BY, Sophico Sichinava

“I do not like the word reform. Events going on in judicial system cannot be described as reforms, but rather as formation” ? once said Lado Chanturia in an interview with us. We cannot but agree with him.

He who had no common with courts; he who was not suppressed and proved that black is white, that kidnappers, murderers and robbers are only prankish “good fellows”, he who was not deprived of business by his partners will never understand what is implied under the formation and why we and the whole Europe speak and pay so much attention to judicial reforms.
After the reforms Georgian judicial system became to correspond with world standards though implementation of very interesting and serious plans is still in store for us. In spite of this, if similar measures are not taken in law enforcement agencies, the world standard judicial system in Georgia may just turn into oasis. Lado Chanturia, chairman of Supreme Court, is guest of our journal number.
We should agree to the fact that organisation of such forum under the aegis of Euro Union is a great honour. It indicates at the successful implementation of legal and judicial reforms mentioned by vice secretary of the Euro Union. The conference was opened by the Georgian President. Chairmen of the Supreme Court of European Council countries from 27 countries took part in it. The total number of representatives exceeded 55. The main topic of conference was cassation, frames and control of cassation. The number of legal actions in the Supreme Court of Euro Union member-countries is increasing. Besides, one of the most serious and disputed issues mentioned in the resolution was the way of discharging the Human Rights Court from numerous legal actions. We should like to mention that there are more than 41 judges in the Court that serve 8000 million people in Europe. The great increase in the number of legal actions has put the normal functioning of the Court under threat. Thus, the main issues of the resolution were the way of discharging Europe by means of national Supreme Courts. Conference has been held for three days. During the first day of conference, I was a chairman; chairman of Belgium Supreme Court presided over the session at last day. He will, probably, be invited to the future conference. For 3 days very interesting and useful reports of experts from Italy, France, and Norway were read at the conference. The participation of the Supreme Court in these discussions was of interest, too. It was a purely political session. It was mentioned that cassation systems in many European countries differed from each other. I was surprised to find out that our cassation system formed in the result of reforms mainly based on German and Austrian experience that is considered to be the best one in Europe. The question under consideration was also the way of controlling a great number of cassations. The possibilities of the Supreme Court are limited now. As far as we know, everybody tries to refer legal matters to the Supreme Court. Our opinion about the limitation of judges’ authority to make selection of complaints was also taken into account. The law will determine when the cassation court must not accept complaints. We have similar system in the sphere of civil matters. If dispute is less than 1000 GEL, the complaint will not be appealed to the Supreme Court.
– When do similar conferences are held? Was the holding of conference by countries with rich traditions in Georgia – country of no experience in this sphere – caused objectively or by anyone’s sympathies and wish to support the present reforms?
– It was, in fact, support and recognition of judicial reform in Georgia. From this point of view, Georgia is one of the leading countries in the whole post-Soviet area. The secretary of European Council mentioned this fact in his salutary speech. This way or that, Georgia serves as an example for other countries. As for the dates, the conference is held every year, but decision was taken to hold it once in two years. By the way, Georgia is the first country of all the post-Soviet countries except Estonia where such a conference was held. It certainly, means recogni”I do not like the word reform. Events going on in judicial system cannot be described as reforms, but rather as formation” ? once said Lado Chanturia in an interview with us. We cannot but agree with him.
He who had no common with courts; he who was not suppressed and proved that black is white, that kidnappers, murderers and robbers are only prankish “good fellows”, he who was not deprived of business by his partners will never understand what is implied under the formation and why we and the whole Europe speak and pay so much attention to judicial reforms.
After the reforms Georgian judicial system became to correspond with world standards though implementation of very interesting and serious plans is still in store for us. In spite of this, if similar measures are not taken in law enforcement agencies, the world standard judicial system in Georgia may just turn into oasis. Lado Chanturia, chairman of Supreme Court, is guest of our journal number.
tion of our country and support of Euro union so we do not care of what the member-countries of Euro Union think of us.
– Different kinds of economic crimes have increased in number. It was an unimaginable thing before. How did the reformed system adopt to the novelties?
– We have passed many important new laws in the first years of independence that form legal framework of market economy. It was entrepreneurial law, civil code – the most important of all the laws, and many others. Important reforms were made in banking, We passed a completely new law. As a matter of fact, we have not had banking system till now. Foreign experts often say that former colonies of England and France preserved organised banking system after gaining independence. There has been no such thing in Georgia since the disintegration of the Soviet Union. It was essential to start everything all over again. Therefore, a new judicial system was necessary for interpreting the peculiarities of new law. A decision was taken to test the knowledge of future judges or candidatures for the post of judge. Market economy has, certainly, engendered relations and disputes that were alien to us before. Even now judges find it difficult to solve many issues. Therefore, we co-operate with foreign partners very intensively, especially, with Germans. We are not ashamed to admit that we often invite them to help us in the solution of difficult lawsuits. We invite foreign partners to the Supreme Court for a period of 2-3 months. They work with us on these concrete issues and help us to solve problems of qualification improvement. However, it is clear that qualitatively new relations were established. For instance, bankruptcy of private sectors, which was an unimaginable thing before. The vulgar notion of bankruptcy is much different from its legal notion. Bankruptcy does not mean that an enterprise must be closed and thrown away. It is a process that might go on for years. It requires people with appropriate qualification and ability to take the right decision, which is a very difficult job. After the establishment of private companies there arose the necessity to settle disputes concerning assignment of shares. This was followed by significant amendments in the law and, certainly, in court practice. The same can be applied to the enterprise management. Thus, many novelties were introduced that had been alien to us before. Nowadays, only highly qualified judges can take a competent decision as f.e. disputes about real estate soon after the establishment of private property on land. Disputes connected with privatisation are the most difficult ones. One of its reasons was law passed during the “perestroika” period (the USSR period) based on the vulgar notion of private sector in the course of the privatisation process. I mean the so-called abstract notion of work collectives, peoples’ property. This gave rise to many disputes. There are some disputes concerning previous years’ privatisation. This, certainly, made judiciary activities very interesting, but at the same time quite complex and responsible
– As for criminal offences, they have become very different and multilateral in accordance with market economy. Yet, we can criticise this judgement by saying that economic criminal law lags behind the development of market economy. In spite of the fact that we have a new criminal code, corpus delecti are not adequate whereas in other countries it is subject to criminal responsibility. For example, our Entrepreneurial Law envisages for the obligation of director to launch a bankruptcy lawsuit in case the enterprise becomes insolvent i.e. if its debts exceed social property. This norm is, in fact, not implemented. Yet, the aim of this norm is to defend creditors. Therefore, participants of market relations should have information on the economic situation of subjects participating in these relations. Apart from it, the aim of the norm is to inform partners that do not take part in direct management of the enterprise and authorise directors to do this work. There is not an adequate norm in the criminal code that would punish directors for it. In any countries of the world, criminal responsibility for this breach is very heavy. Under the Entrepreneurial law, director is liable with his property for a failure to fulfil hisresponsibilities. This institution has not been applied till date. I mean that a very serious mechanism of criminal responsibility exists in the countries of market economy along with free enterprise. This provides honourable fulfilment of duties by directors who can dip in the gravy. As partners and shareholders do not take part in direct administration of estate, directors might abuse the authority granted them. As a matter of fact, Georgian law does not provide any responsibility. Nor we have anything of the kind in court practice. I do not speak of traditional crimes: smuggling, breach of customs rules, concealment of assets, etc. where criminal responsibility is not so widely used though it is obviously inefficient compared with the scale of crime we presently have.
– Independent arbitration got involved in the economic process during credit financing. How does it co-exist with the court?
– There are alternative ways of solving disputes in all countries represented by arbitration, but the role of this arbitration is very small. They will never substitute for courts. There is no case when private arbitration would substitute for courts.
– It is, first of all, explained by the fact that parties have to decide upon the way of resorting to the private arbitration in advance. Private arbitration is mediators’ court established by the persons who expressed a wish to have the dispute settled by means of private arbitration. Thus, private arbitration can not be considered to be a rival of the court; it co-exists with the court and represents a natural part of alternative means of settling disputes. There are several arbitration courts in Georgia, but their load is so unimportant that we can hardly compare them with the lawsuits in courts. Last year the total number of lawsuits in courts exceeded 4 thousand. But private arbitration court had less than several dozens of lawsuits. There are very important international private arbitrations of which arbitration at the Paris International Chamber of Commerce is the most important one as well as arbitration in London, Stockholm. Some arbitration courts have even been established in Russia, we can even say that there is arbitration boom there. However, their role in the world as well as in our country is not significant.
– Private arbitration does not represent a separate institution. In fact, it is a list of arbitrators for the settlement of concrete issues. There are rough-and-ready established arbitrations designed to settle particular disputes. There are numerous variations principally used in international trade relations in case if during the investment disputes companies of other countries do not trust national judicial system. It is especially characteristic for the countries of market economy. One of terms during the implementation of investment and establishment of joint enterprise is consideration of disputes in some international arbitration courts.
– What advantages do arbitration courts have in settling economic disputes?
– The advantage is that parties themselves institute legal proceedings. Thus, the parties have the right to change arbitration, arbitrator or mediator. There is no such thing in national courts.
– The second advantage is trust. When parties choose an arbitrator, they, certainly, trust his decision. These are two main arguments. Besides, there are United Nations rules, i.e. “Usitral” – international rule of settling disputes. A bill was prepared in our country, but unfortunately, it was not yet considered by the Parliament. The bill contains unified rules of settling disputes by private arbitrations.
– Legal proceedings and decisions are one side of the matter, but there is another one ? justice is usually difficult to achieve. What is your attitude to the executives in economic process?
– It is an interesting question, but not because it means execution of particular decisions. The matter is that execution of legal decisions is directly proportionate to the state power i.e. a state does not have the right to execute decisions taken by the court. If we compare percentagewise unimplemented legal decisions with political or other ones that were not implemented by the state, the correlation will be equal. It is in direct proportion. Therefore, it is a very serious problem. Co-operation with international organisations envisages for co-operation in this sphere. Executive agencies are in subordination to the Ministry of Justice. The only functions of courts are to take decisions on the basis of laws.
– There are several models here, too. They are different in different countries.
– This service in Germany completely belongs to the state. Legal decisions are executed by means of state police. There is another system in France similar to the functions of notaries. It is a private union. A person in whose favour the legal decision was taken pays a particular sum of money for the execution of the decision. We have a more or less mixed system because law does not provide for payment of particular sum for the implementation of decisions. I do not know the statistic data and the exact number of executed and non-executed decisions. There are decisions that cannot be executed due to the fact that a debtor does not have any property.
– Or, probably, his property is registered for another person.
– There are such cases abroad, too. In this case, a list of insolvent debtors is prepared. It means that these people cannot be trusted. Therefore, it is a serious problem.
– Is anything prepared from this point of view? The legal reform might be successful, but its significance can be nullified by turning into a a simple paper
– Much has been done in executive agency. An energetic young man was put in charge of this work. There are important changes in this direction, but I am less competent in these issues. Compared with the past years, much has been changed. Some bank premises were even sold by auction. It is, in fact, execution of legal decision. There are decisions that are difficult to implement, f.e., eviction of tenants. These cases have caused negative reaction of society.
– What is the number of economic disputes in the total volume of considered cases?
– In 2001, the number of criminal cases under consideration in the first instance courts of Georgia was 11,648; 8876 cases were completed, sentence was made in 7370. The ratio of economic crime lawsuits is great running into 42,9% (4993 cases). However, this high percentage is conditioned by cases concerning property infringement such as theft ?2783 or 24%, burglary ?323 or 2,8%, robbery ? 296 or 2,5%, fraud ? 237 cases or 2,0%, etc. The number of considered economic crimes makes up 3810 cases or 42,9% of which 3272 or 44,4 % were completed with sentence.
– How close is reformed court to world standards. What are the problems?
– After the reform we have introduced all world standards on the level of legal novelties: There was the so-called prosecutions control over the court, i.e. public prosecution department controlled courts. Public prosecution department had the right to abolish all enacted legal decisions and refer the matter to the court for new consideration. The same situation was in the Supreme Court in the form of control agency when enacted decisions could be abolished by the decision of chairman or vice chairman of the Supreme Court and referred to the court for new consideration. In view of it, disputes on some matters have gone on for years. When I became chairman of the Supreme Court, I had 700 lawsuits that have gone on for 10-15 years. We abolished the rule and took a new decree. Under the decree, the decision of the court was final and not subject to any changes. The decision can be taken mistakably, but there should be some limit to the justice. People get used to everything and will get used to the legal decision. This reduced the number of people applying to court. Compulsory decisions and recommendations were earlier taken by the Plenum of Supreme Courts. It was characteristic only of the Soviet Union, and it has been preserved in the post-Soviet area excepting Georgia. We abolished this decision because a judge, no matter whether he is a judge of regional court or Supreme Court, should be independent during the solution of a concrete case. No organization must give it any regulations. After abolishing this rule, we established a standard existing in all developed countries of the world. Nevertheless, instead of it we took another decision ? all decisions of the Supreme Court are made public. Each decision is available for any person concerned. Decisions of the Supreme Courts are also distributed on the Web. This information was unavailable before. Publication of these data enlarges responsibility of judges. Now a judge knows that decision signed and taken by him will be published and read by everybody. The important fact is that consideration of cases referred to the court takes place within ten days, the decision of the court is made public within ten days.
– After the reform, the Supreme Court was formed in the form of cassation instance. It means that, in fact, we do not consider the case and cannot demand any additional evidence, examination of witnesses, expertise, etc. We perform legal estimation of factual materials and circumstances in the Court of Appeal, i.e. we change the right qualification of Lower court. Yet, there are exceptions. The Supreme Court deals with criminal crimes before 2000 as well as crimes of high-rank officials. We have a big chamber in the Supreme Court where 9 judges consider cases of special importance; their settlement is important for the establishment of judicial practice. Another thing is the way of executing decisions of the Supreme Court. We formed a working group last year. The group learns to use new procedural law and, incidentally, we have quite unpleasant data about the work of Lower court. In the nearest future, we are going to consider these issues thoroughly. We think it is important to note that we co-operate with the Supreme Court of Germany. All judges of the Supreme Court in Germany have passed training in Germany.
– Eleven new models are built, which means that it will be exemplary by its material base and will differ from other courts. The Supreme Court of Germany gave us 27 computers. We are promised 50 more computers in the end of August. The project of the World Bank provides for this. There will be no workplace without a computer in the Supreme Court before July next year. All computers are connected to the global network. .Till the end of the last year Tbilisi court will be computerized, computerization of all judicial system will take place till the end of 2004. This also happens within the frames of the World Bank. Our government takes part in the financing of this project, too, but its contribution is symbolic by nature. The most important novelty to be implemented in the nearest future is establishment of Tbilisi regional court . Each body has a separate building. Everyone will know that civil actions are considered in one building, administrative and criminal actions? in other ones. This will contribute to the stabilization of judges, lawsuits will be considered quicker and many problems of Tbilisi Regional Court will be settled. Reforms will be efficient only if there is an organised education system. Institutional changes will not produce any results without it. The idea of creating higher school of justice supported by the Euro Union was first implemented in France during the time of Sharl de Goll. Every year 3000 graduates of Universities take exams in National Higher School of Magistracy of which only 141 manage to pass exams. It is a 3rd year training process. They are considered state officials; they receive salaries and have the right to work only after finishing the school. We are thinking of establishing similar schools. The law is already prepared and will soon be submitted to the Parliament for consideration. People with higher education diploma and qualification of lawyer will take exams in the school. They will pass 2 year training and after this they will have the right to work.
– Some say that establishment of this school will entail abolishment of law faculty. People will become neither a judge, nor a notary and prosecutor with the diploma of lawyer. They must pass an exam. Nothing will be changed in Higher Education Establishments. If applicant does not have a diploma, he will not be admitted. University gives theoretical knowledge, but obtaining practical knowledge is a problem.
– Will state exams be abolished after this?
– They will be abolished for prosecutor’s office and court. However, higher school of justice will not be able to prepare so many specialists. This process presupposes long-term perspective. Therefore, it is necessary to have a particular approach.
– What is the role of Justice Council?
– Justice Council will be an upper organ of school management.