Evolution of the power of the High Council of Justice - Part II
11.11.2022
Table of contents
- Independent inspector-additional position under the influence of the board
- New rules for electronic distribution of cases - new leverage in the hands of the High Council of Justice
- Composition of the Supreme Court through the High Council of Justice
- Increased authority of the chairperson of the court of Appeal
- Influence of the High Council of justice on the High School of Justice
- Changes of December 2021 and increased power of the council
- Judges ' work trip
- Grounds for disciplinary proceedings against a judge
- Re-voting of a candidate for a vacant position
- Current authority of the council
In recent years, legislative amendments have been made to increase institutional autonomy, independence, and impartiality of the judiciary, however, in parallel to this, conditions have been defined that have finally weakened their positive effect and transferred complete control over the processes to the High Council of Justice.
New competence of the council: evaluation of the judge before their lifetime appointment
Since 2014, after the enactment of new constitutional amendments, the rule of lifetime appointment of judges (up to the age of 65) has been enacted. Lifetime appointment of judges is a common practice in democratic countries and is generally considered a means of ensuring the independence of judges.
The appointment of former judges and persons without judicial experience differs in Georgia. A former judge may be directly appointed to the position of a judge for life if 10 years have not passed since the termination of their judicial activity.
The lifetime appointment of a person without judicial experience comes with certain preconditions. Before a judge is appointed for life, they are appointed for a three-year probationary period. Their lifetime appointment depends on how their activities will be assessed by the members of the High Council of Justice.
Independent inspector-additional position under the influence of the board
As a result of the February 2017 legislative amendments, an independent inspector's service was established at the High Council of Justice, which aims to conduct an objective, impartial and comprehensive examination and preliminary examination in case of alleged disciplinary misconduct by a judge. The appointment and dismissal of an independent inspector is the prerogative of the Council of Justice.
New rules for electronic distribution of cases - new leverage in the hands of the High Council of Justice
Since 2017, the rule of electronic distribution of cases has been enacted, which implies the randomized principle of distribution of cases to judges. Such a rule is recognized and approved by Western structures as a mechanism for fair and objective distribution of cases among judges, their equal workload, and increased individual independence of judges. In Georgia, this system could not be implemented without drawbacks and the levers of influence on the process were again in the hands of the High Council of justice and the chairmen of the court.
The rule of electronic distribution of cases is defined by the decision of the High Council of Justice of 2017 of May 1, n1/56. In common courts, cases are distributed according to the specialization of judges. In addition, the Council defines a wide list of exceptional cases to which the principle of random distribution does not apply.
Composition of the Supreme Court through the High Council of Justice
Until 2018, the selection of candidates for the position of Supreme Court judge was the authority of the president. In 2018, 21 July legislative amendments enacted a new rule in December of the same year, which transferred the power of nominating candidates to Supreme Court judges to the High Council of Justice. The majority of the acting judges of the Supreme Court are elected by the Parliament of Georgia based on the recommendation of the Council of Justice. This time we will not dwell on the problems revealed in the process of nominating and choosing candidates.
Increased authority of the chairperson of the court of Appeal
Based on the March 2018 amendments, the Tbilisi Court of Appeals, by the decision of the High Council of Justice of Georgia, defined narrower specializations of judges. This was followed by the decision of the High Council of justice, by which the chairperson of the Tbilisi Court of Appeals was granted the right to determine the composition of judges in narrow specializations. Based on this, the chairperson of the Tbilisi Court of Appeals officially had the opportunity to influence the process of distribution of cases.
Influence of the High Council of justice on the High School of Justice
Today, the degree of autonomy of the High School of justice is so low that it does not make decisions independently about even the competition for admission to the school. The High Council of justice decides on the announcement of the competition and the number of listeners.
As for staffing the school management body - the independent board, the High Council of Justice has a leading role in the process as well. It elects the majority of independent board members (7 out of 4 members), two of whom are elected from their composition and two from academic circles. The authority to elect the chairman of the school's independent board was also transferred to the High Council of Justice.
Changes of December 2021 and increased power of the council
On December 20, 2021, amendments were made to the Organic Law of Georgia "on common courts", which strengthened the levers of influence on judicial activities and created new opportunities for violating the individual independence of judges. Since most of them belong to the authority of the High Council of justice, the council was strengthened at the expense of reducing the individual independence of judges. The changes affected the following issues:
Judges ' work trip
The High Council of justice is no longer limited by the mandatory consent of the judge (when transferring to a court of another instance) and the geographical location of the court (the judge can be sent to any court throughout Georgia). Moreover, the council can transfer the judge from the appellate court to the city court in the same way, in which the consent of the judge is no longer mandatory.
In addition to jeopardizing the independence of judges, the indispensability principle of judges is also violated.
According to the case law of the European Court of human rights, as well as several international recommendation documents, the indispensability of judges is recognized as an important guarantee for the independence of judges.
The term of the judge's work trip to another court has increased. The Council of justice can transfer a judge to another court for two years instead of one year, which can be extended for two more years on a one-time basis; this was assessed by the Venice Commission as follows:
Sending a judge on a work trip for 4 years without their consent is obviously disproportionate."...The amendments significantly increase the power of the High Council of justice in relation to judges and represent substantial interference in the protection of judicial term of office.“
Such regulation of work trip rules creates levers of influence on the judge and threatens their individual independence. According to the vision of the Venice Commission, "such a broad and unlimited authority for transfer of judges against their will is excessive and unjustified.“
Grounds for disciplinary proceedings against a judge
Article 751 (8) of the Organic Law of Georgia" on common courts " added to the list of disciplinary misconduct, in particular misconduct related to the principle of impartiality, violation of the principle of political neutrality in a public expression of opinion by a judge. It is noteworthy that the issues related to the political neutrality of the judge were previously regulated by Paragraph 8 (E) of the same article, which prohibits "public expression of political views by a judge."The term" expression of political opinion "is a clearer formulation than" violation of the principle of political neutrality", which is less specific and therefore creates risks of wide interpretation by the Council of Justice. Thus, there are more grounds for restricting the judge's freedom of expression. According to the Venice Commission, when regulating the impartiality of judges, a balance should be found between the fundamental right to freedom of expression and the legitimate interest of the state to ensure an impartial and apolitical judicial system. The existence of such a disciplinary basis is simply a tool for silencing " judges.
Re-voting of a candidate for a vacant position
Three members of the High Council of Justice have the right to apply to the High Council of justice, with the consent of the candidate for the vacant position of the judge, who could not be appointed to the vacant position of the judge, to re-run them. The High Council of Justice of Georgia decides on re-voting by the majority of the members present at the session. Thus, the High Council of justice was given an additional opportunity to manipulate the process of appointing judges.
Current authority of the council
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The High Council of Justice will select candidates for the Supreme Court judges and submit them to the parliament for selection.
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Council of Justice appoints:
1) judges of the City (district) and court of Appeal.
2) chairmen and deputy chairmen of City (district) and appellate courts, judges of the respective court.
3) chairmen of City Court collegiums.
4) Chairmen of the chambers of the court of Appeal and the investigative panel.
5) an independent inspector of the High Council of Justice.
6) Chairman of the Department of common courts and his deputies.
7) 4 members of the independent board of the High School of Justice.
8) Chairman of the independent board of the High School of Justice.
9) members of the Examination Commission for the judge's qualification examination.
2) chairmen and deputy chairmen of City (district) and appellate courts, judges of the respective court.
3) chairmen of City Court collegiums.
4) Chairmen of the chambers of the court of Appeal and the investigative panel.
5) an independent inspector of the High Council of Justice.
6) Chairman of the Department of common courts and his deputies.
7) 4 members of the independent board of the High School of Justice.
8) Chairman of the independent board of the High School of Justice.
9) members of the Examination Commission for the judge's qualification examination.
- The board makes decisions:
1) in connection with the judge's work trip to another court.
2) on the creation and determination of the composition of specialized judicial collegiums in the city (district) court.
3) initiation of disciplinary prosecution against a judge.
4) in connection with the disciplinary liability of a judge or the termination of disciplinary proceedings against a judge.
5) on the incentives of judges.
6) appeal to the Disciplinary Board on the removal of a judge of the city (district) and court of appeals from consideration.
7) holding a competition for admission to the High School of Justice.
8) on the provision of Housing to the judges of the appellate and City (district) courts.
9) in case of communication with a judge in a prohibited form, on taking measures provided for by law against a person.
10) on infrastructure projects in the judicial system, etc.
2) on the creation and determination of the composition of specialized judicial collegiums in the city (district) court.
3) initiation of disciplinary prosecution against a judge.
4) in connection with the disciplinary liability of a judge or the termination of disciplinary proceedings against a judge.
5) on the incentives of judges.
6) appeal to the Disciplinary Board on the removal of a judge of the city (district) and court of appeals from consideration.
7) holding a competition for admission to the High School of Justice.
8) on the provision of Housing to the judges of the appellate and City (district) courts.
9) in case of communication with a judge in a prohibited form, on taking measures provided for by law against a person.
10) on infrastructure projects in the judicial system, etc.
- The Council of Justice defines:
1) the number of judges of City (district) and appellate courts.
2) narrow specialization of judges in the court of Appeal.
3) specialization of judges in the city court.
4) the area and number of actions of magistrate judges.
5) rules for the automatic, electronic distribution of cases in general courts.
6) criteria for the judge's promotion.
7) the number of students admitted to the High School of Justice.
8) the structure of the apparatus at the city (district) and appellate courts and the procedure for the activities of structural subdivisions.
9) salary supplements of City (district) and appellate court judges, etc.
Since 1997, the change in the authority and constitutional status of the High Council of justice (from the advisory body of the president to the independent body) should have been a guarantee of strengthening the independence and effectiveness of the judiciary. However, the regulation of institutional issues failed to ensure the individual independence of the judge.
It is also noteworthy that the standards of accountability and transparency of the activities of the High Council of Justice have been formally improved, but no thorough progress has been achieved. The disproportionate increase in the authority of the High Council of justice and the lack of power-balancing mechanisms have had a negative impact on the judiciary as a whole, especially on trust in the judiciary.
On the same topic: Evolution of the power of the High Council of Justice - Part I
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The materials distributed by courtwatch.ge and published on the website are the property of "Georgian Court Watch", when using them, "Georgian Court Watch" should be indicated as the source.
2) narrow specialization of judges in the court of Appeal.
3) specialization of judges in the city court.
4) the area and number of actions of magistrate judges.
5) rules for the automatic, electronic distribution of cases in general courts.
6) criteria for the judge's promotion.
7) the number of students admitted to the High School of Justice.
8) the structure of the apparatus at the city (district) and appellate courts and the procedure for the activities of structural subdivisions.
9) salary supplements of City (district) and appellate court judges, etc.
Since 1997, the change in the authority and constitutional status of the High Council of justice (from the advisory body of the president to the independent body) should have been a guarantee of strengthening the independence and effectiveness of the judiciary. However, the regulation of institutional issues failed to ensure the individual independence of the judge.
It is also noteworthy that the standards of accountability and transparency of the activities of the High Council of Justice have been formally improved, but no thorough progress has been achieved. The disproportionate increase in the authority of the High Council of justice and the lack of power-balancing mechanisms have had a negative impact on the judiciary as a whole, especially on trust in the judiciary.
On the same topic: Evolution of the power of the High Council of Justice - Part I
---
The materials distributed by courtwatch.ge and published on the website are the property of "Georgian Court Watch", when using them, "Georgian Court Watch" should be indicated as the source.
