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High Council of Justice:

Disturbed by Criticism

Ana Tchiabrishvili “If liberty means anything at all, it means the right to tell
people what they do not want to hear”- George Orwell
JULY 2018

INTRODUCTION
The High Council of Justice (HCoJ) is one of the public agencies in the country
that are most intolerant to criticism. To majority of members of the current and
the previous composition of the Council, criticism of the judiciary by outside
actors as well as from inside of the Council and the judiciary is completely
unacceptable. Opinions recently expressed by individual members during the
Council meetings have been met with severe reactions of the dominating group
that holds majority in the Council. More importantly, the HCoJ Member Meto-
pishvili proposed closing of the Council meetings.1 Besides, on 23 June, at the
working meeting of the so-called “fourth wave” reform, where judges’ disci-
plinary misconduct issues were discussed, Judge members of the High Council
of Justice have voiced the initiative that the Council may dismiss the non-judi-
cial members of the High Council of Justice (who are appointed by the Parlia-
ment or the President in the Council) as the disciplinary liability. This initiative is
disturbing given the fact that the non-active members are distinguished by a
critical view towards the Council. Mentioned initiative will be effective leverage
in the hands of the HCoJ against performance of the critically-minded mem-
bers and their freedom of expression.2

Such regressive initiatives have been voiced by the Council members many
times in the past. For example, last year, as public criticism of the authorities,
the judicial system and individual judges grew in connection to Rustavi 2 court
proceedings, the HCoJ members began talking about the need to limit the
freedom of expression to protect authority of the judiciary.

Over the recent years, the judicial system and the HCoJ have been criticized
on numerous occasions due to the clan governance in the judiciary, question
marks regarding ambiguous process of selection and appointment of judges,
lifetime appointment of judges that are loyal to the influential groups including
individuals that have been tied to high-profile cases in the past, selective use
of disciplinary proceedings and a number of other issues. The criticism of the
judicial system gained momentum when on 3 March 2017, enforcement of the
decision of the Supreme Court of Georgia in Rustavi 2 ownership dispute was
suspended by the European Court of Human Rights until 8 March 2017 and
later the term of the interim measure was extended until further notice. The
critical positions expressed regarding the case of Rustavi 2 were deemed by
the HCoJ members as an attempt to defame the Council and undermine its
image.3

On 26 April 2017, the HCoJ published a research entitled “Recent statements

made by media representatives about Georgian judges and the judicial sys-
tem”, which in the Council’s view “grossly violated the limits of the freedom of
expression and amount to intolerable disrespect of the judiciary as an institution
and gross violation of individual reputation on many occasions.”4
1 https://goo.gl/ceQRMN
2 https://goo.gl/88pmqo
3 https://goo.gl/nTJhf
4 https://goo.gl/rY3v9s
Members of the Council made a collection of phrases of Rustavi 2 Director
Nika Gvaramia, Rustavi 2 reporters Giorgi Gabunia and Zaal Udumashvili,

Editor of Qronika Plus Newspaper Eliso Kiladze and Editor-in-Chief of Tabula
Tamar Chergoleishvili in 2015-2017, which in view of the Council members
prove that these individuals have violated the limits of freedom of expression.
The Council filed an application with the Georgian Charter of Journalistic Ethics
and requested evaluation of compliance with the Charter principles of com-
ments and statements made by various individuals about the Council during
trials or TV programs, in order to determine whether “the meaning of freedom
of expression is properly understood.” The Council of the Charter responded to
the application stating that the initiative of the HCoJ was an attempt to impose
censorship. According to the Board, concerns of the High Council of Justice
about journalists violating the limits of “acceptable criticism” and “freedom of
expression” was unacceptable.5
According to then-secretary of the High Council of Justice, Levan Murusidze
“Insults should not necessarily be punishable by criminal law, even if they are
denounced somehow, this would be ideal... I, for instance, believe that when
they are saying about a judge that he has sold his soul, that he is a bribe-tak-
er, and a thousand other derogatory things, I think there should be some
restraining mechanism against it...” Another ex-member of the HCoJ, Shota
Getsadze stated that he supports the idea of placing limitations on judges’ crit-
icism and insults, bacause taking such disputes to court would be dragged
in time and ineffective.6 Shota Getsadze believes that one of the major
problems in taking such disputes to court is burden of proof that falls on a
judge. According to him, new regulations should be introduced to change this
arrangement. He also stated that the Council members had not yet reached
an agreement on sanctions that should be applied but he supported use of a
fine as an alternative.7 Then member of the Council and current member of the
Constitutional Court of Georgia, Eva Gotsiridze openly stated that they would
draft a bill if needed.
After the HCoJ statements were made public and met with well-deserved
protest, individual members of the Council rejected the possibility of introduc-
ing censorship and stated that the sole purpose of the announcements was
to initiate a discussion. However, statements made by the HCoJ members are
indicative of an attempt to subordinate public and its freedom of expression to
interests of protection of the Council members’ dignity.
Naturally, in a democratic state, respect and faith in the judiciary and protection
of independence of a judge is a valuable cause and to achieve this aim other
branches of government have wide margin of appreciation. However, it is very
important for the HCoJ members to remember that they are bound by basic
human rights and freedoms in the process of discharging their powers, which
does not allow them to place any limitations on basic human rights enshrined
in the Constitution of Georgia, including freedom of speech and expression, by
using disproportionate means.
Freedom of Expression: Georgian Legislation and International
Standards
Eva Gotsiridze noted many times that “there is a problem both in the judiciary
as well as among journalists, and this is a vulgar understanding and use of
freedom”,8 citing decisions of the European Court of Human Rights (ECHR),
while the ECHR itself has underlined that “freedom of expression constitutes
5 https://goo.gl/YRyHLy
one of the essential foundations of a democratic society and one of the basic
6 https://goo.gl/tbko6z
7 https://goo.gl/cfsoJQ conditions for its progress and for each individual’s self-fulfillment. Subject to
8 https://goo.gl/RQ6HYo
paragraph 2, it is applicable not only to “information” or “ideas” that are favor-
High Council of Justice: Disturbed by Criticism
ably received or regarded as inoffensive or as a matter of indifference, but also
to those that offend, shock or disturb. Such are the demands of that pluralism,
tolerance and broadmindedness without which there is no “democratic soci-
ety”. This freedom is subject to exceptions, which must, however, be construed
strictly, and the need for any restrictions must be established convincingly.” 9
In addition, freedom of expression is not absolute but rather, it may be subject
to certain restrictions when preconditions provided in para.2 of Article 10 of
the European Convention of Human Rights exist. Protection of reputation and
rights of others may serve as a basis of such restriction.
Notably, the Georgian legislation has long provided judges with an op-
portunity to seek remedy for defamation and insults, and according to the
European Court of Human Rights the said opportunity does not run against the
European Convention. More specifically, under Art.18 of the Civil Code of Geor-
gia, an individual can apply to court to protect his/her own dignity and honor,
and if information defaming the honor and dignity of an individual has been
disseminated by means of mass media and court rules in favor of that individu-
al, the information must be retracted by the same means. Article 18 also allows
demanding compensation for damage.
In addition, under Art.14 of the Law of Georgia on Freedom of Speech and
Expression, “A person shall be liable under civil law for defamation of a public
person if the claimant proves in court that the statement of the respondent
contained an essentially false fact related directly to the claimant, that publica-
tion of this false fact has caused damage to the claimant, and that publication
was made with advance knowledge of the falsity of the statement or that the
respondent acted with reckless disregard leading to publication of the false
fact.”
Art.366 of the Criminal Code of Georgia directly incriminates disrespect for
court (although there is no court practice and it is ambiguous whether the norm
concerns processes outside a courtroom).
The High Council of Justice nevertheless believes that the existing mecha-
nisms are somehow insufficient. Taking court action over defamation should be
the most logical way for judges to seek remedy. However, it should be noted
that the recent practice is indicative of court’s bias in favor of a judge. The said
legal mechanism was used by Tbilisi City Court Judge Vladimer Kakabadze
when he took a court action against the Chairperson of the International Cham-
ber of Commerce (Fady Asly) and demanded compensation for moral damage.
Because of a decision rendered by Tbilisi City Court on 10 February 2017,
Fady Asly stated that Vladimer Kakabadze was a corrupt judge. According to
the judge’s attorney, the legal action concerned dissemination of information
that defamed character and harmed professional reputation of a judge. Fady
Asly was subsequently ordered by court to pay GEL 3,000 as compensation
for moral damage inflicted to the judge. The said decision has undertones of
revanchist sentiments, as clearly illustrated by the title of a press-released pub-
lished by Tbilisi City Court – “The Judge Restored his Damaged Dignity10. The
decision was negatively evaluated by NGO sector as well as by some constitu-
tionalists. “This precedent should serve as an alarm call for everyone in the civil
society, as it creates an unlimited potential for suppressing democratic public
debate by court.”11
However, then-member of the High Council of Justice Shota Getsadze thinks
that a court action i.e. legal remedy available to everyone who believes that
9 Skalka v. Poland, 27 May 2003, 43425/98, p.32 their dignity was damaged by way of insults is ineffective and dragged in time.
10 https://goo.gl/xhEp5G
11 https://goo.gl/JyKb4M Even if it was true, it is peculiar that instead of talking about improving the

12 Bridges v. State Of California 1941, para.270
13 R. V. Koptyo (1987), 62 OR (2d) 449.
14 Decision no. /3/421,422 of the Constitutional Court of Georgia,
dated 10 November 2009, in “Citizens of Georgia – Giorgi Kipiani
and Avtandil Ungiadze v Parliament of Georgia”, II-7
institute in general, the High Council of Justice is interested in adopting regula-
tions that are “convenient” exclusively for judges. In addition, since the principle
of legal state is the cornerstone of any democratic society which reinforces the
rule of law without allowing any exceptions for individuals or institutions that fall
under its coverage, it is ambiguous as to why court’s decisions should be more
protected from criticism than, say decisions of Parliament or any other pub-
lic institution which, due to their importance, are under constant monitoring.
Although the authorities elected through a political process are different from
the judiciary, the difference does not mean that the judiciary is less accountable
before public and should abide by lesser standard of transparency.
An attempt to protect freedom of expression to safeguard prestige of court
looks quite concerning against the background of the decision made nearly 75
years ago by the U.S. Supreme Court 12 - “The assumption that respect for
the judiciary can be won by shielding judges from published criticism wrongly
appraises the character of American public opinion. For it is a prized American
privilege to speak one’s mind, although not always with perfect good taste on
all public institutions. And an enforced silence, however limited, solely in the
name of preserving the dignity of the bench would probably engender resent-
ment, suspicion, and contempt much more than it would enhance respect.”
Although during the centuries Canada subjected those who were especially
critical of court to harsh treatment, Canadian judiciary fundamentally changed
its practice in order to bring it in full compliance with the Charter of Human
Rights and Freedoms and closer to the American practice which is most
responsive to challenges of the contemporary world. In one of the prominent
cases, Ontario Appellate Court notes: “The courts play an important role in any
democratic society. They are the forum not only for the resolution of disputes
between citizens but also for the resolution of disputes between the citizen
and the state in all its manifestations. The more complex society becomes the
greater is the resultant frustration imposed on citizens by that complexity and
the more important becomes the function of the courts. As a result of their im-
portance the courts are bound to be the subject of comment and criticism. Not
all will be sweetly reasoned. ...Some criticism may be well founded, some sug-
gestions for change worth adopting. But the courts are not fragile flowers that
will wither in the hot heat of controversy...The courts have functioned well and
effectively in difficult times. They are well-regarded in the community because
they merit respect. They need not fear criticism nor need they seek to sustain
unnecessary barriers to complaints about their operations or decisions”.13
Possible Threats of Limiting Freedom of Expression
The HCoJ should be aware that “the legislative safeguards are not enough for
the complete exercise of freedom of expression, it is necessary that the society
itself is tolerant of the individual’s right, freely and fearlessly express their opinion.
In a democratic society, people have obligation of tolerance towards opinions
they do not share or even think morally unjustifiably. It is inadmissible to impose
moral norms and mindset of a particular person or group of people on the other
groups through the state institutions, including through the court“.14 That is why
it is vital that the judges do not consider one of the most natural and organic
rights (freedom of expression) only as a privilege.
The HCoJ members believe that dignity of judges is fragile to the extent that it
breaks as soon as their decisions are criticized or integrity of individual judges
is questioned. Not only do the Council members question ability of judges to
withstand criticism but they also seek to create favorable conditions for their
possibly sensitive character.
15 Decision no. /3/421,422 of the Constitutional Court of Georgia,
dated 10 November 2009, in “Citizens of Georgia – Giorgi Kipiani
and Avtandil Ungiadze v Parliament of Georgia”, II-6
16 Decision no.2/2/516,542 of the Constitutional Court of Georgia,
dated 14 May 2013, in “Citizens of Georgia Aleksandre Baramidze,
Lasha Tughushi, Vakhtang Khmaladze and Vakhtang Maisaia v
Parliament of Georgia”, II-8
17 Statement of the Coalition for Independent and Transparent
Judiciary, 28 April 2018 https://goo.gl/gFjXCs
High Council of Justice: Disturbed by Criticism
Subjecting freedom of expression to preliminary control is one of the most
dangerous forms of restricting freedom of individuals. Enacting a regulation that
serves the purpose of appeasing angry judges is quite dangerous, as “the state
may not be successful without free and independent media, whose primary
function is to keep public informed, promote discussions on issues of public
importance. It is the degree of freedom of expression that determines the de-
gree of freedom and democracy of the country (society)”.15
Restricting freedom of expression will be problematic on account of harmful-
ness of the substance of such restriction, as well as its ambiguity, because it is
very difficult to foresee what may be considered as an insult to a court or what
may “upset” a judge. Therefore, establishing lower standards for safeguarding
freedom of expression will most likely have a chilling effect, meaning that “the
desire to subject freedom of expression to confines may result in self-censor-
ship and self-restriction among people”,16 i.e. an individual may waive his or her
right to freedom of expression in fear of anticipated sanctions. This may lead to
a situation where “chilling effects” prompt an individual to limit his or her actions
that the legislator did not intend to regulate.
Individual judges should not use sanctions for insults to justice, in an attempt to
protect their own dignity. As a developing democracy where the judicial system
is Achilles Heel of the country and citizens monitoring of court processes under
the magnifying glass may become an incentive for strengthening accountability
of judges Georgia does not have the luxury of putting freedom of expression
aside in order to protect authority of the judiciary.
Since the legislator shares views of Georgian citizens about fundamental impor-
tance of independence of a judge, it has created certain guarantees including
lifetime tenures of judges and the obligation of the state to provide security
for a judge and his/her family; it is also prohibited to hold an individual judge
accountable about any particular case, and so on. Naturally, all of this serves
the purpose of creating a sense among judges that the state is ready to pro-
tect them in any case, in order to safeguard their independence. Under these
circumstances, weakening the only leverage available to citizens – criticism,
will put the judiciary at risk. The judiciary may turn into an extremely closed
system, one that is not subject to any filters or control. This may turn into the
judicial dictatorship, which is no less dangerous than military dictatorship.
Conclusion
In free societies, public institutions do not require artificially created barricades
to shield them against harsh criticism or insults. It is expected that judges,
irrespective of their personal feelings, will handle cases in an unbiased manner.
“It is important to realize that judicial independence is not a privilege enjoyed by
the courts but an obligation that is expected from the judiciary. Judicial inde-
pendence is not endangered by public criticism. On the contrary, the latter can
significantly contribute to judicial independence.”17
Judiciary like any other public institution, is not protected from criticism, scruti-
ny or grievances. Harsh criticism, distasteful or “vulgar” expressions may have
different effect on individual judges, some may be affected less while others are
more sensitive than their colleagues. The law provides a universal mechanism
for everyone to seek remedy through court, and it may not be tailored to and
dependent on moral resilience or courage of individual judges, their ability to
withstand criticism and profanity. A judge may claim damages for defamation
 just like any other high-level official. Laws are not supposed to be created for
sensitive judges that cannot withstand harsh public opinions but rather, judges
are expected to be men of fortitude, able to thrive in a hardy climate.18

In view of many problems that exist in the judiciary today, adequate protection
of freedom of expression becomes of vital importance. Public’s right to conduct
discussions about concrete gaps in administration of justice, including on TV
or other media, is a crucial issue. This process helps us to identify underlying
causes of existing problems and come up with possible solutions.

In reality, criticism of the judicial system is a way for public to demand answers
from the political authorities. Criticism that targets the judiciary is often direct-
ed at the other two branches of the government that partake in the principle of
checks and balances, and they are exactly the ones held accountable: why is
the judicial institute of poor health and why does it fail to provide the right to
fair trial guaranteed by the Constitution? In this way, lowering the standards for
freedom of speech may serve the purpose of placing limitations on criticism of
political authorities, which is a dangerous precedent, detrimental not only to the
independence of the judiciary but also to the democratic development of the
entire country.

18 Craig v. Harney 331 U.S. 367 (1947)