Venice Commission releases recommendations for Georgian justice reforms

The Venice Commission of the Council of Europe has praised Georgian efforts to carry out systemic reforms in the justice field and provided its recommendations regarding the draft laws about the Prosecutor’s Office and the High Council of Justice, independent bodies responsible for the selection and dismissal of chief prosecutors and an unbiased judiciary in the country.

The recommendations of the Venice Commission regarding the Prosecutorial Council, a 15-member independent body composed of prosecutors and investigators who are taking part in the selection and dismissal process of a chief prosecutor:

• The current composition of the Prosecutorial Council, which consists of a majority of prosecutors elected by their peers, achieves professional representation and expertise, but does not enhance public credibility of its independence. An enhanced representation from civil society could achieve this purpose;
• When assessing the independence of the Prosecutor’s Office, it is important to ensure that not only the external independence of the Prosecutor’s Office is ensured in relation to the legislative or executive powers, but also that of the internal independence of the prosecutors. The Prosecutorial Council, in this respect, should be attributed with the role of ensuring at least a minimum set of guarantees (which should be included in the draft Law), such as:

the obligation of the superior prosecutor (including the Prosecutor General) to provide instructions in written form (at least on the request of the subordinated prosecutor);

the right – and more importantly, the duty – of the subordinated prosecutor to draw attention to the (alleged) illegality of an instruction received from his or her superior, as well as to the dangers of its implementation;

the right of the subordinated prosecutor to express dissenting opinions regarding an instruction and to have this opinion attached to the files;

the right of the subordinated prosecutor to ask for the reassignment of a case if s/he cannot follow the instructions due to professional or conscience and conviction.

• To achieve a balance between the hierarchical control over and the independence of prosecutors, shared competences of the Prosecutor General and Prosecutorial Council should be provided regarding the careers of prosecutors (e.g. proposal for promotion by the Prosecutorial Council).
• In order to strengthen the Prosecutorial Council in view of its new specific role, it is suggested that the career management, ethics and incentives council headed by the Prosecutor General – be subordinated to the Prosecutorial Council.
•  For the Prosecutorial Council to guarantee the transparency of the Prosecutor’s Office the bill needs to expressly indicate how this task is to be fulfilled. The replies of the Prosecutorial Council to the report by the Prosecutor General should become an integral part of the report of the Prosecutor General to Parliament.

Recommendations for the High Council of Justice (HCJ), an independent body, created to coordinate the judiciary system and to promote the effectiveness and independence of the judiciary:

• Terminology for the grounds for terminating the powers of a member of the HCJ needs to be clear and precise. Objective criteria should be established instead setting out what is deemed proper or improper fulfilment of duty.
• The HCJ must be an independent body and should not depend on the Conference of Judges. If this accountability is a reporting obligation only, that should be more clearly set out in the Law.

The Georgian Young Lawyers’ Association has called for more involvement of NGOs and the civil sector in the reform process and expressed readiness to participate in the process.