[Documents/Docheader.htm]Functioning of democratic institutions in Georgia
Doc. 10049
26 January 2004Report
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Rapporteurs: Mr Matyas E�rsi, Hungary, Liberal, Democratic and Reformers’ Group, and Mr Evgeni Kirilov, Bulgaria, Socialist Group
Summary
Georgia has just effected its third change of Head of State since its independence in 1991. For the first time, however, this change was effected remarkably peacefully. The Georgian population and the international community are placing high hopes in the new ruling coalition and its capacity to reform the country speedily and lastingly and to bring it back to the path of compliance with democratic rules.
This report also sets out queries and worries about Georgia's short and medium-term democratic future, particularly in respect of the following issues:
Georgia’s capacity to respect the principles of pluralist democracy and to hold the parliamentary elections on 28 March 2004 in full compliance with democratic standards;
the reshaping of political life, particularly the risk of the disappearance of the parliamentary opposition which acts as an institutional counterweight;
Georgia’s capacity to improve the functioning of its institutions so as to guarantee greater respect for the rule of law;
the need to re-engage in a genuine co-operation and constructive dialogue with the Council of Europe and its Parliamentary Assembly and to speed up reforms in accordance with the obligations and commitments entered into by Georgia when it joined the Organisation four and a half years ago;
the risks of internal destabilisation of the country and the continuing threats to the country’s territorial integrity.
I. Draft resolution
1. By means of the events of 22 and 23 November 2003, Georgia has just effected its third change of Head of State since its independence in 1991. For the first time, however, this alternation was effected remarkably peacefully. The Parliamentary Assembly is pleased that none of the political forces present made use of violence and that they kept events under control.
2. The Assembly notes that both the Georgian population and the international community are placing high hopes in the new ruling coalition and its capacity to reform the country speedily and lastingly and to bring it back to the path of compliance with democratic rules. These hopes must not be disappointed.
3. The Assembly intends to follow closely developments in the political situation in the country and expects the authorities to make tangible progress both in the preparation of the forthcoming parliamentary elections, so that these take place in full compliance with democratic standards and culminate in the free expression of the will of the Georgian people, and in a lasting improvement of the functioning of its institutions, so as to guarantee greater respect for the rule of law.
4. The Assembly expects the Georgian authorities to actively pursue a genuine and constructive dialogue with the Council of Europe and its Parliamentary Assembly and to speed up reforms in accordance with the obligations and commitments entered into by Georgia when it joined the Organisation four and a half years ago.
5. Where respect for pluralist democracy is concerned, the Assembly:
i. shares the conclusion of the international observation mission that the presidential election and partial parliamentary elections of 4 January 2004 constitute significant progress over the previous elections and bring the country closer to its commitments and to international standards where democratic elections are concerned;
ii. acknowledges that the organisation of the election in a very short period of time required a considerable effort by both the authorities and the international community and deserves praise;
iii. acknowledges that the Georgian authorities, particularly the Central Election Commission, generally demonstrated a strong political will to organise the elections of 4 January appropriately and to make improvements to the electoral process;
iv. notes that fraud and irregularities were committed during the election of 4 January, on a scale infinitely smaller than those committed at the time of the previous election of 2 November 2003, and that serious problems remain, especially in relation to the updating of the voters lists, the composition of the election commissions, voting procedures and the failure to respect the secrecy of the vote.
6. The Assembly considers that the parliamentary elections of 28 March 2004 are likely to be a genuine test of the Georgian authorities' capacity to organise truly democratic, free, fair, transparent and competitive elections, and a better indicator of Georgia's commitment to respecting the principles of pluralist democracy. It issues a warning to the authorities and calls on them to remedy without delay the instances of dysfunctioning noted during the presidential election.
7. To this end, the Assembly asks the Georgian authorities to adopt without delay a number of measures, which must be fully implemented when the forthcoming parliamentary elections are held on 28 March 2004, among them:
i. amendment of the Electoral Code and of the other electoral legislation and regulations, in full co-operation with the Council of Europe experts, and particularly the Venice Commission, so as to:
a. modify the composition of the Central Election Commission and of the election commissions at lower levels, in order to promote the principle of balanced, fair and equal representation of all political forces;
b. simplify the voting procedures and fully guarantee the principle of the secrecy of the vote;
c. ensure a clear segregation between governmental structures and the electoral authorities, and introduce a principle that the latter must be completely impartial;
ii. revision of the voters lists, with the creation as soon as possible of a single, centralised and computerised register of electors, and the final ending of the practice of registering voters' names on supplementary lists on election day itself, a practice which entails a considerable risk of fraud.
8. The Assembly also states its concern about the current reshaping of Georgian political life and the risk of a disappearance of all parliamentary opposition after the forthcoming elections and, in consequence, of any true institutional counterweight. If the elections were to culminate in the sole representation in Parliament of the ruling coalition, the Assembly might fear for the future of democratic pluralism in Georgia. It therefore recommends that the Georgian authorities amend the Constitution and the corresponding legislation so as to reduce the threshold for representation applying to the ballots based on proportional lists from 7% to at least 5%.
9. Where the functioning of institutions and respect for the rule of law are concerned, the Assembly:
i. declares its extreme concern about the excesses which for years accompanied the autocratic exercise of power in Georgia: failure to respect the rule of law, the prevalence of nepotism and cronyism, endemic and general corruption at every level of government and society, failure to implement legislation and the weakness of representative institutions;
ii. expects the authorities to put a stop to these excesses and return to institutional functioning which complies with the standards, principles and values of the Council of Europe;
iii. takes note of the Georgian authorities' wish to speedily make a number of institutional changes, through constitutional and parliamentary reform, in order to rationalise relations between the executive and the legislature and to increase the efficiency of governmental and parliamentary activity;
iv. urges the Georgian authorities as speedily as possible to request the assistance and expert opinion of the European Commission for Democracy through Law (Venice Commission) on draft constitutional amendments, without awaiting their complete finalisation;
v. states its willingness to help the Georgian Parliament to revise its rules of procedure and to restructure and reorganise the work of its committees.
10. Where the honouring of Georgia's commitments vis-�-vis the Council of Europe is concerned, the Assembly points out that in Resolution 1257 (2001) on the Honouring of obligations and commitments by Georgia, it had stated that Georgia was far from honouring all its obligations and commitments as a member state. It therefore expects the authorities to change their attitude radically and to submit to the Assembly a precise timetable for the implementation of its commitments, and more particularly:
i. where the fight against corruption is concerned, the Assembly urges the Georgian authorities to implement without delay the recommendations made to it by the Council of Europe's Group of States against Corruption (GRECO) and to rapidly ratify the Convention on laundering, search, seizure and confiscation of the proceeds from crime;
ii. where reform of the law enforcement agencies is concerned, the Assembly urges the authorities to involve the Council of Europe closely in this and to rapidly request its expert opinion on the draft legislation in preparation, particularly that relating to the police and public prosecutor office; it also expects the authorities to take fully into account previous and future Council of Europe recommendations and expert opinions on the Code of Criminal Procedure.
11. Finally, the Assembly expresses extreme concern about the risks of internal destabilisation of Georgia and about the continuing threats to the country’s territorial integrity. It declares its attachment to effective respect for the rule of law throughout Georgian territory. It calls on the parties involved actively to re-engage in dialogue.
12. While acknowledging the outstanding mediation role played by the Russian Federation, and particularly by its Minister for Foreign Affairs, Igor Ivanov, in the peaceful settlement of the political crisis, on 23 November 2003, the Assembly calls upon the Russian authorities to honour the commitment they made at the OSCE Summit in Istanbul in 1999 to withdraw their troops from Georgia and to close their military bases. It recalls in this respect its Recommendation 1580 (2002) on the situation in Georgia and its consequences for the stability of the Caucasus region.
13. Due to theextraordinary character of the transition that took place in Georgia, the Assembly instructs its Monitoring Committee to negotiate with the new authorities of Georgia the new deadlines under which the new authorities will be obliged to fulfil the commitments which Georgia undertook upon its accession to the Council of Europe, to review those commitments and to present a report to the Assembly.
II. Draft recommendation
1. The Parliamentary Assembly refers to Resolution … (2004) on the functioning of democratic institutions in Georgia, in which it states that it expects the Georgian authorities, inter alia:
i. to actively provide evidence of their interest in anchoring their country resolutely within the Council of Europe and to strengthen their co-operation and re-engage in a genuine and constructive dialogue with the Council of Europe and its Parliamentary Assembly;
ii. to put a stop to the excesses which for years accompanied the autocratic exercise of power in Georgia and to demonstrate their willingness to ensure institutional functioning which complies with democratic standards and with the principles and values of the Council of Europe;
iii. to speed up reforms in accordance with the obligations and commitments entered into by Georgia when it joined the Organisation;
iv. to demonstrate their capacity to respect the principles of pluralist democracy, to organise parliamentary elections on 28 March 2004 which are truly democratic, free, fair, transparent and competitive and to remedy without delay the instances of dysfunctioning noted at the time of the election of 4 January 2004.
2. The Assembly recommends that the Committee of Ministers strengthen the Organisation's co-operation with the Georgian authorities, invites it to rapidly carry out a comprehensive and precise evaluation of the needs and, on this basis, to reorient its programme of co-operation and assistance towards consolidation of the rule of law, the creation of truly democratic institutions in Georgia and the effective implementation of legislation in conformity with the Council of Europe's standards. In order to gauge over the medium term the effectiveness and true impact of the activities to be carried out, the Assembly also recommends that the Committee of Ministers adopt a proper evaluation mechanism for its programme of assistance.
3. The Assembly more particularly recommends that the Committee of Ministers:
i. where respect for pluralist democracy is concerned, help the Georgian authorities to revise the Electoral Code and the electoral legislation and regulations which will have to be implemented in the context of the partial parliamentary elections of 28 March 2004, particularly in relation to changes in the composition of the election commissions, the simplification of voting procedures, respect for the secrecy of the vote and the impartiality of the electoral authorities vis-�-vis governmental structures;
ii. where the functioning of institutions is concerned, help the Georgian authorities in their plans for constitutional and parliamentary reform and ask them to send as speedily as possible any draft amendments to the Constitution, before these are even finalised, to the European Commission for Democracy through Law (Venice Commission);
iii. where respect for the rule of law and the functioning of the law enforcement agencies are concerned, provide legal expert opinions on several elements of draft legislation under preparation, particularly the new draft law on the police and the draft law amending the law on the public prosecutor office and continue to provide expert opinions on the Code of Criminal Procedure.
III. Explanatory memorandum by the co-rapporteurs
I. Introduction
1. Georgia has been independent since 9 April 1991 and became a member of the Council of Europe on 27 April 1999. International observers expected, in 2003, to be evaluating Georgia's progress in terms of pluralist democracy and its ability to organise free and fair elections capable of leading to a true democratic alternation of power.
2. A monitoring procedure covering the obligations and commitments entered into by Georgia when it joined the Council of Europe has now been running for over four years [see Opinion No 209 (1999)]. On 25 September 2001, the Monitoring Committee presented to the Assembly its first report on the honouring of obligations and commitments by Georgia[1]. The Assembly then adopted Resolution 1257, concluding that "although some progress has been made since accession, Georgia is far from honouring its obligations and commitments as a member state of the Council of Europe”.
3. We visited Georgia several times during 2003, from 12 to 14 February, from 3 to 5 June, from 7 to 11 October (during a pre-election mission), from 30 October to 3 November (during a mission to observe the parliamentary elections of 2 November) and from 22 to 25 November (a visit initially planned to observe the second round of the parliamentary elections). We also travelled to Georgia early in 2004, on the occasion of the presidential election, from 2 to 6 January.
4. It was during the two latest missions that we had an opportunity to experience at first hand the fundamental political events which brought about major changes in the political physiognomy of Georgia. We also held several practical and productive discussions with Georgia’s political leaders, including Nino Burjanadze, Mikheil Saakashvili and Zurab Zhvania.
5. We are grateful to Mr Plamen Nikolov, Special Representative of the Secretary General of the Council of Europe to Georgia, to the officials of the Council of Europe Information Centre in Tbilisi and to the secretariat of the Georgian parliamentary delegation for their active contribution to the smooth conduct of our successive visits.
6. This report gives the requisite description of the political events which have occurred in Georgia over the past three months. It also sets out our queries and worries about the country's short and medium-term democratic future, particularly in respect of the issues listed below:
the holding of partial parliamentary elections on 28 March 2004;
the reshaping of political life, particularly the risk of the disappearance of the parliamentary opposition which acts as an institutional counterweight;
the existence of a plan to amend the Constitution to alter the republic’s institutions;
the need for new impetus to be given to co-operation with the Council of Europe with regard to Georgia's compliance with its obligations and commitments;
the risks of internal destabilisation of the country.
II. POLITICAL EVENTS
A. A brief historical overview
7. It may be useful to point out that, in Georgia, since it gained independence, accession to power and the alternation of political power have been dictated more from the streets than through the ballot box… although ballots have sometimes subsequently (and hugely) vindicated the decisions which had come from the streets. All winners have won with comfortable majority, always against the background of a deep political divide in the society.
8. Zviad Gamsakhurdia was democratically elected President of Georgia in May 1991, receiving 87% of the votes (after the nationalist coalition which he led had won both the October 1990 parliamentary elections and the April 1991 local elections). He was deposed seven months after being elected, in January 1992, in a coup d'etat. The military council which took power called on Edward Shevardnadze in March 1992. He was elected Speaker of Parliament by universal direct suffrage, receiving over 90% of the votes, in October 1992. After the new Constitution had come into force, he was elected President of Georgia in November 1995, receiving over 77% of the votes. In April 2000, he was re-elected, with almost 80% of the votes cast.
9. In our previous report, mentioned above, we deplored the lack of preparation, confusion and serious violations which had prevailed during the presidential election of April 2000. At that time, we ironically pointed out that these had resulted in a “Gamgebelis elected President” (Gamgebelis are appointed governors). The local elections held in June 2002 were organisationally disastrous and gave rise to all kinds of fraud and violations of the Electoral Code.
10. The preparation of the parliamentary elections of 2 November 2003 was our main cause for concern during the three missions which we carried out in February, June and October 2003 respectively, during which we emphasised the need for the national authorities to make substantial progress in the organisation of the elections, and also issued a solemn warning of the risk that the elections might not be free and fair. On our initiative and as a last resort, President Schieder sent a letter to President Shevardnadze in July 2003 conveying our serious concern that the application of the election law in Georgia did not give all the necessary guarantees that the elections on 2 November would take place under normal conditions, and requesting that the Georgian authorities take the necessary measures as soon as possible to establish the proper legal framework.
B. The parliamentary elections of 2 November 2003 and their consequences
11. All the elections which have taken place to date in Georgia have been hallmarked by massive fraud and diverged radically from the relevant international standards. The parliamentary elections held on 2 November, in respect of which we had constantly expressed the most extreme concern, were thus no exception to the rule. They were undeniably far worse than we had thought they would be. The unprecedented extent of fraud - systematic and at every level - led to a total falsification of the results [2]. There is scarcely any doubt that the results did not reflect the voters' wishes at all, whatever they may have been. This is what sparked the flames.
12. President Shevardnadze, whose political position was weakened, and whose excessive unpopularity had worn him down after declaring the state of emergency which was perceived in general as a threat, was forced to resign on 23 November in the face of popular pressure and public exasperation, following three weeks of virtually daily demonstrations. We were present when the largest of these took place, on Saturday 22 November, and up to 100 000 people are said to have taken part (the figure seems probable, although it cannot be verified). These demonstrations, orchestrated by the opposition, under Mikheil Saakashvili, leader of the National Movement, Nino Burjanadze and Zhurab Zhvania, leaders of the Democrats, and by the young students of the Kmara (Enough) movement, were remarkably peaceful. President Shevardnadze's decision to withdraw in order to spare his country a major crisis was duly applauded by all the international observers.
13. The political events which took place on 22 and 23 November derived precisely from the publication by the Central Election Commission, on 20 November, of the results of the parliamentary elections of 2 November 2003, according to which the opposition, which was convinced that it had won, found itself relegated to third place or worse.
-
For New Georgia (Shevardnadze):
21.32%
38 seats
-
Union of Democratic Revival (Abashidze):
18.84%
33 seats
-
National Movement (Saakashvili):
18.08%
32 seats
-
Labour Party:
12.04%
20 seats
-
Burjanadze-Democrats (Burjanadze, Zhvania):
8.79%
15 seats
-
New Rights:
7.35%
12 seats
14. There is a considerable discrepancy between these official results and the figures based on the calculations of ISFED, a national organisation which observes elections, and on exit poll data, which both indicated that the National Movement had a clear lead over the For New Georgia bloc.
ISFED Exit polls
-
National Movement (Saakashvili):
26.60%
20.07%
-
For New Georgia (Shevardnadze):
18.92%
14.20%
-
Labour Party:
17.36%
14.10%
-
Burjanadze-Democrats (Burjanadze, Zhvania):
10.15%
8.10%
-
Union of Democratic Revival (Abashidze):
8.13%
7.30%
-
New Rights:
7.99%
6%
15. The arrival in power of a party which opposed President Shevardnadze was, in our opinion, a direct result of massive and systematic fraud during the elections, as well as of the total lack of political will on the authorities' part to organise a genuine democratic electoral process. The population showed profound lassitude and a lack of trust in the electoral process. Popular discontent was obvious. But, for the first time in the country's history, not a drop of blood was shed; neither the law enforcement agencies nor the demonstrators used violence, remaining in control of events. In any case the declaration by President Shevardnadze of a state of emergency, on 22 November, was a futile measure.
16. The way in which events accelerated immediately gave rise to a confused constitutional and institutional situation, particularly because of the prevailing state of emergency. Solutions were speedily found to the problems arising: interim Presidency, legitimacy of the outgoing parliament and of the one elected on 2 November, organisation of new polls, and so on. These were matters we had also raised with the various people to whom we spoke during our visit. It seemed to us that the new authorities were extremely concerned to make their action constitutionally lawful and to avoid any kind of institutional vacuum occurring in the country.
17. Article 50-4 of the Constitution states that “the authority of the previous Parliament ceases immediately after the first meeting of the newly elected Parliament”. The President of the Constitutional Court as well as the Deputy President of the Supreme Court told us that the Parliament elected on 2 November and summoned by President Shevardnadze to a sitting on 22 November has not validly constituted itself, since the powers of its members have not been dully ratified and the parliamentarians have not taken the oath. Therefore, the parliament elected in 1999 remains in office.
18. We also questioned whether it was lawful for President Shevardnadze to convene an inaugural sitting of Parliament on 22 November. Article 51 of the Constitution states that "The first sitting of the newly elected Parliament shall be held within 20 days after the elections (…) The Parliament will begin its work when the election of two-thirds of the Members of Parliament has been confirmed ". As the Parliament was convoked within 20 days reckoned after the first voting day in a two round election system, we believe that such convocation was illegal, because if elections are held in two separate days due to the two round election system, the 20 days should be reckoned from the second round of the elections, being the day when elections are implemented. Given the high number of cases still pending before the courts at the time of the convocation, the risk of complete or partial invalidation of the elections by the Supreme Court, and the fact that the second round in the constituencies using majority voting was scheduled for 23 November, it is clear that Parliament should not have been convened while two-thirds of its members had not been definitely confirmed in office.
19. In pursuance of Article 76 of the Constitution, Nino Burjanadze, as Speaker of Parliament, took office as acting President of Georgia. Gigi Tsereteli, Deputy Speaker of Parliament, took over the Speaker's office.
20. The Constitution restricts the powers of the acting President, who may not dismiss from office members of the government. While the former government has not been formally dismissed, resignations of varying degrees of spontaneity have been numerous since the opposition took power on 23 November (the Minister of State, Minister of the Interior and Minister for Foreign Affairs all resigned within the week).
21. As always happens when power changes hands, the political and institutional scenes changed drastically.
22. On 27 November, the Parliament, in extraordinary session, approved the appointments of Zhurab Zhvania as Minister of State responsible for coordinating government activities, Georgi Baramidze as Minister of the Interior, and Zurab Noghaideli, who had held the post between 1999 and May 2003, as the new Minister of Finance.
23. Changes also took place at local level. Eight of the nine governors of regions resigned from office, with varying degrees of spontaneity. At least 15 district governors were similarly replaced.
C. The presidential election of 4 January 2004
24. On 25 November, Parliament unanimously decided that the presidential election would take place on 4 January 2004, in accordance with Article 76-3 of the Constitution, which provides that a presidential election must be held within 45 days of the resignation of the Head of State.
25. On 26 November, Mikheil Saakashvili was nominated as the single candidate for this election of the two opposition political parties which had started the protest movement. Another five candidates stood against him.
26. The presidential election which took place on 4 January 2004 was conducted in far better conditions than the parliamentary elections of 2 November 2003[3].
27. The international election observation mission concluded, in its preliminary report dated 8 January, that the presidential election “demonstrated notable progress over previous elections, and brought the country closer to meeting international commitments and standards for democratic elections” [4].
28. Where the results are concerned, while it is no surprise that Mr Saakashvili received 96.27% of the votes, as he had no real competition, the very high turnout (85%) was a good result, although it may give rise to scepticism and puzzlement.
29. It is obvious that Georgian citizens had no other alternative but to support the new governing team. The January vote should then be better considered as a plebiscite in favour of the transition of power or a referendum of confidence to the new coalition in power. It is realistic to considerer that a large portion of the vote supporting Mikeil Saakashvili was a protest vote against the previous regime and a hope vote for radical changes.
30. The new authorities in power have shown a strong political will to organise appropriate elections and to make improvements to the electoral process. The organising of the presidential election within a very short period required a considerable effort to be made on the spot by both the authorities and the international community.
31. The Central Election Commission did good preparatory work. Fraud and irregularities were observed during the voting, but these were not planned on a large-scale, as used to happen previously.
32. However, the new authorities took several decisions opened to wide criticism, originally aiming at increasing “transparency” of the voting process. Contrary to all previous elections, the voting booths had no curtain at all and the voting was taking place in full view of commission members and observers. The voting process itself is questionable: the voters had to hand their ballot to a commission member who would stamp it, then take their ballot back and insert it into the envelope before dropping it into the ballot box. What secrecy of the vote?
33. While an understanding attitude may be taken to the recurrent problems - starting with that of the updating of the electoral rolls (see paragraphs 44 et seq below) -, the same will not apply to decisions taken under pressure because of the shortage of time for preparation. These measures have led to the serious failures which have been scrutinised and are therefore not acceptable. They will not be tolerated during the parliamentary elections of 28 March.
34. Mikheil Saakashvili, the President elect, will take the oath of office on 25 January 2004. Ms Burjanadze, the acting President, will resume office as Speaker of Parliament.
III. NEW AUTHORITIES, SAME CHALLENGES
35. The new team in power has to face up to some huge challenges, which the previous team was unable to resolve, and which it sometimes even aggravated. Domestically, there is everything to do: Georgiastill cannot exert sovereignty over its internationally recognised territory; it is on the verge of bankruptcy and economic chaos. A state genuinely governed by the rule of law needs to be built, corruption and crime must be combated, and, at the same time, a proper economic programme needs to be drawn up to combat poverty and improve infrastructure and energy supplies, etc. The new team will also have to re-engage in dialogue with the autonomous or separatist regions, so as to forestall any new threat of the country breaking up. Yet the first challenge is a democratic one: the new authorities must straight away obtain a seal of approval through universal suffrage.
A. The parliamentary elections of 28 March: a true test for pluralist democracy
36. The presidential election of 4 January not having been genuinely competitive, it is the partial parliamentary elections of 28 March which will provide the true test of democracy.
37. On 25 November, the Supreme Court invalidated the results of the proportional list-based voting during the November parliamentary elections (ie 150 seats of the total of 235 [5]), acknowledging that the complaints lodged about fraud and falsification were justified. The Parliament elected in 1999 and in office before the 2003 election is in practice to continue until fresh elections take place.
38. On 9 January 2004, 28 March was chosen as the date for the parliamentary elections. These elections will be only for the 150 seats to be filled on the basis of proportional list voting. The results of the majority voting of 2 November have not in fact been annulled, no collective complaint having been made to the courts. Thus the 75 Members of Parliament elected on the basis of majority voting (60 seats were filled on 2 November, while 15 were filled on 4 January through a second round of voting, or in a ballot held because of the annulment of the ballot of 2 November) retain the seats for which they were elected.
39. It is rather paradoxical that, after the 28 March, Georgia will have a parliament composed of one third of deputies elected in deeply flawed elections (those which took place on 2 November), according to unanimous international assessments.
40. The Georgian authorities must show their willingness to organise truly democratic, free, honest, fair, competitive and peaceful elections, and demonstrate their ability to achieve this aim. They must resolutely leave behind the bad practices adopted in the country since independence, and which, through inertia and a clear lack of political will, have led to irregular and fraudulent elections.
41. We thus expect of the authorities an unfailing commitment, working alongside the international community on the spot, to the efficient and responsible organisation of future elections culminating in the free and democratic expression of the will of the Georgian people. The election of 4 January restored hope to the population, a hope which must not be disappointed.
42. The Georgian authorities enjoy not only technical and legal assistance from the international community, but also an uncommon amount of financial assistance. Through the OSCE, Georgia has received 4 million Euros in financial support for the two elections.
43. The opposition parties, which we met during our latest visit, would like the parliamentary elections to be postponed until the summer. It is in their view impossible to prepare properly for them and to campaign in such a short time. This is to some extent also the wish of the OSCE, which, before the date had been definitely decided by the authorities, had expressed its preference for the elections to be held in April or May 2004.
Recommendations
44. The authorities told us in November that they again wished to revise the Electoral Code, although this had been substantially amended in August 2003. We do believe that certain amendments need to be made to the legislation in this field, inter alia so as to:
simplify voting procedures,
provide a better guarantee of voting confidentiality,
ensure the segregation of governmental structures from the electoral administration,
provide a larger and fairer participation of political forces in the electoral commissions.
In our view, three priority problems deserve special treatment:
- Revision of the voters lists
45. The lists of electors have proved to entail a considerable risk of fraud. Notwithstanding the repeated promises of the former governing team, the electoral rolls were by no means up-to-date any longer. The international observers have voiced severe criticism in this respect. 13 to 15% of the voters presenting themselves at ballot stations on 2 November did not find their names on the lists. And, of course, there were instances where a name appeared twice.
46. Where the presidential election of 4 January is concerned, and in order to remedy aspects previously criticised, the Central Election Commission (CEC) decided, on 9 December 2003, to create a new central electoral register, and to move from a passive system of registration (made by the government) to an active system of registration: voters were asked to register with the Local Election Commissions for inclusion on the lists by 27 December 2003. The registration and checking process was completed on 3 January 2004.
47. On 30 December, the CEC decided nevertheless to authorise the inclusion of voters whose names did not appear on the electoral rolls on the actual day of the election. This practice amounts to producing the supplementary lists complained of by the international observers in the past.
48. Certainly, the lists were revised in a short period, and this is in itself a positive point, but some shortcomings remain:
during the registration process, 30% of the population is said to have lacked valid identity documents definitely proving their current place of residence;
according to the CEC, 1,739,324 voters were registered before the election. However, also according to the CEC, a total of 2,231,986 voters were registered on election day (taking into account the "supplementary lists"), of whom 1,963,556 effectively voted.
This practice of using supplementary lists, which has been condemned by the Council of Europe several times in the past, should not continue. In must no longer be followed for the next elections.
49. We have therefore asked the authorities to record by computer without delay the handwritten lists of electors who had not been registered. International organisations, particularly USAID, have declared their readiness to assist Georgia in this sphere. However, one problem is how to register those citizens who did not participate in the January elections.
- Composition of the Central Election Commission
50. Where the membership of the Central Election Commission is concerned, it should not be forgotten that a compromise solution had been adopted in July 2003 after a laborious process of several months of fruitless negotiations among the parliamentary factions. Known as the "Baker formula", after former US Secretary of State, James Baker, who had at that time provided his good offices, this sets up a 15-member CEC comprising:
a chairperson appointed by the President of Georgia, on a proposal by the OSCE,
five members appointed by the chairperson,
nine members appointed by the political parties: three seats for the electoral coalition or party which finished second in the 1999 parliamentary elections (namelythe Revival party), two seats for the electoral coalition or party which finished third in the 1999 parliamentary elections (the Industrialists), and one seat for each of the four electoral coalitions or parties which won the 2002 local elections in Tbilisi (the National Movement, the Democrats, New Rights and the Labour Party).
51. When we visited in November, the new authorities in power did not conceal their wish to dismiss the Central Election Commission, which had been accused at best of passivity and, at worst, of having endorsed fraud perpetrated during the elections on 2 November. Nana Devdariani, chairperson of the Central Election Commission, resigned from office on 28 November, after refusing to replace the five members appointed by President Shevardnadze with those appointed by Ms Burjanadze, the acting President. On 30 November, Parliament amended the law governing presidential elections and introduced a new procedure, under which the chairperson of the CEC would henceforth be appointed by the President of the Republic, with the consent of Parliament. The very same day, Zurab Chiaberashvili, Director of ISFED, a national organisation which observes elections, was appointed chairperson of the CEC, and appointed the five members whose membership had been disputed.
52. In practice, 10 of the 15 CEC members are appointed by parties which support the authorities in power. The membership of the CEC, which used to be favourable to the pro-Shevardnadze parties, and is now favourable to the pro-Saakashvili parties, must be reviewed before the parliamentary elections of 28 March.
53. The "Baker formula" must be dropped, and a mechanism chosen which guarantees fair and equal representation for all political forces in the CEC, and at all lower levels. The CEC chairperson seems to share our views, but, for his part, wishes to allow NGO representatives to participate.
- Revision of the voting system
54. In our view, the crux of the problem lies less in the technical and financial preparation and organisation of the elections than in the risk of skewed parliamentary elections, no more competitive that the presidential election was, and the risk of the disappearance of all political opposition in the country.
55. Parliament has 235 members, elected through a mixed voting system: 150 seats are filled on a proportional basis through a national list, a minimum of 7% of the votes cast being required for representation, and the other 85 through the majority system. It should not be forgotten that the forthcoming parliamentary elections will be only for those seats to be filled through proportional list voting.
56. This 7% threshold may well prove fatal to the opposition, the political existence of which is at stake in the forthcoming elections, and which could disappear completely from the Georgian parliamentary scene. Were that to happen, the resulting damage to the balance and proper functioning of the country's democratic institutions would be considerable.
57. While Ms Burjanadze told us that she was in favour of a lowering of the representation threshold to 3 or 4%, at least on a transitional basis, Mr Saakashvili is clearly opposed to this, emphasising the need for the country to equip itself with an effective parliament and government. The chairperson of the CEC supported the idea of reducing the threshold to 5%, ie returning to the status quo under the 1995 Constitution, which had prevailed until the provision was amended just before the 1999 parliamentary elections.
58. Mr Saakashvili's National Movement and the Burjanadze-Democrats having announced their intention to fight the elections together, opinion polls are forecasting a crushing majority for them, with no other party managing to overcome the 7% hurdle (with the possible exception of Revival).
59. The former governing coalition, For a New Georgia, has completely disintegrated, and the pro-Shevardnadze parties have virtually disappeared from the political scene. Certain opposition parties, particularly the Labour Party and New Rights, although they demonstrated their discontent following 2 November and were highly critical of the authorities in power, are very much weakened and have lost part of their grassroots support, having refused to participate in the events of 22 and 23 November and to support Mr Saakashvili's initiatives.
60. It is interesting to note that the referendum for which the initiative was taken by President Shevardnadze, on the subject of a reduction in the number of MPs to a minimum of 150, a referendum held in parallel with the parliamentary elections of 2 November, was validated, following a 50% turnout of the registered voters, the majority of them voting in favour. This reform was to apply to the "next" legislature, the one due to the elected in 2007. During our visit, we raised the question of whether this reform would be applied to the legislature to be elected in 2004, but we received no reply.
B. The resumption of dialogue with the authorities on the honouring of obligations and commitments: urgent restoration of the rule of law
61. The arrival of a new team in power should revive Georgia's interest in the Council of Europe. The months ahead will undeniably constitute a crucial test of Georgia's ability fully to recover its place in our organisation and to speed up reforms, in accordance with its commitments. As for the honouring of its commitments to the Council of Europe, nothing has been done for months, or even years. The essential reforms for which the Council of Europe called have never been carried out. Thus a new timetable needs to be drawn up for those commitments not honoured, so as to give the new government more time to fulfil them.
62. On 25 September 2001, the Assembly carried out its first examination since Georgia's April 1999 accession to the Council of Europe of the country's progress in honouring its obligations and commitments, as defined in Opinion No 209 (1999). It stated in Resolution 1257[6] that "Georgia is far from honouring its obligations and commitments as a member state".
63. We have several times condemned the worrying way in which Georgia was slipping towards autocratic exercise of power by an oligarchy, against a background of nepotism and widespread and endemic corruption at every level of both government and society. This state of affairs, the inertia and inefficiency of Georgian institutions, has fuelled the popular protest.
i. Institutional reform is vital
64. Georgia lacks an effective institutional structure based on a parliamentary system, having neither a prime minister nor a cabinet; ministries tend to function independently of each other in uncoordinated fashion. The Parliamentary Assembly called for substantial institutional reform, including the setting up of a second chamber of parliament, the creation of an office of prime minister and a clarification of relations between parliament and the executive.
65. During our latest visit, we discussed with the authorities the plans for constitutional reform. Mrs Burjanadze affirmed the new authorities' wish to carry out constitutional reform, particularly comprising significant changes to the country's system of administration and to the relations between the executive and legislative branches of power. The aim is to make the government more efficient, but at the same time to increase parliamentary control. She said that the current French Constitution might serve as a source of inspiration.
66. Mr Zhvania, for his part, told us that the revision of the Constitution would encompass at least three points:
the creation of a post of prime minister,
the introduction of a principle of governmental accountability to Parliament,
offsetting this, the possibility for the President of the Republic to dissolve Parliament and call new elections in the event that a fundamental bill is persistently blocked.
67. Georgian authorities seem to want to go quickly ahead with the reform. It seems, however, that no draft has been adopted so far and that negotiations among the governing team are still underway.
68. Whatever the case may be, we call on the Georgian authorities not to rush such reform, which requires a broad consensus within the country. We should like the Council of Europe to be associated with such a project as soon as possible and the authorities to request assistance and expertise from the Venice Commission in due course.
ii. Effective implementation of reform and legislation
69. Implementation of legislation is a recurrent and major problem in Georgia. There are many good laws which are formally perfect, but they are poorly applied or not applied at all. International observers have drawn attention to the example of the national anti-corruption programme, to which no tangible effect has ever been given.
70. Reforms are merely apparent. To date, the authorities have been content just to draw up "concepts", in the form of voluminous medium-term planning documents never effectively put into practice, especially because they contain neither timetables nor deadlines.
71. The Council of Europe therefore expects from the new authorities a complete change of attitude in respect of the obligations and commitments entered into with the Council of Europe, and expects the new authorities to devote themselves fully to the Council of Europe’s programmes of assistance and co-operation.
iii. Adoption of efficient measures to address certain important shortcomings
72. There are several priority areas where serious malfunctioning occurs and major problems arise:
the combating of corruption,
the functioning of the courts and the independence of the judiciary,
the functioning of the law-enforcement agencies and the conduct of the police,
conditions of detention,
freedom of religion and the combating of religious intolerance.
73. The fight against corruption is first priority of the new governing coalition. Spectacular arrests of allegedly highly corrupted officials – which were given full media coverage – have been operated in the last few weeks. These developments are encouraging signs, and show a change of course. However, such actions should remain within the limits of the rule of law and respect for human rights.
74. We also expect the Georgian authorities to implement without delay the recommendations made by the Group of States against Corruption (GRECO) of the Council of Europe, which Georgia is a member, and to ratify as soon as possible the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.
75. The Georgian authorities seem also to plan a major reform of the law-enforcement agencies (Ministry of the Interior, police, prosecutor office). We request that the Council of Europe should be associated closely, in particular to the expertise of draft legislation under preparation (law on the police, law on the public prosecutor office).
76. The Council of Europe should also be closely consulted on the on-going work on the Code on Criminal Procedure.
iv. The return to a calm political atmosphere in Georgia
77. Recent events - elections, demonstrations, power changing hands - have maintained the extreme tension and highly pronounced antagonism which are to the fore in political life in the country. Georgia is traditionally the scene of constant confrontation between highly divided political parties and personalities who, thanks to populism and demagogy, play a dangerous political game which severely destabilises the country.
78. This atmosphere of constant hostility, and even hatred, between certain political leaders could, as we have systematically warned during each of our series of visits, tip the country back into violence, or even civil war.
79. The climate of hatred and intolerance is sustained by paramilitary groups which operate with varying degrees of secrecy, by well-regarded extreme ultra-Orthodox or ultra-nationalist groups which delight in pointing to the "enemies of the Georgian nation", and, first and foremost, by certain non-Orthodox religious organisations, such as the Jehovah’s Witnesses, but also by some political parties and journalists.
80. The previous authorities never had the will to stop the wheels of violence turning. The groups concerned have carried out attacks and other acts of violence, but have so far enjoyed absolute impunity.
81. Mikheil Saakashvili recently condemned the acts of certain groups which were striving to destabilise the current authorities.
82. Numerous serious incidents have occurred over the past two months, in fact. On 29 November a bomb went off in front of the Labour Party’s headquarters. On 2 December shots were fired at the home of Irina Sarishvili-Chanturia, one of the leaders of the "New Georgia" electoral bloc. On 3 December, a bomb blast shook the headquarters of the GeorgianState television company. On 19 January, unidentified persons shot at Kakha Giuashvili, member of the parliamentary faction Industrialists, who was wounded.
C. Stabilising the country and ensuring its territorial integrity: the separatist path tempts some, while others desire a unitary solution
83. Another priority of the new authorities is to maintain the country's stability and avoid another separatist crisis.
84. Russia and the United States have for more than ten years been struggling for influence over the southern Caucasus region, which is of strategic importance, both politically and economically, in terms of control over the new “black gold" route used for transporting oil from the Caspian Sea. There is no need for further proof of Georgia's strategic importance as an "energy corridor": there is already an oil pipeline linking Baku to Batumi, and a second is under construction, the famous BTC (Baku-Tbilisi-Ceyhan) pipeline from the Caspian to the Mediterranean, which will bring oil to Turkey via Georgia.
85. The authorities now in power in Tbilisi are taking a clearly pro-western stance, favouring America as much as Europe, while aspiring to a normalisation of relations with Russia. Nino Burjanadze and Mikheil Saakashvili would like to leave the past behind completely and establish new relations with Russia[7].
86. In her first speech, on 23 November, Mrs Burjanadze emphasised that the aim was that "Georgia must become a commendable member of Euro-Atlantic structures and the European family in the shortest time. We must strain all efforts to establish normal relations with neighbouring states, including … Russia".
87. This rivalry between Americans and Russians is clear from the region's as yet unresolved secessionist conflicts in Abkhazia and South Ossetia. It is obviously in Russia's interest to make its mountainous border area with Georgia secure, at all costs, as Georgian territory is said to provide Chechen combatants with a base outside their area of operations. Were this rivalry to be badly managed, Georgia could break up again. This is why observers are now directing their attention towards Adjaria.
88. The powerful leader of the autonomous republic of Adjaria, Aslan Abashidze, has very poor relations with the new authorities. He quickly declared a state of emergency in his region on 23 November, and condemned the takeover of power in Tbilisi as a "coup d'etat". He does not recognise the authorities which are in place and regards the Parliament currently operating as completely illegitimate. The extraordinary session of Parliament convened on 27 November was boycotted by, inter alia, the representatives of the Union of Democratic Revival. Completely unexpectedly, the state of emergency was ended on 4 January, and the presidential election was able to take place in Adjaria as well. Almost 25% of the Adjarian electorate (some 75,000 voters), including Aslan Abashidze himself, took part. The Revival party announced its intention of taking part in the parliamentary elections and presenting a list. The state of emergency was nevertheless reintroduced on 8 January.
89. The current situation in Adjaria is extremely tense: bombings, attacks on journalists or members of the National Movement, arrest of five Kmara activists and conviction of two of them, street demonstrations by the Adjarian opposition which degenerated in fights with Abashidze’s supporters, assassination on 18 January of Temur Inaishvili, head of the civil defence and state of emergency department of the Adjarian ministry of interior, and so on. President Saakashvili has also announced his intention of introducing stronger control of Adjaria, particularly in respect of the pursuit of persons sought by the Georgian justice system.
90. The minorities as a whole (Abkhazians, Ossetians, Adjarians, Armenians and Azeris) - for differing reasons - fear possible excesses by the new authorities, which they readily describe as nationalist, populist or even xenophobic.
91. The leaders of Abkhazia, Adjaria and South Ossetia have expressed disquiet about the new political situation in Tbilisi. They are afraid that the new authorities might try to reassume the control over their regions lost for the past decade.
92. The Russian Minister for Foreign Affairs, Igor Ivanov, had discussions on 28 November with Edward Kokoity, the South Ossetian leader, Raul Khadzimba, "Prime Minister" of Abkhazia, and Aslan Abashidze, leader of Adjaria. Mr Ivanov again said that he was in favour of the maintenance of Georgia's territorial integrity. At the end of their meeting, however, the Ossetian leader, Mr Kokoity, said that South Ossetia wished to be purely and simply attached to the Russian Federation.
93. Mrs Burjanadze reacted vigorously to these meetings and called on the Russian authorities to refrain from action which might be detrimental to the sovereignty and territorial integrity of Georgia and which would completely undermine the positive messages communicated a week earlier.
D. The economic challenge
94. The authorities in place are going to have to meet the huge expectations of the population, combat the endemic corruption and revive an economy in tatters.
95. According to the World Bank, 23% of Georgians are living in absolute poverty, on less than 2.15 US dollars a day. Half the population lives on less than 4.15 dollars a day. The monthly retirement pension is 6 dollars. According to the EBRD, Georgia's GDP is currently at 38% of its 1989 level.
96. Georgia is bankrupt. Its external debt is 1.9 billion dollars, of which 600 million dollars is owed to Paris Club member states. Civil servants' wages have not been paid for two, three or even four months. The displaced persons' allowance has not been paid for at least six months.
97. Mr Zhvania has requested emergency energy aid from Russia. IMF, World Bank and US Department of State delegations arrived in Georgia on 2 December, inter alia to help the Georgian authorities to find solutions to the budget crisis.
CONCLUSIONS
98. The recent events in Georgia and the arrival in power of a new team open up the possibility of renewed co-operation with the Council of Europe.
99. The task is a huge one. There has been not the slightest positive change in Georgia in recent years where the functioning of democratic institutions is concerned, nor has any progress been made in the honouring of the commitments entered into. As a result of ultra-conservatism, inertia or a pure and simple refusal of the authorities to co-operate, the essential institutional and political reforms have not been carried out. The commitments and obligations deriving from Council of Europe membership have been far from a priority for the Georgian authorities.
100. Georgia seems to be a weak state, with corruption and nepotism preventing the wheels of government from turning smoothly, and with serious excesses occurring: religious intolerance and violence.
101. Now is the time for the authorities to make a substantial effort to create the conditions enabling the forthcoming elections to take place democratically. If the parliamentary elections do not go in the direction hoped for, or if the electoral rolls are still not up-to-date, a highly critical attitude will have to be shown.
102. Changes are in progress in Georgia. The Council of Europe must give its support and provide Georgia with greater assistance if the intention is that things should move in the right direction. The litmus test will be the way in which the new authorities demonstrate their willingness to comply with their commitments.
103. As we discussed with the country's authorities, especially Ms Burjanadze and Mr Zhvania, priority needs to be given to certain issues. Most of these are included in the request for assistance and expertise made to the Council of Europe by the Georgian authorities early in January 2004, relating more specifically to the following points:
revision of the Electoral Code;
revision and improvement of Parliament's operating procedures;
revision of the Constitution.
104. Furthermore, the Council of Europe must show itself willing to assist Georgia with other problems:
the fight against corruption;
reform of the institutions responsible for application of the law (prosecution service, police, etc);
operation of the justice system, and particularly adoption of a code of criminal procedure;
freedom of religion;
the situation of national minorities,
the question of the repatriation of the deported Meskhetian populations.
Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Reference to committee: Resolution 1115 (1997) of 27 January 1997, Opinion No. 209 (1999) and Resolution 1257 (2001)
Draft resolution and draft recommendation unanimously adopted by the committee on 26 January 2004
Members of the committee: Mrs Durrieu (Chairperson), Mr Frunda, Mr Frey, Mrs Tevdoradze (Vice-Chairpersons), Mrs Aguiar, Mr Ak�am, Mr Akhvlediani, Mr B. Aliyev, Mr Andr�, Mr Arzilli, Mr Atkinson, Mr Baška, Mr Bernik, Mrs Bilgehan, Mr Bindig, Mr van den Brande, Mr Budin, Mrs Burbiene, Mr Cabrnoch, Mr M. Cavusoglu, Mr Cekuolis, Mr Christodoulides,Mr Cilevics, Mr Colombier, Rt. Hon. Davis, Mr Debono Grech, Mrs Delvaux-Stehres, Mr Dobelis, Mr Einarsson, Mr E�rsi, Mrs Feric-Vac, Mr Glesener, Mr Gross, Mr Gusenbauer, Mr Hancock, Mr Hedrich, Mr Hegyi, Mr Holovaty, Mr Jakic, Mr Jaskiernia, Mr Jurgens, Lord Kilclooney, Mr Kirilov, Mrs Konglevoll, Mr Kvakkestad, Mr van der Linden, Mr Lintner, Mr Magnusson, Mr Mart�nez Casa�, Mr Medeiros Ferreira, Mr Melc�k, Mr Mollazade,Mr O’Keeffe, Mr Olteanu, Mr Pangalos, Mr Rakhansky, Mrs Ringstad, Mr Rivolta, Mr Rogozin, Mr Rustamyan, Mr Sasi, Mrs Severinsen, Mrs Shakhtakhtinskaya, Mr Shishlov, Mr Skrabalo, Mr Slutsky, Mr Smorawinski, Mr Soendergaard,Mrs Stoyanova, Mr Surjan, Mr Tepshi, Mr Tk�c, Mrs Wohlwend, Mr Y��ez Barnuevo, Mr Zacchera.
N.B. The names of those members who were present at the meeting are printed in italics.
Head of the secretariat:Mrs Ravaud
Secretaries to the committee: Mr Gruden, Mrs Odrats, Mrs Clamer
[2]Under the Electoral Code, District Election Commissions have a period of four days in which to tabulate the results and draw up protocols. This period is long enough for the parties to negotiate the results with each other constituency by constituency, and to conclude the necessary agreements, as reflected in the falsified protocols. The members of the Election Commissions were subjected to considerable pressure.
The scale of the fraud in Adjaria is too great to grasp: it is alleged that 120 000 votes were purely and simply fictitious. 97.35% of the electorate voted for President Abashidze’s Union of Democratic Revival, while 35 polling stations in Adjaria recorded a score of 100% of the votes cast!
Furthermore, the votes cast by expatriate Georgians were manipulated (the number of electors living abroad having been considerably inflated) and the results falsified. The Council of Europe received complaintsabout this directly from Georgian citizens resident in Paris, London and Russia, but the ODIHR also noted massive irregularities in the voting in Turkey, Ukraine and Azerbaijan.
[3] Partial legislative elections were held at the same time as the presidential election: 15 seats remained to be filled by majority voting (11 which had not been filled in the first round on 2 November, and four as a result of the invalidation of the results of the first round), including that of Ms Burjanadze, who was re-elected on 4 January in her constituency.
[4] See the report of the Ad hoc committee to observe the presidential elections in Georgia, Doc. 10046.
[5]While the Georgian Parliament officially has 235 Members, 150 elected by proportional representation and 85 through majority voting, there are in fact only 75 seats to be filled, 10 constituencies being in districts (Abkhazia and South Ossetia) not under the control of the Georgian authorities.
[6] See the report onthe Honouring of obligations and commitments by Georgia, Doc. 9191 (rapporteurs: Mr E�rsi and Mr Diana).
[7] In a late November interview with the Russian daily Izvestia, Mikheil Saakashvili confirmed that Georgia's economic and political interests were linked to Russia, but said the United States provided the fundamental guarantee of his country’s security.