The recent years have been tumultuous for Georgia. The country’s ruling party has sought to cement its rule through constitutional and other legislative changes that have eroded checks and balances to the power of the executive. A key to these changes has been the capture of the judiciary when addressing matters of political justice — a development that has accelerated during the past year. From the de facto impunity of police forces to the deferral of the Constitutional Court to hear cases, the Georgian judiciary at all levels yields to the executive’s demands on matters of political justice. This erosion of judicial independence has led to a profound crisis of public confidence in the system. At the heart of this crumbling edifice of Georgia’s constitutional order are courts and individual judges, who have made the justice system toothless against executive transgression.
In Bakradze v. Georgia (decided in November 2024) the European Court of Human Rights found that partisan interests rather than capacity and integrity had been decisive in the nomination of judges in Georgia. After the October 2024 elections, there have been numerous examples of such partisan vetting, yet none better than the numerous cases brought against the elections. These cases provided evidence of extensive violations of election rules that have since been substantiated by international observers.
But out of the more than fifty cases, only one district court ruled in favor of the applicants challenging all ballots in the district due to notable shortcomings in the secrecy of voting. The only discordant ruling was overruled in the appellate court. The fact that virtually no court in Georgia found violations, when the Organization for Security and Co-operation in Europe conservatively estimated violations for every fourth vote cast, came as no surprise to most observers of Georgia’s judiciary.
The European Commission and the Venice Commission have repeatedly recommended reforms to the High Council of Justice (‘HCoJ’) – the organ responsible for nominating, disciplining, and allocating judges – to address the concerns that it acts “out of self-interest, self-protection, and cronyism.” The corporatism of the judiciary and legislative changes allowing back-to-back membership have enabled a small group of judges to control the entire judiciary through rewards and punishments.
On matters of political justice, the judiciary has co-operated closely with the executive. This alignment has ensured lavish lifestyles for many Georgian judges, whose relatively modest public salaries cannot explain significant real estate holdings and luxuries purchased by them and their family members — a pattern common for captured judiciaries.
Long tenures for judges sitting in the HCoJ and the consolidation of all positions to a small circle have made it relatively easy for the political regime to align the interests of ruling judges and the ruling party. In 2019, the HCoJ vetted new lifetime judges for the Supreme Court, many of whom failed to meet the constitutionally outlined qualifications leading to a constitutional challenge before the Constitutional Court in 2020.
On this constitutional challenge, the Constitutional Court split 4-to-4 with the Court president’s vote decisive in dismissing the case. All four members in favor of dismissal were nominated or had a close personal connection to the ruling party. The Supreme Court, whose nominations were challenged before the Constitutional Court, has the power to nominate three of the nine members of the Constitutional Court, with the national President and Parliament nominating also three each. Thus, control over the HCoJ and a nominating process of Supreme Court members ensured ruling-party control over nominations of the Constitutional Court as well.
On 29 November 2024, the Constitutional Court of Georgia refused to hear a case raised by the country’s President and opposition members of the Parliament to the October 2024 elections. In his dissenting opinion, judge Teimuras Tughushi called into question the raison d’être of a judiciary that refuses to exercise functions entrusted to it by the Georgian Constitution. “What good is a Constitutional Court that avoids answering questions and solving problems; what is the purpose of a Constitutional Court if it refuses to exercise constitutional oversight,” he asked.
Whether Tughushi’s pithy comments are a swan song of a dying rule of law or the first glimmer of light at the end of the tunnel remains to be seen. But for now, the judicial capture in Georgia is complete.
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