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ABSTRACT
This article focuses on judicial recruitment in post-communist countries and highlights gaps between law and practice which are due to intervening informal dynamics. The case study on Georgia is suitable to explore the power of informality in increasingly formalized systems of decision-making and also in the ones that allocate considerable powers to judges. The article draws inspiration from and contributes to the limited but growing scholarship on informality in judicial governance. It relies on extensive empirical research to discern informal criteria and methods for selecting judges which embody the interests and preferences of the judicial elite and turn elaborate formal rules and procedures into the convenient façade that covers up informal dealings. It signals that recruitment mechanisms, even if structured to eliminate independence-threatening dynamics, can emerge as means of perpetuating the mentality of conformity and help prevent the consolidation of counter-elites willing and able to challenge the dominance of the incumbent leadership.
Acknowledgments
The research leading to this article has received funding from Shota Rustaveli National Science Foundation of Georgia (SRNSFG), Young Scholar Grant, YS 17_23 and the European Research Council (ERC) under the European Union’s Horizon 2020 Research and Innovation Programme (Grant no. 678375–JUDI–ARCH–ERC–2015–STG). The author would like to thank the reviewer for useful comments and also the members of the Judicial Studies Institute for their comments on the earlier versions of this article.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Venice Commission, Opinion No. 403/2006 on Judicial Appointments, CDL-AD (2007)028, Adopted at the 70th Plenary Session, Venice, 16–17 March 2010, para. 29.
2 Bobek (Citation2008); About the failure of institutional reforms in Latin America see Basabe-Serrano (Citation2015).
3 The HCoJ was established in 1997 as a consultative body to the President of Georgia. It organized judicial exams and selected and nominated candidates for judicial positions. Legislative amendments enacted in December 2006 and June 2007 re-defined the status and function of the HCoJ. It became a stand-alone, independent body in which judges occupied the majority of seats and which was chaired by the Supreme Court chairperson. The HCoJ was in charge of appointing judges to the first instance and appellate courts.
4 In the past few years the HCoJ has been reformed considerably in a way that was supposed to expand its powers and reinforce its independence. Currently, the HCoJ has fifteen members, including nine judges, five members elected by the Parliament and one appointed by the President. Eight out of nine judge members are elected at the Conference of Judges. The Supreme Court chairperson is automatically a member, but no longer its chairperson. The chairperson is elected from among judge members of the HCoJ. Importantly, the Parliament-appointed non-judge members are now experts rather than politicians.
5 For the typology of relationships between formal and informal institutions see Helmke and Levitsky (Citation2006, pp. 13–14).
6 I attended the HCOJ meetings on 29–31 December 2017, 4 June 2018 and 30 October 2018.
7 These semi-structured interviews were conducted in May-June 2018 and December 2018-January 2019. Respondents included six sitting judges (three from the Supreme Court, one from the Appellate Court and two from the district/city courts), three former judges (one from the Supreme Court, one from the Appellate Court and one from the district court), two of whom had been court chairs and one of whom had been the HCoJ member; three non-judge members of the HCoJ; one non-judge member of the Disciplinary Collegium, three NGO observers, one representative of the Ombudsperson’s Office, one expert and one politician.
8 None of the acting judge members of the HCoJ I approached agreed to be interviewed. However, I have extensively relied on their public/media appearances.
9 In and after 2015, various Ministers held closed meetings with the judicial leadership to discuss reforms. The Judicial System: Past Reforms and Future Perspectives, Report prepared by the NGO Coalition, May 2017, p. 13; Corruption Risks in the Georgian Judiciary, Transparency International Georgia, Tbilisi, 2018, pp. 25–26.
10 Art. 47 (2) (21) (4) of the Law on Common Courts.
11 The author witnessed this convergence first hand, while attending the HCoJ meetings. The same has been confirmed by the NGOs that consistently monitor the activities of the HCoJ.
12 As an example, three of the current members of the HCoJ (Shengelia, Metopishvili and Mshvenieradze) worked in the Mtskheta Regional Prosecutor’s Office around 2006–2007, prior to becoming judges. Even before that, in the early 2000s two of the three (Shengelia and Mshvenieradze) worked together at the Tbilisi Regional Court. The previous composition of the HCoJ was dominated by the Supreme Court judges (Meishvili, Silagadze, Murusidze). All three also worked at the Tbilisi Regional Court in the early to mid-2000s, two (Silagadze and Murusidze) as clerks and one (Meishvili) as a judge.
13 There have been reports that Levan Murusidze, the former Secretary of the HCoJ and currently the Chairman of the Association of Judges, is godfather to the children of several current and former court chairs. Interview №19, 4 January 2019 (with a former court chairperson). Murusidze confirmed close relationship with the families of judges. See note 27.
14 Reportedly, Irakli Shengelia, the Chairman of the Civil Cases Chamber of Tbilisi Appellate Court (a current HCoJ member) is married to the sister of Levan Tevzadze, the Chairman of the Criminal Cases Chamber at the same court and formerly the HCoJ member. The source of this information is journalistic investigation by Studio Monitor dated 16 July 2018, available at www.monitori.ge (in the interviews, Shengelia has confirmed his connection with Tevzadze).
15 It is also of some relevance that certain courts (Tbilisi City and Tbilisi Appellate Courts) are disproportionately represented in the HCoJ.
16 The proposal allowing judges to elect court chairpersons from among themselves found no support. The HCoJ retained the power to appoint court chairpersons. Hence, the centralized system of appointment remained intact. However, the amendments that entered into force on 1 January 2020 obliged the HCoJ to substantiate the choice of the court chairperson and engage in consultations with judges of the respective court prior to the appointment. See Arts. 23(6) and 32(1) of the Law on Common Courts.
17 Art. 50(2) of the Law on Common Courts.
18 Art. 50(4) of the Law on Common Courts.
19 It has recently emerged as a revelation that Zaza Kharebeva, a parliament-appointed member of the HCoJ, is a close friend of a judge-member of the HCoJ, Irakli Shengelia. Interpressnews (2019), Kharebava: saying that I have no legal experience is funny and immoral, 24 April.
20 On 25 December 2015, three parliament-appointed members of the HCoJ (Gotsiridze, Tordia, Sopromadze) published a statement disclosing that they had voted in favor of appointing the HCoJ Secretary Levan Murusidze for a new (three-year, probationary) term to avoid the judicial faction of the HCoJ blocking appointments. In the current composition, three parliament-appointed members (Kharebava, Kadagidze, Gzirishvili) also routinely vote the same way as judge-members. On 27 December 2018, they reportedly voted for Levan Murusidze, making his appointment for life possible.
21 In order to apply for such a post one must be of a certain age (at least 30 years old), be fluent in Georgian, have acquired an LL.M. or equivalent degree and have five years of work experience.
22 Tsulukiani: 9th of June is a big day for justice in Georgia, Tabula (4 June 2013), available at http://www.tabula.ge/ge/story/71803-tsulukiani-9-ivnisi-martlmsajulebis-istoriashi-didi-dghea, accessed 23 April 2020.
23 Corruption Risks in the Georgian Judiciary, Transparency International Georgia, Tbilisi, 2018, pp. 36–40.
24 A few respondents saw judicial clerks as “the best candidates” due to having “relevant work experience” and “necessary skills.” Interview with a former non-judge member of HCoJ, interview №10, 8 June 2018; Interview with a sitting Appellate Court Judge, interview №13, 28 June 2018.
25 A non-judge member of HCoJ noted:
76% of judges in Georgia are ‘old’ judges, i.e. the ones that worked in the system at various times prior to 1 January 2013 … As for the rest (about 24%), the majority are former assistants to judges and court secretaries, only 16 persons entered the system from the outside in the past five years.
26 An NGO observer, interview №4, 1 June 2018; an expert, interview №7, 5 June 2018.
27 Murusidze emphasized that judges support him “out of respect” and also because he has close “personal relations”, he “knows their families” and “their hardships and successes … ”. He “tries to support them” and sees them as “family members”. See “Levan Murusidze: I see Judges as My family”, Liberali (28 December 2018), available at http://liberali.ge/news/view/42240/levan-murusidze-mimachnia-rom-mosamartleebi-chemi-ojakhis-tsevrebi-arian, accessed 23 April 2020. A former court chair and HCoJ member, interview №5, 1 June 2018 (confirming that certain HCoJ members lobbied their relatives and friends).
28 A former court chair (interview №19, 4 January 2019) pointed out: “this group told certain people: support us, let us win the seats in the Council, and we will defend you. And whoever helped them were re-appointed. Whoever opposed were refused.” According to an NGO observer:
The Council refused re-appointing judges that were considered to be good, competent judges and that had certain protest towards the activities of the Council … . they re-appoint judges that are close and loyal to the influential grouping of judges. On the other hand, judges that are not subservient and loyal to this group are not re-appointed and leave the system.
29 Interview №2, 28 May 2018 (with an NGO observer).
30 Interview №11, 7 June 2018 (with a sitting judge).
31 With the exception of former judges, all applicants must also have passed judicial exams and graduated from the HSoJ before applying for a vacant position.
32 Interview with the former court chair, interview №19, January 4, 2019. The NGOs also criticized the HCoJ for not opening admissions and not conducting judicial exams, thereby precluding the entry of the new cadre. See 6th monitoring report (2018), p. 34.
33 Interview with the former District Court chairperson, interview №19, 4 January 2019 (“There is no guarantee that they will be appointed. The Council may not like the way they look and refuse appointment. This means they risk losing 1–2 years of their lives”). Interview with a sitting district court judge, Interview №17, 21 December 2018 (the HSoJ graduate who was refused appointment several times).
34 A few respondents have characterized the system as closed; see Interview №12, 8 June 2018 (with a sitting Supreme Court judge); Interview №1, 31 May 2018 (with a non-judge member of HCoJ); interview №7, 5 June 2018 (with an expert).
35 A few respondents saw appointment for a probationary term as a means of influencing judges. Interview №7, 5 June 2018 (with an expert); Interview №8, 5 June 2018 (with a non-judge member of the HCoJ); Interview №5, 1 June (with a former court chairperson).
36 6th monitoring report (2018), p. 42. I also attended this interview, held on 29 December 2017.
37 6th monitoring report (2018), p. 42.
38 Interview №12, 8 June 2018 (with a sitting Supreme Court judge), reporting that judges who had relevant experience (for example, of working on civil cases) and a good reputation were rejected, while the HCoJ appointed judges with no relevant experience (e.g. the one who had worked at the prosecutor’s office).
39 Interview №18, 4 January 2019 (with a former non-judge member of the Disciplinary Collegium): “If 2–3 judges meet, the Council will know about it, because they are afraid of such gatherings”.
40 Interview №19, 4 January 2019 (with a former court chairperson): “The court staff as well as judges control who ‘shares’ what, who ‘likes’ what and then these judges are invited and asked to delete posts”.
41 Interview №11, 7 June 2018 (with a sitting judge). A non-judge member of the HCoJ, Nazi Janezashvili similarly claimed that “if you prove loyalty to the ‘clan’, your appointment is guaranteed”. The HCoJ appointed eight judges for life, Liberali (14 February 2019), available at http://liberali.ge/news/view/43159/iustitsiis-umaghlesma-sabchom-8-mosamartle-uvadod-danishna, accessed 23 April 2020.
42 A few days after the Conference of Judges in June 2013, several judges who were members of the Unity of Judges, the newfound association, were insulted through the intranet after they gave interviews to journalists. Insulting statements appeared on the intranet of the judiciary, Netgazeti (16 June 2013), available at http://netgazeti.ge/news/22841/ accessed 23 April 2020.
43 Interview №11, 7 June 2018, with a sitting judge
They do not talk to me. When we go for conferences to Tbilisi, I ask judges: how are you going? They tell me they do not know. But they go with cars and do not leave a place for me. I have to go separately with mini-bus or train.
44 Maia Bakradze, Appellate Court judge and one of the founders of the new “Unity of Judges” association, was refused reappointment.
45 A sitting Supreme Court judge (interview №9, 6 June 2018) noted: “we cannot demand judges to be heroes”.
46 The former HCoJ Secretary Murusidze declared at the interview with the HCoJ on 27 December 2018:
After 2012, there was an internal division or confrontation in the judicial system. This was facilitated externally … my main idea was always to unite the judicial system … . as regards values, the judiciary stood together. This is not a clan. This is relationship based on respect.
Current HCoJ Secretary, Mikautadze noted more recently:
Judiciary is united and very strong. Judges cannot have different opinions about judicial independence, simply because they are supposed to be independent. We are legally obliged to defend judicial system from external interferences, whether it is from the political threats or threats by NGOs.
47 Interview №2, 28 May 2018 (with an NGO observer): “All judges that currently speak on behalf of the judiciary say the same. Moreover, they try to emphasize publicly and signal everyone, where possible, that the judiciary is united”.
48 A non-judge member of the HCoJ argued that judges whose life appointment was about to be considered issued hostile statements about her, thereby demonstrating their loyalty to the “clan”. The HCoJ appointed eight judges for life, Liberali, 14 February 2019, available at http://liberali.ge/news/view/43159/iustitsiis-umaghlesma-sabchom-8-mosamartle-uvadod-danishna, accessed 23 April 2020.
49 Interview №19, 4 January 2019 (with a former court chair):
They operate based on the principle: we are many, the group of 10–12 judges will choose the victim, verbally attacks him/her and observes who joins this assault. Whoever joins is perceived as a member of the group and will get bonuses.
50 Interview №9, 6 June 2018 (with a sitting Supreme Court judge).
51 Interview №16, 13 December 2018 (with a sitting Supreme Court judge).
52 Interview with a sitting Appellate Court judge, Interview №13, 28 June 2018. A different judge of the Appellate Court interviewed recently for the Supreme Court position (Meskhishvili) noted:
I do not like everything, but on the other side, the authority of the judiciary is at stake. When I do not like something I say it very strictly and clearly. But I do not make it public, because it will affect the authority of the judiciary.
53 “The purposes of this association were quite far-reaching and unhealthy … Many of the judges that joined this association were intentionally drawn into the confusion”. Judicial Council member and the Appellate Court chair, Dimitri Gvritishvili, TV Imedi, Kronika (8pm), 11 November 2017.
54 Interview №13, 28 June 2018 (with a sitting Appellate Court Judge); Interview №17, 21 December 2018 (with a District court judge).
55 Initially, the association had about fifty members. Information Leaflet of the Association (January 2014).
56 Interview №15, 12 December 2018 (with a former Appellate Court judge).
57 Interview №15, 12 December 2018 (with a former Appellate Court judge).
58 Spac (Citation2018) (comparing judicial recruitment to a funnel through which candidates are gradually eliminated).
59 The probationary term does not apply to former judges with at least three years of experience as judges as well as former Supreme and Constitutional Court judges. See Arts. 35 and 36 of the Law on Common Courts.
60 5th monitoring report (2017), p. 22.
61 6th monitoring report (2018), pp. 30, 47 (indicating that in 2017 forty-five candidates chose to be interviewed behind closed doors). See also 7th monitoring Report (2019), p. 18.
62 5th monitoring report (2017), p. 5. The observers reported that the questions posed to different candidates varied in terms of complexity.
63 Observers also raised concerns about the participation in interviews of judge members of the HCoJ who were competing for the same positions as the candidates interviewed. 7th monitoring report (2019), pp. 18–19. This practice contradicted the 2017 legislation precluding HCoJ members from participating if they themselves were competing for the position. Art. 353 (4) of the Law on Common Courts.
64 Every HCoJ member gives scores to individual candidates within five days after the interviews. The scores are added up and presented to the HCoJ. Then within two days, the HCoJ will vote on candidates Art. 35 (10) (11) of the Law on Common Courts.
65 NGO monitors witnessed that the HCoJ members left the meeting room to negotiate. Monitoring Report 2012–2014, pp. 6–7; Interview №5, 1 June 2018 (with a former court chairperson and HCoJ member):“There was bargaining in the most direct sense, like one side says: we want to appoint these candidates as judges; the other side says: we want to appoint those. They would reach an agreement and then proceed to appointments”.
66 Interview №8, 5 June 2018 (with a non-judge member); Interview №1, 31 May 2018 (with a non-judge member of the HCoJ).
67 Only candidates who achieve at least 70% of the highest possible score and fulfill the integrity requirement according to the majority of HCoJ members are allowed to proceed to the voting phase. This means that judge members of the HCoJ can block certain candidates if they coordinate, by artificially lowering the scores. While the HCoJ can be taken to court (to be precise, to the Qualifications Chamber of the Supreme Court) for its refusal to appoint a judge, this right is given only to candidates or judges who have sufficiently high scores. See Arts. 354 and 365 of the Law on Common Courts. The legislation allows candidates/judges to challenge the refusal of the HCoJ to appoint a judge if they believe that the HCoJ members discriminated against them, were not impartial, violated the requirements of the law or relied on false information.
68 Transparency requirements may relate to the substance of decisions as well as deliberations and negotiations that form part of the decision-making processes and directly feed into the decision. De Fine Licht et al. (Citation2014).
69 Art. 36 (41) of the Law on Common Courts.
70 Art. 794 of the Law on Common Courts.
71 Art. 364 (12–17) (20) of the Law on Common Courts.
72 By 1 January 2019, 75 judges were appointed for life using such procedure. 7th Monitoring Report (2019), p. 23.
73 Arts. 36 (41) and 794 of the Law on Common Courts. According to the Qualifications Chamber of the Supreme Court which examines judges’ complaints about the HCoJ’s refusal to appoint (decision of 16 April 2018, case no SSK-01-18), in the case of decision-making through open voting individual members of the HCoJ are expected to substantiate their votes; however, where the decisions are made by the HCoJ as a collegial body through secret voting, it is illogical to expect the HCoJ’s members to substantiate the refusal. Under the legislative amendments that entered into force on 1 January 2020 the HCoJ Secretary has to prepare a “substantiation” upon completion of the voting procedure on behalf of the HCoJ, including a description of the procedure and a characterization of the candidate/judge. Any member of the HCoJ can write a separate opinion. Art. 36 (42) of the Law on Common Courts.
74 Qualifications Chamber of the Supreme Court decision of 16 April 2018, case no SSK-01-18.
75 Venice Commission, Final Opinion on the Draft Constitutional Law, CDL-AD (2010)028, 15 October 2010, p. 87; Opinion on the Draft Revised Constitution, CDL-AD (2017)013, 19 June 2017, pp. 80–81.
76 The main argument invoked by the Secretary of the HCoJ in defence of this method of selection was that it was not breaking the law. Another HCOJ member, Gvritishvili, noted: “law did not oblige us to conduct preliminary consultations.” See Ananidze J. For life: what power does Chinchaladze clan have? Netgazeti (27 December 2018), available at https://batumelebi.netgazeti.ge/news/175228/ accessed 23 April 2020.
77 The Secretary of the HCoJ confirmed that the list had been drawn up through informal consultations at the 24 December 2018 meeting which I attended. The list was supported by all members of the HCoJ, except for three non-judge members.
78 The initial list included two current HCoJ members (Mikautadze and Gvritishvili) as well as its former members (Alania, Gabinashvili and Silagadze).
79 The HCoJ Secretary, George Mikautadze, defended the list at the 24 December 2018 meeting. He repeated the argument in his TV appearance. Maestro, on 26 December 2018.
80 Kupreishvili, T. Gvritishvili responds to criticisms with criticisms, Netgazeti (25 December 2018), available at https://netgazeti.ge/news/331481/ accessed 23 April 2020. Judges’ arguments against the third sector, Interview with Mikautadze, Imedinews (26 January 2019), available at https://imedinews.ge/ge/interview/247/mosamartleta-argumentebi-mesame-seqtoris-tsinaagmdeg, accessed 23 April 2020 (“I think the priority and numerical superiority should be given to experienced judges. They should be promoted to the Supreme Court, based on the principle of career advancement”).
81 Interpressnews (2019) Metopishvili: I do not agree with the withdrawal of the list, 9 January.
82 Interview №12, 8 June 2018 (with a sitting Supreme Court Judge):
It is widely believed that judges are appointed mainly from within the justice system. … . I was an advocate before I was appointed to the Supreme Court. I will not hide that sometimes I am told that such appointments were accidental/exceptional and that they failed to stop us entering the system.
83 Art. 34 (3)(4) of the Law on Common Courts.
84 Out of twenty nominees, fourteen were judges of common courts. The list also included sitting and former constitutional court judges. Of the non-judges, two worked for the HCoJ in different capacities.
85 The list included the HCoJ Secretary Mikautadze and former HCoJ members Alania, Gabinashvili, Silagadze and Getsadze.
86 Art. 341 of the Law on Common Courts.
87 The HCoJ members who are candidates do not participate in the selection process. However, the law did not preclude the HCoJ members from assessing their relatives as candidates or their competitors. Two of the candidates under consideration were relatives of the HCOJ members.
88 The Public Defender’s Office made a statement on this overlapping on 28 June 2019.
89 Predictably, the final list transferred to the parliament contained the candidates favored by the ruling elite, alongside those handpicked by the dominant group of judges. Namely, the list included the Prosecutor General, known to have worked as a lawyer to the former Prime Minister, Bidzina Ivanishvili.