The right to a fair trial in Georgia


Every attempt to reform the Georgian judiciary has been met with suspicion. It is no different when Georgian Dream pushes for them now.

The issue of the right to a fair trial in Georgia has plagued the country since its independence. No government has managed to bring the judicial system to an appropriate condition yet. Currently, the Georgian Dream party is pushing for grand reforms to finally settle the topic. While some may argue that the justice system has become more functional, there is strong evidence raising concerns the ruling government is still unwilling to fully give up on it as a political tool. Transparency International Georgia, as well as other local NGOs, argue that the recent appointments of judges on a permanent basis was flawed and politically motivated. These concerns have been echoed by a number of American congressmen and European actors.

It may sound like a typical story of corruption when the regime tries to subordinate the courts while civil society, in collaboration with external actors, fight to maintain its independence, but as usual, everything is not as simple as it looks in Georgia. When analysing the right to a fair trial, it is important to keep in mind that there always was, is, and probably will be politics behind the justice system. All actors have their own agendas and perceptions.

Background

There are no debates that Mikhail Saakashvili’s courts were totally flawed and controlled by the ruling party. Thus, the newly elected Georgian Dream, with help of local and international actors, initiated a reform process that aimed at building an independent, transparent and accountable judiciary system. As a part of the reforms, the Venice Commission called on the government to appoint judges on a permanent basis so that they could be invulnerable to changes of the political elites and influence from outside. The Ambassador of the European Union to Georgia, Carl Hartzell, argued that the process of nomination and appointment was open to the public and transparent like never before. But political opposition and local observers raised concerns that the ruling government broke the merit-based principle and appointed judges with highly questionable pasts. Particularly, they raised concern about those who were involved in sensitive criminal cases during Saakashvili’s regime and were previously perceived as “following the political order from above.” So far, critics of the Georgian Dream party have blamed it for “promotion” in exchange for “obedience.”

Furthermore, independent experts such as Ana Dolidze, the former chief legal adviser to the President of Georgia, argue that the government has given Saakashvili-era corrupt judges a platform to build the so-called “Murusidze-Chinchaladze clan” and control the whole system through political alliances. Some of these grave concerns are shared by Georgia’s strategic partners. As a result, the Georgian Dream was forced to halt its Supreme Court judicial appointments.

At the same time, contrary to everything said above, the latest statistics and reports show that courts are now functioning better than ever before. According to the statistics of the European Court of Human Rights (ECHR), the amount of new applications submitted to a judicial formation increased with 30 per cent in 2019 compared to the previous year. Some 1,390 applications from Georgia were found to be inadmissible, a historic achievement. Furthermore, the Georgian government also won the important Rustavi 2 case in Strasbourg.

Therefore, while the system itself remains the least trustworthy institution according to a survey by the Caucasus Research Resource Center, the right to a fair trial is definitely more ensured in Georgia than previously.

Georgian politics behind the Georgian justice

On July 18th 2019, the European Court on Human Rights in Strasbourg published a historic judgement for Georgia regarding the so-called Rustavi 2 case. It was important due to the fact that the decision proved that Georgian courts can work appropriately and ensure the right to a fair trial, even in extremely sensitive cases.

The private opposition channel Rustavi 2, led by a close ally to Saakashvili and former high official, Nika Gvaramia, was sued by the former owner Kibar Khalvashi. According to Khalvashi, the channel was forcefully taken from him during the governance of the post-Rose Revolution government and allocated to the regime’s friendly forces. Khalvashi asked the Georgian courts to return his property. In 2017 Georgia’s supreme court reaffirmed previous judgements and ordered a transfer of the channel’s rights. Nika Gvaramia and the whole specter of the political opposition argued that Khalvashi was directed by the ruling government to close the only oppositional channel; furthermore, they argued that this was a direct attack on critical media and freedom of speech. Finally, Gvaramia stressed that the government was pursuing a direct order from the Kremlin to close the most pro-Western channel in the country. These allegations were mainly shared by respected local and non-governmental organisations such as Transparency International Georgia and the Georgian Young Lawyers’ Association. The public defender Nino Lomjaria also expressed grave concerns. Gvaramia and others sent a letter to the ECHR emphasising that Rustavi 2 is crucial for Georgian democracy. They asked the court to suspend the decision of the supreme court and investigate the case. The European Court agreed. Rustavi 2 channel members, as well as political opposition and the “elite” civil society representatives, spend the next two years re-iterating that the case was a clear example of the grip of the ruling regime on the courts.

Shockingly for these actors, the ECHR not only supported the change of the ownership but also stated that no rights to a fair trial were violated and that there were no signs of Georgian democracy and freedom of speech being under a threat. Finally, European judges noticed that Nika Gvaramia was directly insulting the Georgian judiciary system and intentionally undermining the local court’s legitimacy and credibility.

Georgia’s “elite” civil society became silent. Gvaramia, grinding his teeth, called it a “huge mistake,” while leaders of the political opposition like Giorgi Baramidze, the former Acting Prime Minister, and Khatia Dekanoidze, the former Minister of Education and Science, assessed the judgement as a pro-Russian. They asserted that the ECHR was being bribed by the Kremlin and Georgian tycoon Bidzina Ivanishvili.

What is the question about?!

To generalise the debate in Georgian society, we can argue that the judiciary reforms raises a highly philosophical dilemma: is the glass half empty or half full?

Obviously, local political opposition, along with representatives of the so-called “elite” civil society, consider the glass half empty. Logically, opponents of the government use this approach for the purpose of political rivalry to undermine the ruling party and gain electoral votes. But in the case of the “elite” civil society members, it has to do with a combination of political preferences, general agendas, and beliefs.

On the other hand, there is the current government that continuously compares its achievements with the legacy left by United National Movement, and consequently argues that the glass is half full. The comparison is crucial to remind the Georgian population, which is frequently keen to forget lessons of the past, that the post-Rose Revolution regime simply failed to fulfill any standards for the right to a fair trial. But, at the same time, this narrative cannot be used as an excuse. Furthermore, the government should not simply ensure “better” courts, it must raise the stakes and make the whole system respective to European standards. They need to finally set the institution free, something that the ruling power is not ready to do yet.

The magna challenge

The judgement on the Rustavi 2 case shows that there is clearly one magna challenge with regard to the establishment of an independent and objective judiciary system in Georgia. That is the unreadiness of local actors to obey, respect and follow.

The United National Movement had no concerns with the right to a fair trial when the reigns of power were in their hands and they controlled the courts to oppress opponents. But, as soon as they lost control and were threatened by the system they directly nurtured, former government representatives suddenly proclaimed that the institution is flawed and in need of total reconsideration. The judges, who were highly praised at that time by representatives of the government, were transformed from democracy-defenders to enemies of the state. This example refers us to an old established perception among political actors and, generally, wider society: the court is free and fair if it produces “appropriate” judgement. This means that no actors, including “elite” civil society and the general population, are actually ready to recognise that the court can provide the right for fair trial even if members of political opposition are being jailed, arguments expressed by civic activists have not been shared and, of course, government has been held responsible for its actions. All in all, the judiciary system works appropriately not only by restraining the regime but, generally, through making everyone equal and accountable. The courts must ensure that former or current elites are accountable, as well as any regular citizen. This is something that is still unobservable with the state.

So far, the real reforms must be continued and the government should be ready to give up this institution as a political tool once and for all. But, at the same time, the most important pre-condition for building well-trusted courts is to come to a common agreement that the judgement must be followed and respected. It cannot be abandoned, local courts cannot be intentionally discredited and simply undermined by neither side due to mercantile, narrow political interests.

The article was originally published by New Eastern Europe.

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The Lucifer Effect: How to Turn Georgian Judges Good


Georgia has a plethora of issues needing attention and reform, but there is probably no topic as significant and crucial as the judiciary. Since the dissolution of the Soviet Union, Georgian governments have been trying hard to build a comprehensive, sophisticated, independent and, most importantly, publicly trusted judicial system. Unfortunately, these attempts have been unsuccessful, largely due to the unwillingness of the ruling political powers to give up such a strong and influential mechanism, a tool still widely used by ruling regimes in non-democratic states to oppress and punish counterparts.

The current rulers, Georgian Dream, are today pushing for another grand reform that, in theory, should finally put into the judiciary some widely accepted, recognized and embedded democratic standards such as the check-and-balances model. This process is chock-full of controversy due to a number of highly questionable decisions that have so far been made, among them the appointment of judges who are blamed for unlawful past judgements in extremely sensitive and scandalous criminal cases. The majority of local and foreign experts and NGO/INGOs expressed their astonishment at the appointments and are calling on the government to show the political will to truly reform the system.

In the wake of such turbulence, Irakli Kobakhidze, Chairman of Parliament, poured fuel on the fire during a TV appearance on February 5 where he commented on the appointments, stating that those judges who had misdemeanors in the past had in fact been “made good” as a result of systemic and environmental changes. These remarks were considered by some as unacceptable and unethical. But if we put political and ideological rivalry as well as populism aside, it is obvious that Kobakhidze’s statements perfectly fit into the social psychology paradigm and reflect a working policy that, at the end of the day, must be pursued with minor changes.

The Lucifer Effect: How Good People Turn Evil

Social Psychology is a field that studies the influence of social processes and environment on people’s behavior. It basically argues that individual behavior is not determined solely by a human being’s personal character, ethics, values and attitudes; obviously, it is highly sensitive to external impact and/or pressure that independent variables such as environment or a stressful situation may have. Human beings are not, by default, “bad” or “good”, meaning that their behavior is not pre-determined by nature but rather conditioned by a set of internal and external characteristics that may force “good” people to turn “bad” and “bad” people to turn “good”.

One the most prominent representatives of the Social Psychology school is Stanford University Professor, Philip Zimbardo, who argued these ideas in his prominent work The Lucifer Effect (TLE), How Good People Turn Evil. Zimbardo takes a look at the so-called Stanford Experiment and misbehavior of American soldiers in the Abu Ghraib prison in Iraq. He is confident in his judgements that the cases prove the significant role of the system and environment on the behavior of individuals who had previously never had records of violence and misconduct but who were keen to engage in such actions once affected and pushed by external factors.

Irakli Kobakhidze’s comments may sound cynical and irrelevant, but actually the creation of a healthy, free, independent and transparent environment/system is crucial for the establishment of publicly trusted institutions that will contribute to a judicial system that supports “good” people and keeps away and/or sets a working framework for the “bad”. Kobakhidze raised the important issue of systemic change but did so in a non-diplomatic manner and without explanation.

Applying the Framework

Before arguing the steps the government needs to take to achieve a successful reform, we should speak about at least two important issues that are frequently overlooked.

Readiness to Obey

While debating the judicial system reform, analysts often undermine the importance of the Georgian mentality and political culture. Representatives of Georgian society, as well as elites, frequently talk about building a publicly trusted institution, but, factually, neither side is really ready to contribute to the building.

This reality is determined by the widely-shared perception that a fair and free court is a court that makes “respective” judgements which are acceptable for everyone. But this is practically impossible, as the “loser” always opposes and questions the judgement made and, thus, questions the judiciary. Furthermore, representatives of Georgian society have no general culture of obeying court decisions unless they are victorious. As such, at the end of the day, the demand for an impartial, fair and free trial is never-ending.

Another obstacle is the local political culture that, according to the best traditions of Georgian mentality, is tolerant only towards those institutions which are politically and ideologically acceptable and beneficial. Mikhail Saakashvili’s regime had no issues with the corrupt judicial system of the time until it was subordinated to the political elite. Yet, representatives of the former ruling movement are dissatisfied with this less (but still) corrupt institution under Georgian Dream governance. The unwillingness of local political powers to give up the judiciary as a political mechanism prevents the establishment of a truly independent institution.

Thus, it makes no sense to debate judicial system reform unless we bring significant changes into the Georgian mentality and local political culture.

Must Dos

We should express and keep in mind three basic assumptions. The first: there is no way we can build a judiciary that is fully trusted by all, meaning that we will never have a system that is acceptable for everyone; hence, we need to learn to obey judgements unless they are clearly partial. Second, we need to make it clear to local political powers that the judiciary is not a subordinated-to-the-ruling-elite political mechanism or weapon. Finally, we cannot afford to fire every judge who had a past misconduct; Georgian society does not have the human resources required to repeat Saakashvili’s period formula of “fire everyone and hire new staff”. As such, we must work with those people who are in the system today.

Based on these three pillars, the government should push for systemic and environmental change, meaning that “good” people are not pushed to do bad and “bad” people are turned “good” or are kept out of the system. Those judges who had a strong background of misconduct must be severely punished and expelled from the judiciary, while others are given chance to prove their professionalism and devotion to the new democratic standards. The idea of life-long judges must be temporarily abandoned. The existing political reality and human resources are not enough to pursue this approach. Rather, we need a long-standing project, perhaps “judge of the future”, which will prepare a new generation of public servants who will be appointed on a life-long basis later on. These decisions ensure that the most prominent “guilty judges” are punished, others are given a second chance, relatives of victims get at least minimum justice and Georgian society has time to establish a functional judiciary with trusted life-long judges.

By and large, the judiciary reform is probably one of the most relevant and sensitive topics today. Kobakhidze’s arguments are not by default false; moreover, his views totally fit into the Social Psychology paradigm which argues for a healthy system and environment to prevent “good” people turning “bad”: the “bad” may turn “good” if they are put into such conditions. Georgian society needs not only to reform the judiciary but also to reform its mentality and political culture. Furthermore, it needs to recognize that we cannot simply fire everyone who does not satisfy the high moral and ethical standards- Georgia lacks the human resources for that. That said, it is wise to punish those who deserve it (within reasonable and existing limits) while continuing to cooperate with others. The idea of life-long judges must be postponed in order to prepare a new generation of public servants to be appointed according to the approach later on.

Archil & Teimuraz Sikharulidze

The article was initially published by GeorgiaToday.

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