DISCIPLINARY COMMITTEE OF JUDGES OF COMMON COURTS OF GEORGIA

Decision of Disciplinary Committee #1/02-12, October 26, 2012

 

 

Disciplinary Committee Of Judges Of Common Courts Of Georgia

 

D E C I S I O N

 

Case No1/02-12                                                                                                                                            October 26th, 2012

                                                                                                                                                                                         Tbilisi

Disciplinary Committee Of Judges

 Of Common Courts Of Georgia

comprised of:

Chairman: Lasha Kalandadze

Members: Mamia Pkhakadze

                  Giorgi Shavliashvili

 

Secretary: Ekaterine Tavdumadze

 

The Parties:

Representative of the High Council of Justice of Georgia __________ __________;

Judge of the __________ __________ Court __________ __________ and judge of the __________ __________ Court __________ __________;

Has tried the disciplinary case against the judge of the __________ __________ Court __________ __________ and judge of the __________ __________ Court __________ __________ in a closed hearing and

 

F O U N D:

 

Based on the memorandum (registration number No____) of its employee, the High Council of Justice of Georgia initiated disciplinary proceedings against the judge of the __________ __________ Court __________ __________ and judge of the __________ __________ Court __________ __________.

As per the decision of the High Council of Justice of Georgia, judge of the __________ __________ Court __________ __________ and judge of the __________ __________ Court __________ __________ have been imposed disciplinary responsibility for the commission of misconduct – Improper Fulfillment of Judicial Duties foreseen by the subparagraph “f” of the paragraph 2 of the article 2 under the Law of Georgia on “Disciplinary Responsibility And Disciplinary Proceedings Of Judges Of Common Courts Of Georgia”.

Imposition of disciplinary responsibility on the aforementioned judges has been based on the following circumstances:

An appeal by __________ __________ (representative: __________ __________) was pending with the Chamber of Administrative Cases of the __________ __________ Court against the opposing party – the Department of Corrections under the Ministry of Corrections, Probation and Legal Aid of Georgia. The subject of the dispute was to find null and void the order on dismissal from work (No__________ __________), restoration on the position and reimbursement of the forced absence from work.

The concluding section of the decision (chairman: __________ __________ judges: __________ __________ and __________ __________ has been announced at the hearing on March 18th 2009.

The concluding section of the decision of March 18th 2009 has been submitted to the attorney __________ __________ on the same day, while the substantiated decision has been sent on November 14th 2009 to the address indicated in the case files and according to the mail submission note, it has been served to her relative. The decision has never been appealed by the parties and it entered legal force.

As per the concluding section of the decision included in the case file, the appeal has been partially granted. Pursuant to the paragraphs 2 and 3 of the concluding section:

2. The order of the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be found void and the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be tasked to issue a new act upon complete and comprehensive examination of the circumstances of the case;

3. The forced absence from work shall be reimbursed in the amount of __________ __________ prior to the issuance of a new act.

After the examination of the substantiated decision prepared by the court, it turns out that the paragraphs 2 and 3 of the concluding section of the substantiated decision are incompliant with the relevant paragraphs of the concluding section included in the case file and are in fact different.

Namely, the paragraphs 2 and 3 of the concluding section of the substantiated decision of March 18th 2009 by the Chamber of Administrative Cases of the __________ __________ Court, unlike the relevant paragraphs of the concluding section included in the case file, state that:

2. The decision of October 17th 2007 by the Chamber of Administrative Cases of the __________ __________ Court shall be reversed and a new decision shall be issued;

3. The appeal by __________ __________ shall be partially granted: without resolution of the disputed issue, the order No____ of the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be found void and the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be tasked to issue a new act upon complete and comprehensive examination of the circumstances of the case;

According to the case materials, the concluding section of the decision by the Chamber of Administrative Cases of the __________ __________ Court (judges: __________ __________, __________ __________, __________ __________) of March 18th 2009, has been modified in the concluding section of the same substantiated decision and in fact there were two different versions of the decision on the case. Namely: the number of the order (No_____) has been added to the concluding section of the decision; and the statement: “the decision of October 17th 2007 by the Chamber of Administrative Cases of the __________ __________ Court shall be reversed and a new decision shall be issued. The appeal by __________ __________ shall be partially granted…” and the words: “without resolution of the disputed” regarding finding of the order void.

It should be noted that the aforementioned does not substantially affect the legal implications foreseen by the decision. However, it should further be noted that in the concluding section of the substantiated decision, unlike the second concluding section of the decision, the reference to the reimbursement of the forced absence from work is no longer to be seen. Namely, the statement in the paragraph 3 “the forced absence from work shall be reimbursed in the amount of __________ __________ prior to the issuance of a new act” is missing. This, in fact directly affects the legal implications of the decision and harms the interests of the party.

During the trial of the disciplinary case at the hearing of the Disciplinary Committee Of Judges Of Common Courts Of Georgia, the representative of the High Council of Justice of Georgia __________ __________ fully supported the disciplinary charges and moved to find the fact of commission of a disciplinary misconduct by the judges __________ __________ and __________ __________ as established.

Disciplinary Committee of judges of common courts of Georgia has reviewed the disciplinary case, examined the materials of the aforementioned case, heard the disciplinary prosecution, found the factual part of the charges established and held that the following facts of law shall be taken into consideration:

Pursuant to the article 53 of the Law of Georgia on “Disciplinary Responsibility And Disciplinary Proceedings Of Judges Of Common Courts Of Georgia”, the Disciplinary Committee shall make the decision on finding a judge guilty of the commission of a disciplinary misconduct and on the imposition of disciplinary responsibility and relevant sanction, if as a result of the trial of the case with the Disciplinary Committee it has been established, that the judge has faultily committed one or more misconducts foreseen by this law, which in itself obliges the Disciplinary Committee to establish the unanimity of circumstances foreseen by the article 45 of this law, namely “…whether the judge has committed an action he/she was charged with in accordance to this law, whether this action represents misconduct and whether the judge is faulty of the commission of the disciplinary misconduct”.

Based on the aforementioned, a basis for the imposition of disciplinary responsibility shall be the obligation to establish culpability of the judge in committing a disciplinary misconduct. That is, in order to establish culpability, all objective circumstances shall be taken into consideration, that have conditioned commission of the specific act found disciplinary misconduct.

- As per the paragraph 2 of the article one of the Code of Administrative Procedure of Georgia, unless otherwise determined by this Code, the provisions of the Code of Civil Procedure of Georgia shall apply for the administrative legal proceedings.

In accordance to the paragraph 3 of the article 389 of the Code of Civil Procedure of Georgia, the concluding section of the decision shall contain the finding of the court on the full or partial granting of the appeal, a reference to the distribution of court expenditures as well as the terms and conditions for the appeal of the decision.

Pursuant to the paragraph 2 of the article 257 of the Code of Civil Procedure of Georgia, within 14 days upon announcement of the concluding section of the decision, the court shall prepare the substantiated decision for the submission to the parties.

Based on the case materials it has been established, that in the present case there are two decisions by the __________ __________ Court dated March 18th 2009 with different concluding sections, namely: the paragraphs 2 and 3 of the concluding section of the decision dated March 18th 2009 submitted to the parties state that:

2. The order of the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be found void and the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be tasked to issue a new act upon complete and comprehensive examination of the circumstances of the case;

3. The forced absence from work shall be reimbursed in the amount of __________ __________ prior to the issuance of a new act.

Whereas, the paragraphs 2 and 3 of the concluding section of the substantiated decision (sent to the party on November 14th 2009) are worded as follows:

2. The decision if October 17th 2007 by the Chamber of Administrative Cases of the __________ __________ Court shall be reversed and a new decision shall be issued;

3. The appeal by __________ __________ shall be partially granted: without resolution of the disputed issue, the order No____ of the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be found void and the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be tasked to issue a new act upon complete and comprehensive examination of the circumstances of the case;

With regard to the aforementioned, Disciplinary Committee of judges of common courts of Georgia clarifies that the concluding section of the decision submitted to the party on March 18th 2009 and the concluding section of the substantiated decision prepared by the court thereafter shall not be different and they must be fully in compliance with each other. In the given case, the concluding sections are not identical and are in fact different, namely: the following has been added to the concluding section of the substantiated decision:

  1. Number of the order: No_____.
  2. Reference: “The decision of October 17th 2007 by the Chamber of Administrative Cases of the __________ __________ Court shall be reversed and a new decision shall be issued”;
  3. Reference: “The appeal by __________ __________ shall be partially granted;”
  4. Wording: “without resolution of the disputed issue” on finding the order null and void.

Whereas, the indication in the concluding section of the same substantiated decision: “The forced absence from work shall be reimbursed in the amount of __________ __________ prior to the issuance of a new act” can no longer be found.

Due to the aforementioned, Disciplinary Committee of judges of common courts of Georgia held, that the judges __________ __________ and __________ __________ have disregarded the requirement of the Code of Civil Procedure of Georgia, that: the judges had the duty to formulate the concluding section of the substantiated decision without making any changes to the concluding section of the decision submitted to the parties beforehand.

According to the materials of the given case, the decision has not been appealed and the issue of the correction of inconsistencies and obvious arithmetical errors, or issuance of an additional decision has never been raised.

It should be noted that on October 18th 2012 the court upon its own initiative has issued a judgment on the correction of inconsistencies and has formulated the concluding section of the substantiated decision of March 18th 2009 as follows:

  1. The appeal by __________ __________ shall be partially granted;
  2. The decision if October 17th 2007 by the Chamber of Administrative Cases of the __________ __________ Court shall be reversed and a new decision shall be issued;
  3. The appeal by __________ __________ shall be partially granted;
  4. Without resolution of the disputed issue, the order No. . . . of the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be found void and the Department of Corrections under the Ministry Corrections, Probation and Legal Aid of Georgia shall be tasked to issue a new act upon complete and comprehensive examination of the circumstances of the case;
  5. The forced absence from work shall be reimbursed in the amount of __________ __________ prior to the issuance of a new act.

Disciplinary Committee of judges of common courts of Georgia explains that regardless of the fact that the error made in the concluding section of the substantiated decision of March 18th 2009 has been corrected with the judgment of October 18th 2012, this does not exclude the fact of the commission of a disciplinary misconduct.

Based on the aforementioned, Disciplinary Committee has found established that the action by the judges __________ __________ and __________ __________ was in violation of the requirement established by the Code of Civil Procedure of Georgia, which represents disciplinary misconduct - Improper Fulfillment of Judicial Duties foreseen by the subparagraph “f” of the paragraph 2 of the article 2 under the Law of Georgia on “Disciplinary Responsibility And Disciplinary Proceedings Of Judges Of Common Courts Of Georgia”.

Therefore, the judge __________ __________ of the __________ __________ Court shall be imposed disciplinary responsibility and the sanction – Reprimand; Further, the judge __________ __________ of the __________ __________ Court shall be imposed disciplinary responsibility and the sanction – Reprimand.

Guided by the article 45, 47, subparagraph “c” of the paragraph one of the article 48, articles 29, 53 and 57 of the Law of Georgia on “Disciplinary Responsibility And Disciplinary Proceedings Of Judges Of Common Courts Of Georgia”, Disciplinary Committee of judges of common courts of Georgia

 

H E L D:

 

1. The judge __________ __________ of the __________ __________ Court shall be found faulty of the commission of disciplinary misconduct - Improper Fulfillment of Judicial Duties foreseen by the subparagraph “f” of the paragraph 2 of the article 2 under the Law of Georgia on “Disciplinary Responsibility And Disciplinary Proceedings Of Judges Of Common Courts Of Georgia” and shall be imposed disciplinary responsibility and the sanction – Reprimand;

2. The judge __________ __________ of the __________ __________ Court shall be found faulty of the commission of disciplinary misconduct - Improper Fulfillment of Judicial Duties foreseen by the subparagraph “f” of the paragraph 2 of the article 2 under the Law of Georgia on “Disciplinary Responsibility And Disciplinary Proceedings Of Judges Of Common Courts Of Georgia” and shall be imposed disciplinary responsibility and the sanction – Reprimand;

3. The copies of the decision of the Disciplinary Committee of judges of common courts of Georgia shall be submitted to the persons and bodies determined by the law;

4. The decision may be appealed with the Disciplinary Chamber of the Supreme Court of Georgia within 10 days upon its issuance through the Disciplinary Committee of judges of common courts of Georgia.

 

 

Chairman:          Lasha Kalandadze

 

Members:          Mamia Pkhakadze

                    

                        Giorgi Shavliashvili

USAID
This program was made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of Disciplinary Committee for the Judges of the Common Courts of Georgia and do not necessarily reflect the views of USAID, the United States Government, or implementing partner.
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