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Controversial Bill to Sanction Justices over ‘Unbalanced’ Opinions

Georgian Dream lawmakers have stirred another controversy after fast-tracking the review of amendments to Law on Common Courts, which envisage among others restricting the judges’ ability to express unbalanced, immoderate or politically biased opinions.

The changes, tabled on December 27, would allow the High Council of Justice to apply disciplinary measures against judges who it deems violated the said principle. The bill would also reduce the necessary votes for using such sanctions from 2/3 of all fifteen members to only a simple majority.

If adopted, the legislation would also introduce new forms of sanctions, including transferring or demoting a judge to a different court for up to five years. Also, as per the changes an inspector’s service would be set up at the HCoJ to examine possible transgressions by the judges.

New rules would also lift the ban prohibiting the same person to be elected HCoJ member twice in a row.

The initiative, coming amid controversy over another GD proposal to dismantle the State Inspector’s Service, has triggered an outcry from judges and civil society as well as criticism by U.S. Ambassador Kelly Degnan.

The CSOs, as well as the opposition, see the move as enabling the “judicial clan” – an influential group of justices holding sway in the judiciary – to discipline their outspoken colleagues which criticized judicial leadership in November for accusing the EU and U.S. Embassies of meddling in the country’s internal affairs.

Outspoken judges decry the proposal

Fourteen Georgian justices, most of whom have previously slammed the judiciary leadership in November, warned that the proposed changes are an attempt to “weaken independent judges, intimidate them and forbid them from voicing critical opinions.”

Equipping the High Council of Justice would further concentrate power in the judiciary and weaken any leverage individual justices could have, the signatories maintained.

They stressed that the principle of non-interference in the work of justices covers their freedom to partake in judicial activism as well as criticize the decisions made by judiciary leadership.

“Allowing the High Council of Justice to assess the appropriateness of an opinion voiced by a judge based on an unforeseeable legal provision, to persecute judges with disciplinary sanctions through a simple majority vote for free speech, to forcedly transfer them to a different court is an attack against independent and free judges,” the statement highlighted.

The changes would legalize actions that have long been perceived as effective methods of persecution of judges, the justices asserted. “Independent judiciary stands on independent judges,” they argued, adding that protecting freedom and independence of justices should be the key aim of any state.

The signatories called on the Parliament to refrain from endorsing the amendments, arguing they would affect not only all judges but the entire society in the long term.

Judiciary Coalition raises alarms

The Coalition for an Independent and Transparent Judiciary, uniting about 40 CSOs, decried on December 28 the expedited review of the proposed amendments, calling “unfortunate” the process taking place “in the pre-New Year’s period without public involvement and consultations.”

The watchdogs raised alarms that introducing new types of disciplinary misconduct and penalties conflicts with the independence of judges. The amendments, according to the CSOs, “create the impression that the new regulations are aimed at punishing specific judges and eliminating any dissent in the system.”

Noting that the adoption of these changes would be “unthinkable without public involvement and discussions even in established democracies,” the watchdogs warned that in a country where the judiciary’s primary challenge is the independence of its judges, such “legislative changes should be considered with even greater caution.”

The watchdogs argued that the lowered quorum for disciplinary decision-making is instigated by the current HCoJ composition, as the Parliament has failed to reach a consensus and elect five non-judge members to the Council.

The HCoJ, currently staffed with one non-judge and nine judge members often cannot convene a quorum, and the support of all ten members is needed for important decisions, according to the CSOs.

The watchdogs noted that the ruling party does not have the necessary 90 MPs to single-handedly appoint the non-judge members and is required to work out the solution with the opposition. The CSOs argued that by initiating the draft amendments, the GD lawmakers showed their unwillingness to cooperate with the opposition, and indicated that they “openly promote the interests of the influential group of judges in the court system.”

The CSOs also warned that the rule banning elections of the same HCoJ member twice in a row was “one of the few positive legislative regulations” aimed at preventing the concentration of powers, as the judiciary has been under fire for a long time over “corporatism and clan-based governance” at the Council.

The CSOs also called on the Parliament to suspend consideration of the initiated draft amendments and instead establish a platform to study necessary reforms of the justice system and develop corresponding changes through broad public participation and consensus.

U.S. Ambassador urges GD lawmakers to delay the process

U.S. Ambassador Kelly Degnan met on December 28 with the chairs of the Legal Issues and Human Rights Committees, Anri Okhanashvili and Mikheil Sarjveladze, to discuss the expedited review process into the changes to the Law on Common Courts, but also into the bill dismantling the State Inspector’s Service, urging in both cases to delay the process.

Speaking with journalists, Ambassador Degnan said she raised concerns over the “rushed” process with the Chairs. She argued that “these are both very important and sensitive pieces of legislation that deserve broad consultation and time to deliberate,” adding “this is what is in the best interests of Georgia.”

She said she was reassured to learn “that there is going to be a process beginning in January of consultations on judicial reform.”

“I hope the committee chairs will take our concerns seriously and will consider delaying both of these pieces of legislation until there can be more comprehensive, broad, inclusive consultation with other stakeholders,” the U.S. Ambassador added.

The Georgian Parliament will hold extraordinary sessions on December 29-30 to hold all three hearings into both controversial proposals.

This article was last updated at 18:37, December 28.

This post is also available in: ქართული (Georgian) Русский (Russian)

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