The second direction of the National Strategy of Human Rights Protection (for 2014-2020) is the right to a fair trial, which aims at creating an effective justice system. Chapter II of the Governmental Action Plan of Human Rights Protection (for 2016-2017) implementing the national strategy is also referred to as the Right to a Fair Trial. This chapter consists of 3 goals, 5 objectives and 18 activities (actions).
Within the present report, it was attempted to study the National Strategy of Human Rights Protection (for 2014-2020) and the Governmental Action Plan (for 2016-2017) implementing it, as well as closely related Court System Strategy (for 2017-2024), and the Strategy Implementation Action Plan (for 2017-2018).
The Court System Strategy is divided into five strategic directions and covers fully the issues envisaged by the Governmental Action Plan of Human Rights Protection (for 2016-2017). The Court System Strategy is so extensive that it covers all the issues required for further reform of the justice system.
For receiving information on responsible agencies’ progress in conducting the activities envisaged by the Action Plan, written communication was maintained with the High Council of Justice of Georgia, the Supreme Court of Georgia, High School of Justice of Georgia and the LEPL Department of Common Courts. The Annual Report of the President of the Supreme Court of Georgia and the Report on the Activities of the High Council of Justice (2013-2017) were also used in the process of assessing the Action Plan.
By the time the report on the fulfilment of the Action Plan was developed, out of the 18 activities envisaged by the plan, 4 activities are fully carried out; 5 activities are carried out by more than fifty percent; 7 activities are carried out by less than fifty percent; 2 activities are not carried out (however, the process is pending). In total, the progress of the accomplishment of Chapter II is 68%.
Regarding the quality aspect of the accomplishment, despite the fact that the activities envisaged by the Action Plan are more or less carried out (such as: Preparation of strategy and action plan for the reform of judicial system, implementation of an electronic random distribution of cases system in courts, etc.), the important activities that are to this date the subject of acute criticism from both local civil society and international organisations (such as introduction of transparent and objective criteria of selection of judges in practice; development of criteria for promotion of judges; improvement of the system of periodic assessment of judges’ activities and improvement of the grounds of disciplinary responsibility of judges) have not been accomplished. Based on the measures taken by the responsible agencies for conducting the abovementioned activities, it can be concluded that making these changes are not seen as priorities for them at this stage.
It is also noteworthy that the activities, for which the High Council of Justice was responsible, are in most cases not carried out. It is unfortunate that the High Council of Justice would provide information on the accomplished work in violation of the terms determined for issuing public information; in most cases, the answers did not impart comprehensive information to the questions asked.
1. General Assessment of Chapter II of the Action Plan
1.1. Structural Problems in Chapter II of the Action Plan and Compatibility with Existing Challenges
Chapter II of the Human Rights Action Plan (HRAP) addresses the challenges existing in the court system and covers a number of those issues that have been criticised by local and international organisations for years. However, unlike the Justice Action Plan, it does not cover important issues such as: (1) reform of the High School of Justice (HSoJ), which implies ensuring organisational and functional independence of the school from the High Council of Justice (HCoJ); and (2) the issues related to the improvement of performance of the HCoJ.
The HRAP itself is not refined structurally. Goals are so broad that the relevant objectives and activities fail to ensure their achievement. Regarding the activities, they mostly comply with the set objectives and constitute effective means for the implementation of the latter. However, there are examples where several activities are joined into one action out of which each, due to its importance, merits to be singled out as an independent activity.
- Relevance of Responsible Agencies
The following are the responsible agencies for the implementation of chapter II of the HRAP – The Right to a Fair Trial – the HCoJ, the Supreme Court of Georgia and common courts. Under the Organic Law on Common Courts, one of the major functions of the HCoJ is to elaborate proposals for court reforms and therefore elaboration of the Justice Action Plan is its prerogative. However, it causes certain confusion that the executive would delegate responsibility to the bodies of the judiciary, among others the HCoJ, to implement its own action plan because the judiciary is an independent branch of the government and it is unclear based on which legal ground it could become accountable before the executive.
- Incompatibility of Activities and Objectives with Goals
The HRAP is drafted so that it often allows various interpretations and in some cases, it is so unclear that it is difficult to determine what activities are supposed to be implemented by a responsible agency. Furthermore, some goals (2.2 – further reform of the justice sector; 2.3 – improving the quality of independence, effectiveness, impartiality and professionalism of the judiciary, etc.) are so broadly worded that respective activities and objectives often might be relevant; however, they might never be able to ensure that the goals are achieved.
- Time Frames for the Implementation of Activities
Despite the fact the HRAP was approved on 21 July 2016 and virtually only the second half of the year was left for implementing its activities, the time frames for all the activities covered by chapter II are set for 2016-2017. This makes us think that, at the stage of developing the HRAP, the responsible agencies did not have the vision about realistic time frames needed for the implementation of the activities. This is confirmed by the fact that a certain number of the activities, despite a year and a half term, has not been implemented or has been partially implemented.
1.2. Assessment of Other Relevant Action Plans Linked with Chapter II
The Action Plan of Implementing the Strategy of the Judiciary (for 2017-2018) consists of 21 objectives, 68 programmes and 282 activities. The action plan is systematised and covers the issues of all five strategic directions (independence and impartiality, ensuring accountable justice, ensuring quality justice and professionalism, ensuring effectiveness of the judiciary and ensuring accessibility of justice). It covers the activities envisaged by the HRAP fully, although it is far better structured.
The time frames for the common activities determined in both action plans are different as well. While the time frames for all the activities in the HRAP are set for 2016-2017, the time frames for similar activities in the Justice Action Plan are set for 2017-2018. This makes it unclear which action plan’s time frames should be the priority for a responsible agency and demonstrates again the irrationality of existence of two independent action plans. In most cases, the activities in the Justice Action Plan are supposed to be completed in 2017-2018. However, out of the activities that were supposed to be implemented by the action plan in 2017 (in total, 67 activities), which are mostly technical in nature, are virtually completed. These activities are the following: setting up working groups; study of case-law in different fields; training of court staff; enhancing capacity of the Human Rights Centre of the Supreme Court and analytical departments in common courts; increasing accessibility to the case-law of the European Court of Human Rights through Georgianisation of the HUDOC database, developing and disseminating practical handbooks, etc.
It causes certain confusion that there are two independent action plans for the judiciary. The same agencies are responsible for their implementation and there are some identical activities that need to be performed, albeit within different time frames. We believe that there should be a single action plan for the judiciary, developed and implemented by a responsible agency and the government’s Action Plan should cover the part of the right to a fair trial, implementation of which is the responsibility of the executive. For the uniformity of the action plan, the Justice Action Plan could be entirely moved into the HRAP. However, in this case, the agencies responsible for the implementation of the Justice Action Plan should not be accountable before the executive.
- To include into the judiciary chapter of the HRAP the activities envisaged by the Justice Action Plan for the same period to avoid the existence of two different action plans in the same period;
- When defining responsible agencies for the implementation of the HRAP activities, the principle of division of power should be taken into consideration and the judiciary should not be designated as an agency responsible before the executive government.
- To make the goals envisaged in the action plan more specific and measurable;
- Objectives determined for the achievement of the goals should be worded in clear terms and should not allow ambiguity; furthermore, the indicators to be used for assessing implementation of activities determined for achieving the set goals should not only assess a fact of implementation of the determined activity but should also be specified in the manner allowing their quantitative and qualitative assessment; and
To the High Council of Justice of Georgia:
- To observe the statutory terms determined for issuing public information;
- To improve the existing inefficient system of periodic assessment of judges’ performance;
- To draft criteria for promotion of judges in a timely manner; and
- To draft proposals regarding the Code of Judicial Ethics.
- To ensure timely and efficient implementation of the activities under the responsibility of the HCoJ.