GEO

Georgia’s stalling anti-corruption reforms: unfulfilled recommendations of the Istanbul Action Plan

16 August, 2019

 

As of 2019, the Government of Georgia has not fulfilled a number of important anti-corruption recommendations which concern such issues as anti-corruption policy planning, enforcement of anti-corruption laws, independence of civil servants, judicial reform and reform of the law enforcement agencies, freedom of information and prevention of corruption in the public procurement process.

The Istanbul Action Plan is a programme launched in 2003 by the Anti-Corruption Network for Eastern Europe and Central Asia (ACN) of the Organisation for Economic Co-operation and Development (OECD), which aims to support anti-corruption reforms in the region through analysing the situation with regard to corruption in each participating country, preparing recommendations and monitoring their implementation. Apart from Georgia, the programme participants include Armenia, Azerbaijan, Kyrgyzstan, Kazakhstan, Mongolia, Tajikistan, Ukraine and Uzbekistan.

The OECD ACN adopted the most recent Georgia Monitoring Report in 2016. Along with the analysis of the situation at the time, the report included recommendations for addressing the problems identified in the process of monitoring.

The organisation regularly publishes progress updates on the implementation of the 2016 recommendations by Georgia. According to the most recent of these reports, which was adopted in March 2019, Georgia achieved no progress with regard to the majority of the 81 items of recommendations.

The complete  list of recommendations and the 2019 report on their implementation can be found on the organisation’s website. Some of the especially important items of recommendations which remain unfulfilled are discussed below.

Work of the Anti-Corruption Council

The following important recommendations remain unfulfilled:

  • Review the practice of the anti-Corruption Council to identify ways to address emerging high-level corruption instances and enforcement issues.
  • Conduct regular surveys based on impact indicators to demonstrate progress over time.
  • Institute regular reporting to the Parliament in order to engage MPs in the anti-corruption work and to increase the Council’s visibility.

Why these recommendations are important:

Effective response to the high-level corruption is the main challenge facing Georgia’s anti-corruption policy today. This has been noted by international organisations and Georgia’s international partners, although the state has failed to make any significant steps to tackle these challenges in recent years.

Surveys are important for evaluating the effectiveness of the measures carried out to implement the National Anti-Corruption Strategy. Currently, the only aspect evaluated within the framework of the Anti-Corruption Strategy and Action Plan is whether or not the planned measures have been implemented; how these measures have affected the corruption situation in the country, however, remains unclear.

Insufficient involvement of Parliament in the anti-corruption policy also remains a problem, which points at the lack of high-level political will to combat corruption.

Anti-corruption regulations and their enforcement

The following important recommendations remain unfulfilled:

  • Promote the role of heads of institutions in ensuring integrity. Assign the coordination of integrity and anti-corruption work in each public institution to specific persons or units.
  • Clarify the roles of different institutions in enforcement of conflict of interest and other anti-corruption restriction, strengthen the capacity of internal audit or other units in line ministries and at the local level, consider designating special officers in large administrations and LEPLs to ensure the enforcement of rules on conflict of interest and other restrictions.
  • Develop impact indicators and conduct regular surveys to measure progress in promoting integrity in the civil service as a whole and in selected institutions in particular.
  • Extend the scope of all provision of the laws regulating civil service to all posts performing core public functions.
  • Introduce post-employment (“revolving door”) restrictions for ministers in the law with an effective enforcement mechanism in place.

Why these recommendations are important:

Georgia’s anti-corruption regulations are often not enforced properly in practice. It is not always clear which agency or official are responsible for overseeing the enforcement of a specific norm. This role is often assigned to the internal audit units but they are unable to fulfil it effectively.

Extending the scope of the civil service legislation to all posts performing core public functions is important because otherwise the relevant anti-corruption regulations would not apply to them either. Currently, it remains unclear whether these regulations apply to the LEPLs (legal entities of public law).

The “revolving door” issue is an important area of anti-corruption regulation although, currently, the relevant Georgian legislation is vague (it does not include definition of some of the key terms) and is not being enforced. As a result, there is no response to the cases when former public officials’ employment in the private sector involves clear indications of the conflict of interest.

Asset Declarations

The following important recommendations remain unfulfilled:

  • Monitor and evaluate effectiveness of the asset declaration verification system and impact of the asset declarations on the spread of conflict of interest and illicit enrichment.
  • Consider introducing effective penalties that would deter unexplained enrichment, conflict of interest and incompatibilities.

Why these recommendations are important:

The asset declaration monitoring system has been operational in Georgia for two years, although it is important to establish whether this system is efficient with regard to uncovering possible violations and whether the current sanctions for violations are effective. The Georgian authorities have not analysed these issues. The frequency of the violations (demonstrated by the statistics published by the Civil Service Bureau as well as research by non-governmental organisations and journalist investigations concerning suspicious property owned by public officials) could indicate that the existing system is not effective.

Protection of Whistle-blowers

The following important recommendation remains unfulfilled:

  • Evaluate the effectiveness of reporting channels and the follow-up by law enforcement bodies to identify the needs for further improvement.

Why this recommendation is important:

The Georgian legislation does include measures for the protection of whistle-blowers but it is unclear whether the system is effective in practice. No study has been conducted to evaluate the effectiveness of the system. The statistics of the instances of whistle-blowing and responses to them are not being made public.

In this context, the events that unfolded in November 2018 when the law enforcement bodies demanded that the non-governmental organisations reveal the identity of the informant who told them about the alleged printing of fake identification documents in the run up to the second round of the Presidential Election are a cause for concern.

Independence of Civil Service

The following important recommendation remains unfulfilled:

  • Consider introducing a top civil service post in public authorities (such as Secretary General) to prevent undue influences.

Why this recommendation is important:

The lack of independence of civil servants and the lack of protection offered to them from undue influence by the ruling party is an important problem which hampers the development of a truly professional civil service and the establishment of a pluralistic political system (because the ruling party can use the civil service for its own benefit during election campaigns).

Judiciary

The following important recommendation remains unfulfilled:

  • Revoke the powers of court chairpersons related to careers of judges, their material provision, bringing to liability and other powers that may affect judicial independence.

Why this recommendation is important:

For anti-corruption policy to be effective, independence of the judiciary must be ensured, so that judges are able to consider corruption-related cases without being subjected to pressure. Excessively broad powers of court chairpersons could threaten independence of judges.

Law Enforcement Bodies

The following important recommendations remain unfulfilled:

  • To continue the reform aimed at further strengthening impartiality and independence of prosecutors, consider assigning the leading role in the recruitment, promotion, discipline and dismissal of prosecutors to the Prosecutorial Council or a similar body of prosecutorial self-governance independent from the Chief Prosecutor.
  • Consider removing anti-corruption investigative powers from the Security Service.

Why these recommendations are important:

Independence of the Prosecutor’s Office is important because it will not be able to effectively respond to the alleged instances of high-level corruption if it is influenced by the political leadership of the government and the ruling party. According to the latest OECD ACN report, although the independence of the Prosecutor’s Office is guaranteed by the Constitution of Georgia, the fact that the powers of the Prosecutorial Council are limited to the selection of the General Prosecutor prevents it from fully performing the role assigned to it by the Constitution.

Removing anti-corruption investigative powers from the State Security Service is important to provide for independence and transparency of such investigations. The European Parliament addressed the Government of Georgia with a similar recommendation.

Transparency in Public and Private Sectors

The following important recommendations remain unfulfilled:

  • Carry out a comprehensive revision of the access to information legal provisions preferably by adopting a stand-alone Access to Information Law in line with international standards and best practice, including provisions on public interest test.
  • Set up an independent public authority for the oversight of access to information right enforcement (as a separate institution or an office merged with the data protection authority) and assign it with adequate powers, in particular to issue binding decisions.
  • Require mandatory disclosure of beneficial ownership in legal persons in a central register and publish this information on-line. Establish an effective liability for non- disclosure or false disclosure.

Why these recommendations are important:

The Freedom of Information Law (whose adoption the Georgian authorities have postponed several times) is to eliminate the shortcomings in relevant legal provisions, including the creation of a body responsible for the enforcement of the law and introduction of effective sanctions for violations of legal provisions.

As for the access to information about beneficial owners of private companies, this is an important tool for preventing corruption, because public officials could use the companies (including those founded in off-shore zones) whose owners’ identity is concealed from the public for corrupt activities.

Public Procurement

The following important recommendations remain unfulfilled:

  • Further reduce the list of exemptions from the Public Procurement Law and substantially reduce the volume of direct contracting. Adopt clear regulations on state secret procurement.
  • Enhance the rules on the debarment of entities from the public procurement, in particular by introducing explicit mandatory debarment for commission of a corruption-related offence by the company or its management. Strengthen conflict of interests safeguards in the public procurement.

Why these recommendations are important:

The exemptions envisaged by the Public Procurement Law are problematic since in such cases the procurement process is less transparent, while corruption risk is high. The volume of procurement through simplified procedure has been decreasing in recent years although the share of such purchases in public procurement is still high.

It is also problematic that companies and persons who have committed corruption-related offences in the past participate in public procurement. In the absence of appropriate prohibitions, several companies and persons in Georgia continue participating in tenders and winning large public contracts.

Conclusion

The lack of progress with regard to the implementation of a majority of the items of recommendations (including the particularly important items listed above) raises concern as it points at the absence of the political will to continue anti-corruption reforms. In addition, the failure to implement these reforms hampers the attempts to address the corruption-related problems facing the country (including instances of high-level corruption). In the current situation, it is important that the leadership (including the Parliament of Georgia) initiate a discussion about the ways improving the effectiveness of the country’s anti-corruption system.

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