The Venice Commission has issued an urgent opinion on the selection and appointment of Supreme Court Judges of Georgia.

According to the Commission, according to the information received by the delegation of the Venice Commission during its meetings in Tbilisi, the HCoJ enjoys a fairly low trust by a large segment of society at the moment. “The Venice Commission is in no position to evaluate whether this lack of trust is warranted or not. Nevertheless, the fact that the HCoJ – in its current situation – will be selecting nearly all the candidates for judges of the Supreme Court, producing a list which will then be submitted to a political majority in Parliament (in between elections), which in turn will appoint nearly all the Supreme Court judges, should be a matter of concern. This may be detrimental to the high level of public trust that an institution such as the Supreme Court must enjoy in a country. It may even be argued that the long-term risks are far greater in a society that is characterised by political polarisation, which the delegation was told during its visit in Tbilisi is the situation in Georgia today.

In the light of the above observations, consideration might be given to having the fixed term of office of the current Supreme Court judges transformed to lifetime appointments. The rationale behind this suggestion is to ensure that at least 11 experienced judges continue to serve in the Supreme Court and thus (a) the extent to which an entirely new Supreme Court is created by Parliament is mitigated to some extent and (b) a number of more experienced judges, and not only total newcomers, will be adjudicating cases and contributing to the stability and consistency of the Supreme Court’s work.

In addition, notwithstanding Article 61.2 of the new Constitution, Parliament should only appoint the number of Supreme Court judges which is absolutely necessary to render the work of the Supreme Court manageable. How many new judges will be needed to achieve this should be decided after consultations with the Supreme Court. The number should not exceed half of the 18 to 20 positions that will be vacant. Further appointments may then be made by Parliament elected at the next general elections. Such a staggered approach in the appointment of all the Supreme Court judges may both alleviate the present burden on the Supreme Court and ensure that it enjoys the public trust and respect it deserves in the long run,“ reads the report.

As for the key recommendations of the Venice Commission, they are the following: • A higher age requirement and more emphasis on a candidate’s experience as well as judgment, independence and diversity should be provided in the eligibility criteria; • The requirement for non-judge candidates to have passed the judicial qualification examination should be reconsidered because, as indicated above, only “specialist of distinguished qualification in the field of law” may be non-judge candidates for the Supreme Court. Persons with such qualifications should not be forced to sit an examination to prove that they are capable of dealing with points of law, which is the essence of the work of a Supreme Court; • Conducting secret ballots in the High Judicial Council should be abolished; information regarding the qualifications of candidates should be made public and the procedure should be based on the objective criteria on which each candidate is evaluated, producing a pool of candidates who satisfy these criteria. Within this pool, the candidates should be ranked according to the scores they have obtained during the evaluation procedure. This will allow a list of the best candidates to be presented to Parliament; CDL-PI(2019)002 - 14 - • Reasoned decisions regarding the selection and exclusion of candidates must be produced, with the possibility for a judicial appeal (see Article 354 of the Organic Law on Common Courts); • A member of the High Council of Justice, who is a candidate for judges of the Supreme Court, should be excluded from all procedures pertaining to the selection and nomination of these candidates. Other recommendations include: - The procedure for the appointment of a Supreme Court judge should be initiated before the end of a judge’s term of office so as to ensure that the Supreme Court is not short of judges; - An anti-deadlock mechanism is needed for situations in which candidates have received the necessary number of votes to be nominated to the second ballot, but not 2/3rd of the required votes, if this requirement is kept.