The path to becoming a judge

In order to establish whether the judiciary can be considered independent of the other branches of government, regard is usually had, among other things, to the manner of appointment of judges.¹  All decisions about the professional career of judges, according to well-established international norms, should be based on objective criteria, considering the candidates' qualifications, integrity, and efficiency. The procedure for appointing a judge in the Georgian judiciary has come under legislative scrutiny and has undergone significant revisions during the last two decades. It has gained greater formal compliance with accepted criteria through reforms, but this has never been adequate to actually administrate the judicial appointment process in a way to bring the public's trust in the judiciary.

What was required of judicial candidates?

Following the restoration of independence of Georgia, the 1997 Organic Law “on Common Courts” determined the procedure for the election of judges based on open competition. After the selection of the judge candidates, the High Council of Justice presented them to the President of Georgia for approval. According to the legislation in effect at the time, the requirement for judiciary candidates was at least 30 years of age, five- years of work experience, and passing the qualification exam for the position of judge. The conditions of the competition were set by a decree of the President of Georgia.

With legislative amendments enacted in 2007, the High Council of Justice gained “exclusive” authority over the selection of judges. The Council chose judges “based on the qualification exam results, the candidate's professional and moral reputation, the ability to freely and impartially assess the issues at stake, professional experience, and physical condition.” The procedure for the contest was determined by the Council's regulations regarding the selection of candidates.

The Georgian Parliament passed a new law "On Common Courts," on December 4, 2009, removing the age barrier and allowing candidates to be elected as judges at the age of 28. In addition, attendance at the High School of Justice became mandatory for appointment as a judge. The serial number on the School of Justice's qualification list and the assessment of the Higher School of Justice's independent council were considered. The invitation and interviewing of the judge candidates at the session of the High Council of Justice of Georgia was a novelty.² The High Council of Justice updated the competition conditions and judicial selection criteria by the decision of October 9, 2009.

The decision of the High Council of Justice on candidate selection outlined the competition's procedures, including the procedure for submitting applications, the deadlines for submitting documents, the conditions of the competition, and, among other things, the criteria for evaluating candidates for the position of judge. Candidates' integrity and competence were graded using a scoring system. At first look, the legislative guidelines appeared to regulate the procedure correctly, but issues emerged when they were put into effect.

In 2009, for example, the competition for selection of the judges was held three times, with the contestants of the second stage being determined by decisions of the Council in February, May, and September. Sergo Metophishvili, Revaz Nadaraya, and Irakli Bondarenko were appointed to the office for the first time. Judge Lela Kalichenko, who had been a judge since 1999 and whose 10-year term of office expired in 2009, was not appointed within the same period. The fact that she was appointed in 2016 after seven years of participation in the competition and multiple rejections raises concerns. It should be mentioned that the appointment of Lela Kalichenko is one of the examples when a person, despite having ten years of experience as a judge, was appointed to the office after many refusals in the competition.

What did the three waves of reforms change?

As part of the judicial reform, new legislative changes to the Organic Law “on Common Courts” have been drafted since 2012. However, it is surprising that the first and second waves of judicial reform did not address the issue of clarifying the methods for selecting and appointing judges.

Only in 2014 did the reform process cover the selection and appointment of judges, as well as other critical matters such as the establishment of the position of independent inspector, the implementation of the procedure of electronic case distribution, and others. The working process, which began in 2014, lasted a lengthy time, and the organic law was changed in early 2017. It should be emphasized that several improvements were implemented in the selection of candidates for judges, albeit subsequent practices revealed that these developments had no substantial impact on the process of appointing judges.
 
Before the debate on legislative changes in Parliament began, the Venice Commission reviewed the draft and found the adoption of clear and foreseeable criteria for the nomination of judges as positive. Furthermore, it revealed numerous troubling circumstances:

• The Commission stated that rather than political opinions, objective factors such as professional qualifications, competence, and integrity of judges should be mentioned in the selection of judges.
• The Commission disagreed with the requirement to submit an asset declaration to be elected as a judge because it could lead to discrimination against candidates.
• The Commission believed the procedure for obtaining information about a candidate, including access to finances, was flawed and risked infringing on the right to privacy.
• The Commission liked the mechanism for appealing Panel decisions to the Qualifying Chamber of the Supreme Court, but it criticized that the draft law excluded the possibility for an unsuccessful candidate to appeal the decision of the Council.

Legislative changes of the third wave of reform were adopted by the Parliament with procedural irregularities and actually for the appointment of Judge Mikhail Chinchaladze for life. In particular, the Venice Commission-approved version of the Organic Law "On Common Courts" was amended numerous times in Parliament, resulting in a legislative package with substantially different content. The situation was exacerbated by the adoption of the law with procedural irregularities - during the third reading of the legislative initiative, major modifications to the draft were made when only editorial amendments were permitted.

Significant amendments were made to organic law Articles 351 and 364, para 2, which exempted previous and serving Supreme Court judges from the three-year probationary period for judicial appointments. As a result, present and former Supreme Court justices and former Constitutional Court justices were appointed for life. The inclusion of this rule in the Draft coincided with the lifetime appointment of former Supreme Court judge Mikhail Chinchaladze. In contrast to judges of the first and second instances, who also had more than three years of judicial experience, he was appointed without a three-year probationary term. Because the legislative changes only applied to former Supreme Court and Constitutional Court judges (on May 11, 2017, former

Constitutional Court judge Otar Sichinava was appointed to the Tbilisi Court of Appeals for life), other experienced judges were compelled to go through a new probationary period for appointment, which was completely absurd.

In addition to Mikhail Chinchaladze, who was appointed to the Tbilisi Court for life by the Council's decision on May 11, 2017, former Secretary of the High Council of Justice and former Supreme Court judge Levan Murusidze is expected to gain from the contentious accession. 

Meanwhile, other Supreme Court judges with no prior experience were appointed for a three-year probationary period, including:

• Ilona Todua, a judge since 2007, was appointed to the position with a three-year probationary period by a Council resolution on May 11, 2017.
• Tea Dzimistarashvili has been a judge since 2007 and was appointed to the office with a three-year probationary period by the Council on May 11, 2017. She is currently a Supreme Court judge;
• Judge Tamar Zambakhidze has been a judge since 2007. The Council's decision on May 11, 2017, appointed her to the position for a three-year probationary period. She is currently a Supreme Court justice.
• Judge Nana Daraselia has served on the bench since 2007. On May 11, 2017, Council appointed her to the office for a three-year probationary period.

The list is lengthy. For further information, see the Council's judgment on the judges nominated on May 11, 2017. 
 
In addition to the fact that the above-mentioned legislative amendments were enacted with a procedural breach, the Constitutional Court found the provision of a three-year probationary period for experienced judges unconstitutional, prompting the Organic Law to be amended yet again. Based on an amendment to the law (Article 79⁴ of the Organic Law “on Common Courts”), the High Council of Justice gradually appointed a majority of judges to judicial seats for life. 

Although the organic law on judicial appointment has been revised multiple times, the present procedures for appointing judges still allow for the nomination of judges based on informal factors such as loyalty to influential groups, commitment, trustworthiness, or obedience.

There are currently dozens of empty judicial seats in the courts, but the competition rate is low. For example, on November 25, 2022, a competition for 76 vacant positions in district (city) and appellate courts was announced, but only one new judge was appointed. Accordingly, it is necessary to implement such measures, based on which there will be an opportunity for qualified and conscientious new candidates to occupy the judiciary office.

Footnote

1. Commentary on the Bangalore Principles of Judicial Conduct, para 26.

2. President of Georgia Decree N176 of March 25, 1998, "On Approval of the Regulation on Selection Contest of Candidates for Judges."

---

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.