Bakradze v. Georgia: A Landmark Shift in the Burden of Proof for Judicial Appointments

Dr. Volkan Aslan

In Bakradze v. Georgia, the European Court of Human Rights (ECHR) ruled that Georgia had violated Article 14 of the European Convention on Human Rights in conjunction with Articles 10 and 11 in relation to the applicant, a former judge. The applicant alleged that she was discriminated against in two judicial competitions due to her role in The Unity of Judges of Georgia and her critical stance toward the Georgian judicial system.

This judgment is particularly significant because it requires state authorities to bear the burden of proof when an applicant presents a prima facie case of differential treatment in judicial competitions. In this post, I briefly examine the judgment, its relationship to previous case law, and its potential effects on judicial (re)appointments in Council of Europe member states.

Facts

After serving in various courts, including the Tbilisi Court of Appeal, since 2005, the applicant was dismissed from her judicial position when her ten-year term expired. During her tenure, she had never been subject to disciplinary proceedings. In October 2015 and May 2016, she applied for two judicial competitions for vacant positions at the Tbilisi Court of Appeal, but both applications were unsuccessful. The application to the ECHR concerned the proceedings related to both attempts to seek reappointment.

In the first interview, she was asked about her education, experience, and motivation for applying. However, she also faced questions about ‘The Unity of Judges of Georgia,’ an organization she co-founded, and its critical social media posts about the High Council of Justice of Georgia (HCJ). In the second interview, she was asked similar questions and was not elected again. The HCJ, while refusing the applicant’s application, selected forty-four candidates for appointment from a pool of 130. On October 17, 2016, the applicant filed a civil complaint with the Tbilisi City Court, challenging the results of both judicial competitions and alleging discrimination based on her role in the Unity of Judges. The local court dismissed her discrimination claim as unsubstantiated. It found that the allegation of discriminatory treatment had not been proven, noting that the Unity of Judges was founded in 2014 and some of its members succeeded in the 2015-2016 judicial competitions. The local court also rejected the applicant’s requests to obtain a copy of the HCJ’s recordings of the interviews with other candidates, as well as copies of their application files. During the case, the Public Defender of Georgia submitted an amicus curiae brief. The brief argued that the lack of reasoned decisions on appointments and the secret nature of voting created a risk of biased decisions by individual members of the HCJ, influenced by personal and subjective attitudes. The Defender further highlighted the lack of transparency in the judicial appointment process.

The applicant appealed the decision, challenging the refusal of the Tbilisi City Court to obtain additional evidence and asserting that the first-instance court had incorrectly distributed the burden of proof, placing it entirely on her. However, the appeal court rejected her case, and the Supreme Court upheld this decision.

Statistical data revealed that, between 2013 and 2016, the HCJ conducted six judicial competitions, appointing 214 judges to various judicial positions, about 82% of whom were either serving or former judges. However, 41% of judges affiliated with the Unity of Judges were refused reappointment, compared to only 18% of judges not associated with the organization during the same period.

The ECHR’s Judgment

Based on these events, the applicant filed a complaint under Articles 10 and 11 of the European Convention on Human Rights in conjunction with Article 14, and under Article 1 of Protocol No. 12, claiming she had been discriminated against for criticizing and publicly expressing views on the judiciary as a founding member and president of the Unity of Judges. The ECHR agreed to examine the complaint under Article 14 of the Convention, read in conjunction with Articles 10 and 11.

Regarding admissibility, the ECHR acknowledged that the refusal to appoint someone as a public servant does not, in itself, provide grounds for a complaint under the Convention. However, it accepted that the applicant’s essential objective was to challenge the HCJ’s discriminatory treatment, which could interfere with the rights protected by Articles 10 and 11, either individually or in conjunction with Article 14.

On the merits, the ECHR noted that many of the questions asked during both interviews were about the organization, the Unity of Judges, particularly the applicant’s role in the organization and her views on its criticism of the HCJ and its policies. The applicant was also asked to comment on private Facebook posts by the executive director of the organization, and some questions had accusatory tones. One HCJ member even told the applicant that she should have been held personally responsible for the offensive remarks made by the executive director of the Unity of Judges.

The ECHR criticized the national courts for not examining the Unity of Judges-related questions in detail and for broadly concluding that all questions asked during the interviews were relevant to testing the applicant’s judicial competence and integrity. Considering that questions related to the Unity of Judges occupied more than two-thirds of the first interview and about half of the second interview, the ECHR concluded that the applicant could justifiably perceive the HCJ’s focus on her involvement with the organization as discriminatory. The Court found that the HCJ’s failure to adopt a balanced and neutral approach undermined the likelihood that the questions regarding the Unity of Judges were relevant solely to testing the applicant’s integrity. Instead, these questions suggested bias and prejudice on the part of individual HCJ members toward the applicant due to her involvement with the organization.

The ECHR also referred to a document prepared by one of the non-judicial members of the HCJ, V.M., titled ‘The Problems of Access to Justice, Their Causes, and Ways of Addressing Them,’ which accused the HCJ members of abusing the judicial appointment system. The Court also considered the Public Defender’s statement about the risk of biased decisions by HCJ members, especially considering the lack of reasoned decisions and the secret voting procedures.

Ultimately, the ECHR concluded that the applicant had established a prima facie case of discrimination, and since the applicant had demonstrated such a case, the burden of proof should have shifted to the state authorities. However, the domestic courts did not shift the burden of proof to the HCJ and failed to ask the HCJ to dispel any perception of bias. The ECHR found that the lack of judicial review of the applicant’s discrimination claims violated her rights under Article 14 of the Convention in conjunction with Articles 10 and 11.

The ECHR ordered Georgia to pay EUR 4,500 to the applicant for non-pecuniary damage. The concurring opinion emphasized that this judgment is pioneering in addressing arbitrariness and discrimination in the appointment and promotion of judges.

Significance of the Judgment

As the ECHR has recognized in its previous judgments, judges and prosecutors have freedom of speech, but it is legitimate for a democratic state to impose certain restrictions on their speech in the interest of maintaining public confidence in the judiciary (Article 10 § 2 of the Convention). Similarly, the right to freedom of assembly and association for judges has been acknowledged, though it may also be subject to limitations.

A report on judicial independence and impartiality in the Council of Europe member states, emphasizes that formal rules alone cannot ensure impartial appointment decisions free from political influence. The ECHR had already emphasized the importance of procedural fairness in judicial selection. Failure to properly review such cases can violate Convention rights, such as the right to access a court.

While the Bakradze judgment does not introduce new legal tests for discrimination or Articles 10 and 11, it is notable for clarifying the burden of proof in judicial appointment discrimination cases. Although a refusal to appoint a candidate does not automatically violate the Convention, it may do so when it interferes with rights protected under the Convention (ratione materiae). This judgment is particularly relevant for states where oral interviews are a key component of judicial selection, especially those that have not ratified Protocol No. 12.

Potential Effects

When we look at the appointment procedures of judges and prosecutors in Europe, a competitive exam is the most common method of recruiting judges and prosecutors, practiced in more than half of the member states. Even in some states, judges and prosecutors are subjected to the same conditions for reappointments. In most states, oral exams or interviews accompany written tests to assess candidates’ knowledge, skills, motivation, and suitability. However, as these interviews are often not public and lack recording requirements, concerns about arbitrariness arise—especially where oral assessments play a dominant role in candidate selection.

Despite such concerns, rejected candidates often struggle to prove discrimination due to the lack of transparency in the selection process. In this regard, the Bakradze judgment could serve as a precedent by enabling candidates to shift the burden of proof onto public authorities. Statistical data on rejections and irregularities in interviews could be considered prima facie evidence of discrimination, compelling public authorities to justify their decisions with objective, legitimate reasons rather than bias.

For member states where oral interviews are not recorded, the burden-shifting principle from Bakradze would be even more justified. This judgment has the potential to influence judicial appointment procedures across Europe, fostering greater procedural fairness and transparency. As Judge Elósegui noted in her concurring opinion, ‘the present case is just the tip of the iceberg.’ The Bakradze judgment could encourage more candidates to bring discrimination claims to court, promote judicial reforms, and ultimately improve transparency and fairness in judicial appointments in various jurisdictions.