16 August 2022
A couple of days ago, the American Embassy submitted a written document to the Parliament of Georgia on judicial reform, which further supports our conclusion that all the efforts of the Embassy are aimed at weakening state institutions and strengthening the radical opposition.
Let’s start with the fact that, while the embassy “recommends” just nine times to the Parliament on certain subjects, the term “must” appears 60 times in the text of the above-mentioned document. Even this fact alone demonstrates a wholly contemptuous and impolite attitude toward Georgia’s governmental institutions and sovereignty. Such a paper can only be described as “instructions”, which, regrettably, brings to mind the Soviet era and the dramatic associations that go along with it.
Of course, the embassy is free to voice its opinions on Georgian law. An embassy working in a sovereign state, however, and infused with respect for sovereignty, should limit itself to the issue of justice while giving suggestions and in no instance tamper with expediency. In particular, the embassy may assert that a specific legal standard is unjust, but it should not assert that it has the authority to amend these standards as long as Georgian sovereignty is respected.
Unfortunately, a pernicious practice of embassy personnel sitting in working groups and taking part in the drafting of laws had been created during the previous few years. No matter how strategically important the relationship between the two states is, such a practice is totally wrong in a sovereign state. We will do all in our power to stop this kind of behavior in the future, and laws will only be drafted by representatives of state institutions that have been given the proper legitimacy based on the Georgian Constitution, in accordance with democratic and people’s sovereignty principles.
It’s important to note that the embassy asks the Georgian Parliament to amend five constitutional provisions. In addition, the standards we are discussing have previously undergone a fair and perfect evaluation by the Venice Commission. This is another illustration of a disrespectful and contemptuous attitude toward the state. One of the key tenets of the state’s stability is the stability of the constitution. Once again, the embassy’s persistent attempts to persuade the Georgian Parliament to amend the country’s constitution lead us to believe that weakening the stability of the state is a kind of goal in itself for the embassy.
The document delivered by the embassy to the Parliament of Georgia contains a number of problematic and absurd instructions, however, we will focus the public’s attention on only three of them today. These are: the use of the qualified majority rule in the election and appointment of judges, the election of the presidents of the courts, and the appointment of three Supreme Court judges for lifetime tenure.
The embassy instructed the Georgian Parliament to elect the Supreme Court judges using a 3/5 majority rather than in the usual manner. Additionally, the Supreme Council of Justice must receive the approval of both 2/3 of its judicial members and 2/3 of its non-judicial members in order to select or propose a judge. This requirement is known as the double 2/3 majority. First off, it’s important to highlight that there are no precedents for the standards suggested in the embassy’s guidance in democracies. In order to make it clear to the general public, if this directive is followed, the opposition assumes complete control over the decision to designate judges. The National Movement will be able to introduce the judges it wants into the system since no judge cannot be elected or appointed without the approval of the National Movement and its satellites. In regards to the judges headed by the embassy and the National Movement, society suffered greatly from this period of time (2004–2012) and it cannot be repeated. The practically zero acquittal rate, the worst pre-trial, and administrative detention data, the bail and fine ratio, and the extent and systematic nature of the issues from 2004 to 2012 are undeniably confirmed. It is notable that the National Movement’s theft of power started with the court in 2004. We all recall how the embassy and the National Movement worked in perfect synchronization to maintain the legal system, which has since evolved into one of the principal engines of authoritarianism, repression, social pressure, and commercial exploitation. Additionally, Saralidze’s case demonstrated that even a single unfavorable court ruling might result in significant unrest and revolutions across the nation. The public can determine for themselves what and how the embassy and the National Movement will employ the several dozen judges they might introduce into the system in these circumstances. We must take all necessary steps to prevent the worst reality formed prior to 2012 from reentering the legal system.
Election of court presidents means introducing politics into the judicial system, provoking personal conflicts between judges, and destabilizing the system. It is for these reasons that the election of court presidents has no analogues in developed democratic countries. In such conditions, the reason why the embassy gives the instruction to introduce the election of presidents of courts, we believe, is not difficult to guess.
The third directive from the embassy is wholly unexpected: the three acting Supreme Court judges, Nino Bakakuri, Ekaterine Gasitashvili, and Zurab Dzlierishvili, should be chosen to lifetime tenure. The Supreme Council of Justice of Georgia and the Georgian Parliament make this judgment in accordance with Georgian law. Even the Central Committee of the Communist Party of the Soviet Union would be jealous of the embassy’s impolite interference in the council and parliament’s decision-making process based on the competition. Judge Nino Bakakuri is one of the least disciplined judges in the entire system, it should be emphasized here. As it turned out, from 2017 to the present, she has handled 560 instances involving deadline violations, whereas Zurab Dzlierashvili, another judge suggested by the embassy, has only done so once over the same time period. Even more concerning is the fact that, during the same time period, Nino Bakakuri broke the law’s one-month deadline for the creation of a reasoned decision on cases that had already been considered in 271 out of 626 instances, while the parties had been patiently awaiting a decision in 213 of those instances for more than two years. Let the community make its own judgments about the circumstances that led to the embassy’s special sympathy for judge Bakakuri. When the embassy, on the one hand, interferes with the Supreme Court’s staffing and, on the other hand, demands the lifetime appointment of a judge who poses a significant barrier to the timely consideration of cases in court, there is increased reason to suspect that the embassy is deliberately working to bring about the Supreme Court’s collapse in order to undermine the system.
Of course, all this once again reminds us of the pressure exerted by the embassy on judge Chkhikvadze and confirms our conclusion that encroaching on the independence of the court is one of the main priorities for the embassy. During the past three years, the public has mainly observed two attempts of the embassy: first, it was the change of government against the will of the people and the return of the National Movement to power, and second, through the same National Movement, penetrating the judicial system.
The embassy’s complete ignorance of the main constitutional body of justice – the Supreme Council of Justice and selective approach to judges confirm the goal of encroaching on the independence of the court and penetrating it. In accordance with clan principles, the embassy has selected about ten favorite judges who enjoy special privileges when planning visits, trainings, and seminars. In general, during the organization of the mentioned event, which is carried out bypassing the Supreme Council of Justice, a discriminatory approach can be seen, behind which is the interest of maintaining and expanding the circle of favored judges. The continuation of the aforementioned is the unexpected and unscheduled visits of the ambassador to the courts, which, naturally, serve exactly the same purpose. These issues require strict legislative regulation so that neither the embassy nor any other interested entity can establish clan and selective approaches in the judicial system in the future.
From the perspective of state sovereignty, we think that sacrificing the independence of the court is worse than sacrificing the legislature and executive branch. The next elections can theoretically resolve this issue in a few years if the National Movement returns to power, but if the judicial power is usurped, the state will be faced with an enduring and unfixable issue. A state with outside influence on the judiciary has no sovereignty. We shall therefore focus all of our efforts on preserving the judiciary’s independence.
P.S. Following the release of our prior statement, a fresh line of the embassy’s criticism of the administration emerged, which was initially expressed by the embassy and Toomas Ilves, one of the National Movement’s lobbyists. Recall that Ilves was the one who recently publicly urged Georgia to declare war on Abkhazia and Tskhinvali. Instead of responding positively to our statement, the embassy is now threatening international isolation for the nation under the guise of trade in goods that are prohibited. Evidently, they were irritated by the unmasking and giving the embassy the truth. Therefore, extraordinary caution should be exercised by both the government and the general population in order to protect the nation from the associated threats.