Deepening EU-Georgian Relations

What, Why and How?

Michael Emerson, Tamara Kovziridze

• Publisher: Centre for European Policy Studies
• Year: 2016
• ISBN:
  9781786601698
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

s ‘ European choice ’. Of all the EU ’ s eastern neighbours, Georgia has distinguished itself by pushing ahead in the years since the Rose Revolution of 2003 with the most radical economic liberalisation and reform agenda. It has notably succeeded in reducing corruption and establishing a highly favourable business climate. The Association Agreement and DCFTA thus build on a most promising base.
The purpose of this Handbook is to make the legal content of the Association Agreement clearly comprehensible. It covers all the significant political and economic chapters of the Agreement, and in each case explains the meaning of the commitments made by Georgia and the challenges posed by their implementation.
A unique reference source for this historic act, this Handbook is intended for professional readers, namely officials, parliamentarians, diplomats, business leaders, lawyers, consultants, think tanks, civil society organisations, university teachers, trainers, students and journalists.
The work has been carried out by two teams of researchers from leading independent think tanks, CEPS in Brussels and the Reformatics policy consulting firm in Tbilisi, with the support of the Swedish International Development Agency (Sida). It is one of a trilogy of Handbooks, with the other two volumes examining similar Association Agreements made by the EU with Ukraine and Moldova.

PART I.POLITICAL PRINCIPLES, THE RULE OF LAW AND FOREIGN POLICY

1. POLITICAL PRINCIPLES

Provisions of the Agreement

The entire Association Agreement is premised on a common commitment to the modern, democratic political values of the EU, recognising in the preamble that “the common values on which the European Union is built – namely democracy, respect for human rights and fundamental freedoms, and the rule of law – lie also at the heart of political association and economic integration as envisaged in this Agreement”.

These principles are repeated in Art. 2 and declared “essential elements” of the Agreement. This description links up to Art. 419, which provides that in the event of violation of these principles the Agreement may be suspended. Political dialogue and cooperation on “domestic reform” should be conducted with respect for these same principles (Art. 6). This political dialogue is conducted through regular meetings at different ministerial and senior official levels.

On the substantive implementation of the basic principles, the jointly agreed Association Agenda (hereafter the ‘Agenda’) text of 17 November 2014 is more explicit. Priority matters for action include institutional questions on guaranteeing democracy, respect for the rule of law, human rights and fundamental freedoms. These challenges are addressed in considerable detail in the Agenda.

Institutions guaranteeing democracy. Strengthening the institutions is seen as a central element in ensuring the democratic conduct of elections, addressing any shortcomings in the legislative framework and election administration identified by OSCE and ODIHR. In the EU–Georgia Human Rights Dialogue of mid-June 2015, the EU “called on Georgia to address the recommendations of the OSCE/ODIHR recommendations in good time before elections [in] 2016”.²

In the same vein, constitutional amendments should be subject to comprehensive consultation domestically, while at the same time respecting the roles of the prime minister and the president. There should be adequate checks and balances as the political system undergoes transition from a semi-presidential to a parliamentary system and the decentralisation strategy should be in line with the European Charter of Local Government of the Council of Europe.

Judicial reform. The Association Agenda foresees reform of Georgia’s Criminal Code and Criminal Procedure Code (e.g. the right to a fair trial, independent investigation, and reforms to juvenile justice and plea-bargaining). Furthermore, it calls for the implementation of the 2013 reform of the Prosecutor’s Office, transparency in criminal proceedings and strengthened oversight of law enforcement, revising the rules of administrative detention and conducting capacity-building activities among the judiciary and law enforcement professionals. To those ends, Georgia has committed itself to developing a Judicial Strategy and Action Plan with clear benchmarks.³

Human rights and fundamental freedoms. The expectations about Georgia’s respect for human rights are laid down in the “Georgia in transition” report prepared in 2013 by the former Council of Europe Commissioner for Human Rights Thomas Hammarberg, who advised the government. This includes ensuring respect for rights of the most vulnerable groups and national minorities, in conformity with the Framework Convention of the Council of Europe for the protection of national minorities, the ratification and transposition of the UN Convention on Statelessness and the Council of Europe recommendations on the European Charter for Regional or Minority Languages. The Agenda also calls for guaranteeing the effective implementation of judgments of the European Court of Human Rights, promoting awareness of anti-discrimination in the judiciary, administration and law enforcement bodies, and including civil society as watchdogs in the process. The Agenda pays specific attention to combating the ill treatment and torture of human beings through updating and implementing the National Strategy and Action Plan, as well as strengthening monitoring of the penitentiary system, police and military by both internal and external bodies.

Developments in Georgia

Constitutional. The constitution of Georgia is that of a young democracy, with only two decades of experience since the 1995 constitution established the foundations of a modern democratic system. Against the background of post-Soviet turbulence, a civil war, ethno-political tensions and the transformation from a totalitarian to a democratic system of governance, the process could hardly be a smooth one, and the constitution has been amended numerous times.

The 1995 constitution established three branches of government: legislative, executive and judicial. The first major change was introduced in 2004, as a result of which the power of the president increased, and the political and legislative authority of the parliament considerably decreased. At the same time, the amendments of 2004 separated the judiciary from the function of the prosecutor.

Six years later, in 2010 another wave of constitutional amendments took place, with a change from a presidential to a semi-parliamentary system, which came into force after the 2013 presidential elections. In line with these amendments, the power of the prime minister and the government significantly increased, while both became accountable to the parliament.

The process of constitutional reform has improved over time. In contrast to earlier years, the amendments have been widely debated with a greater engagement of civil society and close cooperation with the Venice Commission, especially as almost all of its recommendations have been adopted.

Over 2015–16, the parliament has been working on further amendments to strengthen constitutional stability, increase the independence of constitutional institutions (among them the judiciary) and ensure stronger guarantees of human rights protection, including the rights of minorities. To this end, a State Commission for Constitutional Reform has been established.

One of the remaining challenges lies in the overlapping powers and interinstitutional tensions between the president and prime minister, which is related to the governing style of the current government rather than the constitutional set-up. This is further aggravated by the continuing overt influence of former Prime Minister Bidzina Ivanishvili over the political processes in the country.

Overall, notwithstanding these persistent challenges, Georgia continues to progress in consolidating democratic governance and stronger state institutions.

Judicial. The constitution establishes a legal basis for an independent judiciary that is free from political influence. Nevertheless, the judiciary has been the object of criticism for years. While the previous government succeeded in substantially reducing corruption, and in establishing institutional effectiveness and better infrastructure, the lack of political independence of the judicial system, including the Prosecutor’s Office, remained to be addressed. The government, both the previous and the incumbent one, has been carrying out intensive reforms in this direction, yet the judicial system is still not fully up to international standards and best practices. The continuation of reforms is required.

Building on the progress achieved and taking into account the criticisms voiced, in 2012 the newly elected government prioritised judicial reforms and opted for making the judicial system considerably more transparent and independent than it had been in preceding years. Consequently, a new wave of judicial reforms was launched. The reforms involved changes in the composition of the High Council of Justice (HCoJ), replacing members of parliament with representatives of civil society and academia. Under the new law, the judicial, legislative and executive branches of government share the authority to elect/appoint new members of the HCoJ. In the Council of fifteen members, eight are elected by judges, five by the parliament and one is appointed by the president. Although the Venice Commission has questioned the timing and urgency of terminating the term of sitting members of the HCoJ, the reform has been largely considered positive.

In 2014, a competition-based recruitment of judges was introduced, who after a successful probation period are offered life tenure. The reform also envisaged developing objective criteria for their appraisal. Since 2013, court sessions have become more open and transparent.

Another significant step forward has been the attempt to ensure the internal independence of judges within their institutions. The reform package introduced in 2013 gives judges more flexibility and discretion in applying sanctions, in cases of an accumulation of crimes. To further guarantee independence from political influence, a random electronic distribution of cases was introduced in 2015 with the objective of ensuring independent, impartial, transparent and effective legal proceedings.

Despite these substantial legislative amendments, concerns over the political bias of the judiciary and Prosecutor’s Office are still voiced by civil society and international organisations. Criticisms are mostly related to cases of prosecution of political opponents, this being a declared priority of the Georgian Dream governing coalition. Since the Georgian Dream came to power, more than 30 members of the previous government have been charged with criminal offences, and 14 have been arrested or put into pre-trial detention. Yet no criminal charges have been brought against any United National Movement (UNM) party members who have switched parties since 2012. In some cases, investigations stopped altogether after the individuals changed their party allegiance and left the UNM. Political statements by government officials disregard the presumption of innocence in labelling the UNM members as criminals. The impartiality of the judiciary has also been seriously questioned in the case of the Rustavi 2 television channel, one of the strongest and most critical broadcasters, and also with respect to the trial against five former defence ministry and general staff officials in the so-called ‘cable case’.

The success of judicial reform also rests heavily on reforming the Prosecutor’s Office, which has been persistently criticised for political bias. In 2015, in line with the requirements of the Association Agreement, the government approved a package of legislative amendments to the Law on the Prosecutor’s Office. The law aimed at establishing a depoliticised and independent Prosecutor’s Office, and thus implied a new rule for the selection/appointment and dismissal of the prosecutor general. Although the prime minister no longer appoints the prosecutor general, the ruling party retains the power to select the desirable candidate. A key concern is the role of the minister of justice in the selection process and the lack of merit-based professional criteria.

Human rights. As a member of the Council of Europe alongside all EU member states, Georgia adheres to the European Convention on Human Rights and Fundamental Freedoms, and is bound by the rulings of the Strasbourg Court. Respect for these norms are “essential elements” of the Association Agreement, the violation of which could (as noted above) lead to the suspension of the Agreement.

Whereas Georgia’s human rights record is generally respectable, concerns do remain. They are set out in detail in the Agenda. The implementation of judgments rendered by the European Court of Human Rights is one of them. Georgia also needs to fight against discrimination and torture, protect the rights of minorities and ensure freedom of religion.

Organisations like Human Rights Watch, Freedom House and local advocacy groups⁴ criticise the government for its lack of accountability for abuses by law enforcement officials, and the absence of an independent and effective mechanism for investigating crimes committed by such officials.⁵ Investigations into past abuses remain problematic. The EU has spoken out on more than one occasion against the practices of selective justice and the political nature of prosecutions, for instance against former President Mikheil Saakashvili and members of the opposition. The case of Gigi Ugulava, the former mayor of Tbilisi who was held in pre-trial detention for more than nine months, has caused particular worries about the respect for constitutional rights.

Whereas the constitution protects media freedom and Georgia has the most progressive legislation and free press in the region,⁶ alarms were raised by local NGOs and international political commentators about practices curbing the freedom of expression as a result of court proceedings brought in 2015 against the popular Rustavi 2 TV station, which has been critical of the government. According to Amnesty International, a lawsuit by a former shareholder of Rustavi 2 against its current owners was prompted by the government in order to deprive the opposition of its main mouthpiece.⁷ Adherence to the freedom of expression and the independence of the judiciary remains closely watched in the run-up to parliamentary elections in October 2016.

Adoption of the National Human Rights Strategy 2014–20, and the consequent Action Plan, have generally been welcomed as positive steps, especially because they were elaborated in an inclusive manner. The documents incorporate recommendations from the Ombudsman’s Office, the UN Office of the High Commissioner for Human Rights, national and international human rights NGOs, and the country report by Thomas Hammarberg, then in his capacity as EU special adviser on legal reform and human rights in Georgia. However, concerns remain given that most of the progress has been made at the legislative level, whil...