Informal Powers as a Barrier to EU Accession. Nino Tsereteli on Georgia’s EU Candidacy

In this podcast episode, Teodora Miljojkovic discusses with Nino Tsereteli the roadblocks to Georgia’s accession to the European Union.  Their discussion covers how the response from Georgian citizen’s differs from the response of the Georgian government; what reforms are needed in order for Georgia to get closer to the compliance with the Copenhagen criteria; how informal powers negatively impact Georgian governance and how they can be overcome; and if Nino Tsereteli believes the will in both Georgia and the EU remain for progress towards EU accession.

Nino Tsereteli is a research officer at the Democracy Reporting International where she works on the rule of law challenges in the EU, including issues related to the independence of the judiciary. Before joining DRI, Nino held research positions at the Judicial Studies Institute at Masaryk University, University of Oslo’ (PluriCourts Project) and Ilia State University. She also worked as a legal advisor at the Ministry of Justice of Georgia. Nino holds a Doctorate in Law from the University of Oslo in which she focused on the nature and legal implications of the ECtHR’s pilot judgements. She also holds an LL.M. degree from Central European University and Leiden University.

Teodora Miljojkovic: As we are approaching the end of this year, I would like to reflect on the perhaps most important developments in the EU which is the granted candidate status to Ukraine and Moldova in the context of Russia’s war aggression. Despite the circumstances in which the membership application was brought about, it has been considered in the EU public discourse as a historical moment, as the European Council President Charles Michel stated. On the other hand, and by the same decision, the EC denied Georgia’s application for the time being until the priorities the Commission put forward are addressed. What are, in your opinion, the first problems to be addressed in Georgia in order for the country to progress on its EU path?

Nino Tsereteli: Yes, you are absolutely right that Georgia, in contrast to Ukraine and Moldova, was not given candidate status, it was decided to wait until that decision was made. Instead, Georgia was given the perspective to become a member. There are certain conditions attached to this, and subject to the fulfillment of certain requirements, we could still be considered for candidacy. There are 12 recommendations that have been formulated and the assessment is due in the near future. These recommendations very much reflect many of the problems that Georgia is facing. If you look at various rule of law rankings, Georgia is doing relatively well compared to Ukraine and Moldova, and some EU member states as well. However, there are a few concerns which I think explain the skepticism and the decision of the European Union in terms of giving Georgia the candidacy status.

One of the major problems listed in these 12 recommendations is judicial independence. I define this is as the independence of individual judges and outputs/decisional independence. There are a few others: weakened checks and balances, attacks against various independent institutions, efforts to capture this informal governance more broadly, and the oligarchization of the governance in Georgia—including in the judiciary, but not only there. These are some of the issues. Others are media freedom, pluralism, and a range of concerns that also emerged with the fact that the director of one of the opposition channels was jailed, which really signaled issues with the judicial independence as well.

The denied candidacy brought different reactions. Georgian President Zourabichvili called this an historic day in which the Georgia’s European perspective has been recognized. On the other hand, the same event prompted thousands of Georgians to go out to streets and express their dissatisfaction with the outcome of the application process. Can you tell us more about the nature of these protests? Who were they directed at? Does the political will expressed within those protests differ from the official governmental position on the accession, which is, at least according to the public statements, hopeful and positive?

Yes, the decision to delay giving candidacy status was followed by public demonstrations. These demonstrations, as I understand, were directed mostly towards the European Union to send a signal that we as Georgian people are committed to the values and we want this European choice. However, I think

the concern in the public was that our ruling party does not really show such commitment a lot of the time. While they rhetorically are quite determined to get the status, a lot of their actions are not consistent with this rhetoric.

What I mean is that a lot of the time, they do not really acknowledge the problems, and consequently the solutions they suggest are not really adequate. One example of this is that recently the Parliamentary Committee came up with a strategy for judicial reform. This was one of the 12 recommendations that I initially mentioned. If one looks at the strategy, the major criticism – which I also agree with – that was coming from civil society organizations was that it really doesn’t reflect the real problems in the judiciary.

The real problem is the lack of judicial independence, both internal and external.

However, this strategy mostly assumed that there is no such issue, that everything is done at the legislative level and what needs to be done is, for example, to address the workload or back logs in the judiciary or improve the infrastructure. These are issues as well, it’s just that they are not primary issues. A lot of the time the reference point for the Georgian government with regard to the judiciary is that we have implemented the reforms. It is true that a lot has improved on paper, in terms of improving the quality of the decision-making processes, creating the possibility to challenge the decisions made by the judicial council, et cetera. However, this didn’t really translate into strengthening the independence of individual judges. And now the issue is that the reform process should have really agreed on what the problems are, and why we don’t have independent judges. But there’s really no willingness to go into the substance of the reforms and the substance of the problems.

As a result of this, there’s skepticism. I understand, obviously, also the skepticism of the European institutions. At the same time, I think it’s very important not to turn this process into a box-ticking exercise when the European Union starts assessing the progress. Obviously, a lot of these reforms are very long term. However, the question is whether Georgia has done enough. This also needs to be assessed very critically in order not to be superficial in a sense, and let Georgia get away with some sham proposals and reforms.

Yes, what you described right now reflects the problems in other accession countries as well, especially this paper constitutionalism and the formal compliance with Copenhagen criteria, while the situation on the ground is not really changing in any perspective. That can be not only damaging for the accession countries, but also for the EU accession procedure itself and its credibility. It sounds like, as you rightly stated, the problem is not in the workflow, and the problem is not in the formal organization of the judiciary. I had the pleasure of reading your recently published article on informal factors behind the persistence of judicial oligarchies in post-communist countries, and specifically Georgia. As we know from the recommendations from the Commission, de-oligarchization has been put forward as one of the main priorities for Georgia to address. Can you tell us more about the problem of the Georgian judicial oligarchy? What kind of reform, in your opinion, is needed for Georgia to get closer to the compliance with the Copenhagen criteria, and particularly Chapter 23 and 24? If these reforms and national strategies do not really capture the problem, how should we address this problem in order for Georgia to get closer to the EU membership?

One point of clarification I will start with is that the de-oligarchization in the context of the Georgia-EU communication is mostly used to look more broadly into the informal governance at the political level. It’s believed that former Prime Minister Ivanishvili is using his connections, having installed his former employees from his companies into leadership positions, somehow he’s using those levers to influence even though he’s out of politics at the moment. He’s influencing decision making, broadly speaking. Now the question is not whether to adopt this de-oligarchization law, which is one of the elements of the 12 recommendations, the question is whether we need the law or not. A similar law was considered in Ukraine as well.

As regards to my research, I use similar terminology because I see a similar dynamic inside the Georgian judiciary, in that there is a concentration of power in the hands of the select few judges who have formal positions, court presidents, et cetera, but they also have a systemwide influence through installing loyal judges in other leadership positions. That’s why I call them judicial oligarchs—judges that have essentially control over the entire judiciary. They benefited a great deal from the reforms, from the creation of the judicial council, which was meant to give power to judges, so that the judges are in the majority. However, what happened was that they didn’t give power to all judges. It gave power to certain judges.

It’s not that the model is bad in itself, however, it played out in a way that led to further subordination of individual judges to more influential judges, court presidents, and others. It had a detrimental impact, because essentially once you capture the judicial council, it’s easy to control the entire judiciary through the council. The council has the majority of power as regard to judicial recruitment, promotions, discipline, initiation of disciplinary proceedings, transfers, and all of those can be very much used, and abused, in a way that endangers judicial independence.

The fact that certain constraints have been introduced through legislation in the past few years did not really restrict the decision-makers, these judges who are in the judicial council, because of the informal dynamics that exist behind the closed doors. For this reason,

a lot of these decision-making processes may be seemingly transparent, but they are often perceived as façade or as a performance for the public, while most decisions are made through informal engagements.

One of the reasons for this is how judges were recruited, because once this influential group got a hold of the judicial council, they recruited judges based on fitting certain profiles. They were the ones that were easily controlled—that is the perception – and that this group essentially looks out for people (these may be former assistants, most of the time these people come from inside the judiciary and have not had much other experience) and the goal is to create a culture of passivity. So, essentially, even if you adopt good laws, they no longer work. The judges that challenged these decision-making patterns were, in effect, forced to leave the judiciary. They were refused appointments, et cetera.

So, we get this situation where we have about 300 judges in the entire judiciary. That’s also an important factor. Georgia has a very small judiciary, and it’s very easy to create an internal environment that is conducive to great passivity and conformity. Even though the legislative changes at least created the potential and the possibility for judges to elect which ever candidate they wanted to elect into the judicial council, in practice if you would to go to the conference of judges, which is where the members of the judicial councils are elected, a lot of the time there’s no discussion and the decisions are pre-agreed. Candidates are pre-agreed, and everybody knows whom to support. So, a lot of the time the number of candidates for the judicial council membership is the same as the number of vacancies. There’s no competition. This is a major problem. A lot of people in Georgia think ‘What’s the solution? How do we handle this?’ A lot of judges are already appointed for life.

The question is what to do about it. I see two options. One option is a more radical one. It is linked to some extraordinary measures, like some sort of vetting, or some sort of reorganization or dismissals. This is not something that should be recommended routinely and easily. I think in order for that to happen, there should be a consensus that the flaws we see are such that they essentially undermine and compromise the legitimacy of the entire judiciary. So, we should show that these are systemic flaws and if everybody agrees on that, it makes it easier to justify these really radical measures. This would allow starting from a clean slate, and maybe recruiting judges in a different way.

Another path is to keep things as they are. The question is then, what to do, because we seemingly have dependent judges. One starting point could be to improve the legislation to encourage even more decentralization of governance. Another could be to empower judges more. Maybe also adopt internal and external accountability mechanisms, even dialogic or more involvement of civil society, which would allow for improving the quality of judiciary.

My biggest concern with this is that I doubt that the current judges have the capacity to change quickly. In 2013 when the government changed, we had a slightly different composition of the judiciary. When the political context changed the judicial behavior started changing as well. This gives a signal that if there is the right context, there is a potential that even a very passive judiciary could change and judges could start speaking up, start making decisions independently without instructions. This showed the potential. However, I think there’s less of a possibility of that now because of the recruitment policy that has been in place since 2013.

So, the question is, are judges willing to act if there is a risk that their proactivity would be sanctioned?

I have met some of the judges that are trying to do that. However, it comes at a very high risk, and there are not enough judges who could change the dynamic internally. Another option is contextual change, which doesn’t appear to be expected in the near future, meaning political change where there’s a clear political will that we need an independent judiciary. Under those circumstances, judges would not feel threatened, and they would start changing. Under the current circumstances it’s riskier, and it’s not surprising that judges are not really risking their careers or wellbeing to use the possibilities under the law, speaking out, creating associations, et cetera. That’s why it’s a difficulty.

I see one solution in this scenario. We have a hundred vacancies in the judiciary. Those hundred vacancies cannot be filled because current judicial leadership that’s controlling the judicial council is unwilling to fill those vacancies, and lawyers are not really interested in applying because they think that there’s no point. The only way in which qualified lawyers would be interested in applying, and the only way in which they would have a chance of being recruited, is if we come up with an ad-hoc solution for this group of appointments. If differently thinking people, independently minded people, entered the judiciary, it could change the balance. What I’m thinking of is maybe involving international experts, civil society in some way, that would possibly give a chance of changing the dynamic.

I think this third path that you mentioned is also very interesting, because a hundred vacancies, that’s not a small number, if the number of judges is 300. So, that could really make a significant change. But as you said, there needs to be political will and political will is crucial for vetting as well.

In that sense neither of these solutions would work if there is no real political will. But on the other hand, there also needs to be a will for change within the judiciary itself. I think that your empirical work with judges is very important in terms of informing them of what their choices can be, and in the sense of giving them possible ways in which they can protect their independence. That’s why the work of lawyers on the ground is essential, especially in small countries, because then you can actually make an impact if you work with judges. As you said, this informal dynamic that exists in Georgia is very interesting and it’s not only in Georgia. It’s an inherent problem of many countries. It’s a problem that has been under studied in the EU. There is a literature on it in Latin American countries which face similar problems, but in the EU it’s definitely not something that is common discourse among lawyers. It’s very important in the context of the rule of erosion, and there is, in my opinion, not enough attention to this problem.

What are the challenges for you as a legal scholar to analyze and theoretically conceptualize the informal pressures on the judiciary? As you already said, the laws are there. They’re not perfect, but they’re good enough, but still they’re unable to capture the problem of informal pressure. What is the solution? Perhaps strengthening the civil society interest in judicial independence and making judicial independence a value which is important not only to lawyers and judges, but to the whole society.

Additionally, do you think that there should be a normative solution that should be certain constitutional design of the judicial organization which would prevent internal informal priority in the post-communist countries, or do we depend on the legal culture of each country?

Essentially in this question there are two ideas. Can we fix this by fixing the constitutional design or do we need to strengthen the rule of law and judicial independence as a value of the whole society, and not just a value that we need to check the box for the EU?

I’ll start with the constitutional design issue because at the beginning of your point, you also questioned if the judicial council model is a good one. Obviously, it proved to be detrimental for Georgia especially because it’s a small judiciary, however, it proved problematic also for other new judiciaries in newly independent countries, in a sense that there was no prior tradition. Essentially, judges suddenly were given a lot of power, and the risk was that those powers were without accountability. So, it wasn’t very balanced. There was the risk of internal pressures.

Another risk attached to this model is the lack of political culture in these societies in terms of respect for independence and the risk of indirect politicization, which I think happened in many such countries in terms of, for example, installing loyal judges in key positions and then influencing other judges through them.

It might not have been such a good model for these countries. But at the same time, it’s difficult to come up with a clear-cut vision in abstract which would be applicable for all countries. I would think this should have happened through internal analysis and discussion and maybe with more of an eye on the independence and accountability balance. It’s a general recipe; it’s difficult to say what would’ve been a good solution. But if we look at the Czech Republic for example, which did not adopt the judicial council model, it’s quite telling. It’s a more diffused system, and I have the general impression that levels of independence are much higher than in Slovakia or other post-communist countries where the powers were concentrated in one place, which made it easier to control and to acquire system-wide influence.

So yes, there are multiple considerations. Poland is another example, but there we have an additional complex factor of politicized election, which played out obviously towards the direct political capture, which makes the Polish case an even more of an evident case of politicization.

Regarding the informal aspects of it: it’s quite clear that whatever formal model is chosen and however good the formal arrangements are, they might not work if there’s no mental transformation in these types of countries. My takeaways from my research have been that obviously we need to be careful about the reforms and reform dynamics because one of the crucial factors was that a lot of the reforms were delayed, and they were very protracted. So, by the time we introduced constraints and requirements such as transparency or substantiation, all judges were appointed. So, this is one factor that was problematic.

Another one was that

the adoption of reforms created this illusion of progress, and everybody was happy about it, both external observers as internal actors. And the idea was that maybe we implement these reforms now, and someday at some point the mentality transformation will catch up. But it’s not that easy.

My general thought has been that it’s important to work at two levels. One is the judiciary level, who the judges are and what they can do, and recruitment in this sense is important, but also cultivation of internal culture is important. In this case, it’s quite helpful to compare, for example, Poland and Hungary. In both cases we see politicization and very high risks for judges, but we see very different patterns in the judicial behavior. These examples are good to investigate to understand under what conditions judges are more likely to transform and protest, because this wasn’t the case in Poland a few years back. I think this crisis situation really triggered change and mobilization.

Poland has a greater potential in that it’s a bigger judiciary, in contrast to Georgia, in the sense that it has much more room for mobilization of different associations. Internal potential is one aspect: who the judges are, how they mobilize, and whether they have chances to mobilize, resist, and become more resilient. Another factor is obviously the external legal environment. You mentioned civil society’s role, or maybe the role of other actors, ombudspersons or other independent institutions, that could potentially be helpful in building resilience. There’s research on this type of work, of how judges could find allies externally (maybe academics, media, and the general public), which could add force to their resistance. This is another layer of safety in a sense, because more developed democracies can also backslide. So, these elements are very important.

Research on informality is quite challenging in the sense that informal norms, informal practices are very difficult to discern. My approach has been mostly to collect as much data as possible and discern some of the behavioral patterns which cannot be explained by the law and have no foundation anywhere. This gives you a hint that there might be something going on here that is suspicious. In these newly independent countries, informality mostly is considered in the negative sense. However, as we see in Poland, it could be positive, and this is something that needs to be replicated.

That’s an amazing conclusion that informality doesn’t necessarily have to be a bad element when it comes to judicial self-governance and the building of judicial resilience.

As we know from your work, you’ve been very active following and commenting on the EU rule of law developments in the last year. My question is, the whole framework that has been created in the last 10 years by the EU for the rule of law backsliding, specifically in Hungary, and more recently in Poland when it comes to the judiciary, do you think that this framework and the legal standards and political requirements that the EU set for the rule of law as an EU value will affect the accession process as well? How do you think this new knowledge that we have on the rule of law as an EU value should be implemented in the accession process, and do you see that it is implemented already?

Regarding the EU, I think we see a great deal of variation inside the EU in terms of the levels of rule of law performance. In certain states we see a very rapid backsliding, in the past few years in Hungary I guess from 2012, and in Poland from around 2015, 2016. One lesson internally is obviously that alertness is very important, and prevention and early identification of such threats or tendencies, and maybe to support the actors that are key to resilience internally. At the same time, the situation elsewhere and in the bordering territories in the aspirant countries is also very important. As the Russia-Ukraine situation showed, the absence of the rule of law can be potentially dangerous in other ways. I assume the internal situation would make the EU more cautious about any further accession processes. And it’s a useful process in a sense, as long as the EU also does the job in terms of monitoring, assessing, and giving feedback. These concerns are inside the EU as well in terms of whether they are strict enough and in assessing some of the proposed reforms.

I think you’re right that the caution will probably be higher, but maybe that’s a good thing. But in the sense of these formal rules and requirements under the Copenhagen criteria need to be more observant of the local developments, because of the history of Hungary and Poland tells us that these rule of law checklists don’t really work if you’re not following what’s happening on the ground. Thank you, this was very inspiring for me also as a rule of law researcher, but I also think for anybody who is interested in EU accession.

My final question is: to circle back to Georgia, do you think that the will of Georgian society will be mobilized? This is obviously speculation; you cannot know. But as somebody who is  really familiar with the context, do you think in the near future there can be both from the EU and from Georgia’s side a real commitment to progress in this EU accession?

On the public side, recent polls show that over 80% of people remain supportive of the European choice. I think civil society has been very active in terms of proposing solutions and monitoring and assessing governmental plans. I wouldn’t be so optimistic about the government’s side of the story. There are multiple problems with this; one problem is the polarization in Georgian society, it’s one of the aspects that also was raised by the EU’s 12 recommendations that political parties don’t really want to work together, and there’s a lot of blaming, et cetera.

If the EU continues working very closely, it could potentially lead to changes—slowly but surely—towards a more independent judiciary, fewer threats to the media, a stronger civil society, and a more aware public. But I think awareness and engagement with the EU member states, transnational networks and communities can also be very helpful in terms of learning some of the lessons.

I’m generally quite hopeful, but slightly skeptical, about the Georgian government side of things. But I think it’s a lot of play with sticks and carrots that could work. But I’m very hopeful about the Georgian public stance on this, and civil society’s stance, that they will be very supportive and pushing for this.

The transcript has been edited for clarity and length

In collaboration with Lucie Hunter, Hannah Vos and Karen Culver

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