"Building confidence in the justice systems in the South Caucasus"

Towards the rule of law

After the demise of the Soviet Union, the legal systems in many former Soviet republics were in desperate need of reform. Today, however, the countries of the Caucasus – Armenia, Azerbaijan and Georgia – are back on track. Germany has had a hand in this success.

When Baku hosts the Eurovision Song Contest next May, foreign observers' attention will be focused on Azerbaijan – and on its political and economic development. In light of initially critical reports, especially in the German media, the state of the country's judicial system seems certain to come under scrutiny as well. There have already been isolated calls for a boycott of the extravaganza, due to Azerbaijan's problematic record on human rights – somewhat unfairly, as clear progress has been made on legal and judicial reform in all three South Caucasus countries.

A rocky road to independence

With the demise of the Soviet Union two decades ago, the former Soviet republics set out on the road to independence, and began establishing democratic institutions, market economies and the rule of law. However, it quickly became apparent that the once all-powerful Soviet state had left a crushing legacy: a justice system that was enmeshed in a home-spun web of corruption and incompetence. Routine disputes rarely made it into the public courts. Instead, the parties would approach 'thieves in law' (kanonieri kurdebi) – underworld figures whose law code and standing in the community were based on a lengthy prison career. They meted out their own brand of justice and were powerful enough to enforce it in their own particular way. Anyone turning to the formal judicial system instead was bound to fail in the face of this shadow justice system, which was well-functioning and well-connected, with some of its representatives even making it into senior government posts.

Perhaps inevitably, the official court buildings at that time were in an even more dilapidated state than other public authorities. Even in the late 1990s, the Rotary Club of Tbilisi spent a weekend refurbishing the interior of a court building in the Georgian capital so that at least one courtroom was in a fit state to instil the necessary confidence in Georgia's 'new justice'. Even the Minister of Justice wielded a paintbrush in this act of goodwill.

Against this background, the outcomes of the reform efforts in all three Caucasus countries certainly stand up to scrutiny. This was borne out by two international conferences that took place in Tbilisi and Baku in spring and summer this year. In Tbilisi, the Caucasus judges' conference was facilitated by GIZ on behalf of the German Federal Ministry for Economic Cooperation and Development (BMZ) and the United Nations Development Programme (UNDP). The participants took stock of the judicial reforms in the South Caucasus region in the light of the Bangalore Principles of Judicial Conduct (see Box, right). In Baku, the international seminar on current administrative justice was also facilitated by GIZ on behalf of BMZ, in conjunction with the Judicial Legal Council of Azerbaijan.

Improved standing of the judicial system

The two conferences sent out the same basic message. They reaffirmed that the separation of powers is enshrined as a constitutional principle in all three Caucasus countries, as is the independence of the judiciary. Judges are now nominated and appointed by supreme judicial councils. The transparency of the legal process is guaranteed. Great importance is attached to advanced professional training for judges. Judges' salaries are generally commensurate with the judicial office held – an important starting point for combating the corruption that was once rife in the region's courtrooms. Most court buildings nowadays – also in rural areas – are well-furnished and equipped to a good technical standard. The reputation of the judicial system, as a constituent pillar of the rule-of-law state, has improved, especially in the field of civil law, not least in response to foreign investors' need for legal certainty. Georgia, for example, has a system of civil and commercial law that meets European standards, and this is reflected in the way routine court business is handled.

In all three countries, substantial progress has also been achieved in the field of administrative law. Armenia has its own three-tier system of jurisdiction in this field of law. There are no administrative courts in Georgia, but an equivalent system of procedural law has been well-established for many years. In Azerbaijan, complaints relating to public authorities are dealt with by the commercial and administrative courts. A separate administrative jurisdiction is an important measure of the progress being made on judicial reform, for it offers citizens – for the first time – the opportunity to defend themselves against measures imposed by the state. For example, at the Baku conference, the chairman of the administrative court in the city of Sumgayit read out a list of the public authorities that have been the subject of the largest number of complaints in his court. He also detailed his success rate: in two administrative court districts in Azerbaijan, around 80% of complainants won their cases against the apparently all-powerful state and its authorities, putting Azerbaijan at the top of the table, well ahead of the far more modest success rates chalked up its neighbours Georgia and Armenia, with 50 and 60% respectively. However, more detailed investigation is undoubtedly required to determine whether the data are directly comparable.

Statistics – and especially direct comparisons between neighbours – featured prominently in the discussions at both conferences. However, efficiency figures alone reveal little about the quality of judgments and give nothing away about the level of judicial independence that has genuinely been achieved, says Renate Winter, head of the EU-funded project 'Capacity Building in Support of Rule of Law in Georgia’. She sums up the conclusions she has drawn from her numerous conversations with judges and lawyers: ‘The independence of the judiciary can only really exist if judges are genuinely committed to applying the principles enshrined in the constitution.’ However, Winter has observed that judges, particularly in the courts of first instance, tend to adhere very closely to the guidelines issued by the Supreme Court, instead of developing their own rulings. Judicial independence also means independence at the various levels of jurisdiction, says Winter, an Austrian judge of many years’ standing.

Independence starts with the right mindset

Rudolf Mellinghoff, President of Germany’s Federal Fiscal Court, voices similar views. He attended the Tbilisi conference while he was still a judge at the Federal Constitutional Court. The higher courts have a responsibility to ensure that consistency is maintained in the application of the law, he says, but this does not mean that the guidelines they produce must be slavishly adhered to by the lower courts. He sums up the situation: 'Requiring the lower instance courts to comply with mandatory guidelines is hardly compatible with judicial independence.'

Since the early 1990s, one of the main goals of German development cooperation with the South Caucasus countries was to support institutional capacity building in relation to the rule of law, initially in Georgia during the early days of independence. Later, the focus widened to include bilateral projects in neighbouring Armenia and Azerbaijan as well. Since 2001, under the German Government's Caucasus Initiative and on behalf of the German Federal Ministry for Economic Cooperation and Development (BMZ), all the various initiatives in this field have been pooled to a large extent within the regional programme 'Advice on Legal and Judicial Reform in the South Caucasus'. A transnational anti-corruption component will supplement the advisory services on judicial reform from next year and will involve sharing of best practice from neighbouring countries. There are now six seconded experts and around a dozen local jurists working on the programme. Based on progress to date, it is clear that the dialogue on the rule of law between Germany and the three Caucasus countries is working well, as is the dialogue between the three South Caucasus countries and at national level. The advice on legal reform is well-received, together with various other services provided by the international community, including comprehensive training and professional development programmes. And finally, GIZ and its partners regularly update the general public in the Caucasus countries on the progress of the reforms, which helps to build public confidence in judicial independence. The patience and persistence are paying off in other ways as well: in 2010, the Armenian President appointed a new Minister of Justice, Hrayr Tovmasyan, who has never held office in any government agency and has no party-political affiliation. He was previously a GIZ staff member who worked on the legal reform programme in Yerevan for many years. Having secured this key government post, he is ideally placed to initiate further steps towards a rule-of-law state. The success or failure of this political mission will also demonstrate the extent to which government institutions are genuinely committed to the rule of law and international standards.

Author: Rainer Kaufmann has over 20 years of experience as a TV journalist, author and entrepreneur in the Caucasus.
The article first appeared in the GIZ magazine akzente, issue 04/2011.