Wednesday, 27 March 2013

Georgian Ministry Of Justice To Alter Judiciary Legislation

Published in Field Reports

by Eka Janashia (03/20/2013 issue of the CACI Analyst)

The Ministry of Justice (MoJ) intends to reform Georgia’s judiciary system through amending the Law on Common Courts and establishing an ad hoc commission in charge of exploring complaints over detected miscarriages of justice since December 2012.


The MoJ’s initiatives are backed by the ruling Georgian Dream coalition (GD) which assumes that the country’s judiciary system remains in hands of President Mikheil Saakashvili, preventing the new government from convicting and sentencing public officials from the previous administration.

On March 16, Justice Minister Tea Tsulukiani met with Supreme Court Chairman Kote Kublashvili and a large group of judges at a round-table to discuss a bill on the creation of a “Temporary State Commission on Studying Miscarriages of Justice.”

The bill says that the commission, involving 15 members for a three-year term, will be authorized to review “grave” or “especially grave” crimes, drawing on the applications filed by persons who allegedly were unfairly convicted under the former government. The commission will also examine civil and administrative cases deriving from disputes worth over GEL 100,000 and inspect cases that were settled through plea bargaining. When the commission reveals a miscarriage of justice, the case is reopened and courts are to review it on the basis of new evidence.

Tsulukiani said that miscarriages have taken place not because of faults on the judiciary’s part, but due to the fact that the latter was under extreme pressure from the prosecution. Kublashvili, a long-lasting ally of the president, in turn stressed that mistakes made in the past should not lead to new mistakes. If the commission starts to revise already delivered court verdicts, especially those related to private property, it would certainly undermine private property rights as a cornerstone of democracy and destabilize the country, he said.

Before the March initiative, the MoJ proposed another package of legislative amendments to the Law on Common Courts in December 2012, envisaging a shift in the composition of the High Council of Justice (HCoJ) authorized to oversee the judicial system, appoint and dismiss judges, and initiate disciplinary proceedings against them.

Kublashvili currently chairs both the Supreme Court and the HCoJ simultaneously. The latter consists of 15 members, two of which are appointed by the President, four are MPs confirmed by the parliament and the remaining eight seats go to judges nominated by the Chairman and elected by the Judicial Conference - a self-governing body of judges which assembles at least once a year.

However, the proposed legislative package strips the Chairman of the exclusive right to nominate a candidate and confers it to every judge. Moreover, it deprives the president of the power to appoint two HCoJ members and grants representatives of legal academic and NGO circles the opportunity to take a total of six seats which are presently occupied by MPs and president appointees. Their candidacies, in turn, should be approved by the parliament.

According to the bill, the remaining eight seats will still be taken by judges but the method of their nomination and election will be changed. The most contentious provision of the bill, nevertheless, applies to the termination of authority of the sitting members of the HCoJ meaning that as soon as new members are elected under the amended Law, the mandates of sitting members will cease.

The Council of Europe’s advisory body for legal affairs, the Venice Commission (VC) hailed the proposed legislative amendments but emphasized in its recommendations that “removing all members of the Council prematurely would set a precedent whereby any incoming government or any new Parliament, which did not approve of either the composition or the membership of the Council could terminate its existence early and replace it with a new Council.” Conspicuously, the VC advised MoJ to exclude the entire provision. Tsulukiani recently stated, however, that the composition of HCoJ is so defective and undemocratic that it might be completely renewed, apparently indicating that the MoJ will not take the VC’s recommendation into consideration.

Tsulukiani stated in the Rustavi 2 talk-show “Position” on January 31, that the GD electorate’s major demand is the restoration of justice though the government cannot carry out this task: “I require the detention [of public officials] but Kublashvili released them.” Tsulukiani said there are around 5 judges who are responsible for unfair decisions, and even listed their names with the motivation that people should know who impedes their legitimate demand for restored justice.

Whereas the amendments to the Law on Common Courts and the establishment of the ad hoc commission may be assessed as an attempt to bring Georgian legislation “close to European standards,” given the post-election context, the initiatives also likely have political motivations. The most important gain for the government is undoubtedly the election of new HCoJ members resulting in the premature dismissal of sitting ones, if the parliament approves the bill. At a more fundamental level, the initiatives aim to undercut Kublashvili’s influence over court decisions by shifting the HCoJ’s composition. If the GD achieves this goal, many more Saakashvili-era high officials will likely be convicted and sentenced.

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