Nominee for the Supreme Court on freedom of expression

During his interview, Amiran Dzabunidze, a candidate for the final empty lifetime Supreme Court seat, said that Georgia might limit freedom of expression to prevent "excessive attacks" on the court.

In response to queries from Aluda Gudushauri of the ruling Georgian Dream party, the judge asserted that there is a continuous, "unacceptable" negative campaign in Georgia against the court. He suggested that Article 10 of the European Convention on Human Rights would enable such restrictions "if they are adopted in relation with the Court."

In addition, the Supreme Court nominee said that ongoing court proceedings should not be mentioned in the media so that the public's view is not formed in advance, which would "affect the judge and the case they are hearing."

Opposition MP Mikheil Daushvili of the For Georgia party later grilled the Supreme Court judge candidate about the remark, inquiring about his thoughts on the controversial November 4 statement by the Administrative Committee of the Conference of Judges accusing the EU and US embassies of meddling in the country's internal affairs, as well as subsequent remarks by over a dozen justices distancing themselves from their colleagues.

Judge Dzabunidze added that while he is neither a member of the Committee or a signatory to the November statement, he agrees with the missive's overall spirit. He justified the divisive comments by claiming that it merely expressed "legal opinion" and "stated what is contained in the law."

The top court candidate's remarks on judges being required to refrain from publicly expressing their opinions come as the ruling Georgian Dream party pushes through a contentious bill that would subject justices to disciplinary action if they express unbalanced, immoderate, or politically biased opinions.

The Bangalore Principles state that "impartiality is essential to the proper discharge of the judicial office," and that judges should conduct themselves in and out of court in such a way that "enhances the confidence of the public, the legal profession, and litigants in the impartiality of the judge and the judiciary."

Meanwhile, the European Convention states that exercising freedom of expression may be limited in order to "preserve the authority and impartiality of the judiciary," among other reasons.

Dzabunidze is the acting head of the Appeals Court in Kutaisi. In the Supreme Court nomination process in 2019, he made the shortlist of 50 justices, however the HCoJ did not propose him. He emphasised during the parliamentary session that he had withdrew his candidacy because he did not believe he was ready for "public speaking."

The judge earned a degree in "jurisprudence-management" from the now-defunct private Tbilisi Business and Socio-Economic Management University in 1997, which some in parliament thought was unusual. According to Dzabunidze, the university was denied accreditation in 2005.

He worked both in the public and private sector before assuming his first judicial position in 2011 at Mtskheta District Court. In 2013-2015 he was a judge and chairman of the Khelvachauri District Court in Adjara. In 2015 he was appointed as justice at Tbilisi Appellate Court.

The last vacancy on the Supreme Court filled

The Georgian Parliament elected Amiran Dzabunidze, 46, to replace the Supreme Court's last vacant seat, bringing an end to a two-year process of lifetime appointments that had been harshly criticised by the opposition, civil society, and international allies.

A day after Dzabunidze's contentious interview, in which he argued in favour of curbs on freedom of expression to resist "excessive assaults" against the court, the governing Georgian Dream MPs pushed through Dzabunidze's nomination with 79 votes in favour and 10 votes against.

Dzabunidze, who previously served as an interim chair of the Kutaisi Appeals Court, has now been chosen by the new Parliament, which began in 2020, as the eleventh top court justice. On December 1, GD (Georgian Dream) parliamentarians elected four Supreme Court judges, and on July 12, they elected six more.

The GD's pick of judges in 2021 drew sharp criticism, as the party ignored an EU-brokered agreement with opposition on April 19 to postpone filling any high court seats until judicial reforms were completed. The selection procedure was criticiced for its lack of transparency and impartiality.

After Georgia's drastically modified Constitution went into effect in December 2018, the now-completed judicial selection process began in May 2019, with the goal of raising the number of Supreme Court justices from eight to 28. The High Council of Justice (HCoJ), a body overseeing candidates’ selection, fast-tracked the process settling for a relatively tight time span.

The 2016-2020 Parliament confirmed 14 judges out of 20 nominees for a lifetime appointment to the Supreme Court, however the process was terminated in January 2020. Back then, MP Irakli Kobakhidze stated that the ruling party was studying the Venice Commission's suggestion that no more than half of the Court's justices be nominated by the same Parliamentary convocation.

Controversial Bill to Sanction Justices in Georgia

Georgian Dream MPs have sparked yet another debate by hastening the consideration of modifications to the Law on Common Courts, which aim to limit judges' power to voice unbalanced, immoderate, or politically biased judgments, among other things.

The amendments, which were proposed on December 27, would empower the High Council of Justice to take disciplinary action against judges who are found to have breached the concept. The law also reduces the number of votes required to use such punishments from two-thirds of all fifteen members to just a simple majority.

If passed, the bill would also create additional types of punishment, such as transferring or demoting a judge for up to five years to a separate court. In addition, as part of the revisions, an inspector's service would be established at the HCoJ to investigate suspected judge violations. The bar on the same individual being elected to the HCoJ twice in a row would be lifted under the new regulations.

The move has sparked outrage from courts and civil society, as well as condemnation from US Ambassador Kelly Degnan, who is opposed to another GD proposal to abolish the State Inspector's Service.

The CSOs and opposition perceive the action as allowing the "judicial clan" — a powerful group of justices who control the court – to punish their vocal colleagues who chastised judicial leadership in November for accusing the EU and US embassies of meddling in the country's internal affairs.

Fourteen Georgian justices, most of whom previously criticised the judiciary leadership in November, warned that the proposed changes are an attempt to “weaken independent judges, intimidate them and forbid them from voicing critical opinions.”

The signatories argued that equipping the High Council of Justice will further consolidate authority in the court and limit whatever leverage individual justices could have.

They stressed that the concept of non-interference in the work of justices extends to their rights to engage in judicial activism and to criticise the judgments of the judiciary leadership.

The reforms, according to the justices, would legitimise activities that have long been seen as effective techniques of judicial persecution. "Independent judges stand on independent judiciaries," they stated, adding that maintaining justices' freedom and independence should be a top priority for any government.

On December 28, the Coalition for an Independent and Transparent Judiciary, a group of about 40 civil society organisations (CSOs), decried the expedited review of the proposed amendments, calling it "unfortunate" that it was taking place "in the pre-New Year's period without public participation and consultations."

The watchdogs expressed concern that establishing additional categories of disciplinary misbehaviour and punishments would jeopardise judges' independence. The modifications "give the appearance that the new laws are targeted at penalising specific judges and eradicating any dissent in the system," according to the CSOs.

The watchdogs cautioned that while adoption of these changes would be "unthinkable without public involvement and discussions even in established democracies," such "legislative changes should be considered with even greater caution" in a country where the judiciary's primary challenge is the independence of its judges.

The CSOs claimed that by introducing the proposed changes, the GD parliamentarians have shown their inability to work with the opposition and that they "openly advocate [for] the interests of a powerful group of judges in the judicial system."

The CSOs also noted that the rule prohibiting the election of the same HCoJ member twice in a row was "one of the few good legislative measures" aimed at limiting power concentration, since the judiciary had long been chastised at the Council for "corporatism and clan-based governance."

The CSOs urged Parliament to put the proposed revisions on hold and instead create a forum to explore required justice system reforms and make matching improvements through wide public engagement and consensus.

On December 28, US Ambassador Kelly Degnan met with the chairs of the Legal Issues and Human Rights Committees, Anri Okhanashvili and Mikheil Sarjveladze, to discuss the expedited review process into the changes to the Law on Common Courts, as well as the bill dismantling the State Inspector's Service, urging them to postpone the process in both cases.

Ambassador Degnan told press that she voiced concerns with the Chairs about the "hurried" procedure. "These are both highly significant and delicate pieces of legislation that demand extensive consultation and time to think," she said, adding that "this is what is in Georgia's best interests."