What is the difference between transferring a judge to another court without competition and promotion?

How are Judges of First Instance appointed to the Court of Appeal?

Article 37 of the Organic Law of Georgia "on common courts" gives the possibility that in case of a vacancy, a judge appointed to the position without competition will be appointed as a judge of the district (city) or Court of Appeal.

According to the second part of the same article, a judge of a district (city) court shall be appointed as a judge of the court of appeal without competition if they meet the requirements provided for by Article 41 of the organic law "on common courts". The latter envisages the promotion of judges as follows:

A judge of a district (city) court may be appointed to the court of appeal if they have exercised judicial authority in the district (city) court for at least 5 years. Development of promotion criteria based on which a judge should be appointed in a higher instance is the obligation of the High Council of Justice of Georgia. Because on the basis of these criteria, the High Council of justice must evaluate judges and decide whether or not to appoint (promote) a judge to the court of Appeal.

The problem lies in the fact that the High Council of Justice has the opportunity to appoint a judge to a higher instance on the basis of two different articles:

• In one case, this is done by transferring a judge to another court without competition (although the council does not officially call it a promotion, despite the fact that in its essence the transfer of a judge to the court of Appeal is a promotion);
• And in the second case-through the promotion of a judge.

The question arises, is there a need for two articles to regulate the (in fact) promotion of a judge in the court of Appeals?

The High Council of Justice has developed a practice inconsistent with the law, as District (City) Court judges are appointed as appellate judges without evaluation, which it calls transfer and not promotion.

In any case, the High Council of Justice has the obligation to establish criteria for transferring (promoting) a judge acting in a higher instance and, after evaluation, decide whether or not to appoint a particular judge in a higher instance.

Where do we conclude that the council has not yet developed the criteria necessary for the promotion of judges?

The Court Watch appealed to the High Council of justice with a request to provide information about the criteria for the promotion of a judge, but we still have not received the requested public information, despite the expiration of the deadline established by law. It should be noted that in March 2021, from the content of the official letter provided by the council "Transparency International-Georgia", it is clear that the promotion criteria provided for by Article 41 of the Organic Law of Georgia "on common courts" have not been developed at that time. We can conclude that nothing has changed in this regard. This issue is a problem both in relation to promotion (Article 41 of the organic law on common courts) and the transfer of judges to another court without competition (Article 37 of the organic law on common courts).

Thus, according to the law, there are two types of possibilities for judges to continue their activities in the court of Appeal, but for the use of both of them, the council requires pre-established, defined criteria, which have not yet been developed. Accordingly, the appointment of a judge of a district (city) court to a higher instance without evaluation is illegal and causes uncertainty. Another problem is that cases of transfer (promotion) of judges of the district (city) court to a higher instance without competition are frequent.

In the following article, we will discuss several decisions made by the High Council of justice, during which a judge of the district (city) court was appointed as a judge of the court of appeal bypassing the evaluation procedures.

Recommendation

Article 37 of the Organic Law of Georgia" on common courts " should not provide for the appointment of District (City) Court judges to the court of appeal without competition, since the latter is a promotion and according to the law, a judge must meet the criteria that are required in case of promotion. Accordingly, the law should not provide an alternative opportunity to promote a judge, especially when Article 37 can only be used in conjunction with Article 41 and not taken separately.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.

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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.