In important respects, the new amendments represent progress for the independence of the High Judicial Council because they redress several shortcomings of the existing legislation, the Venice Commission report says.
According to the report, at present, the High Judicial Council (hereinafter “the Council”) consists of 15 members.
‘’The members are: the Chairman of the Supreme Court, eight other representatives of the judiciary, four members elected by the Parliament (who were replaced following the recent parliamentary elections under Article 48.3 of the organic Law on the Courts of General Jurisdiction) and two members appointed by the President.
According to Article 86.1 of the Constitution of Georgia the judicial component of the Council is meant to be elected by the self-government body of the judges, that is to say, by the Conference of Judges. However, the Organic Law as it stands at present provides that the candidates must be nominated by the Chairman of the Supreme Court. In other words, he or she has the exclusive power of nomination. In addition to this, it is provided that the Conference of Judges has an administrative committee which can exercise functions in the period between sittings of the conference. Under Article 65b of the Organic Law, these functions include the power of electing judicial members of the High Council. In the light of
Article 86.1 of the Constitution this seems of doubtful constitutionality. The delegation learned that several of the current members of the High Judicial Council were indeed ‘elected’ by the Administrative Committee and not by the Conference of Judges. However, these appointments were not challenged in court.
In important respects, the amendments represent progress for the independence of the Council because they redress several shortcomings of the existing legislation
Thus, - 8 judges will be elected by the Judicial Conference on a proposal from the judges themselves (new Article 47.4); - Parliament will elect 6 members of the Council chosen from “the scholars working in the high educations institutions, members of a non-profit (non-commercial) legal persons working in the field of law and / or the members of the Georgian Bar Association, based on the recommendations of the managerial authorities of the same organization” (new Article 47.5); - the amendments introduce the secret ballot for the elections of the members of the Council (new Article 64.2).
These significant changes are welcomed.
As concerns the removal of the power of the President to appoint some of the members of the Council, while this is in principle a positive step, it would contradict Article 73.1.e of the
Constitution, which will enter into force in October 2013 and which provides for appointments by the President (however, under the new Constitution, the President will no longer be the head of the executive).
However, there remain certain controversial provisions.
Ban from election of chairmen of courts and chambers
Article 47.4 provides that “the chairman of a Court, the first deputy chairman, the deputy chairman, the chairman of boards and chambers and any persons who have held any of the listed positions during the previous year cannot be elected by the Judicial Conference of Georgia”.
During the visit, the delegation of the Venice Commission was informed that an overwhelming majority of the judicial component of the High Council are presidents of courts or of chambers of the Court (in addition, the delegation was informed that several of them had been elected by the Administrative Committee rather than by the Conference of Judges).
It is easy to understand the desire to ensure that the High Council does not represent the senior judiciary only. However, if the Council is to represent the judiciary as a whole then in principle it seems wrong to exclude any member of the judiciary from the possibility of being elected.
The suggestion has also been made that to permit a person to be both a manager of a court and a member of the Council, who has important powers, concentrates too much power in the hands of the individual or individuals concerned. However, the Commission was informed that not all of the chairs concerned exercise administrative functions (e.g. chairs of boards). These arguments may only concern those chairs who exercise administrative functions.
A further argument is that to permit chairmen of courts to sit on the Council might create, in some cases, a conflict of interest.
The Venice Commission is of the opinion that it is for the electors to take these arguments into account when deciding whether a colleague deserves to be trusted with the power that a mandate in the Council provides. Moreover, the above arguments have, in a way, lost considerable weight, now that the election of members of the Council will be done by secret ballot.
The logic behind the establishment of judicial councils suggests that as few limitations as possible be laid on the right of the judges to elect who, among their colleagues, they might wish to represent them in the Council.
The Commission is cognisant of the concerns expressed by many interlocutors met during the visit. If the Georgian authorities consider these concerns to be imperative, it could be envisaged that the Law limit the maximum number of chairmen who could sit on the Council.
Alternatively, the amendments could provide that should a chairman of a court be elected in the Council, he or she would have to resign from his or her position as chairman while of course retaining his or her position as an ordinary judge.
Election of members by the Parliament
The new Article 47.5 provides that “The Parliament of Georgia by a majority of its members elects 6 members in the High Council of Justice”.CDL-AD(2013)007 - 8 -
The Venice Commission is of the opinion that elections from the parliamentary component should be by a two-thirds qualified majority, with a mechanism against possible deadlocks or by some proportional method which ensures that the opposition has an influence on the composition of the Council.
It is a matter for the Georgian authorities to decide which solution is appropriate, but the anti-deadlock mechanism should not act as a disincentive to reaching agreement on the basis of a qualified majority in the first instance2.
This recommendation concerns all the cases where the law provides for qualified majorities’’, the Venice Commission report says.