Transparency International Georgia evaluated the existing legal regulations and established practices for promotion at the Georgian Courts. The study analyzes decisions made by the High Council of Judges on the promotion of judges in 2015-2020. The study has shown that the promotion system is uses by the clan of influential judges as one of the important levers to maintain internal influences.
“In transitional democracies, merely establishing high standards for the promotion of judges cannot ensure the effectiveness of the justice system. It is important that, in the process of promotion, the dangers emanating from the influential judges within the judiciary that may infringe upon the independence of individual judges are taken into account;
The existence of a “captured” High Council of Justice (HCJ) threatens the [efforts] to ameliorate the judiciary and to make it truly independent. The power concentrated in the hands of the HCJ allows it to engage in manipulation using appointment/promotion of judges and staff-related decisions. In such a situation, dangers of nepotism and favoritism appear, which strengthens governance which is based on the principles of corporatism.
The key problem with judicial promotion is the use of the powers granted by the HCJ for unsound purposes. When a judge is transferred to a court of a higher instance, no staffing needs of a specific court are considered. The interviewing process is also superficial and non-essential: it only lasts a few minutes and is mainly concerned with the candidates’ motivation; given the lack of substantiation for the decisions made by the HCJ by secret ballot, it is unclear whether the HCJ does indeed apply the established rules and criteria based on merit when it gives preference to a specific candidate.
The HCJ is not consistent with regard to the process of making staff- related decisions. Interestingly, 35 judges have been promoted without competition since 2015, the judges are transferred from various courts mainly to Tbilisi Court of Appeals. There are only three cases when judges were transferred to Kutaisi Court of Appeals. The trend of transferring judges mainly to Tbilisi Court of Appeals raises questions, considering the fact that district courts suffer from the lack of judges a lot more; another example illustrating this situation is the promotion of Judge Nino Sharadze by transferring her from the Civil Cases Panel of Gori District Court to the Administrative Cases Panel of Tbilisi Court of Appeals, as a result of which Gori District Court did not have a judge to consider civil cases for six months.
The existing rule of judicial promotion is mainly used by the HCJ to carry out a so-called rotation of judges between courts. Precisely this kind of staff manipulation allows the so-called clan to maintain its influence within the judiciary. For example, in November 2019, Vasil Mshvenieradze was promoted from his judicial post in the Administrative Cases Panel of Tbilisi Court of Appeals to the Investigation Panel of the same court. After that, by the order of 31 July 2020, he was transferred to the Civil Cases Panel of Kutaisi Court of Appeals. Furthermore, Mshvenieradze replaced Dimitri Gvritishvili as the chairperson of Kutaisi Court of Appeals, while the latter was transferred to Tbilisi Court of Appeals, also by the order of 31 July 2020. Since December 2020, Mshvenieradze has been back in Tbilisi Court of Appeals as a judge on the Civil Cases Panel and the chairperson of the court.
The existing practice of judicial promotion threatens to eliminate a possibility of more qualified judges getting into courts of higher instances. Considering the reality prevailing in the judiciary and the unsubstantiated decisions made, it remains unclear for an objective observer whether or not judges are selected based on the established criteria. Furthermore, the opaque procedure makes it possible to prevent a promotion of a candidate, who demonstrates better results in terms of integrity and competence”, - reads the report.