Last Updated on May 22, 2019 by LawEuro
Communicated on 20 September 2018
FIFTH SECTION
Application no. 18952/18
Marina GLOVELI
against Georgia
lodged on 3 April 2018
STATEMENT OF FACTS
1. The applicant, Ms Marina Gloveli, is a Georgian national, who was born in 1958 and lives in Tbilisi.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
3. The applicant was a practicing lawyer in Georgia with twenty-two years of experience. Between 1999 and 2005 she in addition served as a judge in the Tbilisi Court of Appeal. Subsequently, she participated in a competition for vacant positions of judges three times, most recently in October 2017. All of her applications were rejected. The present case concerns the procedure related to her latest attempt to seek the appointment.
2. Proceedings before the Constitutional Court of Georgia
4. On 9 February 2016, following the first unsuccessful judicial competition, the applicant along with two other unsuccessful judicial candidates lodged a constitutional complaint with the Constitutional Court of Georgia (“the CCG”) (see paragraph 16 below). They alleged inter alia that they did not have access to a court to assert their Constitutional right to fair procedures in the admission to civil service as no court had jurisdiction to examine disputes related to judicial appointments. On 10 March 2017 new amendments to the Act of the Courts of Ordinary Jurisdiction entered into force by which the HCJ decisions became amenable to appeal before the Supreme Court (see paragraphs 13-15 below). On 7 April 2017 the CCG rejected the above constitutional complaint concluding that the newly introduced judicial remedy had in essence resolved the issue raised by the complainants (see paragraphs 16-18 below).
3. The application for a judicial vacancy
5. In October 2017 the applicant applied for a vacant position of a judge in a court of appeal. The competition was announced by the High Council of Justice of Georgia (“the HCJ”). As a part of the application package, she submitted various documents attesting her professional and academic credits. The HCJ first reviewed the documents submitted by the applicant and made her background check. Then members of the HCJ interviewed the applicant, following which they individually conducted the applicant’s assessment using the fill-in score sheets.
6. On 20 January 2018 the applicant was notified that her application for the vacancy was denied (“განაცხადი უარყოფილია”) as she could not pass a minimum score of competence. Later she obtained copies of the score sheets filled in by each member of the HCJ who had interviewed and conducted her evaluation.
4. The proceedings before the Supreme Court
7. On 2 February 2018 the applicant lodged an appeal with the Chamber for the Review of Judicial Appointments (საკვალიფიკაციო პალატა) of the Supreme Court of Georgia (“the SC Chamber”) seeking the invalidation of the decision of the HCJ. She alleged that the decision was arbitrary and discriminatory. In support, she adduced as evidence a televised statement of N.J., a non-judicial member of the HCJ, who claimed that throughout the competition several HCJ members had had their “protégé” candidates and that they had arbitrarily lowered the evaluation scores for the other judicial candidates. The applicant also argued that the very low scores assigned to her by several members of the HCJ were indicative of that bias.
8. On 6 February 2018 the SC Chamber dismissed the applicant’s appeal as inadmissible holding that it lacked jurisdiction to examine it. The main reasons given by the Supreme Court in its decision read as follows:
“… the applicant was unable to achieve a minimum passing score in the competence component [of the assessment] which is a precondition for a candidate to stand for voting for the appointment by members of the High Council of Justice pursuant to Article 35 (1) § 1 of the Act on the Courts of Ordinary Jurisdiction. In view of the foregoing, the body in question has not examined the application for the appointment and hence, it has not issued a formal decision refusing the applicant’s appointment which qualifies for being challenged before the Chamber for the Review of Judicial Appointments of the Supreme Court of Georgia… [F]or these reasons the Chamber finds the appeal inadmissible …”
9. No appeal lay against the decision of the SC Chamber.
B. Relevant domestic law and practice
1. The Constitution 1995
Article 6
“1. The Constitution of Georgia shall be the supreme law of the State. All other legal acts shall accord with the Constitution.”
Article 29
“1. Every national of Georgia satisfying appropriate statutory requirements shall have a right to hold a post in a public service.”
Article 42
“1. Everyone shall be entitled to seek judicial protection of his or her rights and freedoms.”
2. Act of 13 June 1997 on the Courts of Ordinary Jurisdiction
(a) Appointment of judges
10. Under Article 47 of the Act on the Courts of Ordinary Jurisdiction[1] (“the ACOJ”), the High Council of Justice (“the HCJ”) is the authority responsible for the recruitment, promotion and dismissal of judges. The HCJ is composed of eight judicial members elected by the assembly of judges and six non-judicial members, five of whom are elected by the Parliament and one appointed by the President. Each of them is elected or appointed for a term of four years. The President of the Supreme Court serves as an ex officio member on the HCJ.
11. Under Article 34 of the ACOJ, every citizen of Georgia of at least 30 years is eligible to be appointed (elected) as a judge if he/she has at least master’s degree in law or equivalent academic qualification, has practised law for at least five years, is proficient in the official language of the State, has passed the judiciary admission exam, and has successfully completed the judicial training programme organised by the HCJ. The candidates are evaluated by members of the HCJ on the basis of the competence and integrity criteria (Article 35 § 9 of the ACOJ). Each of them fills in the assessment sheet following the review of application files and the completion of interviews with judicial candidates.
12. Pursuant to Article 35 § 12 of the ACOJ, only candidates who were evaluated by the majority of members of the HCJ as meeting the integrity criterion fully or in part, and who earned at least 70% of the highest possible final score in competence criterion are voted for the appointment to a vacant judicial position
(b) Appeal against decisions of the HCJ
13. On 8 February 2017 the Parliament of Georgia, as part of a broader judicial reform package, adopted amendments to the ACOJ which made the decisions of the HCJ refusing judicial appointments amenable to appeal in the Supreme Court. The law became effective as from 10 March 2017.
14. According to the newly amended Articles 19 (1), 35 (4) §1 and 36 (5) §1 of the ACOJ, an unsuccessful judicial candidate may lodge an appeal with the Chamber for the Review of Judicial Appointments of the Supreme Court against the decision of the HCJ refusing his/her appointment to a judicial office. In so far as it is relevant to the present case, a refusal may be appealed if the candidate considers that a member of the HCJ was not impartial, acted discriminatorily or abused his/her power while taking a decision relating to the competition.
15. According to Articles 35 (4) §3, 36 (6) and 36 (7) of the ACOJ, as a result of the examination of an appeal against refusal to appoint to a judicial office, the Chamber for the Review of Judicial Appointments of the Supreme Court is empowered to annul the decision of the HCJ and remit the matter to the HCJ for re-examination.
3. Judgment of the Constitutional Court (Plenary) of 7 April 2017 in the case of Kevlishvili, Dotiashvili and Gloveli v. The Parliament of Georgia, no. 3/2/717
16. On 5 February 2016 three rejected judicial candidates, among them the applicant, lodged an application with the CCG alleging that Articles 36 § 4, 49 § 1 (a) and 50 § 4 of the Act on Courts of Ordinary Jurisdiction did not comply with Articles 29 and 42 of the Constitution. They were complaining in particular that the legal framework preventing them from appealing in court decisions of the HCJ violated their Constitutional right to access to a court. On 7 April 2017 the CCG rejected their case. The CCG concluded that the newly adopted amendments to the Act on the Courts of Ordinary Jurisdiction (see paragraphs 13-15 above) essentially resolved the issue raised by the complainants. The CCG further held that in the context of that specific dispute the new legislative amendments implemented the complainants’ constitutional right to a court by establishing the Chamber for the Review of Judicial Appointments (საკვალიფიკაციო პალატა) at the Supreme Court of Georgia which had jurisdiction to examine appeals concerning allegedly arbitrary refusal of judicial appointments.
17. The CCG noted at the same time that the right to admission to public service through a fair procedure under Article 29 of the Constitution was equally applicable to judicial appointments and that the complainants were to be afforded the right to access to a court to seek the determination of that right as required under Article 42 of the Constitution. Moreover, the CCG pointed out that the fairness of procedures was guaranteed by the Constitution at every stage of the recruitment process.
18. Relevant parts of the judgment read as follows:
“30. Under Article 29 of the Constitution of Georgia a decision about an appointment to a public office, including to that of a judge, must be adopted through a procedure in which impartiality is ensured… The proceedings must be conducted in a manner that would rule out as far as possible an arbitrary refusal of appointment of a meritorious candidate …
31. … The right to a reasoned decision [appointing a candidate to an office/refusing an appointment] under the Constitution does not only guarantee a properly reasoned final decision but also implies that adequate reasons must be given throughout the entire recruitment process …
60. Appointment of judges is a Constitutional power of the High Council of Justice of Georgia. This fact does not preclude mandatory judicial control from being exercised, which in itself is a Constitutional power. The right to a fair trial entails the requirement that all decisions (acts) of public authorities that violate human rights be challenged and adjudicated in court …
61. …The purpose of mandatory judicial control is to prevent the adoption of arbitrary, unsubstantiated and biased decisions refusing a candidate an appointment to a public office.”
4. The Council of Europe
19. The relevant extracts from the Recommendation CM Rec (2010)12 of the Committee of Ministers of the Council of Europe to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, read as follows:
“48. … Procedures of [the authority taking decisions on the selection and career of judges] should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.”
COMPLAINT
20. The applicant complains under Article 6 § 1 of the Convention that she has been denied access to a court in a dispute over the alleged arbitrary refusal of the HCJ to appoint her to a judicial office.
QUESTIONS TO THE PARTIES
1. Is Article 6 § 1 of the Convention under its civil head applicable in the present case (See, Baka v. Hungary [GC], no. 20261/12, §§ 100-106, 23 June 2016; Juričić v. Croatia, no. 58222/09, §§ 51-57, 26 July 2011; and F.G. v. Greece (dec.) no 58740/11, §§ 44-49, 25 April 2017, with further references therein)?
2. If so, did the applicant have access to a court for the determination of her civil rights, in accordance with Article 6 § 1 of the Convention?
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[1]. Here and elsewhere in the document the reference is made to the provisions of the Act as they stood at the relevant time.
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