Deepening EU-Georgian Relations

What, Why and How?

Michael Emerson, Tamara Kovziridze

• Publisher: Centre for European Policy Studies
• Year: 2018
• ISBN:
  9781786608017
• Edition: 2
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

For Georgia, the signing of the Association Agreement and the DCFTA with the European Union in 2014 was an act of strategic geopolitical significance. Of all the EU’s eastern partners, the country has distinguished itself since the Rose Revolution of 2003 by pushing ahead with a radical liberalisation and economic reform agenda. Georgia is also unique among the countries in the region for having largely cleansed its economy and political system of corruption. The purpose of this Handbook is to make the complex political, economic and legal content of the Association Agreement readily understandable. This second edition, published two years into the Agreement’s implementation, adds new value. The Handbook now reflects Georgia’s progress in putting the Agreement into effect. Two teams of researchers from leading independent think tanks, CEPS in Brussels and Reformatics in Tbilisi, collaborated on this project, with the support of the Swedish International Development Agency (Sida). This Handbook is one of a trilogy 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”.³

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.

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 the 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 the 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 judiciary. 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 decreased considerably. 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 semiparliamentary system, which came into force after the 2013 presidential elections.

One of the remaining challenges lies in the overlapping powers and inter-institutional tensions between the president and prime minister, which was more related to the governing style of the current government than the constitutional set-up. This was further aggravated by the overt influence of former Prime Minister Bidzina Ivanishvili over the political processes in the country, which has been widely criticised as being informal governance.

There has been debate about the case for further amendments to strengthen constitutional stability, to increase the independence of constitutional institutions (among them the judiciary) and to ensure stronger guarantees of human rights protection, including the rights of minorities. As a result, a State Constitutional Commission was established in 2016 to draft amendments to the constitution.

The major and long-awaited objective, among others, was to abolish single-mandate constituencies and establish a fully proportional election system that would reduce the risk of single party rule.

The composition of the Commission corresponded to the initial ambition of securing a wider engagement. Still, the work of the State Commission and the motivation of the ruling party were questioned on a number of grounds. The president boycotted the Commission and the main opposition parties protested the final session and final vote on draft amendments. Amendments were adopted regardless of the lack of agreement. The text of draft amendments differed from those submitted to the Venice Commission.⁴ The work of the Commission and the motives of the ruling party were hence questioned and lambasted both internally⁵ and externally.⁶

The amendments of the constitution were adopted in September 2017 and will be enacted following the 2018 presidential elections. Georgia will switch to a fully proportional election system in 2024.

On the positive side, amendments included some important provisions such as the commitment to Georgia’s full membership of the EU and NATO; measures to ensure equality for men and women and the right to access the internet.

However, a number of key amendments lacked the support of the opposition and the civil society:

Electoral system - a fully proportional system will not be introduced for the 2020 parliamentary elections, but only enter into force for the 2024 elections.

Presidential election – the 2018 election will be the last held by popular vote. Subsequently an electoral college will elect the president.

Definition of marriage – this is stipulated as being between “a man and a woman”. No-one except the ruling party and affiliated actors supported this definition, which is criticised for being discriminatory and in line with Russian propaganda.

Purchase of land – another amendment that was approved regardless of broad disagreement is the banning of foreigners from purchasing land in Georgia – contrary to the previous liberal regulation in this regard. Both opposition and civil society argued against the amendment. Again, the influence of Russian propaganda was evident.

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 Association Agenda. 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.

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 drawn up 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. Concerns remain that most of the progress has been made at the legislative level, however, while implementation lags behind.

Organisations like Human Rights Watch, Freedom House and local advocacy groups⁷ 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.⁸ Investigations into past abuses remain problematic.

In May 2015, the Inter-Agency Coordination Council approved the 2015-16 Action Plan on the fight against torture, inhuman, cruel and humiliating treatment or punishment, which was drafted on the basis of the National Human Rights Strategy (2014-20). In 2015, the government began implementation of the Istanbul Protocol, which provides comprehensive and practical guidelines for the investigation and documentation of torture. Nonetheless, fact-based allegations against the police for cases of human torture persist and are not duly investigated.

To this end, in 2016 and 2017, NGOs and the Public Defender’s Office raised concerns about reports of mistreatment by police officials. The impartiality and effectiveness of the investigation was further questioned and establishment of investigative mechanisms was requested. The annual report of the Public Defender flagged several cases of the ill-treatment of inmates, despite the adoption of a new Law on Penitentiary Service and amendments to several legislative acts, including the Detention Code in 2015.⁹

In June 2017, a legislative initiative was launched by the government on establishing a special department within the Office of the Chief Prosecutor to examine allegations of torture and ill treatment. Follow-up legislation is planned for provision of free legal advice to subjects of ill-treatment and torture.

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, who was charged in absentia with a pre-trial detention. The case of former Prime Minister Vano Merabishvili is considered to be one of the most controversial cases, as the European Court of Human Rights (ECHR) ruled that Georgia violated his rights, and the former prime minister remains in prison. The former mayor of Tbilisi, Gigi Ugulava, was held in pre-trial detention for more than nine months, in clear breach of the Constitution, released by the Constitutional Court but re-arrested 23 hours later. The Court of Appeal further re-qualified the charges against Mr. Ugulava and shortened his sentence, finally releasing him.

There has been no progress in ending politically motivated prosecutions. The lawyer of the former Defence Minister of Georgia, Bacho Akhalaia, was detained, and another political opponent Paata Burchuladze was summoned to the Prosecutor’s Office. However, the government permitted international and domestic organisations to visit political prisoners.

Blackmailing with personal data has remained a challenge. Numerous unauthorised videos compromising and blackmailing politicians were released on the internet. Other public figures reported being blackmailed with recordings of their private lives. Law enforcement agencies failed to identify sources and take appropriate measures. In response, the office for Personal Data Protection was granted an authorisation of investigation under the monitoring of the Chief Prosecutor. However, the security services are still able to access telecommunication networks.

Local and international human rights defenders raised concerns in May 2016 over the case of an Azeri activist and journalist, Afghan Mukhtarli, living in self-imposed exile in Tbilisi, who was kidnapped in Georgia and rendered to Azerbaijan, where he faced charges. An investigation is in process, since Mr. Mukhtarli raised allegations against the Georgian high officials (see also chapter 2).

The Georgian parliament adopted an anti-discrimination bill, as part of the EU-Georgia Visa Liberalisation Action Plan, with an overwhelming majority in 2013. The draft bill would have introduced the independent institution of an inspector for equality protection, which was considered by the OSCE/ODIHR to be a real attempt to address all forms of discrimination. Yet, as a result of a harsh debate and the radical stance of the Orthodox Church, the law in its current form does not envisage any effective, legally binding mechanism to monitor the elimination of discrimination. Instead, the Public Defender’s office is in charge of taking anti-discrimination measures. According to reports, there are still grave human rights violations of religious minorities and the LGBT community. The Human Rights Centre has criticised the governmen...