Yet Another Repelled Attack
Over the past 15 years, the judiciary has gone through several waves of reforms. Throughout this period, society never stopped talking about the independence of the court system, the degree of trust towards it and the need for its further reformation. How has the court system advanced in recent years? What does the independence of courts mean? How should a better judiciary be achieved?
Based on the example of the Roman Republic, Montesquieu believed that power must be distributed among three branches – the executive, the legislature and the judiciary. Checks and balances among these three branches ensure against a concentration of power in the hands of any one individual branch.
The function of the court system is the resolution of disputes between a) private persons and b) private persons and the state. A court interprets laws and restricts the arbitrariness of the government; consequently, it often becomes a main target of politicians.
It should be noted that the balance of power excludes complete isolation of any of these three branches. The independence of the judiciary does not mean its separation and inviolability. Otherwise, the court would become a usurper of power, entailing the degradation of the system.
One of gravest problems the former government inherited from its predecessor was a corrupt system of judiciary. Under the conditions of low salaries, all the three types of court – district/city, appeals and the supreme – were bogged down in corruption. Honest judges (who were seen as marginals back then) lived in poverty and were forced to try and earn a living by taking up pedagogical activities. The difference between the three types of court in the system was expressed by the sizes of bribes provided. No matter whether it concerned the registration of a business, the "legalization" of property, the application of non-custodial sentences towards culprits or the settlement of civil disputes, the only solution was nepotism and bribery.
Combating corruption in the judiciary was a way tougher challenge than that in the police; nevertheless, this fight was won. Since 2005 up to 20 judges have been prosecuted for taking bribes; standards of ethics and for conflicts of interests were drawn up; and the salaries of judges were increased. As a result, according to research conducted by UNDP, 92 percent of citizens think that corruption is no longer a problem in courts.
To establish whether the courts are independent, several questions need to be raised:
1. Who appoints and dismisses judges, and according to what procedure?
2. How are judges punished/encouraged?
3. How are the courts financed and according to what rules?
In regulating the above noted issues, the key role is performed by the main administrative body of the court system – the High Council of Justice.
Before the reforms of 2007, 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, whilst the secretary of the High Council of Justice was appointed by the president for a term of four years.
Institutionally, 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 changed. The president and the justice minister were disengaged from the council. The Chairman of the Supreme Court became the top person of the body, upon whose nomination of candidates the Conference of Judges elected the secretary of the High Council of Justice as well as the majority of its members. The Chairman of the Parliamentary Committee on Legal Issues became an ex officio member of the council, whilst out of those three members who were elected to the council by parliament one was from the parliamentary opposition.
A recently approved amendment to the law has further improved the rules for serving on the High Council of Justice. The new rule allows each and every judge to nominate candidates for membership of the council to the Conference of Judges; 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, not politicians, but from representatives of the legal field – academics, the Georgian bar association and the non-governmental sector.
Parliament appointing 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 parliament by two-thirds of its composition. This requires the participation of the parliamentary minority in the decision making process. However, the parliamentary majority cannot approve candidates supported by the minority and, in such a case, these two seats will remain vacant.
The issue of the financial independence of courts must also be singled out. According to the amended law, a court's budget can be reduced compared to the budget of the previous year only upon the consent of the High Council of Justice.
Communication with Judges
Apart from the institutional independence of the court system, it is important to rule out any external interference with the courts' affairs.
Under the Constitution of Georgia, any pressure on a judge or interference in his/her activity with a view to influence his/her decision is prohibited and punishable by law.
The year 2007 saw the adoption of an amended Law on Procedure of Communication with the Judges of Common Courts. This prohibited any communication with a judge concerning a specific case, an issue in a case and/or the expected result of a case, or on anything else that violates the principles of the independence and impartiality of judges and the adversarial trial system.
The Punishment of Judges
Under the Constitution of Georgia, no one has the right to demand an account from a judge on a particular case.
Judges may make mistakes by misinterpreting the law or by applying the wrong law, but only higher courts can rectify such errors.
Nevertheless, before 2007, the Criminal Code of Georgia contained Article 336, "Delivering an Illegal Sentence or Other Court Decision." This was used by the executive branch for the criminal prosecution of judges. In 2007, this article was deleted from the code, thereby decriminalizing such an action.
Any gross violation of the law provided grounds for the disciplinary punishment of judges, something which created the threat of interference into the personal independence of judges. This clause was deleted from the law in 2012.
Launching disciplinary proceedings against a judge now requires a decision taken by the two-thirds of the members of the High Council of Justice, whilst criminal proceedings can be instituted against a judge by the Justice Minister only upon the consent of the Chairman of the Supreme Court.
It is noteworthy that the secondment of a judge away from his/her place of living was viewed as a sort of lever that could be used to pressure him/her. Since 2012, the secondment of a judge is only allowed upon the consent of the judge concerned. This rule also allows for exceptions: the interests of justice must be substantiated whilst the decision on a particular secondment must be taken by a majority of the entire composition of the High Council of Justice and not just by the majority of attendees at a council sitting.
Appointment for Life
To ensure personal independence it is important that judges are not afraid of the expiration of their term of service. If they lose their immunity, their loyalties risk being changed by political pressure pending their reappointment. Therefore, in 2010, the Constitution of Georgia was amended to provide for the appointment of judges for life, until they reach retirement age. This comes into effect at the end of 2013.
Structural and Institutional Development
An important aspect of the reform was the amalgamation of smaller courts into larger ones, taking into account the amount of cases heard and territorial principles. This change diminished the systemic bureaucracy. For example, through a merger of five district courts in the capital city, Tbilisi city court was established which includes collegiums for civil, administrative and criminal cases. This new structure is more flexible, efficient and accessible for customers.
To ensure the timely hearing of cases and improved access, an important step was the introduction of the institution of magistrates. Magistrate judges take decisions on the application of preventive measures as well as on relatively simple administrative and civil cases.
The Selection and Appointment of Judges
One of main objectives of the reform was to rectify the selection and appointment of candidates for judges. In 2006, parliament adopted the Law on the High School of Justice which requires that a candidate, having been selected for judgeship, undertakes a year-long course at the High School of Justice. This involves an internship at the Tbilisi city court. In addition to the law, the course covers such issues as ethics, alternative methods of dispute resolution, skills for conducting a court session, the psychological aspects of juvenile trials, legal writing and speaking, management of proceedings, et cetera. Graduates of this course sit an exam and then, if they pass, the High Council of Justice appoints them as judges.
Yet another area of the reform is the administration of the court system and the development of managerial skills. The institution of court manager operates successfully in the United States and West European countries. This institution enables judges to spend their time solely on hearing cases, whilst the responsibility for administering courts and improving services lies with the court managers.
In 2010, the institution of court managers was established and a corresponding educational program was drawn up at the High School of Justice. After the corresponding vacancies have been filled with successful graduates of this program, the court chairmen will no longer have to perform court administrative functions. It is also planned to introduce compulsory training for every employee performing managerial functions.
Unfortunately, the quality of legal education available in Georgia was not desirable. Therefore, the qualification of a judge is of no lesser importance than his/her independence. Only a judge who is confident in his/her own capabilities can be up to the mark in terms of professionalism, ethics and impartiality.
In this regard, the High School of Justice, which started functioning in a new format in 2006, deserves to be singled out. The objective of the school is both to prepare future judges and to regularly train incumbent judges on such issues as legislative changes, new tendencies or mechanisms. The High School of Justice explores the need for continuous education and each judge undertakes the corresponding retraining twice a year, which involves legal analysis, an overview of the practice of the Supreme Court, settlement of separate legal problems and the like.
With the aim of establishing uniform practice, as well as upgrading the qualifications of judges, in 2010 the Supreme Court developed recommendations concerning separate issues for criminal, civil and administrative cases.
Modernization and Infrastructure Development
To improve working conditions, the court budget was more than doubled, from 16 million GEL in 2005 to 40 million GEL in 2012. Material and technical resources, equipment and court buildings were upgraded to European standards.
The reform involved a rise in salaries for judges, something which is important for their dignity and independence.
Since 2006, salaries have increased annually, now standing at 2,300 GEL for judges of the district/city court, 3,000 GEL for those of the appeal court and 4,500 GEL for judges of the Supreme Court.
Since 2006, some 80 court buildings have been gradually reconstructed and furnished with the relevant equipment. Court halls, judges' chambers and offices for other court employees were all refurbished, all costing up to 25 million GEL.
Automatic audio recorders were installed in the halls of large courts, ensuring the accurate following of protocols. An electronic system of paperwork management has also been developed, enabling parties to submit documents to courts and exchange information over distance and to smoothly manage the workflow. This program is now being tested and will be put in operation over the coming months.
As a result of the reforms:
• The timeframe of court hearings has decreased, comprising an average of 15 months for civil cases and 12 months for criminal and administrative cases.
• Trust towards the courts has increased among both users of the court system and the citizens.
All of the reforms discussed above did not happen by "themselves." Their implementation required both political will and the back-breaking labor of numerous people.
After the Rose Revolution the government of the then-failed state simultaneously mounted an attack on all fronts. We witnessed the construction of new state institutions from the foundations up. The government team was monolithic and, with the aim of rapid reformation, did not view the real redistribution of power as a priority. The main driving force was the hyperactive executive branch that brought about fast progress in almost every direction, but, in so doing, diminished the role of the legislature and judiciary.
Naturally, talking about the deterioration of court independence as compared to the pre-2004 corrupt institution is unserious; however, it is true that the court system failed to perform its role of balancing the executive branch and providing checks on its arbitrariness. 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 Procedures Code (the chapter on surreptitious investigation activities and the new rules for interrogating witnesses), which led to the stagnation of reforms and harmed the interests of justice.
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. Judges have realized that they are independent and do not have any "moral obligation" to toe the line of the political conjuncture.
The ruling team cannot hide their dissatisfaction about the results of the recently held elections for members of the High Council of Justice in which several members were reelected, though it still deems the reform successful. This means that we, citizens, should be happy – we are witnessing the birth of a judiciary that is independent of the government. This is a result of a) the change in power via elections, thereby breaking ground for democratic traditions; b) the reforms the former government implemented to ensure institutional independence of the court system; c) the forward-facing steps taken by the new government that finally strengthened the independence of courts by giving them new legitimization and setting a standard of transparency.