Almost a century ago an English judge, Lord Chief Justice Hewart, pronounced his famous aphorism: “… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” (R v Sussex Justices; Ex parte McCarthy ).
Since then these words have become a symbol of impartial judgeship. The key to impartiality is judge’s detachment in the course of hearing the case. It is only at the end of session, when he/she leaves for his/her chambers to make a judgment, that he/she should start weighing up the evidence and arguments presented to him/her by the parties. Any opinion that a judge may express concerning the case in question or even any behavior that may indicate that such an opinion has already been developed while the case is pending will be understood as a violation of the principle of impartiality.
Here is another powerful quotation from the Anglo-American legal tradition that reinforces this principle:
“The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process… The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law… At the same time, it preserves both the appearance and reality of fairness, “generating the feeling, so important to a popular government, that justice has been done” … by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” (Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) (Emphasis added.)
The European Court of Human Rights, in turn, has developed a similar approach. In one of its judgments the court noted:
“The Court considers… that the fact that the President of the court publicly used expressions which implied that he had already formed an unfavourable view of the applicant’s case before presiding over the court that had to decide it clearly appears incompatible with the impartiality required of any court, as laid down in Article 6 § 1 of the Convention. The statements made by the President of the court were such as to objectively justify the applicant’s fears as to his impartiality.” (Buscemi v. Italy, Application no. 29569/95, Judgement of 16 September 1999, §68) (Emphasis added.)
In light of the above wording, it would be interesting to know how far the Georgian justice has gone in adhering to the principle of impartiality. There are some depressing examples that leave little room for any optimism. In a recent hearing of the case where the Georgian billionaire, Mr. Ivanishvili, and his wife have contested legitimacy of the Georgian president’s ruling whereby both were deprived of the Georgian nationality, Judge Shota Getsadze, the President of the Administrative Law Panel of the Tbilisi City Court, claimed at the preliminary stage of proceedings that full credit should be given to allegations of the Civil Registry Agency lawyer due to a mere fact that those statements were made by a public officer. Furthermore, the judge said that in regard to the facts alleged by the said lawyer, he had already developed some “inner belief”.
All one may logically ask after such statements is why the court has to continue hearing the case, examine the evidence and arguments presented by the claimants, and do some other things which are usually done by the courts, if the defendant’s statements are a priori taken as proven? And how do these statements fit into such prescriptions of law as this: “No evidence shall have any preemptively binding force for a court” (Article 105(1) of the Civil Procedure Code (CPC) of Georgia); and this: “While delivering its judgment, a court shall evaluate evidence and determine which circumstances having substantial importance for the case have been or have not been established, which law shall be applied and whether or not the lawsuit shall be granted” (Article 244 of the CPC).
Almost having finished developing these thoughts I found a chilling notice in one of the Georgian web publications. Apparently, in a meeting at the Georgian Young Lawyers’ Association (GYLA), judge Irakli Shengelia of the Tbilisi Appeals Court Administrative Panel stated: “[W]hat evidence other than a police officer’s testimony might be at hand to find a person guilty of [administrative] offence and subject him to a jail sentence? It is a greatest confidence in government. He is a government officer, and what else is necessary?”
Indeed, what else is necessary to make a judgment regarding the level of impartiality in Georgian courts? With that kind of thinking hardly one may expect that justice will ever be done and will ever be seen to be done.
Alexander Baramidze is an attorney at law currently representing Bidzina Ivanishvili
See also: Claims judge is partial