Bill on Prosecutor’s Office Reform Passed with First Reading

Chief Prosecutor’s Office in Tbilisi

Parliament passed with its first reading on July 24 a bill introducing new rule of selecting and electing chief prosecutor for a non-renewable six-year term, but critics say the proposal falls short of its declared goal of complete depoliticization of the Prosecutor’s Office.

The new rule will replace the existing, as Deputy Justice Minister Alexander Baramidze put it, “simple, but non-transparent” procedure, wherein the Prime Minister appoints and dismisses the Chief Prosecutor upon nomination of the Minister of Justice.

The bill, which has yet to be adopted with its second and third readings, envisages more complicated procedures for electing Chief Prosecutor introducing Parliament and new body, Prosecutorial Council, with the government and Justice Minister still having a significant role in the process.

The initial bill, which was drafted by the Justice Ministry, has been revised after Council of Europe’s advisory body for legal affairs, Venice Commission, unveiled its preliminary opinion on these legislative amendments earlier this month.

Most of the recommendations from the Venice Commission have been reflected in the revised bill, but not all of them – the government’s strong role in the process of nomination of a candidate for Chief Prosecutor still remains in place.

The bill envisages setting up of Prosecutorial Council, introduction of which has been welcomed by the Venice Commission as a “step towards depoliticization” of the Prosecutor’s Office.

The 15-seat Prosecutorial Council will be chaired by the Justice Minister, who will be an ex-officio member.

8 seats in the Council will go to prosecutors elected by the Conference of Prosecutors – a body, which is also a novelty envisaged by the bill.
 
2 seats will be allocated to parliament members – one of them will be representative of the parliamentary majority group and another one representing lawmakers, who are not members of the majority group in the parliament; selecting of an MP for this latter quota will be up to the lawmakers who are not members of the majority group, according to the proposal.

2 seats will go to judges, selected by the High Council of Justice.

2 remaining members of the Prosecutorial Council should be from the civil society and academic circles, elected by the Parliament with simple majority.

Selection of a candidate for the Chief Prosecutor, according to the bill, starts with the Justice Minister holding consultations with representatives of the civil society and academic circles.

The Justice Minister then nominates three candidates to the Prosecutorial Council; the Minister will have to explain the choice.
 
The Prosecutorial Council then has to endorse one of the three candidates with 2/3 majority votes – that is support of at least 10 council members; in case of a deadlock, the Justice Minister will have to name new candidates.

After a candidate is endorsed by the Prosecutorial Council, the nomination goes to the government, which has the power to block the nomination and in that case the process of selection of new candidates re-starts.

The Venice Commission said in its recommendations that procedure for appointing the Chief Prosecutor involves too many decision-making bodies and “it is unclear why the government, which the Minister of Justice is part of, would need to accept a candidate who has already been nominated by the Minister and approved by the Prosecutorial Council.”

“The executive branch already exercises its influence sufficiently at the nomination stage through the Minister; the additional ‘consent’ of the government… would thus appear to be an unnecessary further requirement in this process,” it said.

GD MP from the Republican Party, Vakhtang Khmaladze, who chairs parliamentary committee for legal affairs, said during the debates on July 24 that discussion should continue during the second reading on possible removal of the need of government’s consent on nomination.

If the nomination, offered by the Prosecutorial Council, is endorsed by the government, the candidate will then face parliamentary confirmation.

Support of simple majority – that is at least 76 MPs – will be required for a candidate to be confirmed as the Chief Prosecutor for a non-renewable six-year term.

The Venice Commission said in its preliminary opinion the government and the parliamentary majority play “a very important role at all stages” of the process of appointing the Chief Prosecutor.
 
“If the purpose of the reform, as stated in the letter of the First Deputy Minister of Justice of Georgia, is to achieve ‘complete de-politicization of the Chief Prosecutor’s Office’, then the procedure whereby the Chief Prosecutor is appointed should be reconsidered, and the influence of the government/parliamentary majority reduced,” the Venice Commission said.

One way to do it, the commission recommended, is to elect the Chief Prosecutor by a qualified majority of votes in the Parliament. But the practice in the sitting Parliament shows that lawmakers are usually deadlocked when it comes to taking decisions requiring 2/3 majority – that is support of at least 100 MPs (GD ruling majority holds 87 seats). Taking Georgian context into view, the Venice Commission said that one possible solution would be to involve different institutional actors in the process if there is a deadlock; such actors might be chair of the constitutional court or “another neutral figure or body, who would then have the final say.”

The Venice Commission, however, also said that the election of the Chief Prosecutor by a qualified majority of MPs may not be needed if the Prosecutorial Council has the necessary independence to avoid too much political interference. In an attempt to address this recommendation, the Justice Ministry revised draft to increase number of seats in the Prosecutorial Council from initial 9 to 15 to make it more “inclusive”.

Parliament speaker, Davit Usupashvili, said on July 24 that he would ask the Venice Commission to again review the revised bill after it was passed with its first reading.

Lawmakers from the opposition UNM and Free Democrats parties refused to support the bill, arguing that the proposal will not secure depoliticization of the Prosecutor’s Office.

Opposition MPs are calling for introducing President in the process of nomination of the Chief Prosecutor as it was pledged by the GD coalition in its pre-election program. They also call for removing prosecutor’s office from the government. Under the constitution, the Prosecutor’s Office is part of the Justice Ministry. Opposition calls for constitutional amendments, but the government is against.

 “We should move through constitutional changes otherwise we will get even worse system, wherein the government will exert full control over the prosecutor’s office covertly instead of openly as it is now,” MP Shalva Shavgulidze of the Free Democrats opposition party said.

“This bill is a significant step towards securing independence and depoliticization of the Prosecutor’s Office, but this is not enough and more work will be needed; making this first step, however, is in itself important,” GD MP Vakhtang Khmaladze said.

Coalition for Independent and Transparent Judiciary, a group uniting dozens of non-governmental organizations said: “Despite sharing some of the recommendations [of the Venice Commission] by the government in the revised bill, spirit of those amendments does not provide substantial changes. Therefore, the Coalition thinks, that number of institutional challenges still remain on the path of complete depoliticization of the Prosecutor’s Office.”

The bill is likely to be further amended during its second reading, which is expected in Parliament’s autumn session.

But the government was in hurry to have the bill adopted with its first reading as reform of the Prosecutor’s Office is part of Georgia’s commitments undertaken under the Visa Liberalisation Action Plan with the EU. The European Commission’s most recent report on implementation of VLAP, released in May, said that the appointment and dismissal of the Chief Prosecutor “needs to be taken in an open, merit-based, objective and transparent way, free of undue political influence.”

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