Tuesday, 10 February 2015

Georgia and the Issues of "Legal Transplants"

In December of last year, the OSCE's Office for Democratic Institutions and Human Rights released a fascinating report on its trial monitoring activities in Georgia. In 2009, following significant input from USAID and other international donors, Georgia adopted an amended Code of Criminal Procedure, described by the US Embassy in Georgia as introducing 'a full adversarial system to criminal courts.'

The OSCE's report reveals inadequate judicial intervention on key issues of case management - in one case, the prosecution proposed that it would call 4,000 witnesses, and the pre-trial judge granted this request, refusing 'to assess the relevance and necessity of the witnesses, or discuss the defendants’ right to a timely hearing'. The imposition of a party-led approach to replace Georgia's old inquisitorial system appears to have led to something of a non-interventionist judicial approach in the trials observed, where on a number of occasions, the prosecution was permitted to call defendants as witnesses for the prosecution, without those defendants being told by the judges of their right to remain silent. 

These elements, combined with a reluctance to halt inappropriate or irrelevant questioning of witnesses, permitting discussion of the accused's criminal record during trial, and a general passivity in courtroom management matters, present something of a caricatured view of the adversarial legal system. Georgia's experience illustrates some of the difficulties that can be faced when elements of one legal system are transplanted to another. In the words of Professor Damaška, 'In their natural habitat, each set of practices is part of a larger procedural whole, with its own internal coherence.... Creating a successful mixture is not like shopping in a boutique of detachable procedural forms, in which one is free to purchase some and reject others.'

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