3. Judiciary
Centres, only 21 percent of the respondents said that the Georgian judiciary is impartial (compared to the 47 percent who said it was not). In the same survey, 43 percent of the respondents agreed or somewhat agreed with the statement that Georgian courts are under the government s influence (compared to a mere 18 percent who disagreed or somewhat disagreed ).41 According to the 2009 Global Corruption Barometer, the judiciary is one of the least trusted institutions in Georgia.42 It has been suggested that such public perception might stem from the judiciary s handling of some high-profile cases wherein defendants associated with the government appear to receive more favourable treatment than those linked with the opposition, as well as the extremely low acquittal rate in criminal cases (Out of the nearly 17,000 criminal cases received by the courts in 2010, only seven ended in a full acquittal).43 Indeed, it is widely believed that the Prosecutor s Office and the executive branch exert undue influence over the judiciary in criminal cases. 44 In addition, courts have demonstrated a notable pro-government bias in adjudicating electoral disputes in recent years.45
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The European Court of Human Rights noted, in its recent ruling on an appeal concerning the 2006 murder of a banker by law enforcement officers in Tbilisi, that the Georgian judiciary did not adjudicate the case in an impartial and independent manner and, instead, acted in concert with the law enforcement agencies and the executive branch to ensure that the perpetrators of the crime were not punished adequately.46.
43
The judiciary s treatment of some disputes between the government and private businesses has raised further doubts regarding its independence. An expert interviewee told TI Georgia that whenever a tax-related dispute involves a very large amount of money and the government has a strong interest in winning the case, courts act jointly with the tax authorities and prosecutors to ensure the outcome desired by the government. The lawyer noted that courts are only allowed to act independently when no direct government interest is at stake, which is inconsistent with the concept of rule of law.47
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46
According to one expert, the process of judicial appointments is not transparent and it is therefore difficult to determine whether it is based on clear professional criteria as required by the law.48 It has also been suggested that subjective criteria may be applied during appointments.49 Moreover, the process of reorganization of courts whereby some judges are transferred or placed on a reserve list may further undermine the institution s independence. A GYLA representative noted that transfer to remote courts is used as a means of punishing judges who have passed decisions unfavourable to the government,50 while ABA noted concerns that some judges are not reappointed after the end of their term for similar reasons.51 The lack of a formal process for promotion also leaves room for subjective decisions.52 The judiciary s representatives have responded to these criticisms by emphasizing that the process of examination for 2011
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Caucasus Research Resources Centers, Cauasus Barometer 2010, Georgia, Online Data Analysis, http://www.crrc.ge/oda/ (accessed on 17 June 2011). Transparency International Georgia, Transparency International Releases Results of 2009 Global Corruption Barometer , http://transparency.ge/en/node/881 (accessed on 15 October 2010). OECD Anti-Corruption Network for Eastern Europe and Central Asia, Istanbul AntiCorruption Action Plan, Second Round of Monitoring, Georgia Monitoring Report, (Paris: OECD ACN, 2010), 44-45; the figure concerning acquittal rate is taken from the Supreme Court website: http://www.supremecourt.ge/files/ upload-file/pdf/3-sisxli.pdf (accessed on 7 March 2011). American Bar Association, Judicial Reform Index for Georgia, Volume II, 45. See, for example: OSCE/ODIHR Georgia: Parliamentary Elections 21 May 2008, OSCE/ODIHR Election Observation Mission Final Report, 19; OSCE/ODIHR Georgia: Municipal Elections30 May 2010, OSCE/ ODIHR Election Observation Mission Report, (Warsaw: OSCE/ODIHR, 2010), p 24. European Court of Human Rights, Georgian Authorities Did Not Investigate Effectively the Kidnapping and Killing of 28-Year-Old Man , Press Release, 26 April 2011, Interview of a Tbilisi-based business lawyer with the author, Tbilisi, 13 January 2011. Interview of Giorgi Patchadze with the author. OECD Anti-Corruption Network for Eastern Europe and Central Asia, Istanbul AntiCorruption Action Plan, Second Round of Monitoring, Georgia Monitoring Report, 44. Cited in: Transparency International Georgia, European Neighbourhood Policy: Monitoring Georgia s Anti-Corruption Commitments, 14. American Bar Association, Judicial Reform Index for Georgia, Volume II, 3. Id., 36-37.