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2008 Assessment

Georgia: Integrity Indicators Scorecard

Georgia: Integrity Scorecard Report > Sub-Category: Executive Accountability
Indicators		Score
26	Can citizens sue the government for infringement of their civil rights?	100
27	Can the chief executive be held accountable for his/her actions?	38
28	Is the executive leadership subject to criminal proceedings?	100
29	Are there regulations governing conflicts of interest by the executive branch?	38
30	Can citizens access the asset disclosure records of the heads of state and government?	83
31	Official government functions are kept separate and distinct from the functions of the ruling political party.	0

Indicator and sub-Indicator Details

Can citizens sue the government for infringement of their civil rights?

26: In law, can citizens sue the government for infringement of their civil rights?

Score:

YES

Comments:

References: Constitution of Georgia , art. 42

Can the chief executive be held accountable for his/her actions?

27a: In practice, the chief executive gives reasons for his/her policy decisions.

Score:

100

Comments: By law, all laws and regulations shall be accompanied by an explanatory note, but this provision is kept only in a formalistic manner and those notes lack concept and explanation. As for policy decision, there is no formal necessity for explanation, and due to the lack of media freedom it is rather difficult to get any information other than government produced propaganda.

References: See TI reports on accountability of Georgian Government See Resolution of the Parliamentary Assembly of the Council of Europe on Georgia

Peer Review Comments: There is an obligation to provide explanatory notes to every law or amendment to already existing law by the initiators, who could be the president of the country. Apart from this obligation, Saakashvili does try to provide a rationale for a a new policy or a decision. Whether or not he is disclosing the real motives is another story and cannot be assessed objectively.

27b: In law, the judiciary can review the actions of the executive.

Score:

YES

Comments: The constitutionality of acts can be checked by the Constitutional Court of Georgia, while the legality of actions of the executive is checked by common courts. A court cake action only in the case of an appeal. The Constitutional Court does not have the right to challenge the acts on its own initiative.

References: Constitution of Georgia General Administrative Code of Georgia Law on Constitutional Court

27c: In practice, when necessary, the judiciary reviews the actions of the executive.

Score:

100

Comments: Due to the lack of independence of the Judiciary, all those judgments are formalistic and never bring any results. Statistically, the government wins 90 percent of the cases. The exceptions are only punished with minor administrative fines.

References: ABA/CEELI Judicial Reform Index See Annual report of the Public Defender of Georgia to the Parliament; See 2007 HRW report on Judiciary; See US State department HR report, chapter on Judiciary See report of the Georgian Young Lawyers' Association on the Right to Fair Trail

Peer Review Comments: There is a growing tendency toward suits regarding executive decisions and the courts were active to defend the interests of private parties. In the case of tax disputes, the decisions were nearly 50/50 so I do not agree that courts have no role here.

Peer Review Comments: Statistical information available through the Supreme Court and other international partners shows that the majority of cases challenging the government are resolved against the GOG. Enforcement of these decisions is another story and while the EOJ is under the Ministry of Justice and not the judiciary per se, nonenforceability of judgments violates the right to a fair trial and is impacts the judicial system.

Further, the Constitutional Court has ruled against the government on several politically salient cases. However, the court's jurisdiction is quite limited (e.g., it does not have abstract review powers).

27d: In practice, the chief executive limits the use of executive orders for establishing new regulations, policies, or government practices.

Score:

100

Comments: Legally speaking, the executive does not have an authority to establish new regulations or policies as all shall be regulated by law. The only power that the executive has is to clarify or elaborate on the provisions of the law. However, in reality, as laws are lacking clarity and leave room for a large maneuver, we face constant surprises from the executive.

The problem here is is that laws can be changed anytime without delay or problems and can be changed back and forth with the two weeks difference as it suits executive or interests of a particular minister. We had several cases of laws changed for a limited time period and then changed back.

As for privatization, it is not always made through a policy decision, but if we take e.g. so-called 100 hospital project. What was it? Just a typical privatization or policy decision. For those who does not know, a little explanation. One day the executive has decided that all hospitals in big cities shall be sold and there was no need for a hospital being centrally located. Hundreds of doctors lost a job overnight, massive territories in the center of the Capital city were sold for symbolic price and 40 million was assigned from the budget without parliamentary approval on 18th of December to a special fund created for those purposes on 17th of December. However that was not the end of the story, on 29th of December the special fund was canceled and money disappeared and today nobody talks about those 100 hospitals from the executive anymore.

References: See law of Georgia on executive power at [ LINK ] See report of Transparency International on privatization in Georgia. It has dozens of examples of authority manipulation by the executive, over establishing new policies and regulations.

Peer Review Comments: Decisions are made only on basis of the law. In fact, the examples given are not ones best suited to describe the usage of executive orders. Privatization is not establishing new policies or regulations.

Peer Review Comments: Legislation by executive orders does take place. But generally, there is no need for this, since it has never been a time (starting from 1991) when the executive did not also control the constitutional majority in the Parliament. They can adopt whatever type of law they deem necessary. Time is also not an issue, as the legislation provides for accelerated procedure for adopting laws.

Is the executive leadership subject to criminal proceedings?

28a: In law, the heads of state and government can be prosecuted for crimes they commit.

Score:

YES

Comments:

References: Constitution of Georgia, art.75 Law on Impeachment

Peer Review Comments: See also international agreements ratified by Georgia.

28b: In law, ministerial-level officials can be prosecuted for crimes they commit.

Score:

YES

Comments:

References: Constitution of Georgia, art.64 Law on Impeachment, 1997

Are there regulations governing conflicts of interest by the executive branch?

29a: In law, the heads of state and government are required to file a regular asset disclosure form.

Score:

YES

Comments:

References: Law on Conflict of Interests and Corruption, 1997, arts.14 and 26

29b: In law, ministerial-level officials are required to file a regular asset disclosure form.

Score:

YES

Comments:

References: Law on Conflict of Interests and Corruption, 1997, arts.14 and 26

29c: In law, there are regulations governing gifts and hospitality offered to members of the executive branch.

Score:

YES

Comments: It regulates that annual gifts cannot exceed the value of more than five times the minimum wages. This currently stands at 120 lari (US$73).

References: Law on Conflict of Interests and Corruption, 1997 Criminal Code of Georgia, art. 340

29d: In law, there are requirements for the independent auditing of the executive branch asset disclosure forms (defined here as ministers and heads of state and government).

Score:

YES

Comments:

References: No law requires that.

29e: In law, there are restrictions on heads of state and government and ministers entering the private sector after leaving the government.

Score:

YES

Comments: The practice is that they immediately go to private sector, i.e. businesses they were lobbying for while in the government.

References: No legal regulations exist.

29f: In practice, the regulations restricting post-government private sector employment for heads of state and government and ministers are effective.

Score:

100

Comments: The practice is that they immediately go to the private sector, i.e. businesses they were lobbying for while in the government.

References: See reports at [ LINK ] There are no legal obligations.

29g: In practice, the regulations governing gifts and hospitality offered to members of the executive branch are effective.

Score:

100

Comments: This is not effective, as there is no regulation for follow-up checks and monitoring.

References: See Media reports from June 2008 on Gift to ex-speaker of Parliament at [ LINK ] [ LINK ] on July 16, 2008

Peer Review Comments: There are individual cases where regulations are not effective, but mostly they are.

29h: In practice, executive branch asset disclosures (defined here as ministers and above) are audited.

Score:

100

Comments: Newspaper Alia published regular information, but it is more informing rather than auditing.

References: There are no requirements for audits.

Can citizens access the asset disclosure records of the heads of state and government?

30a: In law, citizens can access the asset disclosure records of the heads of state and government.

Score:

YES

Comments:

References: General Administrative Code of Georgia, Chapter 3, Freedom of Information

30b: In practice, citizens can access the asset disclosure records of the heads of state and government within a reasonable time period.

Score:

100

Comments: It takes between 10 days and a month to get the information requested. No reports on delays and any particular problems exist.

References: See reports of the Georgian Young Lawyers' Association, "Government under Sunshine": [ LINK ]; See annual reports of the Public Defender of Georgia: [ LINK ]

Peer Review Comments: 10 days is a reasonable time and it generally takes this long.

30c: In practice, citizens can access the asset disclosure records of the heads of state and government at a reasonable cost.

Score:

100

Comments: Only photocopying costs are charged, as required by law. No other information has been reported.

References: No problems have been reported.

Official government functions are kept separate and distinct from the functions of the ruling political party.

31: In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

Score:

100

Comments: All reports from both 2008 elections identified "The campaign environment has been soured by allegations of use by Mr. Saakashvili of budgetary funds, unequal campaign conditions, intimidation, and vote buying. The OSCE/ODIHR EOM has received information and first-hand accounts, which indicate that some of these claims are credible." (OSCE Georgia: Extraordinary Presidential Election 2008; INTERIM REPORT No. 2) or Actions have been "blurring the separation between state activities and candidates' election campaign."

The period reviewed here was almost entirely electoral and there were little opportunities for judging on other occasions. We can also review various situations: E.g. the minor one, what is the attendance of European Peoples Party meeting by the members of the affiliated party National Movement? Is it party activity or government action? I believe it is party activity, but paid from state budget for party members and their family members. What is it when state or regional budget is funding opening and maintaining of the food shelters for elderly? Is it a state activity, budgetary program approved by the parliament belonging to the functions of the executive or party action? I guess it is a state activity, executive performing its duties as assigned by the law of the parliament. Then why does is happen that all of those shelters / or food falls have signs and are maintained as party projects under the heading of the National Movement? Not during the elections but always for the last three years.

References: See reports OSCE "Final Report on the Jan. 5, 2008 Extraordinary Presidential Election in Georgia" OSCE "Report on the May 21, 2008 Parliamentary Election in Georgia" Massive falsifications during elections in Georgia. Frankfurter Rundschau. Jan. 9, 2008.

Peer Review Comments: Government officials always mention their party affiliation when conducting various activities but not to the extent that is cited here. Also, the sources mentioned only refer to the election period and the question, as I understand it, covers a much broader area then elections.

Peer Review Comments: The ruling party is not able to control all public officials and there are some that make and stick to such distinctions.