Increase of quorum, required for the Constitutional Court to decide cases, proposed in Georgia’s new bill, passed by the Parliament on May 14, is “excessive” and should be removed, the Council of Europe’s advisory body for legal affairs, Venice Commission, said in its preliminary opinion released on May 27.

With this proposed increase of quorum the Constitutional Court “can easily be blocked from taking decisions by a minority of judges,” it said.

While welcoming some of the amendments proposed in the bill, the Venice Commission criticized most of those issues in the bill, which were source of concern for many Georgian watchdog groups, and because of which opposition lawmakers were strongly against of the bill, sponsored by ruling GDDG party MP Eka Beselia and backed by PM Giorgi Kvirikashvili.

The bill was also opposed by MPs from the Republican Party, which is GDDG’s partner in governing coalition.

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According to the existing legislation, when adjudicating a case in full bench, the 9-member Constitutional Court is eligible to proceed if at least 6 judges are present.

The bill envisages increasing this number to 7 judges.

The existing legislation requires support of simple majority of judges for taking a decision – that is 4 judges in case minimum required 6 judges are present, and 5 judges if all nine are present.

Under the new bill decisions should be taken by at least 6 judges – no matter whether minimum required 7 judges will be present or all nine of them.
 
“The new rule… means that, depending on the number of judges present – nine, eight or seven – this majority to take a decision in the plenary is 67, 75 or even 86 per cent, respectively. In combination with the increased quorum, this is excessive and the Court can easily be blocked from taking decisions by a minority of judges,” the Venice Commission said.

The Venice Commission “strongly recommends removing… the requirement of a minimum of six votes for the taking decisions.”

The controversial bill was rushed through the Parliament by the GDDG ruling party without sending it for review to the Venice Commission.

The bill was sent to the Council of Europe’s advisory body for constitutional matters by President Giorgi Margvelashvili, who, in the view of the urgency of the matter, requested the Venice Commission to deliver its opinion within ten days. The bill was also sent to the Venice Commission by the Parliament after it was adopted.

June 3 is a deadline for the President to decide whether to sign the bill into law or to veto it.

Recalling its opinion on the increase of quorum in the Polish Constitutional Tribunal, the Venice Commission said that “such a very strict requirement carries the risk of blocking the decision-making process”, making it impossible for the Court to carry out its key task of ensuring the constitutionality of legislation.

This opinion of the Venice Commission on the case of the Polish Constitutional Tribunal was frequently cited by Georgian opposition lawmakers when arguing against the increase of quorum during debates in the Parliament this month.

According to the bill during the last three months of his or her 10-year mandate, the judge is not allowed to participate in new cases, except in cases relating to electoral disputes, impeachment cases against high officials, and when deciding admissibility cases.

The Venice Commission said that “from a European perspective, the introduction of a three-month period seems arbitrary.”
 
“While limiting the term of office of a judge to the constitutional term of 10 years seems reasonable in view of the text of the [Georgian] Constitution, it is difficult to understand why the judges cannot fully exercise their constitutional function during the last three months of their mandate. Whether such a limitation of the mandate is unconstitutional is for the Constitutional Court itself to decide,” the Venice Commission said.

The Commission said it “strongly recommends removing the provision which – probably unconstitutionally – reduces the powers of the judges during the last three months of their term.”

Currently all but one of the members of the Constitutional Court, were appointed when the UNM party was in government. Only one member, Merab Turava, was elected as Constitutional Court judge by the sitting Parliament.
 
10-year term of four judges, among them of the Constitutional Court Chairman Giorgi Papuashvili, will expire in late September. Two of them should be replaced by new judges appointed by President Giorgi Margvelashvili; one has to be appointed by the Parliament and the fourth one by the Supreme Court.

In other controversial changes, according to the bill decisions on suspending a disputed legislative clause as an interim measure pending final verdict should be taken by full bench; currently such interim decision can be taken by a panel of four judges.

“It is not logical that an interlocutory decision which is urgent by its very nature should be taken in a more complicated procedure, which includes a transfer of the case from the board to the plenary session and then back to the board for the decision on the merits,” the Venice Commission said.

The bill also envisages giving a single judge in a panel the right to request referral of case to the plenary session of full bench when the panel of four judges is of the opinion that its position is different from the practice of the Constitutional Court. The Venice Commission said that giving such competence to a single judge was “incoherent” and it should be emended.

“If the possibility for a single judge to request a transfer [to the plenary session] were retained, it should not be required that a two thirds majority give a motivated decision to reject that request,” the Venice Commission said.

The Venice Commission welcomed a number of “very positive changes” in the bill, among them related to the new election system for the Chairperson of the Constitutional Court. 

Under the existing law, the Chairperson is selected through consultations between the President, Parliament Speaker and Chairperson of the Supreme Court. The new bill replaces it with new rule according to which the Chairperson should be selected by the Constitutional Court judges among themselves and elected with support of at least five members.

Among the positive changes, the Venice Commission also noted the introduction of an automatic case-distribution system and the entry into force of decisions of the Constitutional Court upon their publication on the website of the Court.