JUDGE - SERVANT OF FREEDOM OR POWER?
01.07.2022
The Court should be the guide to the progressive understanding of fundamental rights for the adequate development of society, which will constantly create opportunities for people on the way to freedom and happiness. In this sense, each judge has an absolutely irreplaceable, unique role. They are equally entrusted with the rare opportunity to protect the most precious – freedom (human rights and freedoms); have a huge responsibility for fair justice in all cases; at the same time, they have the honor to “execute fair justice” in the name of the state. How can one wearing the judge’s mantle not understand it correctly, appreciate it properly, waste it irresponsibly, or exchange it for something else?
When making a decision on each case, it is not only the task of correctly solving a specific legal case that the judge faces. Each sentence, phrase, or word written by the judge can significantly, even fatally, change peoples’ lives, and sometimes even social and state development trends. Thus, the judge’s decision is much more than just a well-drafted legal document. Therefore, he/she must be able to turn this sometimes breathtaking, frighteningly huge responsibility into an opportunity to take bold steps to protect human rights and take every challenge on this difficult, but undoubtedly very interesting path as a chance to develop himself/herself and the justice.
The efforts of each judge in the service of freedom are essential and equally valuable both in the process of considering and deciding the case individually or together with other judges collegially, however, depending on how correctly he/she understands his/her role and the cost of his/her efforts, the judge’s voice/position in the process can create an opportunity or a dead end.
As a result of several waves of legislative reforms, an appointment for unlimited term and/or promotion of those judges (the vast majority), who caused the greatest reputational damage to the judiciary was ensured. The most obvious lustration of the government’s real intentions probably happened in 2019-2020, when people, who were remembered by the public only for flattering decisions of the government, were appointed to the position of judges of the Supreme Court. Even more, those who did not meet the minimum qualification requirements for the Supreme Court judge, among them, did not have a diploma confirming proper legal education.
Unfortunately, at different times, the Constitutional Court also contributed to the staffing of the judiciary with “independent judges”. Although the Court could have at least impeded this process and opened the door to significant changes, it did not take advantage of this opportunity and failed to understand its constitutional obligation. In frames of the so-called “cases of judges”, there was an appeal against the appointment of judges to positions with improper procedures, which threatened the independence of the judiciary, and finally perspective of fair justice in the country. The Constitutional Court initially created the possibility of continuing the unhindered recruitment of the judicial corps with an unhealthy procedure by not suspending the disputed norms, and then, in one case, by deliberately delaying the decision of the case (was waiting for the legislator to adopt the legislative amendments in order to, legally make a decision in favor of the constitutionality of the disputed norms based on them), in the second case, it has significantly damaged this whole process by neglecting the standards set by the Court.
Particularly, in 2016, the Parliament of Georgia adopted a package of dramatic amendments in the legislation on the Constitutional Court. The aim of the so-called “reform” was to ensure the independence and more efficiency of the court activities; however, the main content of the changes clearly indicated the opposite - the legalization of the possibility of political influence on the court and the inevitability of creating a threat to its effectiveness. It is enough to focus on only a few provisions: as a result of the changes, the quorum required for considering the case and recognizing the law as unconstitutional has increased (the plenum was authorized to initially discuss the case and make a decision if 7 out of 9 judges attended the session, instead of 6 judges; in order to recognize the law as unconstitutional, the consent of at least 6 members present at the plenum session was required, instead of the majority of those present); The authority to suspend disputed norms was granted only to the plenum of the Constitutional Court (the case review chamber was deprived of this authority); One member of the Constitutional Court was granted the authority to transfer the case to the plenary session at any stage of the case consideration.
A few hours after the entry into force of the legislative amendments, one of the judges, taking advantage of the said regulation specially created for him, addressed the plenum of the Constitutional Court with petitions, requesting to accept the three cases (the case of Rustavi 2 LLC Broadcasting Company, case of one of the politicians and the so-called “cables case”) for consideration by the plenum. Such activity of the judge was a result of the following intentions – on the one hand, the consideration/decision of these cases would be entrusted to a sufficient number of judges trusted by the government, and on the other hand, the discussion would be delayed. And so it happened: the Constitutional Court plenum accepted all three cases into proceedings. From the very first minute, there was no doubt that the petitions would be unconditionally supported by the appropriate number of judges. The issue of supporting the mentioned motions was decided at the stage of their drafting. As a result, at the plenum, not only the discussion of cases was artificially delayed, but also the prospect of their resolution became very unclear. In all three cases, timely resolution of the case was of special, critical importance for the plaintiffs. In two cases, according to the plaintiffs, their imprisonment was based on unconstitutional provisions. In the case of Rustavi 2 LLC Broadcasting Company, the issue of editorial independence of the media was at stake. Therefore, it was crucial to resolve the issue of the constitutionality of the law to be used by the Supreme Court before making a final decision on the civil dispute (where the said TV company represented the party).
It is significant that two cases still have not been resolved (more than 6 years after the lawsuit was filed). The decision does not even matter to the plaintiffs anymore. In the case of "Broadcasting Company Rustavi 2 LLC", the Constitutional Court made a decision after the decision of the Supreme Court.
Right from the stage of working on the mentioned amendments to the legislation on the Constitutional Court, the real reasons, goals, and their (amendments) clearly unconstitutional content were foreseeable. As a result, most of the amendments were appealed to the Constitutional Court by one-fifth of the MPs (of opposition political parties) and citizens. Their main demand was the suspension of the disputed norms, which, if met, would avoid all the negative consequences that the amendments were intended to cause. Additionally, it was important that by requesting the suspension of the disputed norms, the Constitutional Court was given an additional opportunity to protect its authority, and deal with the legislator’s attempt to paralyze the court.
The majority of judges not only did not support the suspension of the disputed norms but also significantly delayed the consideration/decision of the case. Finally, the court found most of these norms (but not all problematic norms) unconstitutional. “However, this circumstance added even more awkwardness and cynicism to the whole process. Against the background that politicians, authoritative non-governmental organizations, lawyers, and later, the Venice Commission, were loudly speaking about the unhealthy reasons and purpose of amendments in the legislation on the Constitutional Court, as well as the unconstitutional content, from the days of working on the draft law, and in the conditions that the legislative amendments, including, using them by the court itself, immediately led to the results, which were the reason for their adoption, and taking into account how much damage was done to the reputation of the court, the ones who were most concerned about the unconstitutionality of the norms were the last to be convinced, who should have known the best and understood it the earliest.”
The cases mentioned in the article dealt with the question of independence and effectiveness of the judiciary, becoming a kind of catalyst, on one hand, for demonstrating the role and potential contribution of each judge, And, on the other hand, to identify fundamental problems from this point of view. All these cases are accompanied by the dissenting opinions of specific judges, both on the question of suspension of the disputed norms, and on the final decisions. The attempt of judges with dissenting opinions to convince other judges with appropriate arguments to support the beneficial position of human rights and judicial independence, and protecting the authority is visible and compelling.
It is sad that judges supporting freedom are traditionally in the minority, but still, there is hope that their individual positioning is nurturing a small opportunity for the future development of justice and law in general.
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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.
When making a decision on each case, it is not only the task of correctly solving a specific legal case that the judge faces. Each sentence, phrase, or word written by the judge can significantly, even fatally, change peoples’ lives, and sometimes even social and state development trends. Thus, the judge’s decision is much more than just a well-drafted legal document. Therefore, he/she must be able to turn this sometimes breathtaking, frighteningly huge responsibility into an opportunity to take bold steps to protect human rights and take every challenge on this difficult, but undoubtedly very interesting path as a chance to develop himself/herself and the justice.
The efforts of each judge in the service of freedom are essential and equally valuable both in the process of considering and deciding the case individually or together with other judges collegially, however, depending on how correctly he/she understands his/her role and the cost of his/her efforts, the judge’s voice/position in the process can create an opportunity or a dead end.
A proper understanding of the individual role of the judge is especially important in our reality when the court stands at a crossroads. Over the years, with often coordinated efforts of political authorities and court officials, Georgian justice has become the greatest threat to Georgian democracy.
As a result of several waves of legislative reforms, an appointment for unlimited term and/or promotion of those judges (the vast majority), who caused the greatest reputational damage to the judiciary was ensured. The most obvious lustration of the government’s real intentions probably happened in 2019-2020, when people, who were remembered by the public only for flattering decisions of the government, were appointed to the position of judges of the Supreme Court. Even more, those who did not meet the minimum qualification requirements for the Supreme Court judge, among them, did not have a diploma confirming proper legal education.
It is even more alarming that the judges themselves do not feel the real need to improve the system from within, they do not see themselves from the public eye.
Unfortunately, at different times, the Constitutional Court also contributed to the staffing of the judiciary with “independent judges”. Although the Court could have at least impeded this process and opened the door to significant changes, it did not take advantage of this opportunity and failed to understand its constitutional obligation. In frames of the so-called “cases of judges”, there was an appeal against the appointment of judges to positions with improper procedures, which threatened the independence of the judiciary, and finally perspective of fair justice in the country. The Constitutional Court initially created the possibility of continuing the unhindered recruitment of the judicial corps with an unhealthy procedure by not suspending the disputed norms, and then, in one case, by deliberately delaying the decision of the case (was waiting for the legislator to adopt the legislative amendments in order to, legally make a decision in favor of the constitutionality of the disputed norms based on them), in the second case, it has significantly damaged this whole process by neglecting the standards set by the Court.
It is not surprising - the judges making the decisions for the independence of the court, must be independent themselves.Unfortunately, the Constitutional Court (in 2016) did not protect even its own independence with the efforts of some judges, in close coordination with the political authorities, “exchanged” the professional dignity and independence of the institution for personal well-being and specific positions (Chairperson of the Constitutional Court, deputy chairperson, other administrative position, as well as unlimited term appointment as a judge in the Common Courts system and other high positions).
Particularly, in 2016, the Parliament of Georgia adopted a package of dramatic amendments in the legislation on the Constitutional Court. The aim of the so-called “reform” was to ensure the independence and more efficiency of the court activities; however, the main content of the changes clearly indicated the opposite - the legalization of the possibility of political influence on the court and the inevitability of creating a threat to its effectiveness. It is enough to focus on only a few provisions: as a result of the changes, the quorum required for considering the case and recognizing the law as unconstitutional has increased (the plenum was authorized to initially discuss the case and make a decision if 7 out of 9 judges attended the session, instead of 6 judges; in order to recognize the law as unconstitutional, the consent of at least 6 members present at the plenum session was required, instead of the majority of those present); The authority to suspend disputed norms was granted only to the plenum of the Constitutional Court (the case review chamber was deprived of this authority); One member of the Constitutional Court was granted the authority to transfer the case to the plenary session at any stage of the case consideration.
A few hours after the entry into force of the legislative amendments, one of the judges, taking advantage of the said regulation specially created for him, addressed the plenum of the Constitutional Court with petitions, requesting to accept the three cases (the case of Rustavi 2 LLC Broadcasting Company, case of one of the politicians and the so-called “cables case”) for consideration by the plenum. Such activity of the judge was a result of the following intentions – on the one hand, the consideration/decision of these cases would be entrusted to a sufficient number of judges trusted by the government, and on the other hand, the discussion would be delayed. And so it happened: the Constitutional Court plenum accepted all three cases into proceedings. From the very first minute, there was no doubt that the petitions would be unconditionally supported by the appropriate number of judges. The issue of supporting the mentioned motions was decided at the stage of their drafting. As a result, at the plenum, not only the discussion of cases was artificially delayed, but also the prospect of their resolution became very unclear. In all three cases, timely resolution of the case was of special, critical importance for the plaintiffs. In two cases, according to the plaintiffs, their imprisonment was based on unconstitutional provisions. In the case of Rustavi 2 LLC Broadcasting Company, the issue of editorial independence of the media was at stake. Therefore, it was crucial to resolve the issue of the constitutionality of the law to be used by the Supreme Court before making a final decision on the civil dispute (where the said TV company represented the party).
As a result of the “proper exercising” of the political authorities, certain judges took “all necessary measures” to stop the consideration of the cases. Unfortunately, they prioritized not human rights, but a political calendar of the country – having the political context, and consideration of the cases before the 2016 parliamentary elections, no matter how the cases would have been resolved, was perceived as a potential threat by the political authorities.
It is significant that two cases still have not been resolved (more than 6 years after the lawsuit was filed). The decision does not even matter to the plaintiffs anymore. In the case of "Broadcasting Company Rustavi 2 LLC", the Constitutional Court made a decision after the decision of the Supreme Court.
Right from the stage of working on the mentioned amendments to the legislation on the Constitutional Court, the real reasons, goals, and their (amendments) clearly unconstitutional content were foreseeable. As a result, most of the amendments were appealed to the Constitutional Court by one-fifth of the MPs (of opposition political parties) and citizens. Their main demand was the suspension of the disputed norms, which, if met, would avoid all the negative consequences that the amendments were intended to cause. Additionally, it was important that by requesting the suspension of the disputed norms, the Constitutional Court was given an additional opportunity to protect its authority, and deal with the legislator’s attempt to paralyze the court.
Unfortunately, only four out of nine judges supported the suspension of the disputed norms. Instead of finding every possible way to protect the institution’s authority and fundamental human rights, most of the judges, by mutual agreement, chose a formalist approach and in such a manner, found a solution against the suspension of norms. As a result, Constitutional Court, which “needed protection more than ever, did not find enough defenders among judges who could and should have done it.”
The majority of judges not only did not support the suspension of the disputed norms but also significantly delayed the consideration/decision of the case. Finally, the court found most of these norms (but not all problematic norms) unconstitutional. “However, this circumstance added even more awkwardness and cynicism to the whole process. Against the background that politicians, authoritative non-governmental organizations, lawyers, and later, the Venice Commission, were loudly speaking about the unhealthy reasons and purpose of amendments in the legislation on the Constitutional Court, as well as the unconstitutional content, from the days of working on the draft law, and in the conditions that the legislative amendments, including, using them by the court itself, immediately led to the results, which were the reason for their adoption, and taking into account how much damage was done to the reputation of the court, the ones who were most concerned about the unconstitutionality of the norms were the last to be convinced, who should have known the best and understood it the earliest.”
The cases mentioned in the article dealt with the question of independence and effectiveness of the judiciary, becoming a kind of catalyst, on one hand, for demonstrating the role and potential contribution of each judge, And, on the other hand, to identify fundamental problems from this point of view. All these cases are accompanied by the dissenting opinions of specific judges, both on the question of suspension of the disputed norms, and on the final decisions. The attempt of judges with dissenting opinions to convince other judges with appropriate arguments to support the beneficial position of human rights and judicial independence, and protecting the authority is visible and compelling.
It is sad that judges supporting freedom are traditionally in the minority, but still, there is hope that their individual positioning is nurturing a small opportunity for the future development of justice and law in general.
---
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.
