On June 13, 2023, the Parliament adopted the draft law on the Organic Law of Georgia on General Courts, which established a new standard for the accessibility of judicial acts.
From January 2024, the public will be able to request, receive, acquaint themselves with court decisions in the form of public information, and form their own position, including about the court decisions of high public interest. As a result of long-term advocacy by the Institute for Development of Freedom of Information (IDFI) with the support of USAID Rule of Law programs, the current situation in terms of the accessibility to judicial acts has improved at the normative (legislative) level.
The changes made in the legislation will enter into force from 2024. IDFI will continue to monitor the availability of judicial acts and we hope that the changes implemented will be properly reflected in practice from 2024.
The problems of access to judicial acts started in 2015. Since 2016, with the financial support of USAID Rule of Law programs, IDFI has started to implement the activities provided by the project to increase access to court decisions, studied the related problems and prepared an in-depth study, within the framework of which it was revealed that since 2015, referring to the argumentation of personal data protection, the right of the public to get to know the decisions made on behalf of Georgia has been restricted in fact. The balance between the availability of public information and the protection of personal data was not maintained and the unconditional preference was given to the latter.
In order to overcome the existing obstacle at the legislative level, IDFI applied to the Constitutional Court of Georgia and requested to recognize the legislation causing the problem as unconstitutional. In particular, requested to declare the normative content of Articles 5 and 6(1)(3) of the Law of Georgia "On Personal Data Protection" unconstitutional, which restricted the release of the full text of judicial acts resulting from an open session as public information. On June 7, 2019, the Constitutional Court granted the constitutional lawsuits of the Institute for the Development of Freedom of Information (IDFI) and the Media Development Foundation (MDF), and stated that there is an increased public interest towards the accessibility of judicial acts. The Court noted that any decision made in the process of the administration of justice should be open, unless there is a reasonable need to restrict access to it. The Constitutional Court recognized the disputed normative content of the articles as invalid from May 1, 2020 and gave the Parliament a deadline to resolve the issue in accordance with the requirements of the Constitution.
The said decision was precedential, since the Constitutional Court for the first time explained the constitutional nature of access to judicial acts, separated it from standard public information and linked access to decisions to both trust in the judiciary and the right to a fair trial.
The Parliament of Georgia had to implement the decision of the Constitutional Court until May 1, 2020, however, the legislative body did not fulfill the task within the set period, and on a practical level, the availability of the court's decisions significantly worsened. Since 2020, the proactive publication of first and second instance court decisions has also been stopped, and it has also become more difficult to receive decisions in the form of public information.
Even in this situation, with the support of the United States Agency for International Development (USAID), IDFI continued to work on the problem of transparency of the judicial system and actively advocate for legislative changes in accordance with the standard established by the Constitutional Court. It is worth noting that the implementation of the decision of the Constitutional Court and the ensuring the access to judicial acts became Part of the so called "Charles Michel’s agreement”, which was prepared with the direct involvement of the President of the European Council. In June 2021, IDFI held a high-level meeting attended by members of the Legal Issues Committee, as well as representatives of the Constitutional Court of Georgia, common courts, international organizations and civil society. Within the framework of the meeting, the main perspectives for the implementation of the decision of the Constitutional Court were defined.
On July 1, 2021, the members of the Legal Issues Committee registered a draft law in the Parliament, which was supposed to solve the problem of access to judicial acts at the legislative level. IDFI studied the legislative initiative and published an extensive legal analysis in September 2021, highlighting the problems which indicated that the adoption of this law would not ensure the access to judicial acts and would lead to court congestion. Along with the evaluation, IDFI proposed two alternative draft laws to the Parliament of Georgia, although, the process of adopting the law in the Parliament of Georgia was stopped at that time.
In June 2022, Georgia was given a European perspective, and 12 priority tasks were defined by the European Commission as a prerequisite for the status of a candidate country of the European Union. Access to judicial acts has become part of the implementation of EU 3rd priority (justice reform to ensure the independence, accountability and impartiality of the judicial system). In order to fulfill the third priority, the Legal Issues Committee of the Parliament of Georgia after the completion of the operation of the working group on the judicial system, initiated a draft law on November 9, 2022, which, among other things, provided for the regulation of access to judicial acts. This draft law was identical to the bill registered on July 1, 2021, and replicated the complicated and time-consuming model criticized by IDFI.
The Parliament submitted the problematic draft law to the Venice Commission for assessment. The Venice Commission published its evaluation of the draft law in March, 2023. It should be noted that the opinion of the Venice Commission essentially coincided with the position of IDFI regarding the complexity and time-consuming nature of the proposed model.
It is positive that at the meetings of the Legal Issues Committee on May 11 and May 15, 2023, the Parliament of Georgia shared the concerns of IDFI and the Venice Commission, stopped the consideration of the proposed amendments and presented a completely new, much simplified model of access to judicial acts, which was adopted by the Parliament of Georgia in the third reading on June 13, 2023.
With the adopted amendments, the complex model envisaged by the initiated version of the draft law was rejected, according to which the issue of access to judicial acts was completely excluded from the regulatory sphere of freedom of public information, the increased interest of access to the judicialacts was neglected, the right to appeal the refusal to disclose the decision was limited, as well as there was a real risk of overloading the court and prolonging the cases, as the judge had to decide on the accessibility of the acts adopted in each case.With the changes, it became easier to receive court decisions in the form of public information, as the judicial acts will be issued as a public information based on the organic law of Georgia "On the General Courts", the judge will not be involved in the decision-making process of this issue and the personal data protection legislation will no longer be used as an artificial basis for limiting right. A general rule on the openness of judicial acts was established, the obligation to proactively publish court decisions, along with other judicial acts was established, and the real risk of court congestion was eliminated. Despite significant positive changes, timely access to court decisions and other acts remained a challenge. In particular, court decisions will become available only after the final decision on the case enters into force, in other words when the possibility to appeal in all three instances is exhausted and a final decision is made on the case.
2015: realization of the right of access to court decisions became difficult;
2016: IDFI prepared an in-depth study of the problem. It was revealed that after 2015, with reference to personal data protection, the public was restricted the right to access court decisions made on behalf of Georgia;
2016: IDFI applied to the Constitutional Court of Georgia and demanded that the legislation causing the problem be recognized as unconstitutional;
2019: The Constitutional Court granted the constitutional lawsuits filed by IDFI and MDF, declared the disputed norms unconstitutional and postponed the execution of the decision until 2020;
2020: The Parliament of Georgia did not implement the decision of the Constitutional Court.The availability of court decisions has significantly worsened on a practical level;
2021: The implementation of the standards established by the Constitutional Court and ensuring of access to judicial acts became part of the so called "Charles Michel" agreement;
2021: IDFI held a high-level meeting attended by members of the Legal Issues Committee, as well as representatives of the Constitutional Court of Georgia, common courts, international organizations and civil society. Within the framework of the meeting, the main perspectives for the implementation of the decision of the Constitutional Court were defined;
2021: The Parliament of Georgia developed a problematic model of access to judicial acts;
2021: IDFI assessed the drafted law and concluded that the adoption of this law could not ensure the access to judicial acts, would cause court congestion;
2022: Access to judicial acts became part of the implementation process of 12 priorities of EU;
2022: The Parliament of Georgia resumed consideration of the draft law and sent the problematic bill to the Venice Commission for evaluation;
2023: The opinion of the Venice Commission shared the position of the IDFI regarding the complexity and time extension of the proposed model of judicial acts;
On May,15, 2023, at the meeting of the Legal Issues Committee, the Parliament of Georgia rejected the problematic model, and on June 13, it finally supported the establishment of an improved standard of access to judicial acts.
The Blogpost was prepared by the Institute for Development of Freedom of Information (IDFI) with the support of the USAID Rule of Law Program funded by the United States Agency for International Development (USAID) through the East-West Management Institute (EWMI).
The views expressed in this blogpost are the sole responsibility of the author and do not necessarily reflect the views of USAID and EWMI.
Subscribe to Our News
