Joint Court Monitoring Report of Administrative Cases

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2 Joint Monitoring Report of Administrative Cases The monitoring project is made possible by the generous support of the American People through the United States Agency for International Development (USAID and Folke Bernadotte Academy. The contents are the responsibility of TI Georgia and do not necessarily reflect the views of USAID, the United States Government, EWMI or Folke Bernadotte Academy.

3 Contents Monitoring of Administrative Cases... Acknowledgements... 4 Introduction... 5 Methodology and Case Selection... 6 Overview of Three-Years of Monitoring on Adminsitrative Cases... 8 Fundamental Principles of Administrative Procedure... 3 Reasonable Time and Punctuality... 4 Right to a Public Hearing... 4 Principle of Handling the Hearing by a Judge... 5 Inquisitorial Principle (Judge s Initiative... 6 Equality of Arms and Adversarial Principle... 7 Monitoring N... 9 Dispute Outcomes... 9 Reasonable Time and Punctuality... 2 Right to a Public Hearing Handling of the Hearing by the Judge Inquisitorial Principle Adversarial Principle (Equality of Arms, Unbiased Settlement of Dispute Monitoring N High-Profile Cases Chamber of Control vs. Bidzina Ivanishvili ( State Audit Service vs. LTD Management Service and LTD Burji State Audit Service vs. Individuals ( Association Green Alternative vs. Ministry of Energy and Natural Recourses Dispute Outcome Reasonable Time and Punctuality... 4 Right to a Public Hearing Handling of the Hearing by the Judge Inquisitorial Principle Adversarial Principle (Equality of Arms, Unbiased Settlement of Dispute Monitoring N

4 Dispute Outcomes Reasonable Time and Punctuality Right to a Public Hearing Handling of the Hearing by the Judge... 7 Inquisitorial Principle Adversarial Principle (Equality of Arms, Unbiased Settlement of Dispute Monitoring N Dispute Outcome Reasonable Time and Punctuality Right to a Public Hearing... 9 Principle of Handling the Hearing by a Judge Inquisitorial Principle (Judge s Initiative... 2 Equality of Arms and Adversarial Principle... 4 Conclusion... 8 Monitoring Report N. Annexes... 9 Monitoring Report N2. Annexes Monitoring Report N3. Annexes Monitoring Report N4. Annexes

5 Acknowledgements Transparency International Georgia (TI Georgia would like to express its gratitude to the High Council of Justice,, and Kutaisi City s, along with, Telavi,, Zugdidi and Rustavi District s, who supported our program by providing assistance, explanations and information on. TI Georgia would also like to thank the administrative staff of the courts, including bailiffs, judges assistants and clerks. In addition, we would like to say a special thank you to Neil Weinstein, EWMI s Legal Systems Specialist, who has significantly contributed to this study with his extremely valuable experience, suggestions, and advice, also to Folke Bernadotte Academy and OSCE s Rule of Law Office for sharing their experience in the field of monitoring administrative justice. TI Georgia would like to highlight the importance of the Handbook for Monitoring Administrative Justice, which was jointly developed by the Folke Bernadotte Academy and the OSCE Office for Democratic Institutions and Human Rights. The Handbook outlines core standards that apply to administrative justice and responds to concrete needs of trial monitoring in the field of administrative justice. TI Georgia s monitoring team has consulted the Handbook and has used its practical guidance. 4

6 Introduction TI Georgia s Administrative Monitoring Project aimed to facilitate the transparency, efficiency, and accessibility of Georgia s justice system in the area of administrative law. For that purpose, TI Georgia s monitoring team attended administrative court, collected information on the procedures of those, derived statistics, analyzed the data collected, and made relevant conclusions. TI Georgia considers the project particularly important since the findings of the monitoring were made public and public had access to a comprehensive overview of what actually occurred in Georgia s courtrooms. This, in turn, helped instigate public debate on the state of the Georgian justice system and areas for reform. This chapter provides an analysis of the performance of administrative justice in Georgia during 2-24 and unifies all reports produced by TI Georgia. During this time, Transparency International Georgia monitored administrative in various cities across Georgia. TI Georgia has produced four court monitoring reports on 77 (749 overall. Cases were monitored at City (TCC, City (BCC, Kutaisi City (KCC - and the district courts of (GDC, Telavi (TDC, (KDC, Zugdidi (ZDC and Rustavi (RDC. Before the start of the court monitoring project, there were serious concerns about the administration of justice. According to the Georgian Supreme s statistics, in 2, 74% of administrative law were decided in favor of the state party. The increasing number of involving property rights violations was also alarming; there had been many allegations of serious property rights violations in the context of infrastructure developments and the state s strong interest in real estate. Several applications related to such property rights violations have been lodged with the European of Human Rights 2. Beyond the Supreme s statistics, no publicly known reports on administrative were prepared by any organization. For these reasons, TI Georgia initiated its Administrative Monitoring Project. The political situation during TI Georgia s monitoring project should be taken into consideration. During the first and second monitoring periods (the pre-election period, there were significant flaws in the administration of justice within the Administrative s. By the third monitoring TIG work card /5/2, Studio GNS documentary Property Rights Violations Digomi case, Problems related to the Protection of Property Rights - The case of Mestia, July 2, 2 Studio GNS documentary Property Rights Violations Digomi case, 5

7 period (the post-election period the overall conduct of administrative courts had changed. In addition, the percentage of in which the state party was successful significantly decreased. These trends continued during the fourth monitoring period, but problematic areas still remain. Methodology and Case Selection With the purpose of court monitoring, TI Georgia first developed a detailed checklist of questions to be filled-in by monitors (see Annex IX. Following the procedural requirements of the relevant legislation, 3 the checklist consisted of 48 questions. The checklist was comprised of multiple-choice questions with a space for comments after each question. This ensured that all of the important aspects of the were well documented by the monitors. In addition, TI Georgia developed an electronic database that provided a simple way of processing the collected information and retrieving relevant statistics. The database was identical to the paper version of the checklist and made it easier to manage and administer the collected data. For the monitoring of TI Georgia recruited monitors, which were graduating law students who were carefully selected through an open selection process. All monitors attended several daylong intensive theoretical and practical trainings before they started to monitor court. All monitors were strictly instructed to collect only procedural data and limit the contacts with the parties of the dispute. For the subjective opinions of the monitors the checklist had specially designated fields that were to be filled by monitors in case they decided to provide their own opinion on particular events occurring at the court. At least two monitors per-day went to courts to attend both new and those that had been postponed. Monitors went to attend new according to the official schedule published by the courts administrations. The monitors visited courts even when there were no scheduled on the courts official web pages, in order to have a clear picture of the published or omitted from the web pages. The work of the court monitors was supervised by a specially assigned Monitoring Coordinator, who maintained constant daily contact with monitors, assigned them to and received the data and information from Monitors on a daily basis. The project was managed by the Project Manager. 3 Georgian Administrative Procedure Code, 23/7/999, 2352 RS, and Georgian Civil Procedure Code, 4//997, 6 IS. 6

8 The for monitoring were selected according to the official schedule published on the web pages of the relevant courts. 4 TI Georgia s monitors also randomly attended when the clerks announced the start of in the corridors of the court buildings. In order to collect information on the scheduled, monitors and Monitoring Coordinator were also in regular contact with the assistants of judges, bailiffs, court administrative staff, the parties and their representatives. In 2, at the start of the court monitoring project, TI Georgia chose to focus its court monitoring project on property rights because of the increasing number of reported violations in Georgia. 5 However, in addition to property rights limited number of other types of were also monitored. Judges in the administrative chambers of the first instance courts are specialized, which in practice means that property rights are heard by a handful of judges. This creates a risk of only monitoring the performance of these same judges. For this reason and with the aim to identify all possible flaws in the procedure, TI Georgia decided to additionally monitor other randomly selected administrative. After the second court monitoring report TI Georgia select all types of through random sampling, except administrative offences and administrative proceedings related to involuntary treatment. (See Chart 2. In such a way Monitoring Project covered a diverse caseload, representative of the administrative justice system as a whole. Thus in the final two reports of the Monitoring project, through a random selection of, TI Georgia was able to gather comprehensive data and information regarding the overall system s strengths and weaknesses. Over the time, with gaining more practical experience, TI Georgia has made slight amendments to the monitoring methodology by improving the checklist. TI Georgia would like to highlight the importance of the Handbook for Monitoring Administrative Justice, which was jointly developed by the Folke Bernadotte Academy and the OSCE Office for Democratic Institutions and Human Rights. The Handbook outlines core standards that apply to administrative justice and responds to concrete needs of trial monitoring in the field of administrative justice. TI Georgia s monitoring 4 Official web page of the City : official web page of the City : official web page of District : official web page of Kutaisi City : official web page of Rustavi City : 5 Georgian Young Lawyers Association (GYLA, 22 Annual Report, visited on 3//23; Association Green Alternative, GYLA, TI Georgia, Georgian Regional Media Association, Stripped Property Rights in Georgia, March 22, visited on 3//23; TI Georgia Problems Related to the Protection of Property Rights The Case of Gonio, March 2, visited on 3//23; Problems Related to the Protection of Property Rights The Case of Mestia, July 2, visited on 3//23; Studio GNS Documentary Property Rights Violations Digomi Case, visited on 3//23.. 7

9 team has consulted the Handbook and has used its practical guidance. After consulting the Handbook TI Georgia decided to monitor the right to a court within a reasonable time. Reasonable time is an important prerequisite for having a fair trial, and also allows for better analysis of the organization and the management of the judicial system. As it is advices by the handbook TI Georgia s monitoring team paid particular attention to the specific time limits set in the legislation for various types of and stages of the proceedings. In addition to the Reasonable Time monitoring TI Georgia s monitoring team has introduced additional questions to the checklist that were deemed to check the awareness of the parties of their procedural and substantive rights and obligations. Besides, after changes were made in law and according to the new regulation court are now open to the media and audio and video recordings, as well as broadcasting, with the help of handbook s recommendations several questions were added to ckecklist to right to a public, questions consisted information about if public broadcaster or any other TV channel conduct a video recording of the / in the case and if judge select a suitable place in the courtroom for video recording. Handbook s recommendations were also used to develop the methodology of monitoring and evaluating principle of equality of arms. Overview of Three-Years of Monitoring on Administrative Cases The court monitoring project s initial results showed that concerns about the administration of justice were reasonable. The first monitoring period revealed a significant and highly problematic result: in 85% (92 of 8 of monitored the state party was entirely successful, and in 7% (8 of 8 of the state party was partially successful. During the second monitoring period, the success rates of the state party were 79% (2 of 42 and 6% (22 of 42, respectively. During the second monitoring period TI Georgia also monitored high-profile (period covered June 22- October 22. Cases were considered high-profile if they were the subject to broad media coverage, the private party involved was a public person, the amount of the potential fine was large, or there was a probable link between the dispute and politics. It was found that judges tended to differentiate between routine and high-profile. In of significant public interest, judges appeared to not only render decisions favorable to the state party, but also to violate procedural regulations in favor of the state party. Over its four monitoring periods TI Georgia observed a positive trend: the success rate of the state party has reduced significantly. Although TI Georgia only monitored a limited sample of and did not evaluate the merits of the, nor did TI Georgia review the case files, the extremely high success rate for state parties when TI Georgia began its monitoring program was of concern. Whereas success rate of state party was 85% (92 of 8 in the first monitoring 8

10 period, by the fourth period the rate has significantly reduced, with the state party entirely successful in 53% (4 of 268 of. Entire success rate of state party 85% 79% 58% 53% Monitoring # Monitoring #2 Monitoring #3 Monitoring #4 The Supreme s official statistics confirm this trend in 2 the Supreme s statistics reported that the state party was fully successful in 74% of 6 ; the ten months of statistics for 24 report that state party was fully successful in 5% of 7. With regard to the success rate of state parties, BCC showed the most significant difference between monitoring periods. During the first monitoring period, the state party in BCC was fully successful in 87% (27 of 3 of and partially successful in 3% ( of 3 of ; by contrast, during the fourth monitoring period these figures were 27% (8 of 3 and 5% (5 of 3, respectively. It should also be noted that during all four monitoring periods in most judges failed to announce the evidence they relied upon for their decision, but that the regions showed significantly better results regarding this issue. TI Georgia recommends that all judges announce the evidence on which they based their decisions to ensure transparency within the judicial system. The first court monitoring period also revealed that judges at all of the courts monitored failed to explain procedural rights and obligations to private persons. This was particularly alarming in where the private persons were not represented by a lawyer. TI Georgia observed instances when private persons were put in a disadvantageous situation due to the lack of procedural knowledge. After the release of TI-Georgia s first court monitoring report, which showed the 6 See. visited on See. visited on

11 failure of courts in explaining their rights to the parties, the courts in, and installed special cards on the parties desks at the courtrooms that listed all of the rights that parties to a dispute have. Judges have also become much more active and have started to provide an explanation of rights to private parties during the proceedings. This has significantly increased the awareness of persons not represented by a lawyer. Nonetheless, as a state party holds administrative resources and usually has its own legal department, the representation of the state party can be expected to be better than a private party without a lawyer. This creates a gap between the parties. The court s proper use of its inquisitorial power is supposed to fill that gap, with the judge maintaining a legal balance between the public institution and the private party. When utilized, this increases the likelihood that justice is served. However, during all four monitoring periods judges were very reluctant to exercise their inquisitorial powers and they were passive in their conduct of. For example, judges were very reluctant to: invite third parties to the case; request additional information or evidence on their own initiative; give instructions/recommendations to the parties; and explain to parties without an attorney/representative procedures that were to be followed during each stage of the court. The data from TI Georgia s monitoring project are not enough to fully evaluate the inquisitorial principle on an objective basis. However, based on our results, the abuse of the court s inquisitorial power was evident in some. In particular, inquisitorial powers were used against private parties during the high-profile during the second court monitoring period. For example, in one high-profile case the judge accepted additional evidence submitted by the state party at the closing stage. This was a clear violation of the procedural law, since submission of evidence from the parties at this stage is strictly prohibited. After the private party objected to this, the judge referred to the court s inquisitorial powers and declared that he was requesting the documents from the state party at his own initiative. However it was clear from the that the judge did not have such initiative, nor was the initiative declared in advance; the court s argument was put forward only after the private party objected to the judge s violation of the procedure. As for the right to public, generally, during the monitoring project anyone interested was allowed to attend administrative. The monitors had no problems when taking notes in courtrooms. Also, bailiffs and clerks were often helpful to our monitors when they were looking for a courtroom. However, during the second court monitoring period a troubling change affecting the right to a public occurred. On 9 June 22, the Chairman of TCC issued a decree under which persons interested in attending a court were banned from taking electronic devices into the courtroom. The stated purpose of the decree was to ensure that the provision of the Organic Law of Georgia on Common s, which banned audio and video

12 recordings of without the consent of the judge, was enforced. However, although the decree only limited taking devices into the courtrooms, court personnel also prohibited taking the devices into the corridors, which imposed unnecessarily strict restrictions on citizens. In practice, it took time for the bailiffs to check people for electronic devices, which sometimes hindered the ability of TI Georgia s monitors to be on time for. TI Georgia concluded that this extra measure of prohibiting electronic devices in the courts corridors was undertaken because of the number of politically charged high-profile being heard during the second monitoring period. This practice was abolished during the third monitoring period in March 23, and according to new regulations court are now open to the media. Audio and video recordings, as well as broadcasting, as a rule are now allowed; although there are exceptional circumstances when a judge can restrict filming based on a reasoned decision. TI Georgia applauds this initiative as a step in the right direction of broadening the scope of the right to a public. As the Venice Commission noted: There is no doubt that there are considerable advantages to having audio recordings of court, notably for the purpose of settling any disputes about what transpired in court and also from the point of view of the transparency of proceedings. It can also help ensuring public scrutiny of the functioning of the justice system 8. Overall, judges tended to differentiate between routine and high-profile during the second monitoring period. The most alarming problems were observed in high-profile. For example, problems regarding the right to public were observed in high-profile at TCC. The court frequently failed to publish information about the upcoming in these. Also, the in high-profile political were normally held in small courtrooms, making it difficult for many interested citizens to attend. In one high-profile case, a violation of the adversarial principal against a private party was observed. In that case the private party filed a motion to postpone the main in order to better familiarize itself with the case materials. The private party argued that a large volume of case materials were delivered only the day before the, and that this gave the party very little time to prepare. The judge denied this motion, arguing that the party had enough time to study the case materials and prepare for the. The first court monitoring period made it evident that TI Georgia needed to pay closer attention to the punctuality of courts. TI Georgia s observers witnessed when disputing parties had to wait several hours for a judge. This was a clear indication of the poor time management at the courts. Once TI Georgia started to monitor and report on the punctuality of the courts, the results became significantly better. For example, at TCC during the first monitoring period only 35% of started on time, while during the fourth monitoring period 8% of 8 Opinion on the Draft Amendments to the Organic Law on s of General Jurisdiction of Georgia, Adopted by the Venice Commission at its 94th Plenary Session, Venice, 8-9 March 23, pg. 2

13 started on time. However, although punctuality generally improved by the second monitoring period, in high-profile punctuality remained a problem with in some high-profile starting up to an hour later than scheduled. Another important problem that was revealed at the final monitoring period is related to the heavy caseload at the TCC. During the second monitoring period TCC took average 8 days to render a final decision, during the third monitoring period the time increased to 7 days, and during the fourth monitoring period decisions were rendered in 3 days on average. These findings show that number of judges appointed at TCC is not enough to handle the rapidly increasing caseload. Official statistics from TCC shows the same tendency; for example, one of the judges heard 57 in all of 23, while in the first nine months of 24 she has already decided 44 and has 63 ongoing. Another judge finalized 36 in 23, while in the first nine months of 24 he already has decided 339 and has 242 ongoing., These numbers will likely increase further before the year s end, creating significant risks regarding the quality of the decisions on one hand and the timely delivery of justice on the other hand. The problem should be addressed immediately, before it significantly affects the rights of individuals and impedes the delivery of justice to the citizens. 2

14 Fundamental Principles of Administrative Procedure The legal principles applicable to administrative are divided into two main categories: general legal principles and special legal principles. The former are consolidated in the Constitution; the latter, along with general legal principles, are enshrined in specific branches of law. 9 For the purpose of this study, TI Georgia has monitored the general and special legal principles that are applicable to administrative law. These are as follows: Reasonable Time and Punctuality; Right to a Public Hearing; Handling of the Hearing by the Judge; Inquisitorial Principle; 2 and Adversarial Principle (Equality of Arms, Unbiased Settlement of Dispute. 3 Administrative proceedings in Georgia are primarily based on the inquisitorial principle, which means that the judges should be more active during administrative than they are during civil and criminal, which are solely based on the adversarial principle. 4 Bearing this in mind, TI Georgia put a special focus on monitoring how judges applied the inquisitorial principle when handling administrative. 5 9 M. Kopaleishvili, N. Skhirtladze, E. Kardava, P. Turava, Handbook of Administrative Procedural Law, (28, pg. 9. Constitution of Georgia, 24/8/995, 786 RS, Art. 85; European Convention on the Protection of Human Rights and Fundamental Freedoms, Rome, 4//95, Art. 6; Organic Law of Georgia on s of General Jurisdiction,, 4/2/29, 2257 IIS, Art. 3. M. Kopaleishvili, et al., pg Georgian Administrative Procedure Code, Art. 4; M. Kopaleishvili, et al., pg Constitution of Georgia, Art. 4; Georgian Civil Procedure Code Art. 4, Art Georgian Administrative Procedure Code, Art M. Kopaleishvili, et al., pg

15 Reasonable Time and Punctuality Measuring punctuality is important to show how judges manage their time and how organized they are. In the course of its monitoring, TI Georgia assessed whether court started later than scheduled. The right to a court within a reasonable time is also an important prerequisite for having a fair trial, and also allows for better analysis of the organization and the management of the judicial system. This right serves as a guarantee to protect parties against excessive procedural delays, which could jeopardize the courts effectiveness and credibility. 6 Under Georgian law, courts should decide an administrative case within two months, starting from the date the claim was registered. In of special complexity, this period may be extended to five months. 7 Right to a Public Hearing The Constitution of Georgia guarantees the right to a public, stating that the court should discuss the case at an open. 8 The Organic Law on Common s also acknowledges this right, stating that court on falling under that law should be open to the public unless decided otherwise by the judge. 9 The European Convention on Human Rights also guarantees the right to a public stating, In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public. 2 Article 6 of the Convention did not specifically cover administrative proceedings, however, in Ringeisen v. Austria and König v. Germany the ECtHR decided that Article 6 should cover all proceedings, including a dispute between a private person and a public authority and in the application of administrative law In addition, the obligation to ensure that everybody is entitled to a fair and public in the determination of his civil rights and obligations is imposed on state parties by the International Covenant on Civil and Political Rights. 23 Another important international mechanism is the commitment of OSCE participating countries to accept 6 Handbook for Monitoring Administrative Justice. Folke Bernadotte Academy and Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe s Joint Initiative, working version, pg Georgian Administrative Procedural Code, , #2352-RS, Art. (2; Georgia Civil Procedure Code, 4//997, #6, Art. 59 (3. 8 Constitution of Georgia, Art Organic Law of Georgia on s of General Jurisdiction, Art European Convention on the Protection of Human Rights and Fundamental Freedoms, Rome, 4//95, Art See Handbook for Monitoring Administrative Justice, pg Ringeisen v Austria, (97, ECHR, para 94; König v Germany, (978, ECHR, paras International Covenant of Civil and Political Rights, signed on 6/2/66, in force from 23/3/67, Art. 4(. 4

16 as a confidence-building measure the presence of observers at proceedings before the courts. 24 To guarantee the full implementation of the right to a public, courts should ensure that all interested parties are given the opportunity to freely attend and to receive advance notification of the date, time and venue of each. 25 At the same time, the relevant court or the tribunal should clearly explain the reasoning behind any restrictions of the public s access to court. If there are no grounds for restrictions, the administrative courts should provide the public with adequate facilities to freely attend the in which they are interested. 26 Interested parties should also have a sound understanding of the dispute, meaning that they should be able to hear the statements and comments of all important parties to the dispute, including witnesses, experts, specialists, interpreters, judges and clerks. Therefore, judges should make sure that their statements and those of others sitting in the courtroom are loud and clear enough so that ordinary citizens attending the can listen and comprehend what the parties discuss. Principle of Handling the Hearing by a Judge According to the general principles applicable to the handling of, the judge should comply with procedural deadlines, pass through each and every procedural stage as envisaged by the law, investigate every aspect of the case, and ascertain the truth based on the findings. The way the judge handles the becomes crucial from the moment the plaintiff submits the claim to the court until the judge renders the final decision on the case. 27 In addition to these general principles, the Georgian Civil and Administrative Codes also set out specific procedures that the judge has to follow while holding an administrative court. For example, the judge is supposed to announce the case to be heard and the court composition for that case, give the summary of the case, warn those attending the of the consequences for disruption of the court proceedings, and introduce the parties to their rights, including the rights to challenge the judge and settle the case. When announcing the final decision, the judge should read the evidence on which the final decision was based, as well as the relevant legal articles and procedures for appeal of this decision. 28 In administrative court 24 CSCE/OSCE Copenhagen Document, para See Handbook for Monitoring Administrative Justice, pg Van Meurs v.the Netherlands, HRC Communication 25/986, UN Doc CCPR/C/39/D/25/986 (99, para M. Kopaleishvili, et al., pg Georgian Civil Procedure Code, Articles 2, 2, 24, 27, 28 and

17 , the judge should also correct procedural errors and explain all of the important procedures to the parties during the. 29 The judge should follow all legislatively required procedures related to the and should not skip any stage of the without the consent of the parties. The judge should also ensure that there is order in the courtroom, so that all parties to the dispute would be able to provide their evidence freely, defend their arguments, listen to the arguments of the other party, and ask questions to the witnesses in the case without any disturbances or interruptions. The proper execution of these procedures serves to guarantee the full protection of both the general and specific principles governing administrative. Proper handling of also guarantees that parties enjoy their procedural rights, including their right to plead their case, provide arguments and evidence, examine the other party s evidence, and question witnesses and each other. As a rule, a case is discussed at the main only after it has already been through preliminary and/or arraignment. 3 Hence, there is reason to believe that the parties have been informed of their rights, the identities have been checked, and a settlement has been suggested prior to the main. For this reason, particular attention should be paid to the fulfillment of procedural requirements at the preliminary and/or arraignment. Despite this fact, however, the judge is still obliged to follow the procedural requirements when opening the main. 3 Inquisitorial Principle (Judge s Initiative The terms adversarial and inquisitorial describe the two types of procedures used for resolving legal disputes through litigation. In the adversarial system, the parties themselves choose what kind of evidence they will submit to the court, whereas in the inquisitorial system the court can conduct investigations or collect the evidence that is used to decide the case. 32 The Georgian Administrative Code includes both principles, and their conjunctive use should help the judge to fully examine a case and render a fair decision. 29 M. Kopaleishvili, et al., pg Arraignment may be held in a case when there is ground to think that parties will settle, plaintiff will withdraw the claim or defendant will accept it. An arraignment may also be held when it is important for the proper preparation of a case. Georgian Civil Procedure Code, Art Georgian Civil Procedure Code, Arts. 23, 25, 27 and David Jackson: Adversarial and Inquisitorial Systems Medico-Legal Society of NSW Inc Scientific Meeting, March 29, Pg.. 6

18 According to the inquisitorial principle, the judge has the right by his/her own initiative to gain evidence, reasonably direct the parties, ask them to specify a claim and/or counterclaim, invite third parties to the case, and direct the parties to gain certain evidence. The judge also has the power to gather evidence by himself/herself, in order to investigate every aspect of the case and facilitate a just decision. These judicial powers are codified in the Administrative Procedure Code. One of the most obvious examples is Article 4, which states that a judge may request any additional information at his/her own initiative. 33 In a civil dispute the judge is not awarded the abovementioned rights, stemming from the fact that the purpose of a civil dispute is the protection of private interests only. By contrast, the public interests at issue in administrative make the appropriate use of the judge s inquisitorial powers vitally important. The execution of a judge s inquisitorial powers is particularly crucial where a private party is not represented by an attorney, as no free legal aid is provided by the state to a private party involved in an administrative dispute; in such, there is reason to believe that the private party will not be able to appropriately participate in a proceeding without the assistance of the judge. The inquisitorial powers give the judge a leading role in maintaining a legal balance between the public institution and the private party so that public interests are preserved. This, however, does not mean that the parties to the dispute should be passive during the or unreasonably restricted by the judge in the application of their rights. 34 Private parties who are opposed by administrative authorities must have the opportunity to fully participate in the proceedings and exercise their rights. 35 In order to determine whether judges utilized their inquisitorial powers, TI Georgia s monitors took note of the questions that the judges asked the parties during the. The monitors also observed whether the judge invited third parties to the case at his/her own initiative, gave recommendations/explanations to the parties, assisted parties in gaining evidence, established any relevant circumstances of the case, used his/her powers consistently, helped parties to fully enjoy their rights, etc. Equality of Arms and Adversarial Principle The Georgian procedural legislation clearly states that the adversarial principle is a fundamental principle of administrative, working in conjunction with the inquisitorial principle. The principle of judicial impartiality is recognized by a number of international instruments, among 33 Georgian Administrative Procedure Code, Art M. Kopaleishvili, et al., pg Council of Europe, Committee of Ministers, Res 78 (8, Resolution on Legal Aid and Advice, 2 March 978; Van der Mussele v Belgium, (983, ECHR, paras. 29-3; see Handbook on Monitoring Adminsitrative Justice, pg

19 them the International Covenant on Civil and Political Rights. The importance of this principle was also highlighted during a number of international conferences, and acts such as Council of Europe (CoE recommendations 36 and ODIHR Kiev recommendations 37 were drafted as a result. Judges are obligated to insure that the adversarial principle and party equality is fully observed in the courtroom. The principle of equality of arms is of particular significance in administrative proceedings, where the parties are private persons and administrative authorities. A judge, who is a public employee him/herself, is required to settle disputes involving public entities. As such it is particularly important that the judge ensure the equality of arms, so there is no concern that he/she is not impartial where the state is a party. 38 The principle of impartiality also implies that private persons should have the ability to actively participate in the proceedings to ensure their fairness. 39 According to a ruling of the ECHR, the principle of equality of arms requires a fair balance between the parties in order for each party to be afforded a reasonable opportunity to present his/her case under conditions that do not place him/her at a substantial disadvantage against his/her opponent or opponents. 4 Party equality may be violated by the judge: being too active; interrupting the parties; limiting, modifying or restricting their questions; granting the motions of only one party; requesting additional information from only one party; or gaining evidence to help justify the position of one of the parties. But the adversarial principle may also be violated by the judge being too passive. This happens when, for instance, one party disturbs the other s enjoyment of its rights and the judge does not undertake measures to improve the situation, does not limit a question which should be limited, does not request information necessary to ascertain the truth, etc. Impartiality of the judge is breached when there is proof of actual dependence or bias (violation of subjective impartiality, or when the factual circumstances raise a legitimate doubt as to whether there has been any dependence or bias (violation of objective impartiality. 36 CoE Recommendation on Judges: Independence, efficiency, responsibility and the European Charter on the Statute for Judges, adopted at the multilateral meeting on the statute for judges in Strasbourg from 8- July 998, DAJ/DOC ( Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia. 38 M. Kopaleishvili, et al., pg Handbook on Monitoring Administrative justice pg Schuler-Zgraggen v Switzerland, (993, ECHR, paras

20 Monitoring N Dispute Outcomes First Monitoring Project revealed an additional significant and potentially problematic area in the handling of administrative disputes: In 92.6% of ( of 8, the state party was successful either entirely or partially. 4 This is significantly higher than the already high success rate for state parties in 2 (75%, as indicated on the Supreme website. 42 TI Georgia did not review the merits of the, nor did it review the case files. Because the substance of the was not assessed, TI Georgia does not state an opinion as to the fairness or legality of the decisions. 7, 6, 5, Chart. Supreme Statistics State Vs. Private Party , 3, 2, Private Party Winning State Party Winning Settlement,, See Annex 8, table 8., 8.2 and Supreme Statistics for 2, visited on 2/4/2. 9

21 Chart 2. TI Georgia Statistics State Vs. Private Party 7.4% 8 Cases 7.4% 8 Cases 85.2 % 92 Cases Private Party Winning State Party Winning Partially Both/Neither Reasonable Time and Punctuality Almost two-thirds of the monitored in started late, with only 35.% of the (6 of 74 starting on time. 43 Of the judges who were late, judges in were on average 8.7 minutes late; however, in some the delay was much longer, and in one case the judge was 8 minutes late. Of the starting later than scheduled, 58.4% (66 of 3 had delays of minutes or more; of those, the judge announced the reason for the delay in only 25.8% of (7 of See Annex 3, Table See Annex 3, Table 3.3 and

22 In 22.7% of the (5 of 66 the reason for delay was that the previous lasted too long; in 9.% of (6 of 66 one of the parties was late; in 7.6% of the (5 of 66 there was another reason for the delay. 45 At BCC over 7% of started late, with only 29.5% of the (23 of 78 starting on time. 46 The average delay in was 2.4 minutes; the maximum delay observed was6 minutes. Of the starting later than scheduled, 94.6% (52 of 55 had delays of minutes or more. Of those, the judge announced the reason for the delay in only.5% of (6 of In 7.7% of the (4 of 52, the reason for delay was the previous lasted too long; in 5.8% (3 of 52 one of the parties was late; in 5.8% (3 of 52 there was another reason for the delay See Annex 3, Table 3.5. The other reasons for starting late were: the courtroom was not available, the courtroom was not scheduled, the auto recording system was out of order and the judge was looking for a clerk to manually record the, the judge was waiting for a detainee to be brought to the court building, and the judge was waiting for a clerk to bring the evidence requested on the initiative of the judge, which had not been sent to the plaintiff. 46 See Annex 3, Table See Annex 3, Table 3.3 and See Annex 3, Table 3.5. The other reasons for the starting late were: the courtroom was not scheduled, no clerk was available, and both parties were absent. 2

23 Chart 3. Hearings Starting Late (74 Hearings starting late Hearings starting on time Chart 4. Hearings Starting Late (78 Hearings starting late Hearings starting on time 35% (6 65% (3 heairngs 29% (23 7% (55 Right to a Public Hearing TI Georgia s court monitoring project determined that, in general, anyone interested is allowed to attend an administrative. Monitors had no problems when making notes in the courtroom. Bailiffs and clerks were often helpful when looking for a courtroom. Despite this, TI Georgia observed several instances which may be seen as infringements of the right to a public, as guaranteed by Georgian legislation and the European Convention of Human Rights. TI Georgia s monitoring discovered that were sometimes missing from the official schedule published on TCC web-page. 49 In 3.2 % of (23 of 74, were not 49 official schedule was not published on BCC web-page during the whole monitoring period; hence TIG has not monitored the missing from the schedule in. 22

24 published. 5 For example, the list of for 2 January 22 was missing from TCC s electronic board. Also, for the period from 3 October 2 through 7 October 2, at TCC the list of on civil was published instead of the list on administrative. Perhaps most notably, a case of significant interest to society was missing from the TCC schedule. The case concerned the decision to determine the waste collection fee for an address within municipality according to the amount of electricity utilized per month, which was adopted by the City Assembly on 24 June 2. 5 Imposition of this new tax was followed by wave of discontent from citizens and the media, because of the absence of a logical link between waste generation and electricity usage. Many also argued that the new regulation imposed much higher waste collection fees on the population than before, and a claim requesting abolishment of the decision was lodged at TCC. After a decision on the claim was rendered by the judge, a press release was published on the TCC web-page stating that the claim was denied. 52 Despite the fact that there was very high public interest in this particular case, only the first of the case was published on the official schedule of TCC, the following were missing form the schedule. 53 In one case, the judge directed the clerk to record that the parties were in the process of negotiating a settlement; the plaintiff was against a settlement and protested the judge s act. In another case, which was recorded manually by the clerk because technical problems prevented an audio recording of the case, the judge asked eight questions during opening statements and gave directions to the clerk to record just the answers and not the questions themselves. The judge stated that the purpose of the questions was to frame the opening statements in a way that was most appropriate for her/him. At TCC In 3.% of ( of 77, monitors were not able to determine the name of plaintiff s attorney/representative, at BCC the names were not determined in 3.2% of ( of 3. Monitors were not able to determine the names of defendant s attorney/representative in 5.6% of (2 of 77 at TCC, at BCC the names were not determined in 6.5% (2 of The reason for this is bad acoustics in the courtrooms, as well as unclear and fast pronunciation of the names by the clerk. 5 See Annex 4, Table City Council Decision 7-38, 24/6/ visited on 4/5/ products=&geo=on&x=5&y=9&action=adm_search, visited on 4/5/ See Annex 4, Table 4.2 and

25 In both TCC and BCC, the schedule of never indicated the subject of the case that is, the relevant Administrative Code article. Even though this is not a requirement of law, publishing the relevant article involved in the dispute (as is done in Criminal Cases would have enabled an interested person to get a general understanding of what will be discussed at the before entering a courtroom. Publishing this information on the web-page would have raised the level of publicity and facilitated the full enjoyment of the right to a public. It is also important to draw the number of gaps when audio recording a to the minimum. The of pausing the recording of the, as well as giving directions to the clerks must be excluded from the practice. Judges must also insure that attendants are in course of the content of a taking place in a courtroom and that the right to a public is fully observed. Chart 5. Unpublished Hearings (74 Published Hearings Unpublished 3% (23 87% (5 24

26 Chart 6. Determination of the names of plaintiff's attorney/representative ( - 77, - 3 Names determined Names not determined 87.% ( % (3 3.% ( 3.2% ( case Chart 7. Determination of the names of defendant's attorney/representative ( - 77, - 3 Names determined Names not determined 84.4% ( % (29 5.6% (2 6.5% (2 25

27 Handling of the Hearing by the Judge Judges in both TCC and BCC courts followed some of the procedural requirements well. However, in the majority of this practice was not consistent and relevant procedural requirements were not fully complied with at all times. Examples of the procedural requirements that were regularly met include: - Judges checked the identity of the parties present at the, checked the power of attorney/identity of the attorneys/representatives; 55 - Announced the case to be heard; 56 - Announced the court composition; 57 - Warned those present regarding the disruption of the court; 58 and - Informed the parties of their right to challenge the judge and file motions. 59 In addition, in the vast majority of judges did not skip any procedural stage of the without consulting the parties; either all stages were conducted or the parties consented to the skipping of stages in 93.5% of at TCC (72 of 77, and in 7% of at BCC (22 of 3. 6 When moving from one stage to another, the judge announced the commencement of the next stage in 94.8% of at TCC (73 of 77, and in 96.8% of at BCC (3 of 3. 6 In 94.8% of at TCC (73 of 77, judges asked the parties whether they wanted to review the evidence already in the case files in the courtroom. At BCC, they did so in 93.5% of (29 of In both and, judges had no significant problem maintaining order in the courtroom. However, in three of the 3 monitored at BCC the judge failed to maintain order; at TCC, there was order in the courtroom in every case observed by our monitors See Annex 5, Table 5. and See Annex 5, Table See Annex 5, Table See Annex 5, Table See Annex 5, Table See Annex 5, Table See Annex 5, Table See Annex 5, Table See Annex 5, Table