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Irakli Kobakhidze: “[In regard to the Supreme Court judges,] it was done precisely in line with Charles Michel’s document.”

Verdict: FactCheck concludes that Irakli Kobakhidze’s statement is a LIE.

Resume: According to the 19 April agreement, appointments to the Supreme Court should have been paused until the Venice Commission recommendations had been taken into account. On 28 April 2021, the Venice Commission welcomed amendments to the legislation, although added that it was recommended to consider modifying the composition of the High Council of Justice and restart the selection procedure in order to ensure that there was an equality of treatment of candidate for judges. Of note is that the ruling party has not yet implemented these recommendations. At the same time, statements of the US Department of State, the OSCE’s Office of Democratic Institutions and Human Rights (ODIHR) and the European Commission spokesperson directly highlight that the 19 April agreement means pausing appointments of judges and, therefore, the decision of the Parliament of Georgia to appoint six judges to the Supreme Court constitutes a breach of the agreement’s provisions. In addition, the US Embassy’s statement unequivocally says that the amendments to the Law of Georgia on Common Courts, which the Georgian Dream considers to be the implementation of 19 April agreement, are inconsistent with the letter and the spirit of Charles Michel’s agreement.

Analysis

On 14 July 2021, Chairperson of the Georgian Dream, Irakli Kobakhidze, speaking on the permanent appointment of judges to the Supreme Court, stated on air on TV Rustavi 2 that the Georgian Dream had not breached the 19 April agreement by the appointment of the judges: “I can say that what we did in regard to the appointments of Supreme Court judges is exactly in line with what was agreed verbally and put in writing in Charles Michel’s document. Precisely what was written in the document was done. There was a pause, we adopted a law which is fully in line with the Venice Commission recommendations. Afterwards, as written in Charles Michel’s document, a new call vis-à-vis document submission was announced for additional candidates and the process resumed only afterwards.”

On 19 April 2021, the government and the parliamentary opposition concluded negotiations brokered by the European Council President, Charles Michel, and signed a five-point plan which aims to overcome the political crisis in the country and strengthen democratic institutions. One of the chapters of Charles Michel’s agreement is devoted to the rule of law and judicial reform. It says that “in this parliamentary term, as the first step in a broad, inclusive and cross-party reform process, the Parliament should adopt ambitious judicial reform” and lists different provisions, including: b) submit to the Parliament draft legislation on the appointments to the Supreme Court in line with the related Venice Commission opinion No. 949/2019 of 24 June 2019, notably as concerns the staggered approach to appointments, open voting in the High Council of Justice and the need for the High Council to justify the nominations and c) refrain from making appointments to the Supreme Court under the existing rules.

In regard to provision ”b,” in particular about the adoption of legislation in line with the Venice Commission’s recommendations, the authorities claim that it was implemented prior to signing the “Charles Michel Document” and the government adopted the new law.

The law (amendments to the Law of Georgia on Common Courts), which concerns the selection and parliamentary nomination procedure of candidates for Supreme Court judges by the High Council of Justice and which is highlighted by the ruling party members, was unanimously (86 votes in favour) and in accelerated manner adopted by the Parliament of Georgia on 1 April 2021. It should be emphasised that the Parliament adopted the law prior to signing the “Charles Michel Document” and without consulting the political parties.

Local organisations and international partners voiced their criticism vis-à-vis amendments to the law. Their critique mostly concerned the hasty manner of the adoption of the changes, the lack of transparency of this process and the fragmented nature of the amendments themselves. The Coalition for an Independent and Transparent Judiciary assessed the draft law as fragmented and ‘completely detached’ from the reality of the country. According to the Coalition, the new amendments cannot improve the process or enhance trust among the public. On 7 April 2021, the EU issued a statement in regard to the legislative changes adopted by the Parliament a week earlier. According to the EU spokesperson for foreign affairs and security policy, the EU welcomes the initiative to amend the legal framework of the selection process, although is disappointed that the legislation was amended hastily and without an inclusive consultation process. The EU recommended that Georgia request a Venice Commission assessment as soon as possible on whether or not the adopted amendments comply with its previous recommendations whilst the new rules, once confirmed by the Venice Commission, need to apply equally to all applicants. Of note is that in the aftermath of this criticism on 8 April 2021, the Parliament of Georgia sent the already adopted to amendments to the Venice Commission for the final revision.

On 28 April 2021, the Venice Commission published its opinion where the Commission welcomes amendments to the Law of Georgia on Common Courts, since they have taken into account several recommendations of the Venice Commission. However, the Commission believes there are a number of outstanding recommendations that Georgia should additionally reconsider. Given all of these circumstances, the Venice Commission made three key recommendations. According to its opinion, the composition of the High Council of Justice needs to be modified. In addition, the appointment procedure should be suspended until a decision is rendered by the Qualification Chamber of the Supreme Court. Furthermore, since amendments adopted on 1 April 2021 opened an opportunity for submitting additional applications for a competition launched under the old legislation to select the Supreme Court judges, the Venice Commission highlighted the need to restart the selection procedure in order to avoid any unequal treatment of candidates.

On 5 April 2021, prior to sending the adopted amendments to the Venice Commission, the High Council of Justice announced a call for additional applications to select candidates for the Supreme Court who were to be nominated to the Parliament. Only three candidates, aspiring to become Supreme Court judges, used the additional time to submit documents. Of note is that despite the Venice Commission’s aforementioned recommendations, the selection procedure was not restarted.

On 21 May 2021, representatives of the diplomatic corps addressed the Speaker of the Parliament to stop the appointment of the Supreme Court judges and High Council of Justice members before undertaking judicial reform. They also highlighted commitments taken under “Charles Michel’s Document’ and stated that financial aid to Georgia would depend on fulfilling these commitments. On 24 May 2021, the US Ambassador to Georgia, Kelly Degnan, stated that the ongoing appointments of judges are inconsistent with the 19 April agreement between the political sides.

Despite these calls, the High Council of Justice selected four judge members at the snap conference of judges on 26 May 2021. On 17 June 2021, the High Council of Justice voted for nine judges nominated for permanent Supreme Court positions and sent the list of judges to the Parliament.

The US Embassy to Georgia again responded to this development. US Ambassador Kelly Degnan stated on 19 June 2021 that the appointment of the new Supreme Court judges is inconsistent with the spirit of the 19 April agreement between the parties. Later on 24 June 2021, the US Embassy highlighted and tweeted those provisions of the 19 April agreement which concerned the appointment of the Supreme Court judges and said that according to the statements, the ongoing appointments have to be stopped.

On 9 July 2021, the OSCE’s Office of Democratic Institutions and Human Rights (ODIHR) published its third interim report. According to the report, despite certain progress in transparency and accountability, the flaws in the nomination process of Supreme Court candidates may undermine judicial independence. In particular, “the procedures pertaining to applications, background checks and interview preparation established by the High Council of Justice for these nominations fell short of international standards.” The report also says that Parliament’s taking nine nominations for judges, submitted by the High Council of Justice, and preparing to proceed to a vote on their appointments, was contrary to the 19 April agreement.

Despite harsh criticism from international partners and open calls to respect the 19 April agreement, the Parliament of Georgia appointed six permanent Supreme Court judges on 12 July 2021.

The Parliament’s decision sparked even harsher criticism from international partners. On 14 July 2021, a European Commission spokesperson issued a statement in regard to the appointment of Supreme Court judges which says that the appointments go against the key provisions of the 19 April Agreement. The spokesperson urged the ruling party to observe all of the recommendations of the Venice Commission and stated that respecting these commitments is a mutually agreed condition for the disbursement of the second tranche of EU macro-financial assistance to Georgia which could be negatively affected by this step.

The US Embassy expressed its position vis-à-vis the appointment of the judges. The Embassy’s statement, issued on 15 July 2021, reads that appointments are inconsistent with the 19 April agreement. In addition, the US Embassy concludes that legislative changes enacted prior to the 19 April agreement are unilateral and inconsistent with the letter of the agreement as well as they were adopted against the advice of international partners.

On 16 July 2021, the US Department of State also issued a statement. The statement says that the United States is deeply troubled by the Georgian Parliament’s July 12 approval of six Supreme Court nominees in contravention of the April 19 agreement between ruling and opposition party representatives. It emphasised that the failure to implement the agreement would further undermine the confidence of the Georgian public and the international community in Georgia’s judiciary and risk undermining the country’s democratic development, weaken investor confidence and diminish Georgia’s political resilience. The US Secretary of State, Antony Blinken, also issued a similar statement.

Given all of these circumstances, Irakli Kobakhidze’s statement that the appointment of judges is in line with the 19 April agreement is a LIE. According to the 19 April agreement, the appointment of judges should be paused until the implementation of the Venice Commission’s recommendations. On 28 April 2021, the Venice Commission welcomed amendments to the legislation, although added that it was recommended to consider modifying the composition of the High Council of Justice and restart the selection procedure in order to ensure that there was an equality of treatment vis-à-vis candidates for judges. Of note is that the ruling party has not yet implemented these recommendations. At the same time, the statements of the US Department of State, the OSCE’s Office of Democratic Institutions and Human Rights (ODIHR) and the European Commission spokesperson directly highlight that the 19 April agreement means pausing the appointments of judges and, therefore, the decision of the Parliament of Georgia to appoint six judges to the Supreme Court constitutes a breach of the agreement’s provisions. In addition, the US Embassy’s statement unequivocally says that the amendments to the Law of Georgia on Common Courts, which the Georgian Dream considers to be the implementation of 19 April agreement, are inconsistent with the letter and spirit of Charles Michel’s agreement.


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