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JUDICIARY / Analytical Documents

10 Years of Judicial Reforms: Challenges and Perspectives

Despite the numerous reforms implemented throughout the past decade, the Georgian justice system still faces fundamental obstacles and is undergoing a severe crisis of legitimacy and trust.

The 2012 change in government presented an excellent opportunity for substantial improvements. Locally and internationally, the initial stages of the reform were regarded favorably. On the ten-year anniversary of the reform commencement, however, the implemented legislative changes can be viewed as superficial attempts at institutional modernization of the judiciary, which failed to address the primary challenges of the Georgian context, namely the concentration of power and informal influences within the judicial system. Moreover, during the reform implementation process, the political system failed to adhere to the principal objectives of transforming the court into a democratic one. Instead, over time, it made concessions with the influential groups in the judicial corps regarding fundamental issues. Due to this process, the judicial system's corporatism and progressive dissent suppression made it challenging for the court as whole and individual judges to maintain their internal independence.

One of the most severe manifestations of the problems in the judicial system was the selection process of the Supreme Court of Georgia in 2018-2021, which took place against the background of intense public protests and critical international assessments. This process severely eroded public faith in the judicial system and the confidence of local civil and international organizations and international partners. Instead of accepting objective criticism and taking concrete measures, in December 2021, the Parliament of Georgia took another severe step and adopted a package of legislative changes in an accelerated manner, without public involvement and without consulting the judges, which, in parallel with reducing the guarantees of the independence of individual judges, further increased the power of the High Council of Justice. Accordingly, the internal corporatism and informal influences in the system were strengthened. The amendments mentioned above received particularly sharp criticism from the Venice Commission. As a result, several judges filed an appeal with Georgia's Constitutional Court, requesting that the amendments be declared unconstitutional.

International criticism of the judiciary also intensified along with the deterioration of the situation. In particular, Georgia received suggestions from the United States (in whose recommendations the influential group of judges is directly addressed) and from other countries regarding eradicating informal influences in the judicial system as part of the Universal Periodic Review (UPR)[1]. In its 2020 opinion, the Venice Commission noted that the issues the Georgian judiciary faces are exceptional and demand a very high level of transparency (which may not even be expected from courts in other countries).[2] Furthermore, in evaluating the legislative changes enacted in December 2021, the Commission emphasized that persistent and pervasive claims of corporatism and the domination of entrenched interests within the High Council of Justice may weaken public confidence in the judiciary. Thus, this issue should be treated seriously.[3] The problem of informal influences in the court is also mentioned in the 2021 report[4] of the United States State Department and the monitoring report on the implementation of the Association Agreement of the European Union.[5]

Hence, even though it has been ten years since the reforms began, the judiciary has become a closed, monolithic institution where dissent and genuine, objective debates are increasingly suppressed. The representatives of the judicial authorities are unwilling to discuss the concerns openly. And the High Council of Justice, due to the accumulation of excessive influence in its hands, has become the primary institution undermining the court's independence and is undergoing a severe crisis of accountability and transparency. Thus, a comprehensive appraisal of existing problems in the justice system and the pursuit of potential solutions remain on the agenda.

This document aims to identify and examine the main challenges in the legislation and practice governing the judicial system, which have been emphasized in the evaluations of local and international organizations working on judicial system issues throughout the years. Accordingly, the assessment does not consider the complete list of concerns in the direction of justice. Instead, it concentrates on key issues to the administration of the judicial system, the career and independence guarantees of individual judges, and the transparency and accountability of the judiciary. These issues lead to the consolidation of power within the justice system and the expansion of informal influences.

Main Challenges:

Corporatism and informal influences - the actions of administrative and self-government entities of the judicial system have more political weight and are utilized to illustrate the court's internal cohesion. The current institutional framework inside the court is less conducive to disagreements and substantial discussions. Only the same members of the influential group are typically elected/appointed to significant administrative positions, whereas other judges in the system have no opportunity to participate in judicial management.

Excessive power concentration within the High Council of Justice - the Council makes judgments on all crucial court issues in a manner that essentially eliminates the active participation of non-judge members and, consequently, effective public accountability. The Council is mainly responsible for staffing the judiciary, for instance. However, its disproportionate impact on the High School of Justice and the factors that determine the careers of judges impedes the system's ability to recruit new personnel. The unchecked power of the Council also prevents the decentralization of administrative authority within the court and the judges' real autonomy.

Insufficient guarantees of the independence of individual judges- Insufficient guarantees of the independence of individual judges and their adoption practices, which have worsened in recent years, pose a significant challenge. The new rules for judges' secondments established by legislative amendments of December 2021, the possibility of removing a judge from the ongoing cases in the event of the commencement of the disciplinary liability process, and the new, ambiguous regulation of disciplinary liability increase the risks of infringing on the independence of individual judges and endangering their freedom of speech. In addition, unduly implementation of the electronic system of case distribution and the unequal workloads of the judges generates additional incentives for improper use of the system and pressure on individual judges. In practice, judges are not actively involved in the court's self-governance. A clear example is the Conference of Judges. At the Conferences held in recent years, where the most significant decisions for the judicial system were taken, not only were there no dissenting viewpoints from the judges, but there were also no queries regarding the candidates or their perspectives.  

The Lack of Transparency and Accountability in the System – The challenge to access court decisions is a clear manifestation of the closure and opacity of the current judicial system. The decision of the Constitutional Court of Georgia of June 7, 2019, by which the court, considering the standards of personal data privacy, established the standard of access to judicial acts, still needs to be enforced. This practice significantly violates the principles of transparency and public accountability of the judiciary, hinders public or interested parties' research of judicial course, complicates evidence-based substantive criticism, and ultimately reduces trust in the judicial system.

მართლმსაჯულების_რეფორმა_ENG_1684843631.pdf

Footnote and Bibliography

[1] Universal Periodic Review – Georgia, 26 January, 2021, Available at: https://bit.ly/3YQPYTU ; Accessed on: 12.04.2023).

[2] EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION), OPINION ON THE DRAFT ORGANIC LAW AMENDING THE ORGANIC LAW ON COMMON COURTS Adopted by the Venice Commission at its 124th online Plenary Session (8-9 October 2020), Par. 18. Available at: https://bit.ly/3xmLDMs ; Accessed on: 12.04.2023).

[3] EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION), OPINION ON THE DECEMBER 2021 AMENDMENTS TO THE ORGANIC LAW ON COMMON COURTS, Adopted by the Venice Commission at its 131st Plenary Session (Venice, 17-18 June 2022), Par. 60. Available at: https://bit.ly/3xiKCF0 ; Accessed on: 12.04.2023).

[4] 2021 Country Reports on Human Rights Practices: Georgia, 2021, Available at: https://bit.ly/3XuVES8 ; Accessed on: 12.04.2023).

[5] Association agreement between the EU and Georgia, European implementation assessment, issued by EPRS | European Parliamentary Research Service, 2022, p. 39. Available at: https://bit.ly/3RYRoZZ ; Accessed on: 12.04.2023).

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