On February 26th information came out regarding the initiation of amendments to the Law of Georgia On the Fight against Corruption and other legislative acts. According to the explanatory note of the main draft law, the goal of the amendments is to fulfill the 7th condition defined by the European Union. After studying the draft law, IDFI believes that the initiated amendments are not able to respond to the requirements of the condition set by the European Commission and the key recommendations from the Venice Commission and that the legislative package needs substantial improvement.

Contents of the EU’s 7th Condition: What is Required from Georgia

On 8 November 2023, among the conditions defined to Georgia by the European Commission is one concerning the necessity to ensure the effectiveness, independence, and impartiality of the Anti-Corruption Bureau, fulfilling the recommendations of the Venice Commission, and the effective investigation of corruption cases. In this regard, the European Commission refers to the Venice Commission. Specifically, the European Commission, on the one hand, itself lists the key objectives and functions of the Anti-Corruption Bureau, and on the other hand, points to the Venice Commission, the recommendations of which define more clearly the compatibility of the existing or possible normative order of the state with the main objectives of strengthening the anti-corruption efforts of the state. 

It is important to highlight that the Venice Commission assessed the Georgian anti-corruption legislation partially  (only the amendments concerning the Anti-Corruption Bureau) several months ago, on 18 December 2023. At the time, the European Commission’s 9 conditions had already been published. Additionally, since then no legislative changes have been implemented in Georgia to address the key and/or other challenges identified by the Venice Commission. Therefore, Georgia has fairly clear indicators to implement changes that will be in line with the requirements of the 7th condition of the European Union. These indicators are:

• The Need to Ensure the Institutional Independence of the Anti-Corruption Bureau and Trust in the Bureau

In terms of the independence and trust of the Anti-Corruption Bureau, the Venice Commission issued the recommendation “that the Law be amended to require cross-party support for the appointment of the head of the ACB, by appointing him/her either with a qualified majority in Parliament, with an appropriate anti-deadlock mechanism (requiring more than an ordinary majority) or an appropriate alternative, reflecting broad, cross-party agreement in Parliament (for example, in the form of a double majority, entailing a majority among parliamentarians both from the majority and the opposition).” The Venice Commission recommendation also envisions transferring the authority to decide on the early termination of the mandate of the Head of the Bureau to the Parliament, instead of the Prime Minister. The Venice Commission points to the “necessity of a wide consensus” with regard to institutions requiring “strong public trust” and which, considering their functions, “need to be perceived as politically neutral” (see analysis of the Venice Commission Opinion, part 3.3).

The Venice Commission points out that, according to the law, the Anti-Corruption Bureau is accountable to the Parliament and the Interagency Anti-Corruption Council, and as such, the selection and early termination of the term of office of the Head of the Bureau by the Prime Minister “casts a shadow” over the independence and political neutrality of the Bureau. On a factual level, this creates “effectively a triple accountability, which is unfortunate and should be reconsidered” (see analysis of the Venice Commission Opinion, part 3.2).

Although the pre-selection of the candidates for the position of Head of the Bureau is done by the competition commission, the Venice Commission draws attention to the fact that “ four out of the seven members of this commission representing the political majority or being appointed by this majority.” Consequently, according to the opinion, the composition of the competition commission is not considered "sufficiently pluralistic, considering also that the final choice of a candidate is to be made by the Prime Minister, who additionally has the option of a reasoned refusal and the possibility of prolonging the mandate of the incumbent head by not appointing a new head.” (see analysis of the Venice Commission Opinion, part 3.1).

• Granting the Anti-Corruption Bureau Investigative Power

The Venice Commission welcomes combating corruption in the long-term, but “it notes that the ACB has no investigative powers and no legal tools to address” high-level corruption. The Venice Commission notes that the Anti-Corruption Bureau lacks the investigative authority necessary for consolidating the key anti-corruption functions and fighting high-level corruption (see analysis of the Venice Commission Opinion, part 4).

It should be noted that the Venice Commission’s opinion assessed only the amendments made to the legislation with regard to the Anti-Corruption Bureau and has not considered the effectiveness of anti-corruption legislation in general, as Georgia has not requested an assessment of this legislation.

Overview of the Legislative Package Initiated in the Parliament of Georgia

The legislative package initiated by members of the parliament amends several normative acts related directly to both the implementation of the functions of the Anti-Corruption Bureau and its independence. The amendments change the rules for the property declarations of public officials and monitoring them. More specifically, the draft laws contain the following amendments: 

• New grounds for termination of the registration of a party - The legislative amendments package contains amendments to the Organic Law of Georgia on Political Associations of Citizens. According to the initiated changes, if a party does not present to the Anti-Corruption Bureau a financial declaration in accordance with law for 2 calendar years in a row, LEPL - National Agency of Public Registry will be authorized to terminate the registration of this party based on a request of the Head of the Anti-Corruption Bureau. After the termination of the party’s registration, the remaining property of this party will be transferred to the state treasury. It is important to highlight that, according to the Constitution, only a decision of the Constitutional Court can become the basis for the dissolution of a party. Notably, no exhaustive authoritative explanation of this provision  exists; however, we believe that the termination of the registration of an active party based on a request of an administrative body creates the risks of undue interference in the party's activities and violation of Article 23, Clauses 1 and 4 of the Constitution of Georgia;

• Granting the authority to conduct special administrative proceedings - Amendments initiated in the Administrative Procedure Code will grant the Anti-Corruption Bureau the authority to carry out specific activities within the framework of special proceedings, including the questioning of a natural person, submitting a motion for the questioning of a natural person to a magistrate judge, requesting information from a public institution, a natural person, a legal entity, or another entity. The granting of these powers is related to the monitoring of the financial activities of a political party, an electoral entity, or a person with a declared electoral goal. We consider increasing the effectiveness of the Anti-Corruption Bureau with such mechanisms appropriate, although it is crucial to ensure the institutional independence and political neutrality of the Bureau along with increasing its powers. Otherwise, the risks of abuse of the Anti-Corruption Bureau's mandate and reduced trust in the institution will increase substantially;

• Removal from the legislation of the drug test requirement and information disclosure - According to the opinion of December 18, 2023, the Venice Commission suggested to Georgia that either the legislative provisions regulating the issue of mandatory drug testing and information disclosure be further clarified, or they be removed from the legislation. Therefore, the amendment that contains the provision to abolish mandatory drug testing echoes the recommendation of the Venice Commission;

• Establishing a one-month time limit for identifying the defect and eliminating it and limiting the publicity of information - According to the current legislation, the Anti-Corruption Bureau has the authority to grant an additional 48-hour period for editing the data included in the declaration to a person for filling out the declaration of the official's property status within the time limits stipulated by the law. Meanwhile, according to the initiated amendments, if the declaration contains any defect, the Bureau will be granted a month to reveal it, and afterward the official will be granted one month to remedy the defect. At the same time, the draft law imposes a direct restriction on the disclosure of the declaration or the release of the information contained therein as public information during this period. We believe that defining one-month periods for revealing and eliminating defects in declarations and the limitation of the publicity of information during this period will, on the one hand, negatively impact the effectiveness of the Bureau (the Bureau has the obligation to reveal the defect within one month after the submission of the declaration when hundreds of declarations can be registered in the Bureau on a specific day of the year or in a short period of time), and on the other hand, will unduly limit public oversight of this process;

• Increasing the minimum amount of cash funds subject to declaration - According to the current legislation, officials are obligated to include in their declarations the amount of cash owned by the person or their family members in excess of 4,000 GEL. According to the initiated amendments, the minimum amount of cash funds subject to declaration will be increased and will have to exceed 10,000 GEL. The explanatory note of the draft law indicates that the purpose of the change is to ensure compliance with other norms of the Law of Georgia On the Fight against Corruption. It is important to note here that the amount of cash is defined in different amounts in Articles 14 and 15 of the current legislation. Nevertheless, no substantive reason is given on why the difference in these amounts is being resolved based on this principle. In other words, why is the rule that provides for a lower amount of cash subject to declaration being changed, and not the other; 

• Change of the procedure for submission of notification, individual administrative-legislative act - According to the initiated bill, a notification, individual administrative-legislative act is considered to have been submitted from the moment the submission is reflected in the system. At the initial assessment, this can be considered a positive change; 

• The authority to impose a fine in case the defect is not remedied - The initiated bill contains a provision that a public official can be fined 1,000 GEL if a defect identified in the property declaration has not been remedied within 1 month. The content of this amendment is related to the issue discussed above, according to which a 1-month time limit is established for the detection of a defect and its elimination. At the initial assessment, this amendment does not worsen the working process of  the Bureau, however as already mentioned, we believe that setting time frames of this length would have a negative impact on the effectiveness of the Bureau;

• Authority to grant whistleblower status and to send information, documents, and evidence to the appropriate authority/official to respond to a whistleblower’s submission - According to the existing anti-corruption legislation, among other issues, the law establishes the basic principles of the general rules for the protection of whistleblowers. The draft law granting the Bureau the authority to confer whistleblower status can be evaluated positively by the initial assessment. However, the authority to provide information, documents, and evidence to the appropriate body/official in order to respond to a whistleblowing case needs additional clarification, including, the whistleblower's prior consent and in case of desire ensuring the protection of anonymity;

• Reference on compliance with the requirements established by the Law of Georgia On Personal Data Protection and the Code on the Rights of the Child - The December 18, 2023 opinion of the Venice Commission discusses, among other topics, the importance of the declarations’ transparency and accessibility to the public, while recommending that the provisions regarding data protection be included in more precise and clear terms in the legislation. The initiated amendments, instead of providing clear and unambiguous rules, obligate the Bureau to comply in general with the requirements of the Law of Georgia and the Code on the Rights of the Child, which may unduly limit the effectiveness and transparency of the Bureau's activities;

• Immunity of the Head of the Anti-Corruption Bureau - According to the draft law, imposing criminal liability, arrest, or detention of the Head of the Anti-Corruption Bureau, searches of the place of residence or workplace, vehicle, or person, will be possible only with the prior consent of the Parliament of Georgia. An exception is the caught at the crime scene, and in this case the Parliament shall be immediately notified. If the Parliament of Georgia does not give its consent within 48 hours, the arrested or detained Head of the Anti-Corruption Bureau shall be released immediately. This change represents a positive development. 

Conclusion: How the Legislative Package relates to the EU’s 7th condition

The analysis of the initiated legislative amendments has revealed that the key recommendations of the Venice Commission, the implementation of which would in turn facilitate the fulfillment of one of the conditions of the European Commission, at this stage, have been neglected. At the same time, the draft law includes a number of fragmentary changes, some of which, instead of improving the situation, on the contrary, create risks to the already-limited effectiveness of the Bureau. Moreover, the compatibility of one of the changes from the initiated amendments package with the Constitution is in question.

More specifically, the legislative package does not address the key challenges identified by the European Commission and the Venice Commission and the subsequent  recommendations:

- Selection of the Head of the Anti-Corruption Bureau by the Parliament of Georgia with a high majority;

- Change in the accountability system of the Anti-Corruption Bureau;

- Granting the authority to investigate corruption cases to the Anti-Corruption Bureau.

It is important to note that the short-term plan of the Georgian Government's law-making activities foresees the amendments planned to be introduced to the Law of Georgia On the Fight against Corruption and includes the revision of the list of persons subject to mandatory property declarations to expand the said list. According to the Government's plan, the Anti-Corruption Bureau is indicated as the author of the planned amendments to this law. It should be noted here that, according to the current legislation, the Anti-Corruption Bureau is equipped with significant authority in the process of developing the general anti-corruption policy or the national anti-corruption strategy and action plan. Against this background, the fragmentary amendments initiated by members of parliament, which were developed without the due engagement of stakeholders and fail to fulfill the key recommendations from the European Commission and the Venice Commission, do not consider the systemic approach that is crucial for the implementation of the requirements of the European Commission with regard to the Anti-Corruption Bureau.