Chair Of Transparency International Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Term paper

Humboldt Universität zu Berlin

Institute of Social Sciences

MA RTP W/S – Dr. Claudia Y. Matthes

20.03.2013

Zhanna Gevorgyan

Judicial corruption as an impediment for democracy consolidation and rule of law in Armenia and Georgia

"Without an independent judiciary, graft effectively becomes the new ‘rule of law’"

Huguette Labelle, Chair of Transparency International

Abstract: This paper examines corruption in judicial system as an impediment for democratization and rule of law by focusing on two particular cases: Armenia and Georgia. It is a comparative analysis of two neighboring and in many aspects quite similar countries. Newly Independent States which have written constitutions from 1995, having implemented quite similar anti-corruption strategies, joined different organizations and anti-corruption fight leading programs, opening anti-corruption centers, but still have a lot of problems with judicial corruption.

A primarily focus is on judiciary independence through the lens of corruption; the supposedly progress that two post-soviet countries should show by joining different anti-corruption programs for wiping out corruption in judicial system and making several constitutional amendments for creating strong and independent judiciary. One goal of this paper is to become a contribution to the branch of literature that analyze judiciary independence from different prospectives.

Introduction:

A summary of 12 of the most widely known international corruption indices shows that perception of corruption in Post-Soviet Region are among the highest of all countries included. [1] The region is one of the most talked about anti-corruption fight, but the results are not promising and the situation in the region is far not the best. The exacerbating influence of corruption on the country’s development has recently become so active debated. Due to Transparency International NGO the topic has been put on the table of global agenda of many International organizations and NGOs. Myriads of literature are devoted to the detrimental effects of various types of corruption on country’s political, economic or social development. Some countries still suffer from everyday bribery; others have successfully curbed the petty corruption, but still have to deal with grand corruption. Many developing transition countries experience with petty and grand corruption simultaneously.

The aim of this paper is to reveal the exacerbating role of judicial corruption and its detrimental influence on the rule of law and democratization process. The opinion on judicial corruption by founding member of TI (Dhaka, Bangladesh), jurist Kamal Hossain "…general levels of corruption in society correlate closely with levels of judicial corruption and a clean judiciary is central to the anti-corruption fight…" quite clearly depicted the general overview of this issue. [2] 

TI GCB 2007 report on "Corruption in judicial systems" separated two types of judicial corruption; bribery and political interference. The last kind of corruption proves that countries with dominating executive branch and unequal separation of power cannot provide the necessary judiciary independence and this interference considers as a vivid example of corruption which is the abuse of entrusted power.

After Rose Revolutions (2004) Georgia has been seen as a successful example of curbing corruption and being the least corrupted country not only in Post-Soviet region, but also in parallel to several European countries: see TI Corruption Perception Index: Georgia jumped from 133 place in 2004 to 51st in 2012. [3] The neighboring countries Armenia and Azerbaijan with some fluctuations hover in the same places. Despite achieving such results and making new amendments in constitution, several democracy measurement indexes put Georgia with hybrid or partly free states with a weak rule of law.

Authorities of both countries very often receive criticism for non-sufficient efforts to erode corruption from judicial system. There are quite differences of the sort of corruption in these countries. Being successful in elimination of deeply rooted traditions of payoffs for adjudication, Georgian authorities, nonetheless, meet criticism for the high influence of executive branch on judiciary. Armenians still deals with different types of judiciary corruption.

A closer look to Georgian and Armenian 1995 constitutions and the initiated amendments will give a clearer picture the steps that were initiated by these governments to make judiciary more independent. To evaluate the governments’ efforts to tackle pervasive corruption in judicial branch the implemented anti-corruption programs will be surveyed as well. Primarily, the European Neighborhood Policy Country progress reports 2008-2011 and Group of States against corruption 1st, 2nd, 3rd Evaluation Reports for both cases will be examined. Finally, the importance of United Nations Convention against corruption as a unique document which requires the states to adopt criminal offences against the act of corruption and cooperate with each other for effective fight against corruption will be presented in details in the last chapter of the paper.

Myriads empirical works and articles were published on democracy referring or quantifying it by the use of prominent democracy measurement indexes. The following indexes give the rank to democracy based not only on political categories, but taking into account civil liberties as well. Freedom House "Freedom in the world", BTI Bertelsmann Transformation index and Economist Intelligence Unit reports and indexes of democracy and rule of law on Georgia and Armenia will be manifested and analyzed in the second chapter. By examining the above mentioned reports and demonstrating the indexes in the graphics as well, the paper will stand on the side of the scholar debate that defend indivisibility and interdependence of democracy and rule of law.

The paper will concentrate on the system of checks and balances and the judiciary independence. Then the general picture of judicial independence for democracy consolidation and strong rule of law will be introduced. The following chapters will be devoted to constitutional amendments that the countries have enacted; the anti-corruption programs that they have implemented and subsequently the analysis how successful or backsliding are these programs for these countries to eliminate corruption in judiciary system.

Judiciary independence as a vital sine qua non for separation of powers

"…not enough controls on power allow for abuse and arbitrariness, too many checks and balances unduly restricts government’s capacity to act to realize policies…"

Madison

One of the most significant contributions made by Montesquieu to the history of ideas was the doctrine of the separation of powers. The theory which is still of extreme importance in constitutional practice [4] 

Montesquieu argued that the best way to secure liberty and prevent government from becoming corrupted was to divide the powers of government among different actors who would check each other.

Today, the checks and balances system is part of many constitutional governments - a free state required the existence of checks and barriers against centralized government. (reference)

In fact, all existing democracies are more or less constitutional democracies, that is democracies, where the political regime is based on a legal order which includes both constitutional law –written or unwritten – and institutions that guarantee the rule of law [5] Jan Erik Lane and Svante Ersson highlighted the role and impact of political institutions on democracy consolidation and see the problem of democracy devising the institutions in the way that can make it stable over time (Jan Erik Lane and Svante Ersson 2003). Our cases have the same problem for finding the right balance for the institutions to check each other in a way that can take the countries to the smooth democratization path and strong rule of law. Constitution provides information about how the executive, legislative and judicial functions are to be carried out. The current state of relations shows that constitutional practice is not always in agreement with the formal constitution Land&Ersson (2003). Hayek (1960) distinguishes two ways in which the judiciary provides such checks and balances: judicial independence and constitutional review.

The decline on judicial independence and rule of law, unfortunately, a reality for not only Armenia and Georgia, but for many other countries as well. A comparative data by Freedom House Freedom in the world 2013 report shows that there were notable declines on a global scale between 2008 and 2012 for several indicators including an independent judiciary, and equal protection under the law. [6] The lingering corrupted nature of trials seems everlasting. There is no precise definition for judiciary independence. To follow the first principle of UN General Assembly 1985 basic Principles on the Independence of the Judiciary we see "The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary" [7] . Unfortunately, although many countries including Georgia and Armenia have the specific provision of guaranteeing judiciary independence in their written constitutions, but not all of them stick on it in reality. In our cases the core setback is over functioning of executive on legislative and judiciary branches.

Judicial and political corruption are mutually reinforcing. Where the justice system is corrupt, sanctions on people who use bribes and threats to suborn politicians are unlikely to be enforced. [8] (reference). Despite the implementation of the Bangalore Principles of Judicial Conduct and UN Basic Principles on the independence of the Judiciary Armenia and Georgia judiciaries still have a problem of transparency and accountability. The Judicial Reform Index assessment report, released by ABA/CEELI in September 2005, named improper influence from the executive as one of the most serious issues facing Georgia’s judiciary. ‘Such influence is said to have increased since 2003,’ the report charged. Some of the people questioned asserted that no court in Georgia had a reputation for independence. [9] At the same time, judicial independence is at least a desirable, if not an essential, aspect of constitutional rule in the pursuit of rule of law and democratic accountability. [10] 

Both countries joined in 2004 European Neighborhood Policy in the cooperation with European Union. For the assessment of the progress of judiciary independence the look would be on annual progress reports. Although the timeframe for Armenia (2004) and Georgia (1999) to join Group of States against corruption are different, nevertheless both countries have all 1st, 2nd, 3rd (the 4th evaluation round, unfortunately, as of 2013 march not accessible yet) evaluation (compliance) reports.

Georgia after Rose Revolution: Constitutional amendments and anti-corruption reforms for judiciary independence

Before the Rose Revolution (2003) Georgia dealt with deeply rooted pervasive corruption. After proclaiming independence no steps to take country into anti-corruption path helped to achieve the initiated results. The country was entrenched in disconsolate state that brought to the Colored Revolution which by many scholars considers as the result of fraud elections. Mass protests took place in Tbilisi in 2003 demanding to annul the tainted parliamentary elections and resignation of president Shevardnadze. As common for other post-Soviet states leaders, the president ignored the voice of public indignation. Before he had completed the welcome speech in the new session of parliament, the outrage demonstrators although with the roses in their hands as a symbol of peace, entered the chamber and the leader of opposition Mikhail Saakashvili took the podium and drank what was left of the president’s tea. [11] The subsequence was the annulment of parliamentary elections results by Supreme Court of Georgia and call for the new parliamentary and presidential elections which took place in 2004. As can be expected the opposition United National Movement became the ruling party gaining 2/3 of votes or 67% and its leader Mikhail Saakashvili with 96% turnout the new president. To understand the rapid extent of reforms implemented by Saakashvili, a few general facts about the past Shevardnadze era can be mentioned here.

Berglund describes that period with a syndrome of state alienation, rife corruption, clientalism, decaying infrastructure and economic stagnation and Shevardnadze as a lame-duck president (Berglund 2012). Cheterian mentions that demonstrators were not angered with the fact that former president was a dictator or violation of human rights are widespread, but they are fed up with the corrupt and criminal elements of Georgian elites. [12] Many people expected from the new leader and his party curbing rampant corruption and taking the country to the smooth path to democratization. If the expectations from reforms to eliminate corruption in several fields were realized with quite rapid changes, the same cannot be said for the democracy consolidation. Even the mentioned reforms to change anemic and often corrupted institutions of the Shevardnadze era, it followed a path of governmental centralization. [13] 

Immediately, after coming to power, Saakashvili due to constitutional amendments empowered presidents influence over the legislative and judicial branches (Lanskoy and Areshidze 2008) [14] . A closer look to Georgian 1995 constitution and 2004, 2010 presidents’ amendments will give a clearer picture of the system of checks and balances and primarily of judiciary independence before the amendments and after then.

Georgia’s current constitution (1995) has experienced two major overhauls since the Rose Revolution. In early 2004, the aforementioned constitutional framework was introduced, which – most significantly – introduced the post as prime minister and concentrated power at the hands of the president. In October 2010, constitutional changes were introduced that will reduce the power of the future president in favor of those of the prime minister and government. Upon the inauguration of the next president, who will be elected in October 2013, the prime minister will be elected by the parliament. The president will no longer be able to initiate legislation and most presidential decrees will require counter-signature by the prime minister. [15] 

Before the 2004 and 2010 constitutional amendments the several provisions from 1995 constitution guarantee the independence of judges, furthermore the 1st provision of 84 article states that " Any pressure upon the judge or interference in his/her activity with the view of influencing his/her decision shall be prohibited and punishable by law. [16] 

It is noteworthy to notice that similar cycle of political imprisonment events have been occurred during different periods of time. First was the change of Shevardnadze power, that followed by the arrest and torture of politicians and government figures loyal to the old regime. An example is the case of Sulkhan Molashvili, the former chairman of the State Audit Agency and close ally of former President Shevardnadze, arrested in July 2004 and accused of corruption and misappropriating 3 million lari (US$1.7 million). Former Deputy Defence Minister Gia Vashakidze and his associates Eldar Gogberashvili and Beniamin Saneblidze were arrested by the police days after the revolution. Police tortured both men over a period of several days to force confessions from them. [17] The second cycle of arrests were immediately after the defeat of current president Mikhail Saakashvili’s party. This time by newly elected prime minister Bidzina Ivanishvili.

Chapter 5 article 82 states that the judiciary shall be independent and exercised exclusively by courts. [18] 

To evaluate the constitutional amendments and the steps to provide judiciary independence the ENP Action Plan Progress Report on Georgia from 2008-2011 and GRECO 1st, 2nd and 3rd evaluation reports will be introduced below. To be clear there are a lot of provisions in these reports concerning judicial system or anti-corruption fight, but the ones that sound the relations among executive and judiciary branches, the initiated steps toward more independence judiciary were presented here.

The European Neighbourhood Policy (ENP) is a framework for bilateral agreements between the European Union (EU) and its neighbours to the south and east. Within the framework of the ENP, "Action Plans" are designed to outline the specific commitments of the state in the context of its relationship with the EU. In many policy areas covered anti-corruption and good governance feature prominently.

The ENP financial assistance for Georgia 2007-2010 was in the amount of 120.4 million EUR and the new National Indicative Programme (NIP) 2011–13 for Georgia was adopted has a budget of EUR 180.3 million. Instead four priorities were demanded from Georgia which are democracy consolidation, rule of law and governance; support for economic development and ENP AP implementation; poverty reduction and social reforms and (4) support for peaceful settlement of Georgia's internal conflicts.

The Reports welcomed several legislative changes for anti-corruption fight and for complying with Coucil of Europe recommendations. Strengthening the rule of law area by reconstructing state institutions, reforms in the justice system, several reforms in penitentiary system were welcomed as well. If the 2009 Progress report had condemnations on limited budget allocation to Ombudsman office that relies mainly on International donors and still remains quite weak. The latter is connected with Ombudsperson criticism to Saakashvili administration and their tenuous relationships. Then the government’s allocations to the PDO (Public defence office te inch) were increased in the 2011 budget were welcomed …The Progress reports welcomed the constitutional amendments of 2010 that were planned to draw clear separation of powers, checks and balances mechanism and an independent court system.

Overall, Georgia made progress in the implementation of the ENP AP priorities throughout 2010, especially in reforming the justice system, carrying out constitutional reform, as well as substantially curbing administrative corruption. The constitutional reform aimed at ensuring a more balanced separation of powers, reducing the powers of the president so as to strengthen the parliament’s role, improving the system of checks and balances and reinforcing the independence of the judiciary. Progress was also noted on strengthening the independence of the judiciary, as the new constitution provides for judges to be appointed for life. However, the CoE Venice Commission and the civil society expressed concern over the long probation periods before appointment. Judges on probation are more exposed to political influence.

Amendments were also made to the ‘Law on Disciplinary Responsibility and Disciplinary Proceedings of Judges’, changing the procedure for the election of the chairman of the disciplinary board, in order to minimise the possibility of political influence over disciplinary procedures against judges.

Most amendments will enter into force in 2013, after the Presidential elections.

ENP 2011 Continue the reform of the justice system and strengthen the independence and efficiency of the judiciary; In the field of deep and sustainable democracy, Georgia passed several amendments to key laws in the political and justice, freedom and security domains. Georgia adopted a new Election Code in December and continued to make progress in the fight against corruption.

Georgia’s governance also continued to be characterised by a dominant executive branch, weak parliamentary oversight and an insufficient degree of independence of the judiciary. Continue the reform of the justice system and strengthen the independence and efficiency of the judiciary; ensure further liberalisation of criminal justice policies and practice in line with Council of Europe standards; Despite marked progress in a number of areas in the justice sector some challenges remain, in particular in ensuring citizen’s right to a fair trial. The main problem relates to the strong position of the prosecutor and the lack of independence of the judiciary. Georgia has also made substantial progress in addressing corruption. TI CPI evaluation on Georgia ranks fro 64th out of the 182 countries, with a score of 4.1 out of 10 (the highest in the Eastern Partnership region) were highly estimated in the report.

The Council of Europe see corruption as the threat for rule of law, democracy and good governance and subsequently has developed a number of legal instruments for the criminalization of corruption and entrusted the monitoring of compliance to these standards to the Group of States against Corruption (GRECO). The latter evaluations reports gave several recommendations for anti-corruption fight to authorities and then provide the reports to estimate the progress that country has on the given recommendations. They evaluate the degree of compliance.

In the second evaluation reports the 6th recommendation was on empowering judicial independence by limiting the political personnel influence over the recruitment and disciplinary proceedings against judges