The Coalition for an Independent and Transparent Judiciary evaluates the judicial selection competition

The Coalition for an Independent and Transparent Judiciary assesses the judicial selection competition announced by High Council of Justice to fill 65 vacant positions.  By now the interviews of all candidates have been completed. The Council’s decision with respect to selected candidates will be publicized later. 

From the Coalition’s point of view, once again the interviewsrevealed the gaps and problems in the system of judicial selection and appointment process, which exist not only at the statutory level, but also in practice.  Moreover, the Coalition negatively assesses the fact that the High Council of Justice did not wait for the decisions of the two main constitutional institutions – the Parliament of Georgia and the Constitutional Court concerning the rules for judicial selection and appointment process.  The competition was held in haste, without following the established procedure. 

The Coalition negatively assesses the following problems identified during the interviews:

- Knowledge and sensitivity of the majority of the candidates to the issues related to human rights was unsatisfactory;

- The content and the format of interviews appeared not to be aimed at checking whether the candidates corresponded to established criteria or not;

- Non-structured interviews and questions with different content placed candidates in unequal positions;

- In some instances, leading questions were asked.  There were several unethical questions too. 

- For the first time during the last few years, interviews with several candidates were closed. 

- It needs to be noted that during the interviews the conflict of interest was avoided due to the individual decisions of the specific members of the Council.  However this issue needs to be resolved at the legislative level.

- Unreasonable delays in judicial reform that can be attributed to the Parliament of Georgia and Ministry of Justice of Georgia, neglectful approach of the High Council of Justice to the process of reform and a haste with which it selects judges undermines objectivity and the merit-based nature of the process.  This undermines public trust in the judicial system, judicial independence, impartiality and quality of justice and goes 

against the interests of the justice system.   

The following problems were identified during the judicial candidate interviews

• Interviews were conducted in haste and the regulations governing them were problematic

The public is aware of the ongoing legislative reform of the judicial selection and appointment process.  Initiation of this reform indicates the fact that the state recognizes shortcomings of the selection and appointment regulations. The Parliament of Georgia has already adopted the Third Wave legal drafts at the first and second readings.  In parallel with this process, Constitutional Court is considering whether the rule currently applied by High Council of Justice is in compliance with the Constitution. On June 14, 2016 the issue of constitutionality of the current rule for judicial selection and appointment was discussed in the main hearing at the Constitutional Court.  The hearings are now completed and the society is awaiting the decision.   Despite these circumstances, High Council of Justice carried out the judicial selection competition while ignoring the fact that the opinions of these two important institutions regarding the exiting rule would become known. 

It also needs to be noted that the Council’s actions do not relieve Ministry of Justice and Parliament of Georgia of their respective shares of responsibility for delays related to the reform.

• Interviews were carried out in violation of the procedures established by the Council 

Despite the fact that the current rule for judicial selection is flawed and requires fundamental revision, it needs to be noted that the Council did not act in compliance with the rules that it had adopted.  More specifically, according to the High Council of Justice Decision #1/308 on the Introduction of Judicial Selection Rule from October 9, 2009, the Council carries out a background search prior to the interviews.  In 30 days or less the results of the background search are presented to the Council. At this stage any interested individual has a right to provide information on a judicial candidate to the Council.  A candidate has a right to familiarize herself with the information at Council’s disposal in not less than 5 days prior the interviews.  A member of the Council is obliged to fully study the information and documents in 15 days after the date when this information was submitted to her.

The Council received information on the number of candidates in the June 6, 2016 meeting.  The candidates’ short biographies were published on June 7th.  The first interviews were held on June 10th.  It is questionable whether background search provided in the regulation established by the Council had been carried out or not in relation to the candidates.  It also needs to be noted due to the speed, interested parties were deprived of the right to provide candidate-related information to the Council.

• The questions asked during interviews did not appear to serve the objectives defined in the law        

A judicial candidate interview shall be aimed at detecting conformity of a candidate with the established criteria.  However, the nature of the questions asked, variations in their complexity and content when directed to different candidates as well as contradiction between the format of interviews and their objectives made interviews formalistic and raised questions in relation to their actual aims.

• Unequal treatment of candidates   

The interviews were not structured.  The nature of questions that were asked significantly varied.   Some candidates were not asked the questions that would assess their professional competence.  In certain cases it was not clear which criterion established in the Council’s Decision did a question correspond to.   Some candidates were inquired only about specific high profile cases that that they were involved as judges.  Other candidates, also engaged in certain high profile cases, were not asked similar questions.

This practice demonstrates uneven approaches of the Council to different candidates thereby creating unequal environments for candidates. 

• Problems related to the form and content of questions

During interviews candidates’ opinions were sought on nongovernmental organizations and the public’s ‘excessive criticism’ in relation to the court.  Such questions led candidates to specific answers implied by an examiner.  Asking such questions during interviews is unethical and unjust in relation to candidates. 

In some instances the content of specific questions was also unacceptable. For example, in one of the interviews, a candidate was inquired about how she would approach a potential suit by a Council member. Considering the possibility that such proceedings can become real and this particular candidate may have to consider this dispute, it is inappropriate to ask her to preliminarily develop a position on a specific case. 

There were instances when a member of the Council (and not the Chair) announced that the interview was completed.  This deprived other Council members of the right to ask additional questions if they wished to do so.

• Poor assessment of candidates’ sensitivity to human rights

On a positive side it needs to be noted that during the first three days of interviews some members of the Council asked questions on human rights and specifically on the rights of marginalized groups.  Later this practice was not continued.  This could have been caused by the fact that some members showed dissatisfaction with this type of questions.  Usually the questions concerning human rights were basic (for example, what does LGBT mean? What is an absolute right? What are the fair trial criteria?) They did not require analytical judgment or argumentation.   However, the answers given in response to these questions demonstrated that the knowledge of the majority of candidates and their sensitivity to human rights was highly inadequate. 

• Conflict of interest  

Two members of the Council who competed with other candidates applying for the same positions recused themselves from interviews of these candidates.  This fact deserves a positive assessment.  The Council members declared that they would not take part in voting for these candidates and also for themselves.  However, despite a demonstration of individual responsibility, systemic resolution of the conflict of interest issues in the Council’s work was not achieved.  This may undermine independence and impartiality of several decisions made by the Council.  It was also deeply problematic that Council members who were judicial candidates were asked exactly the same questions as other candidates.  Therefore, the Council members taking part in the competition were familiar with the questions that they were later asked.  This put them in a privileged condition compared to other candidates. 

• Openness of interviews 

For the first time in recent years interviews of several candidates were closed.  The rule established by the High Council of Justice provides for closing meetings in which interviews are conducted.  The public criticizes this rule.  Despite this regulation, the Council is conducting interviews which are open to observers.  For the recent period the Council established the practice of asking candidates whether they wanted to be interviewed in presence of observers.  In previous competitions candidates would usually agree and interviews would be open.  During the ongoing competition four candidates refused to be interviewed openly and the Council closed the interviews.  It needs to be noted that this time the members Council members did not simply ask the question about whether the candidates wanted to be interviewed in presence of the representatives of public.  Instead, after receiving a positive answer, they asked additional questions that led candidates to rethink their decision (for example, the question was: Do you want your interview to be uploaded on youtube or aired on TV)?  This way the Council tried to prevent publicity of interviews.

Candidate interviews constitute the only open phase of the selection and appointment process (the discussion that follows the interviews as well as the process of voting are closed).  Open interviews contribute to the detection of problems in the selection and appointment process.  These problems become known to public and thereby can be addressed.Open interviews facilitateassessment of the selection and appointment process, which is a highly important component of the Council’s work.  Openness is conducive to the improvement of the quality of justice and public trust in the court system.