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Venice Commission Adopts Opinion on December 2021 Amendments to Organic Law on Common Courts

By Natalia Kochiashvili
Thursday, June 23, 2022
The Venice Commission issued a report on June 20 evaluating the amendments to the Law on Common Courts of December 30, 2021.

In the last bit of the document the Commission underlines that it remains at the disposal of the Georgian authorities for further assistance in this matter.

The Venice Commission notes that, while the formal accelerated legislative procedure appears to have been respected, it regrets that the adoption of the December 2021 amendments to the Organic Law on Common Courts of Georgia was done with excessive haste, lacked transparency as to its motives and aims and was conducted without inclusive and effective consultations.

According to the Opinion, democratic law-making is not a formal concept and the Venice Commission is always critical of a rushed adoption of acts of Parliament, regulating important aspects of the legal order, without normal consultations with the opposition, experts or civil society.

Commission underlines that the combined effect of a rushed adoption of the 2021 Amendments and their introduction of an increase in the powers of the HCoJ to second/transfer judges without their consent, and the new and vague grounds for disciplinary misconduct and the suspension of a judge’s salary in the case of a disciplinary investigation – may in the specific context of Georgia create a chilling effect on judges’ freedom of expression and internal judicial independence.

The Venice Commission therefore made the following 5 recommendations as regards the 2021 Amendments:

Reallocation of judges: It should be clarified that a judicial candidate appointed in the second round must fulfil all the requirements of the specific vacancy, e.g., specialisation requirements.

Secondment or transfer of judges: the secondment of judges against their will should only be possible in exceptional cases and justified by a legitimate objective. Clear and narrow criteria as well as shorter time periods for secondment should be provided. A random or objective procedure with a geographical limitation should be reintroduced.

Recusal of district court and court of appeal judges from trial:

• Given the severity of recusal, the criterion “reasonable belief, that remaining on this position he/she will prevent disciplinary proceedings and/or recovery of damages caused by disciplinary misconduct, and/or will continue violation of labour discipline.” appears too vague and broad.
• The time limits for filing an appeal (3 days) and reviewing the appeal (5 days) seem to be too short to allow the judge sufficient time to present his or her case before the Disciplinary Chamber.
• The salary of a judge should not be suspended before any disciplinary offence is proven and a decision as to disciplinary liability is made.

Disciplinary liability of judges: In conformity with the Venice Commission’s recommendation in its 2014 Opinion, the 2021 Amendments lower the majority requirement from two-thirds majority to absolute majority for the HCoJ’s decisions on “disciplinary matters”. However, the Venice Commission stresses that persistent and widespread claims of corporatism and self-interest in the HCoJ damages the public trust in the judiciary and should be taken seriously.

New grounds for disciplinary misconduct: If the wording “political neutrality” is to be maintained, the law should qualify the grounds for disciplinary sanctions to only manifest violations of the duty of neutrality or by excluding certain types of issues, such as reforms of the court system and legislative issues.

In the last bit of the document the Commission underlines that it remains at the disposal of the Georgian authorities for further assistance in this matter.

The conclusion of the Venice Commission was evaluated by the Chairman of the Legal Affairs Committee, Anri Okhanashvili, who found one of the recommendations ‘strange’.

“On October 14, 2014, the Venice Commission recommended that the High Council of Justice make decisions on disciplinary matters by a simple majority. We have strictly implemented this recommendation as a result of the amendments made on December 30, 2021, however, the Venice Commission has already expressed a different opinion regarding its strictly implemented recommendation. We are ready to continue discussions with the Venice Commission on this strange recommendation, as well as on the recommendations presented in general, as before,” Okhanashvili said.

Recall that the Public Defender and a 5-member panel of judges have appealed the amendments to the Law on Common Courts to the Constitutional Court.

The bill was followed by a critical and scathing assessment of the non-governmental sector, the diplomatic corps and the opposition during the accelerated review phase. According to NGOs, the changes uniquely weaken individual judges and strengthen intra-corporatism and clan influences within the system.

Despite numerous appeals, President Zourabichvili did not veto the law.