EUROPEAN NEIGHBOURHOOD POLICY by Transparency International

EUROPEAN NEIGHBOURHOOD POLICY: MONITORING GEORGIA'S ANTI-CORRUPTION COMMITMENTS

www.transparency.ge

Table of Contents I.

Foreword

II. Acknowledgements

III. Executive Summary

1. Judicial reform

2. Public Sector reform

3. GRECO implementation

4. Recommendations

IV. Background to the Study

V. Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan

1. Objective1: Strengthening the Judiciary

2. Objective2: Civil Service/Public Sector reform

3. Objective3: Implementation of Georgia GRECO Recommendations

Foreword The European Neighbourhood Policy (ENP) is intended to provide a structure through which the European Union (EU) can help encourage and facilitate ENP member states to engage in a wide range of political and economic reforms. Following on from the EU-Georgia Partnership and Cooperation Agreement, the ENP Action Plan was adopted by the Georgian government in 2006. The Action Plan set targets for reform for the years 2006-2011 in a wide range of areas. Georgia’s reform agenda is closely connected to its European and Euro-Atlantic aspirations. The reforms aim to push Georgia towards a more democratic and lawful society, to align the Georgian economy and legal system with European and international standards, and to make Georgia a better neighbour, and a more likely future member, of the EU. By accepting and formulating a specific Action Plan, the Georgian government accepted a set of goals for the reform process and a benchmark against which that process could be judged. As such, continuous assessment of Georgia’s implementation of the Action Plan has been essential to the proper working of the ENP process and the reform agenda itself. Georgian civil society organisations (CSOs) have been at the centre of that process, through monitoring the Action Plan implementation. The European Commission also published assessments in April 2008 and April 2009. This report considers three main elements of the Georgian reform agenda: (1) the legal and judicial process; (2) reforms to the civil service; and (3) implementation of international anti-corruption conventions. The first two of the reforms are considered here because they continue to be a particular source of concern in Georgia. A well-functioning judiciary is vital for its impact on democracy, human rights and economic growth. Reforms in the judiciary and the rule of law are at the core of a functioning liberal democracy because they protect individual liberties. These reforms are essential to economic development because they protect property rights and make entrepreneurial activities possible. Yet, despite many changes undertaken in Georgia’s judicial system in the past years, it continues to be one of the leasttrusted institutions in the country. The civil service is similarly important, as it is at the core of the government’s ability to deliver on its promises. Reforms to the civil service are key to the operation of all branches of government and make government social services and social protections possible. While those working in the system prior to the 2003 revolution have been significantly, if not dramatically, replaced by the current government, the rules governing the civil service and much of the culture they produced have remained. Finally, since corruption acts as a poison to any reform process and is corrosive to efficiency and equality in public and private life, the anti-corruption strategy was central to the Action Plan. While many aspects of the government’s anti-corruption strategy have been successful, it is clear that continued vigilance is essential. Therefore, the ENP Action Plan’s requirement to implement the recommendations of the Council of Europe Group of States Against Corruption (GRECO) remains highly relevant.

Acknowledgements Transparency International Georgia wishes to gratefully acknowledge the valuable input of all those individuals and representatives of state and non-state institutions who contributed to the development of this report. The project team at TI Secretariat and TI Brussels Office is also grateful to TI staff members in Yerevan, Baku, Tbilisi and Berlin for their continuing support. Finally we wish to extend our appreciation to the Norwegian Ministry of Foreign Affairs who provided the financial support for this project.

Executive summary This monitoring report assesses the degree to which the Georgian government has complied with the 2006 ENP Action Plan. It monitors particular aspects of the judiciary and rule of law (part of Priority 1), the reform of the civil service (also part of Priority 1), and the continuation of the fight against corruption (part of Priority 2) through compliance with the recommendations made by GRECO. From our analysis, the weakest governance link exposed is the insufficient independence of the judiciary and of the civil service. Judicial independence was rated at 71%, although its rating is significantly higher when discussing the legal framework than when addressing its practical enforcement and public attitudes toward the system. Much progress also remains to be made in terms of the independence, accountability and transparency of the civil service, which received a low overall rating of 50%. This is mainly due to the lack of effective mechanisms for enhancing civil service independence and accountability (rated at 38%) and the lack of proper training of civil servants (rated at 50%). Compliance with GRECO’s pending recommendations received a 64% approval rating, as most of them still remain at the level of “partially implemented”.

Judicial reform There have been clear steps forward in the legal protection of judicial independence. Judges require formal training before they can be considered. The High Council of Justice (HCJ), which selects, promotes and disciplines normal judges, is made up of judges and parliamentarians, and must include at least one opposition Member of Parliament (MP). Judges are appointed for fixed terms, although they can be removed by the HCJ, which has considerable flexibility in its area. Interference or even communication with judges about sitting cases is legally prohibited. On top of that, the Supreme Court is recommended by the president and appointed by the Parliament, and the Constitutional Court is appointed by the president, Parliament and the judges themselves. They have generous salaries by Georgian standards, and court budgets have generally been increasing. Nonetheless, commentators inside and outside the country agree that the judiciary is still not practically independent. In Transparency International’s 2009 Global Corruption Barometer (GCB) survey, Georgian citizens identified the judiciary as the least trusted state institution and, most recently, the US State Department’s Human Rights Report: Georgia highlighted failures in judicial independence as one of the country’s greatest weaknesses. At their core, these problems continue to reflect a difference between legal requirements and common practice. For example, the law on communication with judges precludes any attempt to talk to a judge about a decision while the judge is sitting. However, there is a strong sense both amongst CSOs and the public at large that this kind of influence still occurs. Only four cases have been brought for inappropriate communication with judges since the enactment of the law in 2008. In addition, many believe the judiciary simply acts as a rubber stamp for the prosecutor’s office, as the rate of acquittals in criminal cases is less than 1%. This is particularly problematic because the impartiality of the public prosecutor’s office has been questioned by a wide variety of international monitors, including Human Rights Watch and Amnesty International.

The weakness of the judiciary has also been felt in politics. In its report on the 2008 presidential and parliamentary elections, the Office for Democratic Institutions and Human Rights (ODIHR) monitoring mission stated that the courts lacked impartiality in considering the appeals submitted to them by opposition parties and election monitoring organisations. As a result, suspicions remain, particularly in high-profile and political cases, that the ruling party still exerts enough control over the High Council of Justice and the prosecutor’s office to exert pressure with impunity.

Public sector reform Our analysis also suggests that the civil service lacks independence because of the influence ministers can exert in hiring, promoting and, particularly, firing civil servants. While there are some legal hurdles to arbitrary dismissal, they are rarely put into practice. It is still commonplace for new ministers to demand significant changes in staffing, even among fairly junior staff. The main problem behind this continuing weakness is a conviction within the Georgia government that flexibility in the civil service is more important than independence, security or long-term professional development. Ever since the so-called Rose Revolution of 2003, out of a combination of ideological attachment to free-market values and political attachment to ministerial autonomy, there has been little desire to centralise reform in the civil service. While considerable reform has taken place in different ministries, any attempts to centralise the process, standardise human resource management and training, or limit the powers of ministers have been quashed. This undermines the effectiveness of the civil service by increasing turnover of civil servants, so that the service is continually losing experience, training and so-called “institutional memory”. It also makes them less politically neutral. Civil servants, who are often members of the ruling party, are often complicit with the government in utilising government programs and resources for political ends. This proved particularly problematic around the last presidential and Parliamentary elections, as observed by ODIHR at the time. Even now, as Georgia is moving through the “second-wave” of the post-revolution reforms, there is little prospect of increased independence in the civil service. Unfortunately, this will not change as long as ministerial autonomy is considered more important than civil service independence, since for the civil service to be more independent, some of the powers of ministers will have to be curbed.

GRECO implementation The overall assessment of the fulfillment of GRECO requirements is very positive, according to GRECO’s own report released in 2009. Out of the 14 recommendations that the GRECO made in 2006/7, eight were deemed to have been fully implemented and six partly implemented. The six different recommendations that this report evaluates relate to those that had been deemed by GRECO to be partly fulfilled, or where full completion had generated additional recommendations.

Of these reforms, weaknesses in the Chamber of Control continue to be the greatest source of concern. This analysis confirms the GRECO finding that, while the new law regulating the Chamber of Control has now been passed, it has brought few practical changes. The Chamber of Control continues to combine limited compliance auditing with selectively applied policing. Besides, it is currently responsible mainly for ensuring that government funds are properly accounted for, rather than spent efficiently or effectively. Problems also remain in terms of enforcing effective whistleblower regulations and a lack of systemic training for all civil servants concerned in the area of criminal liability of legal persons.

Recommendations 1. 1.1. 1.2. 1.3. 1.4. 1.5. 1.6. 1.7. 1.8. 2. 2.1. 2.2. 2.3. 2.4. 2.5.

Increase judicial independence and effectiveness through: Setting clear and objective criteria for appointing judges through the interview process, in order to exclude the possibility of appointing judges on the basis of loyalty to the ruling party or nepotism; Enhancing transparency of the interview process by inviting independent actors to attend/monitor it and by providing a public explanation as to why interviewed judges are appointed or refused appointments; Enhancing transparency of disciplinary sanctioning of judges by providing a public explanation about whether or not sanctions were imposed, on what grounds, and if they were imposed what the sanctions were; Limiting the possibility of “punishing” judges by reassigning them to new courts far from their homes without their consent, as well as the possibility of “awarding” them by the currently applied bonus system, which is vague; Reducing delays in court hearings and ensuring adherence to legal deadlines by filling the existing judicial vacancies and setting the maximum limit of cases allocated to individual courts; Drawing special attention to and enhancing transparency of high-profile and political cases heard by the courts in order to promote public confidence in the judicial system; Increasing the technical capacity of courts to publish their decisions on the Internet, as well as developing a comprehensive system of data management; Expanding the coverage of state-funded legal aid for the eligible groups to civil and administrative cases. Increase transparency, accountability and efficiency of the civil service through: Developing and adopting a comprehensive national strategy for reforming the civil service at all levels through an open and participatory process of consultations; Ensuring that civil service appointments and promotions are transparent and merit-based, and dismissals are fair by involving independent actors in these processes and publicising the applied appointment/promotion/dismissal criteria; Expanding civil service regulations and restrictions to the employees of legal entities in public law (LEPLs); Developing a comprehensive, national system for increasing qualifications of civil servants through systematic trainings and consultations; Ensuring the neutrality of the civil service by restricting the right of civil servants to participate in pre-election campaigning and restricting the right of political parties and candidates participating in the election to use state-funded and municipal material/technical resources;

2.6. 2.7. 2.8. 3. 3.1.

3.2.

Improving the system for scrutinising civil servantsâ&#x20AC;&#x2122; financial and asset declarations by obliging the Civil Service Bureau or another government agency to verify the declarations submitted by the selected groups of civil servants (such as top government officials, employees in corruptionprone sectors, etc.) in order to identify potential flaws in the system, as well as to reveal cases of corruption; Improving the system for maintaining and publicising the information on submitted financial and asset declarations by developing an electronic database that is easy to search and analyse, to replace the current system of posting scanned versions of the declarations on Internet; Increasing access to public information by setting minimum standards for the data to be posted on the websites of government agencies, as well as by imposing stricter sanctions against violating Freedom of Information (FoI) regulations, and reducing the court fee of GEL 100 (US $58) for FoI appeals. Increase transparency and efficiency of public expenditures through: Improving the public procurement system by limiting the number of exceptions to the rule of procuring goods and services through competitive tenders, as well as by providing sufficient time for the interested applicants to submit their bids, developing clear criteria for selecting the winning bids, maintaining a comprehensive and public electronic database of conducted procurements, enforcing an effective complaint review process, and improving the capacity of the State Procurement Agency to fulfill its functions; Enhancing the capacity of the Chamber of Control by developing and applying a more detailed methodology for conducting the audits under its authority, as well as by training its auditors and promoting public access to its audit conclusions via posting them on the Internet and organising public discussions with the participation of interested independent actors.

Background to the Study The ENP is a framework for bilateral agreements between the EU and its neighbours to the south and east. 1 It has the stated objective of ‘avoiding the emergence of new dividing lines between the enlarged EU and our neighbours and instead strengthening the prosperity, stability and security of all concerned’. 2 Within the framework of the ENP, certain states 3 have signed Action Plans, which are designed to outline the specific commitments of that state in the context of its relationship with the EU. Amongst many other policy areas (e.g. environmental and energy policies, immigration and border control, human rights, economic development, conflict resolution, etc.), anti-corruption and good governance feature prominently in all of the Action Plans signed to date. While the European Commission (EC) carries out periodic reviews of the implementation of ENP Action Plans, many civil society organisations, including TI national chapters, have also been actively monitoring their government’s work in relation to the Action Plans. The impact of this work has generally been somewhat limited, due to the lack of an analytical monitoring framework, clear benchmarks and timelines. This report is part of a regional project funded by Foreign Ministry of Norway, currently being implemented in Armenia, Georgia and Azerbaijan, which aims to monitor ENP implementation. It seeks to maximise the impact of monitoring work by using a solid indicator-based framework to assess progress in the ENP areas related to anti-corruption, namely the judiciary, the public sector and the implementation of international conventions. The TI Secretariat developed the indicators in consultation with TI national chapters in Armenia, Georgia and Azerbaijan. The wording of each Action Plan was analysed and common objectives related to governance and anti-corruption were identified. Three core areas emerged, which all of the Action Plans address to a greater or lesser extent – judicial reform, reform of the public sector and implementation of international conventions. For each of these objectives, specific sub-objectives were identified related to principles of independence, transparency, accountability and integrity. Relevant indicators were developed (using international standards and best practices) to measure progress in these areas. Each indicator was scored on a three-point scale of compliance from 0 to 2 (where 0 is non-compliance and 2 is full compliance) based on the collected information, which is summarised in an adjacent note. The scoring systems allows for aggregation across indicators to obtain an overall score for each dimension. The data on which the assessment is based was collected using a desk review of legislation and relevant policy documents, as well as through key informant interviews between November 2009 and March 2010, and covers progress made in ENP implementation through the end of 2009. This study also used media publications on related topics as a source of reference.

Algeria, Armenia, Azerbaijan, Belarus, Egypt, Georgia, Israel, Jordan, Lebanon, Libya, Moldova, Morocco, the Palestinian Authority, Syria, Tunisia, Ukraine. See ‘The Policy: What is the European Neighbourhood Policy ?’ ec.europa.eu/world/enp/policy_en.htm. 3 All ENP countries except Algeria, Belarus, Libya and Syria have signed an Action Plan. 1 2

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary Scale of compliance Sub-objective

Indicators

Ensure independence of judiciary To what extent are there legal provisions in place requiring that the selection and promotion of judges be based on merit?

Full 2

Partial 1

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

Notes and sources None 0 Selection of Judges is regulated by the “Organic Law on the Common Courts of Georgia”, adopted 4 December 2009. This new Organic Law replaced previous laws on common courts, Supreme Court and the social protection of judges of these courts. All new candidates, having passed the judicial qualification examination, must complete a 14-month training course at the High School of Justice (HSOJ). After completing the course, candidates who achieve the highest grades are interviewed by a panel composed of members of the High Council of Justice (Law on HSOJ, Art. 19). This interview process is not regulated by law, but according to a representative from the appellate court it is sometimes attended by independent experts, as well as international legal specialists. 4 Selection and promotion of ordinary judges is overseen by the Higher Council of Justice (HCOJ). The HCOJ is a 15-member body chaired by the head of the Supreme Court. Eight members are elected from the Conference of Judges, upon nomination from the Supreme Court chair. Two members are nominated by the president, and three members are MPs, at least one of whom must not be from the ruling party. The last member is the Chair of the Parliamentary Legal Affairs Committee (Georgian Constitution, Article 86.1).

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Ensure independence of judiciary To what extent are there legal provisions in place requiring that the selection and promotion of judges be based on merit?

Full 2

Partial 1

Notes and sources None 0 Selection Judges is theSupreme “OrganicCourt Law on Parliamentofappoints theregulated judges ofbythe by a majority the Common Courts of by Georgia”, adopted 4 December 2009. This new vote, upon nomination the president (Law on the Supreme Court, Organic replaced previous courts, of Supreme Art. 21). Law The president appoints laws threeon of common the nine judges the Court and the social judges of these courts. All new Constitutional Court, protection Parliamentofelects three judges by a three-fifths candidates, having passed the judicial qualification examination, must majority vote, and the Supreme Court appoints the other three (Law complete a 14-monthCourt, training course High73.1). School of Justice on the Constitutional Arts. 6.1, at 71,the 72.1, (HSOJ). After completing the course, candidates who achieve the highest grades arepromotion interviewed by a panel composed ofcan members of Provisions on the of judges require that they be the High Council of Justice (Law on HSOJ, Art.one 19).year Thisininterview considered for promotion after three years (or exceptional process is not regulated by law, but according to a representative from cases). According to a representative of the Supreme Court, promotion the appellate it is sometimes attended by independent experts, is based on ancourt assessment of judges’ performance and record by the 4 5 as well Council as international legal specialists. Higher of Justice. Selection ordinary judges is overseen by the Higher By decree,and thepromotion criteria areofthe following: Council of Justice (HCOJ). The HCOJ is a 15-member body chaired by of theinSupreme Court. Eight are elected from a) the head Ranking the qualification list in members justice students the of Judges, upon nomination from the Supreme Court b) Conference Moral reputation chair. Two members are nominated by the president, and three c) Qualification members are MPs, atskills least one of whom must not be from the ruling d) Professional party. The lastofmember is the Chair the Parliamentary Legal Affairs e) Skills argumentation and of expression Committee (Georgian Constitution,thinking Article and 86.1). f) Skills of analytical-logical making decisions g) Manners of a judge h) Skills to conduct court hearings However, neither selection nor promotion takes place in public, which makes it difficult for the public or CSOs to evaluate the true meritocracy of the system (see below). 9

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

Interview with Besik Begianishvili, Head of the Bureau of the Chair of the Supreme Council, 18 March, 2010

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Ensure In practice, to what extent is independence the selection and promotion of judiciary To what extent are there of judges based on merit? legal provisions in place requiring that the selection and promotion of judges be based on merit?

Full 2

Partial 1

1 1

Notes and sources None 0 Selection is regulated by the “Organic Law Bar on Association Accordingof toJudges an analysis conducted by the American the Common Courts process of Georgia”, adopted 4 December 2009.to This (ABA), the interview for judges could be susceptible thenew Organic Lawofreplaced previous laws on common courts, introduction subjective criteria. Some interviewees whoSupreme had become Court protection of judges these courts. new judgesand toldthe thesocial ABA that interview criteriaof seemed vague,All and candidates, having passedisthe qualification suggested that “reliability” anjudicial important factor for examination, appointment, must as 6 complete a 14-month training course at the High School of Justice well as contacts and personal relationships. (HSOJ). After completing the course, candidates who achieve the highest are interviewed by Human a panelRights composed of members The US grades State Department’s 2009 Report also notedofthe the High of Council ofNGOs Justicethat (Law HSOJ, Art. appointed 19). This interview concern several felton that recently judges 7 process is not regulated by law, but according to a representative lacked the skills and experience to act independently. In addition,from it the court it is sometimes by independent experts, wasappellate felt that the interview process, attended which is held behind closed doors, 4 as international legal specialists. waswell notas sufficiently transparent. Selection and of promotion of ordinary is overseen by (GYLA), the Higher In the opinion the Georgian Youngjudges Lawyers Association Council of Justice (HCOJ). Theappointments HCOJ is a 15-member body chaired prior to the new process many were spontaneous rather by themerit-based. head of the8 Supreme Court. Eight elected fromthat than Tamar Chugoshvili of members the GYLA are further argues the Judges,since uponthe nomination frominthe too Conference little time hasofpassed amendments theSupreme law wereCourt made chair. Twowhether members arehave nominated by the president, and three to assess they been effective. Chiora Taktakishvili, members are of MPs, least one of whom must not be from the ruling Deputy Chair the at Parliamentary Legal Affairs Committee, party. The last member is theconcerns Chair of about the Parliamentary Affairs recognises there have been the interviewLegal process. Committee (Georgian Constitution, Article of 86.1). Nonetheless, she stresses the impartiality the process is ensured by the fact that interviews are conducted by members of the HCOJ, a body mainly composed of judges and which also has one opposition MP. 9

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

American Bar Association Judicial Reform Index 2008, (http://www.abanet.org/rol/publications/georgia_judicial_reform_index_volume_ii_2009_en.pdf) p 16 US State Department (2009) Human Rights Report: Georgia (http://www.state.gov/g/drl/rls/hrrpt/2009/eur/136032.htm),accessed 26 March, 2010 8 Interview with Tamar Chugoshvili, GYLA Parliamentary Secretary, 18 March, 2010 9 Interview with Chiora Taktakishvili, Deputy Chair of Parliamentary Legal Affairs Committee, 23 March, 2010 7

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Ensure independence of judiciary To what extent are there in place legal provisions which requiringfor that the selection provide security of and promotion of judges tenure (to prevent judgesbe basedbeing on merit? from threatened with arbitrary termination of their contract)?

Full 2

Partial 1

1 1

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

Notes and sources None 0 Selection of Common Judges is Courts regulated the “Organic on Court The Law on andby the Law on theLaw Supreme the Common Courtsare of appointed Georgia”, adopted 4 December 2009. This new specify that judges for a term of exactly 10 years; Organic previous on common Supreme commonLaw courtreplaced judges may servelaws additional terms courts, (Law on Common Court and the49.1-49.2; social protection judges of these courts. All new Courts, Arts. Law onof the Supreme Court, Art. 21.1). Unlike candidates, having passed the judicialCourt qualification examination, common court judges, Constitutional judges are limited to must complete a 14-month course at the High School of Justice serving one term (Lawtraining on the Constitutional Court, Art. 8). (HSOJ). After completing the course, candidates who achieve the highest grades by a panelHuman composed of Report members According to theare USinterviewed State Department’s Rights for of the High Council of Justice (Law on HSOJ, 19). This interview 2009, many observers see the 10-year termArt. as mitigating against the process is not regulated law, butSaakashvili according toand a representative from independence of judges.by President other top officials the appellate court it isintention sometimes attended independent have announced their to change thebysystem to allowexperts, judges 4 as well as international specialists. to be appointed for life. legal According to the Parliamentary Legal Affairs Committee, this issue has been discussed in Parliament but is now 10 Selection and promotion of ordinary judges isReform overseen by the Higher being considered by the State Constitutional Commission. Council of Justice (HCOJ). The HCOJ is a 15-member body chaired by head of the Supreme Court. Eightismembers are elected from a Thethe Constitutional Reform Commission in the process of drafting the Judges, upon nomination the Supreme newConference Constitutionofand will release its findings from in summer 2010. Court chair. Twoaccording members to are by thebypresident, three However, a nominated report prepared a coalitionand of Georgian members MPs, must at least one of whom must not be from the rulingto NGOs thisare process take place with full public scrutiny in order party. The in last is 11the Chair of the Parliamentary Legal Affairs build trust themember judiciary. Committee (Georgian Constitution, Article 86.1). According to representatives from the Supreme Court, the law regulating disciplinary procedures for judges was amended in September 2009, in line with Venice Commission recommendations. 12 Written complaints against judges are submitted to the HCOJ, which conducts an investigation. Decisions taken by the disciplinary panel of the HCOJ can be appealed at the Disciplinary 9 Plenum of the Supreme Court. Judges facing disciplinary action are entitled to be present throughout all proceedings.

Interview with Chiora Taktakishvili, Deputy Chair of Parliamentary Legal Affairs Committee, 23 March, 2010 Georgian NGO Coalition, Report on the Implementation of Georgia’s European Neighbourhood Policy Action Plan, 2009, p13 12 Interview with Besik Begianishvili, Head of the Bureau of the Chair of the Supreme Council, 18 March, 2010 11

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Ensure independence of judiciary To what extent are there legal provisions in place requiring that the selection and promotion of judges be based on merit?

In practice is it the case that judges are not removed from office for anything other than misconduct or incapacity to carry out judicial functions?

Full 2

Partial 1

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

Notes and sources None 0 Selection of Judges is is regulated by the “Organic Law The disciplinary panel composed of three judges of on the common the Common Georgia”, adopted 4 December 2009. This new courts electedCourts by theof Conference of Judges, and the three members Organic Law elected replacedbyprevious laws on common courts, Supreme of the HCOJ the HCOJ itself. Court and the social protection of judges of these courts. All new candidates, having passed the judicial qualification examination, must complete a 14-month training course at the High School of Justice (HSOJ). After completing the course, candidates who achieve the highest grades are interviewed by a panel composed of members of The 10-year tenure is guaranteed byHSOJ, the Constitution, butinterview disciplinary the High Council of Justice (Law on Art. 19). This charges can be applied when internal rules are violated (for example, process is not regulated by law, but according to a representative from such as being late for work) (Law on Disciplinary Proceedings, Article the appellate court it is sometimes attended by independent experts, 4 potentially vulnerable to 2). well According to GYLA, legal this makes judges as as international specialists. pressure, as internal rules are formed and maintained by court chairs. 13 and promotion of ordinary judges is overseen by the Higher Selection Council of Justice (HCOJ). The HCOJ is a 15-member body chaired Several Georgian have called on the Law onare Disciplinary by the head of the NGOs Supreme Court. Eight members elected from Proceedings to be revised in order to further safeguard judges from the Conference of Judges, upon nomination from the Supreme Court 14 arbitrary dismissal. chair. Two members are nominated by the president, and three members are MPs, at least one of whom must not be from the ruling Reorganisation of the court system ledParliamentary to the closureLegal of many party. The last member is the Chair has of the Affairs courts. Judges not reappointed elsewhere are placed on a reserve list Committee (Georgian Constitution, Article 86.1). with a GEL 500 (approx. US $290) stipend per month. The decision either to reappoint judges or place them on the reserve list rests with the HCOJ. Some respondents interviewed by the American Bar Association in 2008 felt that this was a threat to the independence and tenure of judges. Judges were not given the reasons as to why the HCOJ had decided to reassign them, or place them on the reserve 9 list. 15

Interview with Tamar Chugoshvili, GYLA Parliamentary Secretary, 18 March, 2010 Georgian NGO Coalition, Report on the Implementation of Georgia’s European Neighbourhood Policy Action Plan, 2009, p14 15 American Bar Association Judicial Reform Index 2008, (http://www.abanet.org/rol/publications/georgia_judicial_reform_index_volume_ii_2009_en.pdf), p.35 14

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Full 2

To what extent are there Ensure legal regulations in place to independence ensure that judicial salaries of judiciary To what extent are there are comparable to those of legal provisions in place other high level government requiring that the selection employees? and promotion of judges be based on merit?

In practice, are judicial salaries comparable to the salaries of other high-level government employees? 4

Partial 1

Notes and sources None 0

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

16 17

Interview with Tamar Chugoshvili, GYLA Parliamentary Secretary, 18 March, 2010 Interview with Giorgi Burjanadze, GYLA Lawyer, 18 March, 2010

Selection Judges complaints is regulatedthat by the “Organic Law on reassigned GYLA hasofreceived judges are sometimes the Common Georgia”, December This new to new courts Courts far fromoftheir homesadopted in cases4 where they 2009. have reached Organic replaced verdicts, previousforcing laws onthem common SupremeIn politicallyLaw undesirable out ofcourts, the profession. Court andthe theappointment social protection of judges ofofthese courts. newto addition, and disciplining judges is notAll open 16 candidates, having passed the judicial qualification examination, must public scrutiny, which makes it hard to assess the process. complete a 14-month training course at the High School of Justice (HSOJ). After completing the course, candidates who achieve the highest grades are interviewed by a panel composed of members of The salaries of common court judges are stipulated law (Law of the High Council of Justice (Law on HSOJ, Art. 19). by This interview Georgia on Wages of Common Court Judges, Article 1). They process is not regulated by law, but according to a representative from currently range fromit GEL 2,300 to GEL 5,650 $1,350 to experts, US the appellate court is sometimes attended by(US independent $3,324) perinternational month. Thislegal is a high salary 4in local terms. The law does as well as specialists. not specifically tie in judicial salaries with those of any other officials, though they are generallyofrather more generous than government Selection and promotion ordinary judges is overseen by the Higher salaries. Council of Justice (HCOJ). The HCOJ is a 15-member body chaired by the head of the Supreme Court. Eight members are elected from the Conference of Judges, upon nomination from the Supreme Court chair. members are nominated by the president, three and RecentTwo years have seen dramatic increases in judicialand salaries, members MPs, at least one of whom musttop notofficials. be from The the ruling judges areare paid amounts comparable to other Chairs party. The last member is the Chair of theCourt Parliamentary Legal Affairs of the Supreme Court and Constitutional are both paid more Committee (Georgian Constitution, Article 86.1). than the president. However, GYLA has pointed out the “bonus” system that exists amongst judges is a potential mechanism for influencing judges. The salary bonuses are distributed to judges based on how many “complicated” cases they had, but since there is no objective criteria for evaluating the level of complexity, this introduces considerable 9 flexibility in the application of bonuses. 17

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Is the judiciary legally entitled to propose, allocate and manage its own budget? Ensure independence of judiciary To what extent are there legal provisions in place requiring that the selection In practice, does and promotion of the judges be judiciary propose, based on merit? allocate and manage its own budget?

Full 2

Partial 1

To what extent are there regulations regarding the 4 of cases toAppellate Court, 18 March, 2010 Interview with Irakliassignment Adeishvili, Judge of the 2 judges by an objective method administered by the judiciary?

Notes and sources None 0 Selection Judges isthat regulated by the Law is onnot permitted Legislationofstipulates the budget for“Organic the judiciary the Commonyear-on-year Courts of Georgia”, 4 December 2009. Thisofnew to decrease without adopted the consent of the Conference Organic Law replaced previous laws common courts, Supreme Judges (Law on Common Courts, Art.on81.4). Court and the social protection of judges of these courts. All new candidates, having passed the judicialpart qualification examination, The Department of Common Courts, of the HCOJ, drafts themust part complete a 14-month training course at the High School of Justice of the state budget related to the courts other than the Supreme Court. (HSOJ). After completing the course, candidates whoofachieve This is submitted to the HCOJ and then the Ministry Financethe (Law highest grades are interviewed panel composed on Common Courts, Art. 81.3). by Thea department is alsoofinmembers charge ofof the High Council Justicefrom (Lawthe onstate HSOJ, Art. 19). This interview allocating fundingofgranted budget. process is not regulated by law, but according to a representative from the it is sometimes attended bycourts independent Theappellate Chairs ofcourt the Supreme and Constitutional submit experts, individual 4 as well astointernational specialists. requests the Ministry legal of Finance for the financing of these two courts. Selection and promotion of ordinary judges is overseen by the Higher Council of Justice (HCOJ). The HCOJ a 15-member chaired in All observers agree that in practice theisjudiciary is fairlybody autonomous by the headallocating of the Supreme Court. Eight members proposing, and managing its own budget.are elected from the Conference of Judges, upon nomination from the Supreme Court chair. Two members are nominated by the president, and three members are MPs, at least one of whom must not be from the ruling party. The to last member is thefrom Chairthe of Supreme the Parliamentary According representatives Court, theLegal Affairs Committee (Georgian Constitution, Article 86.1). law requires that cases be assigned to judges on an alphabetical basis, with the judge whose name is first in the alphabet receiving the first case and so forth. 18 In some circumstances court Chairs can reallocate cases if judges become over-burdened, and Chairs themselves can defer their participation in the system if workloads are heavy (Law of Georgia on Assigning Cases in Common Courts and Recusing Responsibility to Other Judges, Articles 4-12). 9 Legal provisions are also provided for the recusal of judges, set out in the Civil, Criminal and Administrative Codes (Civil Procedure Code, Arts. 29 and 31, Criminal Procedure Code, Art. 105). If a judge is recused, the Chair of the court can reallocate the case at his or her discretion.

Interview with Besik Begianishvili, Head of the Bureau of the Chair of the Supreme Council, 18 March, 2010

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Full 2

In practice, are judges assigned to cases by an objective method, in a process administered by the judiciary?

Ensure independence of judiciary Freedom from Interference

To what extent is there a specific legal framework or To what extent are there constitutional provision to legal provisions in place protect judges from external requiring that the selection interference or improper and promotion of judges be influence by public officials based on merit? or private interests?

Partial 1

1 2

In practice, to what extent are judicial proceedings and decisions free of bias 1 4 improperJudge influence Interview with IrakliorAdeishvili, of theby Appellate Court, 18 March, 2010 public officials or private interests?

19 20

Notes and sources None 0 Selection of Judges is regulatedhas by found the “Organic on works well The American Bar Association that thisLaw system the Common Courts of Georgia”, adopted 4 December 2009. This new in practice, although some suspicion remains, especially surrounding Organic Lawcases replaced previous on common courts,prosecutors. Supreme 19 high-profile being given tolaws judges who are former Court social that protection of judges of well, thesebut courts. All new GYLA and alsothe reported this system works pointed out that candidates, passed the judicial qualification examination, court Chairshaving often defer themselves in practice because of heavymust 20 complete a 14-month course at the High School of Justice managerial workloads.training (HSOJ). After completing the course, candidates who achieve the highest are of interviewed by a panel composedCourt of members The Lawgrades on Rules Communication with Common Judges,of the High in Council of Justice (Law HSOJ, Art. 19). This interview adopted July 2007, defines theon rules of communication with judges process is notofregulated by law, butexcludes according to a representative from in the matter sitting cases. This communication with the the appellate courtparticipants, it is sometimes attended by independent experts, judge by the case interested persons, public employees 4 as as international legal specialists. andwell persons with political positions. Selection promotion of ordinary judges is overseen the Higher If the rule and of communication is violated, the judge has toby inform the Council (HCOJ). The is a 15-member court. If of theJustice communication rule HCOJ is violated by the Chairbody of thechaired court, by head of the Supreme Court. Eight members arecourt elected thethe judge must inform the Chair of the higher instance (or from the the Conference of of Judges, upon nomination fromthe therules). Supreme HCOJ if the Chair the Supreme Court violates TheCourt chair. Two members are nominated by the three 1) a relevant judge who receives the appeal canpresident, apply twoand measures: members areGEL MPs, at least one ofUS whom must be from the ruling fine of up to 5,000 (approx. $2,900) fornot regular citizens and party. The 10,000 last member is the of the Legal Affairs up to GEL (approx. USChair $5,800) for Parliamentary civil servants; 2) raise the Committee Constitution,punishment. Article 86.1). issue at the(Georgian HCOJ for disciplinary While the law on communication with judges precludes any attempt to talk to a judge about a decision while the judge is sitting, there is a strong sense amongst civil society organisations and the public at large that this kind of influence (mainly coming from the Prosecutor’s Office and the Executive) still occurs. Only four cases have been brought for inappropriate communication with judges since the 9 enactment of the law in 2008.

American Bar Association Judicial Reform Index 2008, (http://www.abanet.org/rol/publications/georgia_judicial_reform_index_volume_ii_2009_en.pdf), p.43 Interview with Tamar Chugoshvili, GYLA Parliamentary Secretary, 18 March, 2010.

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Ensure independence of judiciary SCORE (Judicial Independence)

Indicators

To what extent are there legal provisions in place requiring that the selection and promotion of judges be based on merit?

Full 2

Partial 1

1 17/24 (71%)

Notes and sources None 0 Selection of Judges is regulated by the “Organic Law on the Common Courts of Georgia”, December 2009. This new In addition, many believe that the adopted judiciary4simply acts as a rubber 21 Organic previous on rate common courts, Supreme The of acquittals in criminal stamp forLaw the replaced prosecutor’s office.laws 22 Court thethan social protection of judges of these courts. All new In its report on the 2008 presidential election cases and is less 1%. candidates, having passed the judicial qualification examination, and 2008 Parliamentary elections, the ODIHR monitoring missionmust complete 14-month trainingimpartiality course at the High Schoolthe of appeals Justice stated thata the courts lacked in considering (HSOJ). After completing the course,parties candidates who achieve the submitted to them by the opposition and election monitoring highest gradesAs area interviewed by a panel composed of members organisations. result, suspicions remain, particularly in highof the High Council of cases, Justicethat (Law HSOJ, Art.still 19).exerts This interview profile and political theonruling party enough processover is not by law, but according a representative control theregulated High Council of Justice and thetoprosecutor’s officefrom to 23 the appellate is sometimes attended by independent experts, exert pressurecourt with itimpunity. 4 as well as international legal specialists. Selection and promotion of ordinary judges is overseen by the Higher Council of Justice (HCOJ). The HCOJ is a 15-member body chaired by the head of the Supreme Court. Eight members are elected from the Conference of Judges, upon nomination from the Supreme Court chair. Two members are nominated by the president, and three members are MPs, at least one of whom must not be from the ruling party. The last member is the Chair of the Parliamentary Legal Affairs Committee (Georgian Constitution, Article 86.1).

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

US State Department (2009) Human Rights Report: Georgia (http://www.state.gov/g/drl/rls/hrrpt/2009/eur/136032.htm),accessed 26 March, 2010 Georgian NGO Coalition, Report on the Implementation of Georgia’s European Neighbourhood Policy Action Plan, 2009 23 OSCE/ODIHR (4 March 2008) Election Observation Mission Final Report, Extraordinary Presidential Election, 5 January 2008 and OSCE/ODIHR (9 September 2008), Election Observation Mission Final Report, Parliamentary Elections, 21 May 2008 22

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Improve training of judges, Ensure prosecutors independence and officials in of thejudiciary judiciary (Human Resource Management)

Indicators

Full 2

To what extent are there legal provisions to ensure that judges, prosecutors and officials are regularly trained in new judicial practices and procedures and new and/or changing laws?

To what extent are there legal provisions in place requiring that selection In practice, is the it the case and judges be that promotion judges are of regularly based merit? trainedon and given access to new judicial practices and procedures and new and/or changing laws?

Partial 1

Notes and sources None 0 Selection of legal Judges is regulated the “Organic Law on There is no requirement forby judges, prosecutors and officials to the Common Courts ofon Georgia”, adopted 4 December 2009. Thisornew participate in trainings new judicial practices and procedures, Organic Law replaced previous onRules common Supreme new laws. However, the Judiciallaws Ethics (Art.courts, 14) urges judges to Court and the socialtheir protection of judges of these courts. All new continually improve skills and keep up with developments in the candidates, having passed the judicial qualification examination, must field. complete a 14-month training course at the High School of Justice (HSOJ). After completing the course, candidates who achieve the According to Chiora Taktakishvili of the Parliamentary Legal Affairs highest grades are concept interviewed byfor a panel composed members of Committee, a new paper a revised law on of the legal the High Council of Justice (Law onprovisions HSOJ, Art. 19). This ensure interview profession might well include legal that would 24 process is not regulated law,professionals but according toregularly a representative from judges, prosecutors and by other are retrained. the appellate court it is sometimes attended by independent experts, 4 as well as international legal specialists. In practice, judges frequently attend trainings and seminars to keep up with new practices and changes to the law. These are organised by Selection promotion of ordinaryorganisations judges is overseen theGerman Higher the HCOJ,and as well as international such asbythe Council of Justice (HCOJ). The HCOJ is a 15-member body chaired Gesellschaft für Technische Zusammenarbeit (GTZ), US Agency for by the head of the Supreme(USAID) Court. Eight members are elected from International Development and many others. the Conference of Judges, upon nomination from the Supreme Court chair. Two to members are nominated by the president, three According Shota Rukhadze, Director General of theand High School of members are MPs, least one of whom300 must not be fromcountry the ruling Justice, almost all ofatthe approximately judges in the have party. member is the Chair Legal at leastThe fivelast days of training per yearofatthe theParliamentary HSOJ. Trainings areAffairs Committee (Georgianand Constitution, Article 86.1). usually on weekends last 1-3 days. Last year the HSOJ conducted 70 trainings in total. 25

SCORE (Judicial 4 (75%) Human Interview with Irakli Adeishvili, Judge of the Appellate3/4 Court, 18 March, 2010 Resources Management)

24 25

Interview with Chiora Taktakishvili, Deputy Chair of Parliamentary Legal Affairs Committee, 23 March, 2010 Interview with Shota Rukhadze, Director General of the High School of Justice, 30 March, 2010

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Full 2

To what extent are there legal provisions which provide for free public defense for persons without means to cover procedural costs?

Improve access to justice Ensure independence of judiciary To what extent are there legal provisions in place requiring that the selection and promotion of judges be based on merit?

To what extent are there adequate interpretation services (e.g. for non-native language or deaf court users) in place in the court system? 4

Partial 1

Notes and sources None 0 Selection is regulated the “Organic Law there on are Accordingof toJudges an official Georgianby government report, the Common Courts Georgia”, adopted 4 December 2009. This new currently 10 legal aidof centres in the country, and a website has been 26 Organic replaced previous on common courts, Supreme set up toLaw enhance public access.laws Court and the social protection of judges of these courts. All new candidates, passed the qualificationprovides examination, The Ministryhaving of Corrections andjudicial Legal Assistance a legalmust aid complete a 14-month training course at the High of Justice lawyer’s service in criminal cases for persons whoSchool are defined as (HSOJ). After completing course, candidates achievecertain the socially vulnerable by the the Social Service Agency. who In addition, highest grades byand a panel composed of members categories suchare as interviewed large families veterans can also use this of the High27Council of Justice (Law on HSOJ, Art.or 19). This interview service. This does not currently apply to civil administrative cases, process is not to regulated by law, but according to a representative but according a representative from the appellate court, legal aidfrom the appellate court itinisthese sometimes by28independent experts, should be available cases attended from 2011. 4 as well as international legal specialists. A coalition of Georgian NGOs has warned that the government may Selection and of ordinary for judges is out overseen by the Higher not be able to promotion meet its commitment rolling comprehensive legal Council of Justice (HCOJ). The HCOJ 15-member body chaired aid by 2011, pointing out that legal aid is foracivil and administrative 29 by the is head the Supreme Eight members are2009-13. elected from cases not of stipulated in the Court. Legal Aid Action Plan for the Conference of Judges, upon nomination from the Supreme Court chair. Two to members are nominatedallby the president, and and three According Georgian legislation, judicial proceedings members MPs, one ofHowever, whom must from the ruling documentsare must beat in least Georgian. the not lawbe requires that party. The last member is the Chair of the Parliamentary Legal Affairs translation services be provided to non-native language speakers Committee (Georgian Constitution, Article 86.1). throughout criminal trials, and that legal documents such as indictments be translated (Code of Criminal Procedure, Articles 17, 100, 101). The Georgian Ombudsman’s Office reported cases where these translations were of poor quality. 30

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

SCORE (Access to Justice)

2/4 (50%)

Government of Georgia, January-June 2009 Progress Report on ENP Action Plan Implementation, 2009, p. 4 Legal Aid Service of Georgia http://www.legalaid.ge/en/legal-aid/faq/36-2008-07-19-13-40-05 accessed on 25 March, 2010 28 Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010 29 Georgian NGO Coalition, Report on the Implementation of Georgia’s European Neighbourhood Policy Action Plan, 2009, p 16 30 Interview with Tamar Zubashvili, Deputy Head of Justice Department, Georgian Ombudsman’s Office, 22 March,2010 27

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Full 2

Partial 1

To what extent are changes in the overall judicial budget Ensure commensurate judicial sector with the growth has adequate Financial of the national 1 resources to Resources budget and carry out its also reflect functions changes in Ensure demands for independence judicial of judiciary To what extent are there 1 services? legal provisions place Are in there requiring thatprocedural the selection and promotion of judges rules in placebe to based on merit? discourage excessive adjournments; Human ensure judges Resources have adequate 2 /Capacity time to hear cases and prepare judgments; and 4 ensure thatAppellate Court, 18 March, 2010 Interview with Irakli Adeishvili, Judge of the appeals are heard without undue delay?

31 32

Notes and sources None 0 Selection Judges is received regulatedthe by budget the “Organic Law onrequested in In practice,ofthe courts amount they the Common Courts of Georgia”, adopted 4 December 2009. This new 2006, 2007 and 2008. Organic Law replaced previous laws on common courts, Supreme Court and2007 the social protection of judges these courts. All new Between and 2010 there was a 7% of increase in overall candidates, passedDuring the judicial qualification examination, must government having expenditures. that time the Constitutional Court complete a 14-month training course at the Highwent School Justice budget went up 2%, the Supreme Court budget up of 7%, and the (HSOJ). theup course, candidates who budget achievefor the CommonAfter Courtcompleting budget went 9%, though the 2010 the highest grades interviewed by reduction a panel composed of members of Common Court are represents a 12% from 2009. the High Council of Justice (Law on HSOJ, Art. 19). This interview process is not regulated by law, but according to a representative from the appellate court it is sometimes attended by independent experts, 4 as well as international legal specialists. Selection of law ordinary is overseen by the or Higher Civil casesand arepromotion required by to bejudges heard within two months, in Council of Justice (HCOJ). The is a 15-member body chaired exceptional circumstances, five HCOJ months. by the head of the Supreme Court. Eight members are elected from the of Judges, upon the Supreme Court TheConference Criminal Code stipulates thatnomination cases mustfrom be heard within nine chair. Two members are nominated by themay president, three months of charges being filed. Detainees be heldand for two months members are MPs, at leastcan onebe of extended whom must not be from the ruling in pretrial detention, which to a maximum of four party. The last member is the Chair of the Parliamentary Legal Affairs months. According to a coalition of Georgian NGOs, the government Committee Constitution, Article 86.1). has failed to(Georgian fulfill its pledge to reduce the use of pretrial custodial 31 measures. According to a representative from the Supreme Court, appeals in criminal cases must be heard within one month of being filed, and the court of cessation itself must reach a verdict within six months of cases being referred to it. 32 9

Georgian NGO Coalition, Report on the Implementation of Georgia’s European Neighbourhood Policy Action Plan, 2009, p15 Interview with Besik Begianishvili, Head of the Bureau of the Chair of the Supreme Council, 18 March, 2010

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Full 2 In practice, are cases heard and judgments handed down without lengthy delays and excessive adjournments?

Ensure independence of judiciary To what extent are there legal provisions in place requiring that the selection and promotion of judges be based on merit?

Partial 1

Notes and sources None 0 Selection regulated by the “Organic Law onReport for Accordingof toJudges the US is State Department's Human Rights 33 the Common Courts of Georgia”, 4 December This new Georgia, all courts strictly adheredadopted to the time limits set.2009. However, in Organic Law replaced previous laws onoften common courts, Supreme city courts large numbers of cases can cause delays in the Court and the social protection of judges of these courts.means All new system, which according to representatives from GYLA that candidates, having passed cases the judicial qualification legal deadlines for hearing can be missed. 34 examination, must complete a 14-month training course at the High School of Justice (HSOJ). After completing the course, candidates the of The Supreme Court reported that judges in Tbilisiwho had achieve an average highest grades areatinterviewed by aThere paneliscomposed of members 70 pending cases any one time. no legal maximum for of the the Highof Council Justice on35HSOJ, Art. 19).Department This interview The US State has number cases of judges can(Law have. process nothigh regulated but according representative from said thatisthe numberbyoflaw, judicial vacancies to at athe trial court level the appellate court it is sometimes attended by independent experts, might have contributed to increasing delays. 36 4 as well as international legal specialists. Selection and promotion of ordinary judges is overseen by the Higher Council of Justice (HCOJ). The HCOJ is a 15-member body chaired by the head of the Supreme Court. Eight members are elected from the Conference of Judges, upon nomination from the Supreme Court chair. Two members are nominated by the president, and three members are MPs, at least one of whom must not be from the ruling party. The last member is the Chair of the Parliamentary Legal Affairs Committee (Georgian Constitution, Article 86.1).

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

State Department (2009) Human Rights Report: Georgia (http://www.state.gov/g/drl/rls/hrrpt/2009/eur/136032.htm), accessed 26 March, 2010 34 Interview with Tamar Chugoshvili, GYLA Parliamentary Secretary, 18 March, 2010 35 Interview with Besik Begianishvili, Head of the Bureau of the Chair of the Supreme Council, 18 March, 2010 36 http://www.state.gov/g/drl/rls/hrrpt/2009/eur/136032.htm, checked 26 March, 2010

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Full 2

To what extent does each judge have the basic tools necessary to do his or her job, e.g., sufficient office space, adequate Ensure support staff, independence word of judiciary To what extent are there processing legal provisions in placea equipment, requiring thatlaw thelibrary selection and promotion of judges be (whether based on merit? physical or online), etc?

SCORE (Judicial Resources)

6/8 (75%)

Partial 1

Notes and sources None 0 Selection of Judges is regulated by the “Organic Law on the Common were Courts of Georgia”, adopted 4 December 2009. This new Interviewees unanimous in their recognition that the situation in Organic replaced previous laws onimproved commonincourts, GeorgianLaw court buildings has radically recentSupreme years. 37 Court and the social protection of judges of these courts. All new candidates, having passed theequipment judicial qualification must Judges are entitled to request from courtexamination, Chairs. Ongoing complete a 14-month training course at thehas High Schoolinofmuch Justice rehabilitation throughout Georgia’s courts resulted better (HSOJ). After completing the course, candidates who achieve the by court conditions for most judges. According to information provided highest grades are interviewed by a panel composed of members of the Supreme Court, all court buildings will be fully refurbished by the the Council endHigh of this year. 38of Justice (Law on HSOJ, Art. 19). This interview process is not regulated by law, but according to a representative from the court it isjudges sometimes attended by assistants independent Theappellate law requires that are provided with andexperts, court 4 as well as international legal specialists. secretaries (Law on Common Courts, Art. 75). All judges, judges’ assistants and courtroom secretaries throughout the country have Selection and promotion of buildings ordinary judges is overseen the Higher personal computers. Court have access to the by Internet. Council of Justice (HCOJ). The HCOJ is a 15-member body chaired by the head the Supreme Court. Eightfindings, members are elected According toof American Bar Association judges have from the Conference of staff Judges, from the adequate support and upon basicnomination tools to perform theirSupreme duties. 39Court chair. Two members are nominated by the president, and three members are MPs, at least one of whom must not be from the ruling party. The last member is the Chair of the Parliamentary Legal Affairs Committee (Georgian Constitution, Article 86.1).

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

Interview with Besik Begianashvili, Head of the Bureau of the Chair of the Supreme Council, 18 March 2010; interview with Tamar Chugoshvili, GYLA Parliamentary Secretary, 18 March, 2010; Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010; Interview with Tamar Zubashvili, Deputy Head of Justice Department, Georgian Ombudsman’s Office, conducted 22 March,2010, interview with Chiora Taktakishvili, Deputy Chair of Parliamentary Legal Affairs Committee, 23 March, 2010 38 Interview with Besik Begianishvili, Head of the Bureau of the Chair of the Supreme Council, 18 March, 2010 39 American Bar Association Judicial Reform Index 2008, (http://www.abanet.org/rol/publications/georgia_judicial_reform_index_volume_ii_2009_en.pdf ), p55, p 33

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Full 2

To what extent are courtroom proceedings required by law to be open to the public and the media?

Improve transparency of judiciary Ensure independence of judiciary To what extent there In practice, are are courtroom legal provisions in place proceedings generally open requiring that the selection to, and can accommodate, and promotion of judges the public and the media?be based on merit? To what extent does the law require that judicial decisions be published and open to public scrutiny?

Partial 1

1 1

judicial Judge decisions Interview with IrakliAre Adeishvili, of the Appellate Court, 18 March, 2010 published?

Notes and sources None 0 Selection of Judges is regulated byby thelaw” “Organic Lawinvolving on Except in “circumstances provided (in cases state or the Commonsecrets, Courts underage of Georgia”, adopted 4adoption, December 2009. This new commercial defendants, etc.), court Organic Law are replaced previous laws on common proceedings required to be open to the public courts, and theSupreme media Court andLaw the on social protection of judges of these courts. newclose (Organic Common Courts, Art. 13.1-13.3). JudgesAll may candidates, having the judicial qualification examination, must the courtroom to thepassed public and the media during a trial if he or she complete 14-month training coursewill at the High thinks anyaforthcoming proceedings meet the School criteria of forJustice a closed (HSOJ). After completing the course, candidates who achieve the trial. highest grades are interviewed by a panel composed of members of the High Councilequipment of Justice (Law on HSOJ, 19). This interview Video recording is forbidden fromArt. courtrooms by law, processwhen is notit regulated law, but(Organic according to aonrepresentative from except is done bybythe court Law Common Courts, the appellate court it is sometimes attended by independent experts, Art. 13.4). Audio recording equipment is allowed at judges’ discretion. 4 as well as international legal specialists.can accommodate both the According to interviewees, courtrooms public and the media, though the absence of television cameras Selection and promotion of ordinary overseen by the Higher creates particular difficulties, as mostjudges of the is citizenry relies upon Council offor Justice The HCOJ isGYLA’s a 15-member body chaired television news.(HCOJ). Tamar Chugoshvili, Parliamentary by the headargues of the that Supreme Court. Eightofmembers are elected from Secretary, the lack of video court proceedings has the Conference of Judges, upon nomination 40 from the Supreme Court significantly hampered judicial transparency. chair. Two arelaw nominated the president,Code, and three Judges aremembers required by (Generalby Administrative Ch. 3) to members MPs, atpublicly least one of whom must not be trials, from the ruling read their are judgments in open court. In closed judges party.their Thejudgments last member is to thethe Chair of the Parliamentary Legal Affairs read only parties involved. Committee (Georgian Constitution, Article 86.1). Written copies of judgments are sent to the parties but are not made available publicly. However, because judgments are read in open court, the American Bar Association considers they are essentially a matter of public record. 41 In addition, parties to a case have the right to review case materials and judgments 42 (Civil Procedure Code, Arts. 83.1, 259; Criminal Procedure Code, Arts. 76.1, 76.3, 514). Parties 9 appealing court decisions have the right to view the judgments of the courts of lower instance online through a password-protected system. All Supreme Court decisions are published and available on the Internet.

Interview with Tamar Chugoshvili, GYLA Parliamentary Secretary, 18 March, 2010 American Bar Association Judicial Reform Index 2008, (http://www.abanet.org/rol/publications/georgia_judicial_reform_index_volume_ii_2009_en.pdf )p52 42 Interview with Chiora Taktakishvili, Deputy Chair of Parliamentary Legal Affairs Committee, 23 March, 2010 41

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

Full 2

To what extent does the law require that a transcript of courtroom proceedings be maintained and made available to the public?

Ensure independence of judiciary To extentorare there Is awhat transcript some legal in place other provisions reliable record of requiring the selection courtroomthat proceedings and promotion judges be maintained andofavailable to based on merit? the public?

SCORE (Transparency)

Partial 1

1 1

8/12 (67%)

Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

Notes and sources None 0 Selection of Judges regulated thebe “Organic Law on The law requires thatisminutes of by trials taken, rather than a full the Common Courts of Georgia”, 4 December 2009. This new transcript (Civil Procedures Code,adopted Arts. 287-291; Criminal Procedures Organic Law54, replaced previous lawsGeneral on common courts, Supreme Code, Arts. 454-455, 545, 573; Administrative Code, Art. Court and the social protection of judges of these courts. All new 112). candidates, having passed the judicial qualification examination, must complete these a 14-month training course at the High School of Justice Although minutes are not automatically published, they are (HSOJ). After completing the course, candidates who achieve the considered public information under the General Administrative Code highest gradesare areatinterviewed by atopanel composed members and therefore least available the public upon of request (Genof the High Council Justice Admin Code, Artsof10, 28). (Law on HSOJ, Art. 19). This interview process regulated to bymake law, but a representative from There is is nonot requirement theaccording minutes oftotrials available to the the appellate it is sometimes attended by independent experts, public, exceptcourt in administrative cases. However, copies are available 4 asparties well asinvolved. international legal specialists. to According to a representative of the Appellate Court, audio recordings are made of many trials, which are available to 43 Selection promotion of ordinary judges is overseen by the Higher the partiesand involved on request. Council of Justice (HCOJ). The HCOJ is a 15-member body chaired by the head the Supreme Court. members areLegal elected from According toof Chiora Taktakishvili of Eight the Parliamentary Affairs the Conference of Judges, upon nomination fromdecisions the Supreme Court Committee, Common Courts do not publish their because chair.do Two are nominated by the president, they notmembers currently have the technical capacity. Sheand saidthree that as members courts are MPs, at their least own one websites, of whom must not be from thereadily ruling individual build this material will be party. The last member is the Chair of the Parliamentary Legal Affairs available. Committee (Georgian Constitution, Article 86.1).

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

To what extent are there provisions in place which describe the role, organisation, status and training of enforcement agents, i.e. those responsible for carrying out the enforcement process (e.g. bailiffs, enforcement judges, sheriffs, court Ensure executors and court or independence judicial officers)? Increase the of judiciary effectiveness To what extent are there legal provisions in place of requiring that the selection enforcement In practice, to what extent and promotion of judges be of judicial are enforcement agents based on merit? acts (Am, well trained in enforcement Ge) practices and procedures?

Full 2

Partial 1

Notes and sources None 0 Selection Judges is regulatedofby the “Organic Law on The statusofand responsibilities enforcement officers are regulated thethe Common ofon Georgia”, adopted 4 December 2009. This by Law of Courts Georgia Enforcement Proceedings. Also there arenew Organicregulations Law replaced previous laws onagency common courts, Supreme internal of the enforcement approved by the Court and theMinister social protection of judges of these courts. All new decree of the of Justice. candidates, having passed the judicial qualification examination, must complete a 14-month training course at the High School of Justice (HSOJ). After completing the course, candidates who achieve the highest grades are interviewed by a panel composed of members of the High Council of Justice (Law on HSOJ, Art. 19). This interview process is not regulated by law, but according to a representative from the appellate court it is sometimes attended by independent experts, 4 as well as international legal specialists. There are regular trainings mainly organised by the Training Center of Selection and of ordinary judges is overseen byenforcement the Higher the Ministry of promotion Justice. However, Lasha Maghradze of the Council noted of Justice The HCOJ is a is 15-member agency that (HCOJ). more extensive training necessary.body Thischaired is 44 by the head of the Supreme Court. Eight members are elected from Together with GTZ, Swedish International planned for 2010-2011. the Conference of Judges, Agency upon nomination from the Supreme Court Development Cooperation (SIDA), British Council, UNDP and chair. Two members are nominated by extensive the president, andprogram three put the European Commission, there is an training memberstoare MPs, at least one of whom not be from the ruling together train enforcement agencies in must management issues, party. The lastinmember is the Chair of theofParliamentary Legaland Affairs amendments legislation, management conflict situations Committee (Georgian other relevant topics. Constitution, Article 86.1). There is no specific code written for enforcement agencies. However, there is a plan to develop one in 2011. Also, the general code of conduct for public employees applies to enforcement agents.

To what extent are enforcement agents bound by ethical and professional 1 standards as outlined in a 4 codeJudge of ethics? Interview with Irakliwritten Adeishvili, of the Appellate Court, 18 March, 2010 To what extent is this code followed in practice? SCORE (Enforcement)

N/A

4/6 (67%)

Interview with Lasha Maghradze, Deputy Chairman of the National Enforcement Agency, 26 March, 2010

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening the Judiciary - continued Scale of compliance Sub-objective

Indicators

To what extent are judges and other relevant actors governed by written codes Establishment of ethics which cover issues of a code of such as conflicts of interest, Ensure ethics for inappropriate political independence prosecutors and activity etc? of judiciary To what extent are there judges (Am, legal provisions in place Ge) requiring that the selection and promotion of judges be based on merit? To what extent is this code of ethics applied in practice?

Full 2

Partial 1

Notes and sources None 0 Selection of prosecutors Judges is regulated by theby “Organic on Rules, which Judges and are governed JudicialLaw Ethics theoverseen CommonbyCourts of Georgia”, adopted 4 December 2009. This new is the HCOJ. Organic Law replaced previous laws on common courts, Supreme Court and the social protection judges these courts. All newrules, According to the ABA, the ethicsofrules, in of addition to procedural candidates, having passed theconflict judicialof qualification examination, address major issues such as interests and ex parte must complete a 14-month training course attothe High School of to Justice communications. Judges are required undergo trainings (HSOJ). After completing familiarise themselves withthe thecourse, rules. 45candidates who achieve the highest grades are interviewed by a panel composed of members of the High Council of Justiceany (Law on HSOJ, interviewwould According to Taktakishvili, future law onArt. the19). legalThis profession process is notcodes regulated by law,applicable but according a representative likely include of conduct to alltorelevant actors. 46 from the appellate court it is sometimes attended by independent experts, 4 as well international legal specialists. The Lawason Rules of Communication with Common Court Judges, adopted in 2007, specifically addressed ex parte communication. The Selection andparty promotion of ordinary judges is overseen theaHigher law bans any involved in a case, person concernedbywith case Council of Justice (HCOJ). Thethe HCOJ is aJudges 15-member or civil servant from contacting judge. must body informchaired their by the head of the Supreme Court. Eight members areaelected from superiors of any attempt to make such contact or face fine and the Conference of Judges, upon nomination from the Supreme Court disciplinary procedures. chair. Two members are nominated by the president, and three members are MPs, at least one of whom must not be from the ruling According GYLA, there have beenofproceedings launched as Affairs a result party. The to last member is the Chair the Parliamentary Legal of the code (Georgian being breached, but these have86.1). been rare. 47 Committee Constitution, Article

SCORE (Code of 3/4 (75%) 4 Ethics) Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010 TOTAL SCORE 43/62 (69%) (Judicial Reform)

American Bar Association Judicial Reform Index 2008, (http://www.abanet.org/rol/publications/georgia_judicial_reform_index_volume_ii_2009_en.pdf )p 43 Interview with Chiora Taktakishvili, Deputy Chair of Parliamentary Legal Affairs Committee, 23 March, 2010 47 Interview with Giorgi Burjanadze, GYLA Lawyer, 18 March, 2010 46

Findings: Implementation of Governance & Anti-Corruption Commitments of the EU – Georgia Action Plan Objective 1: Strengthening Judiciary Objective 2: Civil Service/Publicthe Sector Reform Sub-objective Sub-objective

Independence, Accountability and Transparency ofEnsure Civil Service independence of judiciary

Question Indicators

To what extent are there regulations which prevent undue political interference in the appointment and promotion of civil servants? To what extent are there legal provisions in place requiring that the selection and promotion of judges be based on merit?

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

To what extent are recruitment and promotion regulations effective in preventing political interference (e.g. are 1 selection committees able to work without political 4 interference)? Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010

Notesand andsources sources Notes None None 00

Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France

Indicators Question

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

Notesand andsources sources Notes None None 00

The Civil some of “Organic the rules onCouncil the That said,Service inofaJudges pollCode of civil servants conducted by the of Selection is provides regulated by the Law on recruitment and of civil Theadopted detailed on recruitment are Europe, 74% said thatservants. human resource decisions had been made innew thepromotion Common Courts of Georgia”, 4rules December 2009. This explained under the 2009 Presidential and 47 on accordance with the February stated policy and had been Orders done so46 transparently. Organic Law replaced previous laws on common courts, Supreme 49 Approval ofsaid the social Rules forsecure Holding for Recruitment and Two-thirds they felt inofCompetition their jobs. Court and protection judges of these courts. All new Appointment on Positions in Civil Service, and on Approval of There is no restriction to civil servants being members of political candidates, having passed the judicial qualification examination, must Appraisal of Civil Servants, respectively. However, neither the parties. In Rules fact, Irakli Kotetishvili, Head of the High Civil Service Bureau, complete a 14-month training course at School of Justice To what extent are there code nor membership the orders include legal entities in public law as said that of political parties can be a good thing forthe civil (HSOJ). After completing the course, candidates who(such achieve the Independence, regulations which prevent 50 public procurement agency, public registry, civil registry,ofetc.) or anyof servants. highest grades are interviewed by a panel composed members Accountability undue political position that relatesoftoJustice secret(Law information. the High Council on HSOJ, Art. 19). This interview and interference in the 1 In the Civil Service Code, the reference to party to activities is simply from process is not regulated by law, but according a representative Transparency appointment and The rules of recruitment call fornot selection based on afor vacancy job Ensure limited to: “State servants may use his/her work party activities” the appellate court it is sometimes attended by independent experts, of Civil Service promotion of civil 4 description. All vacancieslegal and the results of all selections should be independence (Article 61). as well as international specialists. servants? published. Appraisal is undertaken by a commission comprised of of judiciary To what extent are there 1 people chosen the institution question. Mr. Kotetishvili further points outinthat there are provisions the Selection and by promotion of ordinary judges is also overseen by theinHigher legal provisions in place election and party financing laws that government Councilcode of Justice (HCOJ). The HCOJ is apreclude 15-member body chaired requiring that the selection A head deputy head of the institution is usually theare chairman the officials from campaigning at particular times. by the or head of the Supreme Court. Eight members electedoffrom and promotion of judges be commission (Civilof Service Code, 85), and from he can the other the Conference Judges, uponArt. nomination theselect Supreme Court based on merit? members of the commission rules bypresident, which it isand governed. To what extent are there 1 However, Article 76, Part ofand the the Unified Election Code (UEC) allows chair. Two members are1nominated by the three comprehensive To what extent are According toare atorecent assessment theactivities OECD Anti-Corruption civil servants participate in one campaign while members MPs, at least ofbywhom must not be they from are the not ruling recruitment regarding and promotion Network (ACN), the discretionary license allowed to ministers for regulations fulfilling their official duties. is no definition of what should party. The last member is There the Chair of clear the Parliamentary Legal Affairs regulations effective appointment and promotions considerable, which can lead “to the political activities of in beCommittee regarded as “fulfilling their is official duties”. (Georgian Constitution, Article 86.1). 48 preventing politisation of public administration”. existing civilpolitical servants (e.g. interference political party(e.g. are Also, Article 76 of the UEC allows use of state-funded buildings, 1 selection committees able membership, expression communication means and vehicles, provided that equal access is to political work without political of views)? given to all election subjects. This is seen as a privilege to the ruling 4 interference)? party. In regard to these provisions, the OSCE/ODIHR said in its final Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010 report on the 2008 parliamentary elections: “While the UEC is 9 generally conducive to conducting democratic elections, it contains 48 newCorruption provisions which created anRound unequal playing Georgia field in favour the Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Action Plan: Second Monitoring, OECD of Paris, ruling party, the United National Movement (UNM), especially with France

49 Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France 50 Interview with the Irakli Kotetishvili, Head of the Civil Service Bureau, 22 March, 2010

Independence, Accountability and Transparency Ensure of Civil Service independence of judiciary

Indicators Question

To what extent are there regulations which prevent undue political To what extent are these interference in the regulations enforced? appointment and promotion of civil servants? To what extent are there legal provisions in place requiring that the selection and promotion of judges be based on merit?

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

Notesand andsources sources Notes None None 00

0 1

To what extent are recruitment and promotion regulations effective in preventing political To what extent areare there 1 interference (e.g. 1 legal requirements forable the selection committees disclosure/declaration to work without politicalof 4 personal assets, interference)? Interview with Irakli Adeishvili, Judge income, of the Appellate Court, 18 March, 2010 financial interests for public sector employees?

The Civil Codeis provides some of the rules Law onbythe recruitment regard to Service administrative resources and campaigning “political Selection of Judges regulated by the “Organic on 51 and of civil servants. Theadopted detailed4rules on recruitment arenew officials”. thepromotion Common Courts of Georgia”, December 2009. This explained under the February 2009 Presidential Orders 46Supreme and 47 on Organic Law replaced previous laws on common courts, Approval of the social Rules protection for HoldingofCompetition for Recruitment and Court and judges of these courts. All new Appointment Positions in Civil Service, and on Approval of candidates, on having passed the judicial qualification examination, must Appraisal Rules of Civil training Servants, respectively. However, neither the complete a 14-month course at the High School of Justice Transparency International Georgia has documented the involvement code nor the orders includethe legal entities in public law as the 52 After completing course, who(such achieve the Thecandidates activity documented by TI of(HSOJ). civil servants in electioneering. public procurement agency, public registry, civil registry,ofetc.) or anyof highest grades are interviewed by a panel composed members Georgia includes presenting ruling party’s majoritarian candidates, position that relatesoftoJustice secret(Law information. the High Council on HSOJ, Art.the 19). Thisparty’s interview agitating for the ruling party and accompanying ruling process is not regulated by law, but according to a representative from majoritarian candidates during their campaign events. As for The rules of recruitment call for selection based on a vacancy experts, job the appellate court it is sometimes attended by independent enforcement, since the regulations are fairly 4 minimal, there has been description. All vacancieslegal and the results of all selections should be as well international specialists. little legalas recourse to enforce them. published. Appraisal is undertaken by a commission comprised of people chosen the institution in question. Selection and by promotion of ordinary judges is overseen by the Higher Currently there are two levels of asset declaration required for public Council of Justice (HCOJ). The HCOJ is a 15-member body chaired officials. An income declaration is required annually from anyone in Aby head deputy head of the institution is usually theare chairman the the or head of the Supreme Court. Eight members electedoffrom civil service, though this is undertaken mainly for tax purposes. A commission (Civilof Service Code, 85), and from he can the other the Conference Judges, uponArt. nomination theselect Supreme Court broader asset declaration is undertaken by any high official, and the members of members the commission and the rules bypresident, which it isand governed. chair. Two are nominated by the three number of people undertaking this has expanded. 53 According a recent assessment the OECD Anti-Corruption memberstoare MPs, at least one ofbywhom must not be from the ruling Network (ACN), the discretionary license allowed to ministers forAffairs party. The last member is the Chair of the Parliamentary Legal However, an assessment by TI Georgia of the content of the material appointment promotions is considerable, which can lead “to the Committee and (Georgian Constitution, Article 86.1). showed that it is partially and inconsistently fulfilled and of little 48 politisation of public administration”. effectiveness. The main reason for this is that no government agency is responsible for checking the material.

The government says that taking into account the number of civil servants who are obliged to submit the financial and asset 9 declarations, it would be impossible for the Civil Service Bureau to verify all of the declarations it receives. Therefore, it sees its role as 48 Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Monitoring, Georgia OECD making sure the declarations areRound publicly accessible (it posts theParis, France scanned version of all declarations on its website) so that any

OSCE/ODIHR (9 September 2008), Election Observation Mission Final Report, Parliamentary Elections, 21 May 2008 For example, TI Georgia, (December 2007), Monitoring the Use of Administrative Resources for Election Campaign, Tbilisi, Georgia, p 9 53 Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France 52

Indicators Question

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

Notesand andsources sources Notes None None 00

The Civil Service Codeis provides some of “Organic the rules onproblem the interested individual/group can scrutinise them. The with this Selection of Judges regulated by the Law on recruitment and of civiltoservants. Theadopted on recruitment arenew approach, according Georgia, isdetailed that any interested thepromotion Common Courts ofTIGeorgia”, 4rules December 2009. This explained under the February Presidential Orders 46Supreme and 47 on individual/group does notprevious have2009 access to all the information it would Organic Law replaced laws on common courts, 54 Approval of thethe Rules for Holding for Recruitment and need to and verify declarations. Court social protection ofCompetition judges of these courts. All new Appointment Positions in Civil Service, and on Approval of candidates, on having passed the judicial qualification examination, must Appraisal Rules of Civil Servants, respectively. However, neither the complete a 14-month training course at the High School of Justice While declarations of assets are a requirement, particularly for high code northere the orders includeof legal entities in as the (HSOJ). After the course, candidates who(such achieve the officials, iscompleting no review the content of public these law declarations, except public procurement agency, public registry, civil registry, etc.) or anyof highest grades are interviewed by a panel composed of members as part of a criminal prosecution. position that relatesoftoJustice secret(Law information. the High Council on HSOJ, Art. 19). This interview process is not regulated by law, but according to a representative from The of recruitment for selection based a vacancy experts, job therules appellate court it is call sometimes attended byon independent 4 description. All vacancieslegal and the results of all selections should be as well as international specialists. published. Appraisal is undertaken a commission comprised of a The Civil Service Code requires thatbyunder normal circumstances people chosen by the institution in question. Selection and promotion of ordinary judges is overseen by the Higher state employee must be given a reason for his/her dismissal. Council of Justice (HCOJ). The HCOJ is a 15-member body chaired A head deputy head of civil the institution is usually chairman the by the or head ofinthe Supreme Court. members electedof from However, even law the serviceEight code allows the forare dismissal due to commission (Civil Service Code, Art. 85), and he can select the other the Conference of Judges, upon nomination from the Supreme Court downsizing or dismissal due to “liquidation of the agency”. Therefore, members ofthe thelaw commission and flexibility the rules bypresident, which isand governed. chair. Two members are nominated by the three of even within considerable exists for itthe dismissal According to a recent assessment by the OECD Anti-Corruption members are MPs, at least one of whom must not be from the ruling civil servants. Network (ACN), the discretionary license allowed to ministers forAffairs party. The last member is the Chair of the Parliamentary Legal appointment promotions is considerable, which can lead “to the Committee (Georgian Constitution, Article 86.1). According to and Khatuna Gogorishvili, Chairperson of the Parliamentary 48 politisation Committee of of public Rules administration”. and Procedures, in practice the law offers no

To what extent does are there disclosure ofwhich personal regulations prevent assets,political income, financial undue 1 interests of public interference in the sector 1 employees occur appointment and in practice? of civil promotion servants? To what extent are there 1 To what extent are there legal provisions in place legal regulations requiring that the selection protecting civil servants and promotion of judges be 1 against arbitrary based on merit? dismissals or political interference? To what extent are recruitment and promotion regulations effective in preventing In practice, political are the interference (e.g. are civil regulations protecting protection, as people are often simply asked for their resignation and 1 0 selection committees servants from arbitraryable give it. Almost all of the people who have left the civil sector in recent to work without political dismissal effective? years, she argues, have done so by their own request. 55 4 interference)? Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010 SCORE 9 (Independence, Accountability 6/16 (38%) 48 Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, and France Transparency) Independence, Accountability and Transparency Ensure of Civil Service independence of judiciary

54 Original research on this subject provided by TI Georgia (February 2007), Assessment of the Organic Law of Georgia on Conflict of Interest and Corruption. Tbilisi, Georgia 55 Interview with Khatuna Gogorishvili, Chairperson, Parliamentary Committee of Rules and Procedures, 23 March, 2010

Indicators Question

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

Notesand andsources sources Notes None None 00

The Civil Service Codeis provides some of “Organic the rules on the recruitment There is no law regulating civil service salaries (unlike in judiciary). Selection of Judges regulated by the Law onthe and of civil servants. Theadopted detailed on Salaries are negotiated ministers and approved by recruitment the2009. officeThis ofare the thepromotion Common Courts ofby Georgia”, 4rules December new explained under thetherefore February 2009 Presidential Orders 46Supreme and president. Salaries vary considerably from ministry to 47 on Organic Law replaced previous laws on common courts, Approval of the Rules forcentralised HoldingofCompetition forcomparability Recruitment and ministry, and there is no oversight of across Court and social protection judges of these courts. All new Appointment Positions in Civil Service, and on Approval of ministries. candidates, on having passed the judicial qualification examination, must Appraisal of Civil training Servants, respectively. However, the completeRules a 14-month course at the High School neither of Justice code nor the orders include legal entities in ministries public law (such as the That said, partly through downsizing of candidates the since 2003, (HSOJ). After completing the course, who achieve the public procurement public civil registry, or any salaries have improved significantly recent years, though they areof highest grades areagency, interviewed byregistry, ainpanel composed ofetc.) members position that relates toJustice secret(Law information. usually lower than of the equivalent positions in Art. the 19). private sector. In the High Council on HSOJ, This interview Parliament, rangeby from (US $294) to GEL 2000 (US process is salaries not regulated law,GEL but 500 according to a representative from 56 have suggested that GEL The of month. recruitment fordiscussions selection based a vacancy job $1,176) per therules appellate court itInformal is call sometimes attended byon independent experts, 4 500 would alsolegal be fairly average for the lowest should rank inbe a description. All vacancies and the results of all selections as (US well $294) as international specialists. published. Appraisal is department undertaken receiving by a commission comprised ministry, with heads of around GEL 2,000 of (US $1,176) andand deputy ministers receiving as much as GEL 4,000 people chosen by the institution in question. Selection promotion of ordinary judges is overseen by the(US Higher 57 $1,352). Council of Justice (HCOJ). The HCOJ is a 15-member body chaired A head or deputy head of the institution is usually theare chairman offrom the There no legal provisions that stipulate the regularity of training or by theare head of the Supreme Court. Eight members elected commission (Civil Service Code, 85), and from he can select the other the of it. of However, there are considerable opportunities for thestructure Conference Judges, uponArt. nomination the Supreme Court members of is thefinanced commission and the rules bypresident, which it isand governed. training that and supported the government inthree different chair. Two members are nominated bybythe According a recent assessment the OECD Anti-Corruption ministries. These range from one day-long courses two-year, membersto are MPs, at least ofbywhom musttonot be fromfunded, the ruling Network (ACN), the discretionary license allowed to ministers forAffairs foreign degrees. the Ministry of Education, party. master’s The last member isFor theexample, Chair of in the Parliamentary Legal appointment and promotions is considerable, which can lead “tointhe the Soros Foundation has financed two-year master’s degrees Committee (Georgian Constitution, Article 86.1). 48 politisation of public administration”. education from Harvard University for qualifying senior civil servants. In the absence of any central planning, the level of training offered or received varies considerably across the ministries. There is no guarantee of training, and opportunities often depend on the determination and luck of individuals in finding opportunities.

To what extent are wages in the public sector competitive enough to To what extent are there sustain an appropriate Independence, regulations which prevent Human standard of living for 1 Accountability undue political Resources public sector employees, and interference in the 1 in accordance with the Transparency appointment and country’s economic Ensure of Civil Service promotion of civil independence situation? servants? of judiciary To what extent are there 1 legal provisions in place requiring that the selection To extent of arejudges there be andwhat promotion legal basedprovisions on merit?to ensure that civil servants are To what extent regularly trainedare to 1 recruitment promotion improve theirand technical regulations effective in and managerial preventing political competencies? interference (e.g. are 1 selection committees able to without In work practice, is it political the case 4 interference)? that civil servants are Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010 regularly trained to 9 1 improve their technical That said, considerable training is also offered by international 48 and managerial organisations underPlan: varying technical the Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Second Roundassistance Monitoring, efforts. GeorgiaAmong OECD Paris, competencies? more extensive programs, the Georgian Foundation for Strategic and France International Studies has offered public policy training night courses 27 across the civil service since 2003; USAID has just concluded a three56 57

Interview with Khatuna Gogorishvili, Chairperson, Parliamentary Committee of Rules and Procedures, 23 March, 2010 Discussions with employees of a range of ministries

Indicators Question

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

To what extent are there regulations which prevent undue To whatpolitical extent are there interference the that 1 provisions toinensure appointment and civil servants are regularly promotion of civil trained about ethics, 1 servants? integrity codes of To what and extent are there 1 conduct in the public legal provisions in place sector? requiring that the selection In practice, is it of thejudges case be and promotion that civil based onservants merit? are regularly trained about 1 ethics, and codes To whatintegrity extent are of conduct inand thepromotion public recruitment sector? regulations effective in SCORE preventing political 5/10 (50%) (Human interference (e.g. are 1 Resources) selection committees able to work without political 4 interference)? Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010 Independence, Accountability and Transparency Ensure of Civil Service independence of judiciary

Notesand andsources sources Notes None None 00

The Civil Code some of theworked rules Law on the recruitment year Civil Service Service Development Project that with Selection of Judges is provides regulated by the “Organic onmultiple and of Theadopted detailed recruitment arenew ministries; and Courts thecivil EU,servants. UNDP, World Bankon and many thepromotion Common ofUSAID, Georgia”, 4rules December 2009.national This explained under theoffered February 2009 Presidential Orders 46Supreme and on governments have technical assistance and training that47 has Organic Law replaced previous laws on common courts, Approval of theaspect Rules protection for Holding for Recruitment and involved every of the Georgian government, as wellAll as new offering Court and social ofCompetition judges of these courts. Appointment on Positions in Civil Service, and on Approval of many aimed at the Georgian Parliament. candidates, having passed the judicial qualification examination, must Appraisal of Civil training Servants, respectively. However, the completeRules a 14-month course at the High School neither of Justice code nor the orders includethe legal entities in public law as the (HSOJ). After completing course, candidates who(such achieve the public procurement public registry,ofetc.) or anyof highest grades areagency, interviewed byregistry, a panel civil composed members The Service Code does (Law include chapter on19). the This Codeinterview of position that relates secret information. theCivil High Council oftoJustice onaHSOJ, Art. Conduct for Civil Servants (Chapter VI), however this does not amount process is not regulated by law, but according to a representative from to a unified code of ethics since the ethical requirements of different The of recruitment for selection based a vacancy experts, job therules appellate court it is call sometimes attended byon independent 4 to Irakli Kotetishvili, the ministries may significantly, according description. All differ vacancies and the results of all selections should be as well as international legal specialists. 58 Head of theAppraisal Civil Service Bureau. by a commission comprised of published. is undertaken people chosen the institution in question. Selection and by promotion of ordinary judges is overseen by the Higher Council of Justice (HCOJ). The HCOJ is a 15-member body chaired According to aofrecent OECDACN report, biggest problem with A head deputy head of the institution isthe usually theare chairman offrom the by the or head the Supreme Court. Eight members elected ethical standards isService the lack of anArt. implementation process, and a commission (Civilof Code, 85), and from he can the as other the Conference Judges, upon nomination theselect Supreme Court 59 result there is no coordinated training on ethics in the civil service. members of members the commission and the rules bypresident, which it isand governed. chair. Two are nominated by the three According a recent assessment the OECD Anti-Corruption memberstoare MPs, at least one ofbywhom must not be from the ruling Network (ACN), the discretionary license allowed to ministers forAffairs party. The last member is the Chair of the Parliamentary Legal appointment promotions is considerable, which can lead “to the Committee and (Georgian Constitution, Article 86.1). 48 politisation of public administration”.

Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France

Interview with Irakli Kotetishvili, Head of the Civil Service Bureau, 22 March, 2010 Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France 59

Indicators Question

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

To what extent are there To what extent are there legal provisions in place to Independence, regulations which prevent 2 protect whistleblowers in Accountability undue political the public sector? and interference in the 1 Transparency appointment and Ensure of Civil Service promotion of civil independence servants? of judiciary To what extent are there 1 legal provisions in place requiring that the selection To what extent are and promotion of judges be Integrity whistleblowers in the 1 based on merit? public sector protected in practice? To what extent are recruitment andare promotion To what extent regulations effective in of comprehensive codes preventing political conduct regarding interference (e.g. arerules conflicts of interest, 1 selection committees able 2 on gifts and hospitality, to work without political post-employment 4 interference)? restrictions etc forofpublic Interview with Irakli Adeishvili, Judge the Appellate Court, 18 March, 2010 sector employees in place?

Notesand andsources sources Notes None None 00

The Civil Service Code some of “Organic the on the recruitment Legal provisions to protect whistleblowers arerules included in the Law on Selection of Judges is provides regulated by the Law on and of civil The detailed on recruitment Conflict of Interest andservants. in Civil Service (Section 20). This Asarenew thepromotion Common Courts ofCorruption Georgia”, adopted 4rules December 2009. explained under the February Presidential 46that and 47 on long as whistleblowing isprevious done2009 honestly, law Orders requires Organic Law replaced laws onthe common courts, Supreme Approval of the may Rules forbeHolding for Recruitment and whistleblowers not subject to any criminal, civil, administrative Court and social protection ofCompetition judges of these courts. All new Appointment Positions in Civil Service, and on Approval of orcandidates, disciplinaryon sanctions. having passed the judicial qualification examination, must Appraisal of Civil training Servants, respectively. However, the completeRules a 14-month course at the High School neither of Justice code nor the orders legal entities in public law (such as the In(HSOJ). March 2009 acompleting newinclude amendment was passed on the of After the course, candidates whoprotection achieve the public procurement public civil registry, or any whistleblowers. prohibits exerting pressure on whistleblowers orof highest gradesThis areagency, interviewed byregistry, a panel composed ofetc.) members position that secret information. dismissing orrelates temporarily discharging them from positions. In the High Council oftoJustice (Law on HSOJ, Art. their 19). This interview exceptional whistleblowers canaccording request special protection. from process is cases, not regulated by law, but to a representative 7 thatattended the based identity ofaavacancy whistleblower The call for selection job Section 2 of recruitment Article therules appellate court20 it isstipulates sometimes byon independent experts, 4 and witness remain secret to the person about whom the be description. Allmay vacancies and the results of all selections should as a well as international legal specialists. published. Appraisal is undertaken whistleblower revealed information.by a commission comprised of people chosen the institution in question. Selection and by promotion of ordinary judges is overseen by the Higher The OECD analysis of this was largelybody based on Council of ACN Justice (HCOJ). Theissue, HCOJwhich is a 15-member chaired A head deputy head of the institution usually theare chairman offrom the government interviews, suggests thatEight noisinformation was provided by the or head of the Supreme Court. members elected commission (Civil Service Code, 85),protection and from he can select the other about internal awareness-raising on the of the Conference of Judges, uponArt. nomination thewhistleblowers Supreme Court 60 members of members the commission and the rules bypresident, which it isand governed. and no evidence was offered to demonstrate its effectiveness. chair. Two are nominated by the three According a recent assessment the OECD Anti-Corruption memberstoare MPs, at least one ofbywhom must not be from the ruling Network (ACN), the discretionary license allowed to ministers for party. The member is the are Chair of out the Parliamentary Legal Affairs The rules onlast conflict of interest laid in the Civil Service Code appointment and promotions is Law considerable, which can lead CommitteeArticle (Georgian Constitution, Article 86.1). (particularly 73) and the on Conflict of Interest and“to the 48 politisation of Civil public administration”. Corruption in Service. The rules on gifts were clarified by an amendment to the Law on Conflict of Interest and Corruption in June 2009. This details the upper limit for the value of a gift and the exceptions to these rules (such as scholarships and symbolic souvenirs).

There is no formal conduct for the civil service, soOECD issuesParis, Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Actioncode Plan:of Second Round Monitoring, Georgia To what extent are these regarding the implementation of it cannot be judged. France codes of conduct followed 48

in practice?

Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France

Indicators Question

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

5/8 (63%)

To what extent are there regulations which prevent undue political interference in the 1 appointment and promotion of civil servants? To what extent are there 1 legal provisions in place requiring that the selection and promotion of judges be Public based on merit? Procurement To what extent do public 1 To what extent are procurement regulations recruitment andopen promotion exist requiring regulations in a competitive effective bidding as preventing general rulepolitical with interference (e.g. are in exceptions regulated 1 selection committees able the law kept to a to work without political minimum? 4 interference)? Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010 Independence, Accountability and Transparency Ensure of Civil Service independence of judiciary

Notesand andsources sources Notes None None 00

The Civil Service Codeis provides of “Organic the rules Law on the Selection of Judges regulatedsome by the on recruitment and of civil servants. Theadopted detailed4rules on recruitment arenew thepromotion Common Courts of Georgia”, December 2009. This explained under the February 2009 Presidential Orders 46Supreme and 47 on Organic Law replaced previous laws on common courts, Approval of the social Rules for Holding for Recruitment and but The procurement process is regulated by the Law on Procurement, Court and protection ofCompetition judges of these courts. All new Appointment Positions in Civil Service, and on of Approval of details of the on process are prescribed in the Rules State candidates, having passed the judicial qualification examination, must Appraisal of Civil training Servants, respectively. However, neither the Procurement approved by the head of the agency. This currently completeRules a 14-month course at the High School of Justice code nor orders include legal entities in public law as the allows forthe three types of procurement: an open tender, aachieve comparative (HSOJ). After completing the course, candidates who(such the public procurement public registry, or anyof price quotation ainterviewed single source negotiation. The main governing highest gradesand areagency, byregistry, a panel civil composed ofetc.) members position that relates secret information. principle ofCouncil the different categories is price, under new law the High oftoJustice (Law on HSOJ,though Art. 19). Thisainterview that is currently the process of coming into effect, ceiling above process is not in regulated by law, but according to a the representative from The of recruitment call for selection based a vacancy job which an open tenderit is hasattended been substantially lowered. therules appellate court is required sometimes byon independent experts, 4 description. All vacancieslegal and the results of all selections should be as well as international specialists. published. Appraisal is Georgian undertaken by a commission In November 2009 the government adoptedcomprised a new lawofon people chosen theThis institution in question. public procurement. will significantly lower the value of Selection and by promotion of ordinary judges is overseen by the Higher procurement that can be awarded with no procedure GEL Council of Justice (HCOJ). The HCOJ is bidding a 15-member bodyfrom chaired A head or deputy head the 2,000 institution is usually chairman the 50,000 $29,410) toof GEL $1,180) forthe goods and offrom by the(US head of the Supreme Court.(US Eight members are elected commission Service Code, 85), and from he the other services, and(Civil fromof GEL 100,000 (US $58,820) to can GEL 5,000 (US the Conference Judges, uponArt. nomination theselect Supreme Court members the commission and the rules bypresident, which it isand governed. $2,940) forofworks. chair. Two members are nominated by the three According a recent assessment the OECD Anti-Corruption memberstoare MPs, at least one ofbywhom must not be from the ruling Network (ACN), the discretionary license allowed to for According tolast GYLA, competitive tenders currently areministers required forAffairs party. The member is the Chair of the Parliamentary Legal appointment and promotions is considerable, can lead “to the most public procurement. However, there is 86.1). a which significant number of Committee (Georgian Constitution, Article 48 61 politisation administration”. For example, open tenders are not necessary exceptions of to public this rule. in emergency situations (such as the 2008 war), or when time pressure is a factor. The State Procurement Agency says that of funds allocated to 680 organisations in 2009, 75% was spent through tenders, 20% on price 9 quotations and 3% on sole source procurement. 62

Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, However, GYLA also argues that the practice allows significant abuse France

to the general idea of “open” tender. For example, it is fairly

61 62

Interview with Tatia Todua, GYLA, 19 March, 2010 Email exchange with the State Procurement Agency, 30 March, 2010

Indicators Question

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

Notesand andsources sources Notes None None 00

The Civil Service some of “Organic the rules onshort the commonplace for Code tenders to be released with a very time window Selection of Judges is provides regulated by the Law on recruitment 63 and promotion of civil servants. Theadopted detailed4rules on recruitment arenew for application. the Common Courts of Georgia”, December 2009. This explained under the February 2009 Presidential Orders 46Supreme and 47 on Organic Law replaced previous laws on common courts, Approval of thethat Rules for Holding forand Recruitment and Courtargued and social ofCompetition judges of these courts. All new GYLA the protection system is open to abuse, although most Appointment on Positions in Civil Service, and on Approval of candidates, having passed the judicial qualification examination, must procurement is done through competitive bidding, the many Appraisal of Civilthe Servants, respectively. However, the completeRules aundermine 14-month training course at the High School64neither of Justice (See exceptions primacy of the tender system. code nor the orders includethe legal entities in public law as the (HSOJ). After completing course, candidates who(such achieve the above.) public procurement public registry,ofetc.) or anyof highest grades areagency, interviewed byregistry, a panel civil composed members position that relatesoftoJustice secret(Law information. the High Council on HSOJ, Art. 19). This interview process not regulated by law, but according to a representative from There is aishighly detailed and adequately elaborated set of rules and The ofgoverning recruitment for selection based a vacancy job 65 therules appellate court it objectivity is call sometimes attended byon independent experts, procedures in the contractor selection process. 4 description. All vacancieslegal and the results of all selections should be as well as international specialists. published. Appraisal is undertaken by a commission comprised of people chosen the institution in question. Selection and by promotion of ordinary judges is overseen by the Higher Council of Justice (HCOJ). The HCOJ is a 15-member body chaired Aby head deputy head of the institution is usually theare chairman the the or head of the Supreme Court. Eight members electedoffrom commission (Civilof Service Code, 85), and from he can the other the Conference Judges, uponArt. nomination theselect Supreme Court members of members the commission and the rules bypresident, which it isand governed. chair. Two are nominated by the three According a recent assessment the OECD Anti-Corruption members are MPs, at oneofofby whom must from the ruling GYLA has to highlighted aleast number problems withnot thebetender process. Network (ACN), the discretionary license allowed toafter ministers forAffairs party.include The lastaltering member is the Chair of for the Parliamentary Legal These selection criteria tenders applications appointment promotions is considerable, which canselection lead “to the Committee (Georgian Constitution, 86.1). have already and been received, and not48Article releasing defined politisation of public administration”. criteria at all. Tender committees are obliged to publish justifications of their decisions, but this often does not happen. 66 Parties can request a review of the procurement process from the head of the state agency involved. On completion of this review, or if a criminal prosecution is possible, the case can be taken to court.

In practice, to what extent is open bidding the general for are public To what rule extent there 1 contracts, with exceptions Independence, regulations which prevent regulated in the law and Accountability undue political kept to a minimum? and interference in the 1 To what extent are there Transparency appointment and Ensure formal rules of Civil Service detailed promotion of civil independence (weighting evaluation servants? of judiciary To whatuse extent are there 1 criteria, of price lists, legal provisions in place certified quality standards, 2 requiringset that selection awards bythe committees, and promotion of judges be etc.) to ensure objectivity based on merit? selection in the contractor process? To what extent are recruitment and promotion To what extent are these regulations effective in 1 rules followed in practice? preventing political interference (e.g. are 1 selection committees able To what extent does the to work without law provide for apolitical 4 interference)? procedure to request a Appellate Court, 18 March, 2010 Interview with Irakli Adeishvili, Judge of the review of and appeal 9 1 against a procurement However, according to a recent OECD ACN report, one of the 48 decision? problems withAction the current systemRound is thatMonitoring, there is currently no Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Plan: Second Georgia OECD Paris, independent review body for assessing complaints. This is also France

Interview with Lina Ghvinianidze, GYLA, 18 March, 2010 Interview with Lina Ghvinianidze, GYLA, 18 March, 2010 65 Interview with Lina Ghvinianidze, GYLA, 18 March, 2010 66 Interview with Tatia Todua, GYLA, 18 March, 2010 64

Indicators Question

To what extent are these review To whatmechanisms extent are there effective in practice? Independence, regulations which prevent Accountability undue political To what extent is there a and interference in the system in place to monitor Transparency appointment and public procurement as well Ensure of Civil Service promotion of civil independence as to detect misconduct servants? and applyextent sanctions of judiciary To what are there accordingly? legal provisions in place requiring that the selection and promotion of judges be based on merit?

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

1 1 1 1

To what extent does are this monitoring recruitmentsystem and promotion 1 function effectively regulations effectiveinin practice? preventing political interference (e.g. are 1 selection committees able to work without political 4 interference)? Interview with Irakli Adeishvili, Judge of the Appellate Court, 18 March, 2010 TOTAL 9/16 (56%) SCORE

Notesand andsources sources Notes None None 00

The Civil to Service Codeis provides some ofby thesetting rules Law on recruitment intended beJudges corrected by the new up the aon complaint Selection of regulated bylaw the “Organic and of civil The detailed on arenew review panel, but sinceservants. law is only just coming intorecruitment effect it is too thepromotion Common Courts ofthe Georgia”, adopted 4rules December 2009. This 67 explained under thenew February 2009 Presidential Orders 46Supreme and 47 on soon to assess the law’s effectiveness. Organic Law replaced previous laws on common courts, Approval of the social Rules protection for HoldingofCompetition for Recruitment and Court and judges of these courts. All new The review process inpassed the in State has been Appointment on Positions Civil Service, andAgency on Approval of in must candidates, having the Procurement judicial qualification examination, operation since 2005. torespectively. the at State Procurement Appraisal of CivilAccording Servants, However, the10 completeRules a 14-month training course the High School neither ofAgency, Justice complaints were received inthe 2009: four candidates were denied, four were code nor the orders include legal entities in public law (such as the (HSOJ). After completing course, who achieve the 68 reviewed and twoare were overturned. public procurement agency, public registry,ofetc.) or anyof highest grades interviewed byregistry, a panel civil composed members The Procurement Agency is responsible for19). monitoring public position that relatesoftoJustice secret information. theState High Council (Law on HSOJ, Art. This interview procurement. Although, asby elaborated above, thetoold law was not from process is not regulated law, but according a representative considered have oversight, asbased it did not an experts, The oftorecruitment for selection aoffer vacancy job therules appellate courtsufficient it is call sometimes attended byon independent 4 independent process for reviewing complaints. In 2009 the State be description. All vacancies and the results of all selections should as well as international legal specialists. Procurement Agencyisbrought nine cases of administrative published. Appraisal undertaken by a commission comprised of infringement to by the court, all which were satisfied. people chosen the institution in question. Selection and promotion of of ordinary judges is overseen by the Higher Only nine of complaints were brought to theisState Procurement Council Justice (HCOJ). The HCOJ a 15-member bodyAgency chaired 69 seems to suggest that in 2009, though were to court. Aby head deputy head oftaken the institution is This usually theare chairman the the or head of 69 the Supreme Court. Eight members electedoffrom the complaint process in the form thefrom SPA isselect not trusted as a commission (Civilof Service Code, Art. 85),ofand he can the other theformal Conference Judges, upon nomination the Supreme Court place changes can affected. members of members the commission and the rules bypresident, which it isand governed. chair.where Two are be nominated by the three According a recent assessment the OECD Anti-Corruption memberstoare MPs, at least one ofbywhom must not be from the ruling Network (ACN), the discretionary license allowed to ministers forAffairs party. The last member is the Chair of the Parliamentary Legal appointment promotions is considerable, which can lead “to the Committee and (Georgian Constitution, Article 86.1). 48 politisation of public administration”.

Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France

Anti Corruption Network for Eastern Europe and Central Asia (Report, April 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France 68 Interview with Tamar Buadze, Head of the Legal Departments, State Procurement Agency, Interviewed 23 March, 2010. 69 Interview with Tatia Todua, GYLA, Interviewed 18 March, 2010

Indicators Question

Scaleofofcompliance compliance Scale Full Full 22

Partial Partial 11

Notesand andsources sources Notes None None 00

The Civil Service Codeis provides of “Organic the rules Law on the Selection of Judges regulatedsome by the on recruitment and of civil servants. Theadopted detailed4rules on recruitment arenew thepromotion Common Courts of Georgia”, December 2009. This explained under the February 2009 Presidential Orders 46Supreme and 47 on 25/50 (50%) Organic Law replaced previous laws on common courts, Approval of the social Rules protection for HoldingofCompetition for Recruitment and Court and judges of these courts. All new Appointment Positions in Civil Service, and on Approval of candidates, on having passed the judicial qualification examination, must Appraisal Rules of Civil training Servants, respectively. However, neither the complete a 14-month course at the High School of Justice To what extent are there code nor the orders includethe legal entities in public law as the (HSOJ). After completing course, candidates who(such achieve the Independence, regulations which prevent public procurement agency, public registry, civil registry,ofetc.) or anyof highest grades are interviewed by a panel composed members Accountability undue political position that relatesoftoJustice secret(Law information. the High Council on HSOJ, Art. 19). This interview Objective 3: GRECO and interference in the 1 Recommendation Implementation process is not regulated by law, but according to a representative from Scale of compliance Transparency appointment and GRECO The rules ofsources recruitment call for selection based a vacancy experts, job Ensure the appellate court it is sometimes attended byon independent Objective Notes and Full Partial None of Civil Service Recommendations promotion of civil 4 description. All vacancieslegal and the results of all selections should be independence as well as international specialists. 2 1 0 servants? published. Appraisal is undertaken a commission comprised of judiciary To what extent are there 1 Has the GRECO The Chamber of Control continues by to be the main external auditofbody people chosen by the institution in question. Selection and promotion of ordinary judges is overseen by the Higher legal provisions in place recommendation on the (i) for the Georgian government. The Chamber of Control operates under Council of Justice (HCOJ). The HCOJ is a 15-member body chairedto requiring that the selection development and a new law adopted in December 2008 that expands its responsibility A head deputy head of audit. the institution is usually theare chairman offrom the by the or head of the Supreme Court. Eight members elected and promotion of be implementation of judges a include local government The law also foresees the introduction commission (Civil Service Code, Art. 85), and he can select the other the Conference of Judges, upon nomination from the Supreme Court based on merit? common methodology and of performance audit, but this provision will enter into force in 2012. members of members the commission and the rules bypresident, which it isand governed. chair. Two are nominated by the three standards for carrying out To what According toare alaw recent assessment the OECD Anti-Corruption membersthe MPs, at least oneinformation ofbywhom must not be from the audits in extent respectare of the However, provides little on methodology andruling Public Sector recruitment and promotion Network (ACN), the and discretionary license allowed to ministers forAffairs party. The last member is the the time Chair of the Parliamentary Legal public sector, bearing in 1 auditing standards, for being the institution continues to Audit regulations effective in of appointment is considerable, which can lead “to the Committee (Georgian Constitution, Article 86.1). mind the particularities combine the and role promotions of limited compliance audit with an investigatory 48 preventing political politisation public administration”. its various components; (ii) component.ofCurrently the Chamber of Control and the Ministry of interference (e.g. strengthening the are auditing Justice are in the process of developing a more detailed methodology 1 selection committees able of local authorities, and (iii) and standards. It is not yet known when this work is going to be to work without political ensuring effective auditing completed. Meanwhile, there has been little movement to develop the 4 interference)? of state enterprises institution or the skill sets necessary to create a fully fledged National Interview with Irakli Adeishvili, Judge of been the Appellate Court, 18 March, 2010 70 implemented? Audit Office. 9 Has the GRECO There have been no major changes in the implementation of the 48 Anti Corruption for Eastern Europe Corruption Action Plan:Act Second Round Monitoring, Georgia OECD Paris, recommendation on and Central Asia (Report, April 2010), Istanbul Anti Freedom of Information (FOIA). Public Sector Network France Access to assessing the 1 27 Information implementation in practice While officially there is certainly a commitment to it in principle, of the provisions of the officials still demonstrate considerable discretion in their interpretation TOTAL SCORE (Public Sector Reform) included.

George Welton (2009) The Role of the International Community in Facilitating Financial Reform in Georgia. Budgetary Planning and Oversight, International Budget Partnership

TOTAL SCORE (Public Sector Reform) included.

25/50 (50%)

Objective 3: GRECO Recommendation Implementation - continued Scale of compliance GRECO Objective Notes and sources Full Partial None Recommendations 2 1 0 Has the GRECO General Administrative The Chamber of Control continues be the externalinaudit body of what information is privileged andtooften failmain to respond a timely recommendation on the (i) Code on access to for the Georgian government. Thefor Chamber of Control manner or acknowledge requests information at all. operates under development information toand ensure that a new law to adopted in DecemberCode 2008of that expands its responsibility According the Administrative Georgia, Chapter 3, in order to implementation the publicâ&#x20AC;&#x2122;s rightoftoaaccess include local government audit. The law also foresees the introduction to obtain public information an interested individual/group must submit common methodology and information is not unduly of performance audit, but this provision will enter into force in 2012. a written request. The applicant is not required to specify purpose for standards limited, andfortocarrying provide out requesting the information. The government agency that receives the audits intorespect of the training those civil However, the respond law provides little information onofmethodology request must to it within a maximum 10 days. Theand 10-day Public Sector public sector, bearingtoin 1 servants designated auditing standards, and for the time being the institution continues to maximum can be used if the requested information is not readily Audit mind the to particularities respond requests forof combine the limitedneeds compliance an investigatory available androle the of agency time toaudit put itwith together. If the its various components; (ii) component. Currently the Chamber of Control and the Ministry of information been information is readily available, then the response must be given strengthening the auditing implemented? Justice are in the process of developing a more detailed methodology immediately. If the government agency does not have the requested of local authorities, and (iii) and standards. It ismust not yet this work going to be information, it still sayknown so in awhen response to theisapplicant. If the ensuring effective auditing completed. Meanwhile, there has been little movement to develop the requested information is within the mandate of a different government of state enterprises been institution or the skill sets necessary to create a fully fledged National agency, then70the agency that received the application must forward it implemented? Audit to the Office. respective agency and inform the applicant about it. If the Has the GRECO There have been no fails major theapplicant implementation of the government agency to changes respond,inthe may appeal to a recommendation on Freedom of Information Public Sector higher body or to a court.Act (FOIA). Access to assessing the 1 In practice it is there common for government agencies 10 days to Information implementation in practice While officially is certainly a commitment to ittoinwait principle, respond even if the information is readily available, to ask applicants of the provisions of the officials still demonstrate considerable discretion in their interpretation to explain why they need the requested information (this is particularly common in regional offices), or to provide incomplete answers to the 70 George Welton (2009) The Role of the International Community in Facilitating Financial Reform in Georgia. Planning and Oversight, International requests, evenBudgetary if the request is very detailed, and then askBudget for another Partnership request for additional information. Some government agencies fail to 37 respond to the requests without giving any explanation; this is especially true for the following agencies: Ministry of Interior, Ministry of Defense, Ministry of Economic Development (requests on privatisation contracts) and the Tbilisi Mayorâ&#x20AC;&#x2122;s Office.

Court appeals are possible, but at GEL 100 (US $58) they are expensive in local terms, take considerable time and even favourable 71 decisions may be hard to execute. 71

Interview with Tamuna Karosanidze, Board Member, TI Georgia 28 March, 2010

TOTAL SCORE (Public Sector Reform) included.

25/50 (50%)

Objective 3: GRECO Recommendation Implementation - continued Scale of compliance GRECO Objective Notes and sources Full Partial None Recommendations 2 1 0 Has the GRECO Chamber of Control continues to be the main external audit body The Civil Service Code lays many ethical requirements for public recommendation on the (i) to have for the Georgian government. The of Chamber Control operates officials. This includes elaboration rules onofgifts and conflict of under development and code(s) of conduct a new law adopted in Code, December 2008 expands its responsibility interest (Civil Service Article 73).that However, there is no generalto implementation of a adopted for all employees include government audit. The as lawa also foresees the introduction code of local conduct for the civil service whole. common methodology and in the public sector, both at of performance audit, but this provision will enter into force in 2012. Public Sector standards for carrying local and state level, inout â&#x20AC;&#x201C; Code of 1 audits inclarify respect of the order to and However, the law provides little information on methodology and Ethics Sector Public public sector,the bearing 1 complement rules in on auditing standards, and for the time being the institution continues to Audit mind the conflicts particularities inter alia of of combine the role of limited compliance audit with an investigatory its variousgifts components; (ii) component. Currently the Chamber of Control and the Ministry of interests, and strengthening the auditing reporting of corruption Justice are in the process of developing a more detailed methodology of local authorities, and (iii) been implemented? and standards. It is not yet known when this work is going to be ensuring effective auditing completed. there has been littleemployees movementtotoreport develop the Public Sector There is no Meanwhile, rule that requires public sector Has the GRECO of state enterprises been institution or the skill sets necessary to create a fully fledged National â&#x20AC;&#x201C; Conflict of suspicions of corruption. Legal provisions to protect whistleblowers are recommendation to 70 implemented? Audit Office. Interest included in the Law on Conflict of Interest and Corruption in the Civil introduce clear rules Service (Section As long as the in whistleblowing is doneofhonestly, Has the GRECO There have been20). no major changes the implementation the requiring all employees in the law requires that the whistleblower may not be subject to recommendation on Freedom of Information Act (FOIA). Public Sector the public sector to report disciplinary sanction. Access to assessing 1 suspicions the of corruption in Information implementation in practice While officially there is certainly a commitment to it in principle, public administration and 1 of the provisions of the officials still2009 demonstrate considerable discretion to ensure that those who In March a new Chapter 51 was added inontheir theinterpretation protection of report such suspicions in whistleblowers. This prohibits disciplinary or other types of prosecution good faith whistleblowers) 70 against whistleblowers. In exceptional cases whistleblowers George Welton (2009) The Role of the International Community in Facilitating Financial Reform in Georgia. Budgetary Planning and Oversight, International Budget can 7 are adequately protected stipulates that the request special protection. Section 2 of Article 20 Partnership from adverse identity of a whistleblower and a witness may remain secret to the 37 consequences been person about whom the whistleblower revealed information. implemented?*

TOTAL SCORE (Public Sector Reform) included.

25/50 (50%)

Objective 3: GRECO Recommendation Implementation - continued Scale of compliance GRECO Objective Notes and sources Full Partial None Recommendations 2 1 0 Has the GRECO Anti-bribery The Chamber of Control continues topassed be the main external audit In February 2008 amendments were to Article 107 of thebody recommendation on the (i) legislation to amend for the Georgian government. Chamber of the Control operatesofunder Georgian Criminal Code, whichThe now allows for prosecution legal development (Individual the provisionsand on a new law in December 2008 that expands its responsibility persons foradopted bribe-taking, trading in influence and money laundering. to implementation Liability) corporate liabilityofina the include local government audit. The also cases foresees introduction These provisions have been tried in law multiple butthe have never common methodology and Criminal Code to ensure of performance audit, but some this provision will enter gone to court. As a result uncertainty existsinto overforce howin 2012. 72 standards for carrying that legal persons can out be interpretation of the law will work out in practice. audits in respect of the held liable in cases where However, the law provides little information on methodology and Public Sector public bearing 1 lack ofsector, supervision or in auditing standards, and for the time being the institution continues to 2 Audit mind the of control byparticularities a natural person combine the role of limited compliance audit with an investigatory its components; component. Currently the Chamber of Control and the Ministry of hasvarious made possible the (ii) strengthening commission the auditing Justice are in the process of developing a more detailed methodology of active local authorities, and (iii) bribery, money and standards. It is not yet known when this work is going to be ensuring effective auditing completed. Meanwhile, there has been little movement to develop the laundering or trading in of state enterprises been influence been institution or the skill sets necessary to create a fully fledged National 70 implemented? Audit Office. Public Sector Has According a representative of the in Ministry of Justice, fighting Has the the GRECO GRECO There havetobeen no major changes the implementation of themoney HumanSector recommendation on to launderingofand corruption has been one of the priorities of the recommendation Freedom Information Act (FOIA). Public 73 Resource provide appropriate government since 2006. Access to assessing the 1 Management training on criminal liability Information implementation in practice While officially there is certainly a commitment to it in principle, Based on the information considerable provided by the Ministryinoftheir Justice, after the (Criminal of the legalprovisions persons to of of all the officials still demonstrate discretion interpretation provision on criminal liability of legal persons was added in 2008, there Liability) officials concerned with a were two trainings supported by the Council of Europe. The trainings, view to ensuring that full 2 70 George Welton (2009) The Role of the International Community in Facilitating Financial Reform in Georgia. Budgetary Planning and Oversight, International Budget which covered issues related to the new provisions in the Criminal use of these provisions is Partnership Code, included a total of up to 85 prosecutors/investigators, as well as made in cases of active 37 12 Ministry of Internal Affairs employees. bribery, trading in influence and money laundering been implemented? Public Sector Has the GRECO According to the Income Service of the Ministry of Finance, the 1 Human recommendation to Minister of Finance adopted specific guidelines in 2009 on measures

72 Anti Corruption Network for Eastern Europe and Central Asia (Draft Report, 16 March 2010), Istanbul Anti Corruption Action Plan: Second Round Monitoring, Georgia OECD Paris, France 73 Interview with Tamar Tomashvili, Head of Public International Law Department, Ministry of Justice, 24 March, 2010

TOTAL SCORE (Public Sector Reform) included.

Objective Resource Management (Tax)

Public Sector Audit Overall Score GRECO Implementatio n

Public Sector Access to Information

25/50 (50%)

Objective 3: GRECO Recommendation Implementation - continued Scale of compliance GRECO Notes and sources Full Partial None Recommendations 2 1 0 Has the GRECO develop guidelines and The Chamber of Control continues to be main external audit body against corruption offences. However, nothe trainings have been 74 recommendation on the (i) effective training to for the Georgian The Chamber of Control operates under conducted on thisgovernment. matter. development and of tax improve the ability a new law adopted in December 2008 that expands its responsibility to implementation of a inspectors to detect include local government audit. The law also foresees the introduction common corruptionmethodology offences, in and of performance audit, but this provision will enter into force in 2012. standards forregards carrying out particular as audits respect of bribes in concealed asthe However, the law provides little information on methodology and public sector, bearingbeen in 1 legitimate expenses, auditing standards, and for the time being the institution continues to mind the particularities of implemented? combine the role of limited compliance audit with an investigatory its various components; (ii) component. Currently the Chamber of Control and the Ministry of strengthening the auditing Justice are in the process of developing a more detailed methodology 9/14 (64%) of local authorities, and (iii) and standards. It is not yet known when this work is going to be ensuring effective auditing completed. Meanwhile, there has been little movement to develop the of state enterprises been institution or the skill sets necessary to create a fully fledged National 70 implemented? Audit Office. Has the GRECO There have been no major changes in the implementation of the recommendation on Freedom of Information Act (FOIA). assessing the 1 implementation in practice While officially there is certainly a commitment to it in principle, of the provisions of the officials still demonstrate considerable discretion in their interpretation

George Welton (2009) The Role of the International Community in Facilitating Financial Reform in Georgia. Budgetary Planning and Oversight, International Budget Partnership

Interview with Davit Chedia, Head of Department at the Income Service of the Ministry of Finance, 29 March, 2010

Transparency International Georgia 26 Rustaveli Avenue Tbilisi 0108, Georgia Phone: + (995 32) 92 14 03; 99 93 35 Fax: + (995 32) 92 02 51 info@transparency.ge www.transparency.ge