Complete issue (pdf, 7520.08 MB, EN) - GIZ

CommItment
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
» InteRvIeW
‘tHeRe ARe StILL SUbStAntIAL DeFICItS In CRImInAL LAW’
Rudolf mellinghoff served as a judge at
Germany’s Federal Constitutional Court from
2001 to 2011. He became President of the Federal
Fiscal Court in november this year.
the independence of the judiciary is guaranteed
by the constitutions of all three Caucasus
countries. Does this mean that it is already
a reality?
major progress has been made. Nonetheless, from a German perspective,
there are still some anomalies: for example, the president
of a court can impose deadlines on a judge and can set a date by
which legal proceedings must be concluded, with disciplinary measures
for any overrun. measures of this kind are hardly compatible
with judicial independence. So there is still some way to go.
What role can German judges play in the reform process?
Judges in other countries can maintain a dialogue with their colleagues
in the caucasus and follow the reform process. professional
exchange among practitioners is a more productive process
than a theoretical academic debate about the problems these
countries face.
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-oflaw
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.
> ContACt
Zeno reichenbecher >
zeno.reichenbecher@giz.de
Can we make German standards the sole benchmark?
We should be cautious about making our own perspective the starting
point for the development of our ideas. there are many different ways
of achieving judicial independence. The Bangalore Principles of Judicial
conduct establish a universal standard that safeguards the minimum
level of judicial integrity and independence that is required –
but they also allow for a variety of approaches.
the discrepancy between the progress made in the fields of civil and
administrative law, on the one hand, and criminal law, on the other, is
quite striking in the countries of the South Caucasus. How do you view
the situation in the field of criminal law?
criminal law is a very sensitive area – one where human and civil
rights violations can easily occur. So it is essential to exclude any
arbitrary elements from the criminal justice system. criminal acts
must be comprehensively investigated and the facts established,
and any charges brought by the public prosecutor must be based on
sound evidence. the sentence must be commensurate with the severity
of the crime and the degree of guilt, and in sentencing, the
same criteria must apply to all offenders. compared with the situation
in civil law, there are still very substantial deficits here.
Interview: Rainer Kaufmann
32 akzente 04/2011