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The Practice of Judge Rotation in the Judicial System

What has the reform changed?

The legislation regulating common courts includes several legal possibilities of rotation of the

appointed judges in the court system. After the initial appointment of a judge in the court system,

he/she might be subject to re-appointment to lower, corresponding or higher instance court without a

competition within his/her tenure, to promotion from the first to the second instance court or to

temporary transfer to another court (operating mode before 1st of January, 2015).

As it is known, after the 2012 parliamentary elections, several stages of reforming the justice system

have been implemented. A significant part of the reforms was related to the arrangement of the

rotation of judges, refinement of certain legal norms, and increased accessibility to the grounds and

procedures. The goal of the presented document is to describe and assess the practice related to the

rotation of judges in the court system in the light of the reforms and new legislative safeguards carried

out in recent years, and to highlight whether the changes and/or the impact of the amended legislation

on the activities of judicial authorities can be observed.

The presented document discusses three main legal mechanisms for the rotation of judges and the

related practical features:

● Temporary transfer of judges;

● Appointment of judges without competition;

● Promotion of judges.

The urgency and importance of the above-mentioned legal mechanisms is determined by the fact that

in case of their arbitrary and unreasonable use, they can jeopardize the independence of the judiciary,

the autonomy of an individual judge and accordingly, the interests of justice-seekers. The movement of

judges in the judicial system can be used as a means to make an influence on the outcome of a specific

case or as a certain punitive measure for a particular judge. The above mentioned risks are

strengthened by the unsound system of current case assignment in common courts.

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Under the current legislation, cases are allocated to the judges according to their alphabetical order.

However, the law also stipulates the possibility of case assignment without their order and grants the

heads of the court wide discretion to allocate certain cases to particular judges. Questions often arise in

the society about how this or that case was assigned to a certain judge, was this case allocated by a

regular rule or was there any artificial involvement in the process. The questions related to the ongoing

processes in the judiciary are closely tied to the topic of the rotation of judges. The systemic

shortcomings related to the movements of the judges in the common courts and the existing rule of

case assignment generates the possibility of involvement in the justice process, giving a certain

direction to the process of allocating/considering the cases and impacting on the independence of

individual judges, which poses damage to the interests of the justice.

The presented document is based on the analysis of legislation, on the public information and on the

data retrieved from the website of High Council of Justice as well as on the information gathered

directly by observing the meetings of the High Council of Justice.

Transfer of Judges

The vicious practice of transfers of judges has often been subject to harsh criticism and discussion.

Before the amendments of 2012, the law did not stipulate any kind of reasonable restriction for using

this mechanism, neither was the necessity of consent from the judge envisaged in the law. Separate

decisions about the transfers of the judges did not give the possibility of assessing the legality and

expediency of the Council’s actions.1

With the amendments implemented in 2012, the legislative regulation of transfers has improved. As a

result, consent is a compulsory prerequisite for using the transfer mechanism, and the term of transfer

is limited to one year, with the possibility of extending for one more year. This amendment was

intended to prevent transfer of judges on the grounds of arbitrary decision of the Council.

After the amendments, observation on the transfer practice shows that there are still some questions,

mainly related to the reasonableness and expediency of transfers of particular judges.

1 Report on Monitoring of High Council of Justice of Georgia 2013, p. 17.

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According to the information2 provided by the High Council of Justice of Georgia, 26 judges were

transferred in 2014-2015 based on the law on “the rule of case assignment in the common courts and

imposing the authority on other judges.”

Among them, 25 judges were transferred to district (city) courts. 16 judges were transferred to the

Tbilisi City Court: 6 to the Administrative Cases Panel, 4 to the Civil Cases Panel and 6 to the Criminal

Cases Panel.

The remaining 9 judges were transferred to the following district courts: 1 judge - to the Sachkhere

District Court, 1 judge - to the Sokhumi and Gagra-Gudauta District Court, 1 judge - to Ambrolauri

Disrict Court, 2 judges - to the Gali-Gulrifshi and Ochamchire-Tkvarcheli District Court, 1 judge - to

the Civil Cases Panel of Gori District Court, 1 judge - to the Zestaponi District Court, 1 judge - to the

Telavi District Court, and 1 judge - to the Bolnisi District Court.

One judge was transferred to the Tbilisi Court of Appeals - the investigative panel. Unfortunately,

specialization of judges in the courts of their initial appointment cannot be found on the Council’s

website. Thus, it is difficult to assess whether transfers were carried out in accordance to the

2 Letter N1498/2244-03-o of 2 November, 2015 of High Council of Justice of Georgia

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specialization of judges and whether the judges had to consider the cases different from their

specialization.

According to the law, in case of necessity the judges at the same time exercise their authority in the

courts of their initial appointment.

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According to the information3 provided by the High Council of Justice, money for accommodation was

allocated for 4 transferred judges.

According to the law, only the following two circumstances can be considered as grounds for

transferring a judge to another court:

a) The absence of a judge in court;

b) The drastic increase of number of cases in court.

Council’s decisions about transfers do not substantiate the specific ground based on which each judge is

transferred to a relevant court, which makes it impossible to check the expediency of the transfer.

Apart from this, only 6 decisions of the High Council of Justice stipulates the term of the transfer (1

year). In the rest of the cases, the transfer term for a certain judge in a relevant court is not determined

by the Council. However, information about the term of transfer was provided by the High Council of

Justice upon request.4

When using the transfer mechanism, the legislation also stipulates one very important condition:

according to the law, transfer can be used by the consent of the judge or, in case of necessity, without

the consent of the judge, if it is in the interest of justice and is supported by more than half of the listed

members of the High Council of Justice of Georgia (Paragraph 21 of Article 13). According to the

information provided by the High Council of Justice, in 2014-2015 years the Council did not make a

decision without the consent of the judge about transferring him/her to another court.5

While analyzing the decisions made about transfers, very interesting circumstances have been

revealed, which may not be in full compliance with the legislation regulating transfers. In particular,

by the N1/37 decision of May 2, 2014 of the High Council of Justice of Georgia, despite the fact that

legislation does not stipulate the possibility of transferring a judge to two courts simultaneously, the

magistrate judge of the Mtskheta Regional Court, Nana Chichileishvili, was transferred to the

Administrative Case Panel of the Tbilisi City Court and to Sokhumi and Gagra-Gudauta District Court.

3 Letter N1498/2244-03-o of 2 November 2015 of High Council of Justice of Georgia. 4 Letter N1498/2244-03-o of 2 November, 2015 of High Council of Justice of Georgia. 5 Letter N1498/2244-03-o of 2 November, 2015 of High Council of Justice of Georgia.

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Apart from this, according to the information6 provided by the High Council of Justice, the judge of

Mtskheta District Court - Diana Gogatishvili, was transferred to the Civil Cases Panel of Tbilisi City

Court from 28 May 2012 till 4 August 2015, despite the fact that, according to the Organic Law,

transfer can be used only within a one-year term with the possibility of extending for one more year.

Also, according to the law, granting authority to another judge (transferring him/her to another court)

was used according to the rule determined by the law before 1st of January, 20157, after which the law

does not acknowledge this legislative mechanism and thus, the possibility of transfer does not exist

anymore. As for the transfers carried out before 1st of January, 2015, according to the information

provided by the Council, part of the transferred judges are still transferred in the year of 2015.

Reappointment of a Judge in another Court without Competition

Article 37 of the Organic Law of Georgia on “Common Courts” envisages the appointment of a judge,

based on consent, to a vacant position in a court of lower-, higher- or corresponding instance without

competition. This norm does not include additional provisions about the justification of the necessity

to use this mechanism, rules of appointment without competition and procedures, or the selection and

evaluation of judges. Hence, such general and ambiguous norm grants the High Council of Justice wide

discretion to reappoint judges in other courts, thus creating risks of abusive application of the

mentioned legal mechanism. Therefore, the society does not have the possibility to evaluate the

reasonableness or justification of reappointment of judges.

On January 10, 2015, the High Council of Justice determined the rule of reappointing judges from one

court to another without competition through amending the Council regulations. However, this rule

dealt only with the appointment of judges in a court of corresponding instance and did not regulate

appointment in lower-or higher instance courts. Up until June 10, 2015, the rule for reassignment of

judges was not regulated by any normative act. Hence, to that date, reappointment was merely based

on the ambiguous article of the law.

Assignment of a judge to a court of higher instance on the basis of Article 37 implies promotion;

therefore, this also falls under Article 41 of the Organic Law of Georgia on “Common Courts.”

6 Letter N1498/2244-03-o of 2 November 2015 of High Council of Justice of Georgia. 7 Paragraph 3 of Article 13 of the Law of Georgia on “the rule of case assignment in the common courts and granting the authority

to other judges”.

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According to this Article, the High Council of Justice determines the criteria for promotion and

evaluates judges according to these criteria. These criteria and procedures of promotion are regulated

by the amendments to the Council regulations adopted on 19 October 2015. According to the

assessment of NGOs, the Council defined the criteria and the rules, determination of which had been

disregarded for years, in a hasty manner, thus discrediting the process of promotion.

Moreover, it should also be noted that a coherent system of promotion cannot exist without a

legitimate, fair, and objective rule of performance evaluation. As it is known, the common court

system includes an evaluation system prepared by the High Council of Justice. However, the

professional society has numerous questions about this system. Unfortunately, this issue has not been

subject to critical analysis and discussion for years. Hence, the mechanism of this system, as well as

whether it ensures objective evaluation of judge performance, remains ambiguous.

The chart below includes the number of judges reappointed in lower-, corresponding or higher

instance courts between 2011 and 2015.

0

10

20

30

40

50

60

70

2011 2012 2013 2014 2015

lower instance

correspondinginstance

higherinstance

lower instance 0 2 0 0 0

corresponding instance 1 64 24 0 6

higher instance 0 15 2 0 7

2011 2012 2013 2014 2015

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The data above demonstrates that the number of judges reappointed in courts of lower, higher, or

corresponding instances significantly exceeds the number of reappointed judges in other years (81

judges). In 2012, the reappointment of judges occurred on the basis of Article 37 of the Organic Law in

the following conditions:

● 56 judges were reappointed directly after the parliamentary elections of 2012 (October 16, 25,

and 30; November 19 and 28, and December 20, 26, and 28)8;

● The decisions were made by the members of the High Council of Justice who had been

appointed before the reform;

● After the elections, in 9 cases, judges were reappointed in higher instance courts, in one case -

in a lower instance court, while in the remaining cases, reappointment occurred in the courts

of corresponding instance;

● On December 20, 26, and 28, 2012, information about the meeting of the High Council of

Justice was not publicized, therefore, the meeting can only be assumed to have taken place on

the basis of dates indicated in decisions. Information on holding a closed meeting has not been

publicized either. 9 Therefore, the stakeholders did not have the opportunity to attend

important meetings during which the decisions about judge reappointment were made.

It should be considered that by the end of 2012, the Council had no legislative acts to ensure objective

conduct of the reappointment of judges to upper instance courts, including the criteria and procedures

of promotion. Under such circumstances, the conduct of massive reappointment of judges strengthens

the impression that the judge rotation mechanism created broad basis and opportunities for its abuse,

including by the High Council of Justice. The rotation possibility acquires an especially hazardous

character when through this mechanism judges are reappointed to lower instance courts. As noted,

there were 2 such cases in 2012.

Many questions and concerns arose with regard to judge rotation in 2015 during the arbitrary and

unsubstantiated promotion of 7 judges in the Tbilisi Court of Appeals. This process was subject to

serious criticism from NGOs as well as from the Public Defender. The High Council of Justice made the

8 http://hcoj.gov.ge/ge/sabchos-gadatskvetilebebi

9 N2 Report on Monitoring of High Council of Justice of Georgia, 2014, p. 11.

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decision to fill in the 7 vacant positions in the Court of Appeals on September 28, 2015. The criteria

and procedures for promotion were defined on October 19, 2015 through amendments to the

regulation of the High Council of Justice. This created the impression that the mentioned spontaneous

decision was adjusted to a specific need/case and did not represent a part of a unified reform process.

Furthermore, there was an impression that the process was artificially accelerated and did not stem

unequivocally from the interests of justice. In the absence of a solid system of judge evaluation it was

impossible to obtain comprehensive information about candidates upon which the decision of the

Council would be based. Therefore, it can be noted that the promotion took place on the basis of an

unsubstantiated decision. In addition, it is impossible to assess whether during the promotion, the

council used the criteria envisaged in the regulation.

Promotion of Judges

According to the information of the High Council of Justice,10 Article 41 (Promotion) of the Organic

Law of Georgia on “Common Courts” was not used in 2011-2015. However, as noted above,

reappointment in a court of higher instance on the basis of Article 37 essentially represents a

mechanism of promotion and bears promotional nature. Hence, during the reappointment of a judge in

an upper court, this process should fall under the conditions envisaged in Article 41.

It is clear that before amending the Council Regulation, specifically, in 2012-2013, judges were

promoted in the Tbilisi Court of Appeals in the absence of promotion criteria and procedures. Even

though currently the criteria and rules are defined by the Council Regulation, concerns about the

promotion process remain, mainly in relation to the nonexistence of a solid system of judge evaluation

and non-substantiation of the Council decisions.

Conclusion

The presented document discusses the practices of rotation of judges, which mainly occurred after

legislative amendments carried out after the elections. The above-mentioned facts demonstrate several

significant shortcomings of the judge rotation process:

10 Letter N1495/2242-03-o of 2 November 2015 of High Council of Justice of Georgia.

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● Non-substantiation of the decisions of the Council, which raises questions in the society about

the aims and motives of the Council;

● Insufficient regulation of certain mechanisms on the legislative level, which leaves broad

discretion to the Council;

● The impossibility to check the substantiation and reasonableness of the decisions related to

transfer and reappointment of judges without competition;

● In specific cases noncompliance of judge transfers with the law;

● Ambiguous legislative regulation of the reappointment of judges in other courts without

competition and the practice of unsound application of this norm;

● Promotion of judges in the conditions of the existing questions related to the rule of

performance evaluation.

Part of the amendments prepared within the scope of the third wave of judicial reforms deals with the

mentioned problematic issues. Specifically, according to the draft law, the reappointment of a judge

without competition will occur only in a court of corresponding or higher instance, as opposed to the

current regulation which also envisages reappointment in a court of lower instance. However, the

determination of procedures and criteria for the reappointment/promotion of judges without

competition remains under the competence of the High Council of Justice which is not advisable. To

address the existing shortcomings, it is necessary to regulate the main principles of appointment and

promotion of judges without competition at the legislative level, which will preclude the possibility of

the High Council of Justice to use the mentioned mechanism in an unsubstantiated and arbitrary

manner.

The third wave of the reforms also envisages a different regulation of the transfer mechanism. In

contrast with the regulations in force till January 1, 2015, in cases of absence of judges in district

(city)/appellate courts or in case of drastic increase in the number of cases, the High Council of Justice

addresses judge(s) in reserve with the proposal to exercise their authority. In the case of refusal, the

Council addresses judges of territorially nearest courts of corresponding instance. The High Council of

Justice will be authorized to transfer the judge with consent and for the period up to one year to the

court of corresponding instance. The draft law also clearly states that without the consent of the judge,

transfer from a territorially close court is permissible only in the case when a judge cannot be selected

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by the above-mentioned rule. Such judges have to be identified via a ballot system. The judge will have

the right to present his/her own opinion verbally or in writing. The mentioned change should be

evaluated positively.

In conclusion, it should be noted that the activities of the Council and the experience of observing the

ongoing processes in the judicial system shows that the legislation should be detailed and unambiguous

and should out-rule the possibility of broad interpretation. Alternatively, the risks of abuse of the

legislative mechanisms and consequential damage to the interests of the judiciary increase

significantly. However, it is clear that it is impossible to completely mitigate risks on the legislative

level and the Council through its decisions sets precedents and shares relevant responsibility in this

process.