The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 7 April, 2017, the Constitutional Court of Georgia adopted the Judgement in the case of “Citizens of Georgia, Mtvarisa Kevlishvili, Nazi Dotiashvili and Marina Gloveli v. The Parliament of Georgia” (constitutional complaint N717).

According to the Judgement, the constitutional complaint N717 was not upheld. The complainants applied for declaration of the rules regulating appointments of appellate and district (city) court judges unconstitutional.

The complainants argued, that the legislation did not provide for requirement of reasoned judgement of the High Council of Justice on appointment of judges, which was incompatible with the right to hold public office enshrined in Article 29 of the Constitution of Georgia. Moreover, candidates of judgeship were deprived of opportunity to appeal against the judgement, which denied their appointment as judges, which violated right to fair trial recognized in Article 42(1) of the Constitution of Georgia.

In the present judgement, the Constitutional Court of Georgia provided important interpretation on the constitutional standards of appointment of judges. The Constitutional Court pointed out, that the right to take public office enshrined in Article 29 of the Constitution includes the requirement that the decisions related to appointments in public office be reasoned. The requirement of reasoning increases accountability of the actors authorized to appoint someone on public position and transparency of the process. Moreover, the risk of arbitrary use of this power is reduced. The Constitutional Court interpreted, that this requirement applied to the decisions related to appointments of judges adopted by the High Council of Justice of Georgia.

As to the meeting of requirement of reasoning, the Constitutional Court pointed out that in the process of appointment of judges, the decision adopted in view of the specificity of respective criteria, is generally based on the range of objective and subjective criteria. To ascertain compatibility with the objective criteria, to provide reasons for decision and then to review it is not difficult and objective review of the appropriateness of decisions is possible; whereas it is a complicated task to provide reasons on compatibility with subjective criteria and then to review that reasoning. It is hard to explain the decision on this issue in objective terms, to give reasons, to review reasoning and to identify/check whether the solution is correct or not. However, the route that the decision-maker took in order to arrive at the decision can be reviewed objectively. In view of this, reasons should be provided for decisions on selection of judges based on any subjective or objective criterion. However, the requirement of reasoning may be of differing degree in view of the nature of criterion.

Ascertaining the content of the disputed provisions, the Constitutional Court took into account the normative realm formed after adoption of amendments to the Organic Law of Georgia on Common Courts on 8 February, 2017.

The Constitutional Court reviewed the rules regulating appointments of judges and declared that the stage of appraisal of candidates is a certain form of reasoning for its decision by the High Council of Justice. As part of the appraisal, each member fills out evaluation form according to the predetermined criteria. The evaluation form serves to find compatibility of a candidate with objective and subjective criteria. Namely, the candidate for judgeship is selected based on two criteria – conscientiousness and competence.

The Constitutional Court reviewed the legislation in force at the moment of adoption of the judgement and interpreted, that the legislation provided for division of the conscientiousness component into characteristics. For evaluation of each characteristic as part of the consientiousness component, the issues that should be taken into account were structured as objective categories. The disputed legal act also provided rule for appraisal by each component. In the process of evaluating a candidate for their competence, a member of the High Council of Justice of Georgia gives a candidate appropriate scores according to the pre-determined standards of scoring. Namely, the legislation determines the maximum number of scores for each characteristic.

The next stage of appraisal of candidates is voting. This stage takes form of secret ballot and in this part, the members of the High Council of Justice do not indicate those factual premises, which led them to their decision. Despite the fact, that the legislation does not require reasoning for the results of voting from the High Council of Justice, in view of the entire process of competition, it is clear how the High Council of Justice arrived at its final decision. Prevention of discriminatory and biased decisions is ensured through the mechanisms of appeal. Based on these arguments, the Constitutional Court of Georgia decided, that the rules disputed by the complainants did not contradict the requirements of right to hold public office and the constitutional complaint was not upheld in this part.

According to the explanation of the Constitutional Court of Georgia, it is the requirement of the right to fair trial enshrined in Article 42(1) of the Constitution, that appeal against any rights restrictive act before the court be ensured in line with the constitutional standards. This constitutional stricture, also applies, with due regard to its specificity, to appeal of the decision adopted to deny a person appointment as judge.

In view of the complainant, the subject of the judicial review should be the both, procedural as well as substantive issues of the decisions of the High Council of Justice, such as, whether candidate was treated discriminatorily, whether there was arbitrariness on the part of the High Council of Justice, whether the judgement was based on the criterion that was not pre-determined.

The Constitutional Court of Georgia indicated in its Judgement, that under the version of the Organic Law of Georgia on Common Courts currently in force the problem named by the complainant as ground of unconstitutionality of the disputed provision was solved. The legislation contains the possibility to appeal against the decision of the High Council of Justice of Georgia on the ground that was problematic for the complainant. Therefore the challenged provisions were not found unconstitutional with regard to Article 42(1) of the Constitution.

The dissenting opinion of the Judges Maia Kopaleishvili, Irine Imerlishvili and Giorgi Kverenchkhiladze is appended to the Judgement.