Posted: 2 years ago

Archil Kaikatsishvili - Georgian Court Between Self-flow and Self-determination

The current political news have overshadowed the significance of the current events in the Georgian judicial system.

However, the statements of a group of judges on November 4-5, 2021 should be the subject of a serious debates. The current events in the court have many dimensions, which require a thorough and qualified analysis - this is mentioned in the statement of Archil Kaikatsishvili, the head of organization “Young Barristers”.

The main motivation for the political changes of 2012 was the restoration of justice. The root of all problems, including in the judiciary system, may be due to the lack of a legal assessment of the heavy inheritance, the redistribution of the burden of responsibility and the return of the function to the judiciary.

There are two historical parallels: during the 2003-2012 government, the judiciary system was functioning in a completely degraded form, equality was only formal, the independent judiciary system became a fiction, and judges who raised their voices against the system were forced to leave it.

Since 2012, with the desire of the government, with the help of European and American partners, a four-stage judicial reform has been implemented, court scores have risen in various international reports and rankings, appeals to the courts and restoration of violated rights have become more perspective and etc. If we want the critical views expressed about the court to be more credible, it is necessary to evaluate both positive and negative factors through the eyes of an objective observer. Today we have achievements that need protection and development.

The government, like its predecessor, has not dismissed specific judges against whom the public still has a well-founded claim. How could the government improve the judiciary system? They should have terminated the powers of judges who made illegal decisions and failed to administer real justice, or they should have given independence to the judiciary system, increase the role of the individual judge so that people could find justice in court and the processes would be open and public.

The government wasn’t ready to take radical decisions. The government shared the recommendations of the partner states that radical interference in the judiciary shouldn’t occur and reforms should be initiated instead of punishment, as an early dismissal of judges would set a dangerous precedent and in a fragile democracy it would be impossible to review each judge's case.

The government made the choice to assess the system in a political and legal way. By a resolution of the Parliament of Georgia of June 10, 2016, the state recognized the following: the Prosecutor's Office, as a legal protection mechanism, didn’t function and the judiciary didn’t respond to allegations of torture and inhuman treatment. The criminal facts of the past were systematic. There were systemic crimes in the country.

This assessment was shared by our American and European partners. Consequently, a choice was made on the path of reform. The government received political and financial support from Western partners for judicial reform. The process between them was supervised by international and local organisations, the Venice Commission but in the process of political debate, the government failed to protect the independence of the judiciary and convince the public that the judiciary is an independent branch, whilst facts could have been named in this regard.

First of all, the indicator of the independence of the judiciary is the existing statistics. Of course, in the process of human rights protection, this is undoubtedly a step forward, but it has failed to build universal public confidence in the court.

The following circumstances played a negative role: the policy of double standards, which manifested itself in the following: the critical positions taken by the supporters of the reform in the public space contributed to the establishment of heterogeneous views on the ongoing trials. Also, the wrong approach - the current functioning of the judiciary should be held accountable by individuals who have been affiliated with the political system in the past.

Today, the court is in the process of self-determination and is conditionally divided into judges who: 1) administer free justice; 2) administer free justice and consider the political context, 3) administer justice and are obliged to consider the instructions of the administrative rulers of the court. Process analysis reveals that the degree of judicial freedom and independence in the judiciary is higher today than it was in 2012 or 2015 or 2020. Of course, this is affected by the current events and trends in the judiciary as well as in the socio-political life of the country. Those judges who were affiliated with the previous political system are now on the right side, but leaving them in the system is still problematic and unbearable for human beings.

In such a situation, our Western partners are still demanding changes in the administrative management of the court and their replacement with neutral faces. The current leaders say that any official or organisation should respect the laws and regulations of Georgia and not interfere in its internal affairs. This is the first time during this process that more than 16 judges have publicly, unequivocally and firmly stated that they don’t share the rhetoric of the ruling administration of the court and deviate from the tone of the reprimand of the court-friendly Western partners.

In fact, the publicly expressed position of more than 16 judges is a common demarche and well reflects the attitudes of judges in the judiciary. Objectively speaking, the opinion of more than 16 judges has the support of far more colleagues who, due to etiquette, don’t publicly demonstrate their views.

Does the expression of different positions of judges mean the failure of the administrative group in the court administration? No, it does not mean that. However, it means accepting and considering compromises in the future. The appearance of authoritative judges undoubtedly means the emergence of such an alternative centre in the court system, whose further considerations will be taken into account about the arrangement and development of the court.

The possibility of the court agreeing on problematic issues is a thing of the past. Authoritative judges will demonstratively resign from the position of judge or continue the opposition movement for the development of the judiciary.

The current situation, in any case, is a serious challenge for the current leaders, whose task is to calm down the relations in the system. This must be done in a way that doesn’t lead to disagreements with other branches of government, tensions and conflict with strategic foreign allies. At the same time, public confidence and the "united position" of the judiciary must be maintained. In fact, it happened and it is the truth.