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ODIHR Warns Parliament’s High Role in Selection of Judges may Undermine Court Impartiality

By Gvantsa Gabekhadze
Friday, April 19
The OSCE Office for Democratic Institutions and Human Rights (ODIHR)says that the increased role of the Georgian parliament in the appointment of Supreme Court judges may undermine the court’s impartiality.

The assessment comes in the report which was requested by the Georgian Public Defender Nino Lomjaria regarding the controversial bill offered by the Georgian Dream ruling party MPs on the selection and appointment criteria of lifetime judges for the Supreme Court.

“ODIHR would like to reiterate that the election of Supreme Court judges and Chief Justice by the parliament and thus its influence on the final composition of the highest Court, carries with it a risk of politicization of the process and could undermine the independence and impartiality of the Supreme Court (and its appointed judges),” reads the report.

ODIHR says to mitigate this risk, the parliament’s role in the appointment process should be “strictly circumscribed” to a supervisory role with respect to compliance of the overall process with the applicable legislation and clearly defined by law, while providing for robust procedures and guarantees to ensure that appointment decisions are exclusively taken based on objective criteria.

ODIHR says that as the bill offers that almost 3/4th of the vacant positions in the Supreme Court to be filled in the coming months, “it is of the utmost importance to ensure that the judges are elected following the clearly defined and uncontroversial procedure, which would guarantee appointment of the most qualified and experienced candidates.”

The report says that in this context, the expeditious procedures for judicial appointments envisaged by the bill “create reasons for concern”.

“The modalities for the HCJ [High Council of Justice, an independent body responsible for selection and appointment of judges in Georgia] to select candidates by secret ballot undermines the merit-based selection system and should be replaced by a procedure whereby the HCJ would adopt a summary of majority justification for the ranking of candidates and their nomination in light of the clearly defined selection criteria,” reads the report.

ODIHR says that the bill should specifically regulate the issue of conflict of interest in the context of the nomination of candidates to Supreme Court judgeship by the HCJ and unsuccessful candidates should have the possibility to challenge the HCJ decision before a judicial body.

The report urges increase the number of years of professional experience to be eligible to Supreme Court judgeship and replace the requirement for non-judicial candidates to take the judicial qualification examination by other testing modalities applicable for all (judicial and non-judicial) candidates.

Lomjaria addressed the ODIHR for assessments as she believed that the bill drafted by the ruling party MPs fail to provide fair selection and appointment procedures of judges.

A day before the Venice Commission of the Council of Europe has also released its report regarding the issue as it was requested by the ruling party.

The report expressed the surprise that 17 judges for the Supreme Court may be approved by the current parliament, which term expires next year.

The report says in developed countries appointment of judges sometimes takes decades.

The Venice Commission also stated that the body which must present the judges to parliament for approval, the HCJ, has low trust in the public.

The High Council of Justice presented 10 candidates for the Supreme Court back in December 2018, the list which was grilled by NGOs.

To “settle the controversies” the ruling party vowed to offer a bill meeting the interests of all parties and promised to request assessments and recommendations from the Venice Commission.

Currently, there are 11 judges in the Supreme Court, when the number must be 28.

The bill drafted by the Georgian Dream MPs allows the High Council of Justice to nominate judges for the Supreme Court, who will serve in the court for life (before retirement).

NGOs, several, non-judge members of the High Council of Justice and former members of the ruling party say that the bill “allows biased judges” stay in the court.

Those opposing the bill say that the High Council of Justice must be recomposed, as the council is being run by the judges who would deliver “unfair verdicts” under the United National Movement leadership.