The so-called governmental acts issued by an administrative body are not subject to judicial review. The decree issued by the President of Georgia appointing a member to the High Council of Justice falls precisely into this category. The President acts as a constitutional - not an administrative - body in exercising this authority, exercising broad discretion in this capacity and playing a role in shaping the composition of the High Council of Justice. Permitting judicial intervention in this decision would directly contradict the constitutional order of Georgia as it would effectively grant the judiciary the power to influence the Council’s composition beyond the limits set by the Constitution.

Analysis

The High Council of Justice of Georgia is a body within the common Court system, established to ensure the independence and efficiency of the judiciary, oversee the appointment and dismissal of judges and carry out other related functions.

The Council is composed of 14 members appointed for a four-year term, along with the Chairman of the Supreme Court. More than half of the members are elected by the self-governing body of judges of the common courts of Georgia (“judge members”) whilst five of the remaining six “non-judge members” are appointed by the Parliament of Georgia with a majority of at least three-fifths of its total membership and one member is appointed by the President of Georgia.

The appointment of one member of the High Council of Justice is a constitutional authority vested in the President of Georgia. This power is amongst those presidential authorities that do not require the countersignature of the Prime Minister.

Accordingly, the Constitution of Georgia grants the President full discretion to make this decision unilaterally. However, it is important to consider what guides or binds the President in exercising this authority.

The President is guided by the Constitution of Georgia and the Organic Law on General Courts in doing so. This is stipulated in Article 64, Part 4 of the Constitution, stating: “The competences of the High Council of Justice and the procedures for its establishment and activity shall be determined by the organic law.”

The President of Georgia appoints a member of the High Council of Justice on the basis of a competition in cases where a member’s term expires or is terminated early, according to the Law on General Courts. The term of office of Tamar Ghvamichava, the member appointed by the President, was set to expire on 22 July 2024. Therefore, the President was required to select a new member through a competitive process no earlier than one month and no later than one week before the expiration of the term.

The Presidential Administration announced a competition to select a candidate for membership of the High Council of Justice. The Administration, in accordance with the law, published information regarding the competition on its official website and through mass media. The Law on General Courts sets out detailed criteria that a candidate for Council membership must meet.

The President established a special commission to select candidates. Whilst the law does not explicitly require the formation of such a commission, the President opted for this approach to promote transparency and public trust, as explained by the commission members themselves. The commission evaluated the candidates based on pre-established and publicly disclosed criteria.

The commission recommended two candidates out of the five ^[1] who participated in the competition – Giorgi Burjanadze and Kakha Tsikarishvili. Salome Zourabichvili endorsed Kakha Tsikarishvili and appointed him as a member of the High Council of Justice by a decree issued on 15 July 2024.

The Administrative Cases Chamber of the Tbilisi City Court accepted the lawsuit filed by one of the competition participants – Manuchar Kakochashvili – against the President of Georgia on 22 July 2024. The plaintiff sought the annulment of the Presidential decree of 15 July 2024, which appointed Kakha Tsikarishvili as a member of the High Council of Justice of Georgia, requesting the issuance of a new act – specifically, an order directing the President to appoint the plaintiff as a member of the High Council of Justice. Additionally, the plaintiff requested the suspension of the presidential decree as a measure to secure the lawsuit. He also sought a temporary ruling prohibiting any other individual to the High Council of Justice (in any form) until the legal proceedings were fully concluded, with the exception of appointing the plaintiff himself.

The petition to secure the claim was granted by the ruling of the Administrative Cases Chamber of Tbilisi City Court on 22 July 2024. The court suspended the operation of the presidential decree of 15 July 2024 until the legal proceedings are concluded. Furthermore, the President of Georgia was prohibited from announcing a new competition or appointing another member of the High Council of Justice (in any form) until the final resolution of the case.

Although Manuchar Kakochashvili’s formal claim is not publicly available, a post he published on social media offers insight into his arguments. His main criticisms concern the alleged bias of the commission as well as procedural violations of the rules established by the President and the provisions of the Law on General Courts.

The decision of the City Court prompted a strong reaction from the Presidential Administration, the opposition and civil society. Former members of the selection commission for the High Council of Justice candidate argued that the judge had harshly violated the principle of separation of powers guaranteed by the Constitution of Georgia and had encroached upon the President’s exclusive authority - enshrined in Article 52 of the Constitution - to independently select and appoint one non-judge member of the High Council of Justice. They further asserted that the judge disregarded Article 3 of the General Administrative Code of Georgia which explicitly states that the Code does not apply to the activities of the President. This position is also supported by the Presidential Administration.

The plaintiff maintains that any competition must be unequivocally and unconditionally subject to appeal and judicial oversight, regardless of the identity of the appointing authority. Otherwise, the legal provision requiring the President to conduct a competition for selecting a non-judge member of the High Council of Justice would lose its practical significance.

To resolve the issue at hand, it is essential to determine the extent to which judicial control may be exercised over the President’s act of appointing a member to the High Council of Justice.

The right to appeal to a court is a procedural right guaranteed by the Constitution of Georgia whilst the legal mechanism enabling individuals to challenge violations of their rights by administrative bodies is established by the Administrative Procedure Code. The subject of an administrative dispute in court may include the compliance of an administrative legal act with the legislation of Georgia, according to Article 2, Part 1 of the Code. The Article does not define the precise content of administrative disputes adjudicated by administrative courts as the scope of such disputes is broad.

It is important to note at the outset that not all actions carried out by an “administrative body” in the material sense fall within the scope of administrative law. A distinction is made between acts issued by the administration that involve the exercise of public authority (acts of authority) and those that do not contain this element (administrative acts). The former are not subject to judicial review whilst the latter are. ^[2]

Opponents of the 22 July 2024 ruling of the Administrative Cases Chamber of the Tbilisi City Court argue that the President’s appointment of one member to the High Council of Justice does not fall under administrative law. They cite Article 3 of the General Administrative Code of Georgia which states that the Code does not apply to the activities of the President. However, the exclusion of presidential ordinances from administrative legal reviews does not a priori preclude the possibility of challenging such acts in administrative court. The decisive factors in determining the admissibility of such a claim lie in procedural legislation and the case law developed through the interpretation of that legislation by the Supreme Court.

It is relevant in this context to consider the ruling of the Administrative and Other Cases Chamber of the Supreme Court of Georgia dated 22 May 2003 ^[3] in which the Court clearly emphasises that the legality of an administrative act cannot be determined without examining the legal basis for its issuance. The subject of the dispute in the aforementioned case was a presidential act exercising the constitutional authority to convene an extraordinary session of Parliament.

The Cassation Chamber explained that the President of Georgia does not engage in governance or administrative activities in exercising constitutional powers such as convening extraordinary sessions or meetings as well as signing or publishing laws. Therefore, these actions do not fall within the scope of administrative law. Furthermore, the Chamber stated that the Court could not assess the appropriateness of the presidential order to convene an extraordinary session as doing so would violate the principle of separation of powers and amount to interference by one branch of government in the affairs of another. ^[4]

Considering the above, it is essential to first establish the nature of the act in question in order to determine whether or not judicial control may be exercised over the President’s act of appointing one member of the High Council of Justice and, consequently, whether the court is authorised to assess the legality of this administrative-legal act, annul it, invalidate the legal consequences stemming from its enactment, mandate the issuance of a new act appointing the plaintiff and prohibit the President from announcing a new competition. It is also crucial to determine what function the President performs when issuing such an act and whether judicial review of its legality would be compatible with the principle of separation of powers.

When appointing a member of the High Council of Justice, the President of Georgia is guided by the Constitution and the Organic Law, underscoring that this authority originates from the Constitution and that the President acts as constitutional - not administrative - body in exercising this function. The political nature of the act further highlights that the President is performing a governmental, rather than administrative, function. The President exercises broad discretion and plays a role in shaping the composition of the High Council of Justice. Permitting judicial intervention in this decision would directly contradict the constitutional order of Georgia as it would effectively grant the judiciary the power to influence the Council’s composition beyond the limits set by the Constitution.

As noted above, the plaintiff’s primary claim concerns the commission established by the President. Such commissions are typically formed by presidential decrees - a decree is a subordinate normative act that does not constitute a limitation on the President’s constitutional powers, according to the practice of the Supreme Court of Georgia. Therefore, even if the President selected a candidate in violation of procedures she herself had established, this would not constitute valid grounds for annulling the contested decree (cf. Decision of the Administrative Cases Chamber of the Supreme Court of Georgia No. 3A/AD-74-K dated 11 July 2000).

Given all of the above, judicial authorities are not authorised to assess the legality of a presidential act whose basis lies in the Constitution and which is issued by the President acting as a constitutional - not administrative - body. The established practice of the Supreme Court should have been sufficient for the judge hearing the case to determine the inadmissibility of the claim and reject it accordingly.

[1] Giorgi Burjanadze - former Deputy Public Defender; Dimitri Gabunia - former Parliamentary Secretary of the President; Manuchar Kakochashvili - lawyer (he had previously sought this position but Parliament did not support his candidacy); Kakha Tsikarishvili - member of the Independent Group of Lawyers; Tamar Alphaidze - professor at SEU (Georgian National University)

[2] Kopaleishvili M., Skhirtladze N., Kardava E., Turava P., Administrative Procedural Law Textbook, p. 34

[3] Case No. 3G-AD-440-KS-03

[4] See [2], p. 80.