Recently, a very worthwhile analysis by Jim Moliterno (Washington & Lee University), Sopho Verdzeuli (Editor of the Politics of Law section at KOMENTARI magazine) and Irakli Kordzakhia (lawyer and partner at GRATA International Georgia, a law firm) outlined the development of the Georgian judiciary over the past 25 years. Their article, published in the most recent issue of the Deutsch-Georgische Zeitschrift für Rechtsvergleichung / German-Georgian Journal of Comparative Law, in English from page 62 here, makes for a stark read.
Born in 1952, Ulrich Hagenloch, is a distinguished German jurist who served as President of the Dresden Higher Regional Court from 2006 to 2017. After a career spanning both Baden-Württemberg and Saxony’s judicial systems, he was appointed to the Saxon Constitutional Court in 2015.
Moliterno, Verdzeuli and Kordzakhia show that the Georgian judiciary has faced a tumultuous journey since 1995, marked by shifts between government dominance, brief periods of judicial autonomy, and a return to subservience. Throughout this time, certain leaders have maintained their power within the system. In recent years, this instability has allowed illiberal state actors to exploit the judiciary for their own purposes, while influential judges, known as “The Clan,” have manipulated the system for corrupt gains. Though there has been occasional resistance from individual judges, the overall narrative is one of institutional failure and collaboration with the government, perpetuating a vicious cycle.
As the analysis argues, throughout these transitions, the Georgian judiciary has struggled with systemic corruption and political influence, which has hindered its ability to serve the public interest. Initially, the Ministry of Justice held significant control, but reforms aimed at increasing judicial independence, such as the establishment of the Judicial Council, have largely been ineffective. Although these reforms have increased resilience on the surface, the underlying issue is the self-serving mindset of those in power, which perpetuates a system where justice is compromised.
The judiciary is now largely controlled by “The Clan”, which collaborates with the ruling Georgian Dream government.
The authors of the article say the current situation is particularly dire. The judiciary is now largely controlled by “The Clan”, which collaborates with the ruling Georgian Dream government. Dissenting voices are suppressed, and reforms have been cosmetic, failing to address the deep-rooted problems of political interference and corruption. Where independence exists, it is mostly used for transactional gain, rather than to further the rule of law. There is an evident need for genuine reform, but achieving a truly independent judiciary requires a fundamental shift in the mindset of those in power – a challenge that remains immense.
I witnessed the development of these problems firsthand through years of collaboration. Until the parliamentary elections last October, I still held out hope that the Georgian judiciary might, through its own efforts, succeed in freeing itself from the burden of the High Council of Justice and the all-pervasive power center of the Georgian judiciary (see my 2024 article in the LawJournal.GE, here).
However, the developments that have occurred since then have dashed this hope. Too many judges have now become too deeply entangled in the unjust system.
There’s no question: there are still many judges in the Georgian judiciary who work in accordance with the rule of law and who demonstrate honesty. These decent judges deserve great respect and recognition from society. I can also fully understand why these judges are becoming silent, increasingly fearful, and intimidated. Who can they trust when speaking openly in supposedly trusted circles? What consequences will they face if they demand the rule of law?
What is incomprehensible is when a judge becomes an active part of the unjust system.
So, I can certainly understand silence, but what is incomprehensible is when a judge becomes an active part of the unjust system. No judge had to do that in the dark chapters of the German judiciary, and no judge has to do that in Georgia.
How big must the ink stain be before one’s own eyes if one considers last autumn’s election to have been secret? What understanding of the rule of law is there when demonstrators who commit criminal acts (and therefore, of course, must be subjected to state sanctions) are sentenced to completely disproportionate, ultimately life-destroying punishments? In such criminal cases, how can judges still even trust the evidence presented by law enforcement when so much of it appears to be dubious? How can a judge sentence peaceful demonstrators to (absurdly high) administrative fines? Why does a judge simply apply laws without examining their constitutionality?
The more judges entangle themselves in the unjust system in this way, the more they become perpetrators of the power structures rather than victims. However, as the number of perpetrators increases, it becomes more difficult for the judiciary to free itself from internal power structures that are hostile to the rule of law.
Many young judges grow up in an environment where political dependence and premature obedience are the order of the day.
There is another aspect that is rarely considered: many young judges grow up in an environment where political dependence and premature obedience are the order of the day. Since they know little else, they run the risk of perceiving such a situation as “normal.” These judges must be forgiven for their limited ability to develop a proper understanding of judicial action in accordance with the rule of law on their own. However, they must daily remind themselves that what they perceive as the “normal” behavior of some judges, especially a large portion of the leadership, is not actually the norm
Only the legislative can save the judiciary – by simply dissolving the High Council of Justice.
In light of recent developments, my previous assessment that the Georgian judiciary could return to the rule of law independently was unfortunately too optimistic. Now, only the first branch of state power – the legislative – can save the third state power – the judiciary – by simply dissolving the High Council of Justice (which is admittedly utopian at the moment, but nothing else will help). The executive branch must also carry out the contemplated vetting proceedings of judges despite existing concerns about vetting. Vetting judges is not ideal, but it is arguably the lesser evil now.
Once the High Council of Justice is dissolved and the existing power structures are dismantled, judges who support the rule of law can raise their voices again, and the Georgian judiciary may still be saved.
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