Venice Commission Provides Recommendations for Georgian Justice Reform
By Gvantsa Gabekhadze
Friday, December 21
The Venice Commission of the Council of Europe have provided recommendations about the justice reform in Georgia which was initiated by the Georgian Dream leadership.
The recommendations released this week concern the High Council of Justice, an independent body which is responsible for appointment and dismissal of judges and unbiased judiciary in the county and the Prosecutorial Council, also an independent body composed of prosecutors and law enforcers who are tasked to select a chief prosecutor and raise the issue about his/her dismissal.
The recommendations about the High Council of Justice are as follows:
Terminology for the grounds for terminating the powers of a member of the HCJ needs to be clear and precise. Objective criteria should be established instead of setting out what is deemed proper or improper fulfillment of duty.
The HCJ must be an independent body and should not depend on the Conference of Judges. If this accountability is a reporting obligation only, that should be more clearly set out in the Law.
The commission provided a long list of recommendations about the prosecutorial council:
The current composition of the Prosecutorial Council, which consists of a majority of prosecutors elected by their peers, achieves professional representation and expertise but does not enhance public credibility of its independence. An enhanced representation from civil society could achieve this purpose;
When assessing the independence of the Prosecutor’s Office, it is important to ensure that not only the external independence of the Prosecutor’s Office is ensured in relation to the legislative or executive powers, but also that of the internal independence of the prosecutors.
The Prosecutorial Council, in this respect, should be attributed with the role of ensuring at least a minimum set of guarantees (which should be included in the draft Law), such as: the obligation of the superior prosecutor (including the Prosecutor General) to provide instructions in written form (at least on the request of the subordinated prosecutor); the right – and more importantly, the duty – of the subordinated prosecutor to draw attention to the (alleged) illegality of an instruction received from his or her superior, as well as to the dangers of its implementation; the right of the subordinated prosecutor to express dissenting opinions regarding an instruction and to have this opinion attached to the files;
the right of the subordinated prosecutor to ask for the reassignment of a case if s/he cannot follow the instructions due to professional or conscience and conviction.
To achieve a balance between the hierarchical control over and the independence of prosecutors, shared competences of the Prosecutor General and Prosecutorial Council should be provided regarding the careers of prosecutors (e.g. proposal for promotion by the Prosecutorial Council).
In order to strengthen the Prosecutorial Council in view of its new specific role, it is suggested that the career management, ethics and incentives council headed by the Prosecutor General – be subordinated to the Prosecutorial Council.
For the Prosecutorial Council to guarantee the transparency of the Prosecutor’s Office the bill needs to expressly indicate how this task is to be fulfilled. The replies of the Prosecutorial Council to the report by the Prosecutor General should become an integral part of the report of the Prosecutor General to Parliament.
The Georgian Young Lawyers Association says that the justice reform requires a wider presence of the civil sector and interested sides.
The NGO claims that the government should ensure the large-scale involvement of the qualified people in the process and stated that they were ready to actively participate in the reform.
