Georgian Dream violates the Charles Michel agreement and takes full control of the judiciary
On June 17, the High Council of Justice selected candidates to be submitted to the Parliament of Georgia for the vacant judicial positions in the Supreme Court of Georgia. The Chairman of the Georgian Dream said that the Parliament would listen to the Supreme Court judicial candidates and make a decision on their appointment.
The Democracy Research Institute (DRI) considers that it is inadmissible for the Council to appoint candidates selected as a result of a substantially flawed and problematic process and responds to the statement of the Chairman of the Georgian Dream, according to which, “Incomprehensible statements are made, as if the nomination and election of Supreme Court judges contradicts the spirit of the political agreement [the so-called Charles Michel agreement, "A way Ahead for Georgia"]. Something that directly contradicts the text of the agreement cannot be interpreted as the spirit of the agreement.”
The Democracy Research Institute notes that by appointing Supreme Court judges, the Georgian Dream will violate the spirit of the Charles Michel agreement and will contradict its literal meaning.
The Rule of Law/Judicial Reform chapter of the agreement of 18 April 2021 reads that “Parliament shall adopt ambitious judicial reform in this parliamentary term, including the following, as the first step in a broad, inclusive and cross-party reform process" and it sets out:
- b) submit to the Parliament draft legislation on the appointments to the Supreme Court in line with the related Venice Commission opinion No. 949/2019 of 24 June 2019, notably as concerns the staggered approach to appointments, open voting in the High Council of Justice, and the need for the latter to justify the nominations;
- c) refrain from making appointments to the Supreme Court under existing rules.“
According to the agreement, all ongoing appointments shall be paused and the application process shall be reopened, including to new candidates, once the new legislation referred to in paragraph b) have entered into force.
The Parliament has not passed the legislation referred to in the agreement
The statements of the ruling party officials that the new legislation referred to in the agreement has already been adopted by the Parliament serves to mislead the public.
On April 1, 2021, 17 days before the signing of the agreement between the political parties, the then virtually one-party Parliament hastily adopted amendments to the Law on Common Courts, which took effect on April 2. The Coalition for an Independent and Transparent Judiciary assessed the amendments as a fragmentary attempt to imitate the judicial reform, which was absolutely detached from the existing reality in the country.
Therefore, given that the amendments were adopted by the majority of the Georgian Dream in an expedited manner, before the signing of the agreement, without consultation with political parties or without inclusive process, it cannot be considered the legislation referred to in the so-called Charles Michel agreement, before the adoption of which, the parties to the agreement undertook to suspend all appointments ongoing in the Supreme Court.
The High Council of Justice has not paused the competition launched before the adoption of the amendments to the Law on Common Courts by the Parliament
The ruling party's statement about the implementation of obligations under the agreement is problematic even if we hypothetically assume that the amendments passed on April 1 are the "new legislation" referred to in the Charles Michel document.
With regard to the legislative changes of April 1, 2021, the Venice Commission unequivocally pointed to the authorities that “The amendments seem to indicate that the Georgian authorities wish to retain the ongoing competition, which will then be conducted/continued under the new rules. This means that the initial interviews will already have taken place under the old rules and the new rules will apply to later interviews. This needs to be handled with great care, as it raises a major concern of equality of treatment of candidates. For this reason, the procedure may need to be restarted.“
Despite the Venice Commission's call, instead of restarting the process, the High Council of Justice announced on April 5 that it would receive additional applications within the framework of old selection processes announced on October 7, November 2 and November 20, 2020.
Accordingly, the selection of Supreme Court judicial candidates has not been suspended in relation to nine candidates. They had been selected before the restart of the application process, which put them in an advantageous, unequal position compared to the candidates whose applications will be considered under the amended rules.
In view of the above, it can be unequivocally stated that the selection of Supreme Court judges has not been paused and is ongoing without the necessary reform or legislation provided for in the agreement, therefore it contradicts the spirit of the agreement and violates the obligation literally provided for in the agreement.
The Supreme Court of Georgia is a court of cassation of the highest and final instance of administration of justice. The Supreme Court oversees the administration of justice in the common courts of Georgia under prescribed procedure and performs other functions provided by law. The neglect of the agreement by the ruling party and the efforts to appoint judicial candidates acceptable to them directly indicate the attempt of the ruling party to strengthen its influence on the court of final instance and, ultimately, to seize judicial power.
In view of the above, DRI calls on the Georgian Dream to pause the appointment of Supreme Court judicial candidates in the given situation; continue judicial reform only through inclusive process, with the involvement of civil society, on the basis of the advice of international experts and political consensus with the parliamentary opposition.
Agreement “A Way Ahead for Georgia”, April 18, 2021, chapter 3, Rule of Law/Judicial Reform, paragraph b), p. 5.