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Judges' Pre-Election Migration

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Judges' Pre-Election Migration 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
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