Authors: Mariam Tutberidze and Saba Buadze

Georgian legislation provides for the obligation for public officials to submit their asset declarations annually.

Declarations are available on the webpage of the Civil Service Bureau. The system is largely functional. However, there are several shortcomings associated to it. Namely, there is no mechanism in place to verify declared data and identify the cases when inconsistent or deliberately false information is indicated. Which will then result in the liability of public officials.

The Civil Service Bureau (CSB) started working on the elimination of those problems in 2015. Specific goal to establish efficient declaration monitoring mechanism was set. In the scope of Public Service Reform this goal was included in the Anti-Corruption Action Plan for 2015-2016 and Open Government Georgia’s second and third National Action Plan. It was also the important part of the Visa Liberalization Action Plan.

The Government of Georgia adopted the instruction for declaration monitoring with its Decree #81 on February 14, 2017. The Institute for Development of Freedom of Information (IDFI), together with other civil society organizations, was involved in the elaboration process of the decree.

The monitoring mechanism approved by the Government envisages the verification of declarations by the Civil Service Bureau based on the following criteria: 1. Random selection and submitted applications (5% of the total amount of the submitted declarations are randomly selected); and 2. Selection of declarations by the Special Independent Commission. The Commission also selects 5% of total amount of the submitted declarations half of which is the declarations of political officials and half is identified according to the special factors.

The Independent Commission will be established in 2018 and will consist of 5 members: representatives of 3 NGOs and 2 members of academia. To be eligible for the membership of the Commission the NGOs are required to have experience in the declaration monitoring/verification and members of academia work/research on anticorruption issues.

The IDFI identified several shortcomings in the decree approved by the Government:

Selection of declarations (Article 4)

According to the Decree – “the declaration is subject to monitoring if it is submitted by the public official or not more than a year is passed from his/her resignation/dismissal at the moment of selection of declaration.”

In the draft decree this condition was applicable to the random selection of declarations or selection by the Commission. The draft was providing the right of applicant to request monitoring of the former public official, despite the period of his/her removal from the office.

The IDFI considers that the declarations of any former public officials should be subject to monitoring if requested with the written and grounded application.

Composition of the Independent Commission and its establishing rules.

First of all, the IDFI considers that the membership of the Commission should not be limited to the representatives of NGOs and academia, since the work of the Commission might become more efficient if the journalists, representatives of professional unions or other persons are involved in the process.

In comparison with the draft decree, the decree in force established unreasonable limitations for the representatives of the NGOs and academia. Namely, the draft decree provided for the requirement– minimum 3 years should be passed from the establishment of NGO, while decree in force requires 5 years and monitoring of declaration component in their activities.

The IDFI found, that those two restrictions creates the risk of unreasonable and ungrounded obstacles for the NGOs and is not proportionate with its objective, since the NGOs with more general (e.g. anticorruption) experience have the capacity to select the declarations efficiently.

It should also be noted that neither the state agencies have the experience in the monitoring of declarations, since Georgia did not have such system before. Hence, the requirement of the experience in the monitoring of declarations creates high risk for the NGOs to face artificial obstacles in the future.

Draft decree did not set the requirement for the member of academia to have conducted the study covering the anticorruption issues. The reasoning behind the restriction of the scholars with economic, tax or financial or other experience from participation in the work of commission is also unclear.

The decree provides for the random selection of the representatives of NGOs and academia in cases when there is more than 3 NGO and more than 2 applications from academia submitted.Considering the fact that there is no detailed selection criteria set in the decree, the risk of ungrounded and biased decisions might be created in practice. More importantly, the principle of random selection does not provide for the opportunity to justify the decisions and dispel the suspicions. In addition, there are no clear guidance rules for the CSB for random selection of the Commission members.

The danger of refusal to create the Commission (Article 9)

The decree provides for the possibility of refusal for creation of the Commission. In particular, after the deadline of receiving the applications, if less than 3 applications are received from the NGOs or less than 2 applications are submitted by the members of academia, the CSB may only once extend the deadline for not more than 3 days and then take the decision on the refusal of creation of the Commission.

The IDFI observes that extension of the deadline for only 3 days is a default rather than result oriented clause. This rises the assumptions that the simple regulations for the refusal of creation of the Commission misses the main objective of creating independent and impartial commission which should be alternative declaration review body, supporting the transparency of the process and the work of the CSB.

The draft decree also provided for the possibility of replacement of the candidates in case if some of them did not meet the requirements. That was the essential requirement, giving the fact that the Bureau has simple procedures for refusal of creation of the Commission. However, the enacted decree does not provide this leverage as well.

The mandate of the Independent Commission (Article 10)

According to the decree the half of the declarations selected by the Commission should belong to the political officials, and another half should be selected based on special factors: special corruption risk, high public interest and based on the violations identified after monitoring.

The IDFI considers that the provision of the Instruction requiring from the Commission to select half amount of the declarations of political officials out of total number of its mandate is restrictive factor, sincethe wider and more important categories fall under the scope of the other half of declarations. Moreover, the declarations of political officials might also be covered by the special factors.

The duplication of the monitoring (Article 13)

The decree provides for the elimination of duplication of selected declarations by the Commission and the electronic system for the monitoring of declarations. However, the wording of the article states that if the same declarations are selected by the electronic program and the Commission the other declaration is selected only if necessary.

The IDFI considers that the phrase – “if necessary” should be removed from the section 5 of the article 13, since this wording provides the possibility of duplications of the declarations under review (the selection of the same declaration by the Commission and the electronic program resulting in the same declaration falling under two categories).

Moreover, only Bureau may determine the necessity since, according to the procedure commission selects the declarations first and then the electronic system, which then should be processed by the CSB and compared the selected declarations by the Commission to the list of declarations selected by the electronic system.

Recommendations

The IDFI welcomes the endeavors of the Government of Georgia and the Civil Service Bureau to eliminate the shortcomings in the public officials’ asset declaration system. The asset declaration monitoring instruction provides the possibility of actual verification of the data indicated in the declarations and leaves behind the practice of formally filling the declaration forms.

The IDFI also recommends the Government of Georgia to consider the shortcomings identified in the enacted decree by our organization and reflect them till full enactment of the instruction.

The recommendations of the IDFI:

- The declaration of any former public official should be subject to review on the basis of grounded written request;

- The membership of the Commission shouldnot be limited to the members of NGOs and academia;

- The minimum requirement for the NGOs to be established for 5 years at the moment their application should be reduced. The scope of their experience should be expanded and should not be limited to the declaration monitoring component;

- The requirement of the experience for the member of academia should be expanded and not limited to the work on anticorruption issues;

- Random selection of the members of the commission should be replaced by the selection standard based on the specific criteria;

- High standard for refusal of the creation of the Commission should be established;

- The requirement for the Commission on the half amount of the declarations of political officials out of total number of its mandate should be removed;

- The phrase “if necessary” should be removed from the section 5 of the article 13 of the decree.