The new opinion of the Venice Commission and critical evaluations - does the perspective of Judicial Reform remain?

On 9th October, 2023, Venice Commission Opinion was published, evaluating amendments of June 2023 to the Organic Law on Common Courts of Georgia, and the draft law initiated in September, same year, from the judicial reform point of view. The Commission report stands out for critical evaluations and it one more time emphasizes the inconsistency of recent legislative amendments (along with the initiated draft law) to the Venice Commission recommendations and real goal of the judicial reform. 

Comprehensive Reform of the High Council of Justice

The Venice Commission states it is aware of the allegations regarding the integrity of the HCoF members and practice of using informal channels of influence in decision-making, which go against the principles of transparency and accountability of the Council.

The Commission notes that a thorough reform must address the persistent allegations of lack of integrity towards HCoJ members, which poses a risk to judges’ independence and impartiality. It also states that given the present context, it would seem to be appropriate for the authorities to give due consideration to the possibility of vetting the High Council of Justice.

In it Opinion, the Venice Committee highlights that the authorities have not taken enough measures for real judicial reform and notes that:

This is not a technical issue to be addressed by small adjustments to the existing legal framework. A comprehensive reform means reconsidering the powers, functions, composition and the manner of election of members of the HCoJ with the aim to restore public trust in this body, its independence and impartiality and in its capacity to exercise its constitutional functions.

The Commission once again talked about the necessity to eradicate judicial corporatism and pointed out several ways of addressing this issue:

• Revising the rule for election of the members of the High Council of Justice;
• Limiting HCoJ’s other administrative functions in the judiciary;
• Scaling back the powers of the HCoJ to reduce the risk of abuse;
• Dividing powers of the Council between different bodies.

Venice Commission considers, a reform should follow a thorough and inclusive consultative process, recognizing that there is no quick fix to restoring public trust in the judicial system. The Commission has repeatedly stressed that institutional reforms should go hand-in-hand with a long-term effort aiming to improve the professionalism, transparency and ethics within the judiciary.

Despite certain improvements introduced by the June 2023 amendments, the recommendation of comprehensive reform of the High Council of Justice has not yet been properly addressed. Moreover, the Venice Commission indicates that it is not addressed either in the September 2023 draft amendments.

Election of Non-Judicial Members 

According to the Commission, the non-judicial members of the Council were elected in polarized political environment [elections of 3 non-judicial members of May 17th], when part of the opposition boycotted the voting in parliament. The actual pluralism in the HCoJ following the election of three non-judge members has been questioned by claims that they may be linked to the influential group. The Venice Commission also considers that it is important to ensure not only the presence, but also the effective participation of non-judge members in the work of the Council. Therefore, the Commission recommended revising the decision-making procedure within the Council to ensure an appropriate balance between the two groups represented in the HCoJ (judicial and non-judicial members). The June 2023 amendments did not address this issue.  
 
Staggered Election of the High Council of Justice Members 

Despite the fact that the Venice Commission positively evaluated the staggered election of the judge members of the HCoJ and considered it as a step in the right direction, it also doubted that this limited gradation is not sufficient to ensure the continuity and efficiency of the Council. According to the Commission recommendation, it may be better to divide the election of non-judicial members over two parliamentary terms, however, it would be preferable to have longer intervals between elections, for example half of the members every two years, or one quarter of the members every year of the four-year term.

Restriction on Re-Appointment of the Council Member

The Venice Commission negatively evaluates lifting the restriction on re-appointment of the Council member and states that such decision requires specific justification. This recommendation has not been addressed in the June 2023 amendments. It is not addressed either in the September 2023 draft amendments. 

Rule of Electing Judicial Members

It is also mentioned in the Opinion that the authorities did not address the Commission recommendation on reviewing the rule of election of the judicial members neither in the June 2023 amendments nor in the September 2023 draft amendments. Therefore, the Commission wishes to repeat the recommendation on reviewing the rule of election of the judicial members and facilitating the procedure for evaluating the integrity of candidates to various positions in the judiciary. 

Secondment and Transfer of Judges

The Venice Commission had to once again repeat the recommendation mentioned many times before on the rule of secondment of judges. These recommendations envisage the following:  

• Narrowing criteria for the secondment/transfers;
• Introducing time limitation on secondments/transfers;
• Introducing location limitation;
• Providing for a random selection system.

According to the Commission evaluation, instead of addressing these recommendations, The June 2023 amendments constitute only linguistic changes to the Article 37¹ of the Organic Law. 

Suspension of Judges from Office

Venice Commission positively evaluates the fact that its recommendations of March 2023 on the Article 45 of the Organic Law on Common Courts of Georgia have been almost fully addressed with June 2023 amendments. 

Disciplinary Liability for the Expression of Opinion 

June 2023 amendment to the law determined the topics, public comments on which would not be considered as violation of the principle of political neutrality by judges. Although the Commission evaluated these amendments as partially followed, it also mentioned that the provision could provide broader grounds to protect judges’ freedom of expression.

The Venice Commission observes that the principles of democracy, separation of powers and pluralism call for the freedom of judges to participate in debates of public interest while respecting the principles of independence and impartiality. 

Binding Nature of the Supreme Court Decisions

In the recommendation of the March 2023 Opinion, the Venice Commission specified that the binding nature of the decisions and instructions of the Supreme Court could be expressly indicated in the law. Several amendments were made in June 2023 in connection with appealing the High Council of Justice decisions to the Supreme Court Qualification Chamber. New norm gives opportunity to the judicial contest participants to submit an appeal to the Supreme Court Qualification Chamber on the decisions/decrees by the HCoJ at different stages of the contest. It provides that right to appeal before the Supreme Court against a decision of the HCoJ can be exercised at each stage of selecting a candidate judge until the Supreme Court endorses the HCoJ decision. The commission considered the recommendation partially followed and indicated that the norm shall be further improved by expressly providing that the HCoJ shall comply with the decisions of the Supreme Court.

September 2023 Draft Laws on the Amendments of the Organic Law on Common Courts of Georgia 

On September 21st and 27th, 2023 the parliamentary majority presented 2 new draft laws on the amendments to the Organic law. Committee discussions have not yet started. 

According to the draft law initiated, the amendments will cover: 

1. Qualification criteria for the candidacy of Supreme Court judges; 
2. Possibility to appeal the HCoJ decision during the contest for the selection of candidates for the position of Supreme Court judge;
3. Rule of secondment of judges;
4. Rule of electing non-judicial members of the HCoJ by the Parliament; 
5. Rule for decision-making on the disciplinary liabilities of judges by the HCoJ; 
6. Violation of political neutrality by judges, as a disciplinary misconduct;
7. Rule of publishing court open hearing decisions. 

1. Qualification criteria for the candidacy of Supreme Court judges

The draft law envisages higher standard of qualification criteria for the candidate for the position of Supreme Court judge, according to which the candidate must have at least 10 years of professional work experience. It has been a while the Venice Committee called for stricter qualification criteria from the authorities. The recommendation has been reflected in March 2023 Opinion of the Commission as well, but it was not followed in June 2023 amendments. The Commission positively evaluates that the draft law initiated in September follows the recommendation in part. However, one more recommendation, related to raising the minimal age allowed for the candidates is not envisaged by the draft law. 

2. Possibility to appeal the HCoJ decision during the contest for the selection of candidates for the position of Supreme Court judge

In the contest for the selection of candidates for the position of the Supreme Court judge, the candidate has right to appeal ordinance/submission of the HCoJ made in line with the Article 34¹ of the Organic Law to the Supreme Court Qualification Chamber. According to the initiated draft law, after quashing the HCoJ decision by the Supreme Court and remanding the case, while re-assessing the candidate and receiving re-submissions, the HCoJ members take into account the Supreme Court decision. According to Venice Commission, taking into account does not yet mean compliance and execution of the Supreme Court decisions having a binding nature. 

3. Rule of secondment of judges 

The draft law offers several changes to the rule of secondment of judges: 

a. The first paragraph of Article 37¹ of the Organic law indicates that existing secondment rule is not exercised in case a judge, on his/her initiative addresses the HCoJ with the request to transfer him/her to another court.
b. The term of extending the secondment without judge’s consent has been reduced from 2 to 1 year. However, initial secondment term while judge’s consent is absent remains unchanged and is determined to no longer than 2 years.
c. The draft law envisages liability of the HCoJ to justify the secondment of judges to another court without their consent, as well as decision on extending the secondment. In particular, the Council shall justify the existence of conditions requiring the secondment or extension of the secondment without the consent from a judge. 

Considering that the obligation to justify other decision of the Council (e.g. decisions taken during the contests, on the appointment of the court chairman), had not triggered significant changes in the transparency and reliability of the process, as the justification of Council decisions are patterned and often identical, naturally, the question arises as to what extend minimum guarantees will be ensured to protect the independence of judges.

The Commission positively evaluated reducing terms of secondment (in case of extending the secondment), however, according to them, this step is still not enough as total maximum period of 3 years is still considered as long.  
 
4. Rule of electing non-judicial members of the HCoJ by the Parliament

According to the draft law, the Parliament is entitled to elect no more than 4 members to the High Council of Justice in a single session. 

5. Rule for decision-making on the disciplinary liabilities of judges by the HCoJ

Initiated amendments envisage increasing the number of votes required for the HCoJ to impose a disciplinary liability on a judge. In particular, the Council will be able to make this decision with 2/3 of total votes. This amendment does not apply to the decisions on other disciplinary issue, requiring the majority of HCoJ total composition. 
 
6. Violation of political neutrality by judges, as a disciplinary misconduct

Violation of political neutrality while expressing public opinion by judges remains a disciplinary misconduct and a draft law offers a short list of topics not considered as violation of political neutrality. Therefore, the threats to the judge's freedom of expression remain intact.

Regarding other recommendations from the Venice Commission: new draft law still does not envisage development of anti-deadlock mechanism in the nomination of candidates to the Supreme Court; determining in detail the candidate's compliance with the criteria during the re-voting of judicial candidates; and changing the rule of decision-making in HCoJ. 

One more recommendation from the Commission related to reducing term of office of the Supreme Court chairman (according to the Venice Commission, 10 years is extremely long term), requires constitutional amendments and Venice Commission reckons this topic shall be also considered by the constitutional change. 

The draft law initiated by the government still refrains from the real challenges in the judicial system, it creates imitation of changes, once again confirming that there is no readiness or political will for real judicial reform at this stage.