Within the framework of the "third wave" of judicial reform, a new rule for the distribution of cases among judges was developed. The novelty was the distribution of cases based on the principle of randomness, through an electronic system. This approach should ensure equal and objective distribution of cases among judges and create preconditions for their impartial review. That is why local and international organizations have assessed it as a progressive legislative measure.
The rule was approved by the High Council of Justice of Georgia in 2017 by the decision of May 1 N1/56. As a result of the amendment, the authority to make decisions on the distribution of cases was restricted to court chairpersons. According to the Venice Commission, the authority of the chairman of the court to distribute cases among judges contains elements of discretion. There is a risk of misusing it as an instrument to influence the judge. For example, overloading a judge with a large number of cases or transferring only cases of small importance to a judge.1 the Venice Commission and the Directorate emphasized the importance of regulating the system of distribution of cases by the organic law "on common courts".2 despite the recommendations of the Venice Commission, the new rule of distribution of cases was determined not by the organic law, but by the act of the High Council of Justice.
Electronically, cases are distributed according to the randomization principle, based on the number generation algorithm3, to automatically selected judges of the relevant collegium/ chamber/narrow specialization.4
According to the organic law, in a district (city) court with an extraordinary intensity of proceedings, where there are more than two judges, the High Council of justice can exercise a narrower specialization of judges or create specialized judicial collegues.5 in such courts, cases are distributed electronically among the judges of the respective collegium/narrow specialization.6 and in those Raonic (city) courts where there are no collegiates, the cases are distributed among the judges of the respective specialization.7
The organic law also indicates that in case of temporary interruption of the electronic system of automatic distribution of cases, it is permissible to distribute cases among judges without an electronic system, which means the order of entry of cases and their distribution, as well as according to the alphabetical order of judges.
The rule of electronic distribution of cases defined by the High Council of Justice provides for a number of conditions in which the distribution of cases is objectively impossible. Circumstances that exclude the distribution of cases through the electronic system:
The High Council of Justice has additionally defined an extensive list of exceptional cases in civil, administrative, and criminal specializations, which are not distributed by randomization principle and are handed over to the judge issuing the decision/ruling.9
There are 14 exceptions for civil and administrative cases, and 7 for criminal cases.
This is added to the cases provided for by several articles of the Civil Procedure Code and the Criminal Procedure Code when cases are distributed not in line with the randomization principle, but to the judge provided for by the legislation.10
There are certain circumstances when the distribution of cases to a particular judge stops, therefore, the number of judges among whom the cases should be distributed decreases.
The High Council of Justice does not define what is meant by "special objective circumstances". The term" objective circumstances " is such a broad and abstract concept that it is ambiguous in the presence of what circumstances the distribution of cases through an electronic system should be stopped.
Electronic distribution of cases is an important and positive part of the ongoing reforms in the judicial system in recent years, the main goal of which is a fair distribution of cases submitted to the court, an equal workload for the judges, ensuring impartial review of cases and increasing the degree of individual independence of judges. However, it is possible to achieve the aforementioned goals only in case of proper functioning of the system: when the possibility of unfair interference in the system and control over the distribution of cases is reduced to a minimum, and the distribution of cases without an electronic system is allowed as a rare exception.
In parallel with the electronic distribution rule, there are several mechanisms established at the legislative level or in practice that prevent the use of the electronic distribution system.
For many years, the insufficient number of judges has been an unresolved problem in the judicial system. There is only one judge of specific specialization in several courts, which makes it impossible to observe the principle of randomness in the distribution of cases. Moreover, in some courts, there is only one judge who will see cases in all specializations.
As mentioned above, in those courts, whereby the decision of the High Council of Justice a narrower specialization of judges was carried out or specialized judicial collegiums were created, cases are distributed among the judges of the respective collegiate/narrow specialization. According to the narrow specialization, the chairman of the court shall single-handedly distribute judges. Such a rule preserves the possibility of influencing the process of distribution of cases and reduces the degree of individual independence of judges.
According to the general rule, the schedule of duty in court is predetermined, however, the chairman of the relevant court may, at any time, unilaterally make a change in the established rule. In addition, the decision N1/56 of the High Council of Justice states that the number of cases distributed in such cases is not taken into account. (Article 1/56 of Decision 4, paragraph 12).
As mentioned above, the High Council of Justice has defined a wide list of cases of each specialization (civil, administrative, criminal), in which cases the cases are not distributed electronically, according to the randomization principle, which significantly reduces the total number of cases to be distributed electronically.
The wide range of factors hindering the application of the electronic rule of distribution of cases and the possibility of distribution of cases bypassing it, logically raises the question: is it a myth or reality to distribute cases electronically in the judicial system of Georgia?!
According to the recommendation of the Venice Commission, the organic law’ clearly’ and’ in detail "defines the rules of electronic distribution of cases and eliminates the existing space for its violations," which can undermine the internal independence of the judiciary."14
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