THE INDEPENDENCE AND ACCOUNTABILITY OF COURTS – THE VIEWPOINTS OF THE SUPREME COURT JUDICIAL CANDIDATES
Abstract
An independent court is not only a prerequisite for the protection of the rule of law and human rights, but also for the economic and social development of the country. Since the declaration of independence of Georgia until today, the establishment of an independent justice system in the country remains a problem, which is caused by several reasons. Probably, the main factor is the continuing nonexistence of proper political will and the lack of appropriate public awareness. Allegedly, we already got used to the fact that a politically biased court is normal and THEMIS must pay a contribution to the government: for some more, for others less.
In 2012, the main electoral promise of the “Georgian Dream” was the restoration of fairness and the creation of an independent court system. As a result of adopted amendments, the High Council of Justice was restructured, judges were given the right to name candidates for the High Council of Justice and the freedom to vote, as well as real possibilities to establish autonomy, closed court hearings became open to media, etc. Despite the mentioned, the trust of society towards the court system did not increase significantly. The reason for that may be, from one hand, the heavy legacy of the past, and on the other hand, the fact that the power within the court system was placed in the hands of the same people, who ruled the Court before 2012. This group of judges connected two interests– the interest of judges to protect themselves from prosecution and secondly, the interest of the government to control the judicial system.
The autonomy of judges, instead of normalization of the Court, became a source of self-preservation of judges and seizing of power by a small group of judges, and the new government could not overcome the temptation to control the court system and the vicious practice was restored, which existed between the political government and the Court. Between 2016 and 2019, several legislative amendments were adopted, behind which there was an interest of an authoritative group of judges to strengthen their power.
Building an independent court system probably entails two stages – first is the selection of judges – stage of appointment, and second – all of the rest. The approved standards and mechanisms of independence of the court fulfill their purpose only when the first stage, i.e. the appointment of judges is completed successfully, and the corpus of judges is composed of honest and qualified people. Society entrusts the execution of justice and administration of courts to such judges. In a democratic society, the judicial authority represents a separate branch where judges are appointed for a lifetime period andthey are protected by immunity Compared to other public servants, they are not responsible for professional mistakes andit is inadmissible to interfere into the work of a judge. The corpus of judges make self-renewal, self-regulation, self-normalization, obtains and pre- serves the trust of the public, creates and implements judicial policy, administers and disposes of budget resources.
On the other hand, if it appears that the lever of administration of the Court is put in the hand of dishonest people, all approved mechanisms may be used as damaging for democracy and in the interest of justice. In other words, we may receive a legally protected fortress, which may become a nest for corruption, nepotism, trading with justice, the abuse of authority and irresponsibility.
In 2017, an important constitutional amendment was adopted, by which the title to present judges of the Supreme Court was transferred to the High Council of Justice from the President of Georgia. In December 2018, the list consisting of 10 people was presented to the High Council of Justice by the Parliament of Georgia, which caused public outrage due to the content of this list and this grew into a political crisis. In 2019, in response to the mentioned crisis, the governing elaborated and adopted new regulations for selecting judges for the Supreme Court, based on which, the process of selecting the Supreme Court judges took place in June-December 2019. The abovementioned process resulted in sharp public and international criticism, that will be discussed further below, however, it must be appreciated that for the first time in Georgia’s history, candidates for judges were standing before the public and had to respond (or not respond) to those questions which had accumulated towards judicial authority during several years. Therefore, interviews with candidates for judges of the Supreme Court presented a completely new form of accountability of the judicial system. However, another issue is how successful was the completion of this test by the judicial authority.
In this article, major problems in regard to the concepts of court independence and accountbility will be discussed, as well as the visions of the 20 candidates for judges of the Supreme Court, related to court independence and accountability, who appeared before the Parliament of Georgia.
