On November 30, 2022, the Parliament of Georgia passed the package of legislative amendments, which envisaged the creation of the Anti-Corruption Bureau. According to the new legislation, the distribution of the functions of the state bodies was changed, and part of the anti-corruption functions was unified under a single institution.

The Anti-Corruption Bureau’s key responsibilities are as follows: monitoring of political party finances, monitoring of asset declarations of public officials, and drafting the National Anti-corruption Strategy and Action Plan.

The establishment of a centralized anti-corruption body with the mandate to monitor the financial activities of political parties and control the asset declaration of public officials should be regarded as a positive step. However, the centralized body will only be successful if it is equipped with an adequate mandate and its independence is unequivocally safeguarded. In this regard, the Law on Fighting against Corruption falls short in assigning an investigative function to the independent Anti-corruption Bureau, leaving the task of investigating corruption-related crimes solely to the State Security Service and the Prosecutor's Office.

The guarantees of independence and accountability of the Bureau are also a matter of concern. Pursuant to the law, the Bureau is accountable to the Parliament and the Interagency Anti-Corruption Council, although the accountability to the Parliament is largely pro forma. In accordance with the provisions established by law, the appointment of the Head of the Bureau, as well as dismissal, rests solely with the Prime Minister. The law also does not provide the guarantees of immunity for the head of the Bureau, for example, the prohibition of his/her criminal prosecution, detention, arrest, and search without the consent of the Parliament of Georgia.

The law also does not sufficiently guarantee access to information for the Anti-Corruption Bureau, which is essential for the effective performance of its functions.

1. Preconditions for the adoption of the law and international recommendations in the fight against corruption

The creation of an independent anti-corruption body, which strengthens enforcement of anti-corruption legislation, ensures effective investigation of corruption cases, effective planning and implementation of anti-corruption policy, has been recommended by international organizations and supported by local non-governmental organizations for many years.

It has been more than a year since the opposition MPs initiated a legislative package in the Parliament of Georgia, which envisages a fundamental anti-corruption reform. The draft law was developed by Transparency International Georgia with the involvement of the Institute for the Development of Freedom of Information. The legislative package was initiated by opposition MPs back in the 9th Convocation Parliament. The Parliament of the previous convocation did not even start the review process of the draft law. In the Parliament of the 10th Convocation, several committees reviewed the draft law, but then the discussions were suspended.

The issue became particularly relevant for the Parliament of Georgia after Georgia formally applied to join the European Union on March 3, 2022.^[1] On June 17, 2022, the European Commission published an opinion on the EU membership application by Georgia and 12 recommendations that Georgia needs to address in order to be granted the candidate status of the EU.^[2] According to the 4^th recommendation of the EU, Georgia needs to strengthen the independence of its Anti-Corruption Agency bringing together all key anti-corruption functions, in particular, to rigorously address high-level corruption cases.

The significance of the fight against corruption was emphasized in the Association Agreement between the European Union and Georgia as well as in the 2017-2020 Association Agenda approved by the parties for the implementation of the Association Agreement. The Agenda implied the cooperation between the parties in the fight against corruption and Georgia’s commitment to take measures to fight all forms of corruption (including complex forms).^[3]

Enforcement of anti-corruption legislation remains a challenge, as highlighted by various international organizations. The latest monitoring report^[4] of the Organization for Economic Co-operation and Development (OECD) Anti-Corruption Network on Georgia states that “despite the existence of the Law on Conflict of Interest and Corruption in Public Service, it has almost never been enforced in practice.”

The investigation of corruption crimes by the State Security Service is particularly problematic. The 2018 European Parliament resolution highlights that “high-level elite corruption remains a serious issue” in Georgia and “a solid track record of investigations into high-level cases of corruption, yet to be established” in the country. The resolution calls on Georgia to create the Anti-Corruption Agency that is independent, free of any political interference and separated from the State Security Service.^[5]

As a result of the problems discussed above, Georgia's score in the Corruption Perception Index (CPI) has not significantly improved over the last 10 years,^[6] which indicates the suspension of the fight against corruption. Otherwise, if Georgia implemented comprehensive reforms, there would have been tangible progress. A relatively high score is maintained as a result of successful reforms against petty corruption years ago, and elite corruption remains a problem.

It is important that the law addresses the mentioned problems and creates solid guarantees for the independence and effective functioning of the Anti-Corruption Bureau.

2. Functions of the Anti-Corruption Bureau

The primary objective of the Anti-Corruption Bureau is to strengthen the fight against corruption. Accordingly, the law integrated the functions of the Interagency Coordination Council, the State Audit Service, and the Civil Service Bureau into the powers of the Anti-Corruption Bureau.

• Instead of the State Audit Service, the Bureau will monitor the financial activities of the political party, organizational entity and person with the declared intention to stand for election, and other appropriate measures related to this field.
• Instead of the Civil Service Bureau, the Anti-Corruption Bureau will control the receipt of the asset declaration of a public official, its filling and submission, and the Bureau also will monitor its storage and ensure publicity. The Bureau develops proposals on the prevention, detection and elimination of conflict of interest in public institutions, and the improvement of whistleblower protection measures.
• Instead of the Interagency Coordination Council, the Anti-Corruption Bureau will draft the National Anti-Corruption Strategy and Action Plan, develop proposals related to the elaboration of the general policy for fighting against corruption, and present it to the parliament; In accordance with the approved anti-corruption documents, the Bureau will coordinate the activities of the relevant bodies, organizations and officials, will support increasing public awareness of the issues of fighting against corruption and will carry out the analysis of international standards and experience in the field of fighting against corruption.

The creation of a centralized model for fighting corruption is a step forward and represents the best international practice. The international practice suggests two models of fighting corruption centralized and decentralized. A decentralized model works better in consolidated democracies, where power is distributed, and institutions can better check and balance. The more centralized models are typically found in relatively weak democracies, where due to the concentration of power and the weakness of institutions, they cannot contain corruption.

In order for the Anti-Corruption Bureau to successfully perform the function of fighting corruption, it is crucial for it to be equipped with the following:

•  Powers to investigate corruption-related offenses

The investigation of corruption-related crimes by the State Security Service is problematic. The function of investigating corruption crimes is incompatible with the mission of the State Security Service,^[7]  it creates unreasonable risks of public service control, and the opaque system of the Service poses threats to the effectiveness of the fight against corruption. This type of crime, like all others, should be a subject of the State Security Service’s interest only when the crime poses a direct and apparent threat to national security. Otherwise, assigning this competence to the Security Service could be perceived as a covert attempt to exert control over the public service, which is not aligned with international best practices.^[8]

The function of investigating certain corruption-related crimes falls under the competence of the Prosecutor's Office, which is also problematic. When the same body Investigates a crime and prosecutes the same crime, it undermines the independence and effectiveness of the investigation. This becomes even more challenging in terms of investigating high-level corruption cases.

• Functions related to the prevention of corruption in the public service, including: protection of whistleblowers, control of compliance with legal norms of corruption and conflict of interest.

The Bureau should have the function of controlling the enforcement of not only individual but also all norms of the Law on the Fight against Corruption. The Bureau shall supervise the enforcement of each norm embodied in the Law on the Fight against Corruption, collect, process, analyze, proactively publish statistical data and initiate reforms for necessary changes. Without the comprehensive implementation of this law, it is impossible to prevent corruption and build integrity in public service.^[9] In this regard, per new amendments, the Bureau is limited to providing recommendations and the enforcement component remains without a responsible agency.^[10] In accordance with both the UN Convention against Corruption (UNCAC)^[11] and the best practices of the OECD^[12], it is essential that these functions of corruption prevention be considered in the national anti-corruption institution.

3. Appointment of the Head of the Anti-Corruption Bureau

The Parliament does not appoint and dismiss the Head of the Bureau. The Head of the Anti-Corruption Bureau is appointed by the Prime Minister. Candidates for the Head of the Anti-Corruption Bureau are selected on the basis of competition. The selection commission is composed of 7 members: a representative of the government; the Chairperson of the Human Rights and Civil Integration Committee of the Parliament; the Chairperson of the Legal Issues Committee of the Parliament; the First Deputy Chairperson or Deputy Chairperson of the Supreme Court; the First Deputy Prosecutor General or Deputy Prosecutor General; the Public Defender of Georgia or a representative of the Public Defender of Georgia; a representative of non-entrepreneurial (non-commercial) legal entities with relevant knowledge and experience and selected by the Public Defender through an open competition. A meeting of the competition commission is entitled to make a decision if it is attended by the majority of its members. The competition commission decides by the majority vote of members attending the meeting. The competition commission selects at least 2 and not more than 5 candidates out of the participants of the competition and nominates them to the Prime Minister for the position of the Head of the Anti-Corruption Bureau.

Appointment of the Head of the Bureau by the Prime Minister cannot ensure the genuine independence of this institution, which is a necessary precondition for its effective performance. The independence of the Anti-Corruption Bureau primarily refers to the separation from the executive government. An important component of guarantees of independence is the procedure for appointing and dismissing the Head of the Bureau. Additionally, the role of the parliament as a representative body is particularly crucial in achieving the selection of the Head of the Bureau by political consensus.

The criteria for selection of the Head of the Anti-Corruption Bureau are also problematic. Pursuant to the Law, a citizen of Georgia Bureau without a previous conviction who has a higher legal education, experience working in the justice or law enforcement system or in the area of protection of human rights for at least five years and a high professional and moral reputation may be appointed as the Head of the Anti-Corruption.

The mentioned criteria are insufficient for the head of an independent body that holds significant responsibilities for the country, and who may need to investigate political officials. A minimum of ten years of professional experience and a master's degree or equivalent should be desirable qualifications for the position. Depending on the functions of the Bureau, the need for a legal education criterion is also unclear.

4. Accountability of the Anti-Corruption Bureau

Pursuant to the Law on the Fight against Corruption, the Anti-Corruption Bureau is accountable to the Parliament and the Interagency Anti-Corruption Council. Despite the existing record, accountability to the Parliament is largely formal and declarative in nature. Once a year, no later than March 31, the Bureau shall submit an annual report to the Parliament on the issues within the competence of the Anti-Corruption Bureau. The Parliament reviews the report at the plenary session and adopts a resolution. The Rules of Procedure of the Parliament do not lack a record of what the resolution should contain. It is appropriate to write in the Rules of Procedure that the resolution should not only evaluate the report but also define the tasks of the Parliament and the timeframe for monitoring their implementation. There is a similar good practice regarding the reports of the Public Defender. In a parliamentary republic, it is vital that the Parliament effectively oversees the fight against corruption and ensures the Anti-Corruption Bureau is truly accountable to the representative body.

5.  Term and immunity of the head of the Anti-Corruption Bureau

• The term of office of the Head of the Anti-Corruption Bureau is 6 years. If the new head of the Anti-Corruption Bureau has not been appointed at the time of the expiration of this term, the Head of the Bureau continues serving until the selection of the new Head of the Anti-corruption Bureau.
• The law also does not limit the maximum number of terms a person can serve as the Head of the Anti-Corruption Bureau.
• The Law on the Fight against Corruption also does not provide the guarantees of immunity for the Head of the Anti-Corruption Bureau, for example, the prohibition of his/her criminal prosecution, detention, arrest, and search without the consent of the Parliament of Georgia. Furthermore, the Criminal Code of Georgia does not include a special norm by which exerting influence on the Head of the Anti-Corruption Bureau or an employee of the Bureau will be punished.

The law should restrict the Head of the Bureau to continue to serve after the expiration of the term as it is prohibited in the case of the Public Defender, Head of Special Investigation Service, and a number of other public officials. The strict definition of the term of office is necessary for the effective functioning of independent bodies and insures the risks that the government will not retain the position of the persons it favors after the expiration of the term defined by the law.

To ensure democratic governance and the effective functioning of independent bodies, it is crucial to prohibit the election of an individual to the same position for two consecutive terms. A similar rule applies to the Public Defender, the Head of the Special Investigation Service, the Head of the State Security Service, the General Prosecutor and a number of other public officials. The law does not provide for a similar restriction in the case of the Head of the Anti-Corruption Bureau, which is inconsistent with the principles of democratic governance of an independent institution.

Without solid legal guarantees of immunity, the real independence of the Anti-Corruption Bureau cannot be ensured. The law should include special norms for the immunity of the Head of the Anti-Corruption Bureau.

6. Accessibility to information for Anti-Corruption Bureau

It is critical for the Anti-Corruption Bureau to have unlimited and direct access to all the information it needs for the effective fight against corruption and the adequate performance of its functions.

According to the law, the Anti-Corruption Bureau has the following mechanisms of access to information:

• When examining the asset declarations, the Bureau can contact another administrative body, which is obliged to provide the Bureau with the necessary legal assistance with the means at its disposal. The monitoring of asset declarations of public officials is carried out by verifying the accuracy of the data in the submitted declaration through the electronic databases administered by public institutions.
• In case of starting the monitoring of asset declaration, the Bureau is allowed to request and receive information from the official (including from banking and/or other credit institutions) within 10 working days.
• In order to fulfill the functions defined by the law, the Bureau is entitled to request the necessary information from the appropriate entities, to cooperate with relevant local and international organizations and other entities, to pay visits both across Georgia and abroad, to create appropriate working groups and to implement other measures.
• For the purpose of financial monitoring of political parties, the Bureau is authorized to request information on the party's finances from an administrative body and a commercial bank; if necessary, on the basis of a court decision, to request information about the finances of a natural person or legal entity donating to the party; The application of the Anti-Corruption Bureau should be substantiated and it must specify the basis and purpose as well as the period and volume of the requested information. In case of filling an application by the Anti-corruption Bureau, the court makes a decision within 48 hours;
• A tax authority may provide information about an individual taxpayer to the Bureau. However, in this case, the information is shared through the LEPL Digital Governance Agency of the Ministry of Justice. Within the framework of the unified data exchange system (infrastructure), the Digital Governance Agency creates a unified standard for data exchange, ensures the production of a unified state information registry, coordination the determination and implementation of a unified standard for the production of databases, registers, services and information systems.

Establishing the legal requirement to provide information to the Anti-Corruption Bureau should be positively evaluated, however, many administrative bodies use the aforementioned mechanisms to access information, and these mechanisms are not sufficient for the effective fight against corruption and the prompt performance of functions.

In order to monitor asset declarations, and prevent, identify and eliminate conflict of interest in public institutions, it is crucial that the Anti-Corruption Bureau has legally guaranteed access to the electronic databases administered by public institutions which constitutes the international best practice.

Recommendations

• The Anti-Corruption Bureau must be strengthened, and its mandate should be expanded to include the investigation of corruption offenses.
• The independence of the Anti-Corruption Bureau should be elevated. The Bureau Head should be appointed by the Parliament by political consensus and the law should establish guarantees for his/her immunity.
• The accountability of the Anti-Corruption Bureau to the Parliament should be enhanced. After the hearing of the Bureau’s report, the Parliament should determine assignments and timeframe for monitoring their implementation, along with the evaluation of the report.
• For the selection of the Head of the Bureau, higher criteria have to be determined and legal education should be a mandatory requirement. The law should limit the appointment of the Head of the Anti-Corruption Bureau for more than one consecutive term. The Head of the Bureau should not be allowed of being an Acting Head after the expiration of the term of office.
• The Anti-corruption Bureau's full access to information and electronic databases administered by public institutions must be legally guaranteed.
• The Bureau shall be directly responsible for the enforcement of all provisions of the Law on the Fight against Corruption, including whistleblower protection, prevention, detection and elimination of conflict of interest.