Implementation of the EU-Georgia Association Agreement: Good Governance and Fundamental Freedoms

2018-08-30 19:37:30
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In 2016 Association Agreement signed between the EU and Georgia entered into force. Since then Georgia has been facing a challenging task in implementing the document. The briefing paper tried to analyse the degree of implementation of the Association Agreement both at the conceptual as well as technical level by focusing on the development of the Georgian democratic institutions and economic policy. To this end it examined the good governance, rule of law, respect for human rights and fundamental freedoms ( including freedom of mass media) and the reforms in economic and financial sectors. Moreover the paper looked at the EU’s policy towards Georgia and the political processes in the country especially since 2016. As a research result the study exposed critical aspects of the process of transition towards democracy in Georgia. Overall it found out that Georgia faces systemic challenges with the implementation of the political part of the AA, while in case of the implementation of DCFTA it can claim some success.

Namely the main shortcomings in implementing the political part of the Association Agreement are the following:

1.         Informal governance and behind-the-scenes policy-making remain a major challenge to democracy, further exposing the dominance of personalization in Georgian politics. The basis of the state constructed by B. Ivanishvili is the weakened state institutions and coopted state, non-state actors, regulatory agencies and society. The advanced ability to co-opt makes the Georgian Dream government able to picture itself as less threatening than Saakashvili’s one, which used violent methods in order to achieve its goals. The democratic elections and successful transfer of power in 2012 was largely considered a victory for Georgian democracy. The years of governance by the Georgian Dream has demonstrated, however, that democratic elections do not always mean a successful transition towards democracy. The institutions are still weak and controlled by an oligarch.

2.         Weak checks and balances system: Georgia has never been able to overcome being a one-party dominated state. The ruling party “Georgian Dream” has a constitutional majority. The executive regularly dominates over parliament and the judicial branch, making the independence of the judiciary dubious. The weakness of the opposition parties makes the Georgian Dream stronger, pushing the population to vote them and/or abstain and not participate in the election process at all. The power of the president is limited by the constitution. All his interventions through veto, aimed to force the parliamentarians to make some legislative changes, have always been overridden.

3.         Judiciary: Today, the most significant reforms, which have not yet been implemented, are to ensure the independence, impartiality, and professionalism of the judges as well the right to a fair trial. More serious problems exist in two areas: independent and effective investigation, and the status and rights of victims in criminal proceedings and politically motivated detentions. Judiciary is under political influence and controlled by different interest groups. The Prosecutor's office remains the weakest part of the system. Local CSOs argue that the Prosecution Service, which was supposed to be independent from any kind of influence, became a topic of partition between the interests of Ministry of Justice and a judge of the Tbilisi Court of Appeals. Moreover, the procedures of selection, appointment, evaluation, and promotion of judges remain to be addressed.

4.         Difficulties persist in Georgia regarding decentralization: like the previous governments, the current one fails to implement real decentralization that strengthens democracy at regions and local levels. In 2017, the parliament adopted a new self-governance code and reduced the number of self-governing cities from twelve to five, with an excuse to increase the efficiency of management.

5.         Problems persist around the human rights and fundamental freedoms. There is a wide implementation gap when it comes to protection and respect for ethnic, religious, and sexual minorities. Moreover, violent actions against minority groups are not always addressed and followed by law enforcement agencies. Ineffective investigations of hate crimes and frequent hate speech by politicians (especially those of Georgian Dream and Alliance of Patriots of Georgia) encourage impunity in the society and make the environment even more hostile towards minorities. The Orthodox Church is allied with the state when it comes to a nationalistic discourse placing the ethnic majority in the privileged position visa-vis the minority. This is the overall picture when it comes to human rights violation in Georgia. However there have been two other cases: the case of Azeri journalist Afgan Mukhtarli when he was abducted by unknown men in Tbilisi, beaten and taken to Azerbaijan. The representatives of the CSOs widely believe that the operation had been agreed between some representative of Georgian security services and Azerbaijani authorities. Other case of human rights violation regards the Turkish teacher and school manager, Mustafa Emre Çabuk, who has been investigated and arrested by the Georgian side upon the request of Turkish authorities.

6.         Over the years, the government’s attitude towards mass media has also remained alarming, as the ruling establishment has often tried to influence the editorial policy of the TVchannels. While during the Staakashvili government mass media was violently attacked by police and armed forces bursting directly into the TV stations, the new government uses other methods to limit editorial freedom: blackmailing the owners of TV stations (who often also run businesses: case of TV Pirveli), using judiciary against oppositional TV channels (case of Rustavi2), exercising control over the Georgian Public Broadcasting (GPB) station, and merging TV channels in order to create a pro-governmental voice (case of Maestro’s inclusion into Imedi TV). The Rustavi2 case exposes the limits of the independence of the mass media as well as that of the judiciary.

7.         The Georgian democracy has further been challenged by the status and role of the Georgian Orthodox church in politics. While Georgia is a secular state, over the years the Georgian Orthodox Church has increased its influence over the state and society. The discourse promoted by the ruling party has made the church an even stronger actor in Georgia’s political life. The church is actively involved in the legislative work of the parliament. For instance, it has been invited to the discussions on anti-discrimination law, which it then actively opposed because of the clauses prohibiting discrimination based on sexual orientation and gender identity. By inviting the church to such a discussion the government clearly legitimised the participation of the church in the political process and indirectly contributed to the radicalization of the society, because this latter tends to side with the church when it comes to the issues related to minority rights.

 

As for positive developments:

1.         The country continues to implement the reforms in combating corruption, which is essential for the success of the DCFTA. In particular, Georgia has been successful in fighting low- and mid-level corruption, making the country one of the easiest places in the world to invest.

2.         The government continued to carry out some structural reforms aimed at improvement of the economic and business environment, especially through progressing with the approximation of its legislation in trade-related areas (mostly in the area of technical barriers to trade).

3.         Some positive signs could also be noticed in Freedom and Security sector, where Georgia continued to implement its Migration Strategy and Action Plan as well as to establish the Unified Migration Analysis System. In December 2016 Georgia adopted a new Law on International Protection according to the recommendations issued in the process of implementation of Visa Liberalization Action Plan.

4.         2015-2016 Action Plan on the Fight against torture, inhuman, cruel and humiliating treatment or punishment was accomplished. Moreover, the Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other cruel, Inhuman or Degrading Treatment or Punishment) entered into force in 2017. As a result, cases of ill-treatment in the penitentiary system have diminished.

Summing up we can argue that the established form of governance has given birth to a functional but substantially hybrid state characterized by a top-down form of governance, the personalization of domestic politics, and the centralization of power.

What we have from the EU's side towards the state-building process in Georgia is the accommodation of local cultures of governance, as the EU’s rhetoric about Georgia being a frontrunner of the EaP and a success story when it comes to the development of democracy, is in sharp contrast with the actual reality. Security concerns related to stability of the country has eventually hampered the EU’s policy to develop democracy in Georgia. The EU has opted for stabilization rather than serious democratic transformation. It has mostly accepted Georgia developing its own style of democracy. In the long run, the risk is that ‘Georgia will only pretend to implement the Association Agreement and the EU will turn a “blind eye” on such mimicking.

Thus what should be the EU’s new principles, goals, and approaches towards the hybrid political system that have been consolidated in Georgia? The country is still committed to its way towards the European integration. This gives the EU enormous leverage, which it should use properly. Namely:

•           At general level, EU should asses critically Georgia’s transition towards democracy and speak more openly about the shortcomings the country is witnessing in this process. It should abstain from the regular rhetoric about Georgia being a frontrunner of the EaP. For this purpose, the EU should also change its reference point for Georgia, when evaluating the development of democracy in the country.

 

•           Enhanced conditionality is of essential importance, the EU should improve its policy of conditionality. In concrete terms, only half of the available funds should be guaranteed for a given country, while the rest should be linked to performance in terms of the advancement of concrete political, judicial, economic and social reforms. Thus, one of the instruments in the EU’s hands when reacting to non-compliance should be aid restriction. In parallel, the EU should strengthen the “more for more” strategy for financial assistance.

 

•           The EU should design a clear roadmap for democracy promotion in the framework of the Association Agreement accompanied by clear conditionality and monitoring mechanisms.

 

•           The EU should also establish an effective monitoring system of financial aid use. For example, the EU’s Macro-Financial Assistance (MFA) program to Georgia of EUR 45 million should be conditional not only on successful reviews under the IMF programme but also on the successful implementation of the DCFTA as well as the political part of the Association Agreement. True, the MFA program is of economic nature, but it is also true that if Georgia fails to implement the political part of the AA, it will negatively affect the macroeconomic stability of the country.

 

All these should be accompanied by the EU:

 

•           calling for the Georgian authorities to apply a rule-of-law approach to human rights violations.

 

•           calling for prioritization and acceleration of the institutional reforms and those related to good governance and fundamental freedoms.

 

•           criticizing openly the shortcomings in the implementation of judicial reforms and calling for the strengthening the independent judiciary.

 

•           calling for ending of behind-the-scenes policy and political interference in executive affairs.

 

•           enhancing political and financial support for civil society organizations, including grassroots ones.

 

•           promoting and financing the projects aimed at increasing awareness of the AA and DCFTA among the business community and more generally in the society.

 

By Dr. Nona Mikhelidze