Case Summary and Outcome

The European Court of Human Rights Court found a violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 10 (freedom of expression) and 11 (freedom of assembly and association) regarding claims of discrimination brought by a former judge, Ms. Maia Bakradze. Bakradze, who was also president of the Unity of Judges of Georgia (a professional association advocating for judicial independence and transparency) argued that her exclusion from two judicial reappointment competitions was not based on her professional qualifications but was instead motivated by her leadership in the NGO and her public criticism of the High Council of Justice (HCJ). The Court found that the interviews conducted by the HCJ focused disproportionately on her role in the NGO and her views on judicial reform, rather than her competence as a judge. It held that this treatment constituted discriminatory interference with her rights to freedom of expression and association.

Facts

Ms. Maia Bakradze served as a judge at the Tbilisi Court of Appeal and was a founding member and President of the Unity of Judges of Georgia, a non-governmental organization advocating for judicial independence and transparency. Upon the expiration of her ten-year judicial term, she sought reappointment by participating in two judicial selection procedures conducted by the High Council of Justice (HCJ). Both of her applications were ultimately unsuccessful.

As part of the selection process, Ms. Bakradze was interviewed by members of the HCJ. She was questioned on her education, professional experience, and various activities, including her leadership role in the Unity of Judges. Notably, from the eighth minute of the interview, she was asked several questions aimed at eliciting her views on public criticism of the judiciary, particularly in relation to an ongoing media campaign by civil society organizations that, according to some HCJ members, sought to discredit the judiciary.

She was specifically asked whether, as President of the Unity of Judges, she believed that such NGO-led criticism constituted legitimate public discourse. Toward the end of the interview, she was also asked about her salary as President of the NGO and her recent work experience.

Ms. Bakradze argued before the national courts that her non-reappointment was discriminatory and linked to her active involvement in the NGO and her critical stance on developments within the judiciary. She contended that the questions asked during the interview did not focus on her competencies or professional qualifications, but were instead designed to probe her personal views and affiliations.

However, all three levels of the domestic judiciary rejected her discrimination claim, finding it unsubstantiated. The courts held that she had failed to demonstrate any individual bias or prejudice on the part of HCJ members, or to establish a causal link between her affiliation with the NGO and the decision not to reappoint her.

The Supreme Court, acting as the final instance, concluded that the questions posed during her interview aimed to assess her legal reasoning and views on key principles such as judicial independence and freedom of expression. The Court emphasized that asking different questions to different candidates did not amount to unequal treatment or discrimination, and further noted that Ms. Bakradze had not objected to the questions during the interview and had voluntarily answered them.

Following the exhaustion of domestic remedies, Ms. Bakradze brought the case before the European Court of Human Rights (ECtHR), alleging violations of Article 10 (freedom of expression) and Article 11 (freedom of assembly and association), both taken alone and in conjunction with Article 14 and Protocol No. 12 (prohibition of discrimination).

Decision Overview

The European Court of Human Rights was asked to consider whether Ms. Maia Bakradze had been discriminated against in her bid for judicial reappointment because of her exercise of the rights to freedom of expression and association. At the heart of the case was the role Ms. Bakradze played as president of the Unity of Judges of Georgia, a professional association known for its vocal criticism of the High Council of Justice (HCJ), the body responsible for judicial appointments in Georgia.

Ms. Bakradze argued that her exclusion from reappointment was not due to her qualifications or professional merit, but rather stemmed from her association with the Unity of Judges and her public criticism of the judiciary’s management. She emphasized that all statements issued by the association related to the functioning of the judiciary, a matter of public interest and thus protected under Article 10 of the Convention. She contended that the HCJ’s decision amounted to unlawful interference with her rights to free expression and association.

To support her claim, Ms. Bakradze highlighted three key elements. First, she presented statistical data showing that several executive members of the Unity of Judges had also been denied reappointment, while others were only reappointed after repeated attempts, and ultimately left the association afterward. Second, she pointed to the interviews conducted during the selection process, where she was questioned extensively about her involvement in the Unity of Judges and its public criticisms. She noted that the tone of these interviews was often accusatory, and the questions seemed designed less to assess her legal qualifications than to challenge her views and affiliations. Third, she underlined the lack of transparency in the process: the HCJ did not issue written reasons for its decisions, and the domestic courts refused to review interview records or consider her allegations in detail. This, she argued, made it impossible to properly assess whether she had been treated fairly and consistently with other candidates.

The Court began by reaffirming the vital role that judges play in a democratic society and the need for them to enjoy both independence and public confidence. While judges are expected to exercise restraint in their public expressions, especially where the judiciary’s impartiality is concerned, they are not excluded from public debate. On the contrary, the Court emphasized that judges have the right to express themselves on issues affecting the justice system and may join associations to represent their interests.

Importantly, the Court reiterated that in cases involving allegations of discrimination under Article 14, once an applicant provides a prima facie case, the burden of proof shifts to the authorities. It is then up to the state to show that any differential treatment was justified.

In Ms. Bakradze’s case, the Court found that the statistical data alone did not prove discrimination, but – when considered alongside the nature of the interviews and the broader context – it revealed troubling patterns. Although the HCJ is allowed discretion in the questions it asks candidates, the Court noted that such questions must be aimed at assessing professional competence and integrity. In Ms. Bakradze’s interviews, however, a disproportionate amount of time – over two-thirds in one instance – was devoted to her role in the Unity of Judges and her views on its criticisms of the judiciary. These questions, the Court found, went beyond the legitimate assessment of integrity and suggested a focus on punishing her for her association’s activities.

The Court stressed that discussions about the functioning of the judiciary fall squarely within the realm of public interest, where even judges enjoy broad freedom of expression. It recalled its growing jurisprudence recognizing that in times when the rule of law or judicial independence is threatened, judges may not only have the right, but a duty, to speak out.

Given these considerations, the Court concluded that Ms. Bakradze had made a compelling case that she had been treated differently due to her association with the Unity of Judges. The domestic courts had failed to examine her claims meaningfully or to shift the burden of proof to the authorities, as required. The HCJ had offered no reasoned decisions, and the courts had declined to scrutinize the process.

In light of the lack of transparency, the accusatory tone of the interviews, and the disproportionate focus on Ms. Bakradze’s expressive and associative activities, the Court found that her treatment reflected bias and discrimination. It held that there had been a violation of Article 14, taken in conjunction with Articles 10 and 11 of the Convention.