ODIHR Publishes Opinion on Draft Law relating to Appointment of Supreme Court Judges
Following the appeal of the Public Defender of Georgia, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) published a legal opinion relating to the draft law on the appointment of Supreme Court judges on 17 April 2019. The opinion is available to the public. The Public Defender appreciates the preparation of the valuable document, as well as the important work and efforts made by the international partner in such a short term. We hope that the Parliament of Georgia will take into account the mentioned opinion.
The opinion has benefited from contributions made by Professor Andras Sajo, Central European University in Budapest and former judge of the European Court of Human Rights; Ms. Michèle Rivet, C.M., Honorary Member and Former Vice-President of the International Commission of Jurists; and Mr. José Igreja Matos, President of the European Association of Judges and First Vice-President of the International Association of Judges.
The document describes in detail the compliance of the draft law with international and regional standards, norms and practices, as well as the obligations undertaken by the country within the OSCE.
The legal opinion describes in detail the gaps and incompatibilities in the draft law and focuses on the following key issues:
- The number of years of professional experience to be eligible to Supreme Court judgeship should be increased and the requirement for non-judicial candidates to take the judicial qualification examination should be abolished;
- The secret ballot in the High Council of Justice is not in compliance with merits-based The Council should substantiate its decisions and there should be a mechanism for appealing against the decision. The draft law should provide clear selection criteria at each stage of appointment and it should be specified that the nominated candidate should be more qualified than other candidates.
- The drafters should provide for additional qualities and expertise for a candidate to be selected as Supreme Court judge, including extensive expertise in human rights; state that selection should be carried out without discrimination, while introducing mechanisms to ensure that the composition of the Supreme Court is more balanced in terms of gender and diversity;
- To avoid conflicts of interest, the member of the High Council of Justice should not participate in any stage of the selection or should resign from her/his position as member of the Council before applying for judicial office;
- At the end of the selection process, the High Council of Justice should prepare a report that should be made available to the public;
- Procedure and criteria should be determined for the selection of the Chairperson of the Supreme Court;
- The Parliament should have a supervisory function in this process to check the compliance of the entire process with the Transparent procedures and guarantees should be provided to ensure that nomination and appointment decisions are exclusively taken on the basis of objective criteria; the composition, powers and exact role of the working group should be specified, particularly whether it will collect additional information about the candidates;
- The reform process relating to the judiciary should be transparent, inclusive and extensive. It should involve effective consultations and a full impact assessment including of compatibility with relevant international standards. Adequate time should also be allowed for all stages of the law-making process to meet these requriements.
The Public Defender once again expresses her gratitude and respect to the OSCE Office for Democratic Institutions and Human Rights for their efforts. Their opinion will help the country to properly carry out the most important reform at the given moment - selection of judges of the Supreme Court. We call on the Parliament of Georgia not to adopt hastily the draft law that determines the fate of the court of highest instance and generally, the judiciary within the next 20-30 years. It is important that the draft law be thoroughly refined, considering the opinion of the OSCE Office for Democratic Institutions and Human Rights and the report of the Venice Commission, in order to bring the draft law in line with international standards.
The full opninon is available at: