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photo credit: Georgian Court Watch

The High Council of Justice, as the constitutional institution ensuring the independence and accountability of the judicial branch, has over the years undergone a process of fundamental transformation. Initially, it functioned as an advisory body to the President. As a result of many reforms carried out in the judicial branch, the Council’s status was consolidated at the constitutional level, its mandate was significantly expanded, and it took shape as the central body for the management and administration of the judicial system.

Despite the fact that various legislative amendments have proposed numerous rules for the Council’s formation, the constitutional framework, from 2006 onward, has rested on an unchanged principle: the High Council of Justice is a body composed of representatives elected/appointed by various constitutional institutions, in which, although the balance is tilted in favor of judge members, the participation of non-judge members constitutes an inseparable element of the constitutional model.

The legislative amendments adopted in 2025 through an expedited procedure significantly changed the composition of the High Council of Justice and the representation of judge members. Despite the fact that this legislative amendment formally does not go beyond the text of the Constitution, it raises the question of how compatible the new model proposed by ordinary legislation is with the institutional design envisaged by the Constitution of Georgia.

Therefore, the aim of the present analysis is to assess how the constitutional model of the High Council of Justice undergoes a substantive transformation against the backdrop of the legislative amendments carried out, and whether it is shifting from a mixed model toward a purely judicial council.

In addition, the paper reviews the newly introduced regulation directly related to the participation of judge members and its impact on the internal balance of power within the Council. Ultimately, the analysis aims to raise and place on the agenda an important issue that requires further in-depth research and academic discussion - how compatible the reformed model is with the constitutional framework, and to what extent it ensures the real independence of the judicial system, its protection from internal and external influences, and democratic accountability.

Constitutional Architecture of the High Council of Justice: Idea of Pluralism and Consensus

The current version of the Constitution of Georgia establishes a normative framework for the High Council of Justice that excludes the existence of a so-called “purely judicial council”. Specifically, the Constitution directly requires the participation of the President and the legislative branch in the formation of the Council and the appointment of non-judge members by them. Moreover, although the current version of the Constitution does not indicate a specific number of non-judge members, it indirectly establishes their minimum and maximum quotas.

For example, according to the Constitution, the High Council of Justice must include a member appointed by the President (the singular form implies only one representative) and members elected by Parliament (two or more). At the same time, there operates an imperative provision that members elected by the Conference of Judges must constitute more than half of the Council's composition (which equals at least 8 members). To this is added the ex officio member - the Chairperson of the Supreme Court - which raises the minimum number of judge members to 9. Accordingly, such a distribution establishes the maximum threshold of non-judge members at six, and the minimum number at three.

In addition, another provision of the Constitution is noteworthy. Namely, the supreme law, in defining the appointment of first- and second-instance judges as the primary function of the High Council of Justice, establishes that this decision must be adopted by no fewer than 2/3 of the Council's full composition, which implies the consent of at least 10 members. Given the constitutional framework relating to the Council’s composition, the Constitution, by setting a qualified majority, allows for the possibility that such an important power may be exercised not only with the involvement of judge members but also with the involvement of non-judge members, which, in turn, creates a need for mutual balance and consensus in the decision-making process.

Thus, the current constitutional model clearly indicates that the judicial council of Georgia is not a body composed exclusively of judges. On the contrary, the Constitution requires the mandatory involvement of persons who enjoy the confidence of the President and Parliament, and to regard this as merely a formal criterion is unjustifiable. The purpose of the mixed model is that the numerous powers entrusted to the Council, including the appointment of judges, should not be exercised by the narrow corporate will of the judicial wing alone. This is a guarantee that ensures the high legitimacy and public accountability of the system. A different interpretation of this provision would render incomprehensible the constitutional choice according to which the legislator refrained from establishing a model of a council composed solely of judge members and gave preference to the mixed model.

The 2025 Legislative Reform: Formally - Mixed, In Fact - a "Purely Judicial Model"

In June 2025, through an expedited procedure, numerous fundamental amendments were made to the Organic Law of Georgia “On Common Courts”. One of the most conspicuous manifestations of the reform is the fundamental change in the composition of the High Council of Justice and the rule for its staffing. Under the new model, the proportional share of judge members in the Council's 15-member structure increases unprecedentedly, to 80%.

Namely, instead of the previously existing balance, when the Conference of Judges elected 8 members, under the new version this number increased to 11. Given the ex officio status of the Chairperson of the Supreme Court, the corps of judges in the Council now already holds a solid, 12-vote super-qualified majority. In parallel, the legislator reduced the parliamentary quota and brought the number of non-judge members down from 5 to 2. In this model, non-judge members practically lose any kind of real leverage to influence decisions. Judge members are capable, even independently, not only of forming any quorum but also of adopting decisions with the highest constitutional barrier. This state of affairs reduces the participation of non-judge members to a symbolic function.

The explanatory note of the draft law also points directly to this circumstance, according to which: "…the said model will contribute to the strengthening of the judicial branch and to the unimpeded adoption of all decisions necessary for the system even with the support of judge members alone". Indeed, the current legislation does not envisage any single matter that would require support higher than the number of judge members obtained as a result of the amendment carried out. In this provision of the explanatory note, the main goal of the reform is clearly visible - the creation of such a new model that, in fact, establishes a purely judicial council.

It is noteworthy that the explanatory note says nothing about the compatibility of this model with the model established by the Constitution. Instead, the authors introduce the argument of conformity with international standards. Specifically, the explanatory note invokes the reference in paragraph 16 of Opinion No. 10 of the Consultative Council of European Judges (CCJE) of 23 November 2007, that "The Council of Judiciary can be either composed solely of judges or have a mixed composition of judges and non judges. In both cases, the perception of self-interest, self protection and cronyism must be avoided". Since this provision constitutes the sole argument of the legal justification for the fundamental change of the model, a substantive analysis of it is of interest.

The aforementioned opinion does indeed give countries a free choice to themselves determine which model to give preference to: a mixed council or one composed entirely of judges. However, right there exists an imperative provision that, in the case of choosing the mixed model, judges must constitute a substantial majority. Moreover, the mixed model does not exclude the delegation of certain, specific, narrow functions to the judicial wing alone, though this cannot be understood in such a way that all of the Council's principal and essential competences become dependent exclusively on the will of judges.

The same document speaks of the main advantages of such a mixed council: on the one hand, to avoid personal interest, personal patronage, and cronyism, and on the other hand - to ensure the openness of the system to various opinions existing in society, thereby creating an additional source for the legitimacy of justice.

The 2007 opinion is repeated and, at the same time, expanded by the CCJE's 2021 opinion, according to which the main and unchanging principle is the formation of a majority of judge members (elected by the judges themselves) in the council; other members may be added depending on the very functions of the council. "The CCJE recommends that a Council also have non-judicial members possibly including lay persons who are not legal professionals. While judges should always be in the majority, non-judicial members preferably with voting rights ensure a diverse representation of society, decreasing the risk of corporatism. The participation of lay-persons may increase legitimacy and fight the perception of the judiciary as a “lawyers only affair”.” — we read in the updated opinion.

This addition is principally important from the perspective that the main function of the council is not only to protect the judicial system from the other branches of government and to ensure independence from them. The council’s task is also to combat the threats of internal corporatism and to prevent the risks that turn the court into a system closed to external, democratic control. In the situation where one of the main challenges of the judicial branch is the lack of its democratic legitimacy, the mixed model of the council, in which various members of society participate, is a mechanism for granting more legitimacy to the justice system and for increasing its democratic accountability.

The reference by the authors of the draft law to the CCJE’s 2007 opinion is superficial in nature, because it is confined only to citing a single sentence torn out of context and disregards the evolution and substantive depths of the European standard. As noted, the CCJE gives a general recommendation on what kind of model governments should introduce and what factors to take into account when adopting the relevant decision, while the Constitution of Georgia, as of today, clearly records its choice - in the form of a mixed council.

In such a situation, transferring, through ordinary legislation, 12 of the Council’s 15 seats to judges, irrespective of the significance of the matter, goes beyond any reasonable bounds of a “substantial majority” and turns the Council, in fact, into a purely corporate body of judges, in which non-judge members de jure retain the right to vote, though de facto their status is largely of an advisory nature. This, as of today, contradicts the institutional design envisaged by the Constitution of Georgia. Accordingly, the CCJE’s recommendation would be relevant if the initiators aimed not at making amendments to ordinary legislation, but at revising the Constitution.

The Possible Political Motivation Behind the Amendments

In analyzing the explanatory note of the draft law, particular attention is drawn to the circumstance named as the official aim of the legislative amendment: “it is necessary that the High Council of Justice be able to exercise, without hindrance, the powers envisaged by the Constitution of Georgia”. It is noteworthy that the document does not explain which legal or practical factors created risks to the exercise of powers prior to the adoption of the said amendments.

In this regard, to see the possible risks, it is necessary to analyze the interconnection between the current conjuncture of the distribution of parliamentary mandates and the effective constitutional constraints. By the imperative requirement of the Constitution of Georgia, the election by Parliament of non-judge members of the High Council of Justice requires the support of no fewer than 3/5 of Parliament’s full composition, which amounts to 90 votes. Under conditions where the ruling party, by the actual distribution of parliamentary mandates, does not possess the said qualified majority (moreover, at the time of initiating the draft law there were physically only 89 deputies in Parliament), the emergence of a vacant seat for a non-judge member in the Council could have become a major challenge for Parliament.

It should be noted that a similar case, several months before the initiation of the draft law, was recorded in relation to the Constitutional Court, when one of the members’ term of office expired, and there turned out to be insufficient quorum in Parliament to appoint their replacement.

Therefore, in the case of the High Council of Justice, to avoid similar awkwardness, two solutions could exist: either to change the parliamentary majority required to elect a member of the Council, or to evade it. The first requires a revision of the Constitution and is therefore not even considered. As for the second path, the legislative amendments under consideration raise the suspicion that the majority chose precisely that one. Specifically, changing the Council’s model may be the legislator’s choice to find a pragmatic way of adapting to the constitutional reality at the level of the organic law: instead of reforming the unattainable vote barrier, the parliamentary quota itself was reduced from five to two seats.

Whether or not this was the real aim is unknown; however, in fact, by carrying out this amendment, the ruling team avoided a potential institutional impasse, where the need to appoint any new non-judge member would cause a political crisis. Specifically, the legal reality in which Parliament, due to a deficit of deputies or the impossibility of compromise with the opposition, can no longer exercise such a constitutional power, would be reflected negatively on the reputation of the legislative institution itself. Accordingly, by voluntarily reducing its own quota and relinquishing a right, the parliamentary majority, in fact, avoided demonstrating “institutional impotence”, though it is debatable how well this step conforms to the Constitution, its spirit, and respect for it.

It is interesting that this “preventive strategy” is also formalized by the transitional provisions laid down by the legislator. Namely, the new composition, structured with an 80% dominance of judges, has not yet been fully realized in practice at this stage. Since, at the moment of the law’s entry into force, the non-judge members previously elected by Parliament retain the term of office defined by law, they will be gradually replaced by judge members only in the wake of the expiration or other termination of the terms of the non-judge members. Accordingly, the judicial system will reach this final model only after the number of active non-judge members is gradually reduced to two.

It is interesting to observe the period following the entry into force of the amendments and the Council's current composition. Of the 15 members, the composition still includes four previously elected by Parliament and one appointed by the President. The first (and, so far, the only) case in which a member elected by Parliament had their powers terminated and was, in accordance with the new rule, replaced by a judge member, was recorded in October 2025.

Specifically, in 2023 the non-judge member elected by the Parliament, Levan Nemsadze, participated in the competition for selecting judges of the Supreme Court, as a result of which Parliament elected him as a judge (by 82 votes). Obtaining the status of judge became the basis for the early termination of his powers as a non-judge member of the Council. In his stead, on 25 October 2025, 295 delegates of the Conference of Judges elected as a judge member of the Council the Supreme Court judge Archil Kochlamazashvili. It is noteworthy that Archil Kochlamazashvili himself, only about one month before the entry into force of the legislative amendments under consideration, was elected by Parliament as a judge of the Supreme Court, upon the nomination of the High Council of Justice and with the support of 89 deputies.

Under this state of affairs, the remaining non-judge members elected by the Parliament will not have their terms of office expire, at the earliest, until May 2027, unless, of course, their powers are terminated early by a similar scenario (appointment as a judge member) or on another legal basis, which automatically gives rise to the need to bring new judge members into the Council in their stead.

Following from all of the above, with the legislative amendments carried out, during the term of office of this convocation of the Parliament, the necessity for the Parliament to fill vacancies for non-judge members has been almost eliminated. In addition, it is interesting that since this decision was adopted by the majority required (76-vote) to amend the organic law, the majority retains a comfortable opportunity (provided the constitutionality of such amendments is not called into question and no corresponding response follows) to change the structure of the Council at any time, in accordance with its own political situation, even through an expedited procedure of considering a draft law on amending the organic law, and to fit it to the political conjuncture.

Transformation of the Mechanisms of Internal Institutional Control: The Unprecedented Strengthening of the Administrative Vertical

In the legal literature of the last two decades, the effectiveness challenges of judge-dominated judicial councils (the “European model” judicial council) have been actively discussed from the perspective that, in various jurisdictions, the mechanical transfer of this institutional model has not always ensured the proper consideration of the contextual risks of the particular country’s political and institutional environment. Within the framework of this discussion, particular attention is devoted to the circumstance that an excessive focus on ensuring the court’s independence from external forces may overshadow the threats of the concentration of power within the judicial system, hierarchical subordination, and the formation of networks of informal influence.

In such systems, the independence of an individual judge may be threatened not only from the side of the political authorities, but also from the internal structure of judicial governance. The said risk increases especially under conditions where the main punitive and incentivizing mechanisms of judges’ accountability (those related to judges’ professional-career development, promotion, disciplinary liability, and other career matters) are concentrated in the hands of the judicial bureaucracy.

In addition, comparative-legal studies indicate that the court’s internal bureaucracy may in practice not at all act for the purpose of protecting the judicial branch from external influence. Especially in countries with the experience of post-Soviet transformation, numerous authors draw attention to the circumstance that a strong, hierarchical, and centralized judicial council may become an intermediary link between external political actors and individual judges. In such a case, influence on the court is exercised not by directly affecting each individual judge, but through those structures of judicial governance that themselves possess internal organizational and career leverage.

The above-mentioned phenomenon, in turn, is connected with the degree of concentration in judicial councils of judges holding administrative functions (court chairpersons, deputies, leadership of chambers and panels) and with the degree of institutionalization of their influence. It is precisely for this reason that in contemporary academic discussions, when assessing judicial councils, attention is paid not only to the quantitative ratio of judge and non-judge members, but also to which groups hold real influence within the council and which governance resources are concentrated in their hands.

Accordingly, the analysis of the revision of the constitutional model of the High Council of Justice would be incomplete without assessing those important aspects of the legislative amendment that relate to the redistribution of power within the Council and its hierarchical arrangement.

Namely, under the legislative regulation in force before 2025, there existed a principle according to which the upper threshold of the number of persons holding an administrative position among the Council’s judge members was limited to five members (half of the members elected by the Conference of Judges, plus the Chairperson of the Supreme Court). Within the framework of the 2025 amendments, the said limit was increased first - to seven (six judge members + the Chairperson of the Supreme Court), and ultimately to eight members (seven judge members + the Chairperson of the Supreme Court). According to the authors of the draft laws, the aim of the amendment was to increase the number of judge members and to ensure the effectiveness of the common courts by increasing the direct involvement of the representation of court management in the Council's work.

However, from a structural point of view, the situation in which, of the Council’s 15 members, 8 may represent the direct administrative leadership of the judicial system, fundamentally changes the balance of power. Whereas in the previous model the representation of the administrative corps ranged from 33% to 47% of the full composition, under the new regulation it can obtain a 53% absolute majority. This means that the decision-making core of the High Council of Justice passes into the hands of that judicial elite whose appointment to administrative positions and whose career advancement (apart from the members of the Supreme Court) is itself authorized by the Council.

With the argument of the “effectiveness” of court management, the legislative reform also sharply increased the terms of office of persons holding administrative positions. Under the amendments, the term of office of the members of the Grand Chamber of the Supreme Court was increased from 2 to 3 years, and that of the members of the Disciplinary and Qualification Chamber - from 3 to 5 years.

However, the most conspicuous change is the doubling of the terms of office of court chairpersons. The terms of office of the chairpersons of the chambers of the Supreme Court, of the Court of Appeals, its deputy, and the chairpersons of its chambers/panels, as well as the chairpersons of the district courts and panels, were set, instead of 5 years, at up to 10 years. From a legal point of view, such a length of terms (10 years) under conditions of corporate governance causes the personalization of power and increases the risks of vertical influence on ordinary judges.

The amendments carried out for the purpose of perfecting vertical control abolished the important institutional filters that previously existed. First of all, the mandatory instance quota was removed, which required that at least one representative of the courts of all three instances be represented in the Council. The practical consequences of abolishing this protective mechanism are revealed especially clearly in the Council’s current composition, in which not a single “ordinary” (non-manager) judge of the first instance is represented. Specifically, although the composition does record a representative of the first instance, this person, too, is the chairperson of the Tbilisi City Court and, at the same time, the head of the Civil Cases Panel. Moreover, from the Court of Appeals as well, the only judge without a position is a person well known to the broad public, who is not only not an “ordinary” judge, but, given his influence, is often referred to as the leader of the judicial elite.

The said situation confirms that the dismantling of instance filters facilitates the staffing of the Council exclusively with cadres of the upper instance, whereby the corps of district (city) courts remains isolated from the management process, the corps whose share in the judicial system is much larger compared with the other two instances.

Summary

The 2025 legislative amendments, by their essential character and scale, may boldly be assessed as yet another reform carried out in the judicial system. In this context, even more noteworthy is the interest in conducting such a fundamental reform through an expedited procedure and the exclusion of critical alternative opinion from the process.

Together with this formal flaw, particularly worth considering is also its substantive side, which establishes that dangerous practice of “constitutional formalism”, where an organic law is used to hollow out the spirit of the Constitution. The sharp reduction of the quota of non-judge members and the legalization of an 80% dominance of judge members in the Council's structure do not constitute merely a change of a technical nature; this is a change of the essence of a matter regulated by the Constitution, without a revision of the Constitution.

Accordingly, regardless of whether or not we agree with that institutional design of the High Council of Justice that the Constitution offers us today, in this case the far more principled legal problem is how the supreme law was circumvented.

In addition, the said reform, with the motive of the court’s external independence, increases the risks of strengthening the system’s internal corporate hierarchy and of institutional isolation. Such a radical prolongation of the terms of persons holding administrative positions and the abolition of institutional filters facilitate the monolithic concentration of power, which limits the influence of ordinary judges on processes. As a result, instead of an accountable institution, a closed judicial corporation takes shape, which is devoid of public control or internal pluralism, which, in turn, weakens the constitutional function of the judicial branch.

For the complete document, including relevant sources, links, and explanations, please see the attached file.