Introduction

The purpose of this document is to assess the extent to which the 2023 Action Plan for Georgia’s EU Integration addresses the priorities of the 2021-2027 Association Agenda in two fields: the fight against corruption and judicial reform.

To fulfill the obligations set out in the Association Agreement^[1] signed between the European Union and Georgia in 2014, the parties periodically agree on a multiannual strategic document - the Association Agenda. The document contains objectives (priorities) to be accomplished in the short and medium term. To fulfill these objectives, the Government of Georgia annually develops a National Action Plan (NAP) for the Integration of Georgia into the European Union.

After almost two years of discussions, the third consecutive EU-Georgia Association Agenda 2021-2027^[2] was adopted in August 2022. In response to the priorities outlined in the new Association Agenda, the Government of Georgia approved the 2023 National Action Plan for Georgia’s EU Integration^[3] on April 18, 2023, at the meeting of the EU Integration Commission of Georgia^[4].

The National Action Plan for EU Integration is a multi-sectoral policy document covering all the objectives and activities necessary to fulfill the obligations of the Association Agreement. Accordingly, the 2023 NAP should accurately reflect the priorities outlined in the Association Agenda 2021-2027.

2021-2027 Association Agenda priorities for Anti-corruption and Judicial reforms

To achieve the objectives of political association and economic integration set out in the Association Agreement, the Association Agenda 2021-2027 outlines short-term (3-4 years) and medium-term (7 years) priorities.

The document makes it clear that “advancing Georgia’s democratic and rule of law agenda through ambitious political, judicial and anti-corruption reforms in a broad and inclusive process is essential for EU-Georgia cooperation during the period of this Association Agenda.”

Both anti-corruption and judicial reforms are sub-components of the first sub-chapter of the Association Agenda - Democracy, Human Rights, and Good Governance.

The anti-corruption agenda includes the following short- and medium-term priorities:^[5]

● Develop and ensure effective implementation of a new Anti-corruption National Strategy and the respective Action Plan - to prevent, detect and address all forms of corruption;

● Further address corruption through both repressive and preventive means; e.g. by further strengthening the efficiency and capacity to investigate corruption; continue ensuring an effective investigation of alleged cases of corruption;

● Strengthen the monitoring of the asset declarations of public officials;

● Establish an effective system for preventing conflicts of interest; monitor and evaluate the effectiveness of such measures;

● Promote citizen’s rights and possibilities to access information and participate in governance at national and subnational levels, including through civil society and free and safe media monitoring;

● Develop and ensure effective implementation of the new Public Administration Reform Strategy and the relevant Action Plan;

● Enhance the openness, transparency, and accountability of public administration through the implementation of open governance reforms;

In addition, medium-term priorities include the effective implementation of relevant international legal instruments, including the recommendations of the United Nations Convention against Corruption (UNCAC), the Criminal Law Convention on Corruption and its Additional Protocol, as well as GRECO and OECD/ACN recommendations.

As for judicial reform, the Association Agenda includes the following priorities:

● Effectively implement the 2017-2021 Judiciary Strategy and its action plans in all aspects, and adopt an ambitious judicial reform strategy based on a broad, inclusive, and cross-party reform process;

● Strengthen and substantially reform the institutional set-up and practices of the High Council of Justice (HCoJ) and other key judiciary institutions so as to effectively increase transparency, integrity, and accountability of the norms and decisions they adopt, including on decisions regarding appointments, appraisals, promotions, transfers, and disciplinary measures;

● Submit the reform proposals to the Venice Commission and the OSCE Office for Democratic Institutions and Human Rights for an opinion and implement their recommendations;

● Ensure a transparent and meritocratic legal framework and practice for the appointment and promotion of judges by bringing it fully into line with European standards and Venice Commission recommendations, including appointments to the Supreme Court;

● Publish written justifications for appointments of judges with reference to integrity and competence criteria.

Shadow Action Plan

Following the adoption of the new Association Agenda, Transparency International Georgia developed a Shadow Action Plan, [1] with the participation of non-governmental organizations working on corruption and judicial reform and representatives of the academia. The purpose of its development was to properly reflect the priorities of the Association Agenda in the National Action Plan and submit it to the government.

The Shadow Action Plan comprises two primary sections: anti-corruption measures and judicial reform. The Shadow Action Plan proposed in the anti-corruption section envisages 13 objectives, 12 impact indicators, and 24 outcomes grouped under 3 main goals. In the judicial section - 5 objectives, 4 impact indicators, and 8 outcomes are grouped under 2 main goals – a total of 52 activities.

The Shadow Action Plan developed with the participation of representatives of civil society and academia addresses all the priorities of the new agenda while addressing the most critical challenges of corruption and the justice system.

On March 1, 2023, TI Georgia submitted the developed action plan to the government, namely to the agency responsible for coordinating the European integration process and developing the National Action Plan for EU Integration - the Ministry of Foreign Affairs.

To what extent were the priorities of the new Agenda incorporated into the National Action Plan?

The activities foreseen in the 2023 Action Plan for Georgia’s EU Integration do not address most of the priorities set out in the new Association Agenda and ignore critical challenges in both the fight against corruption and judicial reform.

• Fight Against Corruption

The anti-corruption component of the Action Plan is limited to a few activities. Unfortunately, the plan bypasses the main priorities of the Association Agenda. The plan endorsed by the EU Integration Commission of Georgia includes only two activities from the Shadow Action Plan:

• Adopt and commence implementation of the Public Administration Reform (PAR) Strategy 2023-2026 and the Action Plan for 2023-2024;
• Adopt and commence implementation of the Open Government Georgia (OGP Georgia) Action Plan for 2023-2024.

However, it is worth highlighting that in the case of these two activities, the mere adoption of action plans and/or the preparation of self-assessment (monitoring) reports by the responsible agency represents a weak indicator that predominantly emphasizes the formal aspects of reform implementation. In this regard, the Shadow Action Plan under the PAR and OGP objectives result-oriented indicators were defined, e.g. “achievement of the goals defined in the PAR strategy” and “implementation of the so-called Star Commitments under the OGP Action Plan.”

The Action Plan does not address the issue of developing and implementing the national anti-corruption policy documents, improving the system for monitoring public officials’ asset declarations, creating an effective system for preventing conflicts of interest, and ensuring access to information. The Action Plan bypasses the component of the implementation of international recommendations as well.

Regarding the efforts to combat corruption through preventive and repressive measures, as well as the effective investigation of alleged corruption cases, this aspect of the Action Plan primarily focuses on the implementation of secondary activities with limited scope. The plan envisages two main activities: 1. Training of prosecutors and investigators on the issues of investigation and prosecution of corruption crimes - it is not specified what type and/or how many employees will be trained; 2. Raising the qualification of employees of the Anti-Corruption Agency of the State Security Service through various measures. In this case, it is not specified what kind of measures will be carried out and in what direction(s) as well. Another awareness-raising activity is related to the prevention component and involves holding information sessions on corruption crimes in state and local self-government bodies. Again, the indicator does not specify which public bodies and/or municipalities are covered by this activity, nor does it specify the scope of the information campaign.

Significantly, in order to enhance the Action Plan's quality and implement policies that yield tangible results, it is imperative to improve the practice of APs development. First, the priorities of the Agenda should be translated into objectives, under which relevant targets should be set, and then activities should be defined to achieve these targets. Furthermore, the governmental Action Plans lack a clear hierarchy of goals, objectives, activities, and corresponding indicators. They also lack target and baseline indicators. Indicators in the plan are often not measurable or open to interpretation. For example, when the “number of people trained” is defined as an indicator, it is unclear what is considered an indicator of the implementation of an activity, the training of 10 or 100 people.

As previously mentioned, apart from its technical shortcomings, the Action Plan also exhibits significant content deficiencies by failing to adequately address critical challenges in combating corruption. Given the absence of an effective anti-corruption strategy and corresponding action plan in Georgia since December 2020, coupled with the fact that the Interagency Coordination Council responsible for developing anti-corruption policy documents has not convened since 2019, it becomes even more crucial for the EU Integration Action Plan to encompass the primary anti-corruption objectives.

• Judicial Reform

In terms of judicial reform, the Action Plan includes a number of important issues, such as updating the rules for the electronic distribution of cases, introducing the electronic program for the disciplinary liability of judges, as well as creating social guarantees for judges, and providing fair compensation.

While the proposed issues are important and can be considered a step forward in the implementation of comprehensive judicial reform, the Action Plan does not address issues such as a comprehensive reform of the High Council of Justice. Furthermore, the Action Plan fails to address the concern regarding the concentration of power within this entity and the need for the separation of powers.

According to one of the priorities of the Association Agenda, Georgia should effectively implement the 2017-2021 Judiciary Strategy and its action plans in all aspects and adopt an ambitious judicial reform strategy post-2021 based on a broad, inclusive, and cross-party reform process and an assessment of the effectiveness of the third and fourth waves of judicial reforms. However, the measures taken to achieve this goal, including the updating of the rules of procedure of the common courts, ensuring fair compensation of judges of the common courts, preparing and disseminating information on the general principles, rules, and procedures of court activity, cannot be considered the best means of achieving this goal.

In addition, according to the Agenda, it is important to strengthen and substantially reform the institutional set-up and practices of the High Council of Justice and other key judiciary institutions so as to effectively increase transparency, integrity, and accountability of the norms and decisions they adopt, including on decisions regarding appointments, appraisals, promotions, transfers, and disciplinary measures. However, only two activities are planned to accomplish this task: information meetings to raise public awareness of disciplinary proceedings, and the development of comments on updated rules of judicial ethics with the involvement of an independent inspector, which obviously cannot be considered the best way to implement substantial reform.

The proposed Action Plan continues to prioritize superficial changes while neglecting the fundamental challenges within the judiciary:

➔ Corporatism and informal influences - In the presence of interest groups in the judicial system and their real power, formal and informal influence, and in the absence of effective checks and balances and accountability mechanisms created within the system, the power of judges in administrative/managerial positions has been strengthened. Unbalanced power concentrated in the hands of a group of influential judges has created clan rule, posed a real threat of corruption, forced dissent from the system, and gradually turned the judiciary into a closed and monolithic structure. Evidence of these challenges is the U.S. State Department’s decision^[6] to place three sitting and one former judges on a visa restriction list for their involvement in significant corruption.

➔ Power concentrated in the hands of the High Council of Justice - The HCoJ makes decisions on all key issues of importance to the court in a manner that excludes the active participation of non-judge members in this process. The concentration of power in the hands of the HCoJ allows it to manipulate judicial appointments/promotions and staffing decisions. In this situation, there is a risk of nepotism and favoritism, which strengthens governance based on the principle of corporatism.

➔ Insufficient guarantees for the independence of individual judges - Insufficient guarantees for the independence of individual judges and the practice of their use, which has worsened in recent years, pose a significant challenge. The new rules for the transfer of judges introduced by the December 2021 legislative amendments, the possibility of removing a judge from current cases as a potential disciplinary measure, and the new, ambiguous regulation of disciplinary liability further increase the risks of violating the independence of individual judges and pose a threat to their freedom of expression. In addition, the incomplete functioning of the electronic case distribution system and the unequal workload of judges create additional levers for improper use of the system and pressure on individual judges.

What issues should have been addressed in the government’s Action Plan?

Fight against corruption:

One of the main goals of the Action Plan should have been to further intensify and fully implement in practice both repressive and preventive means of fighting corruption, namely, to develop and implement an anti-corruption policy to prevent, detect and eliminate “all forms” of corruption. The phrase “all forms” includes the fight against high-level corruption. In this part, it is crucial that national policy documents admit the existence of the problem of high-level corruption and consider appropriate measures for its prevention or repression. The need to solve this problem is indicated by another provision of the Association Agenda, which refers to “effective investigation of alleged cases of corruption.”

It is concerning that the Action Plan fails to include provisions for strengthening the capacity of the recently established LEPL Anti-Corruption Bureau and its integration into the corruption prevention framework. This omission is especially alarming considering that the responsibility for monitoring public officials' asset declarations was transferred from the LEPL Civil Service Bureau to this agency.

In addition to strengthening the investigative component and improving the investigation of alleged corruption cases, especially high-level corruption cases, the objective of improving the quality of integrity in the public sector should have been given a leading role in the Action Plan - the introduction of an effective system for the prevention and repression of corruption crimes; also, ensuring the availability and proactive use of detailed enforcement statistics on corruption crimes.

In addition, the Action Plan should address the objective of improving the coordination and monitoring of the implementation of international recommendations/commitments and related activities.

Judicial reform:

The primary goal of the Action Plan should have been the decentralization of power in the system of common courts, for which it is necessary to carry out a comprehensive evaluation of the justice system, analyze the problems in legislation and practice, and based on this, develop the necessary strategy for the implementation of the fundamental reform.

At the same time, to improve the judicial system in the short term, it is necessary to implement reforms of the High Council of Justice that will decentralize the excessive power concentrated in the HCoJ to other parts of the judiciary, while increasing the role of non-judge members of the HCoJ in decision-making. To achieve this goal, it is important that:

● The Parliament of Georgia elects five non-judge members of the HCoJ by broad political consensus. In addition, it is important to select such candidates whose integrity, qualifications, and political neutrality are beyond any doubt;

● The HCoJ makes decisions on matters of importance to the judiciary (appointment/promotion of judges, transfer of judges to other courts, disciplinary liability of judges, nomination of candidates for the Supreme Court, appointment/dismissal of an independent inspector) by a double 2/3 majority;

● The right to simultaneously hold other administrative positions (court chairperson/deputy chairperson, collegium/chamber chairperson/deputy chairperson) should be limited for judge-members of the HCoJ. It is necessary to limit the possibility of the same judge being elected twice in a row as a member of the HCoJ.

Besides, it is important to take effective steps to empower individual judges, namely:

● To introduce the rule of the election of court chairpersons;

● To improve the system of disciplinary liability of judges in a way that eliminates the risks of selective and arbitrary use of this mechanism;

● To further improve the system of electronic distribution of cases in order to minimize the risks of illegal interference in the process and to ensure the maximum equal workload of judges.

Conclusion and recommendations

The 2023 Action Plan for Georgia's EU Integration disregards the majority of the priorities outlined in the new 2021-2027 Agenda’s anti-corruption and judicial reform components. Moreover, it neglects almost all of the critically significant challenges at hand.

The proposed Action Plan primarily concentrates on fragmented changes, and it is unfortunate that the government's vision overlooks the fundamental issues within the justice system and the fight against corruption. Even with full implementation of all the activities endorsed by the EU Integration Commission of Georgia, the core challenges will remain unresolved.

It is regrettable that the Action Plan failed to consider the goals, objectives, and activities put forth by the Shadow Action Plan developed by civil society.

To ensure a precise reflection of the priorities identified in the Association Agenda within the National Action Plan, it is essential to utilize the Agenda as a framework document - a strategy. Accordingly, the overarching, short-term, and medium-term priorities outlined in the Association Agenda should be translated into clear goals and objectives, followed by the delineation of necessary activities. It is crucial to establish impact and outcome indicators, as well as target and baseline indicators, to effectively monitor progress and outcomes.

Furthermore, it would be advantageous for the Action Plan to span a duration of two or three years instead of one year. This approach would facilitate resource optimization (including human, financial, and time resources) for coordinating and participating agencies. Moreover, it would enable the development of objectives and indicators that are better aligned with accomplishing short-term (3-4 years) goals.

To enhance the quality of the Action Plan, it is advisable to adhere to the minimum standards outlined in the "Rules of Procedure for the Development, Monitoring, and Evaluation of Policy Documents" as established by Decree No. 629 of the Government of Georgia in 2019.^[7] Decree No.629 itself is an important achievement of the Public Administration Reform (PAR) that was initiated on the basis of the Association Agreement. The failure to adhere to the minimum standards established for policy document development during the formulation stage has been a significant factor contributing to the inadequacies observed in previous Action Plans.

Lastly, it is crucial to guarantee the meaningful engagement of all stakeholders, encompassing civil society organizations and representatives from the academic community, throughout the entire process of developing the Action Plan. This should include considering the recommendations put forth by diverse stakeholders during the meetings of the EU Integration Commission of Georgia, with active participation from the initiative's author