8 November 2019, Tbilisi - Human Rights Education and Monitoring Center (EMC) and Institute for Development of Freedom of Information (IDFI) presented findings of the report on the judicial reform system of disciplinary liability of judges. The report was implemented within the framework of “Facilitating Implementation of Reforms in the Judiciary (FAIR)”, a project funded by the European Union.

The purpose of this document is to assess the system of disciplinary liability of judges in light of the “third wave” reform of the judicial system. This is the second monitoring report, which covers the period from 1 January 2019 to 1 September 2019. The first report was published in early 2019. The Report includes the following primary findings:

• Within the framework of the “Third Wave” of judicial system reform, a judge became authorised to make the disciplinary hearings public when so desired, but no judge has yet exercised this right;
• Although a member of the Council was given the right to dissent in writing, no member of the Council has yet exercised this right;
• Although the terms of pre-examination and investigation of a disciplinary case were strictly defined by the “Third Wave”, similar to the previous monitoring period, timeframes are still violated and the disciplinary proceedings are delayed;
• A number of disciplinary appeals filed to the Office of an Independent Inspector related to the lawfulness of the judicial act still prevail, even though during the disciplinary proceedings the law does not allow scrutiny of legality of the acts rendered by a judge;
• The High Council of Justice continues to hold meetings on disciplinary cases with insufficient frequency, which contributes to the delay in disciplinary proceedings;
• Since the enactment of the “Third Wave” to this day the most common ground for holding a judge responsible for disciplinary misconduct is an unjustified delay in hearing a case;
• Violations of judicial ethical norms are widely interpreted in practice, which increases the risk of infringement of the independence of an individual judge;
• The draft law developed within the “Fourth Wave” reform foresees the specific and exhaustive list of types of disciplinary misconduct. It should be assessed positively;
• The provision in the draft law implying that an act which, albeit formally containing signs of any act (offence) prescribed by the law, due to its minor importance did not cause harm that would necessitate the disciplinary responsibility, or did not threaten to create such harm, shall not be considered a disciplinary offense - is problematic. Such an ambiguous provision poses the threat of it being abused and subjectively interpreted;
• It is problematic that the developed draft law does not foresee the responsibility for a judge’s act, which contradicts the clearly stated legal norm and regarding to which there is no ambiguity providing that a judge committed the mentioned act with clear and cogent dishonesty and disrespect for human rights that caused significant harm (“legal error plus”);
• The draft law changes the rule for dismissal of an independent inspector and provides for the possibility of appealing the decision; also, his/her official salary is determined at the legislative level, which should be assessed positively. However, the procedure for electing an independent inspector remains flawed, which does not ensure the proper institutional independence of an inspector;
• The developed draft law sets the standard of proof at the early stages of the disciplinary proceedings, which should be assessed positively;
• The developed draft law within the framework of the “Fourth Wave”, as well as the present-day legislation, does not provide for the publication of an independent inspector’s opinions without identification data. Opinions are not available even if they are requested as public information, which is an important challenge in terms of transparency;
• The developed draft law provides for the publication of statistical information on bringing disciplinary charges against judges, which should be assessed positively. However, the fact that decisions made by the Council regarding bringing disciplinary charges against judges are not published is a major flaw in terms of transparency;
• The draft law developed within the “Fourth Wave” framework does not envisage the elimination of the significant flaw, which is related to the decision-making rule for the Disciplinary Board. Under the current legislation, it is possible for two out of five members of the Board to find a judge guilty and impose disciplinary liability and penalty on him/her, which poses a threat to the fairness of the disciplinary proceedings.

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