Rapporteurs: Dr Ian MICALLEF, Malta, (L) and Mr David SHAKESPEARE, United Kingdom, (R)
Co-Rapporteur: Mr Leon KIERES, Poland, (R)
Document to be submitted for approval to the Institutional Committee of the Congress on 23 April 2004
I - INTRODUCTION
1. On the basis of Article 2.3 of Committee of Ministers Resolution (2000) 1, which requires the Congress to prepare country-by-country monitoring reports on the situation of local and regional democracy in member and applicant States, the Congress Bureau in July 2002 entrusted the Institutional Committee with the preparation of a full report on the situation of local and regional democracy in Georgia.
2. For this purpose, the Institutional Committee appointed three members of the Congress as Rapporteurs on local democracy: Mr. Leon Kieres, Vice-President of the Congress (Poland, R), Dr. Ian Micallef (Malta, L), and Mr. David Shakespeare (United Kingdom, R). In order to fulfil their responsibility, the Rapporteurs were assisted by Prof. Olli Mäenpää (Finland), expert. Mr. Ivan Volodin from the Congress Secretariat and Ms Natia Japaridze from the Council of Europe’s Information Office in Georgia also assisted the Rapporteurs with the drawing up of the report and the organisation of their official visits to Georgia. Mr. Plamen Nikolov, Special Representative of the Council of Europe Secretary General in Georgia, helped to chair the meeting with the Council of Europe ambassadors in Georgia.
3. The Rapporteurs were requested to present a full report, accompanied by political proposals, to the Congress autumn institutional session to take place in Strasbourg on 25 November 2003.
4. In order to prepare their report, the Congress Delegation made two official visits to Georgia in accordance with the programmes prepared by the Council of Europe Information Office in Georgia and the Regional Policy and Management Service of the State Chancellery. The first visit took place in Tbilisi on 12-15 March 2003. During this visit the Delegation had nearly two dozen meetings with representatives of governmental, parliamentary, and local and regional authorities. The second visit took place on 14-18 September 2003 in Tbilisi, Kutaisi, Batumi and Poti.1 On the occasion of this visit, the Delegation met with deputy-mayors of these cities, elected representatives of the respective local authorities, and representatives of the State Chancellery and the Ministries of Justice and Foreign Affairs.
5. During the visits, the CLRAE Delegation experienced a friendly and co-operative atmosphere. In this connection, the Rapporteurs wish to express their gratitude to the Georgian authorities for their welcome and the organisation of the different meetings.
6. On this basis, a recommendation and a resolution will be adopted by the Congress at its autumn session on 25 November 2003 and addressed, together with the report, to the parliamentary and governmental authorities of the Republic of Georgia via the Committee of Ministers. A copy of these texts will be also sent to the Parliamentary Assembly of the Council of Europe, the European Parliament, the European Commission and the Committee of the Regions of the European Union.
7. This report is divided into four parts. After the present introduction (Part I), Part II provides brief geographical, social and political background information, which also refers to the structure and the functioning of public institutions in Georgia.
8. Part III presents the current territorial administrative organisation of the country. It describes the organisation and functioning of local and regional self-government, referring to the relevant constitutional and legal framework, but focuses on self-government at the local level and its practical functioning.
9. Part IV examines the above-mentioned legal texts with particular reference to:
- the legal recognition of the principle of local self-government,
- the concept of local self-government,
- the position of elected local councils and the executive bodies responsible to them,
- the internal administrative structures of local authorities,
- the conditions under which responsibilities at local level are exercised,
- local authorities’ responsibilities and financial (own and transferred) resources,
- the institutional relations between local authorities and State authorities,
- the right of local authorities to cooperate and create associations,
- the right of local authorities to judicial protection.
In so doing it takes into account the principles enshrined in the European Charter of Local Self-Government (Charter).
10. Part V of the report examines the current functioning of local and regional self-government in Georgia and examines the future prospects of the decentralisation process. With this in mind, it focuses on the difficulties encountered in the implementation of the legislation regulating local government. This analysis takes into consideration the comments made by the Georgian representatives met by the Rapporteurs during their visits.
11. The final part of the report (VI) contains a summary of the main positive facts and the problems encountered. On this basis, it draws constructive conclusions, which should provide support for the improvement of local and regional self-government in Georgia.
II - BACKGROUND INFORMATION
12. Georgia is located in the Western part of Transcaucasia on the southern slopes of the Caucasian mountains, bordering the Black Sea, between Turkey and Russia. It has a population of slightly over 5 million inhabitants and an area of 69,700 sq km.
13. The Supreme Council of the Republic of Georgia proclaimed the restoration of the country's independence on 9 April 1991. The current Constitution of Georgia was adopted on 24 August 1994. According to the Constitution Georgia is a democratic republic. The Georgian constitution recognises the traditional division of powers between the executive, the legislature and the judiciary.
In August 2002, a governmental commission was set up to examine issues concerning the country’s territorial organisation, electoral system and institutional development, especially with respect to the establishment of a Council of Ministers. A possible revision of the Constitution might include the creation of a post of Prime Minister with parliamentary responsibility, and the creation of a second Chamber in order to secure proper representation of autonomous Republics.
14. The Parliament consists of 150 members elected by a proportional representation system and 85 elected by a majority system. The Constitution provides for the setting up of a bicameral Parliament once there are appropriate conditions and when self-governing bodies have been created over the whole territory. The two chambers would be the Council of the Republic and the Senate.
In September 1998, in agreement with the Ministry of Justice, 79 political parties were registered in Georgia. The parliamentary elections of 2 November 2003 were contested by x political parties or blocs. [add information concerning the outcome]
Local elections were held in June 2002. According to international monitoring reports they fell short of fair standards. The most significant parties in terms of actual share of the vote in the local elections of June 2002 were the following:
- the Citizens Union of Georgia, CUG
- the Christian Conservative Party
- Industry Will Save Georgia, IWSG
- the Labour Party
- the National Movement - Democratic Front
- the New Rights Party
- the People's Party - Traditionalists bloc
- Republican Party
- the Revival Party -21st Century election bloc
- the Unity Political Organisation.
The local elections brought victory to opposition parties in Tbilisi. The Labour Party received almost 25 % of the vote, the National Movement – Democratic Front 23,5 %, the New Right over 11 %, and the Christian Democratic Party 7 %.
15. Georgia joined the Council of Europe on 27 April 1999 and, consequently, signed the Charter on 29 May 2002. Georgia has not yet ratified the Charter although it had committed itself to doing so within three years after its accession to the Council of Europe. This deadline expired in Spring 2002. The Congress Delegation has been informed that ratification will not take place before the parliamentary elections in November 2003 and the reconvening of the Parliament.
On 16 December 2002 the Congress Bureau was compelled to suspend the Georgian delegation owing to the fact that the six-month time-limit for providing information about a change in the composition of the delegation had expired. More specifically, the Congress Delegation noted that no consultation with national associations of local self-government authorities in compliance with the Congress statutes has, as yet, taken place with a view to the appointment of a new delegation. Moreover, it appears to the Congress Delegation that local politicians were unaware that a delegation to represent them at the Congress was to be appointed.
III - TERRITORIAL ORGANISATION AND THE MAIN FEATURES OF LOCAL AND REGIONAL AUTHORITIES
16. The territory of Georgia is defined by the Constitution as based on the situation as of 21 December 1991, i.e. with the inclusion of the Autonomous Republic of Abkhazia and the former Autonomous District of South Ossetia. However, the constitution does not define the administrative and territorial organisation of the country. It is stipulated that this will occur later, when the country's territorial integrity has been restored (Article 2.3 of the Constitution) and Georgia's jurisdiction has been re-established over the whole of its territory.
One of the major problems hindering the process of defining the country's territorial division is the fact that the country's sovereignty is disputed. Separatism prevails in Abkhazia, while South Ossetia has demanded its attachment to North Ossetia, which is part of the Russian Federation.
17. Georgia comprises 12 regions, 76 districts (rayon) and approximately 1,100 municipalities of various kinds. Municipal administration consists of villages, villages grouped together, towns and cities.
According to the Law on local self-governance and governance (2001), local self-government is exercised in villages, agglomerations of villages, towns and cities, as well as in cities not subordinate to a rayon (Tbilisi, Batumi, Rustavi, Sokhumi, Poti, Kutaisi and Tshkhinvali).
18. In cities and rural municipalities, voters elect a city or municipal Sakrebulo (Council). The members of the Sakrebulo then elect the Council chairperson from among themselves.
Only the elected Councils have the right to elect organs answerable to them. These consist of the executive body (Gamgeoba) and the head of the executive body (Gamgebeli) who are responsible to the elected municipal Councils. In cities and rural municipalities with a population exceeding 5000, people also directly elect the executive official (Gamgebeli). In this context Gamgebeli is another term for mayor. If the population is less than 5000, the chairman of the directly elected Council (Sakrebulo) automatically becomes the Gamgebeli.
The cities of Tbilisi and Poti are exceptions, because the President directly appoints and dismisses their mayor/gamgebeli and their mayors are also responsible to him. The mayor of Poti is appointed by the President from among the elected members of the district (rayon) Council, whereas the mayor of Tbilisi does not have the status of elected representative. The delegation was informed that the Mayor of Tbilisi suffered a vote of no confidence but was not removed by the President.
19. The 76 districts (rayons) constitute the second tier of local government. The districts perform state functions (local governance) at the local level and they come directly under central government. Some of the districts are in the territories of Abkhazia and South Ossetia. The towns are incorporated into districts with the exception of Batumi, Tbilisi, Rustavi, Sokhumi, Poti, Kutaisi and Tskhinvali.
The chairpersons of the individual municipal Councils (sakrebulos) in any given district constitute the district Councils. A district executive, also-called Gamgebeli, but not to be confused with the municipal-level mayors, is appointed from the district-level councils. The heads of the district executive organs (gamgeoba) are not elected but appointed and dismissed by the President.
20. A specific feature of municipal and district administration in Georgia is that the Gamgeoba perform a twofold function, acting as the executive organ of the municipal councils and, simultaneously, as the executive organ of the district. The state at district level and the municipalities enjoying self-government therefore share executive organs. At the same time, the municipalities also have their directly elected mayor or Gamgebeli, with the exception of the cities of Poti and Tbilisi.
21. The regions have no clear legal status. Regional administration is not based on regional autonomy, but the 12 regions include the two autonomous republics - Abkhazia and Adjara. In nine regions, i.e. in all regions except Abkhazia, Adjara and Tbilisi, the regional administration is led by a governor, who is appointed by the President without the endorsement of Parliament.
22. According to the Constitution, citizens of Georgia regulate matters of local importance through self-government but without prejudice to state sovereignty (Art. 2.4). The right to create self-governing bodies is also guaranteed. The powers of such bodies as well as their relationship with state bodies is determined by an organic law.
23. The main laws (and subsequent amendments) concerning local and regional self-government are:
- the Organic Law on Local Self-governance and Governance, 2001 (hereafter the Local Government Law),
- the Electoral Code, 2001 (amended in 2003 to accommodate recommendations made by the Council of Europe and the OSCE/ODIHR);
- the law on the capital of Georgia, Tbilisi;
- the law on the status of municipal councillors defining the rights and duties of local council members;
- the taxation code, which governs budgetary relations between the state and local authorities.
The Local Government Law, together with the Electoral Code, constitutes the core of legislation on local self-government and lays the foundations for the functioning of the organs elected at municipality and district level.
IV - EXAMINATION OF THE CONSTITUTIONAL AND LEGAL FRAMEWORK FOR LOCAL AND REGIONAL SELF-GOVERNMENT AND ITS COMPLIANCE WITH THE PRINCIPLES ENSHRINED IN THE ECLSG
24. Article 2 of the Charter (constitutional and legal foundation). The Charter requires that the principle of local self-government should be enshrined in written law “and where practicable in the constitution”. The principle of local self-government is referred to in the Constitution of Georgia in fairly general terms. Article 2(4) of the Constitution states that “Citizens of Georgia shall regulate matters of local importance through self-government without prejudice to state sovereignty. The procedure for the creation of the bodies of local self-government, their authority and their relation with state bodies shall be determined by the Organic Law.”
Although the principle of local self-government is clearly mentioned in the Constitution, it is made conditional on and subject to the exigencies of the sovereignty of the State. The wording is such that local self-government as a constitutional concept is defined as auxiliary or subsidiary to the State and its sovereignty. This centralised view is further strengthened by the broadly formulated powers vested in the President of Georgia “to halt or dismiss the activity of representative bodies of local self-government … if their activities endanger the sovereignty or territorial integrity of the country or the exercise of constitutional authority of state authorities within the country.” (Art. 73.1.h of the Constitution)
The Local Government Law expressly recognises the right of Georgian citizens to local self-governance in conformity with the Georgian Constitution and the present law (Art. 2.1). The Law also refers to the differentiation of state governance and local self-governance as one of the basic principles of local self-governance: “Local self-governance bodies shall exercise exclusive authority independently and under their full responsibility, in accordance with the order established under Georgian legislation.” (Art. 6.1.2). As a whole, then, the statutory (constitutional and legal) definition of self-government can be deemed to meet the minimum requirements of the Charter. Nevertheless, one should be aware of the fact that the Constitution also seems to provide for a possibility of serious limitations to local self-government.
25. Article 3.1 of the Charter (concept of local self-government). According to Article 3.1 of the Charter local self-government denotes “the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population”. The Local Government Law defines local self-governance as the “right, opportunity and responsibility of citizens of Georgia ... to resolve, in conformity with the legislation, matters of local importance independently and under their own responsibility, through the local bodies created by themselves within the self-governance units” (Art. 1.1). This provision is fully compatible with the requirements of Article 3.1 of the Charter.
However, since it is the intention of the Charter that local self-government authorities should have a broad range of responsibilities which they are capable of performing at local level, a closer look at the reality is necessary. One should bear in mind that the notion of "ability" expresses the idea that the legal right to regulate and manage certain public affairs must be accompanied by the means of doing so effectively. "Under their own responsibility" stresses that local authorities should not be limited to merely acting as agents of higher authorities. With respect to these two basic requirements there remain noticeable inadequacies in both the legal framework and the actual operation of the local government system.
As to the very concept of local self-government, the Local Government Law is quite vague in defining the actual scope of self-government. The Law is based on a distinct dualism between local matters of “local importance” and local matters of “State importance”. To the extent that local matters are of local importance they fall under “local self-governance” (Art. 1.1) but if local matters are of “State importance” they fall under “local governance” (Art. 1.4). While such a distinction is fully conceivable, the exercise of these two functions is unclearly defined in the Local Government Law. The Rapporteurs also consider that this state of affairs may be understood as a basis for restrictive practices as far as the local authorities’ autonomy is concerned. It also appears that the two concepts are to some extent used interchangeably, or at least there are considerable overlaps between them.
As to the requirement of being able to manage a substantial share of public affairs, it is also noteworthy that the local governance bodies, i.e. bodies representing state interests, have been entrusted with conspicuously wide and significant functions in the fields of education, culture, health care, social welfare, local finance, public order and security (Art. 8.1 of the Local Government Law). These functions may be said to belong to the core area of local interests. Placing them generally outside the scope of local self-government is therefore problematic even though it is possible to delegate these functions gradually to the local self-government bodies.
26. Article 3.2 of the Charter (elected councils and executive bodies responsible to them). This article lays down three key requirements for the exercise of local self-government. First, local self-government must be based on free elections: it “shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage”. The second, albeit a more indirect requirement, is that such elected bodies must have a central role in the decision-making of the local self-government unit. If the directly elected council has an executive body, the third requirement is that that executive body should be responsible to the elected body.
a. As to the first requirement of an elected council based on free elections, the local representative body, the Council (Sakrebulo), is composed of deputies elected by means of direct, universal, equal and secret suffrage for a four-year term (Art. 9.1 of the Local Government Law). The electoral system is governed by a comprehensive and up-to-date Electoral Code of 2001, which is also applicable to local elections. Although the legal framework required by the Charter exists, there still apparently remain serious problems in their application and in actual compliance with the electoral law.
A CLRAE delegation monitoring the local elections in Georgia in 2 June 2002 concluded in its report that the local elections constituted a step backward rather than forward for democracy in Georgia.2 According to the report there were “severe shortcomings in the technical preparations of the elections, in particular with regard to the voting lists, but also with regard to the Electoral Code, which had not yet been amended to accommodate some of the essential recommendations made by the Council of Europe and the OSCE/ODIHR”. The CLRAE noted with regret that the elections were seen as a test of popular support for the various political forces before next year’s parliamentary elections rather than as an exercise to elect genuine democratic local governments.
Given the practical problems encountered in the implementation of the Electoral Code it is uncertain whether there are sufficient and effective guarantees for the election of municipal councils in free elections. The challenges are not in the legislative framework for organising such elections but rather in ensuring proper and consistent compliance with and implementation of the Electoral Code.
b. The Local Government Law guarantees the right of the local population to elect a local self-governance representative body and participate in the implementation of local self-governance. It also defines as a basic principle of the implementation of local self-governance that there should be independent decision-making of local self-governance bodies in matters of local importance, determined by law (Arts. 6.a and 6.b).
Whether the elected bodies enjoy a sufficient degree of independence in exercising their self-governance functions is somewhat uncertain, however. The reasons are partly financial, and partly administrative by nature. As to the financial reasons, it appears that the elected Councils lack the requisite financial means as well as the financial independence to exercise self-governance in practice. This is due to the fact that their funding is predominantly based on centrally and, at least in some cases, both unpredictably and unequally allocated funds. The grounds for allocation are opaque, at best, and it appears that the Government enjoys unlimited flexibility and wide discretion in their interpretation.
The municipalities lack the means to impose local taxes and, although they are formally entitled to own their own property, the property needed for their functioning and used for local purposes has not been transferred to them from State ownership. It appears that the Government lacks the political commitment to settle this matter swiftly and submit the draft legislation to Parliament. As to the administrative reasons, the still largely centralised system of accountability and supervision leaves inadequate latitude for the exercise of self-government.
c. Concerning the responsibility of the executive bodies to the directly elected council, the Local Government Law establishes a system of dual and overlapping accountabilities. On the one hand, the executive body of the district (Gamgeoba) and/or its head (Gamgebeli) may be made responsible to the directly elected municipal council (Sakrebulo), although the grounds for such responsibility are somewhat vaguely defined. On the other hand, the head of the executive of the rayon and the mayors in the two major cities are appointed and may also be dismissed by the President. Notwithstanding a vote of no confidence by the council, the President may decide not to remove the mayor. These arrangements clearly denote a parallel responsibility to the central government.
The main reason for such a system of dual responsibility appears to be the concurrent performance by the local executive bodies (Gamgebeli, Gamgeoba) of the functions of both the executives of elected local councils and the state administration at local level. While this results in a considerable confusion of state and local self-government powers, thus reducing the scope of self-government, it also limits the room for manoeuvre of the elected local organs. There may also be a risk of conflict between councillors and heads of executives appointed by the President.
It is likely that a parallel responsibility to both the elected Council and to the President of the Republic may effectively water down and actually frustrate the requirement of local responsibility and autonomy enshrined in Article 3 of the Charter. As a consequence, the Local Government Law may be deemed to be incompatible with the Charter as regards the definition of the responsibility of the executive body of the directly elected council.
Moreover, the practice of appointment by the President of the mayors of the two major cities and the district Gamgebeli (Mayors) is incompatible with the principles of the Charter. These persons should be elected by the councils or the population at all levels of local self-government and they should be accountable to their electors.
27. Articles 4.1 and 4.2 of the Charter (scope of local self-government) are implemented by the Local Government Law, which defines local authorities’ responsibilities and competences. The basic powers and responsibilities of both local governance (local matters of state importance) and local self-governance (local matters of local importance) bodies are defined in that Law. Article 61.1 of the Law stipulates that local self-governance bodies are assigned compulsory and voluntary authority. Voluntary authority is exercised on the local self-government bodies’ own initiative and with due regard to the principle of subsidiarity (Art. 6.1.4). In Article 1.8 of the Law, voluntary authority is defined widely as encompassing the power of local self-governance bodies to make decisions on all matters which have not been removed from its authority or do not come under the authority of a State body.
Compulsory authority consists of exclusive and delegated powers. Both kinds of compulsory competences are enumerated in Art. 7 of the Local Government Law. Exclusive competence is the authority of the local self-governance body, execution of which is determined by law. Exclusive competence is carried out independently and under own responsibility, in accordance with the legislation in force (Art. 1.5 of the Local Government Law). The delegated competence is exercised “under the methodological guidance and monitoring of the respective State authority” (Art. 61.7).
As such, the overall legislative framework provides a clear definition of the local self-government authority as envisaged in Article 4.1 of the Charter. In addition, it should be pointed out that one of the objectives of the Charter is to ensure that basic responsibilities are not assigned to local self-government bodies on an ad hoc basis but are sufficiently rooted in legislation. In this connection, one may note the wide-ranging power to transfer authority to the self-government bodies on a contractual and ad hoc basis, as defined in Art. 8.3 of the Local Government Law. This arrangement raises certain questions also because the delegation of functions focuses on key areas of local service provision such as education, culture, health care, social welfare, public order and safety.
According to Article 4.2 of the Charter, local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter, which is not excluded from their competence nor assigned to any other authority. Such a right of free discretion and independent decision-making is guaranteed as one of the “Basic principles of implementation of local self-governance” (Art. 6.b of the Local Government Law). More precisely, under Article 61.6 the local self-governance bodies are entitled to freedom of action, within the framework of the legislation, in regard to the matters attributed to their decision-making competence, taking into consideration the local conditions and the interests of the population.
28. Article 4.3 of the Charter (principle of subsidiarity). In an administrative system based on the principle of subsidiarity, public responsibilities are generally exercised by the authorities closest to the citizen. In the application of that principle, allocation of responsibility should weigh up the extent and nature of the task and the requirements of efficiency and economy. As a consequence, the subsidiarity principle as defined in the Charter does not imply a requirement systematically to decentralise functions to local self-government authorities but strongly recommends decentralisation as a means of strengthening and enhancing local self-government.
The subsidiarity principle as such is formally recognised in Art. 61.4 of the Local Government Law. According to this provision, the voluntary authority of the local-self governance bodies is exercised “while observing the principles of subsidiarity”. Such an express recognition notwithstanding, the subsidiarity principle as a guideline for decentralisation has been applied only to a very limited degree in Georgia. Since the allocation of power and administrative functions has remained quite centralised, Georgia faces the challenge of transferring substantial self-government powers to the local authorities in order to achieve compatibility with the Charter.
29. Article 4.4 of the Charter (extent and limitation of local authorities’ responsibilities). In the interest of clarity and for the sake of avoiding any tendency towards a progressive dilution of responsibility, powers given to local self-government authorities should normally be full and exclusive. This requirement is neatly and succinctly carried out in Article 61.2 of the Local Government Law: “Local self-governance bodies shall exercise exclusive authorities independently and under their full responsibility, in accordance with the order established under the legislation of Georgia.” The question remains, however, whether local self-government in Georgia can in real terms exercise its powers in a full and exclusive manner, especially with respect to its financial capabilities, executive policy discretion, and administrative autonomy.
As mentioned above, a distinction may be drawn between compulsory and voluntary tasks. Whereas compulsory tasks are imposed by law or transferred by delegation, voluntary tasks derive from a relevant decision by the council of a given local self-government body (in the case of own tasks) or from an agreement between the relevant organs of the local self-government body and the local government body (in the case of delegated tasks). This distinction does not seem to have a decisive effect on the fullness and exclusivity of the local self-government functions.
30. Article 4.5 of the Charter (adaptation of delegated powers to local conditions). According to the Charter, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions. The Local Government Law is formally very generous in regulating such adaptation. Broad discretion is based on Art. 61.6, through the stipulation that the local self-governance bodies are entitled to freedom of action, within the framework of the legislation, in regard to the matters attributed to their decision-making competence, with consideration being given to local conditions and the interests of the population.
There is also a specific provision in Art. 8.3.d guaranteeing the free exercise of delegated powers. The local self-governance body, within the framework of its competence, “should ensure the conformity of the exercise of delegated authorities to local conditions”. Even though delegated functions are exercised with adjustment to the local conditions, this freedom is severely curtailed by the requirement of methodological guidance and monitoring of that exercise by the respective State authority (Art. 6.1.7).
31. Article 4.6 of the Charter (general principle of consultation of local authorities in the planning and decision-making process for all matters which concern them directly). The Local Government Law does not refer to any general principle of consultation of local self-government authorities in the decision-making process for matters which concern them directly. There is a mention of consultation, however, in Article 8.3.a. This article provides that prior to delegation of authority to local self-governance bodies, preliminary consultations should take place. Delegation itself should be undertaken on the basis of an agreement concluded between the state authority and the local bodies.
32. Article 5 of the Charter (protection of local authorities’ boundaries). Article 2.3 of the Constitution states that “the internal territorial state arrangement of Georgia is determined by constitutional law on the basis of the authority demarcation principle effective over the whole territory of Georgia”, but makes such a determination conditional on full restoration of Georgian jurisdiction. The Constitution does not regulate decision-making on local boundaries, nor does it specifically refer to the right of consultation of local communities when changes in local boundaries are decided. The Local Government Law is also silent on the determination of local authorities’ boundaries. Thus it appears that the protection afforded by Article 5 of the Charter is partially protected by the Georgian Constitution, but there is no detailed legislation on the consultation and decision-making procedures concerning the modification of local government boundaries.
33. Article 6.1 of the Charter (administrative structures of local authorities). Article 7.1 of the Local Government Law establishes that it is within the exclusive competence of the local self-governance bodies to pass standing orders of local self-governance bodies, make amendments to them and control their implementation. They also have the right to establish and liquidate local self-governance organisations and enterprises.
The Gamgeoba (Local Government) functions as the executive body of the Council (Art. 23.1). Its head is the Gamgebeli (Mayor) who has the power to conduct the activities of the Mayor’s office (Art. 24).
As to the manner in which administrative services are organised, the Local Government Law leaves it to the self-government bodies to determine their own internal administrative structures. Article 28 of the Local Government Law regulates local services, i.e. the practical exercise of the functions of local self-governance. The institutions responsible for local services are set up by the Council, which also determines the staff structure, whereas staff members are appointed by the Mayor (Art. 29).
34. Article 6.2 of the Charter (conditions of service of local staff). The Local Government Law (Art. 30) refers to the Law on Public Service as the enactment defining the status of a public servant and the terms and conditions of his/her employment. This law has not been made available to the Rapporteurs.
There is no express legislation requiring or guaranteeing the recruitment of staff on the basis of solely merit and competence. The Local Government Law does not regulate the general conditions of local staff in any other way than by defining as public servants those persons who are employed by an entity of local self-governance. In other respects, the Rapporteurs were made aware of the lack of technically skilled and trained staff at local level.
35. Article 7.1 of the Charter (free exercise of functions) is not specifically referred to in the Constitution or the Local Government Law. The authority and activity of the Council members and elective officials are regulated in more detail in the law “On the Status of a Member of a Local Representative Body – Council”. This law was not made available to the Rapporteurs.
36. Articles 7.2 and 7.3 of the Charter (appropriate compensation and incompatibilities). The Charter aims at ensuring that purely material considerations should not prevent some categories of elected representatives from standing for office. Council members execute their duties without receiving compensation and without being obliged to leave their office or commercial activities. The total lack of any compensation is clearly incompatible with the Charter. It may also seriously limit the independence of Council members.
The chairperson of the Council, however, is entitled to receive remuneration for carrying out the functions defined by law. S/he has no right to hold any other position, except those identified in the Local Government Law, but s/he may be engaged in a business activity (Arts. 15.3, 15.7, 22.3 and 22.4). There are no specific provisions concerning functions or activities which would be deemed incompatible with the holding of local elective office.
The grounds for removal from the holding of local elective office as a Council member are laid down in Article 22.5 of the Local Government Law.
37. Article 8 of the Charter (administrative supervision of local authorities’ activities). According to the Charter, administrative supervision by State authorities should normally be confined to the question of the legality of local authority action and not its advisability. Although the supervision of delegated functions may be somewhat more extensive, even in the exercise of delegated functions the local self-government bodies should retain a fair amount of discretion in order to adapt their action to local needs. With respect to these requirements the Local Government Law is quite restrictive and complies well with the requirements of the Charter. External supervision by State authorities is generally limited only to questions of legality and emphasis is placed on local discretion. Only a court usually has the power to annul the decisions of the local self-government bodies.
38. Internal supervision is exercised by the Council, which supervises the activities of the executive bodies. To this end, the Council sets up a Revision Commission (Art. 20.1).
39. The main purpose of external supervision is to ensure the lawfulness of local self-government decisions. According to Article 61.3 of the Local Government Law, State administrative supervision of the execution of exclusive local self-governance is acceptable only with respect to its compliance with the law. As to the supervision of delegated competences, the Law is somewhat more ambiguous but seems to favour supervision limited to legality only.
As a rule, supervision of the exercise of delegated functions is also restricted only to the control of its legality. At least this a likely interpretation of the provision according to which the State authorities exercise methodological guidance and monitoring of the local bodies and services exercising delegated competences (Art. 61.7). Also, there is no express reference in the Local Government Law to administrative supervision which could be exercised with regard to expediency in respect of delegated tasks. However, an exception is the power of the State authority which transferred the competence to the self-government body “to suspend and/or annul the decisions made by local self-governments within the scope of rights transmitted to them in the governance field” (Art. 42.3). This is a notable exception because of its broadness; the power of annulment appears to be unlimited.
40. Decisions made by local self-government units may only be altered by the unit itself. Decisions of the Sakrebulo (Council), the Gamgebeli (Mayor) and the Gamgeoba (Mayor’s office) may also be annulled by a court. In addition to this kind of ordinary supervision, the superior authorities of the State and the President of Georgia are entitled to exercise a wide and, at least formally, unconditional power of invalidating the decisions taken by the district (rayon) level self-government bodies (Article 42.7). The latter kind of supervision is clearly incompatible with the standards of the Charter since it makes possible just the kind of ad hoc and potentially capricious encroachment on the exercise of self-government discretion that Article 8 of the Charter seeks to prevent.
41. Article 9 of the Charter (financial resources of local authorities). The Charter requires that local self-government authorities shall be entitled to financial resources of their own, which they may dispose of freely within the framework of their powers (see Article 9.1 of the Charter). The Local Government Law is formally in compliance with this requirement. The Law provides for the independence of local budgets (Article 34.2). Under Article 36, the State is required to provide local authorities with a minimum budget to enable them to meet their expenses. The exclusive competence of the local self-government units includes the right to draw up, pass and implement the local budget; and to impose and exempt taxes and fees in compliance with law (Art. 7.1.c).
In practice, however, the Rapporteurs were made aware of the quite limited or even completely non-existent independence of the local self-government bodies regarding their financial resources. There is no legislation regulating local taxation and thus no possibility of levying local taxes. Tax collecting authorities are an integral part of the central state administration. This results in a lack of both own revenue and independent budgetary authority. Instead of own revenue, the principal financial resources at the local level are fully discretionary government grants and subsidies. According to the information received by the Rapporteurs there are no predetermined criteria for the allocation of those grants and subsidies. Decision-making is random and takes place without any set formula, thus leaving scope for arbitrary and unpredictable decisions concerning their allocation.
A systematic interpretation of Article 9.1 of the Charter read in conjunction with Article 3 of the Charter leads necessarily to the conclusion that local self-government in the sense intended by the Charter must entail also the right of local authorities to own not only financial but also material assets. Municipal ownership may therefore be viewed as a basic element of local self-government. Article 33 of the Law defines as the property of local self-government assets and items which, according to law, are possessed, used and managed by local self-government bodies. In addition, it is within the exclusive competence of the self-government units to possess, utilise and run local self-governance property in accordance with rules provided for in law (Art. 7.1.b).
Although the local self-government bodies consequently have the right to own property, there is so far no legislation on the transfer of currently State-owned local property to the self-government bodies. Such a transfer, based on express legislation, must be considered to form a crucial precondition for the proper functioning of local self-government and its services.
42. An express guarantee is established to ensure that financial resources are commensurate with the responsibilities provided for by the law (see Article 9.2 of the Charter). This guarantee is specified in Article 61.5 of the Local Government Law, which establishes that “Delegation of authority by State organs to the local self-governance bodies shall be permitted on the basis of the effective legislation of Georgia, through allocation of appropriate material and financial resources.” Other provisions in this respect are contained in Articles 8 and 8.1.
Should it happen that the commensurate material and financial resources are not provided along with the delegated responsibilities, the local self-government body is authorised not to fulfil those responsibilities. In that case, it is for the local government bodies (representing State interests) to ensure their fulfilment. (Art. 8.3.e, 8.3.g). Moreover, according to Article 37.1 a transfer of State functions to local self-government bodies is acceptable only with the transfer of relevant material and financial resources.
There is no doubt that the legislative guarantees of commensurability of financial resources with local responsibilities are in full compliance with the Charter. The Rapporteurs were informed, however, of serious problems also regarding the achievement of commensurability and appropriateness of financial resources. The financial resources at the disposal of the local self-government bodies would also seem to be clearly insufficient when one takes into account the functions for which those bodies are responsible.
43. In compliance with Article 9.3 of the Charter, part of local self-government financial resources should derive from local taxes and charges, of which, within the limits of the law, they have the power to determine the rate. As noted at 42. supra, the self-government bodies do have the right to impose and exempt taxes and fees in compliance with law. In actual practice, however, the local taxation system does not function. The main reason appears to be the lack of a clear legislative framework for local taxation.
The financial systems on which resources available to local self-government authorities are based should be sufficiently diversified (see Article 9.4 of the Charter). Since the financial resources are almost exclusively or at least largely based on State subsidies, the financial system falls short of attaining at least a satisfactory diversity. There appears to be no system of financial equalisation procedures or equivalent measures that would be designed to correct the effects of an arbitrary or otherwise inappropriate distribution of potential sources of finance and of the financial burden (see Article 9.5 of the Charter).
The law does not establish whether and how local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them (see Article 9.6 of the Charter).
44. Article 10 of the Charter (local authorities’ right to cooperate and to associate). In compliance with Article 10.1 of the Charter, the Local Government Law expressly entitles the local self-government units both to cooperate and to form joint units. The local self-governance bodies have the right to unite into a community or to create a unified self-governance body in compliance with the law and based on a mutual agreement. They may also form joint bodies on a contractual basis and transfer to such bodies functions defined by law (Art. 8.1).
According to Article 10.2 of the Charter the right of association “shall be recognised in each State”. Neither the Constitution nor the Local Government Law expressly recognises the right of self-government units to form associations. However, the Constitution guarantees the right of association to individuals (Art. 26.1) and extends this right also to legal persons (Art. 45). Since the local self-government units are legal persons of public law pursuant to Article 1.2 of the Local Government Law, it is arguable that they also enjoy the right of association. Although the right of association for local self-government can thus be construed, an express recognition of that right in the law would still be recommended. It should also be noted that so far there is no nationwide association representing the local self-government bodies.
45. Article 11 of the Charter (right of local authorities to a judicial remedy whenever they feel that their rights have been violated). According to Article 6.i of the Local Government Law, one of the basic principles of the implementation of local self-governance is that disputes between State and local self-governance bodies shall be settled by court proceedings. This principle is implemented in Article 40 of the Law which states that “…organisations of local self-governance … have the right to file a petition in the local court against any acts of State authority organisations, high officials, enterprises, organisations and establishments which limit rights of self-government … guaranteed by the present law.” As with the right of association, one could also argue that the recourse to a judicial remedy can also be inferred from an individual’s constitutional right of appeal to the court to protect his or her rights and freedoms (Art. 42.1 of the Constitution).
In addition, Article 41 of the Law provides for compensation for damage to self-government organisations. According to this provision, State authorities, enterprises, organisations and establishments are responsible towards local self-government for any damage which they have caused by their actions and decisions. Furthermore, the right to full compensation for damage caused by the State and its officers is guaranteed in Article 42.9 of the Constitution.
V - THE CONCRETE FUNCTIONING OF LOCAL AND REGIONAL DEMOCRACY: PROBLEMS AND PROSPECTS
1. Comments collected during the Rapporteurs’ official visits to Georgia
46. On the occasion of their first official visit (Tbilisi, 12-15 March 2003), the Rapporteurs collected important information on the functioning of local self-government and democracy in Georgia as well as on the ratification process of the Charter. On the occasion of the second visit (14-18 September 2003), they were able to gather more detailed information, especially on the day-to-day environment of local self-government units and the progress in attaining compliance with the Charter.
At their meetings at the State Chancellery during the first visit, the Rapporteurs were informed of plans to ratify the Charter. In this context, they were also informed that there is an ongoing process of drafting a number of laws related to local self-government, most notably the laws on local property, local budget, taxation and financial resources. More generally, the representatives of the State Chancellery expressed the view that there is a need to strengthen the financial autonomy of the local self-government bodies in connection with their developing responsibilities.
On their second trip, the Rapporteurs were unable to register any progress whatsoever, either with respect to the ratification of the Charter or the drafting of new laws regulating the areas of focal interest for a functioning system of self-government. Instead, the representatives of the State Chancellery referred to an overall plan to be drafted concerning the initiation of such legislative work.
47. At the Ministry of Justice, the Rapporteurs collected information on the ratification process of the Charter. They were informed that a study on the compatibility of the legislation in force with the Charter had been completed. During the Delegation’s first visit It was foreseen that the ratification documents would be submitted to the Parliament before the elections in November 2003. The Ministry saw no need for a major revision of the law in force as a prerequisite for ratification. On their second visit, the Rapporteurs were informed that ratification could take place at the earliest in Spring 2004 after the parliamentary elections.
The question of Georgia's ratification of the Charter was also broached in the discussions between the Rapporteurs and the representatives of the Ministry of Foreign Affairs. In general it was agreed that early ratification of the Charter would be necessary to help speed up the reform of local institutions. The discussion also concerned the appointment of a new Georgian delegation to the Congress in compliance with the Congress statutes. The importance of such procedure was mutually stressed.
48. On the occasion of their meeting with the Chairperson of the parliamentary committee responsible for local and regional self-government, the Rapporteurs were informed of draft laws on local property and budget authority.
During their first visit, the Rapporteurs were able to hold discussions with the representatives of the parties on a range of questions relating to the legislation regulating local self-government and on problems encountered in their application.
49. The Rapporteurs had informative discussions with the Mayor of Tbilisi, the Chair of Tbilisi Council and Council members, as well as with Deputy-Mayors of Kutaisi, Batumi and Poti.
50. The Rapporteurs also met with the representatives of local associations and NGOs. The significance of the work of such associations and organisations was emphasised. It was also pointed out that their role should be stronger and more active.
51. During their meetings with the representatives of local and regional authorities (on both visits; see lists appended to the visit programmes), the Rapporteurs noted the following considerations and recommendations:
a) Ratification of the European Charter on Local Self-Government is of central importance; it should be supplemented by making the necessary revisions to the Local Government Law and other laws regulating local self-government;
b) The proper application of the Electoral Code as well as adherence to its provisions and principles should be guaranteed. This would also necessitate a change in the current composition of the Central Election Commission and the District Election Commissions and revision of the method of their appointment to ensure their non-partisan functioning;
c) Decentralisation of functions and responsibilities should be increased with a view to strengthening the role of the self-government bodies.
d) A clearly defined legislative framework on local financial resources, local taxation, and local budgets should be introduced to guarantee the independence of local financial decision-making, to ensure citizen participation in the budgetary process and to assign responsibility for supervision of the local budget to local self-government officials;
e) A law on local property is necessary to clarify which property belongs to the central government and which to local self-government; at the same time, the legal procedures for ownership, use and management of local property should be regulated;
f) An equitable, impartial, transparent and predictable formula for the transfer of government subsidies and grants should be devised and regulated by law;
g) Local and district self-government authorities should be consulted directly by the central authorities concerned on the basis of ad hoc procedures;
h) The appointment of the Mayors of Tbilisi and Poti as well as the district Gamgebeli by the President of Georgia is highly problematic from the viewpoint of the Charter; instead, direct or indirect democratic election of the Mayors/Gamgebelis should be introduced;
i) The distribution of responsibilities of local self-government in the local interest, on one hand, and those of local governance in the state interest, on the other, is unclearly defined by law. The responsibilities should be more precisely and clearly differentiated. Georgian legislation should therefore divide powers more distinctly between the State and local self-government authorities and separate the administrative systems of elected local organs and decentralised services of the state;
j) At present, local self-government has no voice at national level, and therefore there is no real local government influence on national policy except through international organizations and NGOs; a national association or body representing the local authorities would be necessary for the purposes of influencing national policy and legislation, sharing best practices, providing training and similar services to the local authorities, developing personal networks and promoting cooperation in the provision of services;
k) Considering the importance and extent of the responsibilities of local self-government bodies, they lack sufficient and qualified staff; the appointment and promotion of public servants by local authorities on the sole basis of competence should be introduced by law;
l) Principles of good governance such as transparency, accountability and legality should be strengthened in all public administration and also at the local level.
m) The supervisory activities performed by central authorities is mainly limited to controlling the legality of local decisions, but the power to invalidate rayon level decisions is unlimited; this calls for more precise legislation;
n) A programme should be developed for determining the territorial and administrative organisation of Georgia. Prior to the adoption of relevant legislation, the role and responsibilities of the rayon representative body should be increased.
VI - MAIN CONCLUSIONS AND PROPOSALS
This report provides information and analysis highlighting issues relevant to the current situation in local and regional democracy in Georgia. In general terms, the rapporteurs are of the opinion that though of late certain progress has been made in the elaboration of the legislative framework for local government, much more remains to be done to bring the legislative provisions fully in line with the principles of the European Charter of Local Self-Government. With this in mind, the rapporteurs conclude with the following recommendations:
1. With regard to the implementation of the obligations and commitments entered into by Georgia on accession to the Council of Europe:
a. Ratify as soon as possible the European Charter of Local Self-Government (signed in 2002), the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities and its additional protocols, the Framework Convention for the Protection of National Minorities (signed in 2000) and the European Convention on Regional or Minority Languages;
2. With respect to the domestic legislative framework on local self-government:
a. Revise the Organic Law on local self-government so that it will ensure full implementation of the principles of the European Charter;
b. Make the necessary amendments to the existing legislation in order to ensure that all mayors and all local and regional councils in the country are elected;
c. Adopt as soon as possible a draft law governing local government property;
d. Adopt as soon as possible a draft legislative package governing local government finance (i.e. draft law on local budgeting, draft law on revenue assignment and draft law on tax-sharing);
e Take all the necessary measures to guarantee the implementation of the enacted legislation on local government.
3. With respect to the relationship between the State and local authorities:
a. Encourage a positive attitude towards institutional co-operation between State authorities and local government bodies;
b. Introduce institutionalised forms of consultation with local government bodies and NGOs on matters that directly concern local and regional governments;
c. Develop good leadership and enhance the capabilities of local politicians and staff;
d. Undertake measures to facilitate the creation of a National Association of Local and Regional Authorities of Georgia;
4. With respect to regional government:
a. Continue active negotiations with the respective authorities of Abkhazia and South Ossetia with a view to finding a mutually acceptable and peaceful solution to the conflicts;
b. Elaborate on the concept of an asymmetrical federation;
c. Adopt a special law on the Status of the Autonomous Republic of Adjara that will consolidate the present institutional nature of its autonomy and dissipate the existing tension and misapprehensions on its part towards the central authorities and serve as a sign of good will with respect to Abkhazia and South Ossetia;
5. With respect to the appointment of a new national delegation to the Congress:
a. Undertake urgent consultations with local government bodies in order to appoint a new national delegation;
6. Education and training of local representatives and staff:
a. Encourage awareness-raising about local democracy among the population, local elected representatives and staff;
b. Facilitate the creation of a consensus about decentralisation and regionalisation;
c. Support education and awareness activities of local and regional NGOs;
d. Implement a national training strategy at local and regional levels;
7. With respect to the relationships with the Council of Europe structures:
a. Undertake active steps to strengthen co-operation with the Congress of Local and Regional Authorities of Europe and the Directorate of Co-operation for Local and Regional Democracy on a number of bills and proposals which have been recently drawn up or are being drawn up in order to ensure full compatibility of Georgian legislation with the Organisation’s principles and standards;
b. Encourage Transfrontier co-operation of local and regional authorities in the Caucasus
Programme and the list of participants of the first official visit of the Rapporteurs to Georgia
(12-15 March 2003) Tbilisi
2 Report on local elections in Georgia. Bureau of the Congress. 10 July 2002. CG/Bur (9) 17.