At the plenary session on 1 November 2013, the Parliament of Georgia discussed the President’s comments on the amendments to be made to the Law of Georgia on Common Courts.

According to the President’s comments, the rule of appointing judges for a probationary period of three years, as well as the monitoring principles of their activities, are unacceptable. Member of the Parliamentary Majority Shalva Shavgulidze highlighted international practice in this regard: “Do the international acts foresee a probationary period? The European Charter on the Statute of Judges provides a probationary period before a permanent judicial appointment is made, it does set certain requirements for such cases, however. Monitoring must, therefore, be provided through the intervention of an independent authority that is neither a part of the legislative nor the executive government and is compiled by a majority of judges. In our case, the Council of Justice can be such a safeguard.”

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decided to look into the European experience in this respect.

The European Commission adopted the European Charter on the Statute of Judges in 1998. The Statute aims at ensuring the competence, independence and impartiality of judges. Despite the fact that the members of the European Union define their judiciary systems on their own, the abovementioned Statute foresees the general principles as to how judges should act.

According to Paragraph 3 of Article 3 of the Statute, a trial period for judges may be set before a permanent judicial appointment is made. After the probationary period the decision to appoint a selected candidate as a judge is taken by an independent authority or on its proposal, recommendation, with its agreement or following its opinion. Additionally, according to Paragraph 3 of the Article, at least half of the authority, independent from the executive or legislative government, should be elected by the judges themselves.

As Shalva Shavgulidze points out, in the case of Georgia the High Council of Justice can serve as the independent authority. The Organic Law of Georgia on Common Courts defines the procedure of holding the High Council of Justice of Georgia. According to Paragraph 3 of Article 47 of the Law, half of the members of the High Council of Justice should be elected by the self-governing bodies of the common court judges. Therefore, the High Council of Justice is truly an independent authority satisfying the requirement of the European Charter. Additionally, the European Charter envisages the appointment of judges upon a trial period.

In this regard, it would be interesting to review the experience of other European countries. In Germany, the performance of the judiciary government is regulated by the German Judiciary Act. Section 12 of the Act provides the concept of a judge on probation. Before the appointment of a judge for life, the candidate has the status of a judge on probation from three-to-five years. During the four years following the appointment of a judge for life, an independent committee can revoke the appointment at any time provided the judge is inappropriate for the position. During the first two years, the performance of the judge is reviewed every six months. The committee has a right to appoint a judge for life after three years of a probationary period. The probationary period can be extended up to five years.

In Estonia, the aforementioned issue is regulated by the Courts Act of 1991. According to the Act, one of the grounds for dismissal of the judge within three years of the appointment can be his/her incompatibility with the position. After three years, however, there are no grounds for dismissal. This regulation confirms that in Estonia a judge has a probationary period of three years when he/she has to confirm the competence of being a judge.

The Hungarian legislature also provides a permanent appointment of judges. However, before a lifetime appointment, judges of the common court are given a trial period of three years. The trial period is not necessary for the candidates having experience of serving in the constitutional court for five years within the position of a judge, notary, prosecutor, attorney or a court adviser.

Conclusion

The European Charter on the Statute of Judges provides a provision on the appointment of judges for a probationary period and the monitoring of their performance by an independent authority. The definition of an independent authority envisaged by the Charter coincides with the definition of the High Council of Justice of Georgia in the Organic Law of Georgia on Common Courts. Thus, the High Council of Justice can be claimed as the independent authority required by the European Charter without any doubts.

Therefore, the statement of Shalva Shavgulidze: “The European Charter on the Statute of Judges provides for a probationary period before a permanent judicial appointment is made,” is TRUE.