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UPDATE: GUIDE TO GEORGIAN LEGAL RESEARCH

 

By Irma Aladashvili

Update by Nana Patsia (2009)
Update by Anna V. Dolidze (2010)

 

Anna V. Dolidze is a Candidate for Doctor of  the Science of Law (J.S.D.) at Cornell Law School and Member of the Editorial Board  of the Cornell International Law Journal. In 2007-2008 Dolidze was hosted as Albert Podell Global Scholar at New York University Law School. Dolidze holds an L.L.B. and L.L.M. (with Presidential stipend for distinction) from Tbilisi State University and L.L.M. in Public International Law from Leiden University, the Netherlands. As a Chairperson of the Georgian Young Lawyers Association, she has appeared as civil rights attorney before the Constitutional and Supreme Courts of the Republic of Georgia. Dolidze also has worked for a number of international organizations, Including Save the Children, Russian Justice Initiative and Human Rights Watch.

 

Irma Aladashvili works for the State Fund for Protection and Assistance of (Statutory) Victims of Human Trafficking in Tbilisi, Georgia. She had been working for more than a decade for the Georgian Young Lawyers’ Association from Tbilisi, Georgia, where she is the Coordinator of the Law Library and Information Centre. She holds a B.S. in Law from the Tbilisi State University, and she graduated from the International Relations and Translation program (1998 – 2000) at Tbilisi Law Institute. She attended the Summer School of Human Rights: Role of Lawyers in Promoting Human Rights and Public Interest law in Budapest, Hungary, from June 7-18, 1997; in 1999, she attended a Human Rights training program in Montreal, Canada; in 2001, a training in Florence, Italy on Electronic Publishing.  Moreover, in October 2002, in Budapest, Hungary, she attended the Training for Law Librarians organized by the International Legal Institute and the Open Society Institute. She speaks Georgian, English, and Russian.

 

Nana Patsia has been working for the Georgian Young Lawyers’ Association from Tbilisi, Georgia, where she is the Coordinator of the Law Library. She holds Bachelor’s Degree in Informational Technologies in Economics from the Georgian Technical University, and holds MA in Public Policy from the Georgian Institute of Public Affairs. In 2005-2006, she passed her internship at the Public Affairs Section of the US Embassy, Tbilisi.

 

Published December/November 2010
See the Archive Version!

 

Table of Contents

INTRODUCTION

THE REGIONAL STRUCTURE OF GEORGIA

THE HISTORICAL EXPERIENCE

ROSE REVOLUTION

Lead-up to Elections

Scandals

Elections (November 2, 2003)

Revolution of Roses

Constitutional Changes

THE PRESIDENT OF GEORGIA

THE PARLIAMENT OF GEORGIA

THE RELATIONSHIP OF THE PRESIDENT WITH THE PARLIAMENT

THE GOVERNMENT OF GEORGIA

THE RELATIONSHIP OF THE GOVERNMENT WITH THE PRESIDENT

THE RELATIONSHIP OF THE GOVERNMENT WITH THE PARLIAMENT

NEW CHALLENGES OF THE GEORGIAN JUDICIARY

THE JUDICIARY

The Constitutional Court

The Supreme Court

Common Courts

REGIONALISM AND LOCAL SELF-GOVERNMENT IN GEORGIA

THE ELECTORAL PROCESS IN GEORGIA

HIERARCHY OF LEGAL NORMS OF GEORGIA

THE OFFICIAL GAZETTE, LEGAL JOURNALS, AND MAIN NEWSPAPERS
IMPORTANT NOTE ON PRIMARY MATERIALS

WEB RESOURCES

 

INTRODUCTION

Georgia is located in the wrinkled Alpine zone, in subtropical zones of northern periphery between the 41° 07 and 43° 35 latitudes and West 40° 05 and 46° 44 longitudes. The border length is 1970 km, 315 km of which (16%) is coastline. The country is bounded by the Russian Federation to the north, by Azerbaijan to the east, by Armenia and Turkey from the south, and by the Black Sea to the west.

ushba.gif (120419 bytes)

The geological constitution is characterized by the formations from the Mesozoic and Cenozoic eras. According to the wrinkles, it's divided by several geotectonic units: from north to south by Caucasian main ring's Antiklinorium, Georgian Belt, Achara-Trialeti system, Artvin-Bolnisi Belt and Loc-Karabag's wrinkled zone.

 

Georgia is rich in mineral resources: oil, coal, peat, iron, magnum, copper, projectile-zinc, arsenic, mercury, andezit, barite, talc, serpentit, agate, quartz, basalt, granite, diorite, marble, etc.

 

Different areas of Georgia are characterized by the contrast relief. The country is made up of high, middle and low mountain highland plane unity. The Caucasus reflect sharply from the inter-mountain lowlands.

tetnuldi.gif (80052 bytes)

mountain.gif (114105 bytes)The territory of Georgia features a highly contrasting topography.

 

Georgia is rich in underground waters, and there are mineral and thermal waters (Borjomi, Utsera, Dzau, Nabeglavi, Sairme, Zvare, Nunisi etc.).

 

Population and Area

Area

69,500

Census results of 1989

5,400,800

Official data of 1997

5,423,000

Population Density (per sq.km)

78

 

THE REGIONAL STRUCTURE OF GEORGIA

Apart from the two breakaway regions of Abkhazia and South Ossetia, Georgia today is made up of the following geographical areas: Ajara, Samegrelo-Zemo Svaneti, Guria, Samtskhe-Javakheti, Racha-Lechkhumi-Kvemo Svaneti, Kakheti, Kvemo Kartli, Shida Kartli, Mtskheta-Mtianeti and Imereti. This arrangement by-and-large coincides with the medieval traditional division of Georgia and the structure of public administration today. The overall regional arrangement of Georgia is not yet determined by the constitution.

 

Administrative-Territorial Units

Administrative-territorial map of Georgia

THE HISTORICAL EXPERIENCE

Georgia, known to Greeks and Romans as Kolkheti (western part of the country) and Iberia (eastern part), adopted Christianity in the 4th century under the influence of Byzantium. The country managed to unite during the 10th-13th centuries, despite numerous invasions by Arabians, Mongolians, Turks and Persians. This period in Georgian history is called the "Golden Era"; King David Agmashenebeli (1089-1125) and his granddaughter the King-woman Tamar (1184-1213) made great contributions during this period. Recollections of this period helped preserve a national self-awareness in the following centuries, when Georgia was conquered by foreigners. Russia, which started annexation of the region in 1801 and finished it in 1917, was the last among such conquerors. Georgia became part of the Soviet Union in 1921, and became an independent Republic of the Soviet Union in 1936.

 

The well-known Soviet dictator Joseph Stalin and the "Head" of his political police, Lavrenti Beria, both Georgians by origin, destroyed the hope of Georgians to win national independence. The repressions went on after Stalin’s death: in 1956 his successor, Nikita Khrushchev, severely suppressed a revolutionary attempt by means of Soviet tanks, leading to the deaths of hundreds of people. During Brezhnev’s governance, Georgian Authorities gained a little success – the Georgian language was declared the state language.

 

In modern Georgian history, the year 1989 was a crucial moment. In April 1989, the Soviet Army broke up a peaceful demonstration, resulting in the murder of 20 people. Georgian society now strongly supported the policy of complete independence and separation from the Soviet Union.

 

On May 26, 1991, Georgia elected the Chairman of the Supreme Council Zviad Gamsakhurdia as President of the country.

 

Tension between the ruling and opposition parties gradually intensified, and in 1991-92 developed into an armed conflict. President Gamsakhurdia left the country, the Supreme Soviet ceased to function, and power was taken over by the Military Council, which was reconstituted into a State Council. The State Council restored Georgia’s Constitution of 1921.

 

In 1992 Eduard Shevardnadze (ex-Minister of Foreign Affairs of the Soviet Union) returned to Georgia, assuming chairmanship of the Military Council; the news was announced on August 4, 1992, the day of Parliamentary elections.

 

On July 31, 1992 Georgia became the 179th member of the UN. Presently Georgia is also a member of various other international and regional organizations.

 

In February and March of 1993, the Parliament of Georgia formed the State Constitutional Commission, presided over by Eduard Shevardnadze, and commissioned it with preparation of a new edition of the 1921 Constitution of Georgia. All the representatives of the Parliamentary factions (more than half of the entire composition), a large group of lawyers, policy experts and economists, and famous people of the Republic formed the Commission.

 

On August 24, 1995 the newly elected Parliament of Georgia adopted a new Constitution. The majority expressed their wish and ability to solve the fundamental problems of government authority and individuals not by violence, but only on the basis of the Constitutional Justice.

 

ROSE REVOLUTION

On November 2, 2003, national, parliamentary elections were held, which gave a boost to the processes leading eventually to the change of power. After serious allegations of election rigging in favor of the ruling Citizens’ Union, thousands of people stormed into the streets demanding change of government. After days of popular protest and under the risk that of impeding civil war, President Shevardndze resigned.  Events that ensued on November 23, 2003 have been dubbed  “Rose Revolution”, a peaceful, non-electoral transfer of power behind which the Georgian population stood.

Lead-up to Elections

The lead-up to the pre-election period gave a good indication of the fierceness of the struggle for mandates. Though parliamentary elections officially involved 23 parties and party blocks, the essential fight for mandates was held only among several parties, among them:  President Shevardnadze’s party bloc “For New Georgia”, “Renaissance Union” “National Movement”, “Burdjanadze-Democrats Bloc”, “Labor party”, and the “New Rightists”. Some experts named the “Industry Will Save Georgia” Party also on the list of favorites. However, many doubted its ability to pass the seven-percent barrier.

 

Given the style and characteristics of the President’s rule, all concerns appeared to be fairly well founded. Public administration was permeated with   of corruption, whose bounds flourished beyond the limits of the imagination. As early as 1998, World Bank experts put out the catastrophic results of their survey: all branches of government, including parliament, appeared to be corruption-riddled.

 

This system put a drain on the state coffers, not to mention on the economic development of the country. The shadow economy reached enormous scales, while the large majority of the population continued to live below the poverty line. In parallel, word was spreading widely in the press of millions of dollars missing and placing blame on public officials. However, none of them appealed in any sign of protest, instead just calling these charges a “dirty battle” against them.

Scandals

From autumn of that year on, the number of visits by representatives of international organizations increased considerably. The members of the OSCE Observers Mission held meetings with the leaders of the Georgian political parties. “The country’s stay within the Council of Europe depends on the conduction of elections” – Western diplomats repeated often. What they required of the Georgian authorities was a particular attention to elector lists, as well as the political independence of election commissions.

In the same period, opposition parties began to speak out loudly on the clampdown measures employed by the government. “The executive authorities do not allow opposition parties to meet those employees of budgetary organizations, who declare their support for them,” party representatives are quoted as saying.

 

The Central Election Committee adopted a resolution to instruct the Ministers of Justice and Internal Affairs, as well as the local and self-governing bodies, to redress all errors before October 18. The basis for this resolution was provided by the New RightsParty, who submitted evidence revealing the growth of the number of electors in one of the precincts by 650,000. Unofficial indications are that there are over 3 million electors in Georgia. The lists did not include living electors. Rather, they were filled with the names of their deceased relatives.

Elections (November 2, 2003)

On the day of the elections, there was complete chaos in the elector’s lists, incompetence and ignorance of election commission members, permanent breaches of provisions of the electoral code, unprecedented and unlawful decisions adopted by CEC, contradictory statements on previous polls by political parties and an absence of official information from the CEC.

Revolution of Roses

During the days, leading up to November 23 the country was confronted squarely with the prospect of an armed conflict. In those decisive hours, the President’s entourage promoted the illusion of civil clash, bringing in scores of policemen in civilian clothes from Adjara.

 

On November 23, Deputies assembled in the Parliament to inaugurate its first session and thus legitimize election results. At first,  there were not a sufficient number of deputies to reach the required  quorum..  In several minutes, the session was joined by  the New Rights Party enabling the President to declare the sitting as open. However, within  minutes opposition groups led by National Movement- Democratic Front alliance and opposition leaders Mikhail Saakashvili, Zurab Jhvania and Nino Burjanadze intruded into the sitting hall. President Shevardnadze was forced to flee. On the following day, he declared his resignation.

 

Interim government was formed which appointed interim elections on January 4, 2004. The favorite of the presidential elections and the leader of the revolution, Mikheil Saakashvili , swept to power with 96 percent of the votes cast

Constitutional Changes

On February 6, 2004, the Georgian Parliament passed the first in the series of forthcoming Constitutional amendments significantly altering power arrangements within the Georgian system of government in favor of increased Presidential powers at the expense of weakened Parliament and judiciary. The fact of adoption of these amendments caused a serious rift among political parties comprising the National Movement – Democratic Front block resulting in eventual breakage of the Republican and Conservative Parties from the alliance.

 

The amendments were criticized by a number of international organizations, including by the European Commission on Democracy through Law (better known as the Venice Commission), Council of Europe’s authoritative advisory body on constitutional matters. The Commission criticized the amendments for the contradiction between their proclaimed aim of creating a better system of checks and balances and establishing a dual executive (as in the French constitutional model) and their actual impact on increasing the power of the President. Among others, the Commission underlined that certain provisions, for example new provision aimed at stripping Parliament deputies of their immunity, left members of parliament members defenseless against abusive proceedings brought by the Executive.

 

Despite of criticism from domestic and international actors, Parliament hastily passed said Constitutional amendments in violation of established timelines and legal safeguards for guarantying public discussion of Constitutional amendments. Series of implementing legislation followed.

 

A dozen of additional amendments have followed in ensuing years, each of them affecting branches of government and the relationship between them. For example, on February 26, 2008 Parliament of Georgia passed Constitutional amendments introducing the institutional of Regional Governors, high-ranking public officials appointed by the President in administrative territorial units of the country. Similarly, on October 10 2008 the Parliament passed Constitutional amendments authorizing unification of the previously independent Office of the Prosecutor with the Ministry of Justice and establishing the enlarged structure of the Ministry of Justice as a member of Government. The President would be entitled to dismiss the Minister of Justice.

 

Although all preceding amendments had important legal consequences for the system of checks and balances in the government, the latest amendments passed on October 15, 2010 will seriously reconfigure the relationship between all three branches of government and will affect their rights and responsibilities.

These amendments are said to limit the rights and functions of the President in favor of the growing importance of the Prime Minister and the Parliament.

 

THE PRESIDENT OF GEORGIA

The President is the Head of the State and guarantor of Georgia’s unity and independence. President is the Commander in Chief of the Georgian army as well as the supreme representative of Georgia in international relations.  The President of Georgia is elected on the basis of universal, equal and direct suffrage by secret ballot for a term of five years. The same person may be elected the President only for two consecutive terms.  Any person may be elected the President of Georgia if he/she is a native-born citizen of Georgia, having the right to vote, has attained the age of 35, has lived in Georgia for at least fifteen years and has been living in Georgia for last three years leading up to the elections., The President is entitled to conduct international negotiations and conclude international agreements with the consent of the Government. The President appoints and dismisses ambassadors upon the proposals of the Government. She or he receives and accredits ambassadors and other diplomatic representatives of foreign states and international organizations, and awards highest diplomatic ranks.

 

The President takes decisions on granting citizenship, honorary, citizenship and dual citizenship to a person who has a special merit before Georgia or due state interests. He can give shelter to foreign citizens and stateless persons, and pardon convicts.

 

The President has extensive powers in the field of state security and defense. In particular, the President appoints members of the Security Council, which he heads.

The President is the supreme Commander-in-Chief of the armed forces. He appoints and dismisses the Head of the General Staff of the Armed Forces and other commanders. The President approves the structure of the armed forces.

 

The President participates in the organization of the judiciary power; in particular, he is the chairman of the Supreme Council of Justice. He appoints members of the Supreme Council of Justice and three members to the Constitutional Court. The President appoints the President of the National Bank. Legal acts of the President, except those acts, which are not of general application, require a countersignature by the Prime Minister. The President also appoints a national referendum on the basis of the request by the Government, the Parliament or not less than two hundred thousand voters.

 

We would like to address separately  the President’s other authorities in terms of their relation with the Parliament or Government as far as their execution is directly linked to them.

THE PARLIAMENT OF GEORGIA

According to the Constitution of Georgia, the Parliament is the supreme legislative power of country. It is made up of 150 members, 75 of whom are elected on the basis of a proportional representation (PR) system, and 75 of whom are elected from single-mandate districts in accordance with the majoritarian system (electoral systems that do not result in proportional representation are known as majoritarian systems). The Parliament is elected for a four-year term on the basis of free, universal, equal and direct suffrage by secret ballot. It is unicameral, although when Georgia regains its territorial integrity it is intended to be transformed into a bicameral body.

 

The Parliament exercises legislative power, determines the principal directions of domestic and foreign policy, and controls the activity of the Government. The Parliament has extensive power in any democratic country, and the development and progress of a country to a large extent depends on it. The Parliament has a legitimate opportunity to make decisions of political and state-importance and establish the legal base for the progressive development of the country.

 

Legislative activity (i.e. law making) is the exclusive right of the Parliament. Although the President has the right not to sign a law and to veto it, he does not have an absolute right to stop a law, as Parliament may override the veto. The Speaker of Parliament is authorized to sign and promulgate a law if the President refuses to sign it a second time.

 

The Parliament is also charged with the revocation of a member of the Parliament, as needed; election of the Speaker and Vice-Speakers of Parliament; the establishment of the internal entities; ratification, denunciation and cancellation of international agreements and treaties, and the adoption of decisions.

 

The Parliament elects three members of the Constitutional Court, four members of the Supreme Court of Justice and the Chairman of the Chamber of Control. The Parliament determines the type and composition of the armed forces and approves the number of the armed forces upon a submission from the National Security Council. The detention, imprisonment, search of apartment, car, workplace or person, and criminal proceedings of a delegate or member of the Supreme Court are inadmissible without the consent of the Parliament.

 

It is the exclusive right of the Parliament to call for the impeachment, under the rule establishment in the Constitution, of persons in question. The Parliament shall be notified about international agreements and treaties that do not require ratification. We shall review other authorities of the Parliament in relation with the President and Government.

THE RELATIONSHIP OF THE PRESIDENT WITH THE PARLIAMENT

The President schedules the date of parliamentary elections (no later than 60 days beforehand), as well as extraordinary elections. He schedules the day of the first sitting of the Parliament within 20 days after the elections.

 

The Parliament defines the major tendencies of the development of the country’s internal and foreign policies, while the President leads and implements them. The President has the right to convene a special (extraordinary) session or sitting. However if such an initiative comes from the Parliament and the President fails to issue the act of convocation, the Parliament is obliged to start its work within 48 hours.  President of Georgia convenes an extraordinary session of the Parliament on his own initiative or upon the request of the Speaker of Parliament, one fourth of the members of Parliament, Government

 

A state of emergency or martial law is also declared by the President. However, he submits the decision (ordinance) to the Parliament for approval within 48 hours. If the parliament will not approve it, the state of emergency or martial law is considered annulled.

 

The Constitution foresees the issuance of decrees by the President having the force of law only in the case of state emergency or martial law. The decrees issued during martial law or a state of emergency shall be submitted to the Parliament within 48 hours for approval.

 

The President cannot use armed forces during the state of emergency or for the execution of international liabilities without the consent of the Parliament. In special cases, and as foreseen under the law, the President makes the decision on bringing other armed forces into the country, including their use and allocation for the purposes of the self-defense of the country. However, the decision is first submitted to the Parliament for their approval.

 

The Parliament elects the Chairman of the Supreme Court and members of the National Bank Council upon the nomination of the President.

 

The President has the right to dissolve the Parliament in a case of a Constitutional crisis.

 

The existence of such practice in foreign countries does not mean that it is acceptable. The right to dissolve the Parliament is unanimously assessed negatively in legal and political literature. It is underlined that in this case, legislative power falls under the influence of the President and practically becomes the unconditional executor of his policies. This is against the principle of supremacy of the Parliament. Affected by such threat, the Parliament can never be courageous in its decisions. Consequently the following question arises - do people need such an obedient representative body that fails to act as an effective and actual counterbalance of the President, and is not able to declare no-confidence in an irresponsible Government, especially if the Government is the team of the president (except the unconditional no-confidence)? In this case, the boldness of the Parliament – to sacrifice their seats and numerous social and legal privileges for the interests of the country and nation – remains the only chance. Such a step requires a choice that is up to the Parliament and depends on the willingness of Parliamentarians to prioritize between themselves and the good of the country.

 

Parliamentary crises do not take place in countries with a bicameral (two-chamber) system because, as a rule, if the lower chamber is dissolved, parliamentary functions are still executed by the upper house. A crisis is inevitable in the case of dissolution of a one-chamber parliament, until new parliamentary elections can take place. According to the constitutional changes, extraordinary elections are held not earlier than 45 days and not later than 60 days before the enforcement of an order on the dissolution of the Parliament i.e. that the country might stay without a Parliament for two months and all the activities executed by the legislative body shall be terminated for two months.

 

The President is not authorized to dissolve the Parliament unconditionally upon his/her initiative. This can be done only in the case of constitutional crisis, when the composition of the Government proposed by the Prime does not gain confidence of the Parliament on several occasions. After Parliament succeeds in declaring no confidence to the current membership of the Government, the President proposes a new candidacy previously suggested by the Parliament. However, if the President refuses to put forward the candidacy suggested by the Parliament, the Parliament might vote for the same candidacy. The President is obliged to put forward the candidacy suggested by the Parliament if the suggestion is adopted by three fifths of the members of Parliament. New Prime Minister assembles the Government and puts forward the new composition to the Parliament. If the new composition does not gain confidence, the procedure is repeated once. At this point, if the Parliament continues to resist in declaring its confidence to the Government, the two branches appear to be in a constitutional crisis. To solve the crisis, the President dissolves the Parliament and appoints new elections.

 

In cases when the impeachment procedure is carried out, the President in not entitled to dissolve the Parliament. Impeachment may be initiated in case of violation of the Constitution, commission of high treason and other criminal offences. The Parliament initiates the procedure of impeachment regardless of whether there is the actual threat of its dissolution or not. Moreover, during the procedures of the confidence or no confidence in the Government, it is impermissible to put the issue of the dismissal of the President in accordance with the impeachment procedure.

 

The dissolved Parliament assembles in the case of a declaration of a state of emergency or martial law by the President, to decide on the issues of prolongation or approval of the state of emergency or martial law.

 

If the Parliament fails to meet within five days or does not approve (prolong) the order of the President on the declaration (prolongation) of a state of emergency, the announced state of emergency is cancelled. If the Parliament does not approve the order of the President on the declaration (prolongation) of a state of martial law within 48 hours, the state of martial law shall be cancelled. The President submits the decision on reconciliation to the Parliament for approval within 48 hours.

 

The President needs the consent of the Parliament to suspend the activity of self-government or other representative bodies of territorial units, or dismiss them in cases foreseen under the constitution. The President, upon the consent of the Parliament, appoints and dismisses ambassadors of Georgia and other diplomatic representatives.

 

If the President exercises the right of legislative initiative. Upon the President’s request, the Parliament considers the draft law submitted by him out of turn.

 

The President submits a report to the Parliament on important state issues once a year.

 

If the President is unable to execute his/her authority, or in case of a pre-term termination of his/her office, the Speaker of the Parliament exercises the responsibilities of the President. A person acting as the President acts within the framework defined under the Constitution. The Parliament provides for the conduct of pre-term elections.

 

These issues are considered as the most important in terms of the relation between the President and the Parliament. They execute mutual control and keep balance for the purpose of avoiding the imbalance of the power and development of negative tendencies.

On his own initiative or upon the request by the Parliament, Government, or at least two hundred thousand voters, the President of Georgia appoints a referendum on questions defined by law.

The Parliament has the right to override the Presidential veto on legislative acts. Once the President receives the act for signature, he/she can abstain from signing the act into law and can return it to the Parliament with own remarks. However, the Parliament may override the veto and can adopt the initial version of the draft into law if majority of its member will vote for it.

THE EXECUTIVE POWER OF GEORGIA (GOVERNMENT)

The Government is now based upon a collective government model. The Government did not exist as a state body before. It was the President's deliberative advisory body; the members answered to the President. The ineffective activity of the executive body was commonly explained by the lack of unity and collegiality of the Government.

 

The competence of the Government, its relations with the President and Parliament, and the rule of its establishment and procedure seem to be characteristic of a semi-presidential or so-called mixed system. However, the issue of whether Georgia can be considered a semi- presidential republic is considered here.

 

According to the constitutional changes, the Government is the highest executive body, which implements "the internal and foreign police of the country". The Government of Georgia is accountable to the Parliament.

 

The Government is composed of the Prime Minister and Minister.  So- called State Ministers can also be member s of Government. Prime Minister can designate some of the Ministers as Vice- Prime Ministers.

 

The Government is headed by the Prime- who defines main areas of activity of the Government, organizes the work of the Government, coordinates its activities and provides oversight. Prime Minister appoints Ministers and dismisses them. Prime Minister is appointed by the Parliament upon the nomination of the President.

 

Legal acts of the government are: an Ordinance and a Decree, both of which are signed by the Prime Minister.

 

The resignation of the Prime Minister or the termination of his/her authority results in the termination of the authority of the Government. If a member of the Government resigns, the Prime Minister makes a new appointment within two weeks.

THE RELATIONSHIP OF THE GOVERNMENT WITH THE PRESIDENT

After the President takes the oath of inauguration, the previous Government resigns. The President is entitled to oblige the old Government with the exercise of the duties before the appointment of the new Government.

 

The President submits the new composition of the Government to Parliament for approval. In a case of not receiving confidence in the new government, the President is entitled to submit the same composition three times, and in case of still not gaining the confidence the President is entitled to appoint the Prime Minister. The Prime Minister then appoints the Ministers upon the consent of the President i.e. the composition of the Government can be carried out ignoring Parliament and without its participation. This is an example of when the President is expected to be an individual decision-maker in the formation of the Government. It should be mentioned that the President then submits the new Government to the Parliament once again. However, the Constitution is silent about receiving a confidence vote from Parliament this time around.

 

The President may request for the Government to consider certain questions as well as personally participate in deliberations about them.

 

The President is authorized to dissolve the Government upon his/her own initiative.

 

The President appoints the Prime Minister from the party that has won the majority of seats in the preceding parliamentary election. The Prime Minister then appoints the ministers. The President may dismiss the Prime Minister. He solely dismisses the Ministers of Internal Affairs, Defense and State Security. They report to the President together with the Prime Minister.

 

The Prime Minister introduces and annuls the position of the State Minister (minister without portfolio working on specific, ad hoc issues), and dismisses him/her by the consent of the President.

 

The Minister hands his/her resignation to the Prime Minister.

Prior to the latest amendments of October 2010, the Minister’s could have been dismissed by the President. In addition, it is to the President that they asked for their resignation. The fact that the Prime Minister is not entitled to appoint or dismiss even deputy ministers confirmed that the position had rather limited power. It seems that this imbalance of powers has been remedied by strengthening the powers of the Prime Minister.

 

New amendments introduced a new procedure of ‘countersignature’ From now on legal acts of the President will require a ‘countersignature’ by the Prime Minister, except acts promulgated during martial law.  Order of the President as well as other acts, which do not have a wide and continuous application, do not require a countersignature. In case of countersignature, responsibility for the act rests with the Prime Minister.

THE RELATIONSHIP OF THE GOVERNMENT WITH THE PARLIAMENT

As soon as the authority of newly elected Parliament is recognized, the composition of the Government is dissolved. The President authorizes the Government to continue its work until the new Government is duly composed.

 

Only Government has the right to present the draft budget for approval to the Parliament. The Parliament is entitled to supervise the lawfulness of Government spending. Nevertheless, the budget cannot be amended without prior consent of the Government. If the Parliament was not able to adopt the proposed budget within three months, then all fiscal obligations shall be met according to the budget of the previous year.

 

Laws that increase the national budget of the ongoing year, reduce state revenue or incur new financial obligations on the state can only be adopted after the consent from the Government has been received. Laws that incur the same effect on the forthcoming budgetary year can only be adopted if they fit in the budgetary framework previously agreed between the Government and Parliament.

 

Parliament is entitled to submit the question of official liability of a particular Member of the Government to the Prime Minister, and in case the Prime Minister does not dismiss the member of the Government, he/she is obliged to submit the motivated decision on the issues to the Parliament.

 

The member of the Government is entitled, and in case of request obliged, to attend the sittings of Parliament, its committee or Commission, to answer questions raised at the sitting and submit an account on the alleged activity. This measure is considered a form of individual control over the Government by Parliament. Parliament is entitled to begin an impeachment procedure against a member of the Government who violates the Constitution, commits high treason, or other criminal offences.

 

Upon the request, the Prime Minister submits to the Parliament the progress report of the governmental program. This is the control executed over the activity of the Government, being the collegial (collective) body.

 

The President is entitled to dissolve Parliament. The principle of the power separation requires Parliament to raise the issue of the dismissal of the Government. Parliament is authorized to declare no confidence in the Government based on reasonable grounds. However the President may not share this opinion, and in the case, the Parliament declares no confidence to the Government again, it may be dissolved by the President.

 

The request for the no-confidence vote should be made by at least of three-fifths of the members of Parliament. The decision should be voted upon by majority of the official members of the Parliament.  

If the decision on no- confidence is not adopted, the same persons cannot initiate a no-confidence vote within six months after the first attempt.

 

The Government enjoys the right of legislative initiative. The Parliament, upon request, has to review out of turn the draft law submitted by the Government. In case the Government in its turn does not submit remarks on the draft law to be reviewed in Parliament, within a fixed term, the draft law is deemed approved by the Government.

NEW CHALLENGES OF THE GEORGIAN JUDICIARY

Over the last decade a new legal system, has been created in Georgia. Soviet era laws were replaced with new laws, drafted with the help of ongoing consultations with the active cooperation of European experts. As a result of this collaboration, Georgia adopted new Civil, Administrative, Company, Criminal laws. In 1999, the new legislation governing the judiciary came into force. The implementation of these new laws raised the question of the need for institutional reform, an integral part of which was considered to be judicial reform. Although the judiciary was partially formally freed from control, dependence and subordination to the executive branch of government, international organizations report systematic problems with corruption and independence of judges. The Council of Justice and the High School of Justice have been established.  The Council of Justice was established as a self-governing agency for judges. However, with active participation of political forces (in the past, President has served as the Chair of the Council and the Parliament has the right to appoint its representatives as members) sheds an unfavorable light to its independence. Similarly, lack of transparency and objective procedures in selection, training and appointment of judges by the High School of Justice, it has been subject to criticism about political bias.

 

 

A new court instance – appellate courts – was created. The competences between courts of deferent instances were clearly defined and separated. The rules for the competences and jurisdiction of the courts are now prescribed by law and are no longer dependent on the will and decisions of the chairmen of the courts.

 

The Supreme Court was transformed into the court of cassation, which reviews only the legal aspects of appeal decisions and does not discuss the cases on merit.

 

As a result of the reform, the peculiarities of the Soviet court system that still exist in most post-Soviet countries and challenge the independence of their judicial system were abolished. For example:

·       The practice of prosecutorial oversight of the courts was eliminated;

·       The supervisory review procedure, which gave the Chairman of the Supreme Court and his deputies the right to quash final and binding court decisions, regardless of the data of their entry into force, has been abolished. This radically condensed the time limits for deciding cases and ended the so-called “never finished” disputed, sometimes being discussed at courts for years. Accordingly, a fundamental principle of the rule of law, the principle of legal certainty, is now being observed;

·       For the first time in the country’s history, an administrative law chamber was established. This gives every citizen the right to appeal the actions of state organs which the citizen believes have infringed upon his or her rights;

·       The Supreme Court has been deprived of the right to issue resolutions of a normative character that are binding on courts of lower instances. This practice of issuing plenum resolutions still exists in other post-Soviet countries;

·       Transparency of the court process has become a characteristic of the Georgian judiciary. All decisions of the Supreme Court are published and accessible for all interested individuals. An organization called the “Media Group” at the Supreme Court is staffed with representatives of mass media and civil society. These representatives, together with judges discuss issues that face the judiciary. Representatives of the mass media are always provided with information concerning cases prior to the proceedings. They thus have the opportunity to select and attend the proceeding that they want to hear.

THE JUDICIARY

The structure of Judicial Power in Georgia is defined and outlined in the Constitution adopted by Parliament in 1995.

Chapter Five of the Georgian Constitution deals specifically and solely with Judicial Power. It identifies all the judicial bodies that implement justice in the country (the Constitutional Court, courts of general jurisdiction and military courts within the system of the courts of general justice in time of war).

In order to guarantee human rights and uphold the rule of law, the Constitution prohibits the establishment ad hoc of courts. It also lays down some general principles:

·       The independence and inviolability of Judicial Power

·       The independence, immunity and security of judges

·       transparency of court proceedings

·       the authority and competence of the Constitutional Court and the rules governing its establishment

·       The authority and competence of the Supreme Court and the rules governing its establishment

The Constitutional Court

The legal body for Constitutional supervision is the Constitutional Court of Georgia.

The Constitutional Court protects the constitutional rights of individuals (by revoking normative bills that conflict with the provisions of the constitution) and to consider or settle constitutional disputes between public institutions. In specific cases, the Constitutional Court may arbitrate on election issues. The court also participates in the procedure for the impeachment of high-ranking government officials in cases stipulated by the constitution.

By the article 89 of the Constitution:

1.     “The Constitutional Court of Georgia, upon the Complaints or Submission of the President, of not less than one fifth of the Members of Parliament, of the courts, of supreme representative bodies of Abkhazia and Adjaria, of the public defenders or of a citizen and under the rules established by organic law:

a.     decides the Constitutionality of the law, the President's normative acts and the normative acts of the supreme bodies of authority of Abkhazia and Adjaria;

b.     considers disputes on the competence between state bodies;

c.     considers questions of the constitutionality of the creation and activity of political parties;

d.     considers disputes connected with the question of the Constitutionality of referenda and elections;

e.     considers disputes connected with questions of the constitutionality of treaties and international agreements;

f.      on the basis of complaints of citizens, considers questions of the Constitutionality of normative acts on the issues envisaged by the second chapter of this Constitution;

g.     exercises other authorities determined by the Constitution and organic law of Georgia.

2.     The decision of the Constitutional Court is final. Normative acts or their parts recognized as unconstitutional have no legal power from the moment the appropriate decision of the Constitutional Court is published.

The Constitution determines the composition of the Constitutional Court: nine judges, each with a 10-year term of office. Three are appointed by the President of Georgia, three are elected by Parliament and three are appointed by the Supreme Court of Georgia.

The Constitutional Court considers a case if an application has been filed by any citizen, Legal entities of Georgia, the President, and no less then one fifth of MPs, any court, representative bodies of Abkhazia or Adjara, or the Public Defender. A decision by the Constitutional Court is final, and the normative act or a part of it, which is considered unconstitutional, looses its legal force once the decision has been made public.

The Organic Law on the Constitutional Court provides for its authority, the rules of its creation and activities.

The Supreme Court

The Supreme Court of Georgia is the highest judicial body in Georgia. By Article 90 of the Constitution:

“The Supreme Court of Georgia, in accordance with existing legal procedure supervises the enforcement of justice of every court of Georgia, and reconsiders cases determined by law in the court of first instance.”

Judges of the Supreme Court are also nominated by the President and elected by Parliament for 10-year terms. There are 30 judges in the Supreme Court at present.

There are three Chambers of Cassation and Collegium of Criminal Law in the Supreme Court.

The Chambers are:

·       The Chamber of Civil, Entrepreneurship and Bankruptcy Cases

·       The Chamber of Criminal Cases

·       The Chamber Administrative and Other Categories of Cases

The chairmen of the Chambers and the Collegium are also deputies of the Chairman of the Supreme Court.

Chambers of the Supreme Court, composed of three members, consider complaints relating to decisions of the Courts of Appeal and those of the High Courts of the Autonomous Republics.

The Collegium of Criminal Cases, within the Supreme Court, considers in the first instance only grave criminal cases such as terrorism, assassination of a senior official, etc.

Since 2001, a Grand Chamber has been operating within the Supreme Court. It consists of the Chairman of the Supreme Court, the Chairman of the Collegium and at least 12 other judges from the chambers elected by the Plenum.

Cases are heard by nine judges and include those who sat on the original decision.

The Plenum works within the Supreme Court. It consists of the Chairman of the Supreme Court, his/her deputies, the chairman of the high Courts of  Abkhazia and Adjara, all the judges of the Supreme Court and Chairman of Tbilisi and Kutaisi District Courts.

Similar to the Constitutional Court, there is a separate Organic Law “On the Supreme Court of Georgia”, which provides for its authority, rules of creation and activities. The Supreme Court has selected decisions in English.

Common Courts

Regional (City) Courts are the lowest level of general courts. Cases are considered by one judge. 

The District Court, like the Regional one, is a court of the first instance, where cases are considered by three judges.

Within the District Courts there is:

·       A Collegium of Criminal Cases

·       A Collegium of Civil and Bankruptcy Cases

·       A Collegium of Administrative Justice and Taxation

Special Chambers of Appeal have been created within the District Courts. These chambers are II Instance Courts. They consider appeals from the Regional (City) Courts. There are three chambers for criminal cases, civil and bankruptcy cases, and administrative law and taxation cases.

Any person of thirty years of age, that possesses a law degree and a five- year professional experience, may qualify to serve as a judge. Constitutional amendments of October 2010 provide for lifetime tenure for judges. Before lifetime appointment, it is possible to appoint the judges for the initial trial period of three years.

REGIONALISM AND LOCAL SELF-GOVERNMENT IN GEORGIA

The organic Law on Local Government and Self-Government (adopted in 1997), and amendments to it introduced in 2001, provide for two levels of local government (and Self-Government).

 

Functions and responsibilities of the local government are separate from those of the central government. Local governments possess their own finances and property. Yet central authorities do excesrise certain supervisory functions. Moreover, as the most important source of revenews are allocated o the central government, e.g. profit tax, local governemnts are largely devoid of independent sources  of income andare dependant on financial transfers from the central government.

 

Local Self government is exccerised on the level of regional municipalities or districts (formerly rayony) and ‘cities of republican subordination’ (cities which come directly under the republic). District councils are elcetd by direct and universal suffrage by persons registered in residence in that district. City councils are elected by the population in a majoritarian system. The gamgebelis (chief executives) of districts are elected from among the members of council. The district authorities, according to the legislation, act as the local government as well as territorial branches of central government.

 

Amendments passed in the law on Local Government in 2005 abolished the lower, grassroots level of locavl government called Sakrebulos, or Councils, which oparted in villages and townships. In this much course of these much criticised changes about 1100 of such Councils stopped functioning. Instead, local government has been excersied at the level of up to eighty District Councils.

 

The self-government and local government practice that guides the capital, Tbilisi, is regulated by separate legislation. The governing body of Tbilisi is a city council elected by proportional representation.

 

In practice, the most authoritative regional institution is that of Governor. Most recent amendments of 2010 legalized the authority of Governor, which previously existed outside constitutional regulation. Regional Governors are representing executive government in regions. Prime Minister appoints and dismisses the Governors. Prior to most recent amendments strengthening the Prime Minister, Governors were appointed and dismissed by the President and implemented solely his authority.

 

The legislation also gives some additional authority to local governments in the mountain regions of Georgia.

 

THE ELECTORAL PROCESS IN GEORGIA

Since 1990, Georgia has held seven parliamentary elections (in 1990, 1992, 1995, 1999, 2003, 2004, 2008), six Presidential elections (in 1991, 1992, 1995, 2000, 2004, 2008), and three local elections (in 1991, 1998 and 2002, 2006 and local elections in Adjara in 2008 ). The government bodies formed as a result of the 1990 and 1991 elections were violently overthrown in the 1991-1992 coup against President Zviad Gamsakhurdia, but since the new constitution was adopted in 1995, all presidential and parliamentary elections have been held in full accordance with the constitution and conducted in a fairly orderly manner.

 

In August 2001, Parliament enacted a new, comprehensive Electoral Code.

 

In general, Georgia’s Election legislation includes all the standard democratic provisions. There are no restrictions on the rights to run for office or to vote, save for certain restrictions for internally displaced persons and a ban on the registration of regional parties.

HIERARCHY OF LEGAL NORMS OF GEORGIA

Article 21 of the Civil Code of Georgia states that “the Civil Code, other acts of private law and their interpretation, shall conform to the Constitution of Georgia”. This provision underlines the circumstance that the Constitution as the state’s basic law is at the top in the hierarchy of legal documents and legal rules. According to Article 6 I, “the Constitution is the supreme law of the state” and “all other legal acts shall be in compliance with the Constitution.

 

In Georgia, in the hierarchy of norms, an international treaty takes the next highest rank after the Constitution, as per Article 6 II. It enters into force in compliance with Article 65 of the Constitution (in some cases after being ratified by Parliament). Thus, it is not necessary to adopt a special normative act on the enactment of its provisions.

 

After the Constitution and international treaties come laws. There is a difference between “ordinary” and organic laws. Article 66 of the Constitution states that the consent of the majority of Members of Parliament is needed for the adoption of an organic law. Organic laws are on a higher rank than ordinary laws and are adopted for the implementation of a particular requirement of the Constitution.

 

Sub-legislative normative acts are of a general character and thus tend to be applicable to an indefinite amount of social relations and indefinite group of persons. Consequently, pursuant to Article 2 III of the Civil Code of Georgia, sub-legislative normative acts adopted for the regulation of private law relations is admissible only if they complement the norms of law. If it contravenes the law, the sub-legislative normative act shall not be applied.

 

Georgian law, like Romano-Germanic law, is divided into public (jus publicum) and private (jus privatum or jus civile) law-order. Public law comprises constitutional, administrative and criminal laws as well as customs, taxation and procedure legislation. Traditionally civil and company law fell within the scope of private law. Today such a division has retained its practical importance for the classification of legal acts and the identification of the course of justice.

 

Private law disputes are adjudicated under civil proceedings on an adversarial basis. Public law disputes are adjudicated under administrative proceedings, and with inquisitional elements.

 

An administrative body has a special authority precisely prescribed by the law, whereas natural persons and legal persons of private law are entitled to carry out any action not forbidden by the law. An administrative body is bounded by the principle of observing legitimacy and state interests; the principle of autonomy of will provided for by private law does not apply to it. Due to this fundamental distinction, legal persons of public law cannot be treated like private persons under a common civil law regime. Thus, it becomes necessary to introduce a special regime for the activity of legal persons of public law.

 

Administrative law is the common law of public governance.

 

Article 1 of the Civil Code of Georgia defines the scope of application of civil law – it “regulates property, family and personal relations of a private nature, based on the equality of persons”. Pursuant to Article 8 I of the Civil Code, “any natural or legal person may be a subject of private law relations. This rule applies to both entrepreneurial and non-entrepreneurial persons of Georgia or of other countries.”

 

“Private law relations between state bodies and legal persons of public law, on the one hand, and other persons on the other hand, shall  likewise be regulated by civil laws unless these relations, in the interests of the state or the public, are to be regulated by public law” (Article 8 II of the Civil Code).

 

Pursuant to Article 7 of the Civil Code, “an object of private legal relations may be a material or non-material good, of property or non-property value, which has not been excluded from (commercial) circulation by law”. According to Article 10I, “the exercise of civil rights shall not depend upon political rights regulated by the Constitution or by other laws of public law”.

 

“Participants in a civil relation may exercise any action not prohibited by law, including any action not directly foreseen by law” (Article 10 II of the Civil Code).

 

As for the scope of application of the administrative law, pursuant to Article 2 I of the Administrative Procedures Code, a common court shall hear disputes arising from legal relations that are regulated by administrative legislation.

 

Pursuant to Article 2 II of the Administrative Procedure Code of Georgia, the subject of an administrative dispute may be in conformity of an administrative act with Georgian legislation; conclusion or performance of an administrative transaction; and the obligation of administrative body relating to compensation of damage, issuance of administrative act, or taking any other action.

THE OFFICIAL GAZETTE, LEGAL JOURNALS AND MAIN NEWSPAPERS

The Official Gazette, where all laws are published, is called "Sakanonmdeblo matsne".

 

The main law journals of Georgia are: "Samartali" (LAW), "Adamiani da Konstitutsia" (Human and Constitution), "Saertashoriso Samartali" (International Law), “Almanakhi", "Tavisufleba" (Liberty), "Martlmsadjulebis matsne", "Advokati meokhi" etc.

 

Main newspapers:

-"Rezonansi",

-"24 Hours"

-"Mtavari gazeti", "Kviris palitra"

-"Alia"

-"Saqartvelos respublika"

-"Tbilisi"

-"Akhali versia"

-"Akhali Taoba"

- "Georgia Today"

-"Tbilisi Today"

-"The Georgian Times” (Media Holding Georgian Times)

-"Akhali 7 dge"

-"Akhali Epoqa"

-"The Messenger"

-"Dilis gazeti"

 

Important Note on Primary Materials
The latest edition of decisions and cases issued by the Constitutional Court covers a period from 2006-2007 and is published in 2009;

 

The Supreme Court publishes cases and decisions in the different fields of law, these are:

·       Decisions on Criminal Cases of 2008 vol.10;

·       Decisions on Civil cases 2008 vol. 05;

·       and Administrative Cases also 2008 vol 07.

Legislative Herald published by the parliament is also divided in three major issues: Laws of Georgia, By Laws and Informational Edition;

 

The latest from these are:

 Laws: issue number 32, date: November 6, 2009;

·       By Laws: issue number 139, date: November 11, 2009

·       and Informational edition: issues number 75, date: November 10, 2009

Unfortunately, the latest versions of codes are not available online in English. The final criminal procedure code is not yet adopted, but a lot of changes are made. We are waiting shortly for this code to be published. As for the other codes, there definitely are the changes in those as well. Personally i would not rely on the online source in terms of the updates of these codes (in English language) .  Another unfortunate thing is that the Georgian legislation in not that often updated in English language.

 

There is no official publisher except for the parliament of Georgia that periodically publishes laws, codes, changes in the law etc. The edition  title is "Legislative Herald" (sakanonmdeblo matsne) , this the the only in print reliable source. As for the journals that publish cases, they might be found  in the editions that  are priodically published by the Constitutional and Supreme Courts. It makes no sense for the different publishing houses to issue Georgian legislation since the majority of the organizations and ordinary  users have Codex program which is available in CD-ROM format and includes all of the latest updates from the Georgian legislation.

WEB RESOURCES

·       Parliament of Georgia

·       The Executive Power of Georgia

·       Ministry of state security of Georgia

·       Armed Forces & Security

·       Supreme Court Of Georgia

·       Constitutional Court of Georgia

·       Human Rights Protection in Georgia

·       Public Defender of Georgia

·       Ministry of Foreign Affairs

·       Ministry for Special affairs

·       Ministry of Internal Affairs

·       Central Electoral Commission of Georgia /CEC/

·       Council of Justice of Georgia

·       Ministry of Finance of Georgia

·       Georgian search engine

·       Georgian search engine

·       Online magazine of United Nations Association of Georgia

·       Constitutional Court of Georgia

·       General Courts of Georgia