Considering the crises, undue influence, informal authority and low public trust in the judicial system, it is essential to implement judicial reforms without any unjustified delays. The ‘third wave’ of reforms in the justice system has become a subject of disagreement, confrontation and political deals, which has delayed parliamentary hearings and the adoption of the package of legislative amendments. The reform process was also accompanied by a consolidation of judges, leading to increased resistance and confrontation with the initiators of the draft law.
The changes and concessions made during the third wave of reforms over the past several months have clearly demonstrated the inconsistent and conflicting nature of the relationship between the judiciary and the government. This was also made evident by the analysis of the process of the legislative amendments.
Draft laws within the third wave of reforms have undergone substantial changes, which were in some cases based on backstage agreements made during closed meetings. Some norms were revised, including the removal of several positive provisions. This ultimately resulted in the final draft law being substantially different from the original version. Even though the initiatives included in the final version of the draft law will not cause any substantial breakthroughs in and improvements of the judicial system (for example, countering the unhealthy relationships and influence that currently exist in the judicial system), the draft law does contain several progressive provisions that must be enforced immediately. In addition, the discussions of the third wave of reforms have revealed some new challenges faced by the judiciary and individual judges. Therefore, the judicial system remains in critical need of substantial changes.
The Role of the Venice Commission
On October 14, 2014, the Venice Commission positively evaluated some of the changes proposed as part of the third wave of reforms. However, it also stated that the additional guarantees are needed for the full respect of the principles of independence and irremovability of judges. A part of the recommendations and opinions of the Venice Commission were shared by the Ministry of Justice and reflected in the package of legislative amendments. However, the Venice Commission and the Directorate expressed concern that despite their harsh criticism based on the principle of judicial independence the provision on appointing judges with a probationary period was not removed. It should also be noted that the version of the draft law that was evaluated by the Venice Commission was not final, since further changes were made to the document later.
The Role of the Chairperson of the Supreme Court
Appointment of a new chairperson of the Supreme Court was important in terms of further changes to the draft laws. Since the spring of 2015, Nino Gvenetadze initiated the addition of the following provisions to the package of legislative amendments:
- Creation of an Independent Inspector service (the judges perceived this as a punitive mechanism and strongly opposed this initiative).
- Making court decisions public on the website.
- Election of non-judge members of the High Council of Justice by a majority of the full composition of the Parliament.
- Creation of a Court Management Department
- Introduction of the principle of equal and random assignment during electronic distribution of cases among judges.
Many of the judges opposed some of the above changes from the very beginning. This exacerbated the situation in the judiciary and resulted in further mobilization of certain groups of judges. In some cases, this mobilization was used against the progressive initiatives as well. For example, some of the influential groups of judges did not openly support the reform of case assignment.
The Role of the Ministry of Justice
The October 2015 meeting between the judges and the Minister of Justice was important for the third wave of reforms, where the Minister presented the proposed legislative amendments and heard the opinions of the judges. During the meeting, which was not attended by the chairperson of the Supreme Court, the judges once again stated that a part of the proposed amendments were unacceptable to them. Following this meeting, the Ministry of Justice, as the author of the draft law, reviewed its position regarding a number of key issues: the requirement of 2/3 of the full composition during disciplinary proceedings would remain unchanged; the position of a Deputy Court Chairperson would not be abolished; the 3 year probationary period would be abolished for judges with 10 years of service; the judicial system would not be ready to introduce electronic case distribution by January 2016, indicating that the reform would be postponed.
The October 19 meeting, where judges openly objected to the Supreme Court chairperson’s ideas in the package of legislative amendments, halted the parliamentary hearings of the third wave of judicial reforms and postponed it indefinitely.
Discussions on the legislative amendments resumed on February 2, 2016, at a conference organized by the High Council of Justice, during which the Minister of Justice spoke about the third wave of reforms and stated that the reform must come to its logical conclusion by being adopted into law.
Speaking about the reasons behind the delay of the third wave of reforms during a television interview, the Minister of Justice stated that the delay was caused by the Supreme Court chairperson’s decision to add new provisions to the draft law (Independent Inspector, Management Department, abolishing the position of a Deputy Court Chairperson), which caused discontent among judges, followed by a year-long delay in the reform.
The Role of the Secretary of the High Council of Justice
Apart from the Ministry of Justice and the Supreme Court, the Secretary of the High Council of Justice Levan Murusidze also played an active role in the third wave of judicial reforms over the past few months. Murusidze has close ties with the executive government reflected in his communication with the heads of the government. In 2013, former Prime Minister Bidzina Ivanishvili referred to the Secretary of the High Council of Justice as a guarantee of the independence of judges. In July 2015, Murusidze met with then Prime Minister Irakli Gharibashvili without any other Council members or representatives of the judiciary. This meeting preceded the XIV (extraordinary) Conference of Judges, where a new member of the High Council of Justice was to be elected. Two candidates were nominated: Eka Gasitashvili, a newly appointed Supreme Court judge, and Levan Tevzadze, who was backed by Levan Murusidze. The Conference elected the latter.
Legislative amendments of the third wave of justice reform were registered in the Parliament in July 2015. The Human Rights and Civil Integration Committee and the Legal Affairs Committee held the first hearings of the amendments on September 24 and October 7, 2015, respectively.
Hearings were resumed 5 months later on February 19, 2016, when the Parliament adopted the draft law on the first hearing at the plenary session.
This was followed by the second hearing of the draft law by the Legal Affairs Committee, which resulted in a number of significant changes being made to the document. Specifically: based on the initiator’s proposal, the minimum number of judges of the Supreme Court was set at 16 and the Supreme Court Plenum was given the authority to further increase the number of judges. Based on Gedevan Popkhadze’s initiative, instead of being elected, chairpersons of the courts would still be appointed by the High Council of Justice. Based on the initiator’s proposal, a scoring system for judicial candidates was added to the draft law.
Prior to the second hearing at the plenary session of the Parliament the draft law was amended to once again include a 3 year probationary period for all judges, regardless of the length of their service. According to the Deputy Minister of Justice Alexandre Baramidze, this was a direct initiative of the Prime Minister. This fact once again points to the political importance of the issue. Initially, the decision to exempt long serving judges from the 3-year probationary period was made behind closed doors based on promises as part of a political deal. The decision to break this deal by extending the probationary period to all judges was also political in nature.
In general, it was common for the draft laws of the third wave of reforms to be amended (provisions added or removed) without proper consideration and without publicly announced justification. Lack of transparency was also a problem – in some cases the amended versions of the draft laws were not publicly available.
The third wave of judicial reforms, which was launched in the spring of 2014, has been significantly hindered by political processes and has yet to be adopted into law as of spring of 2016. Even though the proposed draft laws do not fully respond to the challenges facing the judicial system, the reform does eliminate some shortcomings and improve the regulation of certain issues. The obstacles that led to the unreasonable delay of the third wave of reforms confirm the negative consequences of the undue influence on the judiciary, which stands in the way of resolving the current crisis and increasing judicial independence.