How lawful is appointing Tengiz Gunava as governor? - საერთაშორისო გამჭვირვალობა - საქართველო

How lawful is appointing Tengiz Gunava as governor?

15 January, 2013

On January 10, the President unveiled Tengiz Gunava, a defendant in a current criminal case, as the Samegrelo-Zemo Svaneti Governor. Questions have been raised regarding the lawfulness of the above decision. However, we believe that Gunava's appointment as governor was not in violation of the law.

According to the statement released by the Chief Prosecutor's office on January 10, "The Prosecutor's Office has completed the investigation of the criminal case against Mr. Gunava, and will send it to the Tbilisi City Court for further examination."

Although criminal prosecution against Mr. Gunava has not been dropped, with only the investigation having been completed, his appointment as governor cannot be considered an offence. This is because the Georgian Law on the Civil Service (Article 17, subparagraph "b") states that a person shall not be accepted into public service if he "is under investigation.” Consequently, the law does not provide for such prohibition in the case of Mr. Gunava, where the investigation has already been completed.

It should be noted that this rule underwent changes in 2010. The phrase "is under investigation" previously read as "is under preliminary investigation." These changes to the law on the Civil Service were a response to the adoption of the new Criminal Procedure Code in 2009 which no longer contained the term "preliminary investigation", because under the new Code the court is no longer entitled to conduct preliminary investigation.

The changes in the law clearly demonstrate the legislators' will that the rule should restrict an individual's right to work in the public service only when an investigation against such a person is ongoing; the restriction is no longer valid after the investigation is complete.
The illogicality of the above norm is obvious, since the restriction applies only to persons "under investigation", and not to cases where the investigation has been completed and referred to court.The restriction imposed by the law cannot exceed the limits established by the same law (the foreseeability principle), which is why the restriction in Article 17 can not apply to defendants with respect to whom the investigation has been completed.

Consequently, we believe that the current version of Article 17 (subparagraph "b") does not prohibit the appointment of Mr. Gunava to the Samegrelo-Zemo Svaneti governor's office. However, the question is whether it is wise to appoint a person with unresolved issues with the court to such a senior position without any consultation with the Prime Minister. It is doubtful whether such actions will contribute to the success of the cohabitation process in the country or the effective exercise of the authority bestowed on such a person.

Author: TI Georgia