Judges’ Pre-Election Migration
Tbilisi 2020 Responsible for their publication:
Georgian Democracy Initiative (GDI)
This research is made possible by the American People through the United States Agency for International Development (USAID). The content of this research is the sole responsibility of the Georgian Democracy Initiative (GDI) and do not necessarily reflect the views of the East West Management Institute, USAID or the United States Government Content
Introduction...... 5
Main Findings ...... 8
Methodology...... 9
Legislation related to Electoral Disputes...... 10
Legislative changes ...... 10
Narrow specialization of Electoral Dispute Resolution...... 11
Considering Administrative Cases in Shifts...... 13
Relocation of judges in Administrative Panels /Chambers through competition...... 14
Relocation of judges in Administrative Panels/Chambers without competition...... 17
Relocation of Judges to the Administrative Panels /Chambers in the Courts of Appeals and District (City) Courts ...... 21
Conclusion...... 23
Annex N1...... 24 Introduction
According to the article 3(2) of the Constitution of or majoritarian candidate. Consequently, the role and Georgia, “People are the source of state authority. importance of the judiciary in this process is very high, People exercise power through their representatives the primary duty of which is to make decisions on the [...]”. In turn, Article 24 (1) stipulates, “Every citizen electoral disputes independently and impartially, only of Georgia who has attained the age of 18 shall have on the basis of the law. the right to participate in referendums and elections Exactly for this controlling function, the ruling political of the bodies of the state, autonomous republics, and forces, throughout Georgia’s recent history, have local self-government”. Elections are one of the main always sought to control the judiciary, or to establish a mechanisms of control of the government, the results “benevolent” relationship with it, in order to hope and of which reflect the attitudes of the society towards the expect, that the court would follow their instructions current political force, its style of governing, policies, or and/or not rule against them. The existence of such actions. It is an opportunity to change the government a relationship, in countries with fragile democracies in a democratic way, which determines the direction in like Georgia, becomes particularly useful for the ruling which the country will develop in the next few years. political forces during the election period (and not Elections are the most important process for only1), when they try by all means to maintain power any democratic state, during which the society and use the above-mentioned relations with the demonstrates its political preferences, voting for judiciary to secure the resolution of electoral disputes its preferred candidate or political party. As a result, in their favor. it forms and legitimizes the government. Due to its One of the manifestations of such a “cooperative” importance, this process is in the center of particular relationship was the composition of the Supreme attention of the local, as well as of the international Court of Georgia in December 2019 by the Parliament organizations monitoring missions. of Georgia, with individuals, the vast majority of whom In order for the election results to be considered as are affiliated with the ruling party and/or an influential legitimate, it is necessary that it was conducted group of judges (so-called “clan”) in the judiciary, without violations and in full compliance with the law. and although their qualifications as well as their The judiciary, in turn, should stand as a guarantor.
In the pre and post-election period, as well as directly on election day, there are frequent confrontations, verbal or physical abuse between representatives of political parties. Violations of the electoral legislation are observed – cases of voting without an identity card or voting several times by the same individual, so-called “Carousels”, facts of illegal expulsion of the observers of opposition parties or non-governmental organizations from the polling station, attempts to put ballot papers in the ballot box, etc. As the previous year’s practice shows, the number of electoral disputes or administrative offenses in the courts during this period is quite high, and the workload of judges reviewing administrative cases are significantly increased. Depending on the severity or extent of the violation, the court’s annulment of the election results 1 US Department of State - 2019 Country Reports on Human in one or another electoral precinct may ultimately play Rights Practices: Georgia. Available at: a pivotal role and bring victory to some political party https://www.state.gov/reports/2019-country-reports-on- human-rights-practices/georgia/
5 Introduction
conscientiousness raised many questions2, the ruling government, but also, significantly hinders the political party unilaterally supported these candidates democratic development of the state. and appointed them to the highest court of the country The composition of the High Council of Justice for a lifetime (until reaching retirement age). of Georgia, as a guarantor body to ensure the The same attitude was expressed by the ruling political independence and efficiency of the Common Courts, party in the first half of 2019, with the amendments is of particular importance in the context of its wide- to the organic law “on Common Courts”, according to ranging power. Exactly this body is the core of the which, the ruling party took into account the interests judiciary and governs it through judges and non-judge of the same influential group of judges and ignored members loyal to an influential group of judges. On an important part of the recommendations of national October 22, 2020, two judge members of the High and international organizations.3 Such cooperation Council of Justice left their positions.4 In one case, between the two branches of government and taking the Secretary of the High Council of Justice, Giorgi into account each other’s interests during exercising Mikautadze, due to his appointment as the Chairman their powers not only contradicts the principle of of the Civil Chamber of the Supreme Court of Georgia, “checks and balances” between the branches of in accordance with the law, and in the second case, Revaz Nadaraia, whose term of office was going to
2 Second Report on the Nomination and Appointment of Supreme expired on April 8, 2021, resigned voluntarily, before Court Judges in Georgia – OSCE/ODIHR, 2020. available at: the expiration term. https://www.osce.org/odihr/443494?download=true Monitors regret appointment of 14 judges by Georgian On October 30, 2020, the day before the parliamentary parliament – Parliamentary Assambly of Council of Europe elections in Georgia, despite the dire epidemiological (PACE). 2019. Available at: http://assembly.coe.int/nw/xml/News/News-View-EN.asp?new situation in the country, an extraordinary conference sid=7737&lang=2&cat=3&fbclid=IwAR2qKcZpkGYz8y445qIuz1 of the judges of the Common Court of Georgia JnjM2-wTWh_u9etVOkDDYnEU9i11Bssy884wY was scheduled.5 The conference elected Ketevan Statement by the Spokesperson on the appointment of judges to the Supreme Court of Georgia – EU external Action. Available Tsintsadze, acting judge of the Supreme Court of at: Georgia, (former independent inspector), and Tea https://eeas.europa.eu/headquarters/headquarters- Leonidze, chairwoman of the Bolnisi District Court, as homepage/72068/statement-spokesperson-appointment- judges-supreme-court-georgia_en members of the High Council of Justice of Georgia, U.S. Embassy’s statement on supreme court nominees. and Nikoloz Marsagishvili, former chairman of the Available at: Tbilisi City Court, as secretary of the High Council of https://ge.usembassy.gov/u-s-embassys-statement-on- 6 supreme-court-nominees-december-12/ Justice. It raises doubts with regard to the Judicial The progress of the Assembly's monitoring procedure (January- Clan’s intention to occupy strategically important and December 2019) -Parliamentary Assambly of Council of Europe influential positions in the court system with an aim (PACE). 2020. Available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en. to insure the 4-year presence of members loyal and asp?fileid=28597&lang=en acceptable to the Clan in the High Council of Justice. Coalition for an Independet and Transparent Judiciary - Assessment of the Hearings of Supreme Court Judicial Candidates at the Parliament Legal Committee –. Available at: http://www.coalition.ge/index.php?article_id=234&clang=1 4 See the information published on the website of the High 3 Venice Commission - Opinion No. 949 / 2019, 12 April 2019. Council of Justice of Georgia. Available at: Available at: http://hcoj.gov.ge/ge/saqartvelos-iustitsiis-umaghlesi-sabcho- https://www.venice.coe.int/webforms/documents/?pdf=CDL- orma-tsevrma-datova/3723 REF(2019)007-e 5 See the information published on the website of the Supreme OSCE Office for Democratic Institutions and Human Rights - Court of Georgia. Available at: Opinion-Nr.: JUD-GEO/346/2019 [AlC] 17 April 2019. Available http://www.supremecourt.ge/news/id/2103 at: https://www.osce.org/files/f/documents/7/1/417599.pdf Coalition for an Independent and Transparent Judiciary - 6 See the information published on the website of the High Proposals for Supreme Court Justice Selection Criteria and Council of Justice of Georgia. Available at: Procedures. Available at: http://hcoj.gov.ge/ge/mosamartleta-xxviii-riggareshe- http://www.coalition.ge/index.php?article_id=200&clang=0 konferentsia/3727 6 Introduction
The need for research stems from the crucial role of judiciary (as evidenced by their public statements or the judiciary in the electoral process, at which point, positioning), are “vulnerable” to their influence (are not given the current situation, there are dangers of using yet appointed for a lifetime), or have reviewed high- influence and “cooperative” relations in resolving profile cases in the past, in which the decision was electoral disputes. made in favor of the interests of the government). The research also focuses on how the lists of judges shifts The purpose of this paper is to investigate the extent in the first instance courts were staffed by such judges to which, from May 2019 to October 30, 2020, during the election period. In addition, the research pre-election relocation of judges in administrative will assess the legal norms and mechanisms under chambers/panels or narrow specializations of electoral which the judges are transferred the courts of first and disputes were observed. Especially judges who are second instance. affiliated with the influential group of judges inthe
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Main Findings
› Defective legislative norms related to the transfer of judges without competition in the courts of the same instance, promotion to the court of a higher instance, compiling and making changes in the list of shifts, change of specialization, the formation of judges in narrow specializations, allow the improper use of these mechanisms. Increases the risk that the chambers of administrative cases, panels, and narrow specializations of electoral disputes will be staffed with individuals affiliated to the influential group of judges in the judiciary, who will make decisions in favor of the current government;
› In the circumstances, when on the basis of defective legislation, the Charman of the Court alone, determines the composition of judges in the narrow specializations of the Chambers/Boards of Administrative Cases and it depends solely on him/her how often this composition will be changed, contains a high risk, that narrow specializations dealing with electoral disputes will be staffed (at any time, including the day before the election), by judges who, in case of unhealthy interest from the government, will make decisions in favor of the latter. However, these risks are exacerbated by the opacity of the procedure, as chairpersons’ orders regarding the composition of judges in the narrow specializations and changes in this composition are not publicly accessible. Tbilisi City Court does not provide this information even after requesting public information. And the information provided by Tbilisi Court of Appeals shows, that the majority of judges in the narrow specialization of electoral disputes were appointed to the Chamber of Administrative Cases during the study period;
› To procedural issues of compiling the list of the judge’s shifts, its terms, the procedure for making changes in it or the issue of consent of judges are not provided for in any normative act. Accordingly, the chairpersons of the courts have the opportunity to staff the list of shifts in the administrative panels before the election, with the preferred, loyal judges taking into account the subjective factors. In addition, only one judge is on duty in the administrative panels each day, which excludes the principle of the random case distribution;
› The judiciary does not announce the judicial competition with the frequency necessary for the proper and effective functioning of the judiciary. Moreover, the judiciary is still “closed” in terms of accepting new judges. In particular, as a result of the 2018 Judicial Selection Competition, only 3 new judges entered the judiciary, and most of the vacant positions were filled by the acting judges, who in turn were reappointed for a life- time. Some of them were appointed in the same panel of the same court, some were promoted to the Court of Appeals, and some were replaced in a different court. All this was done in the conditions of defective legislation. The competition mechanism was not actually used to recruit new judges, but was used for internal transfers of “trusted” judges mostly in administrative panels/chambers;
› The migration of judges without competition in courts/chambers/panels was particularly active from May 2019 to July 2020. This process ended 3 months before the elections, which raises reasonable doubts that the transfer of judges during this period may be related to the upcoming elections. The inception of this process, a year earlier may have been intended to “cover up the traces” in order to avoid further linking the relocation of judges to the election period;
› Transfers of judges without competetion to the administrative chambers/boards were observed in the 3 most strategic and overcrowded courts, namely: in Tbilisi and Kutaisi Courts of Appeals and Tbilisi City Court. The real reason for these transfers was most likely related to the elections, during which, as a rule, most electoral disputes are mainly applied in these courts. Consequently, it was important for an influential group of judges to transfer loyal judges to these courts; 8 Judges’ Pre-Election Migration
› Most of the judges who have been transferred to administrative chambers panels are affiliated to an influential group of judges in the judiciary, and almost all of them are associated with high-profile cases, which is particularly alarming in the context of elections.
Methodology
The purpose of this research is to observe the relocation of judges in the administrative chambers, panels and narrow specializations of electoral disputes in the pre-election period, and to identify trends in their relocation. Attention will also be paid to the issue of compiling the list of judges shifts in the administrative panels of the Courts of First Instances and its composition. Due to the fact that specializations are not defined in some courts, the transfer of judges in such courts is not covered by this research.
More specifically, the research concerns:
› Relocation of judges in administrative panels/chambers/narrow specializations of electoral disputes in District (city) Courts and the Courts of Appeals:
› Pursuant to Article 35 of the Organic Law “on Common Courts”, through competition;
› Pursuant to Article 37 of the Organic Law “on Common Courts”, without competition;
› Pursuant to Article 23 (3) and Article 30 (3) of the Organic Law “on Common Courts”;
› Compiling lists of judges shifts in the administrative panels of district (city) courts;
For the purpose of the present research, the following information was obtained and analyzed: appointment of judges in the courts of first and second instance and their transfer to chambers of administrative cases / panels / narrow specializations of electoral disputes; decisions/orders of the High Council of Justice of Georgia; order of the Chairman of Tbilisi Court of Appeals on Determining the Composition of Judges in narrow specializations and orders of the Chairmen’s of the Tbilisi, Rustavi, Gori, Kutaisi, and Batumi District (City) Courts on the determination of judges shifts in administrative panels;
Processed information
The research focuses on the transfers of judges considering of the administrative cases, more specifically, electoral disputes from January 2019 to October 30, 2020, as well as lists of their shifts. Accordingly, the following information was processed in this regard:
› The norms of the Organic Law “on Common Courts” on the transfer of judges through competition, without competition, as well as on the basis of a change of specialization;
› Decisions of the High Council of Justice on determining the narrow specialization of judges in the Tbilisi City Court and the Tbilisi Court of Appeals;
9 Judges’ Pre-Election Migration
› Order of the Chairman of Tbilisi Court of Appeals on Determining the Composition of Judges in narrow specializations;
› Orders of the Chairmen’s of the Tbilisi, Rustavi, Gori, Kutaisi, and Batumi District (City) Courts on the determination of judges shifts in administrative panels;
› Decisions/Orders of the High Council of Justice regarding the announcement of the judicial competition and its results;
› Decisions/Orders of the High Council of Justice regarding the transfer of judges without competition;
› Decisions/Orders of the High Council of Justice regarding the transfer of judges between the specializations.
Legislation related to Electoral Disputes
Legislative changes
The 2020 parliamentary elections in Georgia are distinguished in many ways. With the transition to a more proportionate model of the electoral system, significant changes have been made to the electoral legislation.7 Along with gender quotas, media regulations, party funding, and many other issues, the changes also affected electoral disputes. In particular, the deadlines for compiling a report on violations by the election commissions and the National Communications Commission has been reduced, as well as the deadlines for reviewing disputes related to the use of administrative resources in election commissions from 30 to 10 days.8
However, the changes that have taken place, including in the area of electoral disputes, are still not sufficient to achieve fully transparent and free elections. Improving legislation on resolving electoral disputes was one of the recommendations shared by the OSCE/ODIHR Election Resolution Mission to the Parliament of Georgia:
“The legal framework for electoral dispute resolution should be reviewed to simplify the complaints procedures and eliminate restrictions on standing. Everyone whose electoral rights have been violated should be entitled to lodge a complaint”.9
Along with international organizations, recommendations were also submitted by local non-governmental organizations.10 A significant part of the proposed changes concerned the electoral disputes. In particular,
7 Organic Law of Georgia “Election Code of Georgia” – Amendments of 02 July, 2020. Available only in Georgian at: https://matsne.gov.ge/ka/document/view/4915093?publication=0.
8 Transparency International Georgia - What has changed in the election legislation. Available at: https://transparency.ge/en/post/what-has-changed-election-legislation
9 OSCE/ODIHR – Georgia, Presidential Elections 28 October and 28 November 2018. 28 February 2019. Pg. 20. Available at: https://www.osce.org/files/f/documents/9/4/412724_2.pdf
10 International Society for Fair Elections and Democracy (ISFED), Georgian Young Lawyers’ Association (GYLA), Transparency International – Georgia (TI) “Recommendations for Improving Electoral Environment”, June 2018. Available at: https://www.scribd.com/document/381598495/Recommendations-for-Improving-Electoral-Environment#from_embed See also, Research Analysis of Electoral Dispute Resolution – COE, 2019. Available at: https://rm.coe.int/edr-research-eng/1680981a02
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according to NGOs, it was necessary to: Expand the circle of subjects in election disputes, improving the forms of lawsuits and complaints, improve the procedure for summarizing the voting results, the issue of handing over a court decision, the possibility of appealing the election administration’s refusal to draw up a report on administrative violations, etc.11
Following the changes in the legislation, the EU Ambassador, as well as the US Embassy, highlighted the insufficiency of the reform and the challenges left unresolved, including in the area of electoral disputes:
“More ambitious reforms should have been implemented in key areas recommended by the OSCE/ ODIHR, such as pressure on voter, dispute resolution and the formation of election commissions.”12
“Some important gaps in the legislation remain, however. In our view, additional measures to address possible voter intimidation, ensure transparency in the selection of election commission members, strengthen the dispute resolution process, and provide opportunities for alternate campaigning methods due to COVID-19 limitations would have contributed to increasing public confidence in the electoral process this fall.”13
Narrow specialization of Electoral Dispute Resolution
Article 3 of Protocol No. 1 (European Charter of Human Rights) contains certain positive obligations of a procedural character, in particular Requiring the existence of a domestic system for the effective examination of individual complaints and appeals in matters concerning electoral rights. The existence of such a system is one of the essential guarantees of free and fair elections. 14 Disputes related to the electoral process, which affect the election results, significantly contribute to the quality of democratic processes in the country and the implementation of the rule of law. The existence of Judiciary, free from political influence is vital when assessing electoral processes as a direct indicator of the quality of a country’s democracy. However, unfortunately, in the history of independent Georgia, it is difficult to find an election that was not accompanied by high-profile court disputes in which judges made biased decisions.
Amendments to the Organic Law of Georgia on Common Courts within the framework of the “third wave” of judicial reform should have been a factor of strengthening the independence and impartiality of the judiciary, on the basis of which, from December 31, 2017, the rule of distribution of cases among judges through the electronic system in the common courts of Georgia came into force. However, monitoring of the system have shown that along with the legislation, the technical side of the system itself is problematic, contains gaps and leaves room for external interference.15
According to the legislation, in a district (city) court of special caseload composed of more than 2 judges, a
11 ISFED, TI – Georgia “Recommendations for Improving Electoral Environment”, 21 October, 2019. Available at: https://isfed.ge/eng/rekomendatsiebi/Recommendations-for-Improving-Electoral-Environment-ISFED-TI
12 Public statement of the EU Ambassador in Georgia Carl Hartzell. Available at: https://bit.ly/32FVLku
13 Official statement of the US Embassy Tbilisi, Georgia. Available at: https://bit.ly/3kjeesY
14 European Court of Human Rights - Guide on Article 3 of Protocol No. 1 to the European Convention on Human Rights. Para 99. Available at: https://www.echr.coe.int/Documents/Guide_Art_3_Protocol_1_ENG.pdf
15 Georgian Democracy Initiative (GDI) - Legal and Technical Analysis of the New System of Case Distribution in General Courts. Available at: https://gdi.ge/uploads/other/0/806.pdf
11 Judges’ Pre-Election Migration
narrower specialisation16 of judges may be conducted or specialised judicial panels (‘the judicial panels’) may be set up by decision of the High Council of Justice of Georgia,17 also by decision of the High Council of Justice of Georgia, a narrower specialisation of judges may be conducted at the Court of Appeals.18 Until April 30, 2018, narrow specializations existed only in the Tbilisi City Court, 19 and from April 30, by the decision of the High Council of Justice, it was also established in the Tbilisi Court of Appeals. 20 According to the mentioned decisions, 5 narrow specializations were defined in the Administrative Panel of the Tbilisi City Court, four of which included electoral disputes.21 And in Tbilisi Court of Appeals, 3 categories, two of which included election disputes. 22 However, according to Resolutions N9 and N10 of the High Council of Justice of August 11, 2020, electoral disputes became a matter for only the one narrow specialization of administrative Panel/Chamber.23 Consequently, the circle of judges reviewing electoral disputes was narrowed, which facilitated and made it easier to an influential group of judges to staff the category of electoral disputes with loyal judges.
Unlike legally defined power of the chairman of Tbilisi Court of Appeals, the law does not provide the power of the chairman of Tbilisi City Court to determine the composition of judges in a narrow specialization. Nevertheless, it is an established practice that the chairman of the Tbilisi City Court determines it individually, by his own order. The frequency and procedure which makes it permissible/possible to change the composition of judges according to narrow specializations are not defined by the law. All this implies that, although the electronic program distributes cases between judges of specific specialization and narrow specialization on a random basis, but which judge will be in its composition and how often this composition will change, depends entirely on the decision of the court chairman. Consequently, there is a high risk, that narrow specialization of electoral dispute resolution at any time, including the day before the election, might be staffed solely by judges who, in case of unhealthy interest of the state, will make decisions in favor of the latter. However, these risks are increased by the opacity of the procedure, as the Tbilisi City Court refused to provide such orders despite of request, which would have made it possible to monitor the dynamics of the rotation of judges.24 As for the Tbilisi Court of Appeals, according to the information provided (as of October 13) the following judges were assigned in the narrow specialization of electoral disputes from September 1, 2020: Dimitri Gvritishvili, Tea Dzimistrashvili, Manana Chokheli, Giorgi
16 Administrative, Civil and Criminal panels have narrow thematic specializations, which operate only in Tbilisi City and Tbilisi Courts of Appeals.
17 Organic Law of Georgia “on Common Courts”. Article 30 (2). Available at: https://matsne.gov.ge/en/document/view/90676?publication=34
18 Organic Law of Georgia “on Common Courts”. Article 23 (21). Available at: https://matsne.gov.ge/en/document/view/90676?publication=34
19 Decision of the High Council of Justice of Georgia N1/92-2006 (03 October, 2006). Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/konsolidirebuli%20gadackvetilebebi/1-92.pdf.
20 Decision of the High Council of Justice of Georgia N1/175 (30 April, 2018). Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202018/175-2018.pdf.
21 Decision of the High Council of Justice of Georgia N1/92-2006 (03 October, 2006). Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/konsolidirebuli%20gadackvetilebebi/1-92.pdf.
22 Decision of the High Council of Justice of Georgia N1/175 (30 April, 2018). Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202018/175-2018.pdf.
23 Resolution N9 of the High Council of Justice of Georgia of August 11, 2020. Available in Georgian at: https://www.matsne.gov.ge/ka/document/view/4962289?publication=0; Resolution N10 of the High Council of Justice of Georgia of August 11, 2020. Available in Georgian at: https://www.matsne.gov.ge/ka/document/view/4962300?publication=0.
24 Refusal to issue a public information by Tbilisi City Court on 01 September 1, 2020 (letter N3887378) on a request of Georgian Democracy Initiative (GDI) by letter Ng-345/20 of 27 August, 2020.
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Tkavadze, Khatia Ardazishvili, Davit Akhalbedashvili, Leila Mamulashvili, Nana Chichileishvili, Gia Beraia and Gocha Abuseridze. 25 As will be seen below, most of these judges were appointed to this court during the reporting period, which further raises the doubts, that their migration was related to the election process, aiming at setting up the narrow specialization of electoral disputes with that “trusted” judges.
Considering Administrative Cases in Shifts
The electronic case distribution procedure entrusts the chairmen of the court with the right to set up the shifts26 in case of necessity by its own order for certain administrative and criminal law, where the duration of the case consideration does not exceed 72 hours. Under a court president’s order, a shift schedule of judges on duty (according to alphabetical sequence and index) is drafted in advance and cases are accordingly distributed in working and non-working hours.
It is noteworthy, that the procedure for preparing shift schedule, timelines, making changes in the schedule and the issue of Judge’s consent is not determined by law, which indicates that a court president is able to compile shifts with preferred judges based on subjective reasons.27 According to the information provided by Tbilisi, Kutaisi, Gori, Rustavi and Batumi District (city) courts, the shift schedules in these courts are compiled monthly (by the beginning or by the end of the month), separately for each new month, for working and non-working days/ hours, according to the alphabetical order and by mutual agreement of judges, taking into account their work schedule, trial days, vacations, or business trips.28 As it is clear from the reply letter of the Batumi City Court, in case of business trips and/or other objective circumstances, the shift schedule is changed.29 According to the Rustavi City Court, the changes are included in the shift schedule in the same way as these lists are made.30 Other courts did not provide information on the issue of changes (in what cases, and how often).
As regards the number of judges on duty in the Administrative Panels, according to the information received from the courts, one judge is on duty in the Administrative Panel every day, which excludes the distribution of cases by applying the principle of random distribution.
Legislative shortcomings related to the rule of determining the shift schedule, as well as the fact that in some cases the shift schedule consists of 1, 2 or 3 judges, which excludes/invalidates the validity of the principle of random case distribution, is especially alarming in the context of elections, as the chairmen of the courts can determine and decide sometime before the election which judges will be on the shift schedule during the elections. Consequently, there is a high probability, that these shifts will be compiled with the judges who are affiliated with an influential group of judges in the judiciary, or who are vulnerable to their influence. This, in turn implies that there is a fairly high probability of resolving election disputes in favor of the government’s interests.
25 Letter of reply N3 / 6587 of Tbilisi Court of Appeals of October 22, 2020.
26 Decision no. 1/56-2017 of the High Council of Justice of Georgia, Article 4(12). Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/konsolidirebuli%20gadackvetilebebi/56-.pdf
27 Georgian Democracy Initiative (GDI) - Legal and Technical Analysis of the New System of Case Distribution in General Courts. Available at: https://gdi.ge/uploads/other/0/806.pdf
28 Letters of reply: N1019/გ of the Rustavi City Court of 21 October, 2020; N11289-2 of Kutaisi City Court of 22 October, 2020; Nგ/ფ -2831 of Gori District Court of 22 October, 2020; N3-06105/4018621 of Tbilisi City Court of 16 October, 2020; N665გ/კ of Batumi City Court of 19 October, 2020.
29 Letters of reply N665გ/კ of Batumi City Court of 19 October, 2020.
30 Letters of reply N1019/გ of the Rustavi City Court of 21 October, 2020.
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Relocation of judges in Administrative Panels /Chambers through competition
As past practice shows, judges consider the participation in a competition for the opportunity of relocation in different chambers/panels. According to Article 35 (1) of the Organic Law of Georgia “on Common Courts”, If there is a vacancy in the position of a judge at a district (city) court and a court of appeals, the High Council of Justice of Georgia shall announce a competition through the official gazette of Georgia. However, the law does not specify how often it should be announced and within what timeframe it should be completed, which creates some problems in practice and ultimately undermines the interest of the timely and proper administration of justice.
It is not a novelty, that there is an insufficient number of judges in the common courts and there is a need to increase this number as soon as possible. According to the 2018 study “Assessment of the need for judges in Georgia”31, the system needs to add about 100 judges in order for the court to function normally and effectively and to adequately respond to the demand for court services.
Numerous NGO’s focused on the issue of the insufficient number of judges in various surveys, reports or statements, where they highlighted the dangers - overcrowding (which could have been used to make an influence on judges), delays and breaches of legal timefames, and strongly criticized the inadequate frequency of announcement of the Judicial competitoin or the delays in the competetion procedures after the announcement.
It is noteworthy, that currently there are 99 vacancies in the courts of first and second instance.32 Despite the current situation and the lack of a number of judges, the High Council of Justice has not announced the judicial competition in 2019. From May 2019 to June 2020, the High Council of Justice actively used the mechanism of appointing judges to vacant positions without a competition, which will be discussed in more detail in the next chapter.
After 30 July, 201833, the High Council of Justice announced the judicial competition on 26 June, 202034, almost 2 years later. The competition announced in July 2018 ended on May 24, 2019, after about 10 months35. It was announced for 43 vacancies and 69 candidates took part. 36 As a result of the competition, 32 candidates were appointed for the position of judge, 27of which were current judges, two were former judges and three were the School of Justice listeners.37 11 positions remained vacant.38 Most of these judges were reappointed for a
31 Assessment of the need for judges in Georgia - Jesper Wittrup, Tea Machaidze, Elene Janelidze, Mariam Makishvili, 2018. (EWMI, PROLoG, USAID). Available at: http://ewmi-prolog.org/images/files/4566AssessmentoftheneedforjudgesinGeorgia-ENG.pdf
32 Information published on the official web-site of the High Council of Justice of Georgia. Available in Georgian at: http://hcoj.gov.ge/ge/gasaubreba/3711.
33 Decision N1/238 of the High Council of Justice of Georgia of 30 July, 2018. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202018/238.pdf.
34 Ordinance 1/89 of the High Council of Justice of Georgia of 26 June, Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/89.pdf.
35 Information published on the official web-site of the High Council of Justice of Georgia. Available in Georgian at: http://hcoj.gov.ge/ge/mosamartleobis-kandidatebis-shesarchevi-konkursi-dasrulda/3439.
36 Ibid.
37 Ibid.
38 Information published on the official web-site of the High Council of Justice of Georgia. Available in Georgian at: http://hcoj.gov.ge/ge/mosamartleobis-kandidatebis-shesarchevi-konkursi-dasrulda/3439.
14 Judges’ Pre-Election Migration
lifetime to the same panel of the same court, some were promoted to a higher court, and some were transferred to another district (city) court.
More specifically:
› The following judges were promoted or later transferred to the Administrative Chambers:
› Khatia Ardazishvili (was transferred from the Administrative Panel of Tbilisi City Court to the Administrative Chamber of Tbilisi Court of Appeals);39
› Nino Kanchaveli (was transferred from the Administrative Panel of Tbilisi City Court to the Administrative Cases Chamber of Tbilisi Court of Appeals);40
› Davit Akhalbedashvili (was transferred from the Dusheti magistrate court of Mtskheta District Court to the Civil Chamber of Tbilisi Court of Appeals, and later to the Administrative Cases Chamber of the same court);41
› The following judge was appointed to the Administrative Panel:
› Ekaterine Partenishvili (was appointed to the Administrative Panel of Mtskheta District Court, and later transferred to the Criminal Panel of the same court);42
The results of the 2018 competition clearly indicates the problem of the closure of the judiciary system, which has also been the subject of criticism for many years. The above statistics show that the influx of new staff into the judiciary does not actually take place, thus it not only destroying the opportunity for the development of law and judiciary by introducing new ideas, opinions and approaches, but also, there is a reasonable doubt, that the criterion for entering the judiciary is not actually the integrity and competence of the candidate, but his/her loyalty to a group of influential judges in the judiciary.
39 Decision N1/99 of the High Council of Justice of Georgia of 31 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/99.pdf; Decision Decision N1/55 of the High Council of Justice of Georgia of 24 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/55.pdf.
40 Decision N1/98 of the High Council of Justice of Georgia of 31 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/98.pdf; Decision N1/56 of the High Council of Justice of Georgia of 24 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/56.pdf.
41 Decision N1/93 of the High Council of Justice of Georgia of 31 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/93.pdf; Decision N1/57 of the High Council of Justice of Georgia of 24 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/57.pdf; Decision N1/157 of the High Council of Justice of Georgia of 9 July, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/157.pdf.
42 Decision N1/80 of the High Council of Justice of Georgia of 24 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/80.pdf; Decision N1/111 of the High Council of Justice of Georgia of 20 June, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/111.pdf.
15 Judges’ Pre-Election Migration
As regards the competition that started in June 2020, it was announced for 99 vacant positions. 43 The process of interviewing 68 candidates started on 9 October, 2020, after more than 3 months, and is still ongoing. 44 It should be noted that 23 candidates in the competition are current judges, 18 are former judges and 27 are with no judicial inexperience. 45 Such a low number of competition participants, in turn, indicates that the legal community does not have confidence in the processes led by the High Council of Justice, which may be partly due to the results of the previous competitions.
Also noteworthy in this regard is the issue of judges appointed for a probationary period of 3 years, as they are particularly vulnerable to influences. Currently, there are 8 such judges among the judges reviewing administrative cases, 6 of which are holding office in Tbilisi City Court.46 In courts where there are not defined the specialization of judges, 6 judges are holding the office for a probationary period.47 4 magistrate judges are being appointed for the same term. 48 Given that these judges have not yet been appointed to a lifetime, there is an increased chance that they will be influenced by an influential group of judges in the judiciary and will consider electoral disputes in a biased manner to gain their favor.
43 Ordinance 1/89 of the High Council of Justice of Georgia of 26 June, 2020 Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/89.pdf.
44 Information published on the official web-site of the High Council of Justice of Georgia. Available in Georgian at: http://hcoj.gov.ge/ge/gasaubreba/3711.
45 Information published on the official web-site of the High Council of Justice of Georgia. Available in Georgian at: http://hcoj.gov.ge/ge/mosamartleobis-kandidatta-biografiebi/3689.
46 In Tbilisi City Court: Natia Buskadze, Nino Tarashvili, Natia Merabishvili, Lela Mildenberger, Natia Togonidze, Ekaterine Jinchvelashvili; In Mtskheta District Court: Bidzina Sturua; In Rustavi City Court: Nata Tedeshvili.
47 In Gurjaani District Court- Nana Chalatashvili; Zugdidi District Court - Pati Purtskhvanidze; Tetritskaro District Court - Vladimer Khuchua; Ozurgeti District Court - Marina Kiknadze; Samtredia District Court - Davit Svanadze; Khashuri District Court - Zaza Ramishvili.
48 Gurjaani District Court’s Magistrate Judge in Lagodekhi Municipality - Ioseb Abramidze; Mtskheta District Court’s Magistrate Judge in Kazbegi Municipality - Sophio Lezhava; Senaki District Court’s Magistrate Judge in Martvili Municipality - Darejan Kvaratskhelia; Sighnaghi District Court’s Magistrate Judge in Sagarejo Municipality - Giorgi Bukhrashvili.
16 Judges’ Pre-Election Migration
Relocation of judges in Administrative Panels/Chambers without competition
From May 2019 to July 2020, the High Council of Justice actively used the mechanism of appointing a judge as a judge of another court without competition for the relocation of judges in administrative panels/ chambers. According to Article 37 (1) of the Organic Law of Georgian “on Common Courts”, “When there is a vacancy, a judge appointed to the position may be appointed with his/her consent as a judge of a respective or superior court without competition [...]”.
As already mentioned, currently there are 99 vacancies in the courts of first and second instance. From May 2019 to July 2020, the Council of Justice used the mechanism provided for in Article 37 of the Organic Law of Georgian “on Common Courts”12 times to fill vacancies in the courts. In particular, pursuant to this Article and Article 131 of the Rules of the Procedure of the High Council of Justice, from May to December 2019, the High Council of Justice announced in total 7 calls for applications. 49 And from January to October 2020 - 5 times. 50 Such activation and the finalization of the process three months before the elections have heightened doubts that the process of “large turnover of judges” in the judiciary is linked to the forthcoming elections.
It is noteworthy that 20 judges were appointed in the Administrative Panels/Chambers without competition from January 2019 to October 2020, most of whom are themselves or are affiliated with an influential group of judges in the judiciary. In addition, there are judges, whose names are associated with a number of high-profile cases. For information on these cases, see Annex N1.
The list of judges looks as follows:
› Dimitri Gvritishvili – Was transferred from cdministrative Chamber of Kutaisi Court of Appeal to the administrative chamber of Tbilisi Court of Appeal51, and later, by the decision of the Council of Justice of August 11, 2020, was appointed as a Chairman of the same Chamber. 52 It should also be noted that Dimitri Gvritishvili was considering civil cases at Kutaisi Court of Appeal before the change of specialization,53 about 2 months before he changed of court.
› Gocha Abuseridze – Was transferred from the Administrative Chamber of Kutaisi Court of Appeals to the Administrative Chamber of Tbilisi Court of Appeals. 54
› Natia Merabishvili – Was transferred from Akhaltsikhe District Court to the Administrative Panel of Tbilisi City
49 See the agendas of the High Council of Justice sessions for 31 May, 25 June, 9 July, 4 September, 22 November, 10 December and 26 December 2019. Available in Georgian at: http://hcoj.gov.ge/.
50 See the agendas of the High Council of Justice sessions for January 9, January 24, March 17, June 5, and July 23, 2020. Available in Georgian at: http://hcoj.gov.ge/.
51 Ordinance 1/111 of the High Council of Justice of Georgia of 26 June, 2020. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/111-2020.pdf.
52 Ordinance 1/122 of the High Council of Justice of Georgia of 11 August, 2020. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/122-2020.pdf.
53 Ordinance 1/62 of the High Council of Justice of Georgia of 5 June, 2020. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/62-2020.pdf.
54 Ordinance 1/28 of the High Council of Justice of Georgia of 17 March, 2020. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/28-2020.pdf.
17 Judges’ Pre-Election Migration
Court. She is appointed for a probationary period of 3 years.55
› Manuchar Tsatsua - Was transferred from Zugdidi District Court’s Magistrate court in Chkhorotskhu Municipality to the Administrative Panel of Mtskheta District Court. 56 However, later on, following the same procedure, he again changed court and this time moved to the Administrative Panel of Tbilisi City Court. 57
› Lela Chincharauli - Was transferred from Zestaponi District Court’s Magistrate court in Terjola Municipality to the Administrative Panel of Tbilisi City Court. 58
› Valeriane Filishvili - Was transferred from the Civil Panel of Gori District Court to the Administrative Panel of Tbilisi City Court. 59
› Nino Tarashvili - Was transferred from Bolnisi District Court to the Administrative Panel of Tbilisi City Court. 60 He is appointed for a probationary period of 3 years. 61
› Alexander Goguadze - Was transferred from Senaki District Court’s Magistrate court in Abasha Municipality to the Administrative Panel of Batumi City Court. 62
› Sophio Gagnidze - Was transferred from Tetritskaro District Court’s Magistrate court in Tsalka Municipality to the Administrative Panel of the Tbilisi City Court. 63
› Badri Shonia - Was transferred from Mtskheta District Court’s Magistrate court in Akhalgori Municipality to the Administrative Panel of Tbilisi City Court. 64
55 Decision 1/110 of the High Council of Justice of Georgia of 20 June, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/110.pdf.
56 Decision 1/112 of the High Council of Justice of Georgia of 20 June, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/112.pdf.
57 Decision 1/352 of the High Council of Justice of Georgia of 20 December, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/352-2019.pdf.
58 Decision 1/113 of the High Council of Justice of Georgia of 20 June, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/113.pdf.
59 Decision 1/147 of the High Council of Justice of Georgia of 9 July, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/147.pdf.
60 Decision 1/194 of the High Council of Justice of Georgia of 4 September, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/194.pdf.
61 Decision 1/32 of the High Council of Justice of Georgia of 11 January, 2018. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202018/32-2018.pdf.
62 Decision 1/197 of the High Council of Justice of Georgia of 4 September, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/197.pdf.
63 Decision 1/330 of the High Council of Justice of Georgia of 10 December, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/330-2019.pdf.
64 Decision 1/356 of the High Council of Justice of Georgia of 20 December, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/330-2019.pdf.
18 Judges’ Pre-Election Migration
› Lela Mildenberger - Was transferred from the Administrative Panel of the Kutaisi City Court to the Administrative Panel of Tbilisi City Court. 65
› Nino Sharadze - Was promoted from the Civil Panel of the Gori District Court to the Administrative Chamber of Tbilisi Court of Appeals. 66
› Shota Siradze - Was promoted from Poti City Court’s Magistrate court in Khobi Municipality to the Administrative Chamber of Kutaisi Court of Appeals. 67
› Vladimer Kakabadze - Was promoted from the Civil Panel of Tbilisi City Court to the Administrative Panel of the Tbilisi Court of Appeals. 68 He was later elected as a judge of the Supreme Court of Georgia by the Parliament of Georgia.
› Leila Mamulashvili - Was promoted from the Administrative Panel of Tbilisi City Court to the Administrative Panel of Tbilisi Court of Appeals. 69
› Levan Mikaberidze - Was promoted from the Civil Pnel of Tbilisi City Court to the Administrative Board of Tbilisi Court of Appeals. 70 He was later elected as a judge of the Supreme Court of Georgia by the Parliament of Georgia.
› Nana Chichileishvili - Was promoted from the Administrative Panel of Tbilisi City Court to the Administrative Board of Tbilisi Court of Appeals. 71
› Lasha Tavartkiladze - Was promoted from the Administrative Panel of Tbilisi City Court to the Administrative Board of Tbilisi Court of Appeals. 72
› Inga Kvachantiradze - Was promoted from the Administrative Panel of Tbilisi City Court to the Administrative Board of Tbilisi Court of Appeals. 73
65 Decision 1/285 of the High Council of Justice of Georgia of 22 November, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/285.pdf.
66 Ordinance 1/79 of the High Council of Justice of Georgia of 26 June, 2020. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/79-2020.pdf.
67 Ordinance 1/10 of the High Council of Justice of Georgia of 24 January, 2020. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/1-10.pdf.
68 Decision 1/141 of the High Council of Justice of Georgia of 9 July, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/141.pdf.
69 Decision 1/142 of the High Council of Justice of Georgia of 9 July, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/142.pdf.
70 Decision 1/143 of the High Council of Justice of Georgia of 9 July, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/143.pdf.
71 Decision 1/189 of the High Council of Justice of Georgia of 4 September, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/189.pdf.
72 Decision 1/188 of the High Council of Justice of Georgia of 4 September, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/188.pdf.
73 Decision 1/278 of the High Council of Justice of Georgia of 22 November, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/278.pdf.
19 Judges’ Pre-Election Migration
› Gia Beraia - Was promoted from Akhaltsikhe District Court to the Administrative Chamber of the Tbilisi Court of Appeals. 74
It is noteworthy, that, as observed, the migration of judges took place mostly from the peripheries (regions) to the capital, Tbilisi Court of Appeals and the Tbilisi City Courts, and the promotion of judges from the Tbilisi City Court to the Tbilisi Courts of Appeals. This might be due to the fact, that most voters live in the capital. Consequently, these courts would most likely have a higher number of electoral disputes in which the government’s interest could have been expressed and had a “significant” weight in relation to the election results. Therefore, it was crucial for an influential group of judges to staff these two strategic courts with “trusted” judges.
According to Article 131 of the Rules of the Procedure of the High Council of Justice of Georgia, “while making decision to appoint a judge in another court of the same instance, the following sircumstances shall be taken into account: the need for a specific court, the judge’s place of residence, health and marital status, impact on the expenditure part of the budget, etc.”. 75
Monitoring the interviews without a competition with candidate judges revealed, that the vast majority of applicants cited health problems and the need for closeness to families as well as career development as reasons for changing courts. Given that the interviews lasted an average of 2-3 minutes and all judges gave identical reasons, and neither the organic law nor the Rules of Procedure of the High Council of Justice regulates the rules in such a situation the rules of procedure of the High Council of Justice, it is unclear on what basis did the Council give preference to one of the judges wishing to transfer to the same court/panel/board in cases where more than one application was submitted for one vacancy. Consequently, the High Council of Justice had considerable discretion in this regard, which does not exclude the possibility that a mechanism for the transfer of judges without competition was used for staffing the courts with “trusted” judges.
In this context, the issue of promotion of judges is also important, as the High Council of Justice mostly uses Article 37 of the Organic Law of Georgia “on Common Courts” for this purpose, although Article 41 refers the promotion of judge. According to Article 41 (1), “A judge of a district (city) court may be appointed in the Court of Appeals if he/she has exercised judicial powers in a district (city) court during at least five years. The High Council of Justice of Georgia shall establish criteria for promotion of a judge”. The criteria for the promotion of a judge are not defined by the Organic Law, the necessity of which was also indicated by the Venice Commission in its opinion76. The law empowers the Council of Justice to develop them. The High Council of Justice developed these criteria by its decision of October 19, 2015. 77 However, despite their existence, the promotion process is still flawed as there is no proper system for evaluating judges and the decisions are unsubstantiated. To date, no system has been developed based on clear, transparent and objective criteria, including the rule of evaluation, which increases the risk of arbitrary decisions regarding the relocation of judges during the pre-election period, allowing administrative panels /chambers to be staffed by “preferred” judges.
74 Decision 1/279 of the High Council of Justice of Georgia of 22 November, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/279-2019-1.pdf.
75 Article 131 (5) of the the Rules of Procedure of the High Council of Justice. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/konsolidirebuli%20gadackvetilebebi/208-2007%20%282007%29.pdf.
76 Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate of Human Rights and the Rule of Law (DGI) of the Council of Europe, on the draft Law on Amendments to the Organic Law on General Courts of GeorgiaCLD –AD 2014, Para 62. Available at: https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)031
77 Decision 1/166 of the High Council of Justice of Georgia of 19 October, 2015. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202015/166-2015.pdf.
20 Judges’ Pre-Election Migration
Relocation of Judges to the Administrative Panels /Chambers in the Courts of Appeals and District (City) Courts
Accorinding to the Articles 23 (3) and 30 (3) of the Organic Law of Georgia “on Common Courts”, “The High Council of Justice of Georgia shall define the number of judges in the chambers and Investigation Panel of the court of appeals and the number of judges in the Panels and the composition of the Panels in the regional (city) courts”. This provision provides an opportunity for a person to change specialization without any explanation or justification, only on the basis of an expressed desire.
In 2019-2020, the High Council of Justice repeatedly exercised this authority on the basis of an application by judges. However, none of the decisions/ordinances of the High Council of Justice on the change of specialization provides any substantiation to explain such a relocation.
In 2019, on the basis of the mentioned articles, the following judges has been relocated from the administrative panel/chamber to the other panels/chambers of the same court:
› Merab Lomidze (Civil Chamber of Tbilisi Court of Appeals); 78
› Irakli Shengelia (Civil Chamber of Tbilisi Court of Appeals); 79
› Nikoloz Margvelashvili (Criminal Chamber of Kutaisi Court of Appeals); 80
› Lela Chincharauli (Civil Panel of Tbilisi City Court); 81
› Nikoloz Marsagishvili (was transferred from the Administrative Panel of Tbilisi City Court to the Criminal Panel twice in 2019, in June82 and in November83);
From other panels/chambers, 6 judges were appointed to the Administrative Panels/ Chamber of the same court, namely:
Judge of Tbilisi Court of Appeals, Davit Akhalbedashvili; 84
78 Decision 1/105 of the High Council of Justice of Georgia of 31 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/105.pdf.
79 Decision 1/49 of the High Council of Justice of Georgia of 17 May, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/49-2019.pdf.
80 Decision 1/125 of the High Council of Justice of Georgia of 20 June, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/125.pdf.
81 Decision 1/317 of the High Council of Justice of Georgia of 6 December, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/317-219.pdf.
82 Decision 1/131 of the High Council of Justice of Georgia of 20 June, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/131.pdf.
83 Decision 1/304 of the High Council of Justice of Georgia of 29 November, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/304.pdf.
84 Decision 1/157 of the High Council of Justice of Georgia of 9 June, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/157.pdf.
21 Judges’ Pre-Election Migration
Judge of Tbilisi Court of Appeals,Nana Daraselia; 85
Judge of Tbilisi City Court, Nikoloz Marsagishvili, who was transferred from the criminal panel, spent only 6 days there and then was again transferred to the Criminal Panel according to the same article of the Organic Law; 86
Judge of Kutaisi Court of Appeals Nana Kalandadze; 87
Judge of Tbilisi City Court, Sergo Metopishvili, who was transferred from the Civil Panel, spent about 2 months there and then moved back under the same article of the Organic Law; 88
Judge of Mtskheta District Court, Bidzina Sturua; 89
As for Tbilisi Court of Appeals, in 2020, Judge Dimitri Gvritishvili has been transferred to the Administrative Cases Chamber. 90 However, the chairman of the court, Mikheil Chinchaladze, was transferred from the latter to the investigative panel. 91
As it turns out, most of the judges who have moved from other panels/chambers to the Administrative panels/ chamber and vice versa, are associated with the influential group of judges in the judiciary. In addition, they have condisered high-profile cases in the past (see Annex N1), which further raises suspicions, that this mechanism provided by Organic Law could also have been misused, ti staff the specialization with the “trusted” judges before the forthcoming elections.
85 Decision 1/166 of the High Council of Justice of Georgia of 12 July, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/166.pdf.
86 Decision 1/292 of the High Council of Justice of Georgia of 22 November, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/292.pdf.
87 Decision 1/37 of the High Council of Justice of Georgia of 22 April, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/37-2019.pdf.
88 Decision 1/305 of the High Council of Justice of Georgia of 29 November, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/305.pdf; Decision 1/7 of the High Council of Justice of Georgia of 23 January, 2020. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/1-7.pdf.
89 Decision 1/360 of the High Council of Justice of Georgia of 26 December, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2019%20-%20gadawyvetilebebi/360.pdf.
90 Decision 1/62 of the High Council of Justice of Georgia of 5 June, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/62-2020.pdf.
91 Decision 1/117 of the High Council of Justice of Georgia of 4 August, 2019. Available in Georgian at: http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/2020/117.pdf. 22 Judges’ Pre-Election Migration
Conclusion
In view of all the above, we must conclude, that in the conditions of insufficient/flawed legislative regulations, there are risks and dangers that such legislation can be abused by the relevant authorities (The High Council of Justice, Chairmen of Courts) when compiling the composition of the administrative panels/chambers/narrow specializations or the shift schedules. These suspicions are further enhanced by the fact, that Tbilisi City Court does not provide information on the composition of narrow specializations despite a number of requests. The relevant order of the Chairman of the Tbilisi Court of Appeals proves, that the narrow specialization of electoral disputes is composed of judges transferred in this court during the reporting period.
The data for 2019-2020 showed, that the High Council of Justice, based on flawed norms, transferred many judges to another court of the same instance, promoted them to the Court of Appeals or changed their specialization. On the basis of such flawed norms, shifts schedules in the courts of first instance are established, which gives court chairmen too much freedom to staff them on the basis of subjective factors and to make changes in them at the desired time.
It is noteworthy that the majority of judges who have been relocated to administrative panels, chambers or narrow specializations are affiliated with an influential group of judges in the judiciary. However, the judicial careers of most of them include many high-profile cases. It should also be noted, that among them are judges appointed for a probationary period of 3 years, whose degree of independence may in some respects be less than that of judges appointed for life. All of the above raises further suspicions that the transfer of judges to the courts of first and second instance were connected to the elections, as they, if necessary, would make a biased decision in the interests of the current government.
The 2020 parliamentary elections can be a turning point in the formation of a multi-party parliament, as well as in the process of democratic development of the country as a whole. Therefore, if there would be electoral disputes, it is vital that it be considered by an impartial and independent judiciary. However, such a relocation of judges in administrative panels/chambers/narrow specializations in pre-election period, raises serious questions about the independence and impartiality of the judiciary.
23 Judges’ Pre-Election Migration
Annex N1
(The annex provides information on the judges who have been transferred to the Administrative Panels/ Chambers in 2019-2020)92
Administrative Chamber of Tbilisi Court of Appeals
Dimitri Gvritishvili– One of the influential judges in the judiciary. He has held the position of the Chairman of Kutaisi Court of Appeas/Chairman of Chamber for many years, therefore, he has considered relatively few cases during this period. However, there are still some high-profile cases among them. In particular:
› In 2012, a few months before the parliamentary elections, Judge Dimitri Gvritishvili legally recognized the fining one of Bidzina Ivanishvili’s companies, „Management Service Ltd “with up to GEL 5 million by the Financial Monitoring Service of the Parties, spending no more than 4 hours for considing and ruling the case; 93
› Considered a case of opposition activist Dachi Tsaguria and his friend Beka Aladoshvil a few days before the 2012 parliamentary elections, “About 25 policemen forcibly dragged them out of the car on Elbakidze Avenue, beat them and then took pictures with a broom”. 94 However, the judge did not allow the defense attorney to question the police officer, found the detainees to be offenders, and sentenced them to 10 days in jail. 95
› In 2011, ruled the case of changing the status of Digomi Forest Park in favor of Tbilisi City Council. 96
› In 2011, ruled the case in favor of the Ministry of Corrections and Legal Assistance. The case concerned to impose the order to the Ministry to issue public information (salaries of officials, cultural and advertising events, tenders, communication expenses, expenses related to the visits of employees of the Ministry) and imposing damages for its non-issuance. 97
Vladimer Kakabadze 98 - Judge, affiliated to the influential group of judges in the Judiciary. His name is related to the following cases:
› “Philip Morris” and „British American Tobacco-ს“, where the plaintiffs accused the companies in dumping valuation.99 The judge upheld the lawsuits and respectively imposed a fine of GEL 93 million
92 Some of them, as of October 30, 2020, may no longer hold office in the above-mentioned court panel / chamber.
93 See the article of 30 January, 2019. Available at: https://bit.ly/2ILoEVd.
94 See the article of 29 January, 2019. Available at: https://bit.ly/37jyCHv.
95 Ibid.
96 See the article of 30 January, 2019. Available at: https://bit.ly/37jyCHv.
97 Ibid.
98 Vladimer Kakabadze was appointed to the Administrative Chamber of Tbilisi Court of Appeals in 2019 before being elected a judge of the Supreme Court of Georgia by the Parliament of Georgia.
99 See the article of 11 December, 2019. Available at: https://bit.ly/3j8W78A.
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and GEL 270 million. 100
› Businessman Fady Asly case, in which he himself was a plaintiff and sought to restore the violated honor and dignity. 101 Eventually, the Supreme Court of Georgia ruled in favor of Fadi Asly and the freedom of expression. 102
Levan Mikaberidze103 - This judge considered and rejected the claim of the plaintiffs in the case of donation of shares and stocks of JSC “Tbilaviamsheni” to the state, in which the latter argued that they had no real motive for donating property to the state and giving up shares was based on coercion by the state. 104
Lasha Tavartkiladze - This judge has considered a number of high-profile cases. In particular:
› The case of fining the members of the “Equality Movement”105;
› The case of imposing administrative liability against individual entrepreneur Anania Gachechiladze (so-called “Aisa” case)106;
› The case of administrative detention of Zviad Kuprava;107
› The case of fining a member of the Parliament of Georgia, Nika Melia; 108
Nana Daraselia - Her name is also related to the number of high-profile cases. In particular:
› In 2012, a few months before the election, Judge Nana Daraselia fined Bidzina Ivanishvili twice for initially making an illegal donation and then failing to confirm the purpose of spending GEL 5 million from the accounts; 109
› In February 2012, she fined Lasha Chkhartishvili, a member of the Georgian Dream, who was protesting against the cutting of trees in Kikvidze Garden and the construction of a police building in the area.
100 Ibid.
101 See the article of 18 April, 2019. Available at: https://bit.ly/2FIcr2i.
102 Ibid.
103 Levan Mikaberidze was appointed to the Administrative Chamber of Tbilisi Court of Appeals in 2019 before being elected a judge of the Supreme Court of Georgia by the Parliament of Georgia.
104 Portfolio of Leva Mikaberidze. Open Society Georgia Foundation, 2019. Available at: https://bit.ly/3m7pABs.
105 See the reportage of 26 August, 2019. Available at: https://bit.ly/2SMWmeD;
106 Resolution N4/3070-18 of Tbilisi City Court of May 4, 2018. https://bit.ly/33SFhq2.
107 See the article of 11 June, 2018. Available at: https://bit.ly/3jSlYm9.
108 See the article of 10 September, 2018. Available at: https://bit.ly/33Qcpyx.
109 See the article of 13 August, 2012. Available at: https://bit.ly/31smlwS.
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She imposed a fine of GEL 400.110
› Imeda Nikuradze, a lawyer in Bidzina Ivanishvili’s company “Elita Burji”, was sentenced to 20 days in administrative detention on August 8 for resisting police officers. 111
› Considered the so-called “Sakdrisi” case, which was related to the seizure/demolition of Sakdrisi- Kachaghiani archeological site by RMG Gold. 112
Khatia Ardazishvili - This judge heard the case of Mustafa Emre Çabuk, the manager of the Demirel School, who was appealing against the refusal of the Ministry of Refugees and Repatriation to grant him the refugee status. He was threatened with extradition to Turkey. 113
Nino Kanchaveli – Her name is connected to the cases of detained civil activists on 20-21 June, 2020, so-called “Gavrilov Night”, where Judge found them guilty, but dismissed them from the courtroom.114
Nino Sharadze - Did not satisfy the complaint of TV company Rustavi 2 for being fined GEL 2500 for violating the rules of advertising by the National Communications Commission (GNCC). 115 Also, she did not satisfy the claim in which the plaintiff requested the Ministry of Internal Affairs of Georgia to provide information about the special forces participating in the dispersal of the May 26, 2011 peaceful rally (by identifying their name, departmental and regional unit).116
Gocha Abuseridze - His name was involved in one of the cases of imposing fines to foreign investors in 2017, which was perceived by the public as an agreed pressure on the business by the ruling power and the judiciary. 117
110 See the article of 16 August, 2012. Available at: https://bit.ly/3kh1TWW.
111 Ibid.
112 See the article of 13 May, 2015. Available at: https://bit.ly/3jnJYwN.
113 See the article of 21 November, 2017. Available at https://bit.ly/2FKrQzj.
114 See the article of 25 June, 2019. Available at: https://bit.ly/37qgwns.
115 See the article of 20 December, 2015. Available at: https://bit.ly/2SP21Rm.
116 See the article of 28 February, 2012. Available at: https://bit.ly/3dHfd4x.
117 See the article of 16 June, 2017. Available at: https://bit.ly/3jjEiU9.
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Natia Merabishvili – In April 2020, she fined two detained persons participating in a manifestation/rally organized by the political party “Girchi” for protesting the state of emergency with 1000-1000 GEL.118 The same judge found the student guilty of petty hooliganism for posting a text of swearing in the address of his lecturer in a closed Facebook group. 119
Nana Chichileishvili - The name of this judge is related to the dispute over the issuance of a construction permit near the “Anna Garden”.120 The report of the Public Defender in 2006 included the case he considered, in particular, the case of Shalva Ramishvili and Davit Kokhreidze, co-founders of 202 TV121, because of which the Public Defender addressed to the High Council of Justice of Georgia to impose disciplinary liability on a judge.122
Inga Kvachantiradze -The judge considered the case of Sakdrisi mine, where it was determined, that the status of cultural heritage monument was removed due to procedural violations, namely, the Archaeological Council in the Ministry had not considered the issue and no decision was made at the discretion of specialists. 123 She is also considering the case of compensation for moral and material damage caused to Valeri Gelashvili, in which Mikheil Saakashvili, Ivane Merabishvili, Erekle Kodua, the Ministry of Internal Affairs and the Ministry of Finance were obliged to pay compensation. 124
Davit Akhalbedashvili-His name is connected to the following cases:
› In 2013, Ivane Merabishvili and Zurab Chiaberashvili were sentenced to pre-trial detention as a measure of restraint for voter bribery, misappropriation/embezzlement and abuse of office. 125 The judge sentenced Merabishvili to 2 months of pre-trial detention and released Chiaberashvili on 20,000 GEL bail; 126
› The case of a prisoner who died as a result of grievous bodily harm in Geguti 14th Penitentiary Establishment; 127
118 See the articles concerning the cases considered by Judge Natia Merebashvili. Available at: https://bit.ly/3jTunWy; https://bit.ly/36WbUoC.
119 See the article of 18 October, 2019. Available at: https://bit.ly/3nF0JGW; The case was included in the report “Freedom of Expression in Georgia” prepared by Georgian Democracy Initiative. Available at: https://gdi.ge/uploads/other/1/1091.pdf
120 See the article of 30 April, 2020. Available at: https://bit.ly/379c4Jv.
121 Human Rights in Georgi. Report of the Public Defender of Georgia. First half of 2006. Available at: https://www.ombudsman.ge/res/docs/2019062409162480085.pdf
122 See the article of 3 November, 2006. Available at: https://bit.ly/3dK8E19.
123 See the statement regarding the court dispute. Available at: https://bit.ly/3jfIKDJ.
124 See the article of 27 May, 2019. Available at: https://bit.ly/2IRoNXn.
125 See the article of 22 May, 2013. Available at: https://bit.ly/37mRJ3o.
126 See the article of 22 May, 2013. Available at: https://bit.ly/3m5reUe.
127 See the article of 5 August, 2013. Available at: https://bit.ly/34eIhNB.
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› The case of Khoni district governor Zurab Jibukhaia and deputy governor Merab Chelidze, who were sentenced to pre-trial detention before the local self-government elections, 128 which was assessed as part of a campaign against the political party United National Movement. 129
Administrative Chamber of Kutaisi Court of Appeals
Nana Kalandadze - The name of this judge is related to the case of division of Badri Patarkatsishvili’s property, in which a dispute was going on between Joseph Kay and Patarkatsishvili’s family members. Judge recognizes Joseph Kay as executor of Badri Patarkatsishvili’s will, however, refuses to recognize him as ruler of the inheritance. 130
Administrative Panel of Tbilisi City Court
Nikoloz Marsagishvili131 - This judge considered the so-called “Khorava Street Case”, in particular, the case of Mikheil Kalandia, 132 convicted in the premeditated gang murder of Davit Saralidze, where an independent inspector initiated disciplinary proceedings as a result of a complaint filed by his lawyers this year. 133
Valeriane Philishvili - His name is linked to the cases of those arrested during the dispersal of the November 18, 2019 rally, who were sentenced to administrative penalties, including imprisonment. 134 It is noteworthy, that the court hearings were very short, where, the judge gave the defense an unreasonable time to obtain evidence. The protests were followed by the dropping of the bill on the transition to a proportional electoral system by the political party Georgian Dream. 135 This judge also considered the case of Lasha Chkhartishvili, a member of the Labor Party, who was arrested on November 29, 2019 at a rally in front of the National Library for “throwing beans.” He was sentenced to 8 days in jail.136
Lela Chincharauli - The judge who, was considering the cases of the detained protesters in front of the parliament in November 2019. 137
128 See the article of 13 February, 2014. Available at: https://bit.ly/31mV8LK.
129 Ibid.
130 See the article of 28 April, 2009. Available at: https://bit.ly/2TdeXAV.
131 Nikoloz Marsagishvili was in the Administrative Panel for a certain period of time in 2019, before later moving to the Criminal Panel.
132 See the article of 5 March, 2020. Available at: https://bit.ly/3o85Z61.
133 See the article of 6 May, 2020. Available at: https://bit.ly/3ogVY6X.
134 See the cases considered and the types of punishments used by Judge Valeriane Philishvili. Available at: https://bit.ly/2IgmgFC.
135 See the article of 21 November, 2019. Available at: https://bit.ly/3jcRhXJ.
136 Ibid.
137 See the article on the trial of detained persons during the November 2019 protests in front of Parliament. Available at: https://bit.ly/3keeTww; See also the Legal Assessment prepared by Georgian Young Lawyers Association (GYLA) - “Beyond the Lost Eye”. Available at: https://bit.ly/3o7uOPJ.
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Badri Shonia138 - The name of this judge is associated with such high-profile cases as:
› The so-called “Cyanide” case; 139
› The so-called “Birja mafia” case; 140
› Case of wounding the guard of Club “Basiani”;141
› The case of Ivane Merabishvili’s accusation during the dispersal of the May 26, 2011 rally, in the part of the abuse of power.142
Manuchar Tsatsua and Lela Mildenbergeri - Their names are connected with the case of the so-called “Shmaxists”143, as a result of which the fines imposed on them were upheld.144 Manuchar Tsatsua also considered the case of Manuchar Chkhetia, a supporter of the United National Movement, who was accused of disturbing public order and insulting law enforcement officers. Due to insufficient evidence, the judge released the detainee from the courtroom.145
Nino Tarashvili – On January 3, 2020, he considered the case of Lasha Chkhartishvili146, a member of the Labor Party, who was arrested in front of the parliament on charges of petty hooliganism and disobedience. 147
Administrative Panel of Mtskheta District Court
Ekaterine Partenishvili148 - The name of this judge is associated with a number of high-profile cases. In particular: › The case of the murder of Davit Mumladze, in which former and current police officers were involved; 149
138 It is noteworthy, that in 2012-2013, the Public Defender twice requested disciplinary action against Judge Badri Shonia, however, the request was left without responding by the High Council of Justice of Georgia. See the article of October 28, 2015. Available at: https://bit.ly/3o2CrXN.
139 See the article of 5 May, 2017. Available at: https://bit.ly/3m5MM3i.
140 See the article of 16 January, 2018. Available at: https://bit.ly/2TaCDWt.
141 See the article of 20 January, 2018. Available at: https://bit.ly/3o65QA5.
142 See the article of 30 May, 2013. Available at: https://bit.ly/34eYvXe.
143 See the article of 17 July, 2020. Available at: https://bit.ly/2H7XFmp.
144 Ibid.
145 Ibid.
146 See the article of 3 January, 2020. Available at: https://bit.ly/3jNxXS6.
147 See the article of 8 January, 2020. Available at: https://bit.ly/34em2Yh.
148 Ekaterine Partenishvili was in the Administrative Panel for a certain period of time in 2019, before later moving to the Criminal Panel.
149 See the article of 24 January, 2020. Available at: https://bit.ly/31Gkuon.
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› “Meltonians’ Case”, the murder of Andranik Meltonian150 on the grounds of a family conflict in Kvemo Kartli. In this case, the lawyers indicated, that court was biased in the process of consideration of testimonies.151 Later the case was taken to the European Court of Human Rights. 152
› In August 2012, considered and did not satisfy the claim of Rustavi District Election Commission, demanding a fine of GEL 1,000 for the Rustavi self-government, military registration and conscription service, for having a United National Movement’s №5 ballot paper and a poster of Mikheil Saakashvili next to it. 153
Bidzina Sturua - The name of this judge is connected with the case of the participants of so-called “Wake up the Oligarch” rally, where the participants were recognized as offenders and were given a warning, which was perceived as a dangerous precedent for restriction of the freedom of expression. 154 He is considering the case of Giorgi Shakarashvili. 155
150 Meltonyan’s Case. Legal Conclusion and Recommendations. NGO „Young Barristers “. Available at: https://bit.ly/3dK6hLN.
151 Ibid.
152 See the article of 3 December, 2019. Available at: https://bit.ly/2Hie5bA.
153 See the article of 5 September, 2012. Available at: https://bit.ly/3dHVHom.
154 See the article of 10 September, 2019. Available at: https://bit.ly/2HazrIe.
155 See the article of 19 October, 2020. Available at: https://bit.ly/37rGvuy.
30