IDFI believes that the legislative package fails to respond to the EU recommendation regarding the strengthening of the fight against corruption, especially high-level corruption. Although the draft law envisages the creation of an Anti-Corruption Bureau, none of the functions implied by the European Union recommendation have been assigned to this body.
The draft law does not respond to the challenges clearly identified by the European Union in the fourth priority:
1. …does not concern those members of the families of officials who are not required to declare their property today;
2. …does not increase whistleblower protection guarantees, does not regulate legal relations with whistleblowers;
3. …does not strengthen the monitoring system of officials' asset declarations;
4. …does not strengthen the administrative capacity/mechanisms for supervising the finances of political parties;
5. ...does not provide for the creation of a specialized investigative body. The investigation of such crimes still remains within the competence of the State Security Service;
6. …does not envisage the establishment of a single body that will handle all key anti-corruption functions and at the same time have a high degree of independence.
The proposed new agency will only be given the power to participate in the determination of the state's anti-corruption policy, which is absolutely insufficient for the implementation of the fourth recommendation of the European Union.
The Anti-Corruption Bureau will be one of the entities involved in the determination of the state policy against state corruption. It will not be able to make any impact and exercise effective administrative (procedural or material) control over the actual enforcement of anti-corruption legislation requirements by various state bodies. More specifically, it will not have the authority to influence the implementation of preventive or punitive anti-corruption measures in practice.
We call on the Parliament of Georgia to take into consideration the opinion of the European Commission and create an independent centralized body that will handle all key anti-corruption functions.
On October 26, 2022, the Legal Issues Committee of the Parliament of Georgia initiated another legislative package with regard to the implementation of EU recommendations. The package was prepared within the framework of the 4th recommendation of the European Union, which requires the state to strengthen its anti-corruption efforts. The legislative package was published on October 31.
The author of the draft law is "the Working Group created by the Legal Issues Committee for the purpose of preparing relevant legislative changes (institutional strengthening of anti-corruption activities) to be implemented in order to grant EU membership candidate status to Georgia. The mentioned Working Group was created based on the Legal Issues Committee's decision of 18th of August, 2022.
The Institute for Development of Freedom of Information (IDFI) was one of the CSOs. IDFI presented its own vision regarding the implementation of EU recommendations to the Working Group in detail.
The legislative package initiated by the Legal Issues Committee incorporates amendments to 27 legislative acts/laws. Central among them is the draft of amendments to the Law of Georgia “On Conflict of Interest and Corruption in Public Institutions.” The goal of three of the remaining 26 draft laws is to bring the Georgian legislation into compliance with the changed legislative situation. In turn, 23 of these concern the formal additions resulting from the name change of the National Anti-Corruption Council.
The Legal Issues Committee considered the creation of a legal entity under public law - the Anti-Corruption Bureau, as a way to implement the abovementioned recommendations of the European Union. According to the draft law, the Bureau will be granted the following authorities:
- Develop proposals regarding the determination of the general policy of fighting against corruption and submit them to the Parliament of Georgia;
- Develop the draft of the National Anti-Corruption Strategy of Georgia and the Action Plan for the Implementation of the National Anti-Corruption Strategy of Georgia and submit it to the Government of Georgia for approval;
- Coordinate the activities of appropriate bodies, organizations, and officials in order to implement the document defining the general policy of the fight against corruption, the national anti-corruption strategy of Georgia, and the action plan for the implementation of the national anti-corruption strategy of Georgia;
- Oversight of the implementation of the document defining the general policy of the fight against corruption, the National Anti-Corruption Strategy of Georgia, and the action plan for the implementation of the National Anti-Corruption Strategy of Georgia, and preparation of corresponding proposals and issues-relevant recommendations for their implementation;
- In the field of combating corruption, study and analyze existing international standards and experience, the experience of Georgia and other countries, their legislation and approaches, opinions and conclusions of relevant international organizations;
- Contribute to increasing public awareness in the fight against corruption, including the implementation of appropriate educational measures;
- Once a year, no later than March 31, submit an annual report to the Parliament of Georgia on the issues within the competence of the Anti-Corruption Bureau, and on its own initiative or at the request of the Anti-Corruption Inter-Agency Council, submit periodic reports to the Anti-Corruption Inter-Agency Council on issues within the competence of the Anti-Corruption Bureau.
The draft law also envisages the procedure for the election of the head of the Anti-Corruption Bureau and guarantees of independence. Furthermore, the draft law changes the name and powers of the Inter-Agency Coordination Council to Combat Corruption, which is due to the changes resulting from the creation of the Anti-Corruption Bureau.
The legislative package indicates that the Anti-Corruption Bureau will be one of the entities involved in the determination of the state policy against state corruption. It will not be able to make any impact and exercise effective administrative (procedural or material) control over the actual enforcement of anti-corruption legislation requirements by various state bodies. More specifically, it has no authority to influence the practical implementation of preventive or punitive anti-corruption measures.
The opinion of the European Commission of June 17, 2022, defines priorities for Georgia which must be fulfilled in order to obtain the status of a candidate for the European Union.
According to the 4th priority, Georgia must “strengthen the independence of its Anti-Corruption Agency, bringing together all key anti-corruption functions, in particular to rigorously address high-level corruption cases”.
In order to understand the real content of the mentioned requirement, it is necessary to analyze the context in view of which the European Commission defined the cited priority. Before establishing the priorities, the opinion of the European Commission includes an analysis that identifies the problems that the cited priority of strengthening anti-corruption efforts is meant to address. 1.3.B part of the European Commission’s Opinion (p. 8).
First of all, the European Commission points out that Georgia has introduced substantial legal reforms regarding anti-corruption in terms of approximating to EU acquis, and Georgia is a party to all key international anti-corruption conventions. However, the European Commission identifies challenges that exist in Georgia and that must be corrected. From this point of view, the main messages of the European Union are:
1. The implementation and monitoring process of the obligation to submit asset declarations should be improved; Family members of the officials should be fully covered.
2. Whistleblower protection needs to be strengthened.
3. There is no single independent anti-corruption agency that deals independently with conflicts of interest, verification of declared assets, auditing the financing and spending of political parties, and whistleblower protection (The administrative capacity to obtain effective control of party financing needs to be strengthened).
4. There are no specialized investigative, prosecution services or specialized courts dealing with the fight against corruption. Investigation of cases in this area [anti-corruption measures] should be strengthened.
5. More needs to be done to combat high-level corruption.
In terms of describing the situation, the European Commission additionally points out that the investigation of corruption cases is fully under the authority of the State Security Service, while the National Anti-Corruption Council has not held a meeting since 2019 and suffers from a lack of employees. In addition, the Commission notes that the National Anti-Corruption Strategy for 2021-2022 has not been adopted.
The content and the context within which the 4th priority defined by the European Commission was issued indicates that the main request of the European Union is to strengthen anti-corruption measures at the practical level. In other words, the practical implementation of material (preventive or punitive) measures against corruption provided for by the current legislation should be increased, and the requirements of the existing legislation should be properly fulfilled.
The presented analysis indicates that, in terms of accomplishing the 4th priority of the European Union, Georgia's efforts should have been directed towards the implementation of the following measures:
a) Establishing a centralized body equipped with an appropriate degree of independence, proper resources, and powers, and the functions of which will include 1) monitoring of donations and financing of political parties; 2) monitoring of declarations of officials; 3) protection of whistleblowers in public service;
b) Extending the requirements of the Law of Georgia “On Conflict of Interest and Corruption in Public Institutions” to family members of officials, regardless of whether they live together or not;
c) Creating a specialized investigation/prosecution body or court for corruption cases.
d) Providing adequate resources to the Inter-Agency Coordination Council to Combat Corruption, restoring its functioning, and adopting a national strategy for the fight against corruption.
The draft law initiated by the Legal Issues Committee entails the creation of an independent Anti-Corruption Bureau, but without the functions that are critical for the fulfillment of the 4th priority defined by the European Union.
More specifically, the Bureau does not have the ability to exercise and/or provide effective administrative (procedural or substantive) oversight to adequately enforce the requirements of anti-corruption legislation. It will not be able to influence the practical implementation of preventive or punitive anti-corruption measures.
The draft law does not respond to any of the main challenges implied by the European Union in the fourth priority. In particular, the legislative package….
1. …does not concern those members of the family of officials who are not required to declare their property today;
2. …does not increase whistleblower protection guarantees, does not regulate legal relations with whistleblowers;
3. …does not strengthen the monitoring system of officials' asset declarations;
4. …does not strengthen the administrative capacity/mechanisms for supervising the finances of political parties;
5. ...does not provide for the creation of a specialized investigative body. The investigation of such crimes still remains within the competence of the State Security Service;
6.…does not envisage the establishment of a single body that will handle all key anti-corruption functions and at the same time have a high degree of independence.
The only aspect on which the legislative package will have a positive impact is the determination of anti-corruption policy in the state. In particular, the adoption of a strategy and action plan, as well as the allocation of financial resources necessary for elaborating this strategy and policy.
In the submitted package, the rules for creating the Anti-Corruption Bureau contain several gaps, but we will not discuss these shortcomings in the presented analysis, since the Bureau is not assigned any authority, such that its implementation would require high guarantees of independence.
Based on the analysis presented above, IDFI believes that the legislative package fails to respond to the EU recommendation regarding the strengthening of the fight against corruption, especially high-level corruption. Although the draft law provides for the creation of an Anti-Corruption Bureau, none of the functions implied by the European Union recommendation are assigned to this body. The legislative package does not concern not only the steps to be taken derived from the spirit of the European Commission’s Opinion, but also the challenges mentioned in the text of the document.
The newly created body will only be given the authority to participate in the determination of the state's anti-corruption policy, which is certainly insufficient for the implementation of the fourth recommendation of the European Union.
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This material has been financed by the Swedish International Development Cooperation Agency, Sida. Responsibility for the content rests entirely with the creator. Sida does not necessarily share the expressed views and interpretations.
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