WHAT GEORGIAN JUDGES ARE (NOT) PUNISHED FOR - THE PRACTICE OF THE DISCIPLINARY CHAMBER FROM 2012 TO THE PRESENT

It is recognized that an independent and accountable judiciary is the main cornerstone of the development of a democratic society and the protection of human rights. The disciplinary responsibility of a judge is one of the forms of accountability.

The system of disciplinary responsibility of judges must meet the following basic requirements:

• Pre-determine the unacceptable and disciplinary punishable action of the judge, which will be foreseeable both for the judge and for society;
• Effectively respond to the complaints made by society towards the judge and give back justified responses to society;
• Protect the rights of a judge;
• Be transparent and public within the frames envisaged by the interest of disciplinary proceedings, protection of the rights of a judge and the public;
• Set a fair balance between judicial independence and accountability.

Until 2012, the disciplinary system of the Common Courts was completely closed. The decisions of the disciplinary chamber were not published, thus judges and the public did not have information about what misdemeanors were actually punished and what was their severity; institutions for investigation or substantive review of disciplinary cases did not exist, who would have at least formal guarantees for independence. Disciplinary systems (as well as other administrative levers) were often used to intimidate and subdue politically disobedient judges.

In 2013-2019, significant changes were made in the legislation to increase the transparency of disciplinary proceedings, accountability, independence of disciplinary bodies, and the rights of judges. Among them, new bodies for investigation and substantive review of disciplinary cases were created, the system of disciplinary offenses was re-established, the publication of disciplinary decisions was determined, etc.

It is noteworthy that with the amendment of 13th December 2019, “breach of the norms of judicial ethics” and “non-fulfillment or untimely performance of the duty of a judge” were removed from the list of disciplinary misconduct. Cases of violation of judicial ethics, leading to disciplinary misconduct have been determined by the legislation. Nowadays, Article 751 of the Organic Law on Common Courts includes 21 types of disciplinary misconduct that violate principles of independence, impartiality, integrity, order, equality, and discretion, or in any other way damages the court’s authority. In 2019, the majority of these amendments were positively evaluated by the civil sector, as well as international society.

On the other hand, the amendments of December 2021 to the Organic Law on Common Courts received strong criticism. The changes covered the following:

• Violation of the principle of political neutrality of public expression of opinion by a judge;
• The quorum required for taking decisions on disciplinary issues by the High Council of Justice, which was reduced from 2/3 to the majority;
• In case of initiation of disciplinary proceedings, the possibility of removing the judge from consideration of specific cases.

The changes were assessed as an additional lever limiting the independence of judges in the hands of the dominant group in the judicial administration - the clan. Generally, only changing the regulations is not enough to create a reliable and effective disciplinary system. Whereas, before 2012, the disciplinary system was too strict and oriented at punishing judges and controlling their decisions, after 2012, the system lacks independence and is characterized by corporatism and the exemption of favored judges from responsibility. The disciplinary system lacks the appropriate degree of credibility, which is why the justice system users, especially lawyers, refrain from filing disciplinary complaints.

Nowadays, disciplinary cases are handled by the following agencies:

• Independent Inspector of the High Council of Justice (conducts preliminary inspection and investigation of disciplinary cases);
• High Council of Justice (resolves the issue of bringing the judge to disciplinary responsibility, supports disciplinary prosecution);
• Disciplinary Board of Judges of the Common Courts (reviews disciplinary cases);
• Disciplinary Chamber of the Supreme Court (reviews complaints on the decisions of the Disciplinary Board).

Every stakeholder who believes that a judge has committed a disciplinary offense has the right to file a complaint to the Independent Inspector of the High Council of Justice. The Independent Inspector annually receives from 130 to 320 disciplinary complaints, however, the vast majority of these complaints are resolved at the stage of preliminary inspection and investigation of disciplinary cases and did not last till the actual review stage.

In 2013-2022, the Disciplinary Board of Judges of the Common Courts reviewed 16 disciplinary cases.

The cases were on the following disciplinary misconduct:

• Violation of the judicial ethic norms – 3;
• Non-fulfilment or inappropriate performance of judicial duty (the mentioned is not a disciplinary misconduct since 2019) – 5;
• Unreasonable delay of the case consideration – 4;
• Showing obvious disrespect to the participant of the process – 1;
• Refusal by the judge to dismiss/self-dismiss the case when there is a legal basis for it – 1.

In the given period, the Disciplinary Board made 9 convictions and 5 acquittals. In 2 cases the disciplinary proceedings were suspended due to the expiration of the statute of limitations for the prosecution. As for the disciplinary sanctions, during 2013-22, the Disciplinary Board used:

• 5 private recommendation cards;
• 1 reprimand;
• 3 notices.

Below is a brief summary of each of these decisions.

Case №1/03-12 (Decision of 12th April, 2013)

During the oral explanation of the decision, the judge referred to the representative of the party in a familiar context inappropriate for a judge.

According to the decision of the Disciplinary Board, the judge committed a violation of the judicial ethics rule and improper performance of duty. The disciplinary measure imposed on the judge: referral with a private recommendation card.

Case №1/03-12 (Decision of 12th April, 2013)

In the resolution of the decision, the judge indicated 14 days instead of the 7-day deadline for appealing the decision.

The judge was accused of inappropriately performing his judicial duties (removed from the list of disciplinary misconduct).

The Disciplinary Board considered that the action was not a disciplinary offense, but a judicial mistake and lifted the responsibility from the judge.

The Disciplinary Board mentioned that while drawing the line between a judicial mistake and disciplinary misconduct, one should take into consideration the possibility of correcting the mistake, its quality, repetitive and non-recurring nature, the good faith of the judge, and his motive.

Case №1/01-15 (decision of 21st January, 2016)

The judge addressed the defense with the following words: “I want to explain to you as lawyers that your legal thinking is very disturbing, to put it simply. I’m not even talking about incompetence.”

And after the panel of judges approved the motion of the defense, said: “I’m disturbed with the precedent we just created. This is a very bad precedent. Unfortunately, my colleagues, I will say directly, made absolutely wrong decision to create this precedent.”

According to the decision of the Disciplinary Board, the judge was found guilty of violating the norms of judicial ethics and was reprimanded as a disciplinary sanction.

Case №1/01-16 (decision of 20th May 2016)

According to the disciplinary charge, the requirements of Article 83 of the Civil Procedure Code of Georgia were violated by increasing the demand at the main session during the consideration of the civil case in order to increase the claim at the main session of the court, the consent of the defendant is necessary, which was not the case here.

The Disciplinary Board acquitted the judge in this episode and noted that granting/disagreeing with the plaintiff’s motion to clarify or increase the claim cannot be considered an inappropriate act for the judge, which violates the authority of the court or harms trust towards it.

According to the second episode of the disciplinary charge, by making a partial decision on the case without the petition of the parties, they ignored the imperative requirement of Article 245 of the Civil Procedure Code of Georgia, thereby committing a disciplinary offense: improper performance of the judicial duties.

Case №1/01-17 (decision of 21st April, 2017)

Preparing criminal case verdicts and handing them over to the parties with a delay of 5-6 months (or more), as well as sending the case to the higher instance with a delay of 5-6 months (or more) was considered as the improper performance of the judicial duties.

The judge also violated an imperative requirement of the Prison Code and did not give permission to the convict to conduct phone calls, thus limiting the convict’s rights granted by law. The judge also failed to ensure that the minutes and stenographic records of the court session were handed over to the convict in a complete condition and in a reasonable time; The documents were delivered to the party two months late, violating the imperative requirement of Article 195 of the Criminal Procedure Code of Georgia.

In one of the episodes of the charge, related to the delay in the case consideration, the judge was acquitted, since it was considered that the case was not a custodial one, or imprisonment as a preventive measure was not imposed against the convict. The case consideration was postponed every time at the request of the prosecutors involved, due to the absence of the witnesses; In addition, the prosecutor of the case was changed several times, and each of them petitioned the court to allocate a reasonable period of time to get acquainted with the case. The court session was postponed several times due to the non-appearance of the defendants and their lawyers. The judge did not leave the case inactive at any stage, - without some kind of procedural action. Postponing the case consideration did not violate the rights of the parties participating in the process, and the delay was not caused by the judge. The judge was found guilty of non-fulfillment and improper fulfillment of the judicial duties and was subjected to disciplinary measures and a fine - notice.

Case № 2/01-2018 (decision of 24th September 2018)

The judge violated the terms of case consideration and decision preparation for civil cases; In particular, one case reviewed took 2 years and 4 months; in the second case, no procedural action was taken within 1 year and 10 months, and in the third case, the decision was sent to the party 9 months and 20 days after it was made.

The Disciplinary Board took into account the circumstances that the unjustified delay in the consideration of the case by the judge is not inspired by criminal signs and is mostly caused by the abundance of civil cases in his/her proceedings, his/her little judicial experience, in addition, the judge had to periodically exercise his/her powers without an assistant. Additionally, it should be taken into account that in order to avoid delay in the administration of justice, the judge simultaneously had to implement various procedural actions on administrative cases and was also responsible for exercising the authority of a magistrate judge in the municipality.

The judge was found guilty of ungrounded delay in case consideration and a private recommendation card was issued to him/her as a disciplinary measure.

Case № 3/01-2018 (decision of 21st January 2019)

It took 1 year and 5 months for the judge to complete the case consideration; additionally, 5, 7, and 5 months apart, he carried out procedural actions and the Disciplinary Boards considered that the case consideration delay by the judge is not inspired by criminal signs and is largely based on logical reasoning such as the internal factor of the court, particularly, overloading of judges and lack of judges, or, in other words, shortage of judges necessary for effective examination of justice. This is evidenced by the data presented by the judge about his workload, which the representatives of the High Council of Justice did not doubt. The judge was acquitted of the disciplinary charge.

Case № 4/01-2018 (decision of 21st January 2019)

The judge addressed the party involved with ironic expressions, including the words: “Of course, there will be justification. I will not ask a thank you for this.” The judge was found guilty of violating the norms of judicial ethics and a private recommendation card was issued to him/her as a disciplinary measure.

Case № 5/01-2018 (decision of 21st January 2019)

During the review of the administrative case, the judge did not take any procedural action for a year and a half. The Disciplinary Board took into account the circumstances that the unjustified delay in the consideration of the case by the judge is not inspired by criminal signs and is mostly caused by the abundance of cases in his/her proceeding. In addition, while exercising his/her authority, he/she had only one employee in the office, who performed the functions of both the assistant and the secretary of the session. Moreover, at the same time, the judge had to carry out various procedural actions - both civil and administrative, as well as review administrative violations, preventive measures, and criminal cases. The judge was found guilty of ungrounded delay in case consideration and a private recommendation card was issued to him/her as a disciplinary measure.

Case № 2/0-2019 (decision of 10th June 2019)

During the consideration of the civil case, the judge violated the deadline for handing over the justified decision to the party; in particular, violated the 1-month term determined by the Article 257 of the Civil Procedure Code by 8 months and 8 days.

The Disciplinary Board took into account the overloading of the judge and the lack of judges and issued an acquittal decision.

Case № 3/0-2019 (decision of 10th June 2019)

The judge violated the 1-month term for handing over the justified decision to the party with 5 months’ delay. The Disciplinary Board took into account the overloading of the judge and the lack of judges and issued an acquittal decision. (The Disciplinary Board noted that in 2015-2017, the judge had approximately 579 cases, and 634 cases were completed (109.4%).

Case № 5/01-2019 (decision of 10th June 2019)

The judge handed the verdict to the accused with a delay – in 1 month and 14 days, instead of 14 days. Also, the judge referred the case to the Court of Appeals 3 months and 16 days after the submission of the defense to the appeal. In this case, the Disciplinary Board considered the following while reviewing the case:

• In this case, due to a reason independent from the judge, namely after the end of the case review, it was revealed that the audio recording of the minutes of the court session was made with a flaw; During the substantive consideration of the case, the statements of the persons questioned as witnesses were not heard, which were required for the preparation of court verdict; as a result, it became necessary to created a printed version of the session minutes using audio-video recording system requiring certain time.

The Disciplinary Board also took into consideration the fact that in 2017 the judge had 881 to consider, out of which, 762 were completed 762 (86%).

The Disciplinary Board decided that in this case, the violation of the term for handing over a copy of a verdict to the convicted person and the late transfer of the criminal case to the Court of Appeals by the judge are not inspired by criminal signs and accordingly, he/she is not guilty if this disciplinary misconduct.

Accordingly, the judge was acquitted in the disciplinary charge (non-fulfillment or improper fulfillment of the duties of a judge).

Case № 1/01-2020 (decision of 9th November 2020)

During the consideration of the criminal case, the judge stopped the questioning of the witness without the request of the party and demanded an explanation from the lawyer in the following way – “Maybe you can explain the connection?” we are reviewing the case with part 6 of the Article 260; Your client is accused of illegal purchase and possession of narcotic drugs; This explanation is given to the witness by the court and, surprisingly, when the lawyer asks the witness what he knows about the case under consideration, all the witnesses start talking about the fact that —
— he had a spouse; can you explain how this is connected to Article 260… you ask a witness to start telling as if you have pre-arranged what the witness shall talk about?”

The Disciplinary Board resolved that the judge with such an opinion and form of address, the judge went beyond the function of a neutral arbitrator and expressed clear displeasure and disrespect to the party involved in the process. The judge was found guilty of showing obvious disrespect to a party of the trial and a notice was issued to him/her as a disciplinary measure.

Case №2/01-2020 (decision of 11th December 2020)

The judge heard a private complaint on the case, in which his wife participated as a representative. As the Disciplinary Board explained, the judge was obliged to recuse himself and not participate in the consideration of the private complaint. The judge was found guilty of disciplinary misconduct (refusal to recuse/dismiss the case by the judge when there is a clear ground for that) and a private recommendation card was issued to him/her as a disciplinary measure.

Case №2/01-17 (decision of 25th September 2017 of the Disciplinary Board)
Case № 1/01-18 (decision of 9th March 2018 of the Disciplinary Board)

The cases were about renewing disciplinary proceedings on the decisions taken in 2004-05 due to newly discovered circumstances (since the European Court of Human Rights found a violation of Article 6 of the Convention (right to a fair trial). The Disciplinary Board suspended proceedings of the mentioned cases, due to the expiration of the statute of limitations for disciplinary responsibilities.


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Georgian Court Watch Project: "Active Citizen Involvement for a Better Judicial System"

The article was prepared with funding from the European Foundation, within the framework of a grant from the Danish International Development Agency. The author is responsible for its content. The article does not reflect the official positions of the European Foundation and the Danish International Development Agency.