Issue 4, 2013. August-September

   

INDEPENDENCE OF THE JUDICIARY IN GEORGIA: TRENDS AND CHALLENGES

Over the past 15 years, the judiciary has gone through several waves of reforms. Throughout this period, Georgian society never stopped talking about the independence of the court system, the degree of trust toward it and the need for its further reformation. In this editorial, I will address the following questions: how has the court system changed in recent years? What does the independence of courts mean? How should a better judiciary be achieved?

Otar Kakhidze, BGI

Corruption

One of gravest problems the former government inherited was an utterly corrupt judiciary. Low salaries and corruption bogged down the courts. Honest judges, often marginalized, lived in poverty and were forced to supplement their meager income by academic activities. Whether it concerned the registration of a business, "legalization" of property, lesser sentences for criminals or the settlement of civil disputes, nepotism and bribery infested the system.

Combating corruption in the judiciary was a far tougher challenge than other reforms, including, e.g., the police reform. Yet, this fight was won. Since 2005 up to 20 judges have been prosecuted for bribery, standards of ethics and for conflicts of interest were drafted and implemented and the salaries of judges significantly increased. As a result, according to the research conducted by UNDP in 2009, 92 percent of Georgian citizens no longer consider corruption to be a problem in the courts.

Institutional Independence

To establish whether the courts are independent, several questions need to be raised, including who appoints and dismisses judges, and based on what procedures; how are judges disciplined; and how are the courts financed?

The High Council of Justice, the main administrative body in the court system, plays a key role in regulating these issues. Prior to the 2007 reform, the High Council of Justice was a consultative body of the President of Georgia. Out of the 12 members of this council, four were appointed by the president and another four by parliament. One member was appointed by the Chairman of the Supreme Court. The Justice Minister and chairmen of the supreme courts of the autonomous republics of Adjara and Abkhazia were ex-officio members of the council, while the secretary of the High Council of Justice was appointed by the president.

The appointment and dismissal of judges, as well as issues concerning the management of the court system, fell under the control of the executive branch.

Under the reforms implemented since 2007, the High Council of Justice became part of the judiciary and the rules for service on the council were fundamentally changed: The president and the justice minister were fully disengaged from the council and the Chairman of the Supreme Court became the head of the body, nominating a pool of candidates for the positions of secretary of the High Council of Justice and the majority of its members. Following the reforms, the positions were decided by the Conference of Judges.

Other changes included making the Chairman of the Parliamentary Committee on Legal Issues an ex-officio member of the council, and stipulating that one of the three members elected to the council by parliament one was from the parliamentary opposition.

New amendments to the rules on the membership of the High Council of Justice have increased the body's autonomy: the new rule allows each and every judge to nominate candidates for membership of the council to the Conference of Judges, which is the judicial self-governing body. In addition, it establishes a procedure for secret ballots, strips the executive branch of the right to appoint a member, and allows parliament to elect non-judge members of the council. The new law stipulates non-judge members should be representatives of the legal field - academics, the Georgian Bar Association and the non-governmental sector -- rather than politicians, meaning that Parliamentary members will no longer serve on the High Council.

Allowing parliament to appoint members of the High Council of Justice is a means of balancing the judiciary. The regulation of the council, decisions on disciplinary issues and the appointment of judges are approved with the participation of the non-judge members of the council.

It should be noted that out of the six non-judge members of the council, two are elected by the parliament by two-thirds of its composition. This requires the participation of the parliamentary minority in the decision-making process. However, the parliamentary majority can refuse to approve candidates supported by the minority and, in such a case; these two seats will remain vacant.

Challenges

After the Rose Revolution, the government was faced with a failed state and simultaneously had to rebuild the country on all fronts. We witnessed the construction of new state institutions, often from scratch. The Rose Revolution government did not view the real redistribution of power as a priority; rather it focused on the rapid implementation of reforms. The main driving force was a hyperactive executive branch, which brought about fast progress in almost every direction.In so doing, however, it diminished the role of the legislature and the judiciary.

While it is not serious to talk about the deterioration of judicial independence compared to the judiciary prior to 2004, it is true that the court system during the previous government often failed to perform its role of balancing the executive branch and providing checks on the arbitrariness of its conduct. Especially worth noting in this regard, in the area of criminal law, is the protraction of both jury trial reforms and the correction of the progressive norms of the new Criminal Procedure Code (the chapter on secret investigative activities and the new rules for interrogating witnesses), which led to the stagnation of reforms and harmed the interests of justice.

It can also be argued that the judicial corps was reluctant to take responsibility and enjoy its institutional independence: 99% of the motions from Prosecutor's side were approved and judicial control was often purely formal in substance. At the same time, the judiciary could not reposition itself as a transparent and trustworthy body, a problem likely aggravated by the decision to close the courts to members of the press. Around 95 percent of Georgian citizens have never be inside a courtroom, and have never had the opportunity to watch and assess ongoing cases. The subsequent lack of transparency created more opportunities for the often unsubstantiated attacks that were intended to discredit the authority of the judiciary in general.

Nevertheless, it must be said that the courts gained institutional independence during the rule of the former government. This was clearly seen after the October parliamentary elections when the court system proved to be a stable, self-sustaining body. Presented with this golden opportunity, it seems the judges have realized that they are really independent and do not have any "moral obligation" to toe the line of any political conjuncture.

The current challenges facing the judiciary include withstanding the apparent political pressure coming from the executive and the legislature (e.g., one may recall statements of Justice Minister Ms. Tsulukiani, vice speaker of Parliament Ms. Kobakhidze, reports about blackmailing of a court clerk by an official of the Ministry of Internal Affairs, summoning a district court judge on the case decided by him, assaulting of the court building in Akhaltsikhe, reportedly by activists of the Georgian Dream Coalition, etc.); defining clear and uniform criteria for resolving controversial procedures (such as secret investigative activities, pretrial detentions, etc.); and continuing to build up public trust while delivering justice and demonstrating that is equitably and appropriately.

We could very well be witnessing the birth of a judiciary that is truly independent of the government, both institutionally as well as factually, after years of reforms. This is the result of the transfer of power via elections, the reforms implemented by the former government and the forward-facing steps taken by the new government that finally strengthened the independence of the courts by providing them with a new source of legitimization and setting a standard of transparency.

Otar Kakhidze is a Director at BGI advisory services Georgia, specializing in criminal and administrative law. Prior to joining BGI, Mr. Kakhidze held several key positions at the Ministry of Justice of Georgia, including serving as a Deputy Minister of Justice, where he chaired the drafting group and co-authored the new Criminal Procedure Code. Otar was centrally involved in the drive to liberalize criminal justice policies, particularly towards juveniles and those accused of 'white collar' crime. His professional experience also includes four years with the Georgian Young Lawyers' Association (GYLA), a leading legal aid NGO in Georgia, where he served as a Parliamentary Secretary of the organization. Otar teaches criminal law, legal writing and trial skills at the Free University of Tbilisi.