Levan Samushia: “Disciplinary proceedings can be initiated against a judge, potentially resulting in their secondment to a location 200-300 kilometres from Tbilisi.”
Verdict: FactCheck concludes that Levan Samushia’s statement is TRUE.
Analysis
During a TV Pirveli broadcast, Levan Samushia, a member of the Lelo political party, addressed several issues related to the judiciary, amongst others. The rule governing the reassignment of judges was one of the concerns he raised, stating: “It has been a year and a half since this change was adopted – namely, the relocation of judges. So what did they do? If the heads of the Court do not like a particular judge, they can initiate disciplinary proceedings and transfer them to a location 200-300 kilometres from Tbilisi – say, to Mestia – or bring someone from Mestia to Tbilisi. They did this at the legislative level.”
FactCheck investigated the accuracy of Levan Samushia’s statement.
The secondment of judges is regulated by the Organic Law of Georgia on General Courts. The law states that the High Council of Justice is authorised to propose the transfer of judges from other courts, if necessary – for example, when there are staff shortages at another court, a steep increase in caseload, or other objective circumstances that require such decision for the proper administration of justice. [1]
If any of the judges expresses consent, the High Council of Justice may assign them to another court for a specified period. However, if no judge agrees to the transfer, the Council is authorised to reassign a judge without their consent. Such an assignment may last up to two years and must be terminated early if the circumstances prompting the transfer no longer exist. Furthermore, the term can be extended for an additional period of up to two years – again, without the judge’s consent. A judge may be reassigned without their consent only once within a ten-year period. [2]
The Venice Commission recommended limiting the High Council of Justice’s authority to reassign judges without their consent in March 2023. Furthermore, the Commission called for the introduction of stricter criteria for such transfers, including limitations on duration and location, as well as the creation of a selection mechanism based on the principle of randomness. [3]
The Venice Commission issued an updated opinion following new amendments to the law in 2023. The document, which was published on 6-7 October 2023, revisited the issue of judges’ secondment amongst other concerns regarding Georgia’s judiciary. The Commission stated that the June 2023 legislative amendments introduced only linguistic changes to the first paragraph of Article 371 of the Law on General Courts. This article outlines the conditions under which judges can be reassigned, including staff shortages and an increase in caseload. However, it also includes a third alternative criterion: “other objective circumstances related to the interest of the proper administration of justice.” The Venice Commission assessed this clause as open-ended, thus lacking clarity and foreseeability. [4]
The June 2023 amendments also introduced a monthly travel supplement to the regular salary of a judge under secondment, added in paragraph 5 of Article 371. Whilst the Venice Commission positively received the aforementioned provision, the body noted that it does not sufficiently address its key recommendations. The Commission warned in its conclusion: “The current powers of the High Council of Justice to second or transfer a judge of their choosing for up to four years on wide and partly unclear grounds carry a real risk of undue interference by the HCoJ that is problematic in itself.”
A new draft law was introduced addressing this issue in September 2023, which prohibited extending a judge’s initial period of transfer beyond one year, effectively limiting involuntary secondments at maximum of three years. However, this change was assessed as insufficient. As highlighted in the Venice Commission’s October opinion, the key issue remains unaddressed – namely, the High Council of Justice’s authority to reassign judges based on “unclear and open-ended criteria” which poses “a real risk of undue interference.” The September amendments did not address this fundamental concern, according to the document.
Disciplinary procedures must be initiated in order to reassign judges on grounds of secondment according to Levan Samushia. In reality, the process is less complex – in addition to shortages or caseloads, a judge may also be transferred based on any circumstance deemed related to the “proper administration of justice.” This criterion has also been assessed as problematic by the Venice Commission. Considering all the above, FactCheck concludes that Levan Samushia’s statement is TRUE.
[1] Organic Law of Georgia on General Courts, Article 371. Available at https://matsne.gov.ge/en/document/view/90676?publication=52.
[2] Refer to the aforementioned source.
[3] Venice Commission’s Recommendation published in March 2023. Available at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2023)006-e.
[4] Venice Commission’s Recommendation published in October 2023. Available at https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2023)033-e
