Constitutional Court and Politics: The Case of Georgia

1 Introduction

The Constitutional Court of Georgia was established in 1996. Since its formation, the Court has been empowered to consider individual constitutional claims, disputes over jurisdiction between state bodies, the constitutionality of elections, political parties and the impeachment of officials. Depending on the powers, court decisions have a significant impact on politics and usually politics also influences the Court. It is important to maintain the independence of the Court but achieving this goal is quite difficult in countries where both the judiciary and the political system are in the process of formation. Various forms of political influence on the independence of the judiciary are considered, such as the institutional dimension (influencing/limiting the Court), the personal dimension (influencing/attacking judges) and the procedural dimension (influencing/changing the judgments).^[1]

In this chapter, I argue that in Georgia, especially in the last 10 years, politics has had a strong influence on the Court and judicial independence is in peril. To develop these arguments, the chapter discusses the establishment of the Constitutional Court of Georgia, the political context during the first composition of the Court, as well as during the renewal of the Court after the Rose Revolution, legislative policies implemented after the change of government in 2012 and challenges to the independence of the Constitutional Court, politically active cases and cases of political pressure on judges, as well as independence disputes within the Constitutional Court itself. Finally, conclusions are presented on the results of various political influences on the Court and recommendations for future developments are made.

2 Establishment of the Constitutional Court and the First Composition (1996–2004)

From the very beginning, the Constitution of Georgia established quite balanced rules for the formation of the Court. According to the constitution, each branch of government (President, Parliament, and Supreme Court) appoints three members. The founders of the Constitution believed that this rule of formation of the Court ensured balance and the maximum distance of the Court from politics. More specifically, the legislation provided that ‘A member of the Constitutional Court of Georgia may be a citizen of Georgia from the age of 35 if he/she has a higher legal education. In selecting the members of the Constitutional Court of Georgia, the President, the Parliament, and the Supreme Court of Georgia shall consider the professional experience of a candidate which must be appropriate for the high status of a member of the Constitutional Court.’^[2]

It should be noted that the Constitutional Court was established after the collapse of the Soviet Union, when both the legal system and legal education were in the process of formation. Consequently, the selection of qualified and experienced members for the Constitutional Court had to be made mainly from lawyers with Soviet education and working in the Soviet legal system, which was not an easy task. The first composition of the Court was very diverse: four university professors, the Minister of Justice of the Autonomous Republic, the head of the Prosecutor’s Office, a former member of the Supreme Court, a member of Parliament, a former district prosecutor, a journalist, and a former instructor of the Communist Party have been appointed to the Court.

The Constitution provided for equal participation of all three authorities in the formation of the Court, but this principle could not be fully protected given the political context. The President appointed three members of the Court, but he also played a crucial role in the process of electing the members by the Parliament of Georgia and the Supreme Court by using the control of the parliamentary majority. As for the Supreme Court, according to the law, the candidates of the Constitutional Court judge shall be nominated by the President of the Supreme Court and shall be elected by a two-thirds majority of the plenum of the Supreme Court. The appointment of members of the Constitutional Court by the Supreme Court was very controversial in Georgia at the time of the drafting of the Constitution of Georgia. The dispute was mainly over whether the Supreme Court should have the right to nominate candidates (along with other bodies). There was also a point that the candidates should be judges, however, this was not done because the judges did not want to go to the newly created Constitutional Court.^[3]

The attitude of Georgian policy towards the Court at the initial stage of its establishment was well reflected in the position of President Shevardnadze in 2003 regarding the Court decision that restricted the increase of electricity tariffs. He said that the Constitutional Court should consult the President, or the state minister, on a decision that would affect the budget. He also admitted that several members of the Court had called him and asked to instruct the Minister of Finance to transfer salaries to them. If he was asked about the issue of salaries, he could be consulted on other issues as well. Earlier, the President, at a government meeting, called on judges not to accept the claims of pensioners concerning the payment of pension debts by the government.^[4]

3 The Rose Revolution and the Renewal of the Court (2004–2012)

The first changes in the composition of the Constitutional Court took place in 1999, 2001, and 2003, although significant updates have been made to the Constitutional Court since 2006. These changes coincide with the Rose Revolution in Georgia in November 2004, followed by early parliamentary elections won by the newly elected President, Mikheil Saakashvili’s party – the United National Movement.

In 2006, five new judges were appointed to the Constitutional Court. The members appointed to the Court by the Supreme Court of Georgia were previous members of the Council of Justice. The President appointed the former Minister of Justice, then the Minister of Environment and Natural Resources of Georgia, and the former Deputy Minister of Justice to the Court, and the Parliament elected a university professor. The next change in the Constitutional Court was made in 2007 when the Parliament of Georgia elected a University Professor and a Member of Parliament. In 2009, the Supreme Court elected a University Professor, former Deputy Minister of Education and Science, to the Court. In 2010, the Supreme Court of Georgia appointed another Deputy Minister of Justice. At the Constitutional Court in 2011, the President last appointed a former district prosecutor. According to law, the newly appointed members of the 9-member court were divided into two boards, but in the plenum of the Court, which considers important cases in its full composition, they constituted a majority.

As in previous years, the formation of the Court has been influenced by the Georgian political system since 2004. According to the Constitution, the President and the judges of the Supreme Court are elected by the Parliament by a majority and nominated by the President for a term of no less than 10 years.^[5] Since the launching of judicial reform (2005), 7 new judges joined the Supreme Court.^[6] In 2005, on the nomination of the President of Georgia, the Parliament also elected a new President of the Supreme Court. Thus, since the adoption of the Constitution, shortly after the first change of government in 2004, the ruling party, which controlled the Parliament, the Presidency, and the Supreme Court, completely renewed the composition of the Constitutional Court. Under this government, less politically actual cases were considered by the Court and the decisions of the Constitutional Court did not cause special political tension.

4 Political Impact on the Appointment of Judges of the Constitutional Court (2012–2017)

In 2012, the government was changed in Georgia for the first time through free elections, which was a big step forward for democratic development. The newly appointed Prime Minister Ivanishvili met with the President of the Constitutional Court, reaffirmed his respect and said that no one from the government would dare to exert political influence on the Court, there were practically no questions for the Court, but he added that the government would do everything possible to increase the salaries of judges and increase their independence.^[7] However, soon after this meeting, democratic institutions, including the Constitutional Court, faced a threat due to increased political influence. The new government considered the composition of the Constitutional Court as supporters of the former government, who would prevent them from implementing various changes. That is why the government was interested in the composition and authority of the Court, although according to the official position, legislative changes were implemented to increase the independence and efficiency of the Court. Since this time, a growing influence on the Court has been considered as a ‘hybrid attack’^[8] on the Court and capturing of the Constitutional Court.^[9]

To understand this context, the next paragraphs will examine various cases of political influence in detail. Under the new government, the composition of the Constitutional Court was renewed on 20 March 2015, when the Parliament of Georgia elected Merab Turava as a new judge. According to the law, a simple majority of the list of members of Parliament was sufficient to elect a member of the Constitutional Court.^[10] Nevertheless, in December 2014, Turava failed to collect at least 76 votes and the candidacy was rejected. It is noteworthy that the ruling party had 85 seats in the 150-member parliament until 2016, and in 2016 the party won a constitutional majority of 115 seats.^[11] In 2016 the term of office of four judges of the Constitutional Court expired and two new judges were appointed by the President of Georgia,^[12] one by the Supreme Court,^[13] and one by the Parliament of Georgia.^[14] Another new judge was elected by Parliament in December 2017.^[15] It should be noted that only in 2018 the Parliament determined that at least 3/5 of the votes was required to elect members of the Constitutional Court in Parliament, although by this time all members of the Constitutional Court had already been elected.

Most recently, in December 2019, the term of office of Maia Kopaleishvili, a judge elected by the Supreme Court of Georgia, expired. According to the Georgian law, the appointment of a new judge of the Supreme Court expired on 24 November. However, the Supreme Court violated the law, and a new judge was appointed to the Supreme Court only on 3 April 2020,^[16] when a state of emergency was declared in the country. On 8 April 2020, the swearing-in ceremony of a judge was held at the Constitutional Court of Georgia, which was attended by the President of the Constitutional Court, court staff and media representatives due to the pandemic.^[17] This fact was assessed as an abuse on the Constitutional Court.^[18] Leading NGOs said that the Supreme Court’s move served increasing grip of the ruling party and the ‘clan’ over the judiciary.^[19] In June 2020, the term of office of the President of the Constitutional Court expired, and the Supreme Court appointed another judge, Vasil Roinishvili, who was the only candidate for the post. Roinishvili’s rushed appointment was strongly criticized by the non-judge members of the High Council of Justice, the opposition, and the civil society.^[20]

The process of electing judges to the Constitutional Court has been greatly influenced by the renewal of the composition of the Supreme Court itself. One of the main promises of the Georgian Dream coalition during the 2012 parliamentary elections was freeing the judiciary from the influence of political authorities.^[21] On 4 September 2019, the High Council of Justice published a list of 20 candidates to be submitted to the Parliament for approval. Public hearings of candidates at the Parliament showed that most of them did not even meet the minimum criteria of qualification and professional integrity. Nevertheless, the Georgian Parliament appointed 14 candidates to the Supreme Court of Georgia for life. The ruling party completed the Supreme Court of Georgia in a one-party manner, without participation of the opposition which could be described as an attempt to influence the Court.^[22] The process of selecting judges was criticized by the Organization for Democracy and Human Rights (OSCE/ODIHR)^[23] and the Venice Commission. There was a critical conflict of interest between the members of the Council and the candidates for judges^[24] and selection of candidates by the Council by secret ballot undermined the merit-based selection system.^[25] The Venice Commission criticized the lack of justification and appeal.^[26] The ombudsman also considered that the decisions of the Council were biased in terms of integrity and the evaluation of competency.^[27]

In addition, the leadership of the Supreme Court was changed. Supreme Court judge Nino Kadagidze was elected President of the Supreme Court. Mzia Todua and Shalva Tadumadze, former Chief Prosecutor of Georgia, became the deputy chairpersons of the Court. Both persons were former lawyers of the ruling party leader’s company. This appointment was highly criticized by observer organizations.^[28] Later in July 2021, despite criticism,^[29] the Parliament appointed 6 more judges to the Supreme Court.^[30]

The appointment of a judge of the Constitutional Court during the state of emergency was expeditiously linked to the case in which rules for the election of judges of the Supreme Court were under consideration by the Constitutional Court. There was an assumption that the case should have been considered by 7 judges of the Constitutional Court before Kikilashvili was elected, at that time a decision would have required 4 votes, which the judges in the common court did not have at the Constitutional Court. After the appointment of Kikilashvili, in the composition of 8 judges, it would take 5 votes to satisfy the lawsuit, which could no longer be collected.^[31] Apparently, the Constitutional Court had an attempt to reject one of the most important constitutional claims concerning the judiciary. On 30 July 2020, the Constitutional Court rejected the constitutional claim. In this case, 4 out of 9 judges of the Constitutional Court expressed a dissenting opinion and said that the procedure for selecting judges did not guarantee arbitrariness and impartiality.^[32] The last renewal of the Court took place in July 2021, when the President of Georgia appointed a judge to the Constitutional Court.^[33]

All the above-mentioned facts confirm that by changing the composition of the Constitutional Court in a non-transparent manner, the government gained the first and important political influence on the Court.

5 Legislative Policy and the Independence of the Constitutional Court

In 2017, the constitutional reform in Georgia affected the Constitutional Court. After the constitutional amendments, the only source of authority of the Constitutional Court is the Constitution. Thus, any changes to the authority of the Court should be made only through constitutional amendments. Scholars do not consider it expedient to deprive the Constitutional Court of this authority.^[34] And it is generally believed that the new version of the Constitution has significantly diminished the authorities of the Constitutional Court, the constitutional reform of 2017 cannot be considered as a step forward in this regard.^[35]

Prior to the revision of the Constitution, the Parliament made fundamental legislative changes including the following issues: the Court’s decisions shall be accompanied by the signature of the judges participating in the review and, if available, a dissenting opinion of judges, the Court’s decision becomes valid after publication, publication shall be considered publication in the ‘Legislative Herald of Georgia’ within 15 days, the President of the Court will no longer be nominated by the agreement of the President, the Speaker of the Parliament, and the President of the Supreme Court of Georgia, each judge will be able to nominate his candidacy to Plenum of the Court, a judge may not be required to participate in the hearing of a new case if less than 3 months remain before the expiration of his/her term of office, before the final decision of the disputed act, the right to suspend the validity of the normative act shall be decided by the Plenum by a majority of the full membership instead of the Board, the plenum will be entitled to consider a case if it is attended by 7 out of 9 judges, and the decision will be considered adopted if it is supported by 2/3rds of the full membership, each judge of the Court board, who does not agree with the decision of the majority, will be entitled to request the transfer of the case to the Plenum, expiration of 10-year term of judge automatically terminates its activities, which leads to the consideration of the case back to the initial stage, any dispute concerning the constitutionality of an organic law with respect to human rights (including electoral disputes, the legislation of the Constitutional Court, etc) shall be considered by the Plenum.^[36]

According to the government’s official position, the purpose of change was to correct the legal gaps in the Organic Law of Georgia on the Constitutional Court of Georgia.^[37] The government believed that the Court made political decisions and that there was oppositional, former government political influence on the Court and the changes would strengthen the independence of the judiciary.^[38] According to the Minister of Justice, one of the goals of the changes was not to allow the judges of the Constitutional Court to artificially extend their term of office, as has been the case so far.^[39] The Constitutional Court itself did not agree with this view and assessed the planned changes as a violation of the Court’s reputation,^[40] a deliberate attempt to mislead the public^[41] and a slander.^[42]

Justice Minister Tea Tsulukiani started talking about change in the law on the Constitutional Court, especially after the decision of the Constitutional Court^[43] to release former Tbilisi Mayor Gigi Ugulava from prison. The Minister said that the first board of the Constitutional Court was biased, because it was composed of former political officials of the National Movement and the Court would need an improvement, by reforming or any other way,^[44] and that in the case numerous violations occurred, the signing of the Court’s decision should be made in the deliberation room, the decision was not published in the Legislative Herald of Georgia.^[45] After the amendments to the law, the Minister noted that the cases were not distributed among the Court’s boards in full compliance with the principle of order, and the Court repeatedly violated that rule. Rapid justice is welcome, but not when it is based on political motives.^[46] The court denied the accusation, saying that all four cases submitted by members of the United National Movement were considered by the Court’s plenum, and that the first board was given cases because one board considered similar cases in practice.^[47] The Minister saw the problem in the claimant and the judges working together in the previous government,^[48] but the Court assessed those statements as an attempt to involve the judges in political debates.^[49]

The Minister later made it clear that in the future the Court would have to consider the opinion of the minority judge in the process of making decisions, and the decision would come into force only after its publication in the Legislative Herald.^[50] The court clarified that a dissenting opinion was permitted by law and established by case law. In no case had any judges ever had any kind of delay in creating dissenting opinions. The case was considered in the deliberation room for almost 2 months, the final draft of the decision was voted on a week before the announcement of the decision and the judges had the opportunity to state their position and write a dissenting opinion. The court also noted that the Court’s decision entered into force from the moment of its announcement in the Courtroom and did not and should not depend on its publication by the executive and could not be considered as a precondition for the entry into force of the judgment.^[51]

The adopted legislative changes have been criticized by international organizations. According to the Monitoring Group of the Parliamentary Assembly of the Council of Europe (PACE), the legislative changes were hastily adopted, which undermines the transparency of the process.^[52] They issued a statement^[53] indicating that the role of the Constitutional Court as an independent and impartial arbitrator should be ensured and that the recommendations of the Venice Commission should be taken into account.^[54] The Venice Commission^[55] issued a preliminary report^[56] on the changes, but the parliament approved the law in an expedited manner so that it would not be sent to the Venice Commission. Georgian NGOs noted that the developments cast doubt on the fact that this was a response to the work of the Constitutional Court,^[57] and that Parliament had made changes, especially in the face of particularly tight deadlines, in a closed and opaque process.^[58] The President of Georgia was also critical to the legislative amendment process,^[59] vetoed the law, and Parliament accepted the President’s remarks.^[60] However, Georgian NGOs did not agree with some of the remarks, as they believed that the President did not fully take into account the recommendations of the Venice Commission on certain issues.^[61]

The analysis of the above-mentioned developments shows how big a threat the one-party parliamentary majority and legislative changes adopted without consensus are, how the government can weaken the Court and strengthen political influence by using legislative policy.

6 Dispute Over the Court’s Independence in the Constitutional Court

Since 1996 the Constitutional Court has considered the constitutionality of laws on its powers three times. The first case concerned the right to constitutional claims of foreign individuals and legal entities.^[62] The second case was related to the authority of the Court to extend the term of consideration of the case for 30 days in case of the suspension of the disputed act by the Constitutional Court. In this case, the claimant argued that the disputed act violated the institutional guarantees of the Court, while the Court declared the act unconstitutional and explained that it impacted the effectiveness of the Constitutional Court.^[63] Third, the most extensive changes in the powers of the Constitutional Court became the subject of judicial review in 2016, which is discussed in detail below.

Due to the adoption of a law by the Parliament on the powers of the Constitutional Court, the only way to protect the independence of the Court was to challenge the law to the Constitutional Court. A group of citizens, 38 deputies of the Parliament and the ‘Coalition for Independent and Transparent Justice’ submitted a constitutional claim to the Court. The decision was criticized by the Minister of Justice, who said that the political calendar of NGOs and the National Movement coincided.^[64] Despite protests from the authorities, a large part of the amendments to the Organic Law on the Constitutional Court were declared unconstitutional by the Constitutional Court on 29 December 2016. In particular, the following was declared unconstitutional: the termination of a judge’s term of office immediately after the expiration of 10 years, majority of the full membership of the Plenum for decision-making, the majority of the 6 members of the Plenum to satisfy the claim, the obligation to announce the full text of the Court decision in the Courtroom, the prohibition of re-appointment of the President of the Constitutional Court and Vice President by the same person, the nomination of the candidate for the position of the President of the Constitutional Court by the agreed proposal of the President of Georgia, the Speaker of the Parliament and the President of the Supreme Court. The court considered the norms concerning that stipulated the need for 7 members to consider certain categories of cases by the Plenum, the right of a single member of the board of the Court to suggest transferring the case to the Plenum and to consider the constitutionality of the organic law only by the Plenum. It should be noted that judges Irine Imerlishvili and Maia Kopaleishvili expressed a dissenting opinion on the re-appointment of the President of the Constitutional Court, Vice President, and the right of judge to transfer the case to the Plenum.^[65]

7 Politically Active Cases and Political Pressure on Judges

In 2015–2016, the Constitutional Court of Georgia considered several politically active cases, for example related to Rustavi-2 TV, a former Tbilisi Mayor, and the so-called ‘Cable Case’. During the hearing on these cases, the Court came under political attack from the authorities. The court was criticized for suspending disputed norms before the final hearing, the consideration of the case without an oral hearing, breaking the constitutional claims registration rules^[66] or for other reasons, and it was claimed that the decisions were dictated by certain political motives.^[67] The government claimed that one group of the members of the Court was planning a so-called ‘Constitutional coup’,^[68] intended to declare the election legislation unconstitutional,^[69] until 2012 the Court ruled in favor of the government^[70] and now the courage of the Court to decide on some cases was the merit of the new government.^[71]

The court considered such allegations as gross interference in its activities^[72] and pointed to the high statistics of satisfied decisions, called the allegations baseless and called on the authorities to refrain from discrediting the Constitutional Court.^[73] This controversy intensified when the Court overturned the norms by which a judge of the Tbilisi City Court appointed temporary managers in one of the main opposition television stations.^[74] The Speaker of the Parliament said that the judges of the Constitutional and General Court were secretly making the most important decisions that could have a decisive impact on the country’s near future.^[75] From the Court’s point of view, both law and practice are based on one criterion – the issue of suspension of the norm in an oral hearing is considered only when the Court has questions with the parties to resolve the issue.^[76]

Authorities have accused the Court of speeding up political cases by violating law. Based on this accusation, the composition of the Court was divided into two groups. The presiding judge spoke of political pressure.^[77] Five members of the Court demanded a halting of all high-profile cases before the investigation of the pressure issues ended.^[78] Some other judges also confirmed the pressure,^[79] but the prosecutor’s office said that all judges except the president of the Court, denied any pressure on them.^[80] The judges denied that they were considering the case of Rustavi-2 in a coercive manner and stated that the political case was acquired after the substantive case was transferred to the Plenum of the Constitutional Court for reconsideration. This transfer was triggered by the appointment of a new judge and amendments to the law that allowed one judge to transfer the case to the Plenum of the Constitutional Court. Judges claimed that cases related to human rights were considered a priority.^[81] In this case, the case of Rustavi-2, being associated with the suspension of one of the largest critical television stations in the country, was indeed linked to the protection of freedom of expression and freedom of information.

On the other hand, the cases were postponed in the Court due to the non-appearance of judges. On 2 August 2016, and 1 September 2016, the substantive hearing on the joint claims on the Gigi Ugulava and the so-called Cables Cases was postponed twice due to the non-appearance of judges at the Court hearing. The first session could not be held due to the lack of a Plenum quorum. During the hearing, one part of the judges met with foreign diplomats in Tbilisi to provide information and considered that a short-term delay did not lead to the paralysis of the case.^[82] However, the lawyers of the case assessed this fact as an obstacle to justice, to subject the judges to the political will,^[83] to refuse to exercise justice, and to fulfill the direct orders of the government.^[84] Former Prime Minister of Georgia Bidzina Ivanishvili himself has stated that the Constitutional Court was ruling over the rough governance of the United National Movement.^[85]

Effective control of the Court was also obstructed by delaying of announcing the Court’s decisions. According to the law, the decision of the Constitutional Court is made by a majority. All judges (regardless of their position) participate in the hearing of the case before signing the decision. The decision of the Constitutional Court on the case of ‘Georgian citizen Giorgi Ugulava versus Parliament’ should have been announced on 15 September 2015, however, due to the illness of one of the judges participating in the hearing, the hearing was postponed. The judge was asked to sign the decision at the desired time and place, which he refused. The President of the Constitutional Court then visited him at the hospital together with the judges, but the judge did not sign the decision. He explained to media that the refusal to sign was not related to his illness and the Court did not give him a reasonable period of time to study the 50-page decision.^[86] The Constitutional Court noted that all members of the plenum of the Court had a reasonable time to review the draft decision, express their views and exercise their powers, which were fully realized by the other members of the Plenum.^[87] The judge’s explanation was considered as unreliable, the decision was unanimously adopted by a majority,^[88] and the judge’s actions were considered a violation of ethics.^[89] The court handed the matter over to the Constitutional Court’s Ethics and Disciplinary Committee^[90] to investigate the case, but in the end none of the members of the Court voted for the termination of term of office of the judge.

The effect of political influence on the Court may have been expressed in cases of refusal and self-disqualification of judges of the Constitutional Court. For example, the Parliament demanded the recusation of Ketevan Eremadze and Konstantine Vardzelashvili, members of the First board of the Court in the Ugulava, Cable, and Rustavi-2 cases. However, the Court did not accept that initiative. On 15 September 2016, the claimant’s lawyer asked the Court in Ugulava’s case to recuse two members of the Plenum, Otar Sichinava and Merab Turava, because, according to the claimant, they intended to deliberately delay the case, which was in the interest of the current government, but the Court did not confirm this request in that case either.^[91] In addition, Judge Lali Papiashvili demanded self-recusation in the so-called politically active cases, but the Court rejected her request.^[92]

A form of external pressure was an active criticism of the President of the Court by the Minister of Justice. Tensions escalated when the President said that in exchange for close co-operation, the Minister had offered him and another judge of the Court to continue their membership in the Venice Commission.^[93] This fact was assessed as a threat to the independent and impartial implementation of justice.^[94] However, the Minister later mentioned that one of the goals of his activity was to complete the term of office of the President of the Court. Following the Minister’s remarks, family members of the President of the Court received a threatening and insulting phone message from an unknown person and an investigation was started.^[95] Such controversy has clearly shown that this process has affected the independence and effectiveness of the Court.

In addition to the above facts, the announcement of decisions on the so-called politically active cases was accompanied by protests of pre-organized groups against judges, which clearly contained marks of wrongdoing, including a demonstration in front of judges’ homes.^[96] However, the law enforcement agencies did not respond to these facts, and the Speaker of the Parliament^[97] and other political officials^[98] assessed the actions as a field protected by freedom of expression. The President of the Venice Commission, Gianni Buquicchio, said that the public had the right to criticize the decision, though the form of critical expression should be within the law and that it was important to respect the personal space of judges and their families.^[99] A similar protest was held in front of the courthouse in 2018, organized by separate groups of the Orthodox Church^[100] and convened with the blessing of Archbishop of Batumi and Lazeti Diocese.^[101]

All the above-mentioned facts confirm that the political pressure on the Court was intensified by hearing the so-called politically active cases. There was a perception in the society about a so-called division of judges of the Court according to the political interests.^[102] Pursuant to the experts, the amendments to the legislation of the Court and the attack on the Court started after the decision on the case of Rustavi-2. According to human rights defenders, if the television station had become Kibar Khalvashi’s, the editorial policy would have changed, no one would have touched the Court.^[103] Scholars thought that the goals of the actions were to be obedient to the government, when the ruling party had the legislature, the executive, or the constitutional majority, and constitutional reform took place, then the President, the only impediment to the institution, was the Court, which would also be paralyzed. In fact, power would have been in the hands of one actor in all branches of government.^[104] Such attitudes were felt not only within the country. The Venice Commission pointed out that the Constitutional Court had experienced external and internal pressures, judges should be completely independent and not be influenced by politicians.^[105] According to the opposition, the government finally achieved its goal – to delay the hearing of high-profile cases in the Court, and the judges involved in this process succeeded^[106] when the government had a political interest in the Court.^[107]

Several issues related to politics remain before the Constitutional Court. First of all, a constitutional case filed by the Public Defender to the Court in 2017 contesting the constitutionality of the legislation on secret investigative actions (wiretapping), although the Court has not yet ruled on it.^[108] The court also considered the termination of the mandate of the opposition leader by the Parliament, and considered it constitutional.^[109] The decision of the Constitutional Court, which considered the legislation related to the COVID-19 pandemic to be constitutional, became the subject of political debate.^[110] The court has also considered a highly extraordinary claim by MPs who boycotted Parliament, when they refused to enter Parliament, although the Parliament did not terminated the mandate.^[111]

8 Conclusions

In conclusion, one of the main challenges to the independence of the Constitutional Court since the establishment of the Court in Georgia has been the lack of separation of powers and the almost permanent one-party political system which significantly impacted the court’s independance. In 2012–2020, the only institution that the government could not control was the Constitutional Court. That is why the government tried to influence it by renewing its composition and making legislative changes.

To avoid political influence, it is important to improve court formation procedures. The procedure for electing members of the Constitutional Court by the Supreme Court should be an open, transparent process, and the appointment of qualified judges should be ensured. The nomination, hearing, and election of judges in the Parliament should be a non-formal, open, transparent process, and based on the consensus of political parties. Candidates to be nominated by the President should be known to the public in advance, and the process should be more transparent.

Although the government of Georgia failed to fully implement the planned legislative changes, such intervention still had a certain impact on the independence of the Constitutional Court. First of all, this is related to the forced appointment of people loyal to the government in the Constitutional Court including under the state of emergency, as well as the election of the former leader of the ruling party as a judge, which raised doubts about the independence of the Court. Such a decision, which is an indicator of political influence, was made despite the fact that the government itself protested the appointment of political figures of the former government as judges. In addition, the effectiveness of the Court remains a problem, as the announcement of court decisions on various cases continues to be delayed.