On 18 September 2015, at the third hearing, the Parliament of Georgia adopted the amendments which will be introduced into the Law on the Prosecutor’s Office. A member of the Free Democrats, Shalva Shavgulidze, believes that: "The Law is just a mockery to depoliticise the structure and effectively leaves the Prosecutor’s Office under the control of the ruling political entity." Mr Shavgulidze has criticised the proposed amendments multiple times and called for their authors to take the recommendations of the Venice Commission into consideration. He asserts that according to these recommendations, the principal precondition for depoliticising the Prosecutors’ Office is to curb the influence of the government and the Parliamentary Majority in the process of the appointment of the Chief Prosecutor but the amendments fail to include this change.

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According to the Law on the Prosecutor’s Office, a Prosecutorial Council should be established in order to increase the level of independence of the Prosecutor’s Office to ensure its impartiality and protect it from political influence. This Council would include representatives of the executive and legislative branches of the government together with members nominated by the civil sector. The Council will take part in the appointment and dismissal of the Chief Prosecutor and in any disciplinary proceedings against him. As clarified by the authors of the law, the amendments take the opinions of international organisations into consideration, correspond with European standards

and meet the recommendations issued by the OSCE and the Committee of Ministers of the Council of Europe.

On 7 July 2015, the Venice Commission, the Consultative Council of European Prosecutors and the OSCE/ODIHR’s preliminary conclusion

on the Prosecutor’s Office was published. Their conclusion underlines that the reform of the Prosecutor’s Office is proceeding in the right direction. However, at the present moment it cannot fully ensure that a complete depoliticisation of the Prosecutor’s Office will take place. The conclusion also includes weaknesses in the reform and offers alternatives towards addressing them.

The aforementioned conclusion further underscores that Georgia is one of the few countries where the Prosecutor’s Office is under the Ministry of Justice. Multiple reports from the Venice Commission assert that as a general trend, the Prosecutor’s Office is an independent institution. However, this is not mandatory for EU member states which choose their own models themselves but are ultimately responsible for preventing any unjustified intervention into the Prosecutor’s Office. Therefore, even though the Venice Commission does not have a particularly favourable attitude to the part of the Constitution of Georgia which mandates that the organs of the Prosecutor’s Office are under the Minister of Justice, it still believes that it will be possible to achieve the independence of the Prosecutor’s Office as well as depoliticise it if its recommendations are taken into proper account despite the fact that the proposed law fails to completely ensure this.

Further, the Venice Commission, the Consultative Council of European Prosecutors and the OSCE/ODIHR believe that some isolated reforms are not problematic but a combination of these reforms as suggested by the aforementioned model do create problems. For example, the fact that the candidacy for the Chief Prosecutor is nominated by the Minister of Justice means that the role of the government in the selection of the Chief Prosecutor needs to be decreased, thereby making the procedure less politicised. The Minister of Justice, who represents the government, nominates the candidacy for the Chief Prosecutor to the Prosecutorial Council without having to give any explanation or reasons for the selection. The selection decision is made by the Prosecutor’s Council which consists of nine members, one of whom is the Minister of Justice herself and the other four members elected by a simple majority of the Parliament of Georgia. The government again presents the Parliament with the candidacy endorsed by the Council with the Parliament voting the Chief Prosecutor into office by simple majority. Even though this model clearly indicates the active role of the Parliamentary Majority, the Venice Commission is of the opinion that it could be balanced by some alternative ways:

  1. The Venice Commission, the Consultative Council of European Prosecutors and the OSCE/ODIHR recommend that the Minister of Justice propose not one but several candidates for the position of the Chief Prosecutor and that the Prosecutorial Council then selects one of them. The draft law should specify that candidates proposed to the Prosecutorial Council have to be selected by the Minister following formal consultations with external independent actors such as the Georgian Bar Association, representatives of academia, civil society and the like. The Minister of Justice in turn will nominate those candidates to the Parliament of Georgia for further approval.
  2. The executive branch already exercises its influence sufficiently at the nomination stage through the Minister; therefore, the additional "consent" of the government would appear to be an unnecessary further requirement in this process.
  3. The Chief Prosecutor should be elected by a qualified majority of votes in the Parliament. Even though a two-thirds majority has led to political stalemates in the past, this solution for the Georgian context would secure the broadest political support for the person appointed as the Chief Prosecutor.
  4. However, the election of the Chief Prosecutor by a qualified majority of members of the Parliament may not be needed if the Prosecutorial Council has the necessary independence to avoid excessive political interference.

Several new amendments were added to the draft law after the aforementioned conclusion and the identified shortcomings (emphasised therein) were eradicated; namely:

  1. The Minister of Justice’s right to nominate the Chief Prosecutor’s candidacy was amended. In spite of the fact that it is still the Minister who has the right of the nomination, she should nominate at least three well-vetted candidates after consultations.
  2. In spite of the fact that the Chief Prosecutor will not be elected by a qualified majority of votes in the Parliament, the rule which establishes the Prosecutorial Council was amended. The amendments are given below:
  • The Prosecutorial Council should have 15 members instead of nine and is presided by the Minister of Justice.
  • Eight members of the Prosecutorial Council are selected by the Prosecutor’s Conference. Of these, at least one-fourth should be of the opposite sex.
  • The Parliament of Georgia elects two MPs for the Council. In this case, the authors of the law decided to opt for the quota alternative. Therefore, one MP should be from the Parliamentary Majority and another from those MPs who do not belong to the Parliamentary Majority.
  • Two members were added to the Prosecutorial Council which will be elected by the High Council of Justice of Georgia from the ranks of the judges of the Common Courts of Georgia.
  • The Parliament of Georgia also elects two members for the Council. Those members represent Georgia’s higher education establishments and civil society organisations.

The amendments demonstrate that the authors of the law did indeed take the recommendations of the Venice Commission, the Consultative Council of European Prosecutors and the OSCE/ODIHR into consideration. In spite of the fact that the Minister of Justice retains the chairmanship of the Council, the increase in the numbers of Council members, the involvement of the Parliamentary Minority, the curbing of the role of the Parliamentary Majority and the involvement of other independent organs, the balance of power in the Prosecutorial Council has become more or less even.

Of note is that the opinion of the Venice Commission, the Consultative Council of European Prosecutors and the OSCE/ODIHR to decrease the role of the executive government in the process of the appointment of the Chief Prosecutor was not taken into consideration. The aforementioned three bodies stated that as the representative of the government, the Minister of Justice nominates the candidacy for the Chief Prosecutor and, therefore, the additional "consent" of the government would be an unnecessary (p. 9).

According to the enacted changes, the Prosecutorial Council takes its decision by at least a two-thirds majority of the members with the Minister of Justice, chairing the Council, having the decisive vote in the case of a tie. If none of the candidates manages to obtain enough votes, the two best candidates will compete against each other in a run-off with the winner still needing to obtain two-thirds of the total votes. If a candidate still is not elected at this point, the procedure starts anew. If the Prosecutorial Council agrees upon one candidate, the Minister of Justice nominates that candidate to the Government of Georgia which gives its consent to nominate the candidate to the Parliament of Georgia. The law does not include the criteria that the government should use to select the candidate, in which case it is allowed to reject the candidate and whether or not this rejection should be documented. Of course, this raises the question of whether or not the government will make the nomination to the Parliament if it does not have an acceptable candidate and the Parliament will elect the candidate nominated by the government by simple majority. This indeed does not guarantee the depoliticisation of the system.

Conclusion

After the publication of the recommendations of the Venice Commission, the Consultative Council of European Prosecutors and the OSCE/ODIHR on the draft amendments to the Law on the Prosecutor's Office, the initial draft, as elaborated by the Ministry of Justice, was changed.  However, one of the most important recommendations particularly emphasised by the aforementioned three bodies has not been taken into account; namely, the Government of Georgia still exerts the right to give its consent for a candidate selected by the Prosecutorial Council for the nomination to the Parliament of Georgia with this right of the Government not being limited by the law.

Therefore, FactCheck concludes that Shalva Shavgulidze’s statement is MOSTLY TRUE.

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