Beginning of the judicial reform
Adoption of the Organic Law of Georgia on Common Courts by the Parliament of Georgia on 13 June marked the beginning of a judicial reform inGeorgia.
The reform was to implement the checks-and-balances principle enshrined in the Georgian constitution and to create an independent judiciary to ensure balance among the branches of State authority. Unfortunately, the reform started in 1997 did not entail the results anticipated by the concept of the reform. Outdated material and technical resources and absence of social protection guarantees for judges and judiciary system employees resulted in accumulation of a serious of problems within the judiciary that promoted unhealthy processes. In addition, no reforms were carried out in other State bodies in direct contact with the judiciary such as the prosecution and police due to lack of political will.
Revival of the judiciary reform
A new phase of reform of the judiciary started in 2005. A new reform concept was developed and new priorities were determined such as:
- Sophistication of mechanisms to combat corruption in the judiciary and ensuring effectiveness of these mechanisms;
- Institutional reorganization of the judiciary; creation of a functionally well-structured system and, accordingly, ensuring the principle of consecutiveness of judicial instances;
- Specialization of judges of all instances;
- Increase of the number of judicial officers to at least 400 judges;
- Increase of the labor remuneration rates of judges; enhancement and reinforcement of social and legal protection guarantees;
- Perfection of the criteria for the selection of judges and improvement of the rules of assignment of judges to judicial office;
- Creation of a system for preparation of judicial candidates and permanent training of active judges; elaboration and implementation of appropriate long-term programs and educational courses;
- Ensuring official promotion of judges based on a career principle;
- Provision of courts with material and technical resources; financial provision;
- Introduction of the notion of bailiffs to ensure order in the premises of courts and courtrooms;
- Improvement of the organizational functioning of courts; perfection of the court management system; raising qualifications of court employees and improvement of their operational effectiveness;
- Creation of a unified computer network for courts and, accordingly, raising the quality and perfection of case management; ensuring transparency and publicity of court activities by placing the public information within the network;
- Eradication of the problem of protracted case proceedings; reduction of occurrences of repeated review of the same case to the minimum possible extent;
- Perfection of the High Council of Justice and its disciplinary proceedings mechanism; increase of the number of judicial members of the Council to at least half of all of its members and ensuring effectiveness of their activity;
- Broadening and improvement of relations between the judiciary and the mass media; strengthening of public control over the activity of the judiciary.
It should be noted that the afore-listed priorities of the reform have been reflected in even more details in a series of Governmental and non-governmental programs such as the Action Plan for the Implementation of the Georgian Criminal Legislation Reform Strategy. Every step made towards the reformation of the judiciary serves the sole overall goal, which is it create an independent and impartial judiciary system and ensure effective administration of justice. Numerous successful steps have been made since 2005 till present eventually resulting in positive effects in the sense of both proper functioning of and access to the judiciary.
1. Institutional changes
A judiciary system built on the principle of consecutiveness of judicial instances was unavailable until 2005. In 1997, by adopting the Organic Law on Common Courts, the legislator attempted to introduce the principle of consecutiveness of judicial instances establishing an appeals court as a second instance court that was to adjudicate appeals complaints lodged against the decisions of first instance courts; however, the reform failed and, in fact, until 2005, we had appeals and cassation instance courts hearing cases also as first instance courts. A new institutional reform aimed at establishing the very principle of consecutiveness of court instances implying existence and functioning of purely first instance, appeals and cassation instance courts.
Following the changes implemented, district (town) court are reviewing cases as first instance courts. A new notion of magistrate courts has been introduced for the paramount purpose of ensuring timely and simplified review and adjudication of relatively less significant cases.
Appeals courts are adjudicating cases only by an appeals procedure. The Supreme Court of Georgia turned into a purely cassation instance court. The Criminal Cases Panel of the Supreme Court, which used to review cases of particular gravity as a first instance court, was abolished. Presently, the Supreme Court is dealing with only cassation complaints. Admissibility criteria for cassation complaints have been introduced.
2. Personnel reform
Personnel reform is one of the priorities of the judiciary reform aiming at staffing the judiciary system with highly-qualified personnel and creation of strong judicial officers corps. The personnel reform involves organization of qualification examinations for judges, introduction of effective and transparent criteria for the selection of judges, training of judges and other measures. Since 2005, judicial qualification examinations are held by specialization, in particular, in general, criminal, civil and administrative specializations; this is to ensure that cases are adjudicated by judges having higher qualifications specialized in narrow fields of law.
The High Council of Justice approved criteria for the selection of judges by its decision. Candidates are selected based on criteria such as education, intellectual power, professional experience, personal traits, motivation, attitude to work, communication skills and moral and ethical features. Also, members of broad public are able to express their own views about each of the selected candidate by sending their comments through the website of the Supreme Court of Georgia.
To establish more effective criteria for judicial recruitment, on 28 December 2005, the Georgian Parliament adopted Law onHigh SchoolofJusticecreating, accordingly, theHigh SchoolofJusticeofGeorgia. Aimed at staffing the Georgian common courts system with highly qualified professionals, the function of the School is to professionally train judicial candidates and justice students.
TheHigh SchoolofJusticeis also actively training current judicial officers and court employees. Judges are specially trained in pedagogy and psychology. TheHigh SchoolofJusticeis organizing seminars on topical issues for judges.
A constituent part of the personnel reform is the staffing of court offices with highly-qualifies and decent personnel. It should be mentioned in this regard that, in parallel with the process of unification of courts, competitions are held within the courts for the employees of court offices. For the first time, unified qualification requirements have been set for the employees of court offices constituting one of the guarantees for the commission’s impartiality and objectivity. We can say that, focused on the protection of citizens’ rights, the newly staffed court offices have proved to be operationally successful.
3. Social protection guarantees
Availability of effective social and legal protection guarantees within the judiciary system is one of the means to ensure independence of the judiciary. Creation of strong social guarantees has been outlines as one of the indicators of perfecting mechanisms for combating corruption within the judiciary system. Till 1999, a monthly salary of judges did not exceed 30 Lari; courts did not have technically equipped premises; there was a lack of effective and flexible administration system. Against such background, naturally, fight against corruption was difficult. The matter of labor remuneration of judges is now regulated by a legislative act (a law). Currently a minimum salary rate for judges of Georgian common courts equals 2,300 Lari and the highest rate is 5,650 Lari.
4. Material and technical equipment
In the process of the judiciary reform, special attention is paid to improving material and technical equipment of courts and, accordingly, betterment of working conditions of judicial officers and court employees. Before the start of the reform, court premises were in deplorable conditions. By the present stage of the reform, court premises have been intensively rebuilt or refurbished using modern technologies and new courtrooms equipped with proper furniture and computer equipment have been arranged. This has made it possible to produce verbatim reports and minutes of hearings electronically and to view physical evidence using electronic displays. The process was initially financially supported by the World Bank but today the renovations are financed solely with sums allotted from the State Budget. It should be noted that this result has been achieved largely by the increased share of court financing within the State Budget and a new approach to spending policy.
5. Disciplinary proceedings
Perfection of judicial disciplinary proceedings is an important guarantee for the independence of the judiciary. By virtue of amendments made to the Law on Disciplinary Liability of and Disciplinary Proceedings against Judges of Common Courts of Georgia, disciplinary proceedings have become more flexible and time-constrained. Transfer of the review of judicial disciplinary proceedings within the framework of the High Council of Justice and increase of judicial members of the Council helped create more objective adjudication guarantees. The Georgian High Council of Justice is an authority, which both initiates disciplinary cases against judges and is responsible for the enforcement of disciplinary punishments and measures of disciplinary effect.
Disciplinary case review sessions of and decision-making process by the High Council of Justice are not attended and participated by a member of the Council who, at the same time, is a member of the Disciplinary Panel of the Judges of Georgian Common Courts. Judicial disciplinary justice system is arranged in a manner that is fully consistent with the Recommendation on the Independence, Efficiency and Role of Judges adopted by the Committee of Minister of the Council of Europe on 13 October 1994, which posits that disciplinary violations committed by judges should be examined by a properly independent and competent authority, within a reasonable time and not in a protracted manner and the European Charter on the Statute for Judges, which stipulates as follows: The dereliction by a judge of one of the duties expressly defined by the Statute, may only give rise to a sanction upon the decision … of a tribunal or authority composed of at least one half of elected judges, within the framework of proceedings of a character involving the full hearing or the parties, in which the judge proceeded against must be entitled to representation… The decision of … a tribunal, or of an authority pronouncing a sanction … is open to an appeal to a higher judicial authority.
What also witnesses about perfectness of the current rules of disciplinary proceedings is the disciplinary statistics: on 96% of complaints lodged against judges, disciplinary proceedings are terminated and only 4% of complaints result in holding judges liable under disciplinary rule. Disciplinary cases are reviewed by the Disciplinary Panel of the Judges of Common Courts.
6. Perfection of the court administration
Availability of prompt and qualified justice system is crucial for restoring violated human rights. Achievement of this purpose requires proper functioning of court and introduction of effective administration and documents processing mechanisms. The High Council of Justice has been intensively implementing methodological and law-making measures in this direction. Statistical reports are actively requested from courts, problem issues affecting various activities of courts are raised, shortcomings in the regulatory normative base are identified and proposals for solving the problems are elaborated. To these ends, a series of measures have been implemented within the judiciary. For example, document forms have been introduced allowing identification of reasons of protraction of case review. Important amendments have been made to the procedural law, in particular: care review procedures have been simplified; protection of the rights of the parties to the proceedings became more efficient; judges have been vested with powers to use more flexible and effective legal mechanisms in order to prevent protraction of case review. The High Council of Justice has also elaborated a series of proposals for perfecting case proceedings and bettering the administrative part. In the nearest future, a unified computer information space will be created that will make it possible to embody unified electronic document flow and case processing systems in the system of common courts; implementation of these systems will ensure prompt movement of procedural, organizational and economic correspondence and, eventually, contribute to the quality of case and documents management in courts. In order to keep order in common courts and facilitate to unimpeded administration of justice, the Organic Law on Common Courts has introduced the notion of a bailiff. The procedure codes have been amended accordingly and circumstance and rules of imposing specific punishments upon perpetrators of order in the court premises have been determined. Bailiffs were selected by a rule of competition. In addition, under the auspices of the Supreme Court of Georgia and the High Council of Justice of Georgia, bailiffs were trained in theHigh SchoolofJusticeto educated them in both theory and practical skills.
7. The High Council of Justice
Since its creation, the functions of the High Council of Justice have been appointment and dismissal of judicial officers, organization of qualifications examinations, elaboration of proposals to implement the judiciary reform and performance of other tasks prescribed by law. The High Council of Justice has been existing for 10 years already and, it can be said that it has occupied a decent place among other administrative bodies. Although the decisions of the High Council of Justice used to have the force of only recommendations to the President of Georgia when the Council used to the a consultative body at the office of the President, it is completely safe to say that during its 10 years of existence the High Council of Justice proved to be an actual coordinator and driving engine of the judiciary reform. In the period of its existence, the Council has undergone several transformations to become an more effective tool to ensure independence of the judiciary. At the time of its creation, the Council consisted of 12 members with only 3 judges representing the judiciary. By legislative amendments enacted on 30 June 2004, the Council’s membership was re-determined at 9 members but without affecting the number of judicial members. A European model of Justice Councils envisaged a majority of judges in the membership of similar bodies, which was not the case in the Georgian reality. This setback was corrected by amendments dated 25 November 2005 in the legislation. The Council now consisted of 18 members of whom 8 members were elected by the Conference of Judges of Georgia from judges of common courts at the recommendation of the President of the Supreme Court. However, the trend of increase in the number of judiciary representatives in the Council continued. By legislative amendments enacted on 25 May 2006, the Council’s membership was determined with 19 members. The Prosecutor-General was excluded from the Council membership, the Georgian Parliament’s quota was increased to 5 members and the number of judicial members elected by the Conference of Judges reached 9. Legislative amendments enacted on 27 December 2006 were a turning point for the Council’s status and functions creating more guarantees for the independence of the Council and, accordingly, of the judiciary as a whole. By these amendments, the status of the Council and principles on which its membership is based are fully consistent with the general principles laid down by the European Charter on the Statute for Judges. Here is a citation from the Charter (Chapter 1, paragraph 1.3): “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.”
Based on legislative amendments enacted in June 2007, the High Council of Justice went through its final transformation. The Council membership has been set at 15 members. It is important to note that the Council is now chaired by the President of the Supreme Court and not the President of Georgia. The Georgian Parliament’s quota into the Council membership is 4 members of whom the Chairman of the Parliamentary Legal Affairs Committee is an ex official member. President ofGeorgia is represented in the Council with 2 members appointed by him. Common courts are represented by the President of the Supreme Court and 8 members elected by the Conference of Judges, including the Secretary of the Council. A member elected by the Conference of Judges, unless he/she is the Secretary of the Council, may only be a judge of a common court. In addition, the aforementioned amendments vested the Council with powers to decide on a series of issues formerly falling within the competence of the President of the country. Such powers worth noting are the authority to appoint and dismiss judges, to create courts and determine their territorial jurisdiction, to determine the number of judges in courts, to create specialized judicial panels and to appoint presidents of courts.
8. The court and the media
Transparency and publicity of the judiciary system and its relations with the public is one of the important preconditions for the reform’s success. The previously-established practice envisaged no direct contact on the part of courts with the public; courts used to have relations only with individual members of the society, in particular, participants of proceedings or persons physically lodging applications and complaints with the court. Relations between the judiciary and the public must be broader and more versatile. The public should know more about courts and these relations should not be confined providing the society with information only about individual cases. All of the changes contemplated in the judiciary system must become a matter of public discussion. The public must feel to be part of the reform and thus assume own part of responsibility for the entire reformation process.
A serious step towards the establishment of transparent ties between the judiciary and the public has already been made and the notion of a speaker-judge was introduced in courts. Such practice has long been established in the western developed country. Though speaker judges, the public will be kept aware of the stance of the judiciary.
Along with the implementation of the reform, it is further necessary to raise legal awareness of journalists occupied with coverage of the events taking place within the judiciary system. Often for the very reason of lack of required knowledge, journalists are incorrectly reporting about the ongoing issues. Journalists are being trained in both legislative amendments are important ongoing matters. Training sessions have been held for speaker judges and journalists on issue of relations with the public.
The public is being informed about the ongoing processes in the judiciary through television projects aimed at making the judiciary reform public and raising the public awareness about issues of addressing the court (television programs “The Court”, “Judicial Chronicles”, “The Verdict”, “Our legislation” and others).
9. Legislative amendments reinforcing the independence of the judiciary
Substantial amendments have been enacted in the Georgian Constitution on 27 December 2006: issues such as appointment and dismissal of judges have been excluded from competence of the President oGeorgiaand transferred to the High Council of Justice.
On 4 July 2007, the Criminal Code of Georgia was amended de-criminalizing such conduct as the passing of an unlawful judgment or other decision by a judge.
On 11 July 2007, the Georgian Parliament adopted Law on Rules of Communication with Judges of Common Courts. The Law reinforces guarantees of independence and impartiality of judges. According to Article 3 of the Law, “from the moment of submission of a case to a court until the entry into effect of the court judgment on this case, also during the investigation of a criminal case, the participants of proceedings, interested persons, public servants and the state-political officials shall be prohibited from establishing any communication with the judge in connection with the consideration of the given case and/or the possible outcome of the case that violates the principles of independence and impartiality of the judge and of the adversarial proceedings.”