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JUDICIARY /
Statement
The European Court of Human Rights determined a violation of freedom of expression and association in conjunction with the prohibition of discrimination in Maia Bakradze case
Today, on November 7, the European Court of Human Rights found a violation of freedom of expression and association in conjunction with the right to non-discrimination in the case of the former judge of the Court of Appeal, Maia Bakradze. According to the European Court, the refusal of the High Council of Justice to reinstate Maia Bakradze as a judge was biased and mainly related to critical views expressed towards the judicial system.
In 2015-2016, upon the expiry of the 10-year judicial term, to be re-appointed as a judge Maia Bakradze took part in two competitions announced by the High Council of Justice. She was a co-founder and board member of the "Union of Judges" - an independent association of judges, which was distinguished by criticizing the challenges in the justice system. According to the decisions of the council, on none of the occasions, was Maia Bakradze reappointed as a judge.
In 2020, Maia Bakradze appealed to the European Court of Human Rights. She argued that the High Council of Justice placed her in an unequal position compared to other candidates based on her role in the "Unity of Judges" and her critical views on the state of the judicial system in the country, and then did not appoint her to the position for the same reason.
The European Court noted that judges' freedom of expression to discuss the justice system can also be transformed into their obligation to speak publicly in defense of the rule of law and judicial independence when these fundamental values are threatened. According to the Court, the judges' obligation of self-restraint does not exclude the participation of judges in public debates regarding the functioning of the justice system.
The European Court emphasized that the majority of the questions asked to the applicant during the interview were biased, concerned the "Unity of Judges" and the role of the applicant in this association, as well as her fierce criticism of the High Council of Justice. Taking into account the content and number of questions related to "Unity of Judges", the court considered that the mentioned questions went beyond the purpose of checking the applicant's integrity and qualifications, revealed the bias and prejudice of the Council members towards the applicant, due to her role in the "Unity of Judges" and the activities of the organization.
The European Court emphasized that the circumstances of the applicant's interview were such that an independent and impartial observer could reasonably conclude that the applicant's activities within "Unity of Judges" played an important role in the decision made by the High Council of Justice. In the Court's opinion, the form and manner in which questions were asked to the applicant about "Unity of Judges" allows for the conclusion that her role in "Unity of Judges" and the activities related to this role were, if not decisive, the most important factor in the evaluation process of the candidate. In this light, national courts must give due consideration to the applicant's claim of discriminatory treatment in order to ensure that the applicant is in fact protected from bias or discrimination by each member of the High Council of Justice. As the applicant argued prima facie discrimination against her, the national courts should have shifted the burden of proof to the High Council of Justice and required it to dispel any perception of bias and that any difference in the treatment of the applicant due to the applicant’s acitivites in „Unity of Judges“ was justified and substantiated on objective grounds. However, the national courts failed to do so.
Taking into account the above-mentioned factors, the European Court unanimously found a violation of Maia Bakradze's freedoms of expression and association in conjunction with the right to non-discrimination. This decision shows the systemic problems of the justice system and the persecution of critical judges by an influential group in the High Council of Justice. Accordingly, the Court decision provides another legal ground for the fundamental changes in the justice system.
