Court

court independence in a new danger zone

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Announcements concerning the launch of reforms to the Georgian judiciary have been made several times over the past 20 years. Over that period, the political opposition, as a rule, has criticized courts for being controlled by the state. Upon coming to power, every new government is therefore quick to declare that they are about to start building an independent judiciary anew. We have gone around in this circle several times now, but the criticism of our courts has never stopped.

After coming to power in the 1 October parliamentary elections, the new government of Georgia did not break with this tradition and soon identified court reform as one of its priorities. At first glance, there is nothing bad in that; the reform of the judiciary should indeed be continued. Nor did the current government break with this tradition when it was in opposition. Just months ago, before the elections, it was engaged in scathing criticism of the judiciary, accusing it of toeing the line of the prosecutor’s office and the executive branch. The evidence provided in support of such criticisms has always been official data that highlights the fact that courts, or more precisely the criminal cases panel, satisfied the absolute majority of the requirements of the prosecution. The prosecutor’s office, for its part, dismissed this argument as unfounded, referring to statistics proving both that the courts sometimes denied motions put forward by the prosecution and that those motions that were granted were fully substantiated. Establishing the truth by analyzing these arguments is not the topic of this article; they were recounted only to depict the bigger picture.

Breaking with tradition, however, is the fact that, even though they are now in power, the new government has continued the criticism that the courts are being controlled – this time by the opposition, the United National Movement (UNM). The executive branch is unable to conceal its concern that the courts do not meet each and every demand made by the prosecution.

There is nothing wrong with the fact that the courts are not always in total agreement with the prosecution. The court statistics do not show any reason for such concern from the prosecutor’s office. After the change in power, over the period from 1 December 2012 to 28 January 2013, the prosecution demanded pre-trial detention for 289 persons; out of these, the court agreed with the prosecution in 202 cases, disagreed in 83 cases and left four cases unconsidered. As regards the application of bail as a measure of punishment, the prosecution demanded it towards 289 persons. The court fully satisfied this demand in 100 cases, partially in 131 cases and denied the motion in only six cases (the remaining 52 cases have not been considered yet). Expressed in percentage terms, this means that the courts denied 28.7 percent of prosecutors’ motions for pretrial detention and, in general, 11.2 percent of motions for applying any type of punishment. This data clearly shows that courts still grant the majority of motions made by the prosecution. However, the prosecutor’s office and the executive branch still cannot hide their dissatisfaction with the judiciary or individual judges.

In no way am I asserting that such statistics can provide grounds for an accurate evaluation of the independence of courts. It is both expected and absolutely logical for courts to agree with valid motions from the prosecution; it is also possible that the majority of motions put forward by the prosecution are indeed well-grounded. The point that statistics alone are insufficient to evaluate the level of court independence can also be seen in data from developed countries. For example, according to 2010 data, the indicator of acquittals stood at 1.6% in Finland, at 3.4% in Belgium, at 3.7% in France, at 3.8% in Great Britain and at 3.9% in the Netherlands. No one has questioned the independence of the judiciary in these countries because of such indicators.

To evaluate the level of courts’ independence one needs to undertake deeper analysis that goes beyond a cursory glance at statistics. One should at least consider whether the prosecution and defense are equally prepared for criminal proceedings based on the adversarial system. The new Criminal Procedures Code, adopted in October 2010, rules out any use of the inquisitorial system and permits the court to only make a decision on the basis of evidence presented by the parties to the proceeding (the so-called adversarial system). In such circumstances, the level of preparedness of a defense lawyer vis-à-vis a prosecutor is clearly of the utmost importance. Unfortunately, a myriad of problems also existed in this regard and I doubt that these have been eliminated over the past few months.

What is alarming in this situation are not the statistics, but the reaction of both the prosecutor’s office and the executive branch, as well as of a segment of society, when a court has denied a prosecutor’s motion for detention. If we are unhappy about a court’s decision the only way to challenge it is to make an appeal to the upper court. Any other reaction, especially on the part of the prosecution and the executive branch, is undesirable and harmful.

However disagreeable it may be, it is understandable why the prosecution wants the court to satisfy each and every one of its motions. Even more objectionable is when a court is publicly criticized and “warned”; such “warnings” are in fact nothing less than a threat.

The judiciary and every judge should realize that they must fight for their independence. It seems that executive authorities will always find it difficult to resist the temptation of having the arbiter on its side. We cannot entertain hopes that, in trying to do so, the executive authority will only apply legal mechanisms or, in the worst case, will tailor these mechanisms to its needs.

We enter a dangerous zone when an authority moves from words to deeds and starts depriving or weakening the courts’ mechanisms to fight for their independence. Today, all the legal conditions are in place for Georgian courts to be truly independent. That does not necessarily mean that there is no room in the legislation for improving regulations and creating stronger guarantees. I just want to say that today, as a result of the reforms undertaken throughout the years, all of the fundamentals necessary to ensure court independence are in place. Stripping the courts of any of these powers will demolish the court system and hurl us back several years.

Regardless of the whole set of important reforms implemented by the former government, court reform still remained a challenge. This is natural. The reforms of courts are far more complex and resource-consuming than the reform of any other component of the law enforcement system, for example, of the police or the prosecutor’s office. Although it has taken much longer to reform the courts than expected, it is unfair to ignore both that very significant steps have been taken in this area and that confidence towards the courts has been increasing slowly but surely among society. Raising public trust towards courts and providing greater openness of the judiciary were among the key reasons for the introduction of jury trials. Even though many were skeptical about this development, it is a fact that the (albeit cautious and gradual) establishment of jury trials is an important achievement in court reform.

Everyone agrees that the reforms must continue and should even be enhanced, but first we must clarify what we mean when speaking about an independent judiciary.

If we disregard the above cited December-January statistics and share the executive branch’s rhetoric from the same period, we can arrive at a conclusion that courts do not – or, to be more precise, no longer – listen to the prosecutor’s office. They are, therefore, independent. What, then, is the reason for the criticism of courts by representatives of the prosecutor’s office and executive branch? Is it that the prosecutor’s office demands full compliance and consent from the courts? Is it that the executive authority only considers those courts that meet its demands in full to be independent? It seems that the executive authority has yielded to the temptation to influence the arbiter and is unhappy about consent from the court in almost 80 percent of cases.

The fact is, however, that the courts have not been wrong in any of their decisions to deny motions for pre-trial detention. According to the criminal legislation, the aim of pre-trial detention is both to ensure that a charged person appears in front of the relevant bodies and to prevent this person from intimidating witnesses, disposing of evidence or otherwise perverting the course of justice. None of the people who have been released on bail instead of being remanded into custody has gone into hiding or perverted the course of justice – or, at the very least, the prosecutor’s office has not informed society about any such instance. Consequently, it is a fact that, in each and every case, courts have managed to strike a proper balance between the interests of an investigation and of the accused person, i.e. between public and private interests. Against this backdrop, the dissatisfaction publicly expressed by the prosecutor’s office and executive branch about the courts raises even more questions.

The courts face a very important test ahead: they will have to hear cases which are going to be closely watched both inside and outside the country. Courts must be allowed to consider these cases without feeling any external pressure and the prosecutor’s office must accept the verdicts delivered by the courts. In contrast to the defense, the prosecution cannot go beyond the courts of the country to challenge a decision and prove its case. Public criticism of courts and the vocal reactions to the release of former or current public officials from pre-trial detention create the impression that acquittals or unexpectedly lenient sanctions will be as unsatisfactory for the prosecutor’s office as are the above cited December-January statistics. The prosecutor’s office fears the prospect of undesirable results. This fear is understandable, but it does not justify its attempts to discredit the judiciary.

Court reform in Georgia has gone through a long and difficult path. Many of us understand that this reform has not been completed yet, but we must also understand that for this reform to be successful there is no need to demolish the system of the judiciary. Categorizing judges as “victims of the system” or “culprits” and so on and so forth is undesirable and very dangerous.

Let’s leave courts alone, they know what the law requires best.

 

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