Venice Commission: Anti-Corruption Bureau’s Independence Insufficient in Current Design

In its opinion of December 15-16, 2023, on Georgia’s anti-corruption legislation, which focuses on the provisions added to the Anti-Corruption Law in November 2022, the Venice Commission states: “The current institutional design does not provide for a sufficient degree of independence of the Anti-Corruption Bureau (ACB)”.

The Venice Commission considers that ACB’s competences to oversee the financing of political parties and monitor asset and interest declarations of high-level officials require additional safeguards to be included in the Law. The Commission highlights the fact that the power to appoint and dismiss the head of the ACB is largely in the hands of the Prime Minister and considers this “particularly problematic”.

Noting that the November 2022 amendments to Georgia’s anti-corruption law aimed at institutional strengthening of anti-corruption activities and the fight against corruption in order to fulfill one of the European Commission’s priorities, the Commission however refrains refrains from assessing EU criteria compliance. The Venice Commission says, nevertheless that “bringing various preventive anti-corruption functions together in the ACB falls short of the stated aim of rigorously addressing high-level corruption.”

The Opinion stresses that “independence with an adequate level of structural and operational autonomy, involving legal and institutional arrangements to prevent political or other influence is considered a fundamental requirement for specialized anti-corruption bodies.”

The Venice Commission finds that “the current institutional design does not provide for a sufficient degree of independence of the ACB and considers that its competences to oversee the financing of political parties and monitor asset and interest declarations of high-level officials require additional safeguards to be included in the Law.”

To boost ACB independence, political neutrality, and public trust, the Venice Commission recommends the following:

• that the Law be amended to require cross-party support for the appointment of the head of the ACB, by appointing him/her either with a qualified majority in Parliament, with an appropriate anti-deadlock mechanism (requiring more than an ordinary majority) or an appropriate alternative, reflecting broad, cross-party agreement in Parliament (for example, in the form of a double majority, entailing a majority among parliamentarians both from the majority and the opposition), and that – given that the ACB is accountable to Parliament – any decision on early termination of his/her term in office be made by the Parliament, not the Prime Minister;
• that further amendments be made to the Law regarding the grounds for dismissal, restricting the discretion of the dismissing body in this respect, in particular by limiting the ground “fails to perform the duties” to usual cases of physical or mental incapacity and clarifying / delineating the provisions on criminal convictions, drug consumption and incompatibilities.

It is furthermore recommended to revise certain other elements of the November 2022
provisions, in particular:

• to consider providing functional immunity to the head of the ACB and his/her deputies;
• to enhance the professional requirements for the position of head of the ACB;
• to clarify the provisions on mandatory drug testing of officials (in particular their relation to the work of the ACB) and/or to remove these from the Law altogether, whereby the requirement for the drug test results to be published is to be deleted from the Law and a clear legal basis is to be provided for the possible testing of the Head of the ACB him/herself;
• to take measures to ensure that the ACB carries out a substantive verification of asset and interest declarations and, in addition to the random selection of declarations, takes a risk-based approach to ensure that the most relevant declarations are assessed against officials’ legal income, in order to reveal cases of unexplained wealth or to identify potential conflicts of interest;
• to include precise and explicit references to the relevant provisions in data protection legislation in the Law;
• to define the role of the Inter-Agency Anti-Corruption Council with greater clarity and precision, ensuring that there is no overlap with the functions of the ACB and removing the accountability of the ACB to the Inter-Agency Anti-Corruption Council, whereby consideration should be given to provide the ACB with the authority to set up its own advisory council instead.

Also Read:

• 01/09/2023-The Anti-Corruption Bureau Takes Over the Parties’ Financial Audit
• 26/10/2022 – Georgian Dream to Initiate Legal Changes on Creating Anti-Corruption Bureau

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