FIFTH SECTION
CASE OF GLOVELI v. GEORGIA
(Application no. 18952/18)
 
JUDGMENT
 
Art 6 § 1 (civil) • Access to court • Inability of judicial candidate to seek judicial review of decision refusing to appoint her to a judicial post • Art 6 applicable • Genuine and serious dispute over “right” in domestic law to a fair procedure in the examination of an application for a judicial post • Second condition of the Eskelinen test not met • Exclusion of the applicant, who met statutory eligibility requirements, from a judicial competition, without judicial review, not in the interest of a State governed by the rule of law • Link between integrity of judicial appointment process and requirement of judicial independence • Importance of procedural fairness in cases involving selection, appointment and career of judges • Very essence of right of access to court impaired
 
STRASBOURG
7 April 2022
FINAL
 
07/07/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gloveli v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Ganna Yudkivska,
 Lətif Hüseynov,
 Lado Chanturia,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Kateřina Šimáčková, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 18952/18) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Ms Marina Gloveli (“the applicant”), on 3 April 2018;
the decision to give notice to the Georgian Government (“the Government”) of the complaint concerning access to a court and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 18 January and 15 March 2022,
Delivers the following judgment, which was adopted on the latter date:
INTRODUCTION
1. The case concerns the applicant’s complaint under Article 6 § 1 of the Convention of a violation of her right of access to a court on account of her inability to have recourse to a judicial review of the decision refusing to appoint her to a judicial post. THE FACTS
2. The applicant was born in 1958 and lives in Tbilisi. She was represented by Ms L. Mukhashavria, a lawyer based in Kvemo Shukhuti. 3. The Government were represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background
5. The applicant is a practising lawyer in Georgia with more than twenty years’ experience. Between 1999 and 2005 she also served as a judge in the Tbilisi Court of Appeal. Subsequently, she participated in competitions for vacant judicial positions six times, most recently in October 2017. All of her applications were unsuccessful. The present case concerns the procedure related to her latest attempt to seek appointment (see paragraphs 9-10 below). Proceedings before the Constitutional Court
6. On 9 February 2016, following one of the judicial competitions, the applicant and two other unsuccessful candidates lodged a constitutional complaint with the Constitutional Court alleging that sections 36(4), 49(1)(a) and 50(4) of the Act of 13 June 1997 on Courts of Ordinary Jurisdiction (“the Courts Act”) did not comply with Articles 29 and 42 of the Constitution. They alleged, inter alia, that they did not have access to a court to assert their constitutional right to a fair procedure in admission to public service as no court had jurisdiction to examine disputes related to judicial appointments. 7. On 10 March 2017 amendments to the Courts Act entered into force, by which the High Council of Justice (“the HCJ”) decisions concerning judicial appointments became amenable to appeal before the Supreme Court (see paragraphs 18-20 below). 8. On 7 April 2017 the Constitutional Court rejected the above-mentioned constitutional complaint, concluding that the newly introduced amendments to the Courts Act, by creating a new judicial remedy, had essentially resolved the issue raised by the complainants (see paragraphs 21-22 below). It noted, in particular, that in the context of that specific dispute, the new legislative amendments had implemented the complainants’ constitutional right of access to a court by establishing the Chamber for the Review of Judicial Appointments (საკვალიფიკაციო პალატა) of the Supreme Court (“the Qualifications Chamber”), which had jurisdiction to examine appeals concerning the allegedly arbitrary refusal of judicial appointments. Application for a judicial vacancy
9. On 18 October 2017 a new judicial competition was announced by the HCJ. The applicant applied for a vacant position as a judge in a court of appeal. As part of the application, she submitted various documents confirming her professional and academic achievements (see for the relevant procedure paragraph 16 below). Having reviewed the documents submitted by the applicant, on 25 November 2017 the HCJ announced that the applicant had been admitted for the participation in the competition (see paragraph 16 below). After conducting a background check, on 29 December 2017 members of the HCJ interviewed her, and individually conducted assessments using score sheets. 10. On 20 January 2018 the applicant was notified that her application for the vacancy had been rejected (განაცხადი უარყოფილია) as she did not meet the minimum competency score. She later obtained copies of the score sheets filled in by each member of the HCJ who had interviewed and assessed her. Proceedings before the Supreme Court
11. On 2 February 2018 the applicant lodged an appeal with the Qualifications Chamber seeking invalidation of the decision of the HCJ on the basis of section 354 (3)(b) of the Courts Act. She alleged that the decision was arbitrary and discriminatory. In support, she submitted as evidence a recording of a televised statement by N.J., a non‑judicial member of the HCJ, who had claimed that throughout the competition several HCJ members had had “protégé” candidates and had arbitrarily lowered the assessment scores of 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. 12. On 6 February 2018 the Qualifications Chamber declared the applicant’s appeal inadmissible for lack of jurisdiction. The main reasons given by the Supreme Court in its decision were as follows:
“... the judicial candidate was unable to achieve the minimum pass score in the competency component [of the assessment], as a result of which her candidacy was not put to a vote before the [HCJ]. Accordingly, the precondition provided for by section 35(12) of the [Courts Act] was not met. In view of the foregoing, the body in question has not examined the application for appointment and hence has not issued a decision refusing the applicant’s appointment which qualifies for being challenged before the [Qualifications Chamber] ... [F]or these reasons, the Qualifications Chamber finds the appeal inadmissible ...”
13. The Qualifications Chamber further held, with reference to the Court’s judgments in cases of Beaumartin v. France (24 November 1994, § 38, Series A no. 296‑B) and Sigma Radio Television Ltd v. Cyprus (nos. 32181/04 and 35122/05, §§ 151-57, 21 July 2011), that it did not satisfy the requirement of a court or tribunal with “full jurisdiction” to exercise a judicial review of the facts of the case, and that its decision was in line with its established practice (case no. სსპ-2-17). The decision stated in its operative part that it was final and not amenable to appeal. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic law and practiceConstitution of 1995

14. The relevant Articles of the Constitution provided as follows:
Article 29
“1. Every citizen of Georgia satisfying the appropriate statutory requirements shall have the right to hold a position in public service.”
Article 42
“1. Everyone shall be entitled to seek judicial protection of his or her rights and freedoms.”
Act of 13 June 1997 on Courts of Ordinary Jurisdiction (as in force at the material time – “the Courts Act”)Appointment of judges

15. Under section 47 of the Courts Act, the HCJ is the authority responsible for the recruitment, promotion and dismissal of judges. It is composed of eight judicial members elected by an assembly of judges and six non-judicial members, five of whom are elected by Parliament and one of whom is 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 of the HCJ. 16. Under section 34 of the Courts Act, every citizen of Georgia over 30 years of age is eligible to be appointed (elected) as a judge if he or she has at least a master’s degree in law or an equivalent academic qualification, has practised law for at least five years, is proficient in the official language of the State, has passed the examination for admission to the judiciary, and has successfully completed the judicial training programme organised by the HCJ. According to section 35(8) of the Courts Act, the HCJ reviews applications together with the documents submitted in support and if the above criteria are met, publishes brief information about the relevant judicial candidates on their official website. Candidates are subsequently interview by the HCJ and checked on the basis of the so-called assessed by members of the HCJ on the basis of competency and integrity criteria (section 35(9) of the Courts Act). Each member fills in a score sheet following the review of the application files and the completion of interviews with the judicial candidates. 17. Pursuant to section 35(12) of the Courts Act, voting takes place only in respect of candidates assessed by the majority of members of the HCJ as meeting the integrity criteria fully or in part, and who have achieved at least 70% of the highest possible final competency score. Appeal against decisions of the HCJ
18. On 8 February 2017 Parliament, as part of a broader judicial reform project, passed amendments to the Courts Act which made decisions of the HCJ refusing judicial appointments amenable to appeal in the Supreme Court. The amendments became effective on 10 March 2017. 19. Under the amended sections 191, and 354(1) of the Courts Act, an unsuccessful judicial candidate may lodge an appeal with the Qualifications Chamber against a decision of the HCJ refusing his or her appointment to judicial office. In so far as it is relevant to the present case, a refusal may be appealed against if the candidate considers that a member of the HCJ was not impartial, acted discriminatorily or abused his or her authority while taking a decision relating to the competition. 20. Under sections 354(3), 366 and 367 of the Courts Act, following the examination of an appeal against a refusal to appoint a candidate to judicial office, the Qualifications Chamber may annul the decision of the HCJ and remit the matter to it for re-examination. The relevant legislative amendments read as follows:
Section 191 – Qualifications Chamber of the Supreme Court
“1. The Qualifications Chamber of the Supreme Court shall, under the procedure provided for by sections 354, 365, and 366 of this Act, examine appeals filed against decisions of the High Council of Justice refusing appointment to judicial office ... Section 354 – Appeal against a decision of the High Council of Justice of Georgia
1. A judicial candidate may appeal against the decision of the High Council of Justice of Georgia refusing his or her appointment to judicial office to the Qualifications Chamber of the Supreme Court, if he or she considers that:
(a) a member of the High Council of Justice of Georgia was biased during the competition;
(b) a member of the High Council of Justice of Georgia acted discriminatorily during the competition;
(c) a member of the High Council of Justice of Georgia exceeded his or her powers under the legislation of Georgia, as a result of which the rights of a judicial candidate were violated, or judicial independence was threatened;
... 2. The appeal shall be filed with the High Council of Justice of Georgia within two weeks after the relevant decision ... is served on the judicial candidate. [The High Council of Justice of Georgia] shall transfer within three days [the appeal] together with the attached documents to the Qualifications Chamber of the Supreme Court. 3. Following examination of the case, the Qualifications Chamber of the Supreme Court shall take one of the following decisions:
(a) uphold the decision of the High Council of Justice of Georgia refusing to appoint a judicial candidate to a judicial post;
(b) annul the decision of the High Council of Justice of Georgia ... and remit the case for a new examination.
... 5. If the Qualifications Chamber of the Supreme Court decides to annul the decision of the High Council of Justice and remit the case, the High Council of Justice, having regard to the decision of the Qualifications Chamber of the Supreme Court, shall re-examine the issue of appointment of the judicial candidate to judicial office and take a decision appointing or refusing appointment of a judicial candidate ...”
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
21. In its judgment of 7 April 2017 (see paragraph 8 above) the Constitutional Court noted that the right of admission to public service through a fair procedure under Article 29 of the Constitution was applicable to judicial appointments, and that the candidates should therefore be afforded the right of access to a court to seek determination of that right, as required under Article 42 of the Constitution. Moreover, it pointed out that procedural fairness was guaranteed by the Constitution at every stage of the recruitment process. 22. The relevant parts of the judgment read as follows:
“8. According to the well-established practice of the Constitutional Court, a judicial position, for Constitution purposes, shall be treated as a position in public service, the holding and exercise of which, regulated by law, shall be in line with Article 29 of the Constitution ... Accordingly, the legislation regulating the holding of a judicial position is subject to the standards provided for by the Constitutional Court in connection with the exercise of the right enshrined in Article 29 of the Constitution (subject to the constitutional status and specificities of a judicial position). 18. Under Article 84 § 1 of the Constitution, a judge is independent in his or her work and adheres only to the Constitution and the law. Any influence on a judge or interference with his or her work for the purpose of influencing decision-making is prohibited and punishable by law. It is undisputed that a judicial position at a city or appellate court is inherently apolitical. Judges take legal decisions and adjudicate in accordance with the Constitution and the law. The process of appointment to a judicial position at a city or appellate court is not related, either by the legislation or by the Constitution, to political decision-making. For the purpose of organising the judicial appointment [process], Article 861 § 1 of the Constitution of Georgia provided for the establishment of a constitutional body, the High Council of Justice of Georgia, to select and appoint to a position a judicial candidate who best meets the position [requirements] of a judge. 30. Under Article 29 § 1 of the Constitution, a decision on appointment to public office, including that of a judge, must be adopted through a procedure in which impartiality is ensured ... The process must be conducted in such a manner as to rule out, as far as possible, arbitrary refusals to appoint meritorious candidates. The requirement to appoint meritorious candidates to judicial office is related not only to the right of a person to hold a public office, but also to the public interest, [according to which] judicial functions should only be exercised by individuals qualifying for judicial office ... 31. The right to a reasoned decision is not limited to a reasoned final decision concerning the appointment [refusal to appoint] to office only. The Constitution of Georgia lays down the requirement to give reasons not only in formal appointment decisions, but [also implies] that reasons must be given throughout the entire recruitment process ... 38. The High Council of Justice of Georgia, after examining the applications and supporting documents of judicial candidates participating in a judicial competition, publishes on [its] website brief information about the judicial candidates whose applications met the requirements laid down by the legislation. The assessment of judicial candidates [then] takes place based on interviews and [background] information obtained in accordance with the procedure prescribed by law. A judicial candidate is selected on the basis of two main criteria, competency and integrity. 60. The High Council of Justice of Georgia is a constitutional body which exercises the constitutional power of appointing judges. This fact does not preclude judicial control over the [appointment] process from being exercised. 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 right to a fair trial as recognised in Article 42 § 1 of the Constitution of Georgia provides for the judicial review ... of any acts restricting rights. The above requirement of the Constitution, subject to the relevant peculiarities, covers the judicial review of a refusal to appoint [a candidate] to public office. The judicial review of a refusal to appoint a candidate to public office serves to prevent the adoption of arbitrary, unsubstantiated and biased decisions.”
Relevant international materialsUnited Nations

23. The United Nations (UN) Basic Principles on the Independence of the Judiciary, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held in Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, provide in so far as relevant, as follows:
Qualifications, selection and training
“10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”
Council of Europe
24. The relevant extract 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, reads 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.”
25. The Explanatory Memorandum to this recommendation further provides as follows:
“50. It is essential that the independence of judges be guaranteed when they are selected and throughout their professional career, and that there should be no discrimination. All decisions concerning the careers of judges should be based on objective criteria, free from considerations outside their professional competence ...”
26. The relevant extract from the Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and the Rule of Law (DGI) of the Council of Europe on the draft law on amendments to the Courts Act, adopted by the Venice Commission at its 100th Plenary Session (Rome, 10‑11 October 2014, CDL-AD(2014)031), reads as follows:
5. Appeal against decisions of the High Council of Justice refusing appointments (draft [section] 353)
“60. The draft provision gives a right to an ‘interested person’ to challenge the decision on refusing the appointment. The ‘interested person’ seems to be the candidate whose candidature has been refused. This is in line with paragraph 48 of the Recommendation CM/Rec(2010)12 of the Committee of Ministers which states that ‘an unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made’. However, the draft provision seems to be narrow and excluding the possibility of the unsuccessful candidate to challenge the decision to select another – successful – candidate. During the meetings held in Tbilisi, the representatives of the High Council of Justice underlined the ambiguity of the term ‘interested person’ and considered that its meaning should be clarified in the practice. However, rather than the practice, the law should provide for clear indication concerning the criteria for legal standing against such decisions of the High Council of Justice.”
27. In its Urgent Opinion on the Selection and Appointment of Supreme Court Judges adopted by the Venice Commission at its 119th Plenary Session (Venice, 21-22 June 2019, CDL-AD(2019)009), the Venice Commission issued the following recommendation:
“Reasoned decisions regarding the selection and exclusion of candidates must be produced, with the possibility for a judicial appeal (see [section] 354 of the [Courts Act]).”
28. At its 74th Plenary Meeting held in Strasbourg from 28 to 2 December 2016, the Council of Europe Group of States Against Corruption (GRECO) adopted its Fourth Evaluation Report on Georgia, concerning corruption prevention in respect of members of parliament, judges and prosecutors (GrecoEval4Rep(2016)3). The report published on 17 January 2017 made the following relevant remarks on the appointment of judges:
“GRECO recommended reforming the recruitment and promotion of judges, including by ensuring that any decisions in those procedures by the High Council of [Justice] a) are made on the basis of clear and objective, pre-established criteria – notably merit, in a transparent manner and with written indication of reasons, and b) can be appealed to a court.”
Other international texts
29. In May 2012 the General Assembly of the European Network of Councils for the Judiciary adopted a declaration (the Dublin Declaration), setting minimum standards regarding the recruitment, selection, appointment and promotion of members of the judiciary. The relevant extracts of the declaration read as follows:
“ ... 9. The entire appointment and selection process must be open to public scrutiny, since the public has a right to know how its judges are selected. 10. An unsuccessful candidate is entitled to know why he or she failed to secure an appointment; and there is a need for an independent complaints or challenge process to which any unsuccessful applicant may turn if he or she believes that he/she was unfairly treated in the appointment process.”
THE LAW
        ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
30. The applicant complained of a violation of her right of access to a court on account of her inability to have recourse to a judicial review of the decision refusing to appoint her to a judicial post. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
AdmissibilityThe parties’ submissions

31. The Government submitted that Article 6 of the Convention was inapplicable in its civil aspect in the present case. They argued that (i) there was no “right” at issue which was recognised under domestic law; (ii) if the Court were to find otherwise, the “right” in question was not “civil” within the meaning of the Court’s case-law; (iii) there was no genuine and serious dispute over a “right” the applicant could claim under domestic law; and (iv) the outcome of the relevant proceedings before the HCJ had not been directly decisive for the applicant. 32. The Government submitted that no such right as the right to be appointed to judicial office existed under domestic law, and that the procedure to establish whether the applicant was “sufficiently competent” to participate in a judicial competition had not been determinative of her “civil rights” within the meaning of Article 6 § 1 of the Convention. Article 29 of the Constitution concerned only those “satisfying the appropriate statutory requirements”, and only for them was there a right recognised under Georgian law, also confirmed by the practice of the Constitutional Court, of equal participation in a competition for public office. The Government further referred to a decision of the Qualifications Chamber dated 5 July 2017 (case no. სსპ-2-17), predating the decision in the applicant’s case, by which it had declared inadmissible a case of another unsuccessful judicial candidate for lack of jurisdiction. It likewise concluded that since the relevant candidate had failed to achieve the required competency score, his or her candidacy had not been shortlisted for actual voting by the HCJ. Accordingly, the latter had not issued a formal decision refusing that candidate’s appointment, which could have been challenged before the Qualifications Chamber. Against this background, the Government argued that unlike in the cases of Baka v. Hungary ([GC], no. 20261/12, 23 June 2016) and Juričić v. Croatia (no. 58222/09, 26 July 2011), the applicant’s access to a court had been explicitly excluded by the Courts Act, as only formal final decisions refusing appointment to a judicial post were amenable to judicial appeal. 33. The applicant contested the Government’s arguments. She claimed, with reference to the relevant decision of the Constitutional Court, that her “civil” right of equal access to public service and employment, including her right of access to a court in connection with related disputes, was recognised in the relevant domestic legislation. She maintained that the relevant decision of the HCJ had effectively determined her civil right to participate on an equal footing in the judicial competition, and that she should therefore have been entitled to a fair hearing in that determination.

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