State of Imple­men­ta­tion of the Commit­ments on De-Oligarchiza­tion and Anti-Corrup­tion by Georgia

Intro­duc­tion:

In June 2022, the European Union proposed twelve prior­i­ties for Georgia to address as precon­di­tions for receiving EU candidate status. The Georgian Dream Govern­ment imme­di­ately pledged to implement all of the condi­tions fully. To this end, working groups were set up in Parlia­ment, and several legisla­tive amend­ments were intro­duced. Civil society orga­ni­za­tions and oppo­si­tion parties published papers describing their visions for imple­menting the 12 condi­tion­al­i­ties that same summer and also put forth specific legisla­tive initiatives.

In July 2023, the ruling party of Georgia declared that all condi­tion­al­i­ties had been imple­mented. The European Commis­sion did not share its optimism, however. The Commis­sion gave oral briefings on Georgia’s progress on imple­menting the condi­tion­al­i­ties (as well as on that of Ukraine and Moldova) to the European Council in Brussels (at the ambas­sado­rial level) and Stockholm (at the informal minis­te­rial level) on 21 and 22 June. For this purpose, the Commis­sion used a five-point scale (no progress, limited progress, some progress, good progress and completed) to describe the extent of imple­men­ta­tion of prior­i­ties. In Georgia’s case, the Commis­sion judged the imple­men­ta­tion of three (ombudsman, ECtHR judgments, gender equality) of its twelve prior­i­ties to have been completed. On one priority (media freedom), the Commis­sion saw no progress at all; on another (de-oligarchiza­tion), it iden­ti­fied only “limited progress”. Regarding the remaining eight prior­i­ties, the Commis­sion reported that “some progress” had been made.

The views of the Georgian civil society orga­ni­za­tions moni­toring progress on the 12 prior­i­ties largely coincide with the European Commission’s assess­ment. According to the CSO assess­ment done regularly through the Candidacy Check, at least five condi­tions (de-polar­iza­tion, inde­pen­dence of judiciary, de-oligarchiza­tion, media freedom and coop­er­a­tion with the civil society) have yet to be fulfilled, whereas some progress has been made on the remaining seven. The trans­po­si­tion of the ECtHR judgments and greater gender equality come closest to being fully implemented.

These Brief attempts to sketch out the chal­lenges of imple­menting Georgia’s commit­ments to de-oligarchiza­tion and the fight against corruption.

In June 2022, the EU called on Georgia “to implement the commit­ment to ‘de-oligarchiza­tion’ by elim­i­nating the excessive influence of vested interests in economic, political, and public life”. This request was also repeated in the condi­tions for Moldova and Ukraine, albeit with different wording. In its oral report in June 2023, the European Commis­sion welcomed the announce­ment by Georgian Dream lead­er­ship that it would not be adopting the draft law on de-oligarchiza­tion. Though, in fact, the ruling party only deferred the adoption of the legis­la­tion until late 2023 and statedthat it would not adopt the law only if the European Commis­sion removed the issue from 12 condi­tion­al­i­ties. EU, in turn, urged Georgia to adopt a “systemic approach” to de-oligarchiza­tion. Unfor­tu­nately, no systemic efforts of this kind have been under­taken by the Georgian Govern­ment thus far.

On the subject of anti-corrup­tion measures, the EU requested Georgia to “strengthen the inde­pen­dence of its anti-corrup­tion agency bringing together all key anti-corrup­tion functions, in partic­ular, to address high-level corrup­tion cases rigor­ously; equip the new Special Inves­tiga­tive Service and Personal Data Protec­tion Service with resources commen­su­rate to their mandates and ensure their insti­tu­tional inde­pen­dence.” In its oral assess­ment on 21 June, the European Commis­sion stressed that full imple­men­ta­tion of this priority would require measures ensuring that Georgia’s anti-corrup­tion agency operates inde­pen­dently and noted that Georgia should consult the Venice Commis­sion regarding the relevant draft legis­la­tion. The Commis­sion also asked Georgia to recon­sider with­drawing from the OECD anti-corrup­tion network.

1. THE DE-OLIGARCHIZATION PRIORITY (5THPRIORITY)

1.1 One sole oligarch, or many oligarchs?

De-oligarchiza­tion is consid­ered one of the most contro­ver­sial and ambiguous prior­i­ties, mainly because the European Commis­sion has not been clear about who Georgia’s oligarchs are. Bidzina Ivan­ishvili is consid­ered to be an oligarch by 35% of the Georgian respon­dents in a recent survey conducted by the Caucasus Research Resource Center (CRRC). Mr. Ivan­ishvili is the founder of the Georgian Dream party and a former prime minister. Although he hasn’t held any political post since 2013, many Georgians believe that the reclusive billion­aire continues to rule behind the scenes. In contrast, only 3% of the respon­dents in the CRRC survey believed that former President Mikheil Saakashvili is an oligarch, and only 2% agreed that Mamuka Khaz­aradze, the founder of the TBC Bank and the political party Lelo, could be consid­ered as such. The European Parlia­ment clearly iden­ti­fied Bidzina Ivan­ishvili as an oligarch in reso­lu­tions adopted in June 2022 and December 2022. Civil society orga­ni­za­tions and oppo­si­tion parties also believe that Bidzina Ivan­ishvili is Georgia’s “sole oligarch”.

While there is no doubt about who is regarded as an oligarch in Georgia, the Georgian Dream swiftly moved to deflect arrows aimed at Bidzina Ivan­ishvili. Georgian Prime Minister Garib­ashvili even sent an open letter to the European Commission’s President, arguing that Mr. Ivan­ishvili was no longer involved in politics and that calling him an oligarch insulted him and the country. For the Georgian Dream party, the oligarchs in Georgia are indi­vid­uals linked with the oppo­si­tion parties and the critical media.

1.2 The “law” that does not solve the problem of oligarchic influence

In the summer of 2022, the Georgian Dream pledged to adopt legis­la­tion on de-oligarchiza­tion, echoing a similar pledge made by Ukraine. Though initially hesitant to send the draft legis­la­tion to the Venice Commis­sion, the Georgian Dream “reluc­tantly agreed” to do so towards the end of 2022, following the passage of the draft law after its first reading in Parlia­ment. In its final opinion on the proposed legis­la­tion, released in June 2023, Venice Commis­sion strongly recom­mended that the Law on De-oligarchiza­tion be abandoned, as it embraced a “personal” approach, whereas a “systemic” approach was prefer­able for tackling the de-oligarchiza­tion issue.

Georgian civil society orga­ni­za­tions opposed adopting the de-oligarchiza­tion legis­la­tion right from the outset, making it clear in July 2022  that carrying out a de-oligarchiza­tion agenda using legal instru­ments would not be possible in a country ruled by an oligarch. The CSOs made an alter­na­tive proposal: that the fulfil­ment of all 11 condi­tions that do not directly address de-oligarchiza­tion ought to be consid­ered as collec­tively fulfilling the de-oligarchiza­tion condition as well. Their rationale was that the influence of the oligarch would auto­mat­i­cally be reduced by effective action to strengthen the judiciary, reduce polar­iza­tion, make state insti­tu­tions more account­able, ensure free and fair elections, establish parlia­men­tary oversight and power-sharing, guarantee a free and inde­pen­dent media envi­ron­ment and ensure the inde­pen­dence of both the anti-corrup­tion agency and the person appointed as Ombudsperson. Smaller oppo­si­tion parties, i.e. Lelo, Strategy the Builder, Droa and Girchi, agreed with the CSOs and joined them in calling on the Govern­ment to abandon the de-oligarchiza­tion legis­la­tion and focus on the other 11 condi­tion­al­i­ties. Several EU member states also pointed out that the EU had never called on the Georgian govern­ment to adopt such legislation.

However, not everyone involved took this position. The EU Dele­ga­tion to Georgia and EU Commis­sioner Várhelyi (Neigh­bour­hood and Enlarge­ment) both indicated that a law that was approved by the Venice Commis­sion would be a positive devel­op­ment. And while United National Movement, the largest oppo­si­tion party, disagreed in principle with the substance of the draft law proposed by the Georgian Dream, rather than rejecting the idea of law alto­gether, it came up with an alter­na­tive proposal for legis­la­tion targeting solely Mr Ivan­ishvili. Unsur­pris­ingly, the UNM’s bill was neither debated in the Parlia­ment nor sent to the Venice Commis­sion but was quietly voted down at the Legal Committee session in early 2023.

Going on record as condoning a legisla­tive approach to the problem of oligarchic influ­ences proved to be a tactical mistake by the United National Movement and several high-ranking EU officials. A mistake that Georgian Dream capi­tal­ized on, shifting the discourse to the nature of the draft law and which the Venice Commission’s earlier recom­men­da­tions should be taken on board. This took the pressure off of Georgian Dream and put them in a position to bargain. As one of the Georgian Dream leaders quipped in late 2022, if everyone, including the EU and the oppo­si­tion, agreed and asked the Georgian Dream not to pass the law, they would withdraw it– on the condition that this move would count towards successful imple­men­ta­tion of the fifth conditionality.

In June 2023, the Venice Commis­sion issued a final report on the Law on De-oligarchiza­tion, which warned against adopting the law in its current form. The European Commis­sion also welcomed this assess­ment. Georgian Dream initially planned to adopt the legis­la­tion nonethe­less but later back­tracked and pledged to defer its adoption, implying that it would not scrap the legis­la­tion if the European Union removed the condition of “de-oligarchiza­tion” altogether.

1.3 What does the draft law say?

Under the initial version of the draft law, which is nearly identical to the corre­sponding Ukrainian, persons who had been desig­nated oligarchs by the Govern­ment would have been subject to multiple restric­tions on their political and financial activ­i­ties, for example, barring them from making donations to political parties and political activ­i­ties, or rallies, and from involve­ment in the priva­ti­za­tion of the state assets. However, some of these provi­sions were scrapped after negative feedback from the Venice Commis­sion in its interim opinion (March 2023). The current draft would impose an oblig­a­tion on indi­vid­uals partic­i­pating in public life to report any contact with persons desig­nated as oligarchs and bar such indi­vid­uals from partic­i­pating in processes priva­tizing state assets, but it would not prohibit them from financing political parties and activ­i­ties or owning media companies. At this time, it is unclear what the sanctions for viola­tions of the reporting duty would be. Under the current draft, the recently estab­lished National Anti-Corrup­tion Agency, the NACA, would decide who is an oligarch. The head of this agency, which has no inves­tiga­tive functions, is appointed by the prime minister.

In its final opinion on the draft law (released in June 2023), the Venice Commis­sion recom­mended that Georgian not adopt the law. This is something the Commis­sion rarely does, and the wording it used was of unprece­dented sternness. Even before this devel­op­ment, though, it appeared that adopting the draft law would be unwise even with all the recom­men­da­tions taken on board. If such a law were passed, it would be largely inef­fec­tive in reducing oligarchic influ­ences. This is chiefly because the law would not have applied to Mr. Ivan­ishvili, which is something Georgian Dream leaders made clear from the very start. The law would only be used to target indi­vid­uals who supported the oppo­si­tion political parties and critical media: when Georgian Dream leaders talk about oligarchs who exert influence on Georgian politics and economy, they name people like David Kezerashvili, the owner of Formula TV and a supporter of the United National Movement; Koba Nakopia, an MP from the United National Movement who holds shares in the private tele­vi­sion company Mtavari TV, and Mamuka Khaz­aradze and Badri Japaridze, founders of the TBC Bank and leaders of the Lelo political party. Thus the EU’s call for Georgia to reduce oligarchic influence in the political and economic life of the country might be trans­formed in the hands of the Govern­ment into a tool with which to punish political opponents, inde­pen­dent media and civil society orga­ni­za­tions, which Georgian Dream frequently accuses of being in cahoots with various alleged oligarchs.

Thus, it is clear that the draft law, if passed, will not address the oligarch’s influence in Georgian politics as the Govern­ment itself is dominated and controlled by the oligarch. Prominent ministers, including the prime minister, are personal loyalists of Mr Ivan­ishvili (who previ­ously held positions in the latter’s Kartu Bank), just as many political leaders in Parlia­ment. Moreover, if the law is enacted, this will show blatant disregard for the Venice Commission’s and European Commission’s positions.

1.4 De-oligarchiza­tion: an unful­filled conditionality

Thus, to put it bluntly, the Georgian Dream has treated the EU’s condi­tion­ality of de-oligarchiza­tion as a joke. The Venice Commis­sion and European Commis­sion have clarified that the law will be counter-produc­tive and that the Georgian Govern­ment should take a systemic approach to tackling the problem. The draft law, if passed, will do more harm than good.

The European Union’s insis­tence that Georgia takes effective de-oligarchiza­tion measures springs from a legit­i­mate concern. There can be no doubt about Mr. Ivanishvili’s influence on major political issues and policies, such as arresting political opponents, attacking free media, not joining sanctions on Russia, main­taining cold relations with Ukraine, restoring direct flights to and from Russia, main­taining polar­iza­tion as a political tool to help those with political power to keep it, and most impor­tantly, main­taining harsh anti-Western rhetoric.

2. THE ANTI-CORRUPTION PRIORITY (4TH PRIORITY)

2.1. NACA – a new agency with new functions

Georgian Dream created a new entity, the National Anti-Corrup­tion Agency (NACA), to address the fourth priority. According to the legis­la­tion estab­lishing the NACA, the agency’s main task is to facil­i­tate the fight against corrup­tion by providing oversight of the national anti-corrup­tion strategic documents and action plans, ensuring the coor­di­na­tion of the activ­i­ties of the relevant agencies, moni­toring the asset decla­ra­tions of high-ranking public officials, improving safe­guards for whistle-blowers and moni­toring the financing of political parties.

The Anti-corrup­tion Agency is account­able to the Parlia­ment and to the inter-agency National Anti-corrup­tion Council through its oblig­a­tion to report to both of these bodies regularly. As its mandate consists primarily of analyt­ical and infor­ma­tion-gathering tasks, NACA has often been referred to as a think tank-type agency, and many observers doubt its ability to effec­tively address high-level corrup­tion of the kind that the EU has called for.

It is possible that the NACA will be given an addi­tional function in connec­tion with creating a registry of oligarchs. If the Georgian Dream decides to ignore the negative feedback from the Venice Commis­sion and the European Commis­sion and pass its draft law on de-oligarchiza­tion after its third reading in 2023, then NACA will be put in charge of desig­nating indi­vid­uals as oligarchs and enforcing some aspects of the legislation.

2.2 Curbed inde­pen­dence and limited functions of the NACA

The head of the NACA is appointed by the prime minister, which raises serious questions about the institution’s inde­pen­dence. Georgian Dream never even consid­ered adopting a model that would require the approval of a 2/​3 majority in the Parlia­ment or grant substan­tial powers to civil society orga­ni­za­tions (CSOs) concerning the nomi­na­tion of candi­dates for this post. Some of the oppo­si­tion parties proposed that Parlia­ment should decide on the appoint­ment with a 2/​3 majority, which would require the ruling majority and the oppo­si­tion to agree on a joint candidate. Georgian Dream rejected this proposal outright, though. In its oral report in June 2023, the European Commis­sion stressed that the inde­pen­dence of the NACA was an essential criterion for assessing the implan­ta­tion of this priority.

Currently, the nomi­na­tion procedure creates a selection committee with members repre­senting various state insti­tu­tions and CSOs, with the majority of the committee seats being held by the Govern­ment. The selection process is based on an open compet­i­tive procedure open to any and all candi­dates. The selection committee reviews the appli­ca­tions and then nominates several candi­dates to the prime minister, who then appoints one of them to a six-year term as the head of the NACA. A selection procedure held in early 2023 resulted in the appoint­ment of Mr Razhden Kuprashvili to the post. Mr. Kuprashvili has led the Legal Aid Service (another state agency) since 2019. Trans­parency Inter­na­tional, which took part in the selection process, did not observe any signif­i­cant viola­tions or foul play during the process; however, various CSOs have expressed doubts about the inde­pen­dence of Mr. Kuprashvili, the first person to hold this post, as he is known to be a close acquain­tance of the prime minister.

The most signif­i­cant deficit of the newly estab­lished NACA is its lack of inves­tiga­tive functions, which precludes effective action on its part in a law-enforce­ment role. The main focus of criticism from oppo­si­tion parties and civil society about the NACA has concerned these two deficits – lack of inde­pen­dence and inves­tiga­tive functions.

2.3 Previous initiatives

Before adopting the legis­la­tion that estab­lished the NACA, several oppo­si­tion parties had submitted earlier legisla­tive initia­tives on this issue, inspired by the relative success of the inde­pen­dent anti-corrup­tion entities in Romania and Ukraine. The oppo­si­tion party Lelo for Georgia, for instance, intro­duced a legisla­tive package of this kind in 2021. However, Georgian Dream never even discussed the package. Several former Georgian Dream MPs had also submitted a set of bills on this subject in the previous Parlia­ment. This package, which was initiated by ex-MPs Tamar Chugoshvili, Tamar Khulor­dava, Irine Pruidze, Nino Goguadze, Dimitri Tski­tishvili and Trans­parency Inter­na­tional Georgia, was shelved right at the start and never was taken up in Parliament.

In October 2022, Lelo requested that Parlia­ment turn its attention back to the legisla­tive package about the anti-corrup­tion agency submitted by the oppo­si­tion in 2021. The “national anti-corrup­tion agency” estab­lished under that proposal would have been an inde­pen­dent govern­ment insti­tu­tion with inves­tiga­tive functions. It would have been account­able to the Parlia­ment, and its chair­person would have been elected by the legis­la­ture for a five-year term. In addition, the State Security Service would have relin­quished its role in the fight against corrup­tion as this role would have been trans­ferred to this new agency. The agency would be mandated to prevent public service corrup­tion, monitor public servants’ asset decla­ra­tions and watch over political parties’ financing. In addition, the proposed legis­la­tion would also have provided criminal immunity to the head of the agency unless that person was arrested at a crime scene. Lelo’s proposal provided for the single-term election of the chair­person. As stated above, this bill was never seriously consid­ered by the Georgian Dream, even though it probably came closer to meeting the EU’s require­ments than the approach ulti­mately adopted.

2.4. Special Inves­ti­ga­tion Service and the Personal Data Protec­tion Service

The anti-corrup­tion priority also includes ensuring the inde­pen­dence and provision of adequate resources for the Special Inves­ti­ga­tion Service and the Personal Data Protec­tion Service.

These agencies were created in late 2021 when the Georgian Dream decided to abolish the State Inspector’s Service (SIS) and divide up its mandate. It was widely believed this move was motivated by a desire to fire the head of the SIS, Londa Toloraia, who was not averse to taking steps that GD inter­preted as political and aimed against their party interests. The final straw came in November 2021, when the SIS inves­ti­gated the alle­ga­tions that Mikheil Saakashvili had been treated inhu­manely. The State Inspector’s Service concluded that the Ministry of Justice and the Special Peni­ten­tiary Service violated the Law on Personal Data Protec­tion by releasing footage and photographs of Mikheil Saakashvili being trans­ferred from Rustavi Prison to the Gldani Prison’s medical facility against his will.

This proved to be one step too far for the Georgian Dream, which imme­di­ately abolished the SIS, breaking up its personnel into two separate agencies despite criticism from the President of Georgia, the oppo­si­tion and US and EU partners. The US Embassy to Georgia stated that “by abol­ishing the State Inspector’s Service, the ruling party under­mined the government’s account­ability,” while the EU Ambas­sador took an even harsher line, pointing out that the disman­tle­ment of SIS “put into question the respect for demo­c­ratic insti­tu­tions and proper demo­c­ratic oversight mechanisms.”

Georgian Dream appointed two rela­tively loyal figures to head the newly created agencies. After they and their work cropped up in the EU’s condi­tion­al­i­ties, Georgian Dream strength­ened their functions. On 30 November 2022, Parlia­ment expanded the inves­tiga­tive powers of the Special Inves­tiga­tive Service. In partic­ular, the Special Inves­ti­ga­tion Service is now empowered to lead inves­ti­ga­tions launched when the European Court of Human Rights finds a violation enshrined in the European Conven­tion on Human Rights, a task which formerly fell to the Prosecutor’s Office.

Parlia­ment also supported a package of legisla­tive amend­ments intended to strengthen the Personal Data Protec­tion Service as an insti­tu­tion. The amend­ments strength­ened social protec­tion guar­an­tees for its employees and imposed a statute of limi­ta­tions for the commis­sion of an admin­is­tra­tive offence by an agency employee. Changes were also made to the Parlia­men­tary Rules of Procedure – in partic­ular, providing for the heads of the Special Inves­ti­ga­tion Service and of the Personal Data Protec­tion Service to submit infor­ma­tion to Parlia­ment, at Parliament’s request, about legisla­tive short­com­ings iden­ti­fied during their work processes, as well as opinions on measures to address these short­com­ings and steps to increase the effi­ciency of the perfor­mance of their respec­tive service.

2.5 Tackling corrup­tion in real life?

Several jour­nal­istic inves­ti­ga­tions carried out by Georgian media have exposed corrup­tion on the part of Georgian Dream members. Recent reports by TV Pirveli unveiled that Prime Minister Irakli Gharib­ashvili regularly receives hefty monetary gifts from his father. There have also been numerous reports about his family members receiving prop­er­ties, including from the state. None of these alle­ga­tions have been inves­ti­gated by law enforce­ment officials. The insti­tu­tion currently in charge of fighting corrup­tion – the State Security Service, completely ignored these reports, as it always does when the oppo­si­tion media or civil society orga­ni­za­tions uncover foul play in connec­tion with the expen­di­ture of public funds or indi­ca­tions of receiving illegal income by high-ranking officials. In theory, the inde­pen­dent anti-corrup­tion agency should have inves­ti­gated such cases; however, the current NACA does not have inves­tiga­tive powers enabling it to react to media reports of this kind, even if they are highly credible.

It is worth noting that the oppo­si­tion and civil society assigned little priority to this condi­tion­ality. Therefore, Georgian Dream opted to pass the minimum of legisla­tive changes and create the NACA with limited functions, hoping that this would be consid­ered suffi­cient for ticking the box as counting towards the progress on the fourth priority. It appears that this strategy has paid off – the condi­tion­ality was assessed as having been partially completed, even though the missing elements – inde­pen­dence and inves­tiga­tive functions – are crucial for fully imple­menting the EU’s fourth priority.

Conclu­sion

The European Commis­sion and the EU Member States will have to take a decision on whether candidacy status for Georgia in late 2023. According to the latest assess­ment, Georgia has imple­mented three of the twelve condi­tion­al­i­ties and has made either limited progress (de-oligarchiza­tion) or some progress (remaining eight) on the others. A great deal of political will and effort on the part of the Georgian Dream will be required to persuade the European Commis­sion that the lead­er­ship is taking the de-oligarchiza­tion and anti-corrup­tion condi­tions seriously and that the steps aimed at their imple­men­ta­tion are tangible and result-oriented rather than mere window dressing.

Given that the de-oligarchiza­tion priority remains un-imple­mented and that steps have not been taken to safeguard the inde­pen­dence of the Anti-corrup­tion Agency and empowered to conduct inves­ti­ga­tions, I believe that the only viable strategy for the European Commis­sion and the Council is as follows:

• Only once all 12 recom­men­da­tions, including the de-oligarchiza­tion and anti-corrup­tion, have been fully imple­mented should the Commis­sion should issue a favourable report on the candidate status, acknowl­edging the strong European identity of the Georgian people;
• The European Commis­sion and Council should continue to insist that the Draft Law on De-oligarchiza­tion in its current form not be enacted and emphasize that tackling de-oligarchiza­tion will require signif­i­cant systemic reforms of the judiciary, anti-corrup­tion reforms and power-sharing;
• The European Commis­sion and Council should continue to insist on the creation of a genuinely inde­pen­dent anti-corrup­tion agency that has inves­tiga­tive functions and can bring high-level officials and ruling party politi­cians to justice if need be;
• The European Union should consider sanc­tioning those indi­vid­uals who act as the tools of oligarchic influence, including the judges that the US State Depart­ment sanc­tioned in April 2023, as well as politi­cians impli­cated in cases of high-level corrup­tion and those who are hindering the actions to combat corrup­tion in Georgia.