Prosecution Service on the Verge of Changes: Way to Improve Existing Challenges in the System
Wednesday, November 7
Yet, regardless of the Khorava street developments, the prosecution system was already pending significant institutional changes. Following the 2018 Presidential Elections, when the constitutional amendments enter into force, the Prosecutor’s Office will be separated from the Ministry of Justice and be reformed into a fully independent body. The Government of Georgia has only a few weeks left to harmonize the prosecution system with the new legal framework that the constitution has laid out. The key question now is: how could the prosecutorial system be fully depoliticized and made independent in order to start rebuilding public trust?
In 2016, in a survey conducted by Transparency International Georgia and the Caucasus Resource Research Centre, 40% of respondents (who have heard about the 2015 prosecution reform) believed that the Prosecutor’s Office is not free from political influence. In another survey of 2018, also conducted by TIGeorgia and CRRC, 57% of respondents stated that they believe the Prosecutor’s Office serves the interests of the ruling party.
Furthermore, the majority of the public blames the Prosecutor’s Office for the failure to properly investigate Khorava street murders. Of the 77% of respondents, who found the court decision unfair, 28% believes that the Prosecutor’s Office was covering for the relatives of influential people in the country, while 8% believes that the Prosecutor’s Office conducted a low-quality investigation.
In light of these developments, the former Chief Prosecutor Irakli Shotadze resigned on May 31. Shortly after, the Parliament of Georgia established an Interim Fact-Finding Commission to examine the investigation of the Khorava street murder case. The case itself has been returned to the Ministry of Interior for a renewed investigation.
The Commission adopted its conclusion and recommendations on September 5. The conclusion stated that the law enforcement system is facing critical challenges and these challenges require a deep and complex set of reforms to be carried out in an urgent manner. The Commission issued 32 recommendations, one of which refers directly to the necessity of altering the existing rule of appointing the Chief Prosecutor.
After the resignation of the Chief Prosecutor, civil society organizations, including IDFI, demanded the election process to be suspended and the new Chief Prosecutor to be elected by applying the new rules.
The flawed procedure for appointing the Chief Prosecutor is one of the main reasons for low public trust in the autonomy of the Prosecution Service. This position is shared by the OSCE/ODIHR in its 2014 report. The current rule on the appointment of the Chief Prosecutor does not ensure the election of a politically neutral person and cannot address the issues of lack of trust, partiality, politicization and ineffectiveness of the Prosecution Service. One of the most vivid examples of these problems is the frequent change of Chief Prosecutors that usually coincide with political processes, creating a perception that the Prosecution Service is under political influence.
In July 2018, despite the demands of the civil society and long-lasting protest rallies, the Prosecutorial Council, led by the Minister of Justice, elected Shalva Tadumadze as the new Chief Prosecutor. The Parliament approved his candidacy for the next 6 years.
Now that the new Chief Prosecutor has been elected and the constitutional amendments are about to come into force, it is imperative to put all the effort into improving the current prosecutorial system so that it comes into a full compatibility with the Constitution and overcomes the existing systemic challenges.
In terms of institutional changes to the prosecutorial system, the Prosecutorial Council is the body that needs the change first and foremost. The Prosecutorial Council was established in 2015 and acts as a collegial body under the Ministry of Justice. The main function of the Prosecutorial Council is to elect the candidates of the Chief Prosecutor. When the constitutional amendments enter into force, the Prosecutorial Council too will emerge as an independent body. The Council will play a major role in the process of reforming and improving the prosecutorial system.
Currently, the Prosecutorial Council consists of 15 members. The majority of them are prosecutors elected by their peers, however, public (political) officials, such as the Minister of Justice, also sit in the Council. The Minister of Justice is an ex-officio member and, at the same time, chairs the Council. Hence, the Minister is directly involved in the election process of the Chief Prosecutor.
The involvement of public-political officials as members of the Prosecutorial Council, especially of the Minister of Justice, has to be eliminated in the future. The fact that the Minister of Justice is a member of the Prosecutorial Council raises concerns not only about the independence of the Council but also sends a message to the public about the possible connection of this institution to political processes and creates a perception of instability. For many years this issue has been a topic of discussion for many international and local non-governmental organizations. The recommendation issued by international organizations, including of the Venice Commission, has only been partially taken into account during the 2017 constitutional amendment process. After Presidential Election in 2018, the Minister of Justice will no longer be an ex-officio member of the Prosecutorial Council as all 15 members of the Council will be elected. Yet, this does not exclude the fact that the Council may still elect the Minister of Justice as a member, followed by then electing the Minister as the Council Chairperson.
Apart from the composition of the Prosecutorial Council, there are several questions concerning the process of election of candidates for the Chief Prosecutor, including the consultation stage. The election of candidates starts with the Minister of Justice electing candidates from the academic and civil sector. Interviews with candidates are held and their election process is conducted behind closed doors; according to the Rules of Procedure of the Prosecutorial Council, the sessions of the Council are closed by default. Hence, it is unknown to the public the proceedings of the interviews with the candidates as well as how or based on what, the council makes its decision when electing candidates for the Chief Prosecutor.
According to the rules of procedure, the sessions of the Prosecutorial Council are (video and audio) recorded and it is available for all interested parties. Yet, this provision does not guarantee a sufficient degree of transparency of the process. In order to raise public trust and level of transparency, it is necessary for the Prosecutors Service to demonstrate its proactive approach towards the issue and make the sessions public by default. Foremost, the interviewing process with the candidates has to be open to the broader public.
After the Prosecution Service is separated from the Ministry of Justice, a set of competencies (mostly administrative) will need to be further delegated on to the Chief Prosecutor and the Prosecutorial Council. If such delegation of competences will take place, the concentration of power solely in the hands of the Chief Prosecutor will be avoided and it will be possible to broaden the functions and competencies of the Prosecutorial Council, which is a crucial element in transforming the Council into a permanent collegial body that safeguards/ensures the autonomy, transparency and effectiveness of the entire prosecution system.
Currently, an ongoing consultation process in the Parliament about the amendments to the Law on the Prosecutor’s Service is looking into how the current system could be brought into harmonization with the new constitutional requirements.
Parallel to this, the Chief Prosecutor has announced reorganization in the Prosecutor's Office. It will be interesting to see how the process unfolds together with other changes in the Prosecutor’s Office. The Prosecutor’s Office must ensure the openness of the process and the maximum involvement of civil society in order to make sure that the reorganization is aimed at improving the system, the process does not end up being a mere technicality, and that the rights of individual prosecutors and staff members are protected.
In light of the serious problems and challenges faced by the Georgian prosecution system, it is of extreme importance that the legal framework is improved ahead of the presidential election of 2018, to ensure full independence, transparency and accountability of the Prosecutor’s Office. To this end, the reforms to be carried out have to be thorough and wide in scope, answering the challenges faced not only by the prosecution system but law enforcement and justice system as well.
Yet, improving the legal framework alone is not sufficient. The Prosecutor’s Office has to do more to restore public trust in this institution. An important first step in this direction would be for the Prosecutor’s Office and other relevant public institutions to take into account the recommendations issued by the Parliamentary Interim Fact-Finding Commission. (IDFI)