On 24 July 2014, the first hearing of the amendments to the Organic Law of Georgia on Common Courts was held at the plenary session of the Parliament (the amendment was adopted on 1 August after the third hearing). During the hearing, the Deputy Minister of Justice, Giorgi Baramidze, made a statement: “We often hear criticism from the representatives of the judiciary system that the probationary period for judges is a risk to their independence. Such practices exist in advanced democracies such as Germany.”FactCheck
took interest in this statement and verified its accuracy.Before the constitutional amendment of October 2013, judges were appointed for at least a ten-year period. According to the current Constitution, judges are appointed for life. Before the judge receives a lifetime appointment, however, he/she may be appointed for a limited period of time which cannot be more than three years (Article 86.2). FactCheck wrote
about the lifetime appointment of judges earlier as well.
The Organic Law of Georgia on Common Courts has also been amended. Previously, the law did not provide for the criteria and procedures of selection of the judges to be appointed for life. That is why the Ministry of Justice initiated a bill which would provide such criteria.According to the already adopted amendment, judges appointed for a three-year probationary period will be assessed at the end of each year (Article 36.44)
based upon the following criteria:Criterion of good conscience:
a) Good personal and professional conscience;
b) Independence, impartiality and fairness;
c) Personal and professional behaviour;
d) Personal and professional reputation;
e) Financial obligation.Criterion of competence:
a) Knowledge of the laws;
b) Ability and competence of legal argumentation;
c) Writing skills;
d) Verbal communication skills;
e) Professional features including behaviour in the court room;
f) Academic achievements and professional training;g) Professional activities (Article 363). The performance of the judges is assessed by one judge and one non-judge member of the High Council of Justice of Georgia. They make their assessments independently from each other and at the same time (Article 364). After the expiration of the three-year probationary period, the High Council of Justice of Georgia makes a decision about whether or not to appoint a particular judge for a lifetime period. The decision is based upon the analysis of the assessment criteria and personal interviews and is made by two-thirds of the votes (364.16).
On 28 September 2013, the Coalition for an Independent and Transparent Judiciary commented upon the probationary period for judges: “Both the Organization for Security and Co-operation in Europe and the Venice Commission agree that a probationary period can represent a serious threat to the independence of the judges. As early as in 2010, the Venice Commission issued a respective recommendation to Georgia.”
It should be pointed out that the Venice Commission recommends the elimination of the article providing for the probationary period. The Commission draws the attention to the risks to the judges’ independence. However, it also clarifies that their recommendation does not require the outright abolition of the temporary appointment of judges.
In his statement Aleksandre Baramidze also talked about the probationary period for judges in Germany. We looked into this issue as well. In Germany the judges are appointed for a lifetime period or, in certain cases, for a limited period of time. Before the judge receives a lifetime appointment, he/she must go through the probationary period of five years. It is also obligatory for the judge to have completed four years of university studies and a two-year preparatory training and to have passed a state examination.The judge may be freed from the probationary period on the 3rd or 4th year if he/she is considered not suitable for the position or the commission of judges rejects his/her lifetime appointment. After the five-year probationary period the judge is appointed
for life.We also examined the judiciary practices of other European countries and found that 18 out of 46 countries exercise
a probationary period for judges. For example, the judges in Estonia, Hungary and Serbia must go through a three-year probationary period. In France and Monaco the probationary period is five years, in Greece it is 18 months whilst in Spain and Portugal it reaches two years.
The judges in Georgia must go through a three-year probationary period before receiving a lifetime appointment. In order to guarantee their appointment, they should meet the good conscience and competence criteria during their probationary period.
The practice of a probationary period for judges is widely exercised in various countries of Europe, including Germany, where the judge must go through a five-year probationary period. In total, 19 European countries have a probationary period.
The report of the Venice Commission should also be taken into account as it recommends the abolition of the probationary period. Hence, the example of Germany (which is indeed an advanced democracy) is not enough to assess the situation in Georgia.Based upon the aforementioned arguments, FactCheck concludes that Aleksandre Baramidze’s statement: “We often hear criticism from the representatives of the judiciary system that the probationary period for judges is a risk to their independence. Such practices exist in advanced democracies such as Germany,” is HALF TRUE.