TBILISI, DFWatch–The Council of Europe’s Venice Commission has published its final recommendations on the draft of law amendments which are meant to reform the court system in Georgia and make the courts truly independent.
The draft bill will amend the law on Courts of General Jurisdiction, and was prepared by the government after the October, 2012 parliamentary election.
Although Georgia has been engaged in a process of constant reforms of its judicial system since the late 1990s, with considerable assistance from the United States, the EU, Norway and others, there still is a perception of the courts not being independent, although different political players point out different types of shortcomings.
The Ivanishvili government, which recently came to power, believes that the courts must be made independent from what is called the High Council of Justice; an unusual arrangement, absent in most democratic countries, which conducts oversight of judges and has the power to discipline them. The National Movement party of President Saakashvili argues that the High Council is on the contrary a necessary guarantee of court independence.
According to the Venice Commission’s recommendations, the amendments improve many provisions of the Organic Law and will bring this law closer to European standards.
It seems like both political forces are satisfied by what the commission has presented, as members of President Saakashvili’s party advised the government to follow its recommendations.
Member of parliament Mikheil Machavariani from the United National Movement (UNM) on Tuesday told journalists that it is ‘unacceptable’ if the ruling coalition only follows those parts of the recommendations which they think are beneficial.
Deputy Justice Minister Alexandre Baramidze on Tuesday said at the Radisson Hotel that the government plans to follow the recommendations of the commission, because they are ‘very satisfied with how highly the Venice Commission has rated the draft.’
He said the commission supported all the ministry’s initiatives and has given a green light to the amendments presented in the bill.
Chairman of the Supreme Court Kote Kublashvili, who also chairs the High Council of Justice and is the person who may be the first victim of the implementation of the new amendments, says that the position of the Venice Commission comes in line with the position of the court and he also expressed hope that the recommendations will be reflected in law.
Kublashvili’s statement says that the Supreme Court welcomes the engagement of the Venice Commission in this process and is pleased that the commission has followed the remarks by the courts. He pointed to the following passage in the final recommendations:
“Parliament should refrain from adopting measures which would jeopardize the continuity in membership of the High Judicial Council.”
The Venice Commission’s final recommendations, published on March 11, suggests holding a detailed review of the bill.
The commission outlines positive changes presented in bill, which include that eight members of High Council of Justice will be judges elected by a conference of judges, and six members will be elected by parliament; however they cannot be politicians, as it used to be. Groups in civil society must present candidates to become members, which can be professors of educational institutions, representatives of non-profit and non-governmental organizations working in the field of law.
The recommendations also underline that the draft will introduce secret ballot as a way to elect members of the High Council of Justice and the president will no longer have the right to appoint members.
The commission calls on the government to remove the point in the bill about suspending all the members of the High Council of Justice except the chairman of the Supreme Court.
The commission recommends that heads of courts, their deputies, chairs of chambers and persons who held those positions during one year before being elected to the council, should have the right to become member of the council.
The commission’s recommendations also deals in detail with the issue of allowing filming and taking photographs during trials, writing that it the rules are vague and need some improvements.
“There is no doubt that there are considerable advantages to having audio recordings of court hearings, notably for the purpose of settling any disputes about what transpired in court and also from the point of view of the transparency of proceedings. It can also help ensuring public scrutiny of the functioning of the justice system,” the commission notes.
The authors of the report think that allowing video recording of court sessions may cause a change of behavior.
“Defendants and their lawyers may be more interested in appealing to the court of public opinion than to the court before which their case is listed; victims of crime and witnesses, not to mention the parties, may feel intimidated by the presence of cameras.”
According to the recommendation, live recording of processes allows witnesses to be informed about other witnesses.
The commission raises some questions, which they claim the draft bill doesn’t answer: is it defined by what term recordings of the court proceedings should be kept; does a person have a right to request those recordings any time and if a broadcaster can use those recordings for any purposes.