Developing a new system of case distribution in common courts is one of the most important reforms of recent years. This reform has to respond to the number of challenges with respect to impartiality and independence of the court. The new rule of case distribution between judges should, first of all, ensure impartial review of cases, protection of the trial process from external interference, timely and effective execution of justice and fair distribution of labour among judges.
The new system of electronic distribution of cases is based on random and equal distribution of cases, filed to the court, between the judges. This rule was developed within the frames of ‘Third Wave’ of justice reform with the purpose to redress deficiencies in existing legislation.
At the stage of discussion of the draft law, the Venice Commission positively assessed the initiative of case distribution via electronic system, however, it should be noted that at the initial stage of the reform, as well as subsequently, influential groups of judges did not explicitly support the initiative.[i] Due to the diversity of opinions on this as well as other matters, implementing number of positive changes under the ‘Third Wave’ reform was significantly delayed.
Additionally, despite the fact that the new rule of case distribution is an important step forward, there are number of issues that remain open at the legislative level, settling of which was entrusted to the High Council of Justice by the Parliament.
How are cases distributed in a pilot mode
Date of full enactment of the rule of court case distribution via electronic system throughout Georgia is defined by the law as December 31st, 2017. However, starting from July 1st, 2017 the new rule has been activated in a pilot mode in Rustavi City Court. [ii]
According to the information provided by the Rustavi city court to EMC,[iii] the total number of cases in criminal, civil, administrative and administrative offenses’ categories, that were filed starting from the activation of the rule and including September 21st, 2017, amount to 987.
Within the same period, the chairperson of the court assigned 7 cases by the sequential order. According to the information of Rustavi City Court[iv], out of the 7 cases that were assigned without the usage of electronic programme, 2 were distributed by the chairman according to the pre-approved ordinance of judges, and the other 5 were distributed considering the rotation of judges. According to the court, in such instances, cases are usually distributed as per the resolution, which constitutes a part of the case.
The following were distributed according to sequential rule.
- One motion on the request of information;
- One motion on the usage of preventive measures;
- Two motions on the legal recognition of removal;
- One motion on the approval of preventive measures;
- Two criminal cases
As for the delays in the distribution of cases, up to 25 of such were observed from July 1st till September 21st, the longest of which took place on August 5th and September 8th of 2017[v].
EMC requested copies of delay reports, drawn up by the chairman of the court, from the High Council of Justice. In should be noted that, according to the report on the delay of August 5th provided to the High Council of Justice[vi], the delay period was 09:00 – 13:40, while according to the information provided by Rustavi City Court to EMC, the delay period lasted from 09:00 to 16:50[vii].
EMC has also requested copies of report cards prepared by the chairman of the court after the temporary delay was eliminated. The request was denied on the grounds of content of personal information. The report card is the very document that should contain information on the cases that were distributed in a sequential rule by the chairman during the delay, thus, the refusal of the High Council of Justice on delivering copies, impedes the monitoring of sequential distribution and makes the process unavailable to the public.
What regulations are considered under the rule on case distribution approved by the Council
By the decision of May 1, 2017[viii] and subsequent amendments of July 24, 2017[ix], The High Council of Justice of Georgia approved the procedure for automatic electronic distribution of cases in common courts of Georgia.
According to the general rule, cases between judges are distributed according to the principle of random distribution, on the bases on algorithm for generating numbers. As for the exceptions from the general rule, according to the decision of the Council, the principle of random distribution does not apply to the cases when:
- There is only one judge of the relevant field of expertise in a district (city) court;
- The lawsuit is refiled due to the fact that it was initially refused to be accepted into proceedings or was never been considered
- The complaint has been filed on the verdict on claim provision
- Relevant application has been filed regarding the impropriety or apparent arithmetical error in the decision etc[x].
Cases in common courts are distributed according to the field of expertise of judges; The document reflecting the results of selection is attached to the case[xi].
In the district (city) courts, where the court collegiums are established or where the High Council of Justice of Georgia has determined narrow fields of expertise for the judges, cases are distributed among judges of relevant collegium/narrow field of expertise[xii]. In district (city) courts where there are no such collegiums, cases are distributed among judges of the relevant field of expertise[xiii].
It is problematic, that according to the regulation, chairman of the court determines the composition of the collegium for the collegial discussion of a case in the district (city) courts, despite the fact that the necessary participation in the collegium of the original judge reviewing the case is ensured by the rule[xiv]. This record is one of the results of July 24 amendment. According to the initial edition, electronic system should have ensured the selection of necessary quantity of judges for the collegial discussion of cases in district (city) courts[xv].
In case of collegial discussion of the case in appellate and cassation courts, the case is distributed to the chairman/rapporteur judge and the relevant collegium of this judge[xvi]. This matter was also regulated differently in the first edition of the decision approved by the Council. More specifically, the case was to be distributed to the chairman/rapporteur judge, while the electronic system should have additionally determined the selection of necessary number of judges from the relevant collegium/chamber[xvii].
The electronics system of case distribution should ensure not only the random but also feasibly equal distribution of cases. According to the rule developed by the High Council of Justice, the system tracks the average number of distributed cases, number of cases distributed to each judge, the number generated as a result of random selection and then logs all these parameters. The difference between the number of cases electronically allocated to the judges of the relevant field of expertise should not exceed three[xviii]. It is problematic that this rule does not consider fair and objective principle for determining the case load[xix] and bases the equality of distribution on a quantitative data only.
What powers remain under the chief Justice of the Court
According to the rule approved by the High council of Justice, the chairman of the court is able to track the number of cases distributed to each judge[xx]. Additionally, when electronic system is delayed, the chairman is also entitled to allocate cases according to the sequential rule.
According to the general rule, the Chairman of the court or the chairman of the collegium/chamber is only entitled to allocate cases if the duration of electronic system delay exceeds two days. The rule of case distribution also considers exceptional cases when the chairman is entitled to allocate cases according to the rule of sequence. To specify, the chairman of the court or the chairman of collegium/chamber is entitled to sequentially allocate cases of administrative offense that need to be considered immediately or cases for which the consideration period is either 24 or 48 hours[xxi], if the duration of electronic system delay exceeds 3 hours[xxii].
Despite the fact, as a result of the amendment of July 24th , the chairman of collegium/chamber is now also entitled to the right of sequential distribution along with the chairman of the court, the rule does not stipulate on when exactly are they able to use the above authority.
The record of transitional provisions of the rule of case distribution is problematic and vague. According to it, in case of any deficiencies in electronic system, not foreseen by the regulation, the chairman of the court is entitled to allocate cases by the sequential principal[xxiii].
The most problematic and noteworthy issue in the new model of case distribution is the authority of the chairman to determine the composition of judges in a narrow fields of expertise (groups created according to thematic/procedural stages). Even though the creation of narrow thematic/procedural fields of expertise is determined by the Council itself, the chairman personally decides on[xxiv] the composition of judges in narrow fields of expertise and this generates real risks to influence the case distribution process. The program does allocate cases among the judges of narrow field of expertise but only the chairman decides who specifically will be representing this field of expertise. This problem is aggravated by the fact the there are no formal procedure and stages set out by the law for the distribution of judges among narrow groups. Thus, this very authority of the chairman remains as one of the main challenges of the new rule of case distribution.
What happens when the electronic system is delayed
As noted already, if the system delay exceeds 2days and 3 hours, in exceptional instances, cases are distributed according to the sequential rule by the chairman of the court or the chairman of collegium/chamber.
According to the rule approved by the High Council of Justice, the chairman of the court has to notify the High Council of Justice as well as the Department of Common Courts when the system delay occurs so that they can ensure the elimination of a temporary delay. The temporary delay is registered by the relevant record[xxv]. According to the copies received from the High Council of Justice, Rustavi City Court Registered a delay records in case of both – 2-day as well as a 3-hour delay.
The temporary delay in Electronic System is eliminated by the Department of Common Courts, that shall submit the information to the High Council of Justice and the chairman of the relevant court.[xxvi]
After the temporary delay is eliminated, the chairman appeals to the High Council of Justice by a report card including information on the cases that were distributed by him during this period[xxvii].
Procedure approved by the Council does not determine specific terms or content of the report card and, as mentioned previously, copies of report cards are not available to interested parties. After informing the High Council of Justice, the chairman has to record sequentially distributed cases in the system with the following note: ‘without electronic registration’.
What Issues should be considered in order to improve the procedure of case distribution
According to the recommendation by the Venice Commission, the Law of Georgia on Common Courts should have specified detailed rules for the functioning of electronic system, as well as principles that should be activated during the temporary delay of the system[xxviii]. Local and international organizations have also recommended further specification of the issue. The main motivation under this recommendation was for the legislator to determine actual content and scale of the reform and leave only the regulation of matters necessary for everyday practicing of the reform to the competence of the Council and chairman of individual courts. Unfortunately, the legislator avoided to regulate matters in a detailed, clear, and distinct manner and have only reflected the general principle in the legislation, while the regulation of number of important issues were entrusted to the High Council of Justice.
Taking into account legislative acts on the random and equal distribution of cases issued by the Parliament, the High Council of Justice, and the chairman of the court, as well as the observation of the pilot regime, issues that need improvement in order to sophisticate the process and protect the court activities from internal and external influences can already be identified. In this process, it is important to focus on the following issues:
- Rules to be used during the delay should be more distinctly considered in the legislation;
- It is noteworthy, that the current rule on sequential distribution is defective and cannot ensure effective protection of the process from manipulation and artificial interference. However, this rule is the one that is referred to for the case distribution in case of the delay in electronic system;
- Despite the criticism on the broad authorities of chairmen, the new rule has failed to minimize the role of chairman in the process of case distribution. Function preserved by the chairman to personally allocate judges into narrow fields of expertise is particularly problematic;
- Despite the fact that a heavy workload of judges remains as one of the main challenges of judicial system, current new rule of case distribution does not include a fair and objective principle of caseload to ensure equal distribution of cases;
- Report cards written by the chairmen are not available to interested parties.