“In exceptional and extremely critical situations, for example, a situation of state capture, radical solutions such as some measures of a personal nature could be justified,” said the Venice Commission in its final Opinion on Georgia’s de-oligarchization bill.

However, the Commission urged Georgia to pursue the “systemic” approach and recommended not to adopt the revised draft law.

“The Venice Commission acknowledges that in exceptional, extremely critical situations, for example a situation of state capture, the effective implementation of the above systems may be difficult, and radical solutions such as some measures of a personal nature could appear to be justified, as a measure of last resort, on a temporary and exceptional basis, and as a supplement, not an alternative, to the anti-oligarchic influence system.

However, it needs to be stressed that even when exceptional and last resort, such personal measures would necessarily require clear legal criteria and strong guarantees of an independent decision-making body and due process, with notions defined in such a way that they can be proven, and – as a consequence – judicially controlled, with the establishment of special procedures for the investigation into the applicability of the criteria, for making decisions, for a comprehensive appeal process against these decisions and the possibility of having the “oligarch” designation removed for a person previously registered as an “oligarch”.

Such preconditions seem to contradict the very design of such laws. Besides, in a situation of state capture, even “personal measures” such as the ones outlined in the revised draft law would likely meet the same hurdles as the comprehensive system, and thus likely fail to reduce oligarchic influence effectively. This is the great paradox of de-oligarchisation laws in the form they are currently proposed: if the administration and the judiciary are strong and independent enough to support the implementation of “personal measures” of the kind described, then such measures are no longer needed because the preconditions are met to deploy a much more systemic and effective strategy. If conversely the administration and judiciary are “captured” by the interests that the “personal measures” intend to fight, then such measures are either ineffective or – having to be adopted through executive acts that are not fully subject to effective judicial control – profoundly dangerous for human rights, democracy and the rule of law.

As at this stage the Venice Commission is not convinced that the changes to the revised draft law could remedy the unavoidable frictions with Council of Europe standards on human rights, democracy and the rule of law, the Venice Commission recommends pursuing the “systemic” approach, and, in light of the above considerations, the Venice Commission recommends not to adopt the revised draft law,” it said.

The Venice Commission, an Advisory Board of the Council of Europe, adopted the final Opinion on Georgia’s de-oligarchization bill at its 135th Plenary Session held on 9-10 June.