Analysis of the Amendments in the Organic Law of Georgia on Political Unions of Citizens-ENG, 26.01.12Presentation Transcript
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
Transparency and Accountability
Disproportionate and Unconstitutional Restrictions
Venice Commission Recommendations:
Grave restrictions adopted after publishing the Report
Fundamental Constitutional Principles
Principle of Democracy
Freedom of expression and right to participate in political processes
Rule of law
Principle of legal certainty
Principle of proportionality
General Human Rights
Right 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 26 1
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 goals
Which by its representative or other person encourages voters to support particular political party or refrain from supporting particular political party
Article 26 1 conclusions
Recommendation 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.
Restrictions can be applied arbitrary to any non-governmental organization (NGO), media sources, commercial entities etc.
Article 26 1
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/her
A person having business relation with him/her
Who 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 26 1 conclusions
Political goals and objectives:
Broad definition: not only coming into government (restrictions applied to the foreign citizens)
Broad definition: not only the active electoral right
A person related to him/her
Family member, neighbor etc.
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 26 1 (Article 34 1 , para. “g”)
Problem: Total control -> violation of principles of democracy and legal certainty and the articles 16, 26, 30 of the Georgian Constitution
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
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 25 1
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 5 1
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 34 1
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 26 1
Problem -> disproportional restriction of the articles 16 and 20 of the Georgian Constitution
Article 34 2 , 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 34 2 , 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 164 1 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.