In order to comply with the 12-point recommendations of the European Union, on June 13, the Parliament adopted amendments regarding the judicial system. In the following article, we will assess the extent to which the adopted changes are in line with the considerations of the Venice Commission, as required by the European Union, and, therefore, to what extent this law responds to the recommendations issued by the European Commission in 2022.
Why should I be interested in this topic?
Obtaining the status of a candidate country for Georgia depends on how it fulfills the 12 priorities set forth by the European Commission. Among these preconditions, the third recommendation is concerning the creation of an independent judiciary and is quite extensive. We should know what the Parliament considered and what it overlooked when passing the law.
Our comment
The European Union's expectations regarding the reform of the Georgian judiciary are much higher than the law adopted on June 13. The extensive recommendation issued by the European Commission is due to the degree of challenges that were confirmed to exist by the recent opinion of the Venice Commission.
What should we know?
The European Commission demands real independence of the entire chain of the judiciary in Georgia. The recommendations issued in 2022 concerning the judiciary were as follows:
- Approving a new strategy and action plan for the reform of the judiciary;
- Resolving the problems concerning nominating the judges;
- Fundamental reform of the High Council of Justice and appointment of members of the Council.
The reform strategy and action plan were formally approved without real participation and only according to the majority's liking. 3 out of 5 members were elected to the council, and several members of the opposition, with an obscure motive, supported the candidates preferred by the government.
As for the implementation of other recommendations of the European Commission, the Venice Commission reviewed the draft law prepared by the majority and published its opinion on March 14.
According to the opinion, the amendments were not sufficient for a fundamental reform and it did not fully take into account the recommendations of the Venice Commission of recent years. Therefore, that version of the draft law did not adequately respond to the requirements of the European Commission. Following that, the Parliament started updating the draft law according to the Venice Commission's considerations.
Briefly about the final version:
The Parliament designated and specified the evaluation criteria for a judge candidate and a judge appointed for a 3-year term. It differently regulated providing judicial acts in the form of public information and the issues of career and disciplinary proceedings towards judges.
Which recommendations of the Venice Commission did the Parliament (not) take into account?
| Issue | Opinion of the Venice Commission on the draft law | What did the parliament change? | What remained problematic? |
| Access to court decisions | Simplification of a complex and long process. | From 1 January 2024:
- Upon entering into legal force, decisions will be provided in accordance with the general rules established for issuing public information; - Depersonalized text will be published on the web-page designated for searching for decisions. |
From 1 January 2024:
- The decision will neither be provided nor published until it enters into legal force. And the decision comes into force after the expiration of the appeal period or the end of the final review, which can even take several years. - Today, the court is required to publish the full text on its website, but it fails to do so. From January 1, 2024, it will be required to publish not the full text, but the depersonalized text of the legally effective decision. |
| Secondment of judges | - Setting forth clear and narrow grounds for secondment;
- Reduction of duration; - Decreasing the geographical area of secondment |
- “Another objective circumstance” for secondment was clarified, and it is now related to the interest of the proper implementation of justice;
- Secondment bonus was introduced, not less than 10% of the salary. |
The duration of secondment and the wide geographical area were not reduced. |
| - Withdrawal of a judge from hearing a case under disciplinary proceedings;
- Disbursement of salary and bonuses |
- Specifying broad and vague criteria;
- Maintaining the salary. |
- Commencement of disciplinary proceedings will no longer be grounds for removal from the case;
- The restriction on the payment of salary was revoked. |
|
| Grounds for disciplinary misconduct | Removing or clarifying the concept of “political neutrality”. | An analytical, academic discussion of a judge on justice reform or legislative change will not be considered a violation of “political neutrality”. | The possibility that the judge's statement about the general situation in the court could be considered a violation of political neutrality remains. |
| Commencement of disciplinary proceedings | Informing the judge about the commencement of disciplinary proceedings against them. | The moment of commencement of disciplinary proceedings has been specified: the decision to start the proceedings and to get the explanation from a judge. | The law does not specify the time/process for notifying the judge of about this decision. |
| Protection of a candidate from discrimination in the process of selection of candidates for the position of Supreme Court judge | Revoking the vague stipulation that the action of the council member “threatened the independence of the judiciary”. | This note is no longer found in the draft law. | |
| Re-voting for a judge who could not be appointed to a vacant position | Clarification that the candidate must meet the qualification requirements for re-voting. | It was determined that the candidate for the position of a judge must meet the criteria required for appointment to the position of a judge set forth under the law. |
Summary
In the law reworked after the Venice Commission opinion, some, mostly non-essential, issues were clarified, while more significant issues remained unchanged, for example:
- The rule for adopting decisions in the Council, which does not ensure sufficient involvement of non-judge members;
- Low quorum of council members required to commence disciplinary prosecution of judges - simple majority;
- Possibility to elect a Council member twice in a row;
- 10-year term of office of the chairman of the Supreme Court - the majority refused to reduce it;
- The threshold of age and professional experience of a judge - the Venice Commission supported the increase of such limit;
It is even more significant to note that when passing these amendments the Parliament did not discuss and attack one of the main challenges today's judiciary faces, corporatism.
The article was prepared by the Komentari with the support of the USAID Rule of Law Program funded by the United States Agency for International Development (USAID) through the East-West Management Institute (EWMI). The views expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of USAID and EWMI.
