competition is extremely general and vague. In recent years, the civil society representatives have systematically reported about malpractice of transferring judges without competition based on Article 37 of the Organic Law, and the application of this Article always raised doubts in terms of its objective application.

We think that to secure independence of judges at institutional level, the law must, at least, define key principles of transfer/promotion of judges without competition, which would bind any staff of the High Council of Justice when adopting detailed procedures based on the law. This pivotal component for ensuring judicial independence cannot entirely depend on good faith of the Council members, and it must be reinforced at institutional level, requiring in the first place relevant legislative amendments.

2. Promotion of judges in the absence of relevant evaluation system excludes the Council's objective decisions on candidates in the promotion process. To make decisions on promotion, the Council members will not possess information that they should build their objective choices on, thus inevitably resulting in the Council's unjustified decisions. Hence, we find it unacceptable to continue judges' promotion practices without introducing a proper judges' evaluation system.

3. According to the Opinion of the Consultative Council of European Judges #10 (2007), existence of criteria for promoting judges is not sufficient. Pursuant to Paragraph 93 of this Opinion, "any interested party should be able to look into the choices made and check that the Council for the Judiciary applied the rules and criteria based on merits in relation to appointments and promotions". Despite the attempt of establishing the criteria for transferring judges, the procedure for promoting judges as offered by the High Council of Justice fails to provide such evaluation opportunities.

4. Grave accusations were heard at the 28 September 2015 session of the High Council of Justice in relation to the list of concrete individuals, whose transfer in the Tbilisi Appellate Court was planned without competition. Besides, developments in the Council and the statements made left the impression of deal reached among the Council members to support the above decision. This impression is even stronger due to absence of credible arguments and explanation as to why the lack of judges in the Tbilisi Appellate Court is different from a difficult situation in the Tbilisi City Court or other courts in the regions of Georgia, where hundreds of cases are assigned to one judge at a time.

The above circumstances discredit the ongoing process in the High Council of Justice relating to transfer (promotion) of 7 judges from the first instance court to the Tbilisi Appellate Court without competition. The current process of non-competitive transfer, i.e. promotion of judges, which is unrolling in a forced manner and without due justification, jeopardizes judicial independence and raises concerns over impartiality of relevant judges in their future activities as judges of the Tbilisi Appellate Court.

We urge the High Council of Justice of Georgia:

 In the absence of clear criteria and rules for appointment/promotion of judges without competition, to refuse to apply Articles 37 and 41 of the Organic Law of Georgia on the Common Courts in practice, and to fill 7 vacant positions in the Tbilisi Appellate Court in this manner. Notably, as part of the competition announced by the Council on 6 October 2015, inter alia, on 10 vacant positions of judges in the Tbilisi Appellate Court, deadline for submitting applications expires on October 26 and in a very short period of time there is a real opportunity to appoint judges in the Tbilisi Appellate Court through competition.

 Not to adopt hastily the criteria and rules for appointment/promotion of judges without competition; give the interested public a tangible opportunity to submit to the Council its opinions and proposals for regulating this process, including, in view of international recommendations and best practices.

 To start working immediately on regulation of transfer/promotion of judges without competition at legislative level, thus bringing it in compliance with principles of judicial independence and public trust towards it.

In case of an open and transparent process, we express readiness to cooperate with the High Council of Justice to develop relevant legislative amendments.

 

• Georgian Young Lawyers' Association
• Human Rights Education and Monitoring Center
• Transparency International Georgia
• Open Society - Georgia Foundation
• Human Rights Center
• Article 42 of the Constitution
• IDFI