Council of Europe anti-corruption body GRECO says Georgia has implemented 7 out of 16 recommendations on preventing corruption among MPs, judges and prosecutors

Published in Justice
Monday, 12 April 2021 15:57

Strasbourg, 12.04.2021 – Over the past two years, Georgia has implemented two more recommendations issued by GRECO in 2016, on the prevention of corruption in respect of members of parliament, judges and prosecutors, said the Council of Europe anti-corruption group GRECO in a new compliance report published today. All in all, seven out of 16 recommendations have been implemented satisfactorily or dealt with in a satisfactory manner, another seven have been partly implemented and two have still not been implemented. (See French version of the report)

Today’s report is already a second one analysing the implementation of the 2016 recommendations. The first such report published in 2019 concluded that five recommendations had been implemented, and the remaining 11 were still outstanding. These outstanding recommendations are the subject of the report published today.

With respect to members of Parliament, the regulations on transparency of the legislative process on the side of the parliament have been greatly enhanced, with a more visible publication of draft legislation, amendments thereto and information on the work of committees, but rules should also be adopted to allow for meaningful consultations to take place. Furthermore, training of MPs on the Code of Conduct has taken place, but further practical measures for the implementation of the Code (such as confidential counselling and monitoring) still have to become fully operational. The implementation of these measures has to some extent been hampered by political developments following the 2020 parliamentary elections. Finally, a clear requirement or rules are still required for MPs to declare conflicts of interest when they occur (ad hoc).

As far as judges are concerned, changes to the legislation on the recruitment of judges have improved the criteria on which decisions on recruitment are to be based, as well as the reasoning and the possibility of review of such decisions. It is noted, however, as demonstrated by the appointment process to the Supreme Court, that apparent good intentions on paper are still too easily trumped by other considerations. GRECO therefore urges the authorities to take further measures to enhance public trust in the recruitment processes of judges, be it to the Supreme Court or common courts, in particular in respect of the decision-making of the High Council of Justice. That said, positive steps have been taken as regards disciplinary proceedings (even if some remaining amendments would still need to be made to fully implement the recommendation in question), in particular by more clearly defining disciplinary offences, and in developing an update of the Rules of Judicial Ethics, which is, however, still to be adopted. Finally, as regards judges, GRECO regrets that the limitation of the broad immunity of judges is still under consideration and concludes that its recommendation that the immunity of judges be limited to activities relating to their participation in judicial decision-making (”functional immunity”) remains not implemented.

Regarding prosecutors, positive measures have been taken for the practical implementation of the Code of Ethics and welcome improvements have been made to the rules on the recruitment and promotion of prosecutors. GRECO concluded that two of its recommendations in these areas have been implemented. However, in spite of improvements made to the disciplinary regime applicable to prosecutors, further amendments are clearly necessary, in particular by defining sanctionable conduct more precisely. GRECO also concluded that its recommendation on widening the scope of application of the asset declaration regime under the Law on Conflict of Interest and Corruption to cover all prosecutors, remains not implemented.

GRECO asks the Head of delegation of Georgia to submit additional information on the nine outstanding recommendations by 31 March 2022 at the latest.

GRECO and Georgia

* * *

The Group of States against Corruption (GRECO) is a Council of Europe body that aims to improve the capacity of its members to fight corruption by monitoring their compliance with anti-corruption standards. It helps states to identify deficiencies in national anti-corruption policies, prompting the necessary legislative, institutional and practical reforms. Currently it comprises the 47 Council of Europe member states, Belarus, Kazakhstan and the United States of America.

Hybrid winter plenary session 2021

Published in Politics
Sunday, 24 January 2021 18:49

Strasbourg, 24.01.2021 - The Parliamentary Assembly of the Council of Europe (PACE) will hold its 2021 winter plenary session from January 25 to 28 in a hybrid manner, allowing members to participate remotely or attend in person in Strasbourg.

The Assembly will debate the ethical, legal and practical considerations of COVID-19 vaccines. WHO Director-General Tedros Adhanom Ghebreyesus will address parliamentarians in the debate.

There have been requests for three urgent debates on:

- "The arrest and detention of Alexei Navalny in January 2021"
- "The worsening situation in Belarus"
- "Freedom of expression (Article 10 of the ECHR) under threat by 'Big Tech' Companies".

Three current affairs debate requests have also been submitted under the titles:

- "Prohibition of Russian and other national minorities languages in Ukraine"
- “Unjustifiable delay in repatriation of the Armenian prisoners of war and other captives by Azerbaijani authorities as violation of the European International Human Rights Standards”
- “The actual human rights situation in temporary occupied Autonomous Republic of Crimea and the city of Sevastopol during Covid-19 pandemics”.

Other topics on the agenda include ethnic profiling in Europe, restrictions on NGO activities in Council of Europe member States, and discrimination against persons dealing with chronic and long-term illnesses.

During the session, the Assembly will elect the Deputy Secretary General of the Council of Europe, the Secretary General of the Assembly and the judges to the European Court of Human Rights in respect of Greece and Switzerland. These elections will be held by individual electronic voting.

The European Commissioner for Justice Didier Reynders will address the members of the Assembly and answer their questions, as will the Federal Minister for Foreign Affairs of Germany, Heiko Maas (within the framework of the German presidency of the Committee of Ministers) and the Secretary General of the Council of Europe, Marija Pejčinović Burić (who will present her communication).

Debates will also be held on the independence of judges in Poland and in the Republic of Moldova (with the participation of Sabine Leutheusser-Schnarrenberger, former Federal Minister of Justice of Germany), and on the implementation of judgments of the European Court of Human Rights. Debates on the progress of the Assembly’s monitoring procedure and on post-monitoring dialogue with Montenegro are foreseen.

A report on parliamentary elections in Georgia will also be discussed. Lastly, the Assembly will determine its position on the modification of the Assembly’s Rules of Procedure – follow-up to Resolution 2319 (2020) on the complementary joint procedure between the Committee of Ministers and the Parliamentary Assembly in response to a serious violation by a member State of its statutory obligations.

No judge bias or other breach of fair trial guarantees in television channel ownership row

Published in Justice
Thursday, 18 July 2019 18:12

The case Rustavi 2 Broadcasting Company Ltd and Others v. Georgia (application no. 16812/17)
concerned an ownership row over a privately owned television channel, Rustavi 2, the first applicant
in the case. The dispute led to a ruling in March 2017 by the Supreme Court of Georgia finding that a
former owner of Rustavi 2 had been coerced into giving up the television channel and that the
current owners, the second to fourth applicants in the case, were not therefore bona fide third-party
acquirers. Pending those proceedings, Rustavi 2’s corporate assets and all of the owners’ shares in
the company were frozen.
In the case before the European Court of Human Rights, the current owners of Rustavi 2 alleged in
particular that the judges examining the ownership row had lacked independence and impartiality.
In today’s Chamber judgment1
in the case the European Court held:
by six votes to one, that there had been no violation of Article 6 § 1 (right to a fair trial by an
independent and impartial tribunal) of the European Convention on Human Rights as concerned the
judge deciding the case at first-instance;
unanimously, that there had been no violation of Article 6 § 1 of the European Convention as
concerned the court deciding the case on appeal;
by six votes to one, that there had been no violation of Article 6 § 1 as concerned the composition
of the bench deciding the case during the cassation proceedings before the Supreme Court.
The Court found in particular that all but one of the allegations of bias had either been
unsubstantiated or unconvincing. The involvement of Rustavi 2’s Director General in disciplinary
proceedings against the President of the Supreme Court some years previously, leading to her
dismissal from her judicial post at the time, had raised an arguable claim of a lack of impartiality.
However, the Supreme Court had extensively assessed any fears in that regard and had convincingly
dissipated them in a thoroughly reasoned ruling.
In coming to those conclusions, the Court bore in mind in particular that Rustavi 2’s owners had
systematically introduced ill-founded recusal requests against many different judges at all three
levels of jurisdiction in a probable attempt to paralyse the administration of justice, while Rustavi 2’s
Director General had made gratuitous and virulent attacks in the media against the domestic judges
involved in examining the ownership row and against the Georgian judiciary in general.
The Court, unanimously, rejected as inadmissible the remaining complaints brought by Rustavi 2’s
owners (the second to fourth applicants) as well as all those brought by Rustavi 2 (the first
applicant) itself, including in particular their allegations that the proceedings had been a State-led
campaign to silence the television channel.
Given those inadmissibility findings, the Court decided, unanimously, to lift the interim measure
under Rule 39 of its Rules of Court indicating to the Georgian Government that it should among
other things suspend enforcement of the decision of March 2017.
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
2
Principal facts
The applicants are Rustavi 2 Broadcasting Company Ltd, a television channel in Georgia, and its
current owners, TV Company Sakartvelo Ltd and Levan and Giorgi Karamanishvili, two brothers who
are Georgian nationals living in Tbilisi. There were numerous transfers of Rustavi 2 shares from one
private party to another from 1996, when the television channel was founded, until 2011, when the
second to fourth applicants took over.
In August 2015 a former owner of Rustavi 2, K.K., brought civil proceedings against the applicants
alleging that he had been coerced into selling his shares in the company in 2005 and 2006 by the
then leaders of the governing party, the United National Movement. He submitted in particular that
President Saakashvili, who was dissatisfied with Rustavi 2’s editorial policy, and high-ranking State
officials had threatened him and his family if he refused to sell his shares. He had then had to leave
the country for fear of further persecution, and was granted political asylum in Germany. In his
claim, he also requested that he be acknowledged as the creator of the channel’s logo and three
entertainment shows.
In November 2015 the first-instance court found in K.K.’s favour regarding most of his claims, apart
from those regarding his intellectual property, which it dismissed as unsubstantiated. In particular it
found that there had been no coercion under Article 85 of the Civil Code, but that there had been a
“manifest discrepancy” between the actual value of Rustavi 2 in 2005-2006 and the payment K.K.
had received in exchange. It therefore considered that the agreement which he had entered into
was void under Article 54 of the Civil Code. The current owners of Rustavi 2 had to have been aware
that the property they were acquiring had been misappropriated and they could not therefore be
considered bona fide third-party acquirers. In June 2016 the appeal court upheld that decision in full.
In March 2017, following an appeal on points of law lodged by the second to fourth applicants, the
Grand Chamber of the Supreme Court confirmed the lower courts’ findings about Rustavi 2’s current
owners not being bona fide third-party acquirers. However, it considered that Article 85 of the Civil
Code, under which it was possible to void a contract made under duress, should have been applied
instead of Article 54. It found that K.K. had been coerced into selling his shares, which had been
proven, among other things, by the fact that he had been granted political asylum in Germany in
2009 and the status of a person persecuted for political reasons by the previous regime in 2012. It
also took into account the fact that K.K. had voiced his grievances about the coercion before the
relevant domestic authorities as early as December 2009.
Pending a decision in those proceedings, the judge assigned to the case at first instance, Judge T.U.,
granted K.K.’s application for a preliminary injunction to freeze both Rustavi 2’s corporate assets and
all of the owners’ shares in the company. Appeals against that ruling were all dismissed in November
2015.
Throughout the proceedings, the applicants made a series of unsuccessful recusal requests,
complaining that judges examining their case lacked independence and impartiality. The Supreme
Court found in particular that the judges had been right not to withdraw from the case. It referred,
among many other arguments, to various public interviews by Rustavi 2’s Director General between
September 2015 and March 2017, finding that he had made unacceptable insults against the judges
of the first and appellate instances and had even confirmed that he had intentionally attacked Judge
T.U. to provoke his recusal.
According to the applicants, the proceedings against them were a disguised attempt to silence
Rustavi 2, an independent television channel, and were part of a wider orchestrated campaign
against them from 2012 when the new ruling party, the Georgian Dream Coalition (“the GDC”), came
to power. They alleged that the campaign included among other things: criminal proceedings being
brought against the Director General of Rustavi 2 for corruption; alleged Government wiretapping of
Rustavi 2’s premises; a national audit of so-called “people-meters”, devices used to monitor people’s
3
viewing behaviour by private television channels such as Rustavi 2; numerous interviews given to the
media by the GDC and its leaders concerning the ownership row; and the suicide of another former
owner of Rustavi 2 who had publicly declared that he also intended to claim back the channel.
The Government contested the applicants’ allegations, arguing that the way in which they presented
the incidents was deliberately misleading, incomplete or unrelated to the dispute before the
European Court of Human Rights.
Following the decision by the Supreme Court, Rustavi 2 (the first applicant) requested that the
European Court grant an interim measure under Rule 39 of its Rules of Court, based on fears of
irreparable harm to the television channel’s rights under Article 10 (freedom of expression). The
Court granted the interim measure, indicating to the Georgian Government that the enforcement of
the final domestic decision of March 2017 should be suspended, and that the authorities should
abstain from interfering with the first applicant company’s editorial policy. The Court subsequently
decided to extend that measure until further notice.
Complaints, procedure and composition of the Court
The applicants brought a number of complaints about the injunction and main proceedings
concerning the ownership dispute over Rustavi 2, alleging that they had interfered with their rights
under Article 6 § 1 (right to a fair trial), Article 10 (freedom of expression), Article 18 (limitation on
use of restrictions on rights) and Article 1 of Protocol No. 1 (protection of property).
They all complained that those proceedings had not been fair because the judges examining their
case had lacked independence and impartiality and had been a disguised attempt to silence the only
independent television channel in the country.
Rusatvi 2’s (the first applicant) complaints focussed on the injunction proceedings, while its owners
(the second to fourth applicants) specifically alleged unfairness in the main proceedings because of
an unwarranted change in the judicial approach to the examination of the ownership dispute by the
Supreme Court and because the reasons given by that court in its decision of March 2017 had been
insufficient and/or arbitrary.
The application was lodged with the European Court of Human Rights on 3 March 2017.
The Public Defender of Georgia and the Georgian Young Lawyers’ Association were granted leave to
intervene in the proceedings as third parties.
Judgment was given by a Chamber of seven judges, composed as follows:
Angelika Nußberger (Germany), President,
Yonko Grozev (Bulgaria),
Vincent A. De Gaetano (Malta),
Síofra O’Leary (Ireland),
Mārtiņš Mits (Latvia),
Lәtif Hüseynov (Azerbaijan),
Lado Chanturia (Georgia),
and also Milan Blaško, Deputy Section Registrar.
Decision of the Court
Complaints brought by Rustavi 2
The Court declared inadmissible all the complaints brought by the first applicant, Rustavi 2, under
Article 6 § 1, Article 10, Article 18 and Article 1 of Protocol No. 1.
4
The part of the application concerning the injunction proceedings had been submitted out of time.
In particular, for an application to be admissible it had to be lodged within six months of the last
judicial decision in the case; Rustavi 2 had submitted its complaints about the injunction proceedings
in March 2017, more than six months after the final decision had been taken by the domestic courts
upholding the injunction measures, namely in November 2015.
Furthermore, it found that the television channel did not have standing to bring a complaint about
the main proceedings, namely the ownership row over Rustavi 2 shares. A person or company could
not complain of a violation of the Convention in proceedings to which he or she had not been a
party. Rustavi 2 was the object rather than the subject of the ownership dispute and it could not
therefore claim to possess an interest.
Complaints brought by Rustavi 2’s owners
The Court also declared inadmissible most of the complaints brought by Rustavi 2’s owners, the
second to fourth applicants, under Article 6 § 1, Article 18 and Article 1 of Protocol No. 1, finding
them to be manifestly ill-founded.
It considered that the Supreme Court applying Article 85 instead of Article 54 of the Civil Code in the
case had not been a change in approach at cassation level but a clarification of a point of law.
Indeed, it had simply accepted the argument of duress that had been made by K.K. and contested by
Rustavi’s owners from the beginning to end of the proceedings. Moreover, both sides had been
given equal opportunity to make written submissions and, on that basis, the Supreme Court had
been fully capable of properly reviewing the lower courts’ interpretation of the relevant legal
provisions. The principles of a fair hearing under Article 6 § 1, including equality of arms and
adversarial nature of the proceedings, had not therefore been infringed.
Nor could the Court find, contrary to what was alleged by Rustavi 2’s owners, any “manifest errors of
assessment” in the reasons given by the Supreme Court for its judgment of March 2017.
The relevant applicants’ complaints calling into question the outcome of the ownership dispute did
not raise a prima facie issue under Article 1 Protocol No. 1 because that provision did not guarantee
the right to a particular outcome in civil litigation. The ownership dispute could not therefore
amount to an interference with their property rights.
Because Article 1 Protocol No. 1 was manifestly ill-founded and Article 18 could never be relied on
alone, it followed that the second to fourth applicants’ complaint about a State-led campaign against
Rustavi 2 brought under Article 18 in conjunction with Article 1 Protocol No. 1 was also manifestly illfounded.
The Court found, however, that the complaints about the judges deciding the ownership dispute had
raised serious issues of facts and law which required an examination of the merits.
It addressed each of the levels of jurisdiction separately and found that none of the judges had
lacked either independence or impartiality.
First, it examined the second to fourth applicants’ challenge to T.U., the judge appointed to examine
the case at first instance. It found no substantiation for the allegation that K.K. had decided to
include a copyright claim in his action that had clearly lacked merit so that he would be sure to have
Judge T.U., who was specialised in intellectual property disputes, sitting in his case. The Court found
that there had been two other judges specialising in intellectual property law at that judicial level
and, in any case, Judge T.U. had been assigned according to the usual procedure, namely in
alphabetical order.
The allegation that criminal proceedings against the Judge T.U.’s mother for attacking her son-in-law
had been revived to influence the judge was likewise unsubstantiated. The Court found that any
delay in the proceedings against his mother could be explained by the fact that it was the
5
prosecuting authorities’ practice in such cases, involving a senior citizen in poor health accused of an
offence which was not of a serious nature, to only bring charges after all attempts at reconciliation
had failed.
As concerned Facebook posts published by Judge T.U.’s wife about Rustavi 2 and its director, they
had been negative but they did not comment on the eventual outcome of the ownership dispute,
nor did they give the impression that his wife, who was the author of the posts, had been attempting
to influence her husband or exploit his judicial position. Moreover, there was no evidence to show
that the judge had actually approved of his wife’s personal opinions. On the contrary, the case file
showed that Judge T.U. had sufficiently distanced himself from the opinions expressed by his wife,
an everyday citizen who had every right to be politically and socially active, while adjudicating the
case.
Furthermore, the Court did not see anything to suggest that Judge T.U. had been unduly close to
N.G., one of three judges who had adjudicated the case on appeal. There was nothing improper
about both of those judges being founding members of the Union of Judges of Georgia, an
association representing acting judges’ interests, or about the fact that they were still members of
the association, together with some 50 other judges, at the time of the ownership dispute.
Nor did the Court find anything untoward about the association’s statements in October 2015 in
defence of the judiciary in general and Judge T.U. in particular following what it considered to be
abusive public attacks by Rustavi 2’s Director General. In televised statements the Director General
had notably referred to Judge T.U. as a “Sonder-judge” (which has a Nazi connotation) and had used
such expressions as “soil will burn under the judge”, “illiterate”, “corrupt”, “puppet”, “pseudoservant of Themis”, “armed with an axe”, “for hire” and “scoundrel”. The Director General had not
chosen to voice his criticism in a courtroom, although he had every possibility to do so, but via
Rustavi 2’s powerful media, without even hiding his intention to provoke the judge and artificially
create conditions for his recusal.
Lastly, as concerned the cassation proceedings, the Court looked at allegations of impartiality against
one of the judges, M.T., sitting on the bench of the Grand Chamber of the Supreme Court and
against that court’s President.
It noted that M.T. had made financial contributions to the new ruling party, the GDC, but found that
that was not sufficient to disqualify her. It would normally be preferable for a judge to refrain from
contributing to political parties or campaigns, however, she had contributed to the political party in
question some years previously, at a time when she had been employed in the private sector.
Furthermore, the ownership dispute over Rustavi 2 shares had concerned two private parties.
Neither the GDC as a political party nor any State authority had been a party to the proceedings or
had been related to the substance of the ownership dispute.
The Court considered that the involvement of Rustavi 2’s Director General, when he had been a
member of the High Council of Justice, in disciplinary proceedings against the President of the
Supreme Court, which had resulted in her dismissal from her judicial office some years previously,
was a serious matter which could raise an arguable claim about lack of impartiality. However, the
Supreme Court had extensively addressed the relevant arguments of Rustavi 2’s owners, giving a
thoroughly reasoned ruling which convincingly dissipated any fears in that regard. Furthermore,
there was no evidence in the case file to show that the President of the Supreme Court had ever
expressed any views at all about Rustavi 2, its director or the latter’s role in the disciplinary
proceedings conducted against her a decade ago. In any event, it was difficult to see any long-lasting
effects of her dismissal from her judicial post, given that she had subsequently risen to the position
of the President of the highest judicial body in the country.
When examining the challenges against those two Supreme Court judges, the Court bore in mind in
particular that Rustavi 2’s owners had systematically introduced ill-founded recusal requests against
6
many different judges at all three levels of jurisdiction. Such actions could be considered an attempt
to paralyse the administration of justice, and could even be indicative of the abusive nature of the
motion for bias.
The Court therefore found that there had been no violation of Article 6 § 1 as concerned the
independence and impartiality of the judges who decided on the ownership dispute over the Rustavi
2 television channel.

Europe’s ‘common home’ must be maintained and continue to wield influence, says PACE President

Published in Politics
Monday, 08 April 2019 15:10

In her opening speech at the PACE Spring Session, the President today reiterated the importance of preserving “the common home which provides a place to live for 830 million people and is governed by a common legal framework that protects the individual against arbitrary decisions and authoritarianism and defines our rights and fundamental freedoms”.

She called on PACE members to meet the expectations of “millions of Europeans who are reaping the tangible benefits of closer union between the peoples and nations of Europe, for which the Council of Europe has worked”.

For the President, the 830 million Europeans do not aspire to “a Europe of division where dialogue gives way to confrontation, a Europe torn apart once again by geopolitical tensions, where new borders and new walls would spring up. The European acquis, the values that unite us and the common legal framework that we have succeeded in building are more important for our fellow citizens who want a Europe of peace, prosperity, co-operation and dialogue.”

“I am not suggesting for one minute that we should compromise our values – that would be a betrayal of the European project. All members of our common European home have the same duty to abide by the house rules. They also have the same duty to help it run smoothly, including by honouring their financial obligations, just as they have equal rights - and an obligation - to participate in the co-operation mechanisms and forums for dialogue that exist within our common home,” she concluded.

Parliamentary Delegation Participates in PACE Sessions

Published in Video
Wednesday, 22 April 2015 16:21

“You know that human rights and fundamental freedom are regularly violated on the territories of Georgia occupied by Russia. It is of the great concern as none of the international organizations are allowed to the territory. We have the information that the population there encounters lots of problems. Violation of their fundamental rights is of dramatic character. What are the steps by CoE and Secretary General in response to this”, - Guguli Magradze addressed to the Secretary General, Thorbjørn Jagland.

“It concerns as we well. I cannot state these territories are totally closed to us. We had the experts assigned there. Human Rights Commissioner visited these territories but we need more access and we work on this with the relevant bodies. We will be able to do more in Abkhazia than in South Ossetia. Our general problem is “black holes” in human rights and rule of law – in Europe, when CoE has no access. I mentioned it in my annual report on human rights. It is a very sensitive issue but we cannot tolerate the fact that some territories are partially or totally closed to other observers as these territories are under the jurisdiction of Court of Human Rights. The convention is applied to these territories. Thus, we need more access”, - he replied.

Georgian MPs, E. Beselia, Z. Kvachantiradze, G. Magradze, L. Berdzenishvili, Ch. Taktakishvili and G. Kandelaki attend PACE sessions.

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