FIFTH SECTION
CASE OF TSULUKIDZE AND RUSULASHVILI v. GEORGIA
(Applications nos. 44681/21 and 17256/22)
 
JUDGMENT
 
Art 6 § 1 (civil) • Impartial tribunal • Objective test • Participation of judge on Supreme Court three-member panels rejecting applicants’ respective claims, his judicial assistant being the daughter of the lawyer representing the respondent company • Judicial assistants’ functions, as provided for in national legislation, not only administrative in nature • Participation of judge, coupled with broad mandate given to judicial assistants in Georgian judicial system, capable of raising legitimate fears as to his objective impartiality • Failure of Supreme Court to dispel applicants’ doubts • Lack of sufficient procedural safeguards
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
29 August 2024
 
FINAL
 
17/03/2025
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tsulukidze and Rusulashvili v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Mattias Guyomar, President,
 Lado Chanturia,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 María Elósegui,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the applications (nos. 44681/21 and 17256/22) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Georgian nationals, Mr Zurab Tsulukidze (“the first applicant”) and Mr Levan Rusulashvili (“the second applicant”), on 10 August 2021 and 24 March 2022 respectively;
the decision to give notice to the Georgian Government (“the Government”) of the complaints under Article 6 § 1 of the Convention concerning the lack of impartiality of the Supreme Court and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 11 June and 9 July 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged lack of impartiality of a judge who was a member of three-judge panels of the Supreme Court which rejected claims brought by the applicants; the alleged lack of impartiality arose from the fact that his judicial assistant was the daughter of the lawyer representing the respondent company in both sets of proceedings. The applicants complained under Article 6 § 1 of the Convention. THE FACTS
2. The applicants were born in 1959 and 1973 respectively and live in Tbilisi. The first applicant was represented before the Court by Mr A. Kaikatsishvili, Ms L. Zukhbaia and Mr K. Uridia, lawyers practising in Tbilisi. The second applicant was represented by Mr S. Makharadze, a lawyer practising in Tbilisi. 3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. 4. The facts of the case may be summarised as follows. BACKGROUND INFORMATION
5. Both applicants were employed at the material time in managerial positions at the Joint Stock Company Telasi (hereinafter “Telasi”), the main electricity distribution company in Tbilisi. On 11 January 2016 the director general of the company initiated its reorganisation, as a result of which the applicants’ departments were liquidated with their functions being transferred to other departments. On 8 August 2016 the first applicant was informed that his contract would be terminated, and he was offered another position within the company. He declined that offer and on 30 August 2016 was dismissed from the company. As for the second applicant, he was dismissed from the company when his contract was terminated on 4 March 2016. He received compensation amounting to two times his monthly salary. CIVIL PROCEEDINGS LODGED BY THE FIRST APPLICANT
6. On 7 September 2016 the first applicant brought civil proceedings against his former employer, requesting the reinstatement in his previous position and the payment of salary arrears. On 1 November 2018 the Tbilisi City Court rejected his claim. The court found that the applicant’s dismissal, in view of the reorganisation of the company and the ensuing liquidation of his department, had been legal. Moreover, he had been offered an alternative position, which he had declined. The applicant appealed against that decision, but it was upheld in full by the Tbilisi Court of Appeal on 23 December 2019. 7. The applicant lodged an appeal on points of law with the Supreme Court of Georgia. The case was assigned to a formation of three judges with Judge L.M. presiding and acting as rapporteur. On 23 April 2020 the applicant requested the recusal of Judge L.M. In particular, he alleged that Judge L.M.’s impartiality was undermined because his judicial assistant, G.D., was the daughter of the lawyer representing Telasi in the proceedings. The applicant noted in that connection that that lawyer, who was also the company’s in-house lawyer, had been personally in charge of preparing the decision dismissing him from the company. 8. On 4 June 2020 the Civil Chamber of the Supreme Court, sitting in a panel of two judges without Judge L.M. taking part, examined and dismissed as unsubstantiated the applicant’s request for Judge L.M.’s recusal. The chamber ruled that the circumstances referred to in the application for recusal were insufficient to cast doubt on Judge L.M.’s impartiality on the basis of Article 31 § 1 (d) of the Code of Civil Procedure (see paragraph 20 below). In particular, it observed the following:
“... In the present case, the appellant claims that ... [one of the judges is not impartial because of] the fact that the daughter of the employer’s representative (who is at the same time the head of the respondent party’s legal service) is the assistant of Judge [L.M.], who is directly involved in the examination of the case.
... The mere fact that the daughter of the respondent party’s representative is the assistant of Judge [L.M.] does not automatically create a basis for [his] recusal. The [Supreme Court] notes that the fact of the assistant influencing the conduct of the judge has not been proven. Accordingly, the factual circumstances referred to by the appellant are not sufficient to consider that the judge is biased.”
9. On 3 March 2021 the applicant lodged another application in which he requested the recusal not only of L.M., but of all three judges on the panel. Along with reiterating his allegations concerning Judge L.M. and his judicial assistant, the applicant submitted that the other two judges on the panel were acquaintances of the respondent company’s lawyer. He referred to a previous decision of the Supreme Court in an unrelated case in which it had considered problematic the fact that a judge’s judicial assistant had been married to a legal representative of one of the parties to the proceedings. With reference to the above precedent, he again requested the withdrawal of Judge L.M. 10. On 5 March 2021 the chamber, with all three judges sitting, rejected the applicant’s request as unsubstantiated. While referring to the subjective and objective tests of impartiality as defined in the case-law of the Court, it concluded that the fact of bias on the part of the relevant composition of the Civil Chamber had not been proved. It further observed that the fact of judges knowing someone related to either of the parties to the proceedings did not automatically constitute a ground for their removal, since mere acquaintance did not imply that the judges concerned had an interest in the outcome of the case. As to the allegations concerning the judicial assistant of Judge L.M., the chamber simply noted that they had already been duly examined by the Civil Chamber on 4 June 2020 and that the factual circumstances indicated by the applicant were not sufficient to show that the judicial assistant had influenced L.M. Hence, there was no basis on which to call into question his impartiality. In that connection the chamber observed the following:
“... [T]he composition dealing with a case delivers a decision on the basis of the factual circumstances and evidence available in the case file. At the same time, judges have no right to disclose the substance of the deliberations (Article 28 of the Code of Civil Procedure). The secrecy of the deliberations guarantees the right of a judge to express freely and without any constraint his or her opinion about the decision or any related issue. The [deliberations] cannot become known to anyone, including judicial assistants. ... [S]ince the fact of the judicial assistant influencing the conduct of the composition of the [Civil Chamber] has not been proved, the allegation of the appellant that the [daughter] of the respondent party’s lawyer had access to the judicial process is unsubstantiated.”
11. On 5 March 2021 the Civil Chamber of the Supreme Court, with Judge L.M. presiding and acting as rapporteur, rejected the applicant’s appeal on points of law as inadmissible. The applicant was notified of the decision on 25 July 2021. CIVIL PROCEEDINGS LODGED BY THE SECOND APPLICANT
12. On 5 June 2018 the second applicant lodged a civil complaint against his former employer requesting reinstatement in his previous position and the payment of salary arrears. By a decision of 26 October 2018 the Tbilisi City Court granted the applicant’s claim in part and awarded him compensation in the amount of 27,360 Georgian laris (about 9,500 euros). His request for reinstatement was dismissed. On appeal, on 16 July 2020, the Tbilisi Court of Appeal confirmed in full the first-instance court decision. 13. The applicant lodged an appeal on points of law with the Supreme Court of Georgia. The case was assigned to a panel of three judges, which included Judge L.M., with Judge M.E. presiding and acting as rapporteur. On 4 March 2021 he requested the recusal of the three judges examining his case on the basis of Article 31 § 1 (d) of the Code of Civil Procedure. In particular, he alleged that the panel’s impartiality was undermined because the judicial assistant of Judge L.M., was the daughter of the lawyer representing Telasi in the proceedings. He stressed that that lawyer was also the head of Telasi’s legal department and was a direct subordinate of its director general. As to the remaining two judges on the panel, the second applicant alleged that they were “close acquaintances” of the legal representative of the respondent company. 14. In support of his request, the applicant referred to a previous decision of the Supreme Court in an unrelated case in which it had noted that a judicial assistant to a judge rapporteur could be tasked with the preparation of a case for examination by a court (see paragraph 27 below). 15. On 5 March 2021 the Supreme Court, with the same three judges on the panel, dismissed the second applicant’s request as unsubstantiated. The panel noted the following:
“The Supreme Court considers that in the present case the fact of the bias of the court composition is not proven. The ... [appellant’s contention] that two of the judges examining his case are acquaintances of the lawyer representing the respondent party is only [the appellant’s] subjective assumption. At the same time, even if true, [such acquaintance] does not necessarily constitute a ground for recusal since the fact of acquaintance [would] not [imply] that the judges [concerned] have an interest in the case ... and its outcome.
...
... The mere fact that the daughter of the respondent party’s representative is the assistant of Judge [L.M.] does not automatically create a basis for [his] recusal. The [Supreme Court] notes that the fact of the assistant influencing the conduct of the judge has not been proved; accordingly, the factual circumstances referred to by the appellant are not sufficient to consider that the judge is biased.
... The panel notes that the composition examining the case takes a decision on the basis of the factual circumstances and the evidence present in the case file; at the same time, the judges do not have a right to make public the discussion they had during the court deliberations (Article 28 of the CCP of Georgia). The [principle of] secrecy of deliberations guarantees a judge’s freedom to express his or her own opinion about a decision or any other issue freely and without any pressure. [The opinion of a particular judge on a panel] cannot become known to anyone, including a judicial assistant.”
16. The panel went on to conclude, with reference to the principle of the secrecy of deliberations and related judicial responsibilities, that the allegation that the judicial assistant had had access to the judicial process as such was unsubstantiated. 17. On 24 November 2021 the Civil Chamber of the Supreme Court, with Judge L.M. in the composition, rejected an appeal on points of law by the applicant as inadmissible. The applicant was notified of that decision on 18 January 2022. RELEVANT LEGAL FRAMEWORK AND PRACTICE
NATIONAL LEGISLATIONConstitution

18. Article 63 of the Constitution reads as follows:
 Article 63. Judge 
“1. A judge shall be independent in his or her functions/activities and shall abide by the Constitution and the law alone. Any pressure exerted on a judge or any interference with his or her functions/activities for the purpose of influencing his or her decision-making shall be prohibited and punishable by law. No one shall have a right to request a judge to report about a specific case. Any act that limits judicial independence shall be null and void.
...”
The Code of Civil ProcedureRules on recusal

19. Article 28 of the Code of Civil Procedure (“the CCP”) provides for the secrecy of judicial deliberations. In particular, it states that judges must not disclose the substance of such deliberations. 20. Article 29 of the CCP establishes the grounds precluding a judge from participating in a civil case. It states that a judge may not take part in the examination of a case at the appeal or cassation levels if he or she has previously participated in the same proceedings before a lower court. Article 30 of the CCP provides that judges who are related to one another may not sit on the same panel. 21. Article 31, which lists other grounds for the recusal of a judge, reads as follows, in so far as relevant:
Article 31 – Other grounds for recusing a judge
“1. A judge may not hear a case or take part in its examination if he or she:
(a) is a party [to the proceedings] ...;
(b) has participated in the case as a witness, an expert, a specialist, an interpreter, a legal representative, or a court secretary;
(c) is a relative of either of the parties or their legal representatives;
(d) is personally interested, either directly or indirectly, in the outcome of the case, or if another circumstance exists that might cast doubt on his or her impartiality;
...”
22. Article 34, which regulates the procedure for ruling on recusal requests, reads as follows, in so far as relevant:
Article 34 – Rule on deciding recusal requests
“ ... 4. If a recusal request concerns one of the judges on a composition, the issue of [his or her] recusal shall be decided by the remaining judges without [his or her] participation. ... 5. If a recusal request concerns the entirety of a composition or its majority, the issue of the recusal shall be decided by a majority vote of that same composition. ...”
23. Article 35 of the CCP provides for the possibility of requesting the recusal of an expert, a translator, a specialist or a court secretary on the basis of the grounds provided for in Article 31 § 1 of the Code. Preparation of cases and the role of judicial rapporteurs
24. Article 200 of the CCP, which regulates issues concerning the preparation of cases for examination by a court, states that if a case is examined by a panel of judges, its preparation is assigned to one judge from the composition. A judge may ask his or her judicial assistant to prepare the case for examination by the court. 25. Article 396 § 4 of the CCP states that it is the role of the judge rapporteur assigned to a specific case to verify that an appeal on points of law has been lodged with the Supreme Court in accordance with the procedure provided for by law, and that he or she is to decide on the above matter alone without oral deliberations. Article 408 of the CCP further states that a judge rapporteur prepares a case assigned to him or her for oral examination. Law of 13 June 1997 on Courts of Ordinary Jurisdiction
26. Section 58 of the Law on Courts of Ordinary Jurisdiction reads as follows:
Section 58 – Judicial assistant and court secretary
“1. A judicial assistant shall receive citizens, accept their complaints and applications, prepare cases for court hearings, conduct research on relevant legal materials and court practice, draft relevant documents, and perform, at the request of a judge, other duties related to the examination of a case.
...”
Practice of the Supreme Court
27. In a decision of 30 July 2018 (no. a-5075-b-10-2017), the Supreme Court stated that it was the role of a judge rapporteur, in line with Article 396 § 4 of the CCP, to personally prepare a case for examination by a court. The Supreme Court further clarified that Article 200 of the CCP, which allowed a judge to delegate the preparation of a case for examination to his or her judicial assistant, concerned only judicial assistants to judge rapporteurs. INTERNATIONAL MATERIAL
28. The relevant parts of Opinion no. 22 (2019) of the Consultative Council of European Judges (CCJE) on the role of judicial assistants (CCJE(2019)6, dated 7 November 2019) read as follows (footnotes omitted):
B. The role of the judge and the role of the judicial assistant
... 2. The role of the judicial assistant
“19. The role of the judicial assistant follows from the role of the judge. Judicial assistants must support judges in their role, not replace them. Whatever their duties are, they must be supervised by the judge or judges who remain responsible for the decision-making in all aspects. However, by supporting judges in their adjudicative process, judicial assistants are involved in the exercise of judicial tasks. Therefore, they must comply with the highest professional and ethical standards and thereby help to build high public trust in judicial institutions.”
G. Professional conduct
1. Impartiality
“55. The parties coming to court will expect impartiality not only from the judge hearing their case but also from a judicial assistant supporting the judge working on the case. Therefore, judicial assistants have a duty to reveal any conflict of interest. Moreover, member States should consider introducing rules demanding that judicial assistants recuse themselves according to the same criteria as apply to the recusal of a judge. The CCJE recommends that member States consider introducing regulation allowing parties to challenge the participation of a judicial assistant.”
29. The Bangalore Draft Code of Judicial Conduct 2001 (hereinafter “the Bangalore Principles”) was adopted by the Judicial Group on Strengthening Judicial Integrity and revised at the Round Table Meeting of Chief Justices held in The Hague in November 2002. The relevant principles contained therein read as follows:
“VALUE 2: IMPARTIALITY
Principle: Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.”
THE LAW
JOINDER OF THE APPLICATIONS
30. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court). SCOPE OF THE APPLICATIONS
31. The Court notes that only the applicants’ complaints under Article 6 of the Convention concerning the lack of impartiality of the Supreme Court were notified to the Government on 14 October 2021 (application no. 44681/21) and 15 November 2022 (application no. 17256/22). Therefore, the remaining complaints under Articles 6, 8, 13 and 14 of the Convention that were set out by both applicants in their observations (of 20 June 2022 and 3 July 2023 respectively) in reply to those submitted by the Government fall outside the scope of the present case. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
32. The applicants complained under Article 6 § 1 of the Convention that the Supreme Court’s impartiality had been compromised because the daughter of the respondent company’s lawyer was the judicial assistant of one of the judges, L.M., on the panel which had examined their cases and rejected them as inadmissible. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
AdmissibilityThe parties’ submissions

33. The Government submitted that the applicants had failed to comply with the six-month time-limit as their request for Judge L.M.’s recusal had been rejected by the Supreme Court in its decisions of 4 June 2020 (application no. 44681/21) and of 5 March 2021 (application no. 17256/22), whereas the present applications had been lodged with the Court only after the termination of the relevant civil proceedings, that is to say, on 10 August 2021 and 24 March 2022 respectively. They also argued that the complaint under Article 6 § 1 of the Convention about Judge L.M.’s alleged lack of impartiality was inadmissible for failure to exhaust domestic remedies as the applicants had failed to seek the opening of disciplinary proceedings against Judge L.M. Alternatively, the Government submitted that the complaint was in any event manifestly ill-founded as the applicants’ applications for Judge L.M.’s recusal, and in particular their allegations that L.M.’s judicial assistant had been involved in or otherwise influenced the relevant court proceedings, had been unsubstantiated. The applicants disagreed.

Article of the Convention at issue: Article 6
Outcome: violation