Analysis of the Amendments in the Organic Law of Georgia on Political Unions of Citizens

Prof. Levan Izoria

Prof. Irakli Kobakhidze

Prof. Paata Turava

Declared Objectives and Legal Results of the Amendments

Declared Objectives:Transparency and Accountability

Selected tools:Disproportionate and Unconstitutional

Restrictions

Venice Commission Recommendations:Grave restrictions adopted after publishing

the Report

Fundamental Constitutional Principles

Principle of DemocracyFreedom of expression and right to participate in political

processes Rule of lawPrinciple of legal certaintyPrinciple of proportionalityGeneral Human RightsRight to form and join public associations (article 26)Right to free development of his/her personality (article 16)Right to free development of his/her personality (article 16);

right to private life (article 20)Freedom of expression (article 24)Labor right (article 30)Right to Property (article 21)

Article 261

Legal entity falling under the financial restrictions established for the political parties:

If it directly or indirectly is related to the political party (its expanses directly or indirectly are connected with the activities and objectives of a political party) or otherwise is under the control of a political party

Openly declares its political objectives and goalsWhich by its representative or other person

encourages voters to support particular political party or refrain from supporting particular political party

Article 261

conclusionsRecommendation of the international organizations: (Financial restrictions established for the political party could be

applied over the legal entities which directly or indirectly is related to the political party or otherwise) is under the control of a political party.

Example: Restrictions applied on the political foundations, youth organization etc.

Contradictory Examples: Restrictions do no apply on Trade Unions, Employers Unions etc.

Legal result: Restrictions can be applied arbitrary to any non-governmental

organization (NGO), media sources, commercial entities etc.

Article 261

Physical entity falling under the financial restrictions established for the political parties:

If he/she has declared political and electoral goals and objectives

A person related to him/herA person having business relation with him/herWho influences the will of the Georgian citizens,

who participate in elections, plebiscite and referendum and those actions are carried out to avoid the regulations provided by this law.

Article 261

conclusionsPolitical goals and objectives:Broad definition: not only coming into government

(restrictions applied to the foreign citizens)Electoral goalsBroad definition: not only the active electoral right A person related to him/herFamily member, neighbor etc.Restriction examples:The only legal source of income for physical entity is a

donation. He/she has no right to conduct commercial activities etc.

Identification of the subjects

The Chamber of Control requests information about the origin of transferred and received property of the political parties from the persons determined in the article 261(Article 341, para. “g”)

Problem: Total control → violation of principles of democracy and legal certainty and the articles 16, 26, 30 of the Georgian Constitution

Article 27

6. Donations on behalf of the other person or by the evading restrictions of the law will result (....)

7. If physical entities receive income wholly or partially from one source then the total annual amount of those donation transactions against one electoral subject should not exceed 500 000 GEL.

Problem → violation of legal certainty principle

Article 32

4. Political party is obliged to provide in its financial declaration information about the expenses of legal entities which are directly or indirectly under the control of those political parties.

Problem → impossibility of complying with the requirements of the law

Article 251

The total amount of State finances, donations and other type of incomes received by a political party or a physical and legal entity connected with this party should not exceed 0, 2% of the previous year GDP of Georgia.

5. The total amount of expenses and incomes of political parties enlisted in the political bloc should not exceed the thresholds established in the first paragraph of this article.

Problem → disproportionate restriction of the articles 26, 30 of the Georgian Constitution

Article 51

2. The rule determined in the first paragraph of this article (prohibition of the promise) does not operate on political and electoral promise, which is related to the future distribution of budgetary means and future state policy implementation.

Problem → possibility of using administrative resources

Article 341

2. The Chamber of Control of Georgia is authorized to:

f) In case of need, request information related to the finances of the political parties from the political parties, the administrative authorities and commercial banks;

g) If necessary, request information about the origin of transferred and received property of the political parties from the persons determined in the article 261

Problem → disproportional restriction of the articles 16 and 20 of the Georgian Constitution

Article 342 , paras.(1/2/3)

1. Receiving or concealing prohibited financial or in kind donations determined by the Georgian legislation will cause transaction of illegal donations to the state budget and party will pay ten times more fine of received financial and in kind donations.

3. Receiving and concealing information about financial and material donations prohibited by the Georgian law for political party’s benefit, will penalize those persons to pay ten times more amount of fine.

Problem → vague dispositions and disproportional functions

Article 342, paras.(7/8)

7. In case of multiple violation (...) Central Election Commission upon a recommendation of the Chamber of Control of Georgia is empowered to suspend registration of the electoral subject if the violation involves an offence committed during the year before election.

8. The Chamber of Control of Georgia sequestrates property of physical or legal entities (including bank accounts). This can be appealed to the court together with the resolution on offence. Appeal does not suspend action of the sequestration.

Problem → disproportional restriction of the articles 21, 26 and 28 of the Georgian Constitution and granting inadequate powers to the Chamber of Control.

Article 1641 of the Criminal Code of Georgia

Bribing of the voter:Envisages imprisonment up to 3 years or

administrative penalty legal entity (except political party) could

be liquidated or its right of activities may be banned or/and penalized

Problem → disproportionate restriction of the constitutionally guaranteed human rights (including article 26)

Status of the Chamber of Control

The Chamber of Control of Georgia shall supervise the use and expenditure of state funds and of other material values.

The authority, organisation and procedure activity and guarantee of the independence of the Chamber of Control shall be determined by law.

Final Conclusions

 Absurd legal norms:

251 /1; 251/5; 261/1/”c”; 32/4 Vague legal norms:

51/1; 261 /1/”a”; 261/2; 27/6; 27/7; CCG 1641

Disproportionate legal norms

341/2/”f”; 341/2/”g”; 342; CCG 1641

Status of The Chamber of Control of Georgia

Article 97 of the Constitution of Georgia:As a state control body of the use and

expenditure of state funds and other material values.

The authority, organisation and procedure activity and guarantee of the independence of the Chamber of Control shall be determined by law.

19

Para2.,Article 1, Law of Georgia on the Chamber of Control of Georgia

The general directions of the activity, the rules of execution and scope of the authority of the CCG is stated by only the present law

Article 6, Law of Georgia on the Chamber of Control of Georgia

To fulfill the tasks specified in the Constitution of Georgia and in the present law maintains audit competence

Maintains financial monitoring of the political unions of citizens

Monitoring institution should not be defined as a new institution according to the Para. 2 of the article 17 of the Law of Georgia on The Chamber of Control of Georgia

Para 21, Article 17 Law of Georgia on The Chamber of Control of Georgia

Additional Rights

Financial Monitoring of the political parties by the Chamber of Control of Georgia

Additionally the Chamber of Control was granted managing functions in the above-mentioned sphere.

Old version of sub-para. “g” para.2, of article 17, Law of Georgia on the Chamber of Control of Georgia

The CCG had no right to conduct financial audit of the usage and expenditure of the disposed state funds and other material values by the political unions of the citizens (parties).

Managing Functions

Sub-paras. “b”,”c”,”u” ,”i” of para. 2 of the Article 341

Articles 27 1 ,30, 32, 32 2