Appointments of current judges: in the same or higher instance court

The High Council of Justice is obliged to appoint a judge in a higher instance court based on pre-established criteria and evaluation, but the council does not fulfill this obligation.

Shortcomings of the judicial promotion system

"All decisions related to the professional career of judges should be based on objective criteria such as qualification, integrity, capacity, and efficiency.“1

In Western countries, the judicial promotion system is not limited to the appointment of judges only in the upper instance courts and implies various opportunities for career advancement, including appointment as a chairperson of a court or chamber.

Definition of Judge promotion

Appointment of a district (city) court judge to the court of Appeal shall be considered a promotion in Georgia. However, nothing is said about the election of judges to the Supreme Court, especially given that in recent years the Supreme Court has mostly been staffed by acting judges of the first or second instance, which in its essence means promotion.

Consider the procedure for the promotion of a judge to the court of Appeal. The High Council of Justice is obliged to develop criteria for the promotion of a judge based on which the judge should be evaluated and only after that the High Council of Justice shall make a decision on the promotion of a judge.

The "Georgian Court Watch" addressed the High Council of justice with a request to provide information about the criteria for the promotion of the judge. Still, we have not received the requested public information yet, even though the deadline established by law has already expired.

It should be taken into account that, as it is clear from the content of the official letter provided by the council to "Transparency International Georgia" in March 2021, the criteria for the promotion of judges had not been developed at that time.

We can conclude that nothing has changed from this point of view and the High Council of justice decides on appointing a judge at a higher instance court on entirely different bases.

Decision-making bypassing promotion standards

Since there are no criteria and evaluation system for the promotion of judges at present, the High Council of justice, bypassing these standards, makes decisions on the promotion of judges based on Article 37 of the Organic Law of Georgia "on common courts".

How does the Venice Commission evaluate the current rule of promotion of judges?

International experience, explanations, and recommendations are interesting in this regard. Venice Commission opinion on the draft amendments to the Organic Law of Georgia “on common courts” (2014) Concerning the promotion of judges, we read that "the Venice Commission and the Directorate consider that all promotion of judges should be carried out through competition to avoid any possibility of abuse of the system. In addition, there is a danger that if promotion is maintained without competition, the regular (ordinary) promotion system and its criteria will not be developed, which according to Article 41.1 of the organic law should be developed by the Supreme Council. “

Accordingly, the Venice Commission's opinion recommends abolishing the promotion procedure without competition and, if it is still maintained in the draft, clearly reflecting its exceptional character in the draft law.^[2]

However, in the current edition, we still encounter the competition-free promotion procedure and the criteria envisaged by Article 41, paragraph 1 of the organic law on common courts have not been worked out yet.

Should a judge be evaluated when appointing a higher instance court?

Even though in 2011 the High Council of Justice approved the rules for assessing the effectiveness of a judge's work, today the High Council of Justice does not evaluate a judge, therefore, promotion is not based on the results of the assessment.

What is interesting is that the evaluation rule was last changed in 2017. It stated that"based on the results of the assessment provided for by this rule, recommendations on the encouragement of individual judges will be submitted to the High Council of Justice of Georgia." As a result of the amendment, the record about encouraging the judge disappeared from the document.

Thus, various shortcomings of the judicial promotion system in Georgia have been identified:

On the one hand, the promotion of a judge is not based on the evaluation results according to pre-established criteria, as the High Council of Justice has not yet developed the criteria for the promotion of a judge;
On the other hand, the High Council of Justice appoints first-instance judges to higher-instance courts without promotion criteria or evaluation. As a result, the High Council of Justice appoints judges to a higher instance without even calling it a promotion.

Appointment of acting judges in other courts

If we look at the agendas of the High Council of justice session, the list of issues we will often meet the following formulation "issues envisaged by Article 37 of the Organic Law of Georgia on common courts", which means that the transfer of judges (to higher or the same instance) occurs regularly.

By the decision of the High Council of Justice, an acting judge may be appointed without competition as a judge of the same or higher instance based on Article 37 of the organic law "on common courts". Based on this norm, the High Council of justice makes decisions on the promotion of judges, which is not officially called promotion.

The list below reflects the problem that the High Council of justice makes decisions on appointing judges to the same level or higher courts on the same grounds and standards.

Based on the official information provided by the High Council of justice, the most frequently appointed acting judges in another court (same or appellate instance) without competition are:

• Dzabunidze Amirani: appointed 3 times in another court without competition - 2013, 2015, and 2020;
• Gvelesiani Maka: appointed 2 times to another court without competition - 2013 and 2019;
• Gigitashvili Naira: 2 times appointed to another court without competition, both appointments were in 2013;
• Gogishvili Anna: 2 times appointed in another court without competition - 2013 and 2015;
• Zarnadze Eka: appointed 2 times in another court without competition - 2013 and 2020;
• Kashakishvili Giorgi: 2 times appointed to another court without competition in 2013 and 2020;
• Putkaradze Gocha: appointed 2 times to another court without competition - 2013 and 2020;
• Zarkua Irina: 3 times appointed to another court without competition - 2019 and 2020 (twice) years;
• Tsatsua Manuchar: appointed 2 times to another court without competition - both appointments were in 2019;
• Sturua Bidzina: appointed 2 times to another court without competition - both appointments were in 2019;
• Enukidze Malkhaz: appointed 2 times without competition in another court - 2019 and 2020;
• Jeiranashvili Gocha: appointed 2 times without competition in another court in 2020 and 2021;
• Mshvenieradze Vasil: 3 times appointed without competition in another court - 2019 and 2020 (twice) years;

The total number of judges appointed without competition in other courts in 2013-2021 adds up to 125. Of them:

• In 2013, 25 judges were appointed;
• No judges were appointed in 2014;
• In 2015, 13 judges were appointed;
• No judges were appointed in 2016;
• In 2017, 1 judge was appointed;
• In 2018, 1 judge was appointed;
• In 2019, 52 judges were appointed (although according to the information provided by the Council of Justice, 53 judges were transferred to another court. After clarification, it became clear that 1 judge was written in the list by mistake);
• Appointed in 2020-25 judges;
• In 2021, 7 judges were appointed.

The European Commission considers reforming the judicial system as a precondition for Georgia's EU membership, which "must comply fully with European standards and recommendations of the Venice Commission". For this, the reform process, inter alia, must respond to the challenge of correcting the shortcomings of the judicial promotion system. So, it is necessary to act in a timely and appropriate manner as a response to the problem raised above.

Author: Megi Shamatava