Shalva Papuashvili: “There are no remarks from the Venice Commission about amendments to the Law on Common Courts.”

Verdict: FactCheck concludes that Shalva Papuashvili’s statement is FALSE.

Resume:

The Venice Commission published its assessments on Georgia’s draft laws – one about de-oligarchisation and the second on the amendments prepared as part of court reform. Both of them were produced as part of European Union’s 12 priorities set for Georgia to obtain EU candidate status and were sent to the Venice Commission and the ODIHR before the final vote.

According to the opinion of the Venice Commission about the draft amendments to the Law on Common Courts, the draft law did not address some of the norms that were previously included in the Venice Commission’s recommendations. The other parts, however, were addressed although these amendments did not take into account the Commission’s recommendations. According to the Venice Commission’s documents, there are only a few norms where the recommendations it previously issued were reflected.

In its assessment on the draft amendments to the Law on Common Courts, the Venice Commission notes that the draft amendments are limited in scope and do not provide a holistic reform of the Law on Common Courts. At the same time, the document says that the main recommendations it issued in 2019-2022 still remain unaddressed. Therefore, FactCheck concludes that Shalva Papuashvili’s statement that there are no remarks from the Venice Commission on the Law on Common Courts is FALSE.

Analysis

On 14 March 2023, the Parliament of Georgia published the conclusions of the Venice Commissions about the Law on De-oligarchisation and the draft amendments to the Law on Common Courts. This was declared by the Speaker of the Parliament, Shalva Papuashvili, at a briefing in Georgia’s legislative body.

As clarified by Shalva Papuashvili, the Venice Commission does not have remarks on the draft amendments to the Law on Common Courts prepared by the Parliament.

Shalva Papuashvili stated: “In regard to the amendments to the Law on Common Courts, the Venice Commission does not have any remarks with respect to the amendments that we prepared. In addition, it has proposals about additional issues since it not only discussed this draft law but also provided a general assessment of its recommendations issued in the last two-three years. The Venice Commission has some additional recommendations and we will also have a discussion about them.”

In its opinion published on 14 March 2023, the Venice Commission assessed the draft amendments to the Law on Common Courts as part of the ongoing reform of Georgia’s judicial system. Of note is that the Venice Commission has already published four opinions about the draft amendments as a part of the reform. With the latest conclusion, the Venice Commission provided a broader assessment to highlight the extent to which has the government taken its previous recommendations into account.

According to the opinion of the Venice Commission, the draft amendments were prepared within the context of the 12 priorities which Georgia needs to address to obtain EU candidate status. In particular, it was done to address the third priority set by the EU which requires the adoption and implementation of a transparent and effective judicial reform strategy and action plan.

The draft law did not consider some of the norms which were previously part of the Venice Commission’s recommendations. Some norms were addressed by the amendments but the Commission’s recommendations were not taken into account. According to the document, there are only a few norms where the recommendations previously issued by the Venice Commission were reflected.

Of note is that according to the Opinion document, the Georgian side claimed that one of the reasons why certain Venice Commission recommendations were not addressed was because of pending cases in the Constitutional Court. When a case is pending in the Constitutional Court, however, this is not a hindrance for the Parliament to adopt changes in regard to those norms which are being challenged in the Constitutional Court. Therefore, these clarifications from the authorities are insufficient to justify themselves. In addition, the Venice Commission makes a recommendation in the conclusion that the government should take the recommendations into account without any unjustified delay.

What does the Venice Commission’s Conclusion (Opinion) Say?

Legislative Process

The Venice Commission cited the 2022 document from its Opinions published in the past where the authors of the 2022 Opinion stated that the last amendment to the law lacked transparency and was conducted without effective consultations. As for the present draft amendments, the Commission noted that the Parliamentary Majority had made efforts in ensuring an inclusive drafting process involving the Parliamentary Minority and civil society representatives according to the information it was provided. However, the Commission stressed that the genuine inclusiveness of this process was contested by the other interlocutors.

High Council of Justice

The Opinion says that the Venice Commission raised several issues concerning the functioning of the High Council of Justice in its 2022 conclusion. These issues were fundamental for increasing the legitimacy of the judiciary in Georgia and it also issued relevant recommendations. However, the Commission notes that the draft amendments neither consist of a thorough reform of the High Council of Justice, as required by the European Commission, nor do they address the Venice Commission’s previous recommendations and concerns about the way in which the High Council of Justice functions.

The Venice Commission also noted with concern that the lay members of the High Council of Justice have not been appointed for a long time.

Judicial Corporatism

The document also pays attention to judicial corporatism and problems of self-interest in the High Council of Justice.

The Venice Commission reiterated its previous recommendation about corporatism and stated that the High Council of Justice should not allow for judicial corporatism to serve the self-interests of one group of judges to the detriment of other groups of judges.

The Venice Commission again named the eradication of corporatism in the High Council of Justice as one of the major recommendations which should involve a comprehensive reform of the High Council of Justice.

Qualifications for the Supreme Court Judges

In the 2019 Opinion, the Venice Commission recommended that the age and experience requirements for Supreme Court judges be raised. The Commission noted that the requirements were too lenient “as it may be questioned whether a person will have acquired the necessary experience to be a Supreme Court judge at the age of 30 and after no more than five years of service as a judge, advocate or academic.”

Although the latest draft amendments contain detailed requirements for candidates of the Supreme Court, the Venice Commission noted that its recommendations on introducing stricter requirements for the judicial candidates for the Supreme Court were not met and so it leaves this recommendation still in force.

Nomination of Candidates to the Supreme Court

1. Introduction of Anti-Deadlock Mechanism

The Venice Commission recommended that an anti-deadlock mechanism be introduced into the nomination process for Supreme Court candidates in the 2019-2021 Opinions. This concerns such cases when selected candidates fail to obtain two-thirds of the support of the full composition of the High Council of Justice. According to the Commission, this recommendation was not taken into account since draft amendments do not envision the introduction of the aforementioned mechanism.

2. Transparency and Reasoning

The 2020 Opinion of the Venice Commission recommended providing for “the disclosure, together with the votes and the reasonings, of the identity of the members of the High Council of Justice who cast the relevant votes” in the nomination of candidates to the Supreme Court. This measure was necessary to ensure that unsuccessful candidates can effectively appeal the decisions of the High Council of Justice.

This recommendation was included in the submitted draft law. In addition, the amendments envision a principle that if a member of the High Council of Justice does not assess all candidates under the procedure and does not submit these assessments together with the justifications, it is considered that this member does not participate in the evaluation procedure.

3. Right to an Effective Appeal against the Decisions of the High Council of Justice

The document says that both the 2019 and the 2020 recommendations of the Venice Commission about appealing the decisions of the High Council of Justice were taken into consideration. The Commission’s recommendation is to remove High Council of Justice members who were biased or otherwise violated the rights of the candidates. However, in regard to the regulatory norm of the latter, the Venice Commission notes that the scope of the provision is quite broad. In particular, it requires the recusal of a member that “has shown bias in the selection of candidates, his/her approach was discriminatory and/or he/she exceeded the powers granted to him/her by the legislation of Georgia as a result of which the rights of the candidate were violated or the independence of the court was threatened.” The Venice Commission concluded that the scope and even relevance of this latter criterion are not clear and should be removed.

According to the Opinion, the draft amendments do not address the potential problems of the quorum and the decision-making capacity that may arise following the recusal of several High Council of Justice members.

Term of Office of the Supreme Court President

According to the document, the Venice Commission also had a recommendation about the ten-year term of office of the Supreme Court President. In particular, the Commission recommended that a term of ten years for the Supreme Court President was excessive and should be reduced. Therefore, the recommendation is still relevant according to the Commission.

Reallocation of Candidates

In addition, the Venice Commission’s recommendation about the appointment of consenting unsuccessful judicial candidates to other vacancies which remained available after the competition was not taken into account and remains in force. According to the recommendation which the Venice Commission reiterated last year as well, judicial candidate must fulfil all of the requirements of the specific vacancy, e.g., “specialisation requirements.”

Suspension of Judges from Office

In the 2022 Opinion, the Venice Commission negatively assessed the provision which defines the suspension criterion for judges in the case if criminal or/and disciplinary proceedings are launched against him/her. In the most recent Opinion, the Commission noted that the recommendations related to the aforementioned provision were not envisioned by the draft law.

Grounds for Disciplinary Liability

The amendments to the law in 2021 extended the grounds for the disciplinary liability of a judge. One of the grounds of such liability is the expression of an opinion by a judge in violation of the principle of political neutrality. In its 2022 Opinion, the Venice Commission made certain remarks in regard to the notion of “political neutrality” and issued a recommendation to revise this provision. Nevertheless, the recommendation has not been met as the latest Opinion of the Venice Recommendation indicates that it still remains valid.

Initiation of Disciplinary Procedures

According to the document, in its 2022 Opinion, the Venice Commission reiterated its previous recommendation to clarify when disciplinary proceedings vis-à-vis a judge should be considered as initiated. The Commission assesses that this recommendation also has not been met at this stage.

Access to Court Decisions

According to the Opinion, a new chapter is added to the draft amendments which concerns the dissemination of the text of a judicial act. The new chapter regulates the procedure for issuing the complete or partially depersonalised text of the court decision delivered following an open court session which will have the status of public information.

The Commission assesses that the right to access court decisions by the general public is important. However, the exercise of this right is closely related to the right to privacy and the protection of personal data. Therefore, when providing the right of access court decisions, it is necessary to strike the right balance between these rights.

According to the preliminary assessment of the Commission, this chapter envisions a rather complex regulation that makes access to court decisions a complicated and prolonged process.

The Venice Commission calls on the Government of Georgia to take these recommendations into account without unjustified delay.

Conclusion

FactCheck identified a number of circumstances in Shalva Papuashvili’s statement which are important in order to assess its content.

First – the part of Mr Papuashvili’s statement which claims that the Venice Commission does not have a remark vis-à-vis the submitted draft law per se is untrue. In fact, the Commission did express remarks vis-à-vis the submitted draft law as well.

Second – in its latest Opinion, the Venice Commission provided an assessment on both the submitted draft law as well as the extent to which the government has token the Commission’s previous recommendations into account.

This draft law was prepared to address one of the major priorities (transparent and effective judicial reform) needed to obtain EU candidate status for Georgia which is pinpointed by the authors of the amendments themselves. Therefore, the Venice Commission also assessed the planned amendments in this context and analysed how the amendments fit with the objective. In this light, the statement of the Speaker of the Parliament that recommendations in the Opinion of the Venice Commissions are some “additional” issues is inappropriate and leaves an impression that those recommendations are insignificant. In fact, the Venice Commission made use of the explanatory note submitted to the Parliament of Georgia and produced recommendations to ensure that the amendments are harmonious with the objective, including a reiteration of its previous recommendations.

Third – it is also irrelevant for the Government of Georgia to claim that pending cases in the Constitutional Court are among the reasons why the Venice Commission’s previous recommendations were not met. In fact, a pending case in the Constitutional Court does not hinder amending a provision that is challenged in court. Furthermore, this case may take years and court reform can also be jeopardised by following this logic. At the same time, provisions in the Constitutional Court are disputed by authoritative civil society organisations and the Public Defender of Georgia. This indicates that local NGOs and the Public Defender already considered the current provisions as unconstitutional and the government’s decision to point fingers at these cases cannot be considered as a legitimate reason for its failure to meet the Venice Commission’s recommendations.

Given all of the aforementioned circumstances, FactCheck concludes that statement claiming there are no remarks from the Venice Commission about the Law on Common Courts is FALSE.