The Chairman of the Supreme Court of Georgia, Kote Kublashvili, talked recently to Tabula about current conditions in the court system, attempts to exert pressure on judges, and guarantees of judicial inviolability.
Today [23 October], the Supreme Court of Georgia released official statistics on its activity during the first nine months of 2012. What tendencies have the data revealed?
Tendencies are very interesting in every direction. An indeed significant improvement of the crime situation was clearly reflected by the amount of cases filed with courts. If in the first nine months of 2011 the number of cases filed with courts comprised some 10,500, then in the corresponding period this year that number decreased to 7,900. Improvements have been observed in every other direction. The number of grave crimes has decreased; sentences have become relatively lenient with deprivation of liberty less often applied as a form of punishment. If in the corresponding period last year there were more than 13,000 convicts, this year that number decreased to little more than 9,000. That includes everyone on whom judgments were imposed – deprivation of liberty, conditional sentence, fine or community service. Deprivation of liberty has decreased by 29%. What’s more important, the instances of sentencing to community service have increased. We have tried to do that for a long time. We launched that project with the assistance of Norwegians. However, the court is not able to do that alone because it depends on those organizations which have to create places for community service – be it self-government bodies, the mayor’s office, etcetera. Last year, only 60 such sentences were imposed whereas this year the number of such sentences was 405.
There are also several other interesting facts. Only 42% of those convicted of crimes were sentenced to prison. The rest were released on probation, fined or given community service. That is a big difference because, earlier, deprivation of liberty reached 50%.
Acquittals were a topic that caused much uproar. I want to note, however, that the indicator of acquittals does not exceed 10% in any of the European countries. That is logical. If that indicator were higher it would mean that the prosecutor’s office, police, bodies fighting against crime, were inefficient. The indicator of acquittals in Norway is about 5%. The corresponding indicator in Georgia, among those cases heard on the merits, stands at 9.7%.
But they do not include cases settled through plea bargaining.
True. In the case of plea bargaining, the only obligation of the court is to establish whether a person was forced to agree to plea bargaining with law enforcement bodies through force or coercion. In cases of plea bargaining, naturally, a verdict of not guilty cannot be delivered because both parties agree to punishment and guilt. This year, 88% of the cases ended in plea bargaining.
Too strong an emphasis is placed on administrative offences as well. They decreased by 5,000 cases. That is a large number and comprises 28% of the corresponding indicator in 2011. According to data for the first nine months of 2012, non-custodial penalties have been applied in 80% of the cases and imprisonment only in 20%. Some 734 offenders were not imposed any responsibility – neither imprisonment nor fine – and were only issued a warning. That also shows the objective and qualified attitude of courts to administrative cases and, where an offence is not grave, imprisonment is not applied.
Data related to tax cases are very interesting. One often hears criticism that there is a problem in courts in this regard. However, the nine-month data show that private entities won 37 cases and administrative entities won 33 cases in the Supreme Court; that is, more than half of the cases ended in favor of private entities. There was a situation when, for instance, three or four years ago, almost 75% of such cases were decided in favor of private entities. The trend has been improving in favor of tax bodies in the sense that they have identified what problems might emerge and have studied the practice of cases. Today, the difference is smaller, but still private entities win cases more often.
As regards appeals, only 8.7% of civil cases, 18% of administrative cases and 6% of criminal cases, including plea bargains, were appealed.
During the past several years, one has repeatedly heard from civil sector organizations that there is a problem of independence of the courts. International organizations also often agree with that opinion. Parallel with that, however, surveys have been published showing an increase in confidence in the courts among the society. How can you explain that trend? In your view, what is the real situation in the courts in terms of their independence? What have been the challenges faced by the courts since 2003 and have the courts managed to develop into an independent institution throughout this period?
Indeed, this issue is raised quite often. But the trend that has been observed since 2007-2008 shows improvement in attitudes of the population toward the courts. We always try to conduct surveys that are not organized by interested parties. That’s why we invited the Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe, which suggested conducting such a survey. They have their methodology and recommend European countries to conduct surveys by applying that very methodology. This year, they themselves conducted the survey in six cities of Georgia, interviewing two thousand people. That assessment is made by those people who personally go to courts – plaintiffs, defendants, etcetera. We obtained two interesting results: our court system was scored 4.5 on a 5-score scale; as regards trust, 50% of those interviewed fully trust the courts while 35% trust the courts. Thus, in total, the trust toward the courts is 85%. My answer to your question is this – that is the opinion of the people; that number of people agree that the courts deserve trust.
However, the remaining 15% probably reflects those problems that still remain. Challenges have been great since 2003. Since then, during the first three to four years, some fifteen judges were caught red-handed taking bribes. We overcame all of that. According to the CEPEJ survey, some 80% of the people say that there is no graft or corruption in courts. That is a huge achievement. That allowed us to take further steps in upgrading the qualification of judges, as well as establishing a new system of selecting and appointing judges within the framework of the High School of Justice; in general, establishing a new structure which speeds up hearing cases and improves efficiency. Also, it allowed amending that legislation which facilitates a speedy hearing of cases by observing equality and the adversarial principle. All that has produced the result we have today.
Those results do not enable us to say that our court is ideal. I know perfectly well what problems exist. First, that refers to the compromising of cases. For a certain period, we had a problem of influence over the courts. For example, shortly after I was appointed [as the Supreme Court Chairman] in February 2005, one of the judges of the Supreme Court approached me to say that a Member of the Parliament came to his office to discuss a case in which that MP was interested. After a while, the same thing happened in the Tbilisi Appeal Court. That clearly reflected the situation which existed back then. Nothing of the kind happens today. No one can approach a judge [ex parte]. That ban is strictly observed. Every court understands that it is prohibited to speak [ex parte] with a judge and no one will be allowed to enter a judge’s chambers. We introduced that very effective mechanism for the protection of judges. That means that any [ex parte] communication with a judge regarding a pending case is a wrongdoing. A judge is required to report such a violation and the chairman of the relevant court is required to consider the case and to penalize a wrongdoer with up to a 5,000-GEL fine. At the time we adopted that law, we had five such cases. After that, there was no such case until just recently. That recent case occurred after the parliamentary elections. A representative of the winning party went directly to a judge’s home and began discussing a particular election dispute. On every occasion, we have made a decision in accordance with the law. The decision on the recent occurrence was made on 19 October and a corresponding financial sanction was imposed on that person.
Before the elections, representatives of the new government promised voters free and fair courts. After the elections, the nominees as Justice Minister and Chief Prosecutor said that judges, by their court decisions, discredited themselves. They even identified those judges by name. They also said that changes need to be made to the system. How would you evaluate those statements? Do you agree that the system needs fundamental changes?
In the past few days, I have twice made public statements that I disagree with all of the statements made by representatives of the new government. I said that any such statement about a specific judge is direct pressure on and intimidation of a judge.
Why do you think that questioning the fairness of a decision by this or that judge on a specific case means “pressure”?
Who evaluates whether the case was heard correctly or not? Legally, that is absolutely unjustified. The only body which can say that a judge has considered a case incorrectly is an upper court. On the other hand, statements by political figures about that is a direct indication that they exert pressure on judges. Judges know perfectly well themselves that no one can hold them accountable about a specific case. That is guaranteed by our Constitution and international norms. The only way to hold a judge accountable for mistakes he/she has made is in a disciplinary proceeding. It is from that angle that it must be considered. And we have quite an experience with that. But it is impossible to use such statements as a ground for the dismissal of a judge or to initiate a criminal case against a judge. The Penal Code of Georgia contained a clause which envisaged the punishment of a judge for intentionally rendering an illegal judgment. But three or four years ago the entire international community pointed out to us that that clause directly restricted the independence of judges. That clause was deleted from the law within the framework of our reform. A similar clause was in the Law on Disciplinary Proceedings, which envisaged the punishment of a judge for a gross violation of the law. However, there was a conclusion by the Venice Commission saying that that clause was also somewhat directed against the inviolability of judges. They recommended that clause be changed. We amended the law this year and deleted that clause entirely. With regard to this latest amendment, we actively cooperated with non-governmental and international organizations.
Does that mean that a disciplinary proceeding is the only mechanism of responsibility? What precedents and statistics exist in this regard over the past years?
If a judge has, for example, taken a bribe or committed other criminal wrongdoing, that judge will naturally be punished. But our legislation categorically prohibits the punishment of a judge for an incorrect decision. A disciplinary proceeding is a well-established mechanism. We established a Disciplinary Panel of Judges in 2005, the members of which are judges themselves. According to the latest change, three of the five members are judges. They consider cases against judges and are entitled to issue a recommendation note, comment, reprimand them or dismiss them. If a judge disagrees with the decision, he/she can appeal it to the Disciplinary Chamber of the Supreme Court, which is comprised of three Supreme Court judges. The Panel is elected by judges themselves upon my submission through the Conference of Judges. We had instances of dismissing judges because of certain violations. There were also cases of issuing a reprimand, mainly for the extended term.
That means that the highest punishment for judges is dismissal, does it not?Yes. However, if a judge commits some crime, he/she will be punished for that [crime], though not for making, in someone’s opinion, a wrong decision.
How much is a judge protected from pressure on the part of government? What guarantees are there to ensure that?
I perceive any statement smacking of intimidation in addressing judges to be pressure. There is criticism and that’s natural. Decisions of judges can also be criticized, but saying that a judge will be punished, attacking a judge verbally is a separate case. But we will respond to that with objective decisions.
The Constitution guarantees the inviolability of judges. They have immunity. A judge can be arrested, his/her apartment searched, etcetera, only with my signature. That is yet another guarantee. A judge cannot be summoned anywhere, even to an investigative commission, cannot be held to account for a case heard by him/her, and cannot be questioned. That is absolutely excluded. Moreover, a judge is absolutely protected from any [ex parte] contact with any person with regard to a specific case.
The supreme body in the court system is the Supreme Council of Justice. The Constitution says explicitly that judges hold the majority in this Council. A relevant provision is included in the law. There are fifteen members of the Council, which I chair. It consists of eight judges and six non-judges, of whom two are appointed by the President and four are appointed by the Parliament. That is yet another guarantee of the independence and inviolability of judges. Every issue, save hearing cases and rendering decisions, is decided by the Council of Justice. It can also receive an application concerning a violation committed by a judge and hand it over to the Disciplinary Panel.
Do you think that some changes are needed to increase the independence of judges?
Yes, such changes can be made. We have an outline of what can be additionally changed in the legislation, the Organic Law on Courts. Non-governmental and international organizations have submitted their opinions on that. We also take into consideration recommendations of the Council of Europe and cooperate with it on a regular basis.
We have already started working on the appointment of judges for indefinite terms. That principle is already enshrined in the Constitution, but is yet to be included in the law. As you know, judges today are appointed for ten years. In 2013, after the presidential elections, the principle of appointment for an indefinite term will enter into force. The Constitution contains a provision that, before appointing a judge for an indefinite term, a three-year trial period can be established under the law. We, however, are mulling over an option of appointing a judge directly to an indefinite term, without a trial period, until the retirement age. That will be yet another, one might say, decisive mechanism and guarantee to further strengthen the independence of judges and to make them feel their own inviolability more vividly.
The new Justice Minister criticized the form through which the institution of jury trial has been enacted in the country. In her view, it is unacceptable when a decision of a jury trial is not substantiated. What is your take on that?
Several cases have been heard since the introduction of [the jury] system. In my opinion, those cases were handled very well and those citizens, who as juries considered them, coped with that objective well. It was the first time that jurors had to deliver a verdict. They delivered a verdict on whether or not the person was guilty. That system is built on a model of the Anglo-Saxon system, which originated and was established in England and then spread to America as well. That system is inviolable in America and is regarded as a cornerstone of democracy. Continental Europe practices a system which is bit different from that model. In general, I think that that is a very good system because it, first and foremost, implies showing a very big responsibility on the part of citizens. Citizens feel how important is to decide themselves on those issues which are important for the state. On the other hand, they will see how the court works; they will become more aware of its internal arrangement. Therefore, I believe that this system must go on operating.
As regards Europe, the European Court has not said that the Anglo-Saxon system of jury trial should not exist. It pointed out certain flaws in the Belgian system of jury trial. That decision [of the European Court] has nothing to do with our system. One should bear in mind that the European Court has not deliberated on the British system of jury trial.
This article first appeared on Tabula Georgian webpage on 25 October 2012.