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Expropriation and Return of Improperly Acquired Property to the State – Bolshevism or Democracy?

Unlike economy, politics and social sphere, corruption is developing successfully in Georgia. Role of Georgian law enforcing structures in fighting against corruption is minimal. According to statistic data, there were only 5 cases of corruption tried in the courts last year and only 2 persons were charged sentences. These sentences were not imprisoning, but penalties of 100-150 Georgian Laris. As Zurab Adeishvili, Chairman of the Parliamentary Committee for Legal Issues said, these persons were “just a small fish in a vast ocean of corruption”.

Justice Ministry elaborated a bill on the Return of Illegal and Ungrounded Property to the State, which was presented by Justice Minister Mikheil Saakashvili to the Government Members on August 8th Government’s Meeting. This presentation was followed by rather nervous reaction from the side of several ministers. Vano Chkhartishvili (Minister of Economy, Industry and Trade), Kakha Targamadze (Minister of Internal Affairs) and Vakhtang Kutateladze (Minister of State Security) called the bill “communist and Bolshevik style” and accused Saakashvili in populism. President and majority of the Government members requested Saakashvili to refine the document.

President established a special commission, composed of 13 acting lawyers and scientists, to study the bill. As the representative of Justice Ministry Giorgi Arveladze has said, the commission gave positive evaluation to the bill and furthermore, recommended toughening of its terms.

Following are the principal changes, which have been made to the bill during the adjustments:

  • Words “Illegal” and “Ungrounded” in the title of document have been replaced with “Improperly Acquired”, because the first version was irritating many of its opponents.
  • A preamble has been added to the document. The preamble emphasizes principles of just and democratic state, as well as the conditions of the anticorruption conventions of the Council of Europe. The preamble clearly shows, that the authors of the document try to counteract with accusations in Bolshevism and communist style.
  • Word “serviceman” has been replaced with the word “official” with attached list of particular positions, which this word describes (from President to Prosecutor of city district). Such amendment has been made in reply to the opponents’ argument that the bill would act against whole nation. Justice Ministry has repeatedly declared that the bill would concern only 100-150 officials.
  • Paragraph 6 – “Stimulation” has been completely removed from the bill. This paragraph considered condition, that the plaintiff would get 4 % of the returned property, or equal amount of the money.
  • The following point has been added to the final version of the bill: “If an authority self willingly returns the property before the trial, he/she would be free of criminal liability (Paragraph 5, Subparagraph 4).

Thus adjustment of the bill actually considered softening of its tone, while function and content remained unchanged.

There are two main arguments against the bill: First – Fighting with corruption is possible with the existing ‘old’ laws and a new one is not necessary. If the ‘old’ ones cannot work, a new one would not work easer. Second – the bill is Bolshevik style, because it considers confiscation and repressions.

How does the new bill differ form similar existing laws? First of all, aim of the new bill is to exclude law-enforcing structures from the anticorruption campaign and allow people to engage in the process. First of all this concerns Prosecutor’s Office, which is believed to be a main source of corruption.

The new bill belongs to the Administrative Code, while the ‘old’ laws are in Criminal Code. Administrative cases are directly tired in the courts, while criminal cases are being transferred from the Police to Prosecutor’s Office, which would decide whether submit it to the court or not. The new bill allows every citizen and every legal subject to appeal to the court against governmental officials, while under the ‘old’ laws only the State possesses such right.

There is one more problem remaining after the Prosecutor’s Office and law enforcers are eliminated from the anticorruption mechanisms. The cases must be tried at the courts, but the courts are also an important links in corruption chains. “Reform of the courts has been intentionally suspended by the Government. Therefore, presently we do not have real reformed courts” – says Giorgi Arveladze from the Ministry of Justice. In this view, the Ministry introduced one more bill, regarding creation of the institution of jurymen. As Zurab Adeishvili says “law enforcers would be seconded by citizens while appealing to the courts and the courts would be seconded by citizens’ court, which is called a jurymen trial”.

About the Bolshevism: Such laws exist in Europe, Asia etc. The same principles are given in European Conventions, for instance in European Convention on Money Laundering. However, adoption of such laws requires special measures. Another proof that the bill is not ‘Bolshevik’ is that many articles in support of the document have appeared in Western media recently. President of the Parliamentary Assembly of the Council of Europe Lord Russell Johnston personally supported the bill during his official visit to Georgia. However, member of the faction “Agordzineba” Giorgi Targamadze stated, that Johnston has not even red the document and supported it just because Saakashvili wrote it. But, on the other hand, Justice Ministry has received letters of support from parliament members of 20 European states. Thus, it may be said, that the West, which is considered as a cradle of democracy supports the initiative of the Justice Ministry.

It is interesting, what would be the fate of the bill, what is its future? The bill must be submitted to the Meeting of the Government prior to Parliamentary hearings and would be submitted to the Parliament only if the President and majority of the ministers approve it. There is a suggestion, that the ministers, who opposed the bill on August 8th, would be more moderate next time. The Government would approve it, but the Parliament would reject. This means, that the opponents would fight conspiracy battle against the bill and there is a perfect soil for such fighting in the supreme legislative organ. Majority of both – the Majority and the Opposition is against the bill. But Zurab Adeishvili is confident, that if the bill reaches the Parliament, the Majority would vote for it. But if the bill would get rejected there, the only way left would be a total national referendum.

Saakashvili’s resignation on September 19th questions even a possibility of discussions of the bill in the Parliament. Many things would depend on a new minister and allocation of power in the Parliament, taking into account present Governmental and Parliamentary crisis.


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