GEO

Analysis of the New Judiciary Reform

27 February, 2013

The Rule of Composition of the High Council of Justice of Georgia

The Conference of Judges

Administrative Committee of the Conference of Judges

The Disciplinary Board

The High School of Justice

Audio, Photo, Video Recording, Filming and Broadcasting


In November 2012, the Government of Georgia initiated a package of changes to the legislation regulating the judiciary system in the Parliament of Georgia which deals with several key issues. The draft changes were prepared by the Ministry of Justice of Georgia. If the changes are adopted, the rule of composition and authorities of the main link of administration of the judiciary system – the High Council of Justice of Georgia, the rule of composition of the Disciplinary Board, and the authorities of the self-governance body of judges – the Conference of Judges – will be changed significantly. The rule and procedure of selection of judge-members of the High Council of Justice will also be changed. The changes will also touch the educational institution for judges – the High School of Justice and issues of transparency of the judiciary system.

We have decided to offer you aნ analysis of the amendments prepared by the Ministry of Justice and compare them with current regulations.

The Rule of Composition of the High Council of Justice of Georgia

The High Council of Justice of Georgia is a constitutional institution which was created as the main link of administration of the judiciary system. The competences of the Council include the appointment of judges, dismissal of judges, organization of qualification exams for judges, and taking of measures needed for the ongoing reform in the judiciary system.

The existing rule

The High Council consists of 15 members nine of whom are judges. The members include the Chairman of the Supreme Court, who is a member of the Council due to his/her position and, at the same time, serves as its Chairman. Eight judge-members are elected by the self-governance body of judges – the Conference of Judges. However, the authority to nominate candidates to the Conference of Judges has been granted exclusively to the Chairman of the Supreme Court. The Parliament is represented by four MPs in the High Council, while two members are appointed by the President.

After the amendments

Amendments will not concern the number of members of the High Council. Majority of member again shall be judges. However several major changes will be made to the rule of composition of the High Council. Specifically:

  • The President of Georgia will no longer have the authority to appoint members of the High Council of Justice. The six non-judicial members of the High Council of Justice will be elected by the Parliament of Georgia. The aforementioned persons will not be MPs, and they will be selected from representatives of academia working in institutions of higher education, members of Georgian Bar Association, or representatives of non-entrepreneurial legal entities specializing in legal issues.
  • The Chairman of the Supreme Court will no longer have the exclusive authority to nominate candidates for the positions of members and Secretary of the High Council in front of the Conference of Judges. Instead, every judge taking part in the Conference of Judges will be granted the authority to nominate a candidate as he/she sees fit. The Conference of Judges will elect judge-members and Secretary of the Council from the nominated candidates by secret ballot.
  • According to the legislative changes, the authority of the current members of the High Council of Justice (expect the Chairman of the Council) will be terminated. In accordance with the amendments, a new Council shall be elected within three weeks after the amendments are adopted.

Our assessment

We think that it is a positive sign that the members of the Council appointed by the Parliament will no longer be MPs and they will instead be selected from representatives of academia working in institutions of higher education, members of lawyers’ associations, or representatives of non-entrepreneurial legal persons specializing in legal issues. Accordingly, with this change, the Council will be freed from members with direct political affiliation.

Granting every member of Conference of Judges the right to nominate candidates for the positions of members and Secretary of the Council,  shall remarkably increase the role of the self-governance body of the judges and, as a result, a democratic rule of election of candidates will be established.

We believe that the issue of the total dismissal of the current High Council, especially dismissal of those members that were elected by the Conference of Judges, needs more deliberation and should be thought over more carefully.

The Conference of Judges

The Conference of Judges of Georgia is a self-governance body of judges of the common courts of Georgia which unites all active Georgian judges. The Conference is convened at least once per year.  With the aim of supporting its activities, the system of the Conference of Judges of Georgia includes the Administrative Committee of the Conference which is composed of 9 members (Judges).

The existing rule

The Conference of Judges of Georgia is authorized to elect members of the Administrative Committee, elect the Secretary of the High Council of Justice of Georgia, other members of the Council and judge-members of the Disciplinary Board nominated by the Chairman of the Supreme Court, adopt rules of judicial ethics on the recommendation of the High Council of Justice of Georgia, etc.

The above mentioned rights are not exclusive, for example, between the sessions of the Administrative Committee  of the Conference is authorized to exercise almost the same powers as a conference (for example: to elect the members of the High Council, the Secretary of the High Council, members of the Disciplinary Board of Judges, etc.).

After the amendments

  • Members and the secretary of the High Council of Justice will be elected only by the Conference of Judges only. The elections will be carried through secret ballot. The Administrative Committee of the Conference of Judges will no longer have the authority to elect and dismiss the Secretary and judge-members of the Council.
  • The members and the Chairman of the Administrative Committee will be elected by the Conference of Judges. Any participant of the conference will have the right to nominate a candidate.
  • The Chairman of the Supreme Court of Georgia will no longer have the right to hold the position of the Chairman of the Administrative Committee.
  • Only Conference of Judges will have the right to elect the Independent Board of the High School of Justice. The Chairman of the Supreme Court of Georgia will no longer have right to be the Chairman of the Independent Board.
  • The Conference of Judges shall elect the judge-members of the Disciplinary Board.
  • Decisions at the Conference will be made through the secret ballot.
  • The meetings of the Conference will be public.

Our assessment

The exclusive authority of the Chairman of the Supreme Court to nominate candidates for the positions of members and Secretary of the Council of Justice and judge-members of the Disciplinary Board of Common Courts at the Conference of Judges fails to correspond with the modern principles of democracy and hinders the independence of the judiciary system.     

The imposition of the secret ballot when selecting members of High Council of Justice or other institutions at the Conference of Judges should be considered as a very positive change. This shall support free and unbiased elections.

We believe that the changes will reflect positively on the quality of independence of the judiciary system, while the increase in the involvement of individual judges in the processes under way within the system will make their role more visible. An effective self-governance body of judges will be able to protect and strengthen the independence of the judiciary branch, contribute to the increase of trust of the population in courts and strengthening of the judges’ authority.

Administrative Committee of the Conference of Judges

Administrative Committee is established within the system of the Conference of judges in order to facilitate its work. The Administrative Committee, which consists of 9 judges. The judges are elected by the Conference for a term of 3 years.

The existing rule

The Administrative Committee often exercises the powers of the Conference of Judges. For example, the Administrative Committee is authorized to elect or dismiss judge-members of the High Council of Justice of Georgia and members of the Disciplinary Board of Common Courts. At the moment from the 8 judge-members of the High Council of Justice 3 are appointed by the Administrative Committee. The Committee is also authorised to elect or dismiss the Secretary of the High Council of Justice. The Administrative Committee is chaired by the Chief Justice (Chairman of the Supreme Court of Georgia).

After the amendments

  • Administrative Committee will no longer have the right to elect and dismiss members and Secretary of the High Council of Justice.
  • Chairman of the Supreme Court shall be terminated and restricted the authority of the chair of Administrative Committee.
  • The Administrative Committee will be authorized to develop administrative acts and present those acts to the Conference for the further approval.  

Our Assessment

Reducing the powers of the Administrative Committee shall be assessed positively, since it is significantly limits powers of the Conference of Judges to a great extent, as a result of which the Conference is, in fact, unable to express the interests of the judiciary corps and ensure judges’ participation in the management of the judiciary system in practice. It is vital that judges are given a real opportunity to engage in the management of the judiciary system through the democratic and transparent mechanisms. With empowering judges’ self-governance each judge will have an opportunity to actively engage in the system management, to present his/her views and opinions on the development of the system and to participate in the elections of different agencies and to elect choose a suitable candidate. Such an increase in the role of judges, shall contribute to the  increase the independence and accountability of the judicial system as well.

The Disciplinary Board

Disciplinary cases involving violations committed by judges are reviewed by the Disciplinary Board of Judges of the Common Courts of Georgia. The Supreme Court of Georgia also includes the Chamber of Disciplinary Cases where the decisions of the Disciplinary Board are appealed.

The existing rule

The Disciplinary Board consists of five members. Of these, three are judge-members of the High Council of Justice, while two are non-judicial members.

The decisions on the appointment of three judge-members of the Disciplinary Board are made by the Conference of Judges, but, here too, the authority to nominate the candidates belongs exclusively to the Chairman of the Supreme Court. In the interval between the sessions of the Conference, the Administrative Committee of the Conference of Judges elects three judge-members of the Disciplinary Board on the recommendation of the Chairman of the Supreme Court. As for the two non-judicial members of the Disciplinary Board, they are elected by the High Council of Justice from its own members.  

The operating procedures of the Disciplinary Board are established by law and the High Council of Justice of Georgia.

After the amendments

  • The Chairman of the Supreme Court, members of the High Council of Justice, and heads and deputy heads of courts, as well as heads and deputy heads of court panels, will no longer be able to serve as members of the Disciplinary Board.   
  • Three judge-members of the Disciplinary Board will be elected by the Conference of Judges only. Any judge attending the Conference will be given the right to nominate a candidate. The Administrative Committee of the Conference of Judges will no longer have the right to elect three judge-members.
  • Two non-judicial members of the Disciplinary Board will be elected by the Parliament of Georgia instead of the Council of Justice. The aforementioned persons will be selected from representatives of academia working in institutions of higher education, members of lawyers’ associations, or representatives of non-entrepreneurial legal persons specializing in legal issues.
  • The operating procedures of the Disciplinary Board will be determined by law and the rules established by the Conference of Judges (instead of the High Council of Justice).
  • The decisions of the Disciplinary Board and the Chamber of Disciplinary Cases that have entered into the force will be published on the official website of the High Council of Justice. The legislative amendments abolish the provision in the law, which provided for the publication of the aforementioned decisions with reducted personal information.

Our assessment

The Disciplinary Board of Common Courts partially comes from under the sphere of influence of the High Council of Justice, which is, first of all, caused by the change in the rule of staffing of the Board. We think that the aforementioned change will have a positive effect and contribute to the enhancement of independence of the Disciplinary Board. Giving the right to establish operating rules of the Board to the Conference of Judges will have a positive effect for the enhancement of the self-governance of judges. It is logical to allow judges to establish certain details of disciplinary proceedings. In this respect, it is important to have rules and procedures that have been agreed on by judges themselves.  

The High School of Justice

The High School of Justice is a legal entity of public law whose function is to ensure professional preparation of persons to be appointed in the position of a judge in the system of the common courts of Georgia. The school is also designed to re-train active judges, as well as to prepare and re-train candidates of assistants to judges and other specialists.  

The main directions of the school’s activity are determined by its Independent Council. The Council also ensures the coordination and supervision of the school’s activities and conducts the final assessment of the school students.

The existing rule

The Independent Council consists of six members and is headed by the Chairman of the Supreme Court of Georgia. The remaining five members, one of whom is a non-judicial member of the High Council of Justice of Georgia, are approved by the Chairman of the Supreme Court of Georgia in agreement with the High Council of Justice of Georgia, for a period of three years.  

After the amendments

  • The Head of the Independent Council will no longer be the Chairman of the Supreme Court. The Head of the Independent Council will be elected by the Conference of Judges.  
  • The five remaining members of the Independent Council will be appointed by the High Council of Justice of Georgia, on the recommendation of the Head of the Council of Justice.    

Our assessment

The aforementioned changes will contribute to the enhancement of the independence of the High School of Justice and clear separation of the competences of the High School of Justice and those of the High Council of Justice. In terms of the school’s independence, it is important to ensure that the Chairman of the Supreme Court, who at the same time holds the position of the Head of the High Council of Justice, is not included in the Independent Council of the school.

 

Audio, Photo, Video Recording, Filming and Broadcasting

The current rule

In accordance with the applicable wording of Paragraph 4, Article 13 of the Law of Georgia on Common Courts, it is prohibited to carry out photography, filming, and video recording and broadcasting of court sessions in a courtroom or a court building, expect in the cases when the aforementioned is carried out by the court or a person authorized by the court. The court is also authorized to disseminate materials at its disposal. However, it should be noted that, in practice, court sessions are not video recorded.

After the amendments

  • The court will be obliged to ensure audio/video recording of sessions. The court will be obliged to make the audio/video records available to the parties and/or other persons upon demand.   
  • The Public Broadcaster will be authorized to carry out photography, filming, video/audio recording and broadcasting of court sessions without restriction. The aforementioned authority will make the Public Broadcaster obliged to give the records to other news outlets upon demand.
  • Other persons with a common broadcasting license will also be authorized to carry our recording if the Public Broadcaster refuses or fails to exercise this concrete authority. It will be possible to exercise this authority on the basis of a written application to the court reviewing the case submitted before the court session. If more than one owner of a common broadcasting license submits an application, the judge will select the authorized person by casting lots. The person who exercises the authority will be obliged to give the record to other news outlets.
  • Other news outlets, the parties, and/or other persons will be able to carry out recording on the basis of a well-founded request with the permission of the court. It will be possible to restrict this right by a well-motivated decision of the court (judge).

Our assessment

Making court sessions public is a step forward to greater transparency of the judiciary system in general, though, in our opinion, the bill must find a balance between private and public interests. Accordingly, it is necessary to satisfy the public interest, on the one hand, and, at the same time, protect the lawful rights of private persons.  

The degree of transparency must be different in civil, administrative, and criminal cases. In the case of criminal and administrative proceedings, where a state administrative body always constitutes one of the parties, the existence of the public interest is obvious, though, even in this case, one of the parties is a private person, and, accordingly, his/her interests must also be protected. Due to all the aforementioned, photography, filming, and video recording and broadcasting of court sessions should only be permitted in the case of the consent of the private party.

In the case of civil proceedings, where the private interest is higher, we believe that photography, filming, and video recording and broadcasting of court sessions should only take place with the mutual consent of the parties. Mutual consent creates the best mechanism for the protection of the interests of private persons.

Photography, filming, and video recording and broadcasting of a court session on the basis of the decision of the judge (the chairperson of the session) should only be allowed in the case of particular public interest. Particular public interest can exist in such cases where one of the parties is a public official (a holder of a political office) or when the case concerns malfeasance, a particularly grave felony, terrorism, crimes directed against the state, etc. The aforementioned is not a comprehensive list, and it is also possible to define particular public interest more widely. If such a case is being reviewed, the judge must be obliged to make a corresponding decision about making a video record of the session.  

Author: TI Georgia