Venice Commission: Issues of judicial corporatism and self-interest in the High Council of Justice should be addressed

The Venice Commission has published its opinion on amendments to the Organic Law of Georgia on Common Courts. The Venice Commission notes that some key recommendations which it has previously made remain to be addressed, including adressing the issues of judicial corporatism and self-interest in the High Council of Justice which should involve a comprehensive reform of the High Council of Justice.

“Following the request of Mr Shalva Papuashvili, the Chairman of the Parliament of Georgia dated 22 November 2022, the Venice Commission has assessed the current set of amendments as part and parcel of the ongoing reform of the judiciary of Georgia, in relation to which the Commission has already issued four opinions between 2019 and 2022. The present Follow-up Opinion therefore assesses these Draft Amendments against the background of the Commission’s previous recommendations concerning the Organic Law on the Common Courts of Georgia. 50. The Draft Amendments under examination have been prepared by the Georgian authorities as a part of legislative measures required by the EU in the context of Georgia's application for EU membership. The European Commission has recommended that Georgia “adopt and implement a transparent and effective judicial reform strategy and action plan post-2021 based on a broad, inclusive and cross-party consultation process; ensure a judiciary that is fully and truly independent, accountable and impartial along the entire judicial institutional chain, also to safeguard the separation of powers; notably ensure the proper functioning and integrity of all judicial and prosecutorial institutions, in particular, the Supreme Court and address any shortcomings identified including the nomination of judges at all levels and of the ProsecutorGeneral; undertake a thorough reform of the High Council of Justice and appoint the High Council’s remaining members. All these measures need to be fully in line with European standards and the recommendations of the Venice Commission”. 51. The Venice Commission reiterates the importance to achieve an independent, impartial, and well-functioning judiciary. Only an independent judiciary can render justice impartially based on the law and prevent the abuse of power. It is of vital importance for the rule of law that there is public trust in the proficiency of the judiciary to operate in an independent and impartial manner”, reads the opinion.

According to the Commission, the wide powers of the High Council of Justice to second or transfer judges without their consent should be circumscribed by adding narrower criteria for the secondment/transfers, introducing time and location limitations on secondments/transfers, providing for a random system of secondments/transfers.

Other recommendations of the commission are: Revising the procedure for suspension of judges from office by defining more precisely the grounds for suspension, allowing for more time for appealing such decisions and maintaining the salary during the suspension period; Restricting the grounds for disciplinary liability of a judge related to the expression of opinion to the manifest violations of the duty of political neutrality, while leaving space for the comments by the judges on such issues as reforms of the court system; Ensuring that the instructions by the Supreme Court are mandatory for the High Council of Justice.

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