GEO

Disciplinary Proceedings against Bachana Shengelia Create Perception of Bias and Retribution

15 July, 2020

 

On June 24, 2020, the Justice Minister initiated disciplinary proceedings against Bachana Shengelia, a Georgian notary, over his critical Facebook posts against the government. We believe that the disciplinary proceedings initiated by the Justice Minister create a perception of bias.

Bachana Shengelia had been a vocal critic of the Georgian government due to its ineffective investigation into the death of his mother, Ia Kerzaia, the late principal of Public School N6 in Zugdidi. The latter died of a stroke on December 9, 2018. While still alive, Kerzaia claimed that she had been subject to political pressure. Bachana Shengelia stated that his mother’s death was a murder plotted at the Education Ministry and demanded the punishment of all perpetrators. Members of the European Parliament also called on the Georgian government for “a prompt and thorough” investigation into the death of Ia Kerzaia.

The Prosecutor’s Office suspended the probe into Kerzaia’s death “due to the absence of any signs of a criminal offence.” Furthermore, the Public Defender assessed that “[…] it was not possible to obtain crucial evidence or establish the truth in the case due to the delayed launch of the investigation.” Bachana Shengelia filed a lawsuit against the Georgian State in the European Court of Human Rights (ECHR) over Article 2 (right to life), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights.

The disciplinary proceedings initiated against Bachana Shengelia are controversial in several aspects and create a perception of bias and selective approach by the Justice Minister. In particular:

  • A chronology of making amendments to the Minister’s Regulation creates a perception of using the disciplinary mechanism as a tool of retribution

The issues of disciplinary liability of notaries are determined by the Regulation approved by the Justice Minister. Before May 22, 2020, violation of the principle of political neutrality and the Deontology Code of Notaries was considered to be moderate disciplinary misconduct typically punishable by warning or reprimand. On May 22, the Justice Minister made an amendment to the Regulation, defining the above violation as a gross disciplinary misconduct. This decision equips the Minister with the lever to suspend Bachana Shengelia from office for a term of one month to two years, rather than warn or reprimand him, once the fact of disciplinary misconduct is established.

It is also noteworthy that prior to May 22, 2020, the Regulation was last amended in 2016.

  • The grounds for disciplinary action are not predictable and may even contradict the constitution

The disciplinary proceedings were initiated against Bachana Shengelia on the basis of the publicly spread information on the following grounds:

  1. Violation of the principle of political neutrality;[1]
  2. Violation of the requirements of the Deontology Code of Georgian Notaries.[2] In particular, according to the Deontology Code, a notary shall refrain from public disclosure of his/her biased political views. A notary is banned to carry out political propaganda in notary office, as well as outside it.[3]

By restricting freedom of expression based on the bylaw instead of the law, the formal requirement of the Constitution and the European Court of Human Rights to restrict the rights only based on the law has been neglected. 

In addition, the act restricting the right should aim at achieving a legitimate goal and should in no way be arbitrary and unjustified. It should meet the predictability, certainty, and accessibility criteria.

In this context, it is unclear what is meant under “political neutrality” or “biased political views” and what specific conduct is banned by the act. A normative act must be predictable and clearly interpreted to avoid its arbitrary and selective application. Arbitrary interpretation may lead to unjustified restrictions of freedom of expression.

The deontological code approved by the International Union of Notaries[4] in 2013 can be used as an additional tool for interpreting the issue.[5] According to the code, the conditions for the exercise of the notarial function are: professional and personal qualifications, professional autonomy, legality, impartiality, independence and respect for fundamental rights. Furthermore, the document lists 39 types of misconducts violating the deontological rules; however, none of them involves the requirement to observe political neutrality.  

According to international standards, all possible grounds for disciplinary action are to be exhaustively described so that a person is able to predict what would be a punishable deed and what would be a legal consequence.[6]

Thus, restricting freedom of expression bypassing the parliamentary oversight has created a risk of imposing arbitrary and disproportionate restrictions. Accordingly, neglecting a formal constitutional requirement may become a basis for considering the norm unconstitutional.[7]

  • Carrying out disciplinary proceedings without oral hearing is yet another problem

The letter received from the Ministry of Justice makes it clear that no oral hearing is being held into disciplinary proceedings initiated against Bachana Shengelia. According to the Minister’s regulation, a notary should attend the hearing.[8]  The case may be considered without oral hearing, “if on the strength of the circumstances of the case, conducting of the oral hearing will protract considering and resolving of the case, or case circumstances are proven by authentic evidence.”[9]

Transparency International Georgia believes that the disciplinary proceedings initiated against Bachana Shengelia do not fall under the above-mentioned rule of exception. The letter received from the Justice Ministry stated that public disclosure of biased political views and making political assessments on social media served as the ground for initiating disciplinary proceedings against Bachana Shengelia.

Since this ground for imposing disciplinary liability is unpredictable, it is important to hold an oral hearing into the case and enable the notary to express his views orally.   

The deontological code approved by the International Union of Notaries ascertains that the person concerned shall be heard during each phase of the procedure, in accordance with his right to a defense and on the basis of his presumed innocence.[10]

  • Access to the appropriate electronic program for notaries was suspended illegally

Bachana Shengelia stated that on June 19, his right to perform notarial activities was suspended after the Justice Ministry representatives or a political official disconnected the electronic program used by him from the network.  

It turned out that Bachana Shengelia’s access to the electronic program was suspended in the framework of the disciplinary proceedings launched on June 18. The disciplinary proceedings are underway on the grounds of absence from work.

The Law of Georgia on Notaries envisages three grounds for suspending the right to perform notarial activities:[11] 1. If a notary violates the rule and conditions for submitting the documents necessary for being registered as a notary; 2. If a notary has committed misconduct as provided for by the provisions relating to the disciplinary liability of a notary public; 3. If a notary is being prosecuted, prior to a final decision on the criminal case being delivered.

In this particular case, there have been none of the above-mentioned grounds. Therefore, it is unclear on which legal grounds Bachana Shengelia had been restricted access to the electronic program.

On May 25, 2020, different rules of notarial activities were determined to prevent the spread of the novel coronavirus. These regulations will remain in force until July 15, 2020. The Justice Minister clarified that Bachana Shengelia was suspended from office just due to a violation of these rules.

In this respect, Tbilisi City Court applied the measure to secure the claim and ordered the Ministry of Justice to restore Bachana Shengelia’s access to electronic notary registry and all other programs necessary for notarial activities. It is noteworthy that this decision has not been executed yet by the Ministry of Justice.

In view of the above mentioned, we believe that the disciplinary proceedings initiated by the Justice Minister create a perception of bias and retribution. Therefore, we call on the Ministry of Justice:

  • To enforce a temporary order issued by Tbilisi City Court on the restoration of Bachana Shengelia’s access to electronic notary registry and all other programs necessary for notarial activities;
  • To suspend the disciplinary proceedings until a final decision is made on Bachana Shengelia’s constitutional appeal. 

[1] Order № 69 of the Minister of Justice of Georgia dated March 31, 2010 “On Approving the Regulation on Disciplinary Liability of Notaries,” article 6, subparagraph “t” https://matsne.gov.ge/ka/document/view/1010038?publication=3 [last seen: 02.07.2020]

[2] Article 6, subparagraph “s”

[3] Deontology Code (Code of Ethics) of Georgian Notaries, article 7, paragraph 3 https://www.notary.ge/res/docs/sakanonmdeblo/axali_aktebi/notariusta_etikis_kodeksi.pdf [last seen: 02.07.2020]

[4] The Notary Chamber of Georgia joined the organization in 2007. https://www.uinl.org/member-notariats [last seen: 02.07.2020]

[5] International Union of Notaries, Deontology and Rules of Organization for Notariats, 8 October 2013, part. 2 https://www.uinl.org/en_GB/organizacion-de-la-funcion [last seen: 02.07.2020]

[6] Organisation for Economic Co-operation and Development (OECD) and European Union, Liabilities and Discipline of Civil Servants, January 2003, para. 7.2  http://www.sigmaweb.org/publications/37890790.pdf [last seen: 02.07.2020]

[7] On July 7, 2020, Georgian Young Lawyers Association filed a lawsuit in the Constitutional Court of Georgia over the case of Bachana Shengelia. https://bit.ly/31NcWkf  [last seen: 06.07.2020]

[8] Order № 69 of the Minister of Justice of Georgia dated March 31, 2010 “On Approving the Regulation on Disciplinary Liability of Notaries,” article 20, paragraph 6 https://matsne.gov.ge/ka/document/view/1010038?publication=3 [last seen: 02.07.2020]

[9] Article 21, patargraph 1

[10] International Union of Notaries, Deontology and Rules of Organization for Notariats, 8 October 2013, art. 54. https://www.uinl.org/en_GB/organizacion-de-la-funcion [last seen: 02.07.2020]

[11] The Law of Georgia on Notaries, article 17, https://matsne.gov.ge/ka/document/view/90928?publication=19 [last seen: 02.07.2020] 

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