The government of Georgia has put forward an initiative to set up a special commission to eliminate shortcomings in the justice system and to reinstate justice. This commission, the members and chairperson of which will probably be approved by parliament, will be entitled to review cases already heard and decisions already delivered by the courts. Under the current legislation, such powers are vested with the courts alone and are only permitted in certain cases strictly specified by the law.
The revision of already heard and decided court cases by any other body than the courts themselves contradicts the Georgian Constitution, existing legislation and a number of the norms of the International Court of Human Rights. In Georgia, justice is served by the courts alone.
The authors of this initiative probably think that human rights violations, which have taken place in the justice system over the years, can only be eliminated by a commission established especially for this aim. However, the review of court decisions by non-court bodies is quite foreign to the legal systems of the developed world.
But it is not an uncommon international practice to establish special commissions to study mass violations of human rights. Such commissions, which have been called different names in various countries, are collectively known as truth commissions. These now familiar international institutions were each established in a specific historic and political context and were aimed at reconciling and consolidating society. Although their activities often result in institutional reforms of the judiciary, no truth commission in any country has ever delivered justice directly.
To date, some 33 truth commissions, each possessing more or less similar mandates, have been established in 28 countries, according to the United States Institute of Peace. This number is not so great as to prevent us from allocating some space to a brief overview of these commissions in this article and not so small as to preclude conclusions from being drawn.
The first truth commission was established in Uganda in 1974 to investigate the mass disappearances of people in the early years of the military dictatorship of Idi Amin who had come to power in 1971. Unfortunately, the activities of this commission proved unproductive, prompting the establishment of another truth commission in 1986. This second commission did not prove to be a success either and was criticized for attempting to legitimize the new government. Despite the failure of the Ugandan truth commissions, similar commissions were thereafter established on almost every continent of the world.
For understandable reasons, Latin America soon hosted an entire generation of truth commissions. Having come to power in the wake of a series of military juntas and dictatorships, the new authorities in Latin America needed to evaluate the past in order to establish a system oriented towards their future development. In order to aid the consolidation and reconciliation of their societies, truth commissions were set up in Bolivia in 1982, Argentina in 1983, Chile in 1990, El Salvador in 1992, Haiti in 1995, Ecuador in 1996, Guatemala in 1997, Uruguay in 2000, Panama and Peru in 2001, Paraguay in 2004 and Honduras in 2010.
Following a number of civil wars and apartheid in Africa, the 1990s saw a second wave of truth commissions established in Chad and South Africa in 1990, Rwanda and Nigeria in 1999, Sierra Leone in 2002, Ghana in 2003, Morocco in 2004, Liberia in 2006, Kenya in 2009 and Mauritius in 2012.
Three truth commissions were established on the European continent: two in Germany in 1992 and 1995, and one in Serbia and Montenegro in 2012.
Truth commissions were also established in Timor-Leste (East Timor) in 2002, the Solomon Islands in 2009 and twice in South Korea in 2000 and 2005.
These examples show that each and every truth commission was created by a new government that had come to power following a civil war, armed conflict, military junta or dictatorship. According to their mandates, truth commissions were authorized to make inquiries into and to document such atrocities as genocide, crimes against humanity, war crimes, forced disappearances, mass torture, mass shootings, and other gross violations of international humanitarian law.
In none of these countries was a truth commission authorized to review court decisions or to otherwise interfere with the process of delivering justice. The aim of truth commissions has always been the establishment of historical facts, identifying the needs of victims and proposing institutional reforms.
Considering the distinctive features of truth commissions, including the context in which they are set up and operate, any such commission in Georgia will be unable to eliminate any mistakes (if such are found to exist) that the previous government made in delivering justice and, consequently, will not prove suitable for achieving the declared aim. Fortunately, Georgia has existing bodies within its justice system that are capable of reacting to possible violations or crimes.
Moreover, it is noteworthy that, as was the case in Uganda, the majority of truth commissions have proved unsuccessful. On only a few occasions have the activities of truth commissions borne fruit. It is therefore unjustifiable to assume that such a commission would be able to implement justice better than the judiciary would.
One of the measures for assessing the success of the activity of a truth commission is whether the facts established and the recommendations drawn up by the commission acted as a locomotive for systemic reforms. Such reforms are important for avoiding violations and crimes in future.
Systemic reforms in Georgia, in both the judiciary and other spheres, have been undertaken for a long time, many of which have even already been completed. It is now necessary to maintain the results of these reforms and ensure their continuity.
Needless to say, justice must be served. It should also go without saying that some court decisions may have been delivered in violation of certain procedures. The potential for so-called “court error” is common in any legal system, but the possibilities for minimizing and rectifying such errors are clearly spelt out in the law and fall under the competence of the courts alone. Hence, the establishment of a special commission to overturn already delivered court decisions or to revise cases is the creation of an artificial body which is not needed at all.
The existing Georgian legislation provides possibilities to avoid and rectify errors. There is a three-tier system of hearing a case: first instance, appeal and cassation. The law also provides the possibility of reviewing a court decision and to consider a case anew should new circumstances be uncovered. The use of each of these mechanisms is only allowed inside the court system.
Even if the guarantees provided in the existing law for eliminating mistakes are inadequate, a truth commission or any other special commission will not be able to tackle this problem. A truth commission cannot replace a justice system. Moreover, it needs an effective system of justice to achieve its goal.
Nor is it correct to set up a special commission because of the mistrust of the government and/or society towards the courts. Neither a special commission nor any other similar artificially established body will be able to solve the problems in the judiciary. Such a commission will adversely affect the level of trust towards the courts at a time when gaining the trust of society is one of the most important factors contributing to the success of court reform.
The social and political context in our country, the existing legislation and the institutions implementing this legislation currently allow justice to be served without creating artificial structures.
We have the capacity to improve legislation, to increase the independence of the courts, to carry on with court reform and judiciary reform in general, and, by so doing, minimize shortcomings in the system of justice.