The Venice Commission finds that the current institutional design does not provide for a sufficient degree of independence of the ACB and considers that its competences to oversee the financing of political parties and monitor asset and interest declarations of high-level officials require additional safeguards to be included in the Law. In this connection, the fact that the appointment and dismissal of the head of the ACB is to a large extent in the hands of the Prime Minister is particularly problematic, reads the opinion of the Venice Commission on the Anti-Corruption Bureau.
“On 22 September 2023, Mr Shalva Papuashvili, Chairman of the Parliament of Georgia, requested an opinion of the Venice Commission on the provisions of the Law on the Fight against Corruption relating to the ACB. As such the opinion is limited to the provisions of the Law on the Fight against Corruption which were added to the Law in November 2022. Therefore, even if the ACB has for example taken over the competences of the State Audit Office to oversee the financial activities of political parties, given that the Venice Commission has not been asked for an opinion on the Law on Political Associations of Citizens, it has not further assessed this competence, nor has it assessed other parts of the Law on the Fight against Corruption, which have not undergone any substantive changes, for example as regards conflicts of interest and whistleblowers. A request for a more holistic assessment of reforms in this area would thus have been welcome, in recognition of the interconnectedness of different provisions of the Law. The Venice Commission remains at the disposal of the Georgian authorities to provide an opinion on the Law on the Fight against Corruption as a whole.
The provisions added to the Law in November 2022 have been developed to ensure “the institutional strengthening of anti-corruption activities and the fight against corruption, which, in turn, will serve to fulfil one of the priorities defined by the European Commission” in its opinion on the EU membership application of Georgia (namely to “strengthen the independence of itsAnti-Corruption Agency bringing together all key anti-corruption functions, in particular to rigorously address high-level corruption cases”). It is not for the Venice Commission to decide whether the new provisions in the Law meet the criteria set by the EU. However, it is relevant for the Venice Commission to consider the stated aims of the Law when assessing the organizational setup and powers of the ACB. In this respect, the Venice Commission can only conclude that bringing various preventive anti-corruption functions together in the ACB falls short of the stated aim of rigorously addressing high-level corruption.
In this opinion, the Venice Commission outlines that independence with an adequate level of structural and operational autonomy, involving legal and institutional arrangements to prevent political or other influence, is considered a fundamental requirement for specialized anti-corruption bodies. In this respect, various positive features of the new provisions of the Law have been noted, in particular the fact that the ACB has been established as a separate structure with a high degree of financial independence. Nevertheless, the Venice Commission finds that the current institutional design does not provide for a sufficient degree of independence of the ACB and considers that its competences to oversee the financing of political parties and monitor asset and interest declarations of high-level officials require additional safeguards to be included in the Law. In this connection, the fact that the appointment and dismissal of the head of the ACB is to a large extent in the hands of the Prime Minister is particularly problematic,” reads the conclusion of the opinion.
The report notes that in order to increase the independence and perception of political neutrality of the ACB, and thereby public trust in this body, the Venice Commission makes the following key recommendations:
“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), and that – given that the ACB is accountable to Parliament – any decision on early termination of his/her term in office be made by the Parliament, not the Prime Minister;- that further amendments are made to the Law regarding the grounds for dismissal, restricting the discretion of the dismissing body in this respect, in particular by limiting the ground “fails to perform the duties” to usual cases of physical or mental incapacity and clarifying / delineating the provisions on criminal convictions, drug consumption and incompatibilities,” reads the document.
As it is noted in the document, it is furthermore recommended to revise certain other elements of the November 2022 provisions, in particular:
“To consider providing functional immunity to the head of the ACB and his/her deputies;- to enhance the professional requirements for the position of head of the ACB;- to clarify the provisions on mandatory drug testing of officials (in particular their relationto the work of the ACB) and/or to remove these from the Law altogether, whereby therequirement for the drug test results to be published is to be deleted from the Law and aclear legal basis is to be provided for the possible testing of the Head of the ACBhim/herself;- to take measures to ensure that the ACB carries out a substantive verification of assetand interest declarations and, in addition to the random selection of declarations, takes arisk-based approach to ensure that the most relevant declarations are assessed againstofficials’ legal income, in order to reveal cases of unexplained wealth or to identifypotential conflicts of interest;- to include precise and explicit references to the relevant provisions in data protectionlegislation in the Law;- to define the role of the Inter-Agency Anti-Corruption Council with greater clarity andprecision, ensuring that there is no overlap with the functions of the ACB and removingthe accountability of the ACB to the Inter-Agency Anti-Corruption Council, wherebyconsideration should be given to provide the ACB with the authority to set up its ownadvisory council instead,” the document reads.
