CEC makes right decisions on the registration of mayor nominees
On May 20 the Central Election Commission of Georgia (the "CEC") has rejected the complaints of the "National-Democratic Movement" and the electoral bloc "Non-Parliamentary Opposition (Kakha Kukava, Pikria Chikhradze)" requesting the revocation of registration of the authorities' nominees for the Poti and Rustavi Mayor elections. Irrespective of the fact that the CEC has applied the approach different from its decree rendered a month ago on the revocation of registration of the mayor nominee Irakli Okruashvili, we find these decisions to be fair and compliant with requirements of the law.
The authors of the complaint have mainly built their claim on Article 167.1 of the Election Code, pursuant to which a citizen of Georgia, who is eligible to vote and who has permanently lived in Georgia over past 2 years, can be elected as a Gamgebeli (local governor). We have already witnessed the precedent of de-registration of the mayor nominee based on this Article during the pre-election period, when by the April 20 decree the CEC has invalidated the decision of the Gori District Commission on the registration of Irakli Okruashvili as the Gori Mayor candidate. In reasoning of the decision the CEC noted that a person, who permanently lives in Georgia during the last 2 years prior to the polling day, i.e. by his/her physical presence (residence) in the country participates in the country's public-political life, can be elected as a city mayor. Okruashvili failed to meet this requirement due to a publicly known fact that he did not live in Georgia for years and returned to live in the country after the 1 October 2012 elections.
Exactly in a month after de-registering the decision on Okruashvili, the CEC has made a different decision on a similar case at first appearance. The case concerned de-registration of the Poti and Rustavi Mayor nominees - Irakli Kakulia and Davit Jikia - based on the same grounds. In the CEC's opinion, which we also adhere to, in these cases there were different factual circumstances and the candidates have managed to prove the fact of permanent residence in Georgia.
1. Pursuant to the CEC's decree on the registration of Irakli Kakulia, although since 29 August 2012 Kakulia was on consular registration, this does not exclude his residence in Georgia over the last 2 years and everyday participation in Georgia's public-political life. The evidence that this person was not living in Georgia for the last 2 years was neither submitted by the author of the complaint and nor it is found in the case materials. Further, over this period Irakli Kakulia worked in the Poti City Hall. The CEC has found also that from 3 January 2010 until 3 January 2014 Kakulia was engaged in employment relations with "Sibarit" LLC and during this period he had travelled on business trips, confirmed by the submitted orders of the Director of "Sibarit" LLC on the business trips. At that, it is noteworthy that facts included in the letter of the Head of Administration of the Ministry of Interior of Georgia, concerning the crossing of the state border by citizen Irakli Kakulia over last 2 years prior to the appointment of the 15 June 2014 elections, coincide with the period of Kakulia's above-mentioned business trips and thus prove that the respondent lived in Georgia and that his trips abroad during this period were linked to his business trips and not his permanent residence abroad.
2. The complaint filed against the Rustavi Mayor nominee Davit Jikia noted that he was in the Great Britain, where until November 2012 he was enrolled in the special English language program and therefore had not continuously lived in Georgia for the last two years. Because the legislation of Georgia does not provide a legal definition of 'permanent residence', in reasoning of its decision the CEC has used as the analogy the norm of the Tax Code, pursuant to which a natural person is a resident of Georgia, if s/he is factually present in the territory of Georgia for at least 183 days during any continuous 12 calendar months. Further, the factual presence in the territory of Georgia includes time when a person leaves Georgia for medical treatment, rest, on business trip or studies. According to the case materials, Jikia was present in Georgia for 185 days and while he was studying abroad, by analogy of law he was residing in Georgia continuously.
As already noted, in case of Irakli Okruashvili his absence in Georgia during the last two years was evident. Although this was caused by criminal prosecution against him, legislation of Georgia does not consider this circumstance as an exception.
To conclude, we find the introduction of residence-related eligibility criterion for the election nominees generally arguable. For instance, the same was concluded by the OSCE Observer Mission in the 2013 Presidential Election Evaluation Report, which stated that the residence requirement during the last three years was disproportionate and inconsistent with international standards.