The Venice Commission underlines that the danger of the concentration in the hands of a private individual of significant influence over the economic, political and public life of a country without transparency, legitimacy and accountability may exist in virtually any country. Most countries have devised and put in place a set of interconnected legislative, (inter-)institutional, administrative, economic and other measures, in order to prevent the disruptive effects on democracy, the rule of law and human rights brought on by the concentration of such influence in the hands of a few. Depending on the context of the country concerned, such measures for example include: an effective competition policy, anti-corruption and anti-money-laundering measures, measures to ensure media pluralism, rules on the financing political parties and election campaigns (etc.).

Rather than pursuing this multi-sectoral, “systemic” approach, Georgia has chosen to tackle the destructive influence of oligarchisation through a different “personal approach”, by preparing a draft law on de-oligarchisation. This “personal approach”, as specified by revised draft law, seeks to identify persons as “oligarchs” through specific criteria, such as wealth, media ownership (etc.), and subjects them to a series of limitations. Despite having been deprived of most of its punitive consequences and limitations in its revised version, the potential political abuse of the revised draft law and a possible arbitrary application of its provisions may still severely jeopardise the rule of law and political pluralism.

While recognising that in the fight against oligarchic influence there is no one-size-fits-all and that in exceptional, extremely critical situations, for example a situation of state capture, 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, the Venice Commission considers that these should be a supplement, not an alternative, to the “systemic” approach. However, if there were such a need, these measures would have to be designed with full respect for the standards of political pluralism and the rule of law, inter alia clear legal criteria, strong guarantees of an independent decision-making body and due process. Such preconditions seem to contradict the very design of such laws. 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.

Currently, the revised draft law cannot be seen as a democratic response to the scourge of oligarchisation, and not even as an effective one. In this regard, the Georgian authorities would need to prove how and if the personal measures which remain under the revised draft law would be necessary to counter oligarchic influence in addition to the “system” and would target the phenomenon not only partially, but as a whole. Indeed, instead of fighting oligarchic influence effectively, de-oligarchisation legislation of this kind risks becoming a dangerous tool in the hands of those in power to harass political opponents. As at this stage the Venice Commission is not convinced that the changes to the revised draft law can remedy the unavoidable frictions with Council of Europe standards on human rights, democracy and the rule of law, the Venice Commission concludes that the revised draft law should not be adopted and that a “systemic” approach be pursued.

Therefore, the Venice Commission recommends that the revised draft law not be adopted, and that the Georgian authorities, in order to fight oligarchic influence in the country:

• Carry out an in-depth and comprehensive analysis of the existing systemic measures, of their shortcomings in terms of structure, powers and coordination;

• Devise corrective, additional or complementary legislation or measures, which, inter alia, include:

– establishing and implementing an effective competition policy;

– strengthening the fight against high-level corruption and the prevention of corruption, in line with GRECO’s recommendations;

– upholding the transparency of and accountability in public procurement;

– strengthening media pluralism and transparency of media ownership;

– further enhancing the anti-money laundering policy, including the transparency of legal persons and arrangements and timely and effective access to beneficial ownership information, in line with MONEYVAL and FATF recommendations;

– reinforcing rules on the financing of political parties and election campaigns and existing control mechanisms;

– amending tax legislation.

• Strengthen the independence and effectiveness of the key regulatory and controlling authorities;

• Assess the way various institutions (anti-corruption bodies, anti-monopoly committee, state audit, banking supervisory authorities etc.) can work better together in preventing and eliminating the influence of “oligarchs” over political, economic and public life;

• Carry out an impact assessment of such measures at regular intervals;

• Put thus in place a comprehensive system to prevent and fight oligarchic influence through a focused strategy/action plan to address oligarchisation, recognising the interconnected nature of the problem, allowing for bridges to be built between various fields of law and the institutions that implement them;

• Implement it without delay in a transparent and accountable manner.