The dominant role of the High Council of justice in the activities of the High School of Justice

In 2019, on December 13, within the framework of the "fourth wave" of judicial reform, the law of Georgia on the High School of Justice was abolished and the issues related to school management and rules of activity were reflected in the Organic Law of Georgia on the common courts. Although today the issues related to the functioning of the High School of justice are regulated by hierarchically predominant norms, nothing has changed substantially regarding the balance of power of the High Council of justice and its members.

However, before discussing the relationship between their powers, it is necessary to consider the problem of one vague legislative regulation. Regulation of the Organic Law of Georgia "on common courts" regarding the enrollment and status of a person in the High School of Justice is ambiguous.

The authority to decide on enrolling a person as a listener is assigned to two different bodies under the norms of organic law:

• On the one hand, making a reasoned decision on enrolling a person as a trainee in the High School of justice shall be attributed to the powers of the Independent Council of the High School of justice;¹
• On the other hand, the law on the status of the trainee of Justice explains that this is a person who, as a result of passing the competition, was enrolled in the school by the decision of the High Council of Justice of Georgia.²

It is noteworthy that the edition of the norm regarding the status of the trainee of Justice has not been changed in the Organic Law, which causes uncertainty regarding the issue.

There are many different systems designed to ensure judicial independence in Europe, and as the Venice Commission explains, " there is no single model applicable to all countries. In older democracies, executive power sometimes has a decisive influence on the judicial appointment. Such systems may work well in practice and create an independent judiciary, as their powers are limited by the legal culture and traditions that have been developing for a long time; But new democracies have not yet had the opportunity to develop traditions that prevent abuse of power.“³

According to the opinion of the Venice Commission, "the most appropriate way to ensure the independence of the judiciary is the formation of the Council of Justice, whose composition, powers and autonomy are ensured by constitutional guarantees."⁴ the High Council of justice is responsible for the quality, efficiency, and independence of justice in Georgia, which in itself is an acceptable model, but to be guided by the assessment of the Venice Commission, in a country where the balance of power is not conditioned by historically established legal culture and traditions, "Clear constitutional and legal guarantees" are important,⁵ that protect us from abuse of power.

The specificity that distinguishes the model of judicial management of Georgia is the accumulation of powers in the hands of the High Council of justice when the fundamental requirement expressed in the opinion of the Venice Commission is not observed: "maintaining a balance between the independence of the judiciary and self-administration, on the one hand, and accountability of the judiciary, on the other hand, so the negative consequences of corporatism within the judiciary can be avoided."⁶

Powers of the High Council of justice and the High School of Justice

Since the enactment of the law of Georgia "on the High School of justice", the interrelation of the powers of the school and the High Council of justice and their mandate regarding school management and educational process is of interest.

A special profile institution should ensure proper professional training of candidates and acting judges and improvement of existing professional skills. For this purpose, the High School of justice was established in Georgia in 2006.

The law "on the High School of Justice" adopted in 2005 defined the rules of school work, Authority, and structural arrangement, as well as the issues related to school admission and course completion.

School management bodies are the independent school board and school administration.⁷

An independent board is a collegial body that approves school training, internship, and retraining programs and makes decisions regarding school performance;

And the school administration is the executive body responsible for the execution of decisions of the independent board and is composed of: the school director, his deputy, and the head of the internship.⁸

Independent council of the High School of Justice

Before the fourth wave of judicial reform

The rules and composition of the school's independent board have changed several times since the adoption of the law of 2005. Initially, the independent council consisted of 6 members, and its composition was approved by the president of Georgia. The candidates for the membership of the independent council were presented to the president as follows: three-judge members were nominated by the chairman of the Supreme Court of Georgia, two members - the High Council of justice, one - the prosecutor general.⁹ the position of chairman was elective and was elected by independent board members from their constituents.

After the legislative amendments of 2008, 5 members of the independent council, in agreement with the High Council of justice, were appointed and dismissed by the chairman of the Supreme Court of Georgia. The chairman of the Supreme Court was also given the authority of chairmanship (hence membership) of the independent council.¹⁰

Since 2013, the authority to appoint and dismiss 5 members of the independent council has been transferred to the High Council of justice, and the chairman of the Supreme Court of Georgia is no longer entitled to chairmanship and membership. This position became elective again and was elected for a term of 3 years by the conference of judges.¹¹

After the fourth wave of judicial reform

The composition of the Independent School Board has increased to 7 members, of which 4 are judges and 3 are non-Judge members. The composition is defined as follows: 3 members are elected by the conference of judges (one judge from all three instances), for a term of 4 years; 2 members are elected by the High Council of justice from its members (one judge and one non – judge member); the remaining 2 members-the High Council of justice from the academic staff of accredited higher Members of the independent council are elected by the High Council of justice by majority.¹²

The rule of electing the chair of the Independent School Board has been changed and instead of the conference of judges, the High Council of Justice is elected by the independent board members elected by the conference of judges. In addition, the same person is allowed to be elected as an independent board member only twice in a row.¹³

The dismissal of independent council members is still the authority of the High Council of justice, including members elected by the conference of judges. As for the chairman of the independent council, he is dismissed by the conference of judges.¹⁴

Although the participation of the conference of judges in determining the composition of the school's independent board has increased, the dominant position is still maintained by the High Council of justice: it elects a chairman and a majority of its members.

It is unclear why the independent council, like other collegial bodies, cannot choose a chairman from its composition.

Competition for admission to the high school of Justice

Before the fourth wave of judicial reform

The High Council of Justice decided on the competition for admission to the High School of Justice and the competition was managed by the High Council of Justice.15 councils decided to enroll a person in the High School of Justice.

Initially, the competition for admission to the school was envisaged in the form of an oral interview. After the legislative changes of 16 2008, the form of the competition is no longer specified. The total number of Justice trainees to be admitted to the school was approved by The Independent Council of the school, on the recommendation of the High Council of Justice.¹⁷

After the fourth wave of judicial reform

According to the norms of the organic law, the High School of Justice conducts a competition for admission to the school, but the decision on holding an admission competition is still the authority of the High Council of Justice.

The High Council of justice also decides on the enrollment of a person in the High School of Justice.

The High Council of justice shall submit the total number of Justice trainees to the school for approval.

Accordingly, the High School of justice is the technical executor of the decisions of the High Council of Justice regarding the competition for admission to the school.

The dominant role of the High Council of justice in the activities of the High School of justice is only one layer of the entire construction of the broad powers of the High Council of Justice. The analysis of the aforementioned problem revealed an imbalance between the power and accountability of this institution and which affects the quality of the independence of the judiciary.


Footnotes

1. Organic Law of Georgia" on common courts", article 663, paragraph 7, subparagraph "C"
2. The same, article 6616.
3. CDL-AD (2007) 028th Judicial Appointments-Report adopted by the Venice Commission at its 70th Plenary Session (Venice, 16-17 March 2007); https://www.venice.coe.int/webforms/documents/CDL-AD(2007)028. aspxp.10
4. Ibid.
5. Ibid.
6. Ibid.
7. Organic Law of Georgia on common courts, art. Six hundred sixty-two
8. The same, art. 666, pum. One
9. Law of Georgia on the High School of Justice, 2006, 20 January edition (primary), art. 3, pun. 3 and 4
10. 2008 law of Georgia on amendments to the law of Georgia on the High School of Justice of March 11, art.1, pun. Two
11. 2013 law of Georgia on amendments to the law of Georgia on the High School of Justice of Georgia on May 1, art.1, pun.One
12. Organic Law of Georgia on common courts, art. 663, pum. Four
13. The same, pun. Five
14. The same, art. 664, pum. Two
15. Law of Georgia on the High School of Justice, art.11, pun. 3 and art. 13, pun. One
16. Law of Georgia on the High School of Justice, 2006, 20 January edition (primary), art. 13, pun. One
17. Law of Georgia on the High School of Justice, art. Fourteen

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