Step No. 7
Further address the effectiveness and ensure the institutional independence and impartiality of the Anti-Corruption Bureau, the Special Investigative Service and the Personal Data Protection Service. Address Venice Commission recommendations related to these bodies, in an inclusive process. Establish a strong track record in investigating - corruption and organised crime cases.
* Prepared by Institute for Development of Freedom of Information (IDFI), Governance Monitoring Centre (GMC), Georgian Democracy Initiative (GDI)
- Georgia should review the legislation on the Anti-Corruption Bureau, the Special Investigation Service and the Personal Data Protection Service addressing upcoming Venice Commission recommendations;
- Outstanding 2022 ODIHR recommendations on the appointment and dismissal of the Head of Service should be addressed;
- Address the gaps in the new Personal Data Protection law and strengthen the Personal Data Protection Service in line with forthcoming Venice Commission Opinion, to ensure that the new data protection regulations are adequately implemented;
- Ensure that the new Bureau, as well as the relevant enforcement agencies, operate independently and effectively, avoiding any politically selective approach; in particular, asset declarations should be audited against the legitimate income and investigations should take place in case of unexplained differences;
- Implement the action plan on de-oligarchisation following a systemic approach in line with the recommendations by the Venice Commission;
- Establish a track record of investigations, prosecution, adjudication and final convictions of corruption cases, notably at high-level. Public communication and accountability on alleged high-level corruption cases also need to be strengthened;
- A new anti-corruption strategy and action plan needs to be adopted and its full implementation ensured by providing adequate funding and monitoring mechanisms;
- Repeal the decision of February 2023 to withdraw from the OECD anti-corruption monitoring network for Eastern Europe and Central Asia (OECD/CAN) and fully implement recommendations from the previous rounds;
- Produce such statistics that will enable the monitoring of the entire chain of criminal cases. In particular, to determine the number of cases of initiated investigations, presented charges and court verdicts, and thus assess the quality of the investigation and the propensity of the prosecutor's office to prosecute.
- Ensuring guarantees of institutional and personal independence and impartiality of the Anti-Corruption Bureau in accordance with the recommendations of the Venice Commission, in such a way as to address the key challenges identified in the European Commission’s report, including:
- Granting the anti-corruption bureau the authority to investigate corruption cases and the necessary administrative and financial resources to effectively implement this mandate;
- Election of the anti-corruption bureau head to the position by the Parliament of Georgia with a high majority and determining the accountability of the anti-corruption bureau only before the Parliament;
- Effective exercise of authority by the Anti-Corruption Bureau, including in relation to high-level corruption; The Bureau should act without political bias, including checking asset declarations against legitimate income and investigating unexplained discrepancies;
- Adopting a new anti-corruption strategy and action plan and allocating appropriate financial resources for its implementation and creating an effective monitoring mechanism;
- Returning to the OECD anti-corruption network and fully implementing the recommendations of previous evaluation rounds;
- In the field of the fight against corruption, in addition to the institutional strengthening and independence of the Anti- Corruption Bureau, the European Commission expects the Georgian authorities to take other steps, including;
- Returning to the OECD anti-corruption network and fully implementing the recommendations of previous evaluation rounds;
- Adopting a new anti-corruption strategy and action plan and allocating appropriate financial resources for its implementation and creating an effective monitoring mechanism;
- Conducting detailed statistics on the detection, investigation, prosecution, and adjudication of high-level corruption cases and their proactive publication.
- Strengthening the guarantees of institutional independence and effectiveness of the Personal Data Protection Service, changing the procedure for selecting the head of the service, as well as refining their existing mandate, and granting new powers in accordance with the recommendations of the European Commission, Venice Commission, and OSCE/ODIHR.
- Strengthening the guarantees of institutional independence and effectiveness of the Special Investigation Service, Changing the procedure for selecting the head of the services, as well as refining their existing mandate and granting new powers in accordance with the recommendations of the European Commission, Venice Commission and OSCE/ODIHR;
- Change in the procedure for appointing and dismissing the head of services, as well as granting immunity of the appropriate degree to the key employees of the service. Among them, reviewing the issue of involvement of the General Prosecutor's Office from the selection commission for the head of the Special Investigation Service. Revision of the selection criteria of the head of service and the decision-making procedure for the selection of candidates by the commission;
- Change in the procedure for making a decision on the consent of the Parliament to prosecute the head of the service;
- Revision of the mandate of the Special Investigation Service. Bringing the mandate closer to the real goals of the service. Expanding the mandate, including, to prosecutors, as well as the Minister of Internal Affairs, the head of the Security Service and the Prosecutor General;
- Change in the rule of refusal by the Special Investigation Service to submit the case to its jurisdiction from the Prosecutor's Office, as well as the decision by the Prosecutor's Office to remove the case from the Special Investigation Service and transfer it to another body for the purposes of investigation, so that there is an obligation to substantiate these decisions;
- Ensuring the functional autonomy of the investigative service from the Prosecutor's Office of Georgia, including by giving the investigative service the opportunity to exercise prosecutorial powers;
- Authorizing the Special Investigation Service to prepare special reports along with the annual report if necessary;
- Equipping services with the necessary resources for independent and effective implementation of assigned functions.
The Anti-Corruption Bureau
With the granting of candidate status, along with new conditions, the steps that needed to be taken in the past in terms of fighting corruption were redefined for the Government of Georgia.
On February 21, 2024, the parliamentary majority initiated amendments to the Law "On the Fight against Corruption", but the challenge is that in their current state, the amendments to be implemented include in a very small dose the recommendations made by the Venice Commission.
- According to the amendments adopted in the first reading, the law specifies the following issues highlighted by the Venice Commission:
a) protection of immunity of the head of the Anti-Corruption Bureau - which protects him/her from criminal prosecution, arrest and search without prior consent of the Parliament of Georgia;
b) Substance use or refusal to submit to a mandatory drug test will no longer be grounds for terminating the office;
c) The Head of Bureau will lose the authority to require a drug test certificate from an officer.
- The Anti-Corruption Bureau is reportedly responsible for developing a new Anti-Corruption Strategy and Action Plan, and the process is ongoing.
- On February 19, 2024, the Government of Georgia submitted to the Parliament a short-term plan of legislative activities of the Government of Georgia envisaged for the spring session of 2024. The plan provides for the initiation of amendments to the Law of Georgia "On the Fight against Corruption". The draft law initiated on February 21, 2024, provides for, inter alia, most of the issues identified in the plan. However, in addition, according to the Government's plan, the following issues shall be addressed through amendments: Expansion of the circle of persons subject to mandatory declaration of property status of officials; Development of the form of declaration of incompatibility of interests; Provision of corruption risk assessment to the Anti-Corruption Bureau and relevant recommendations for administrative bodies; Inclusion of the Anti-Corruption Bureau in the list of persons stipulated by Part 2 of Article 39 of the Tax Code of Georgia.
- The Anti-Corruption Bureau is not given the authority to investigate corruption cases. This authority remains with the various agencies.
- The procedure for electing the Head of the Anti-Corruption Bureau remains unchanged, which means that instead of the Parliament, the Head of the Bureau will be appointed by the Prime Minister of Georgia from among the candidates nominated by the competition commission.
- The role of the Prime Minister is not reduced, neither in case of selection of the Head of the Anti-Corruption Bureau, nor in case of early termination of office, which, according to the Venice Commission, gives the Prime Minister too much influence;
- The accountability of the Anti-Corruption Bureau to the Interagency Anti-Corruption Council has not been canceled yet, contrary to the requirement of the Venice Commission. According to the recommendation, the Anti-Corruption Bureau should be accountable only to the Parliament. Currently, the Anti-Corruption Bureau is accountable to the Parliament and the Inter-Agency Anti-Corruption Council, and in addition, its appointment and dismissal by the Prime Minister, according to the Venice Commission, creates "triple accountability" at the de facto level.
- The minimum qualification requirements established by law for the Head of the Anti-Corruption Bureau, which, in the opinion of the Venice Commission, are insufficient, remain unchanged.
- According to legislative amendments, if an official fills in the declaration incorrectly, the Anti-Corruption Bureau may identify a deficiency, which must be corrected within one month. The draft law imposes an express restriction on the disclosure of the declaration or the release of the information contained therein as public information during the above period.
- Georgia has not officially cooperated with the Organization for Economic Cooperation and Development (OECD) Anti-Corruption Network since 2023. Changing the decision and returning to the Anti- Corruption Network is one of the European Commission's requirements, which the OECD/ACN once again urged the Georgian Government to do on March 14;
- In addition to returning to the OECD Anti-Corruption Network, the Government of Georgia should also fully implement the recommendations issued in previous OECD/ACN rounds.
- On December 18, 2023, the Venice Commission adopted an opinion assessing the amendments introduced in the legislation on the Special Investigation Service and the Personal Data Protection Service. In the same opinion, the Venice Commission provided recommendations for the institutional strengthening of both services.
- On March 1, 2024, the new Law of Georgia "On Protection of Personal Data" came into force, which significantly changes the rules governing the processing of personal data. However, the content of the new law is less concerned with the institutional issues stipulated by the Venice Commission recommendations and does not change the regulation related to institutional strengthening and independence of the Service.
- On February 21, 2024, the ruling party initiated a legislative package which includes draft laws amending the laws of Georgia "On Special Investigation Service" and "On Protection of Personal Data". Pursuant to the explanatory note of the draft law, the need for the adoption of the proposed amendments is the obligations defined in the 9 steps of the European Union.
According to the draft law:
- The Special Investigation Service and the Personal Data Protection Service are granted the authority to publish at any time, on their own initiative, a special report on matters related to their activities and deemed important to them.
- The Public Defender is granted the authority to nominate a person from a non-business (non-profit) legal entity to the selection committee of the head of the Special Investigation Service and the Personal Data Protection Service, either through a competition or without a competition.
- The term for the formation of the selection commission for the selection of the heads of the Special Investigation Service and the Personal Data Protection Service is increased.
- The decision-making procedure of the selection commission for the selection of the heads of the Special Investigation Service and the Personal Data Protection Service is changed - the commission will select candidates by a majority vote of the full composition.
- A change is introduced in the rule for resolving the issue related to the immunity of the heads of the Special Investigation Service and the Personal Data Protection Service. According to the draft law, the Parliament will decide on the said issue by a majority of the full composition, instead of a simple majority.
- The exception excluding investigative jurisdiction of the Special Investigation Service in cases where a prosecutor commits an offense under Articles 108, 109, 111, 113-118, 120-124, 126,
1261, 137-139, 143-144, and 150-1511 of the Penal Code is repealed. The draft laws were adopted in first reading on March 6, 2024.
- The powers of the Investigation Service remain limited and do not extend to high-ranking officials (the Minister of the Interior, the Prosecutor General and the Head of the State Security Service);
- The effectiveness of the investigation conducted by the Investigation Service and the prosecution of cases within its competence depend entirely on the Prosecutor's Office. In this regard, the Parliament of Georgia refuses to allow the Investigation Service to carry out prosecutorial activities in exceptional cases or to achieve the same legitimate objectives through other legal mechanisms.
- At the legislative level, no discussion has been opened on one of the important challenges identified by the Venice Commission - on covert wiretapping and on the effective supervision of the technical infrastructure of covert wiretapping and investigation of related crimes, and in this regard, the role of the Personal Data Protection Service and the Investigation Service.
- Issues of fundamental importance, including those identified by the Venice Commission and ensuring the effectiveness and independence of the Anti-Corruption Bureau, have not been taken into account;
- Corruption Network, where it officially ceased its activities in 2023. It is also unknown why this decision has not been changed;
- So far, there is no sign of effective investigation of corruption cases at the highest level;
- Although the proposed amendments to the laws of Georgia "On Special Investigation Service" and "On Personal Data Protection" partially meet the recommendations of the Venice Commission, the amendments are sporadic and cannot adequately ensure institutional independence, impartiality and efficiency of the services;
Step No. 8
Improve the current action plan to implement a multi-sectorial, systemic approach to deoligarchisation, in line with Venice Commission recommendations and following a transparent and inclusive process involving opposition parties and civil society
* Prepared by the Institute for Development of Freedom of Information (IDFI), Governance Monitoring Centre (GMC), Georgia`s Reforms Associates (GRASS)
- Further steps should be taken to further complete the deoligarchisation action plan and start its implementation, to establish a track record of investigations, prosecution, adjudication and final convictions of corruption cases, notably at high-level and, in particular, to address the challenge of large-scale vested interests and their influence in both the political, judicial and economic spheres;
- Implement the action plan following a systemic approach in line with the recommendations of the Venice Commission. This includes that a new anti-corruption strategy and action plan needs to be adopted and its full implementation ensured by providing adequate funding and monitoring mechanisms;
- An inclusive and robust mechanism for coordinating and monitoring should swiftly be put in place allowing also to timely review and complement the plan whenever needed.
- Fight against the adverse influence of oligarchs should be based on a “systemic” approach. The step on Deoligarchisation should be fulfilled by completing other priorities, which is fully in line with Venice Commission’s recommendations;
- Proper implementation of main requirements of Venice Commission’s systemic approach, including ensuring independence, impartiality and effectiveness of key institutions involved in the implementation process;
- Refinement of the existing action plan ,taking into account the feedback of the EU and the Venice Commission, while also ensuring participation of the opposition and civil society;
- Implementing legislative changes and executing administrative measures in a timely manner, as detailed in the action plan;
- Effective execution of measures stipulated in the action plan, including tackling cases of high-level corruption and addressing the challenge of large-scale vested interests and their influence in the political, judicial, and economic spheres;
- Regular, Transparent, and effective monitoring of the action plan’s implementation.
Georgia's deoligarchisation efforts were initially focused on adopting a special law ("personal approach"). However, since 2023, in accordance with the recommendations of the Venice Commission, Georgia has switched to a systemic approach (for more details on the Venice Commission's recommendations, please see the Analysis). After the European Commission's report, on November 27, 2023, the Government of Georgia finally approved the "Action Plan to Prevent Undue Influence of Interests in Economic, Political and Public Life in Georgia";
- The Deoligarchisation Action Plan has been approved. Georgia refused to adopt a special law and opted for a fully systemic approach;
- Georgia has started to implement part of the activities envisaged by the Deoligarchisation Action Plan: it implemented or/and works on implementation of part of the recommendations of GRECO, MONEYVAL and FATF;
- Key institutional reforms that have a significant impact on deoligarchisation are not being implemented or are being implemented with significant shortcomings (see Step No. 6: Justice and Step No. 7: Anti-Corruption Reform);
- The Action Plan has not been updated since its approval.
- The Deoligarchisation Action Plan is not ambitious and does not or does not fully include/incorrectly includes key systemic reforms. The plan does not envision an in-depth multi-sectoral approach and strengthening of coordination mechanisms between democratic institutions. Updating and developing the plan is not on the political agenda;
- Civil society participation was/is not ensured during the development and implementation monitoring phase of the Deoligarchisation Action Plan.
/public/upload/0000_LIZA/Monitoring-Report_9-steps-eng.pdf
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