Why Did the Necessity to Create an Independent Anti-Corruption Bureau Arise?

Following the so-called “Rose Revolution” in 2003, Georgia initiated and successfully implemented a variety of reforms, including in the direction of the fight against corruption. In a short span of time, basic and conspicuous forms of corruption (so-called low-level corruption) was, for the most part, eliminated in public service, and this result from the reforms has been retained to this day. Georgian citizens no longer had to pay bribes to the police, prosecutors, judges, and/or to have access to basic public services such as registration of property or civil acts, receiving various services in the areas of healthcare and education, etc.

Unfortunately, the same cannot be said about high-level, so-called “elite” corruption. One of the characteristics of this form of corruption is the involvement of officials of high, often political positions and large financial resources, which allows the participants of corrupt arrangements to disguise their actions in the eyes of the public. A clear illustration of this fact is that, since 2003, Georgia has not seen an arrest of an acting high official (for example, a minister or deputy minister) on the grounds of corruption. Such instances have only been observed after a change in government.

Taking into consideration the specifics of high-level corruption, the independence and impartiality of bodies with investigative, criminal prosecution, or justice implementation functions become of crucial importance. However, one should not forget that anti-corruption measures do not only have a criminal prosecution dimension. Prevention and detection of high-level corruption and punishment of criminals can only effectively be carried out with the existence of different types of anti-corruption mechanisms and their coordinated use. These needs have become the grounds for the creation of centralized anti-corruption bodies in a number of countries.

The experience of the civil sector has shown us that significant challenges exist in Georgia in terms of both the effectiveness of anti-corruption measures spread across various institutions and the proper investigation of high-level corruption crimes. Due to the nature and specifics of these challenges, it was considered that there was a need to create a centralized anti-corruption body in the country, which would have high guarantees of independence and would unite various key anti-corruption measures, including investigative functions, within itself.  

How the Obligation of Creating the Anti-Corruption Bureau Became Included in the EU Recommendations

The European Union, one of the recommendations of which to Georgia is to carry out the so-called “de-oligarchization” process, has sufficient information on the existing challenges in the country with regard to corruption, specifically, regarding high-level, so-called “elite” corruption, which is one of the most difficult forms to eliminate. The fight with this form of corruption requires, first of all, significant political will. As mentioned previously, concentration of key anti-corruption functions within one body is not an innovation, being the way chosen by multiple European countries. At the same time, a corresponding draft law was initiated in the Georgian Parliament by a number of political and civil groups. As such, the EU named the consolidation of anti-corruption measures and the specialization of the implementing body as a logical institutional model for increasing the effectiveness of the fight against high-level corruption.

How Was the EU Recommendation Fulfilled and What Challenges Remain Now

The recommendation by the EU to create an independent Anti-Corruption Bureau was only partially fulfilled. Specifically, the fact that the Georgian Parliament created a separate anti-corruption service and consolidated three anti-corruption mechanisms named by the EU under it – monitoring the property declarations of public officials, monitoring the financing (donations) of political parties, and the topics related to the protection of whistleblowers in public service – can be considered as progressive.

It should be noted that the process of creating the Anti-Corruption Bureau and granting it corresponding powers was conducted chaotically. Namely, the initial version introduced by the Legal Issues Committee of the Parliament did not grant the Bureau the functions of monitoring declarations, nor of control over political finances or protection of whistleblowers. The only issue where the Bureau would have any authority was being involved in the development of the anti-corruption policy. Despite active advocacy by the civil society during the deliberations in the Parliament that the Bureau should be equipped with a high functional mandate (both the 3 functions listed above, as well as the function of investigating corruption cases), this version of the law was adopted in the first reading.

Following criticisms from the civil society and international partners, the Chairman of the Legal Issues Committee of the Parliament made a statement during a plenary session that the Committee would initiate new amendments that would grant the Bureau powers over issues related to monitoring of declarations, monitoring of the financing (donations) of political parties, and protection of whistleblowers. This in turn put the necessity of strengthening the institutional guarantees of the independence of the head of the Bureau, as well as debates on the effective implementation of the functions granted to the Bureau, on the agenda. Unfortunately, these issues did not receive an appropriate level of discussion. For example, one of the challenges named by the European Commission – expanding the definition of a member of the family of a declarant – was neglected entirely during the implementation of the reform.

As mentioned, this amended version of the draft law was adopted by the Georgian Parliament very soon after it was initiated and made available to the public. As such, the civil society did not have an opportunity to discuss the guarantees for independence necessary for the proper implementation of these functions with the Parliament, including the procedure for the appointment of the head of the newly created institution. The functions were “transferred” to the Anti-Corruption Bureau in such a way that there had been no substantial discussion on the topic within the framework of a Parliamentary session. Moreover, the explanatory note of the bill itself clarified that these functions would be given to the Bureau only in a “technical” sense.

In addition, two critically important problems remain unresolved. The first of these is the fact that the Bureau has not been granted an investigative mandate. The second problem is related to the independence and impartiality of the Anti-Corruption Bureau and public trust towards it (the same challenges are discussed by the Venice Commission in its report when evaluating this reform). The Georgian Parliament entrusted the appointment of the head of the Anti-Corruption Bureau to the executive branch (the Prime Minister) and thereby established a flawed system in terms of accountability. The Anti-Corruption Bureau created in this way does not have sufficient institutional independence and the authority to oppose and address (investigate) high-level corruption cases in the country. We believe that the Georgian Parliament, despite calls from the civil sector, in order to fulfill the recommendation from the European Commission to create an (separate) investigative body specialized in anti-corruption activities, did not demonstrate sufficient political will and only fulfilled this recommendation on the level of a formality. Due to these circumstances, the European Commission did not consider this recommendation to be fulfilled, and when granting the EU candidate status to Georgia in December 2023, the second package of recommendations issued to Georgia for the further progression of integration with the EU once again raised the issue of guaranteeing the independence of the Anti-Corruption Bureau.

Solution to the Dilemma and Possible Questions

Under current circumstances, the State Security Service is responsible for investigating anti-corruption cases in a general manner. In order to address the existing challenges in the country in terms of corruption, especially high-level corruption, it is crucial for this function to be removed from the Security Service and for it to be transferred to the Anti-Corruption Bureau. Granting the Anti-Corruption Bureau investigative functions will by itself create the need for increasing its independence, accountability, and level of trust. Guaranteeing the above-mentioned is impossible without amplifying the role of the Parliament in both appointing and dismissing the head of the Bureau. Specifically, the rules for appointing the head of the Anti-Corruption Bureau will need to be amended in a way that the head of this institution will need to have the trust of not only the parliamentary majority, but the opposition as well, which will in turn define the Parliament as the locus for the accountability of the Bureau.