Rule of Secondment of Judges – Recommendation the Government fails to fulfill 

For a long time, the legal rule of secondment of judges and the risks caused by it have been the subject of sharp criticism from the European structures, and they have repeatedly reflected the specific instructions related to the fundamental change of this rule in their documents. Despite this, the government does not fulfill the requirement and does not change the rule of secondment of judges in line with the Venice Commission recommendations, as a matter of principle.

The universal principle of the immutability of a judge, meaning holding a position (until reaching retirement age or the expiration of the term of office), is recognized by the UN and CoE acts, as well as by the Constitution of Georgia. It is considered to be one of the most important guarantees of ensuring the independence of judges. 

The universal principle of the immutability of a judge is not absolute by nature and may be limited only in exceptional cases – for uninterrupted administration of justice, as the execution of justice within a reasonable period of time is of essential importance. Secondment of judges to exercise their duties in another court for a certain period of time is exactly such an exception. Legal norms on the secondment have been changed several times for during last years in Georgia. 

Rule before 2012 – Secondment without limit

Rule of secondment of judges was determined by the Law of Georgia on the Distribution of Cases and Law on Distribution of Cases and Assigning Authority to Another Judge in General Courts. The law indicated two grounds to the secondment of a judge: absence of a judge, or a sharp increase in the number of pending cases. This applied to both regional (city) court and court of appeals. Additionally, the law allowed secondment of a regional (city) court judge to a court of appeals and vice versa (secondment of a court of appeals judge to a regional/city court).  

Until 2012, the legal norm left the rule of secondment beyond adequate legal restrictions and did not include minimum guarantees to protect judges from arbitrary decisions and abuse of power. The law did not determine any kind of restriction on the secondment term or venue. Moreover, a consent from the judge was not even required. All these gave unlimited authority to the decision-making body - the High Council of Justice.  

Rule in force between 2012-2017– First restrictions on secondment 

In March 2012, the first restrictions were set on a secondment of judges with the legislative changes of March 2012.

• Consent of a judge became necessary;
• Term of secondment was limited to up to 1 year; 
• Extension of a secondment became available only with a consent of a judge and for a maximum year. 

Although, several issues related to the secondment of judges remain unresolved, 2012 legal changes were the firsts steps towards protecting judges from the abuse of power used towards them and   from infringement of independence. The step was welcoming. 

Changes in 2017 – Improvement of the legal rule and new safeguards against arbitrariness 

In February 2017, within the frameworks of so called Third Wave of the judicial reform, part of the legal norms of the Law on Distribution of Cases and Assigning Authority to Another Judge in General Courts, including the norm regulating the rule of secondment of judges, was declared void. The rule of secondment of judges was reflected in the Organic Law on General Courts. The norm envisaged two grounds to the secondment of judges to a regional (city) court or to the court of appeals: 

• Absence of a judge;
• Sharp increase in a number of pending cases.

If any of the mentioned grounds exist, the High Council of Justice first addressed judge/judges in reserve with a proposal to exercise the authority of a judge; in case of written refusal from them, the HCoJ addressed judges of the same instance and territorially nearby court, and if receiving written refusal from them – judges of other courts of the same instance. “If necessary”, “in the interests of justice”, the law allowed secondment of a judge without their consent, which applied to the judges of territorially nearby court, in the first place. Additionally, the HCoJ selected the judge with lottery principle; the law also envisaged obligation of the Council to indicate specific circumstances confirming the existence of the interests of justice in the decision. Despite the “interests of justice” as a legal ground to the secondment of a judge without their consent is vague and requires more specification, 2017 legal changes provided for certain legal guarantees, which to some extend decreased the risk of using the mentioned mechanism against a judge and probability of affecting the independence of an individual judge. These guarantees are:

• Territorial restriction – the High Council of Justice shall, in the first place, choose the judge from the territorially nearby court to exercise their authority in another court;
• Observing the principle of randomness – Selecting a judge for secondment through lottery principle;
• Opportunity for the judge selected as a result of drawing lots to present justified opinion; 
• Obligation of proper justification of the HCoJ decision on the secondment of a judge to another court;  
• Restriction of secondment of the court of appeals judge to the regional (city) court;
• Obligation of the HCoJ, in case of a vacancy in the relevant court, to announce a contest for the vacant position of judge within a reasonable period of time, thus giving possibility to timely eradicate the need of secondment. 

Later, it became clear that even these minimal guaranteed were not acceptable for the legislators and the norms had been developed which significantly increased the risks of violation of the independence of judges.

Changes in 2021 – Significant deterioration of the secondment rule and risks to judicial independence

On 30th December 2021 changes were made to the Georgian Organic Law on General Courts applying to the rule of secondment of judges, among many other topics. New standard significantly changes the secondment rule and practically abolished all previously existing legal guarantees, which more or less ensured protection of judges from the abuse of power against them. 

• The grounds to secondment were expanded and a vague one, such as “another objective circumstance” was added;
• Territorial restriction has been abolished and the HCoJ is no more obliged to address (and in case of absence of the consent, decide) judges of the territorially nearby courts in the first place. The council may, may, by its decision, select a judge of any court to exercise the authority of a judge in another court; 
• The new norm no longer envisages the rule of random selection when making a decision regarding the secondment of a judge; 
• The restriction of a secondment from the court of appeals to the regional (city) court without the judge's consent was annulled. The High Council of Justice has right to, by its decision, transfer a court of appeals judge to a lower instance court without their consent; 
• Term of secondment has been increased from 1 to 2 years, with the possibility of extension without a judge’s consent for up to additional 2 years; 
• With the legislative amendments of December 2021, the imperative requirement of properly justifying the decision on the secondment of a judge, more particularly – obligation of the HCoJ to indicate specific circumstances proving the existence of “interests of justice” or “other objective circumstances” was abolished; 
• The norm no longer contains a reference to the obligation of the High Council of Justice – in case of a vacancy in the court, to announce the contest for the vacant position in reasonable time. Although, the current law includes a statement regarding the early termination of the secondment in case of elimination of the existing grounds, but at the same time, it does not oblige the HCoJ to proactively take measures to eliminate a specific reason for secondment.

The only important and positive mechanism reflected in the law regarding the secondment is the possibility to appeal the HCoJ decision to the Qualification Chamber of the Supreme Court. The judge selected for secondment is given 7 days to submit the appeal. 

June 2023 - Symbolic changes to the law 

For the long time, The Venice Commission has been calling on the authorities to define narrow and clear criteria of the grounds for a secondment of judges. Instead, With the legislative amendments of June 2023, only a technical change was made regarding the grounds to a secondment and a quote “other objective circumstances” was changed with the quote “other objective circumstances related to the interest of the proper implementation of justice.” 

The same legislative amendments determined obligation of paying a monthly travel allowance to the seconded judge, the amount of which is defined by the HCoJ. The law sets the minimum threshold and it shall not be less than 10% of the regular monthly salary of a seconded judge. 

Bill initiated in September 2023 and unimplemented recommendations again 

The bill initiated by the parliamentary majority on 27th of September this year, envisaging changes to the Georgian Organic Law on General Courts, applies to the rule of secondment of judges (Article 37¹) as well:

a) Point 1 of the Article 37¹ of the Georgian Organic Law on General Courts state that the existing rule of secondment is not used in case a judge addresses the HCoJ with the request to transfer them to another court;  

b) Extension term of the secondment without judge’s consent decreases from 2 years to 1 year, however, the initial term of secondment without judge’s consent does not change and is determined as not more than 2 years; 

c) the bill envisages obligation of the HCoJ to justify their decision on the secondment of a judge without their consent, as well as on the extension of the secondment term. In particular, the Council shall justify the circumstances causing the necessity of a secondment to another court without a consent. 

Venice Commission Observations

Opinion of 20th of June 2022

The Venice Commission severely criticized the legislative changes of December 2021 in its Opinion published on 20th of June 2022. 

1. Abolishing the rule of drawing lots and geographical limitation 

Venice Commission stated that the old version of the law, which required that the High Council of Justice selected judges by drawing lots and send them to nearby court, reduced the possibility of abusing the power. The argument of a ruling party that drawing of lots was to lengthy process was not credible for the Venice Commission.

It is difficult to justify the change, which introduces procedure without drawing lots and geographical limitation. 

2. Vagueness of the grounds to secondment 

According to the Commission recommendation, the secondment shall take place in exceptional cases, and in case of a vacancy, or sharp increase in the case flow, long term secondment of a judge without their consent shall happen only after alternative measures are used, such as lifelong appointment to the vacant position, encouragement and support to the judges working in less attractive courts, as well as regulation of the court's operational jurisdiction in such a way, that will ensure more equal case flow. While “necessity” imposes a certain threshold, “in the interests of justice” is quite vague and broad.

3. Increased time frame for secondment

The Opinion mentions that the government is unable to provide information as to why the timeframe for secondment without consent is increased from one year to two years, with an extension possible for another two years.

According to the Commission, the amendments to Article 37¹ significantly increase the powers of the HCoJ over judges and represent a serious interference with a judge’s safety of tenure. 

Opinion of 14th of March 2023

In November 2022, the Legal Committee of the Parliament of Georgia initiated draft Organic Law, developed with the recommendations of the European Commission in the frameworks of a judicial reform. None of the recommendations of the Venice Commission were taken into consideration in the draft and no significant changes were reflected to the Article 37¹. Therefore, when assessing the draft law, in their Opinion of 14th of March 2023, the Venice Commission again highlighted problematic aspects of the secondment rule and repeated notes and recommendations from the previous Opinion.

According to the Commission, the secondment of judges against their will should only be possible in exceptional cases and justified by a legitimate objective. Additionally, the Commission thinks, the following shall be determined (returned):  

• Narrow and clear criteria;
• Shorter time periods;
• A random (or objective) selection procedure;
• Geographical limitation.

Despite numerous calls to substantially improve the rules of secondment of judges and to develop guarantees for the protection of independence of individual judges, none of the above recommendations were considered in the legislative amendments of 13th of June 2023. 

Opinion of 9th of October 2023 

On 9th of October, the Venice Commission published a new Opinion. It evaluates June amendments to the law, as well as draft organic law initiated in September. In the Opinion, the Commission talks amount the changes in the rule of secondment of judges. The Commission stated that the amendments constitute only linguistic changes to the first paragraph of Article 37¹. According to the Commission, “the Law added a third alternative criterion which is open-ended, thus lacking clarity and foreseeability (other objective circumstances related to the interest of the proper administration of justice. [para 26]

The Commission positively assessed introduction of a monthly travel supplement to the regular salary, however, specified that “it does not sufficiently address the key recommendation, as the current powers of the HCoJ to second or transfer a judge of their choosing for up to four years on wide and partly unclear grounds carry a real risk of undue interference by the HCoJ with judges’ safety of tenure...” para 27]

The Commission discussed amendments offered by the bill initiated in September. It positively assessed changing the time period from 2 years to 1 year but mentioned that this change is insufficient and overall duration of three years would still remain too long.

Finally, the main recommendations of the Venice Commission regarding the rule of secondment are not taken into account by the Parliament and as seen from the bill, improving the legislative rule is neither planned in the nearest future. Therefore, the threats posed by the excessive power of HCoJ to the judges’ safety of tenure remain unchanged.                                                                                                                                                               

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