Why should I be interested in this topic?

Self-organization of judges is a significant resource in the fight for judicial independence. It is, however, extremely rare in Georgia to see examples of real and independent self-organization, because the groups in power oppose and weaken this idea from the very beginning. It is crucial to start a discussion on this topic and look for the forms and experiences of judges' association.

Our comment 

The crisis of independence of the judiciary is a problem of a political nature. This means that without changing the existing political system we should not have expectations of creating a better judiciary. Besides systemic changes, it is necessary to unite judges around the idea of judicial independence.

Such a union should be based on values and not on increasing personal or clan influence. Its purpose should be to protect the independence of a judge, to increase solidarity towards judges oppressed by the system, and to demand creating a decent work environment. To achieve this, it is necessary to find new forms of self-organization of judges. Establishing a union of judges can be one of these forms.

What are the ways to unite judges in Georgia?

There are several forms to unite judges, for example, creating an association or joining a trade union of judges. However, in Georgia, there is only experience of establishing associations.

The initiative to create associations, or then the power to manage them and define their policies, is usually in the hands of influential judges. Following the parliamentary elections of 2012, there was an attempt to organize some of the judges (excluding the influential judges) under an alternative association. A new association was established, however, due to various factors, it soon ceased to exist.

What is the international experience?

The judiciary is one of the branches of the government and, naturally, a judge is different from a public servant or a person employed in the private sector. However, a number of sources indicate that, like those mentioned above, judges can act collectively, and join associations and unions. Restrictions concerning association do not apply to judges.

Associations of judges are a common form of organization. Establishing trade unions mainly depends on the countries' legal systems and traditions. In some contexts, joining a union for judges has historically been considered detrimental due to the strong politicization (affiliation with parties) of trade unions in these countries. For example, in Great Britain, the close relationship between the Labor Party and trade unions was considered to be such an occasion. However, this approach has changed in recent years.

The different experiences of establishing trade unions are also related to the peculiarities of the appointment of judges and the organization of courts. An example is the Swiss system, which unites dozens of courts that do not have any close connections.

In recent years, the outlook of international organizations on the possibility of joining unions of judges has become more and more apparent. This is attributed to the desacralization of the judiciary, that is, the decline of mysticism and emphasis on civil nature. A sign of this is the creation of judges' unions in countries where it has traditionally been approached cautiously (for example, Great Britain).

In more details:

According to the International Labor Organization (ILO), the restriction imposed by domestic legislation regarding becoming a member of a trade union for judges and prosecutors is contrary to international labor conventions. The UN Special Rapporteur also notes that judges have the right to be members of a trade union or non-governmental organization.

Unions of judges in European countries:

• In France, the Association of Judges was founded in 1968 and was soon transformed into a trade union of judges. Today, it holds the same legal status as a trade union created in any other field. Judges of France also have experience of protests and strikes;
• In Italy, the unions of judges were established in the 1960s;
• In some countries, the purpose of protecting the judges’ professional interests has been integrated by the associations. For example, in Germany, there are no trade unions of judges. However, there is one association with the longest history that incorporates trade union functions;
• The constitution of Spain prohibits serving judges and prosecutors from joining a trade union. This prohibition historically stemmed from the view that unionization was unethical and led to the politicization of judges.  In Spain, creating an association of judges is allowed. Moreover, it is interesting to note that the Spanish judiciary also has examples of judges' strikes;
• In 2023, the UK trade union began accepting judicial members. 

Why a trade union?

Even though judges' associations and unions are driven by more or less similar goals, the trade union has several main advantages, which in Georgia means the following:

• Resources - guarantees, mechanisms of influence on the processes and working resources of trade unions may exceed the resources of associations;
• Nature - a trade union is by essence in opposition to judges holding administrative positions, chairpersons, members of the Council of Justice, or in other words to that influential group that holds unfair privileges and benefits within the court system and has also political support;
• Experience - in Georgia, there is a long history of judges' associations, and we can say that influential judges have always been able to gain control over this form of organization. Naturally, this risk is present also in the case of unions. However, as noted above, the essence of a trade union lies precisely in the fight against the privileges of influential groups.

What would change if a union existed?

If a union of judges independent from the influential group of judges existed in Georgia today, it would speak publicly about:

• the unfair division of labor within the court;
• the unjustified privileges of judges on administrative positions;
• the unfair distribution of salaries and bonuses;
• the necessity of representation of ordinary judges in collegial bodies, instead of judges holding administrative positions;
• the formal and informal role of court chairpersons, on the need to limit their powers;
• the need to elect chairpersons of their courts by judges;
• the groundlessness of disciplinary proceedings against judges who have different opinions;
• the unfair treatment of the judges expelled from the system due to their resistance;
• cases of pressure on judges;

Union of judges:

• would protect the interests of a judge during the punitive secondment or demotion;
• would create a judges' support fund and assisted judges expelled from the system; 
• would provide professional legal assistance to judges under persecution; 
• would protect the independence of the judiciary during such detrimental legislative amendments as, for example, the Parliament passed in 2021; 
• would create an experience of healthy communication with the public and professional groups.

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.