Substantiating the Decision on the appointment of the Judges - Formality that doesn’t change the content
29.07.2022
The High Council of Justice of Georgia is obliged to substantiate why a person was appointed to the position of a judge. However:
When performing professional activities, a judge shall be independent and obey only the Constitution and the law. This is an obligation imposed on judges by the Supreme legal act of the country – the Constitution. The constitution stipulates that a judge of the common Court shall be appointed to the position for life until he/she reaches the age of 65 determined by the organic law. Judges shall be selected on the grounds of integrity and competence. The decision on the appointment of a judge shall be made by the High Council of Justice of Georgia by a majority of at least two-thirds of the full composition.
After voting on the appointment of a judge by the High Council of Justice of Georgia, it is obliged to publish the substantiation, which should include:
At the same time, a member of the High Council of Justice of Georgia is entitled to write a dissenting opinion, which must be published.
It should be mentioned that after voting on the appointment of a judge, the High Council of Justice of Georgia has had the obligation to publish the justification since January 2020. It should also be noted that the Council of justice substantiates the decision only in the case of a positive judgment on the matter of appointment. This means that if a person is not appointed as a judge, this decision will be made without any substantiation since the law does not establish such an obligation.
Before discussing the issue of substantiation of the decision by the High Council of Justice and concluding based on concrete examples whether the current practice meets the requirements of the law, it is important to consider what processes preceded these amendments and why the obligation to substantiate the decision on the appointment of a judge arose in the first place.
Since the change of government in 2012, four waves of judicial reform have been implemented. Even though some of the reforms envisaged positive initiatives, we can safely say that the judiciary still faces great challenges in legal and practical terms.
According to the amendments of the fourth wave of judicial reform, after the voting, the council was ordered to publish the justification for the appointment of a judge. The reason and necessity of the amendment were more transparency and improvement of the judicial appointment system. Although this innovation could not eliminate the problem and was mostly formal-procedural, it still had little potential to increase the level of accountability of the High Council of justice when appointing judges. Because, as we have already mentioned, the obligation of substantiation includes both the description of the procedure for selecting a judge, as well as the characterization of the appointed judge and the conclusion about his / her integrity. The latter becomes especially relevant when we talk about the independence of judges.
Theoretically, the change could have the potential to cause a positive effect, but it is important to analyze how was it applied in practice.
Before diving into this issue, it should be noted that the process of working on the "fourth wave" reform of the court was isolated, the work on the reform was carried out without wide participation, which was negatively assessed. Changes of the fourth wave have a direct impact on society, and social welfare, thus whatever the issue, reform, or decision-making process, it is important that this process be carried out with the participation of the society. According to numerous assessments of civil society organizations, special attention should be paid to the challenges related to the selection and appointment of judges and other staff-related matters.
As for the practice of justifying the appointment of judges, the description of the judicial selection procedure tends to be transparent at first glance, but the conclusion about integrity is of a very general nature and may fit any of the judges.
The conclusion does not emphasize on what basis, based on which facts and circumstances the High Council of justice considered that a particular judge meets the requirements of the law, in particular in the integrity criteria. This allows us to conclude that the council only formally fulfills the obligation of justification and the text of the justification is mostly patterned.
According to expert opinions and international standards, it would be logical to say that only such an approach is considered as a justification when the given text clearly shows the specific circumstances based on which the council decided to appoint a person as a judge; in addition, the assessment and justification of the council's decision are directed individually to a particular judge, and should not be general.
Although the members of the High Council of justice evaluate the candidates differently, the justification portions of their decisions are identical. Such an approach is suspicious and raises legitimate questions about decision-makers. Accordingly, this circumstance once again makes us think that the obligation to substantiate is only formally fulfilled by the High Council of justice and in fact, this change in the law does not affect the process of staffing the judicial system.
We will refer to the practice to substantiate the validity of the above-mentioned assessments. We will discuss several dozen decisions made by the High Council of justice, from 1st January 2020(after the obligation to publish justification in the law emerged) till today.
From the published substantiation of the appointment of these 36 judges, we see that the main difference in all these justifications is only in the facts directly related to the character of the judge. In particular, differ only in formal data:
Substantiation
On the matter of appointing Maia Shoshiashvili to a Rustavi city court magistrate judge position
Based on Article 35 of the Organic Law of Georgia" on common courts", the High Council of Justice of Georgia, by decision of June 26, No1/89, 2020, announced the competition for the selection of judges on the vacant positions within the system of common courts. Including 1 vacant position of Magistrate Judge of Rustavi City Court in Gardabani municipality.
Registration of candidates was conducted from June 29 to July 29, 2020. 29 candidates registered for the mentioned vacancy.
From July 24 to August 21, 2020, the Activity Assessment Management Department retrieved information on the candidates participating in the competition, including Maia Shoshiashvili, provided by Article 35 of the Organic Law of Georgia "on common courts", which was presented to the members of the High Council of Justice on August 24.
Information regarding the candidate:
Maia Shoshiashvili has amassed 30 years of experience in the field/specialty, including 20 years of experience working as a judge. She was the judge of common courts from 1999 through 2019.
During her years working as a judge, there was no disciplinary prosecution against her, and no disciplinary penalty or disciplinary impact measures were used.
Interview with the candidate:
After the board members got acquainted with the information about the candidates, an interview with the candidates was appointed. The interview with Maia Shoshiashvili was conducted on October 21. The interview was conducted at an open session and was attended by representatives of non-governmental organizations.
Candidate evaluation:
In the period from November 2020 to November 5 to November 12, 15 members of the High Council of Justice evaluated candidate Maia Shoshiashvili according to competence and integrity criteria.
When evaluating Maia Shoshiashvili according to the criteria of integrity, all fifteen members of the council considered that she fully complied with these criteria.
According to the criteria of competence of Maia Shoshiashvili, the total points obtained by the candidate according to the characteristics of these criteria were 1330 points, which is 88.67% of the maximum number of points.
Voting results:
As a result of November 2020, November 18 voting for the vacancy of Magistrate Judge of Rustavi City Court in Gardabani municipality, in which 13 members of the council participated, Maia Shoshiashvili received 12 votes.
The ballot paper included 8 candidates, 6 of them former judges and 2 former students of the High School of Justice.
Conclusion
Based on the criteria of integrity (all members of the council considered that she fully meets the mentioned criteria) and competence (all characteristics), the candidate Maia Shoshiashvili was given an advantage over 7 other candidates and Maia Shoshiashvili was appointed to the position of Magistrate Judge of Rustavi City Court in Gardabani municipality before reaching the age established by law.
To assess the issue – whether the justification standard has changed or not – we will consider the justification of judges appointed in 2021.
2021 on June 17, according to the decision of the High Council of Justice, 47 judges were appointed:
The justification standard in the 2021 ordinances does not differ from the text from one in 2020. The only difference is that: the biographical data of the judicial candidate and statistical information related to judicial experience are presented more broadly, although the part of the substantiation concerning integrity is still copied from a template.
Appendix #2 presents an example of one of the justifications, where the parts marked in yellow show what does not change in the justifications of the qualification and integrity of different judges.
Also, we offer the decree on the lifetime appointment of judges in 2022, in this case, we encounter an even greater problem than in the discussed examples. Since there is no justification attached to the decree on the appointment of judges.
Finally, it can be said that the text of the justification is of a general kind and does not refer to a particular judge. This form of justification cannot give a complete picture of the qualification and integrity of the judicial candidate. Decrees on the appointment of judges are often not accompanied by a part of justification – both in cases of lifetime appointment and 3-year term appointment.
Let us consider the report adopted by the Venice Commission at the 70th plenary session, which states that there are different systems of appointment of judges in Europe and there is no uniform model that will apply to all countries, but in all cases, it is important to have a justification, which must necessarily include a decision on appointing a person, the justification should be clear and specific. According to the verdict of the Consultative Council of European judges, No1 (2001), "every decision concerning the appointment or career of a judge should be based on objective criteria and be made by an independent body".
The standards of the Council of Europe concerning the independence of the judiciary reads: "it is equally important that the judicial appointments bodies ensure the widest possible representation, observe a transparent procedure and substantiate the decision.“
Therefore, when appointing a judge, it is important not the fact of having formal substantiation, but it is of decisive importance that it responds to the relevant requirements of substantiation in content; in addition, it applies to a specific person and not to judges in general.
---
The materials distributed by courtwatch.ge and published on the website are the property of "Georgian Court Watch", when using them, "Georgian Court Watch" should be indicated as the source.
- The justifications for judicial candidates are formal, as, in the case of different judges, the text is identical and patterned.
- The justification is determined by the secretary of the High Council of Justice of Georgia, even though the decision on the appointment of a judge is made by a collegial body - the High Council of Justice.
- The Council of Justice is obliged to substantiate its decision only if it appoints a person to the position of a judge (in case of refusal to appoint him/her, it does not have this obligation).
- The decrees on the appointment of judges published in 2022 do not include part of the justification at all.
When performing professional activities, a judge shall be independent and obey only the Constitution and the law. This is an obligation imposed on judges by the Supreme legal act of the country – the Constitution. The constitution stipulates that a judge of the common Court shall be appointed to the position for life until he/she reaches the age of 65 determined by the organic law. Judges shall be selected on the grounds of integrity and competence. The decision on the appointment of a judge shall be made by the High Council of Justice of Georgia by a majority of at least two-thirds of the full composition.
After voting on the appointment of a judge by the High Council of Justice of Georgia, it is obliged to publish the substantiation, which should include:
- Procedure description;
- Characterization of the appointed judge;
- Accumulated points;
- Conclusion on his/her integrity
The decision on the appointment of a judge is made by the High Council of justice, but the justification is determined by the secretary of the High Council of Justice of Georgia.
At the same time, a member of the High Council of Justice of Georgia is entitled to write a dissenting opinion, which must be published.
It should be mentioned that after voting on the appointment of a judge, the High Council of Justice of Georgia has had the obligation to publish the justification since January 2020. It should also be noted that the Council of justice substantiates the decision only in the case of a positive judgment on the matter of appointment. This means that if a person is not appointed as a judge, this decision will be made without any substantiation since the law does not establish such an obligation.
Before discussing the issue of substantiation of the decision by the High Council of Justice and concluding based on concrete examples whether the current practice meets the requirements of the law, it is important to consider what processes preceded these amendments and why the obligation to substantiate the decision on the appointment of a judge arose in the first place.
Since the change of government in 2012, four waves of judicial reform have been implemented. Even though some of the reforms envisaged positive initiatives, we can safely say that the judiciary still faces great challenges in legal and practical terms.
According to the amendments of the fourth wave of judicial reform, after the voting, the council was ordered to publish the justification for the appointment of a judge. The reason and necessity of the amendment were more transparency and improvement of the judicial appointment system. Although this innovation could not eliminate the problem and was mostly formal-procedural, it still had little potential to increase the level of accountability of the High Council of justice when appointing judges. Because, as we have already mentioned, the obligation of substantiation includes both the description of the procedure for selecting a judge, as well as the characterization of the appointed judge and the conclusion about his / her integrity. The latter becomes especially relevant when we talk about the independence of judges.
Theoretically, the change could have the potential to cause a positive effect, but it is important to analyze how was it applied in practice.
Before diving into this issue, it should be noted that the process of working on the "fourth wave" reform of the court was isolated, the work on the reform was carried out without wide participation, which was negatively assessed. Changes of the fourth wave have a direct impact on society, and social welfare, thus whatever the issue, reform, or decision-making process, it is important that this process be carried out with the participation of the society. According to numerous assessments of civil society organizations, special attention should be paid to the challenges related to the selection and appointment of judges and other staff-related matters.
As for the practice of justifying the appointment of judges, the description of the judicial selection procedure tends to be transparent at first glance, but the conclusion about integrity is of a very general nature and may fit any of the judges.
The conclusion does not emphasize on what basis, based on which facts and circumstances the High Council of justice considered that a particular judge meets the requirements of the law, in particular in the integrity criteria. This allows us to conclude that the council only formally fulfills the obligation of justification and the text of the justification is mostly patterned.
According to expert opinions and international standards, it would be logical to say that only such an approach is considered as a justification when the given text clearly shows the specific circumstances based on which the council decided to appoint a person as a judge; in addition, the assessment and justification of the council's decision are directed individually to a particular judge, and should not be general.
Interchangeability of assessments of judicial candidates
Although the members of the High Council of justice evaluate the candidates differently, the justification portions of their decisions are identical. Such an approach is suspicious and raises legitimate questions about decision-makers. Accordingly, this circumstance once again makes us think that the obligation to substantiate is only formally fulfilled by the High Council of justice and in fact, this change in the law does not affect the process of staffing the judicial system.
We will refer to the practice to substantiate the validity of the above-mentioned assessments. We will discuss several dozen decisions made by the High Council of justice, from 1st January 2020(after the obligation to publish justification in the law emerged) till today.
From the published substantiation of the appointment of these 36 judges, we see that the main difference in all these justifications is only in the facts directly related to the character of the judge. In particular, differ only in formal data:
- Candidate Name, Surname;
- Number of competitors;
- Court name;
- Events;
- Duration of work experience;
- The number of points and votes received.
- As for the assessment of the part of judge's integrity – the text is identical for all of the judges and does not change in any of the cases.
As an example, consider several justifications, where the part of the text that does not change is highlighted.
Substantiation
On the matter of appointing Maia Shoshiashvili to a Rustavi city court magistrate judge position
Based on Article 35 of the Organic Law of Georgia" on common courts", the High Council of Justice of Georgia, by decision of June 26, No1/89, 2020, announced the competition for the selection of judges on the vacant positions within the system of common courts. Including 1 vacant position of Magistrate Judge of Rustavi City Court in Gardabani municipality.
Registration of candidates was conducted from June 29 to July 29, 2020. 29 candidates registered for the mentioned vacancy.
From July 24 to August 21, 2020, the Activity Assessment Management Department retrieved information on the candidates participating in the competition, including Maia Shoshiashvili, provided by Article 35 of the Organic Law of Georgia "on common courts", which was presented to the members of the High Council of Justice on August 24.
Information regarding the candidate:
Maia Shoshiashvili has amassed 30 years of experience in the field/specialty, including 20 years of experience working as a judge. She was the judge of common courts from 1999 through 2019.
During her years working as a judge, there was no disciplinary prosecution against her, and no disciplinary penalty or disciplinary impact measures were used.
Interview with the candidate:
After the board members got acquainted with the information about the candidates, an interview with the candidates was appointed. The interview with Maia Shoshiashvili was conducted on October 21. The interview was conducted at an open session and was attended by representatives of non-governmental organizations.
Candidate evaluation:
In the period from November 2020 to November 5 to November 12, 15 members of the High Council of Justice evaluated candidate Maia Shoshiashvili according to competence and integrity criteria.
When evaluating Maia Shoshiashvili according to the criteria of integrity, all fifteen members of the council considered that she fully complied with these criteria.
According to the criteria of competence of Maia Shoshiashvili, the total points obtained by the candidate according to the characteristics of these criteria were 1330 points, which is 88.67% of the maximum number of points.
Voting results:
As a result of November 2020, November 18 voting for the vacancy of Magistrate Judge of Rustavi City Court in Gardabani municipality, in which 13 members of the council participated, Maia Shoshiashvili received 12 votes.
The ballot paper included 8 candidates, 6 of them former judges and 2 former students of the High School of Justice.
Conclusion
Based on the criteria of integrity (all members of the council considered that she fully meets the mentioned criteria) and competence (all characteristics), the candidate Maia Shoshiashvili was given an advantage over 7 other candidates and Maia Shoshiashvili was appointed to the position of Magistrate Judge of Rustavi City Court in Gardabani municipality before reaching the age established by law.
To assess the issue – whether the justification standard has changed or not – we will consider the justification of judges appointed in 2021.
2021 on June 17, according to the decision of the High Council of Justice, 47 judges were appointed:
The justification standard in the 2021 ordinances does not differ from the text from one in 2020. The only difference is that: the biographical data of the judicial candidate and statistical information related to judicial experience are presented more broadly, although the part of the substantiation concerning integrity is still copied from a template.
Appendix #2 presents an example of one of the justifications, where the parts marked in yellow show what does not change in the justifications of the qualification and integrity of different judges.
Also, we offer the decree on the lifetime appointment of judges in 2022, in this case, we encounter an even greater problem than in the discussed examples. Since there is no justification attached to the decree on the appointment of judges.
Finally, it can be said that the text of the justification is of a general kind and does not refer to a particular judge. This form of justification cannot give a complete picture of the qualification and integrity of the judicial candidate. Decrees on the appointment of judges are often not accompanied by a part of justification – both in cases of lifetime appointment and 3-year term appointment.
Let us consider the report adopted by the Venice Commission at the 70th plenary session, which states that there are different systems of appointment of judges in Europe and there is no uniform model that will apply to all countries, but in all cases, it is important to have a justification, which must necessarily include a decision on appointing a person, the justification should be clear and specific. According to the verdict of the Consultative Council of European judges, No1 (2001), "every decision concerning the appointment or career of a judge should be based on objective criteria and be made by an independent body".
The standards of the Council of Europe concerning the independence of the judiciary reads: "it is equally important that the judicial appointments bodies ensure the widest possible representation, observe a transparent procedure and substantiate the decision.“
Therefore, when appointing a judge, it is important not the fact of having formal substantiation, but it is of decisive importance that it responds to the relevant requirements of substantiation in content; in addition, it applies to a specific person and not to judges in general.
---
The materials distributed by courtwatch.ge and published on the website are the property of "Georgian Court Watch", when using them, "Georgian Court Watch" should be indicated as the source.
