How a Disciplinary Case Is Heard
Understanding a disciplinary appeal in military service begins with the rule governing the hearing of the disciplinary case: it is heard under the procedure established by the General Administrative Code of Georgia and the Defence Code, save where an international treaty provides otherwise. A serviceman's disciplinary dispute thus rests on two legal layers — the general administrative procedure and the special military-service norms.
An important guarantee concerns the serviceman's position: a serviceman about whom a suspicion of committing a disciplinary offence has been expressed is obliged to facilitate the hearing of the disciplinary case, but this obligation does not include confessing or giving explanations against himself. In other words, the duty to cooperate does not deprive the person of the right of defence.
Commencement of Disciplinary Proceedings
The administrative proceedings connected with imposing disciplinary liability commence with the drawing up of a disciplinary protocol. The protocol is the opening document of the proceedings, and precisely its content and formal legality stand at the centre of an appeal when the serviceman seeks to challenge the matter.
In studying the case it is important to distinguish the two tracks the law has embedded in the disciplinary council's functions: one track concerns dismissal from service — the council then examines the draft individual administrative-legal act on dismissal together with the materials of the proceedings and submits a recommendation to the empowered official; the other track is review — the examination, on the serviceman's application, of the lawfulness of the liability imposed (other than dismissal), in which a recommendation is submitted to the Minister. Confusing these two tracks is a frequent practical error that produces a misconceived appeal.
The Disciplinary Council
The organ conducting disciplinary proceedings is the disciplinary council. It examines the draft individual administrative-legal act on the serviceman's dismissal from service together with the materials of the administrative proceedings, and also the serviceman's application for examining the lawfulness of the disciplinary liability imposed on him (except dismissal) — the latter proceedings being styled a review of disciplinary liability.
The council's powers are specific: it may examine the disciplinary case and/or adopt a reasoned decision on the additional investigation of circumstances; in a dismissal case it submits a recommendation to the official empowered to impose liability; in a review case it submits a recommendation to the Minister concerning the decision defined by law. The number, territorial jurisdiction and composition of disciplinary councils are determined by a normative act of the Minister — a delegation that ties structural disputes about the councils directly to the Minister's acts.
Review Before the Minister
A serviceman is entitled to submit to the Minister an application for examining the lawfulness of the disciplinary liability imposed on him (except dismissal). The application must be submitted within 3 working days from the moment he was familiarised with the individual administrative-legal act imposing the liability — this deadline is a key element of procedural discipline, and missing it becomes a ground for disregarding the application.
Registration of the application has a significant effect: the operation of the individual administrative-legal act imposing disciplinary liability is suspended from the moment of registration of the application until a final decision is taken on it. In this way the law temporarily shields the serviceman from the act's operation during the proceedings.
The Minister's four possible outcomes suit different situations: full invalidation of the act means the liability was unlawful from the outset; partial satisfaction reflects the case where part of the conclusion is well-founded and part is not; refusal leaves the act in force; and a written instruction on eliminating a defect is demanded where the substance of the act is correct but its form or procedure is flawed. When preparing the appeal, set a concrete outcome as the goal — this gives the argumentation focus.
Outcomes of Examining the Application
In examining the application the Minister is empowered to: satisfy it fully and declare the act imposing liability void; satisfy it partially and declare part of the act void; refuse satisfaction and leave the act in force; or issue a written instruction (assignment) on eliminating the defect in the act or in the action performed. These four routes fully reflect the possible outcomes of the review.
Frequently Asked Questions
Under which procedure is a disciplinary case heard?
Under the procedure established by the General Administrative Code and the Defence Code, save where an international treaty provides otherwise; deadlines and the form of the appeal are settled by that very procedure.
Is the serviceman's cooperation mandatory?
The serviceman must facilitate the hearing of the case, but the obligation does not extend to confessing or giving explanations against himself.
Within which term is the application submitted to the Minister?
Within 3 working days of familiarisation with the act imposing liability; upon registration of the application the act's operation is suspended until the final decision.
What can the outcome of the review be?
The Minister satisfies the application fully or partially and voids the act or part of it, refuses and leaves the act in force, or issues a written instruction to eliminate the defect.
How We Help on Legal.ge
The Legal.ge team helps study the materials of a disciplinary case, prepare the application, observe the deadlines and represent you before the disciplinary council and the Minister. Write to us — we will assess your case and plan the appeal strategy.