The Public Defender considers that the bill drafted by the office of the Chairperson of the Parliament of Georgia, discussion of which started last week, cannot fully respond to the challenges in the current critical situation in the country.

The Georgian judicial system is facing big challenges. The decisions of the High Council of Justice are a subject of acute public criticism. Particular discontent was caused by the hastened submission of the list of judicial candidates of the Supreme Court in December last year. In the absence of a special procedure, the High Council of Justice failed to show a high standard of discussion. The performance of the High Council of Justice clearly shows that the decision-making process is not always transparent and issues are often discussed in a conflict situation.

The existing challenges require the creation of a legislative framework that would exclude arbitrary, unsubstantiated decisions and would make the decision-making process healthier by increasing transparency and substantiation. We believe that the proposed draft law cannot reach the mentioned goals and contains a threat of receiving the same results. Elaboration of procedures and criteria should not be just formal. It should be able to substantially change the Council’s practice of decision-making and ensure fairness. Otherwise, the procedures and criteria will be used to emphasize formal lawfulness, without changing the content of unfair decisions.

In relation to the proposed draft law, the Public Defender considers that the following substantial changes should be made:

The currently applicable law stipulates that the judges of the Supreme Court are not required to pass an exam. The draft law envisages changes to this principle and allows only judges/former judges/persons who have passed a judicial exam to participate in the process of selection of judicial candidates of the Supreme Court. We believe that the rapid change of the existing reality will exclude many experienced, qualified and honest professionals from the selection process and create a less competitive environment. Therefore, this restrictive criterion should be removed;

• Confidentiality of v According to the draft law, candidates shall be graded at one of the stages of the selection process, which shall be followed by a ballot. The latter makes the grading process useless as it allows a member of the Council to support a candidate which had received low scores. Voting at all stages of the selection of judicial candidates of the Supreme Court is secret and decisions are not substantiated, which affects the transparency and credibility of the process. Consequently, the Public Defender considers that the Parliament should ensure open voting at the legislative level;
• Conflict of interest. The draft law does not properly regulate the issue of conflict of interest and it only indicates that members of the Council cannot vote for themselves, but they can participate in the overall procedure and the voting process in relation to other candidates, including by asking questions to them. Due to this, members of the High Council of Justice should not be eligible to be judicial candidates of the Supreme Court or their participation should be limited at all stages of the selection process (including the process of voting);
• Number of votes and number of According to the draft law, the Council shall submit candidates to the Parliament by 2/3 of votes. In order to make the decision-making process more transparent, it is important for the Parliament to consider various alternatives. Various international organizations and non-governmental organizations have indicated that the minimum requirement for the submission of judicial candidates to the Parliament should be the votes of 2/3 of judge members of the Council and 2/3 of non-judge members of the Council. Introduction of an additional rule of pluralism can be considered as an alternative, by submitting to the Parliament at least three candidates for each vacancy. The Constitution of Georgia fully allows alternative regulations;
• The process in the According to the draft law, only a small part of the whole procedure shall be ongoing in the Parliament, in a quite tight timeframe. The draft law does not indicate who is eligible to be a member of the working group; it does not specify the role or activities of the working group either, or its access to information. Information about candidates obtained by the Council shall not be sent to the Parliament. Candidates can be interviewed only at the committee sitting, where only members of the committee and not members of the working group or other MPs are allowed to ask questions. It should be underlined that no questions can be asked at the plenary session at all.

When developing a legislative framework for this important judicial issue, it is important that the local context and actual challenges be taken into consideration. The Public Defender will necessarily send her detailed opinions to the Venice Commission and they will hopefully be considered.

We are also addressing the OSCE Institute for Democratic Institutions and Human Rights (ODHIR) to make an additional legal assessment of the draft law. The Public Defender of Georgia, as a national human rights institution, is authorized to address the OSCE Institute for Democratic Institutions and Human Rights, which is authorized to submit opinions and comments concerning the draft law in order to assess its compliance with international human rights standards and the obligations undertaken by the state before the OSCE. The court-related issues fall under the OSCE mandate. The organization has prepared a number of opinions in this direction in the past. We hope that it will be possible to prepare and submit opinions about the above-mentioed draft law in an accelerated manner.

The Public Defender of Georgia is hopeful of the creation of the kind of legislative framework that can ensure fair decision-making in the process of selection of the Supreme Court judges.