As the public is aware, the Public Defender of Georgia, together with international and local NGOs, independently observes the process of selection of Supreme Court judges. Within the framework of the mentioned process, the first secret ballot was held in the High Council of Justice on June 20, as a result of which, 50 judicial candidates qualified for the next stage. The first secret ballot in the High Council of Justice and observation of its results identified certain problems and shortcomings, which threaten the conduct of the process in accordance with high standards. The Public Defender would also like to respond to the refusal of the High Council of Justice to provide information about judicial candidates to Transparency International – Georgia. The Public Defender believes that the above-mentioned is a serious problem and damages the entire process.

Secret ballot

First of all, it should be noted that according to the law adopted on May 1, members of the Council shall select judicial candidates according to the criteria of good faith and competence at every stage. The law does not provide for any mechanism for ensuring the above during the first ballot, but it indicates that the Council shall direct the process in accordance with a pre-determined procedure. It should be noted that the Council has not developed any procedure that would ensure selection of judges on the basis of the above-mentioned criteria, which creates a situation where a candidate with better good faith and competence may be disqualified.

The legislative framework, which provides for secret ballot, does not require justification of a decision or does not allow it to be challenged, which was evalauted negatively by local NGOs, the Venice Commission, the OSCE Office for Democratic Institutions and Human Rights and the Public Defender of Georgia.

The first secret ballot in the High Council of Justice for the selection of Supreme Court judges once again emphasized the weakness of the legislative framework and revealed challenges in practice.

13 members of the High Council of Justice participated in the secret ballot on June 20. Each member had 1 ballot paper and 20 votes (in accordance with the number of vacancies). Observation of the ballot papers and counting process revealed 10 out of 13 ballot papers ticked under similar schemes and carrying high degree of coincidence. Namely:

1. 20 one and the same candidates out of total of 137 candidates were ticked in 4 ballot papers;
2. 20 other one and the same candidates (not those ticked in the 4 ballot papers mentioned above) out of total of 137 candidates were ticked in 3 ballot papers;
3. 15 candidates ticked in the 3 ballot papers indicated in the second paragraph, as well as 5 other candidates, were ticked in 2 ballot papers;
4. 15 candidates, ticked in the 4 ballot papers indicated in the first paragraph and 5 candidates ticked in the 2 ballot papers indicated in the third paragraph, were ticked in one ballot paper.

5 votes out of these 10 ballot papers were received by 30 candidates, 4 votes were received by 5 candidates and 3 votes – by 10 candidates (a total of 45 candidates). All of them qualified for the next stage. No similar coincidence has been discovered in other three ballot papers; the five candidates ticked in these ballot papers, who had not received any vote in the remaining 10 ballot papers, qualified for the next stage.

Such a high degree of coincidence among the above-mentioned 10 ballot papers raises questions. It should also be noted that no mechanism for assessing the candidates' honesty or competence has been developed for the above-mentioned stage of selection, whereas Article 18 of the Constitution recognizes the right of all citizens of Georgia to occupy a public position if he/she meets the requirements of the law.

The Public Defender is publishing a table, which shows which candidates were selected in the ballot papers, according to the order of ballot papers during counting.

Access to information

On 31 May 2019, Transparency International Georgia requested the copies of all applications and documents submitted by applicants to the Council for 20 judicial vacancies in the Supreme Court. According to the reply of 13 June, the Council refused to provide information on the ground of personal data protection. We believe that the decision unjustifiably restricts access to information that is essential for monitoring the process and increasing trust towards it.

The right to have access to public information is enshrined in Article 18 of the Constitution of Georgia. Article 44 of the Administrative Code clearly indicates that "personal data of an official, as well as a candidate nominated for the official position, shall be public." The amendments made to the Organic Law on General Courts on May 1 provide for additional leverages, which prohibit closure of even data of special category, except for information about the candidate's health. The Council’s refusal is incompliant not only with the transparency standard established by the amendments, but with the previous standards as well and irreparably damages the selection process of Supreme Court judges.

It should be noted that under the circumstances when the Council selects candidates by secret ballot at each stage and the decisions are unjustified, little chances are left for observing the processes. In a similar situation, restrictions on access to information and documents submitted by the candidates make it impossible to observe the processes and completely closes them.

On 27 June 2019, the Public Defender addressed the High Council of Justice with a recommendation to issue information requested by the observer organization - copies of applications and other documents submitted by applicants. At the same time, the Public Defender calls on the High Council of Justice to ensure selection of Supreme Court judicial candidates fairly and in compliance with the highest standards at every stage.

The Public Defender continues to monitor the selection of Supreme Court judicial candidates and will inform the public of the monitoring results in the future too.