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

The Constitutional Court of Georgia upheld the constitutional complaint (N659) of the citizen of Georgia, Omar Jorbenadze versus the Parliament of Georgia on 15 February, 2017.

The rule challenged by the complainant provided for appointment of the judges of the appellate and district/city courts for three years prior to their lifetime appointment as judges. Only upon expiration of this term would the High Council of Justice adopt a decision on lifetime appointment of a judge.

In view of the complainant, the disputed provision was unconstitutional, as no trial period before lifetime appointment should be applied to those persons, who already had at least three-year experience of serving as judge. The respondent explained, that it was legislator’s intent to set the high standards for lifetime appointment of judges, which at the end of the day served the independent and competent administration of justice.

The Constitutional Court stated in its Judgement, that appointment of a judge for the defined period was related to examination of those skills and features of a person, which would be difficult to explore without the analysis of the practical work of a judge. However, there are candidates for judgeship, who already have three-year experience as a judge. Therefore it is possible to evaluate the work they have done as judges and to ascertain in this way if the candidate meets the high standards applicable to the office of a judge. Thus in case of those persons, who already have 3-year experience of serving as judges and it is objectively possible to study their work, additional application of the period defined in the disputed provision was considered as unjustified barrier and was declared as unconstitutional with regard to Article 29(1) of the Constitution.

Moreover, the Constitutional Court also indicated that for the purposes of lifetime appointment of judges candidates of judgeship who have no less then three-year experience of serving as judges and the candidates, who do not have such experience are substantially unequal. The disputed provision, while setting forth the general rule of appointment of judges, treats unequals equally without objective need and thus contradicts the right to equality under Article 14 of the Constitution of Georgia.

In view of all the above-mentioned, the Constitutional Court of Georgia declared unconstitutional that normative content of Article 36(4¹) of the Organic Law of Georgia on Common Courts, which provided for appointment for three years of judges of appellate and district (city) courts, who were former judges or currently serving as judges and had experience of serving as judges for no less then three years.

The Constitutional Court did not rule out, that in certain cases, if a long period has passed since serving as a judge or there are other objective circumstances, it may be difficult or impossible to evaluate the past work of a candidate. Moreover, undertaking of evaluation of the past work of a candidate for judgeship requires due legislative regulation. Therefore the Constitutional Court decided, that the legislator should be give a reasonable time, in order to fulfill its constitutional obligation and draft the legislative regulation, which would protect constitutional rights of a person, on the one hand and would avoid damage to the public interest, namely exclude the risk, that unfit candidates would be appointed as judges for their lifetime, on the other hand. In view of this the disputed provision was declared invalid from 1 July, 2017.