Strasbourg, 5 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Georgia
Part I: Preparation of the judicial decision.
Is there a specific model to be followed in drafting judicial decisions?
Yes, there is a specific model to be followed in drafting judicial decisions1. Appropriate Articles of Procedural Codes (Civil, Administrative and Criminal) describes what elements should the judicial decisions include.
Can each individual judge choose his own style of drafting his decision?
No, the judge can not choose his own style because as mentioned above the Procedural Codes strictly determine what elements the judicial decision should contain.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
Judicial decision adopted by majority decision is equally binding and effective. The number of judges if the case is heard by a several of them is always odd. The fact that the decision was adopted by two persons instead of three, does not change the legal character of the judicial decision. Such decisions are signed by all three judges, however, the judge who has a dissenting opinion can attach his/her opinion to the decision, although the content of such a decision is not pronounced when the judgment is announced in public to the parties.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
No, the president or the senior judge has only one, ordinary vote.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthesis or concise approach considered sufficient?
According to Article 2493 of Civil Procedural Code of Georgia the descriptive part of the Judgment should include short indication to the plaintiff’s claim, and the defendant’s opinion about Plaintiff’s claims. Thus, we can conclude that concise approach is sufficient.
In general terms, how is a first instance judicial decision drafted? (For example, does a decision state first the factual background followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?).
The first instance judicial decision (the Judgment i.e. decision of merits of the case) is drafted according to Article 249 of the Civil Procedural Code of Georgia which stipulates that the Judgment consists of four parts – 1. Introduction (introductive part) includes the date and place of adoption of judgment, the name of the court and of the judge (judges), the name of secretary of hearing, names of parties, their representatives, the subject of dispute. 2. Description (descriptive part) should include a short indication to the Plaintiff’s claim (request), Defendant’s opinion about the Plaintiff’s claim, the circumstances established by court, evidences based on which the court came to such a conclusion, opinion of the court based on which it rejected certain evidences. 3. Motivation – (motivation part) should include court’s legal evaluation and laws used by the court. 4. Resolution – (resolution part) should include the conclusion of the court about satisfaction of the lawsuit or about its full or partial rejection, indication on distribution of court expanses, indication on terms and rules of appeal.
How in general terms is an appeal/supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?
According to Article 389 of Civil Procedural Code of Georgia the Appeal Court’s judgment in its descriptive part should include:
· the date and place of adoption of the judgment;
· the name of the court and of the judges;
· the name of the person who filed an appeal;
· the appealed judgment (i.e. the name of the first instance court and date of the judgment);
Instead of descriptive part and of motivation the Appeal Court’s judgment should include
· the claim (request) of the person who filed an appeal;
· indication to the conclusions of the appealed judgment in regard of the circumstances of the case, including possible amendments or additions;
· motivation of amending (changing) of the appealed judgment. If the Appeal Court agrees with certain evaluations made by first instance court concerning legal and/or factual issues than obligation to motivate is changed by the obligation to indicate to such evaluations.
Resolution part of the judgment should include the conclusion of the court about full or partial satisfaction of the appeal, indication on the distribution of expanses as well as indication on the terms and rule of its appeal (i.e. cassation).
As for the judgments adopted by the Supreme Court (court of Cassation), according to Article 399 of Civil Procedural Code of Georgia the discussion of a case in Cassation Court is carried out based on the same rules as stipulated for the Appeal Court except of certain exclusions (which however, do not concern the form of the judgments). Thus we can conclude that the form of the judgment used by Appeal Court can is also used by the Supreme Court.
Is there a difference in the way a judgment is drafted according to subject matter?
Yes, there are some differences. For example, in judgments in administrative cases the resolution part should also include the address (i.e. name of city and street number) of the appeal court which is not a case in civil case judgments. The judgments adopted in criminal cases have some other differences as well depending upon whether or not an accused person was convicted.
Could you describe precisely how the decision is transmitted to the parties?
Articles 70-78 of Civil Procedural Code describe the precise procedure of transmitting the judgments to the parties. First of all, the judgment is sent to the parties or their representatives either by post or by the currier. If the judgment is delivered to one of them it is considered as transmitted. In case the party or his/her representative is not at home the judgment may be delivered to the member of his/her family who is at home. The fact of delivery is proved by the signature of appropriate individual (of the party or of his/her representative, or of the member of family) at the letter, which (the letter) is to be returned to the court to be inserted in case file. The judgment can also be delivered at the office (work place) of the party. In case of delivery of the judgment to the family member or to the office, the person who received it should indicate his/her relation with the party together with signature. It is also possible that the judgment is delivered to the party in the building of the court.
Is the judicial decision binding only the specific litigants or does it affect the public in general?
Yes, the judicial decision is binding only for those litigants parties to the case. It affects general public only in terms that the decision should be fulfilled and executed by everyone. However, legal or factual circumstances established by the court in one case, can not automatically be considered established in other case unless the same parties participate in the litigation. If facts are established in criminal case such facts do not need to be proved in case the civil action derived from the action of the convicted person is filed in civil court.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
In Georgia all judicial decisions by their nature are decisions in personam.
How is the judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
The judicial decision is enforced by the office of bailiffs. In case the party (debtor) does not comply with the decision, the court based on the written request from another party (creditor) issues an execution list (writ), which is submitted to the office of bailiffs. After that, the office of bailiffs starts an execution proceeding. As for the contempt proceeding, there is no such proceeding in our legal system.
Are judicial decisions handed down/announced in open court? Always or can the public/journalist be excluded – if so on what grounds?
Judicial decisions adopted through public hearing are always announced in public. The hearing may be closed only in the interests of protection of state secrets. In cases envisaged by law (for example, in adoption cases), the hearing (including announcement) may be closed based on the motivated motion of the party. The court should also motivate its resolution to close the hearing.
To what extant do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants names, other personal details).
As mentioned above the introductory part of judgment should include names of the parties, therefore, in all the judgments the names of the parties should by all means be indicated. As for the publication, under General Administrative Code of Georgia it is possible that the party request the court to consider the case file or some documents included therein, as his/her private or commercial secret and to make the case file or appropriate documents secret. In that case the court should adopt a resolution in form of an administrative act either to make the case file secret or to reject to do so. Of course, the cases discussed at closed hearings can not be publicized. In addition, when the Supreme Court publishes its judgments it usually changes the names of parties or uses initials of litigants.
Are judicial decisions available to persons or authorities other than litigants themselves? If so on what terms and prerequisites?
Decisions on Administrative cases are open to every one since they concern public interests. As regards the civil cases, the law does not stipulate exactly whether or not the persons other than litigant are allowed to view the decisions. In practice, we try not to open any civil decision (especially in family law issues and even more strictly, in adoption cases) to any other party except of litigants. As mentioned above in answer to Question 9, the party may request to keep some information secret.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
The most significant judgments of the Supreme Court of Georgia are available on internet. Most of the judgments of the Supreme Court of Georgia are also published in a special edited book and delivered to judges of lower instances.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
The only way of evaluation of quality is statistical data of the judgments canceled by superior courts. We call it data of stability of judicial decisions. There is no other system of evaluation of quality of justice.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
This question is not applicable.
If your country does evaluate the quality of judicial decisions by means of a specific system could you specify the latter:
· legal bases;
· identification of the agencies that are responsible for the process;
· parameters that are evaluated;
· method by which each parameter is evaluated;
This question is not applicable.
What are the advantages and disadvantages discussed in your country as far as the evaluation of the quality of justice is concerned?
There are no debates at this stage about the evaluation of the quality of justice and its advantages and disadvantages.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
As mentioned above, since there are no debates about this issue there is no single judiciary opinion elaborated on improving the quality of decisions.
Is a system, of evaluations of quality of each of the following in force in your country?
· professional performance of police? No
· professional performance of public prosecution services? No
· professional performance of lawyers? No
· enforcement of judgments? No
· efficiency of ministry of justice services in general? No
· quality of legislation? No
The fact is that it is possible to evaluate the activity of individual person, however, there is not a system (a set of rules) elaborated yet to evaluate the activity of the whole institutions.
1 In the text under word “decision” I shall mean only the Judgments (decisions adopted on merits of the case) and not the Resolutions (decisions adopted on various procedural issues, for example, on admissibility of a lawsuit, on injunction etc.)