Recommendations for Improving Electoral Environment

Ahead Of the Local Self-Government Elections

International Society for Fair Elections and Democracy

Georgian Young Lawyers Association
Transparency International Georgia

June 2017
Table of Contents

I. Introduction................................................................................................................................................................................. 2
II. The Electoral System ............................................................................................................................................................... 2
III. Mandatory Gender Quota ...................................................................................................................................................... 4
IV. Election Campaigning............................................................................................................................................................. 6
V. Administrative Resources ...................................................................................................................................................... 8
VI. Electoral Disputes ................................................................................................................................................................. 10
VII. Vote Buying ............................................................................................................................................................................ 15
VIII. Institutional Independence of the State Audit Office ................................................................................................ 16

1
I. Introduction
Many new regulations have been introduced in the electoral legislation since 2011, after the Parliament
of Georgia adopted the new Election Code. Although a number of legal gaps have been remedied as a
result, certain problematic issues remain as evidenced by the experience of past elections. Practice has
revealed inconsistent interpretation of certain norms by different election stakeholders. There is also a
clear need for the electoral legislation to respond to challenges created by development of modern
technology. Changes need to be made in regard to electoral disputes, use of administrative (public)
resources, campaigning, vote buying, etc.
One important challenge that remains is improving the electoral system and addressing related
problems to ensure that election results are fair.
The present recommendations have been prepared by the Georgian Young Lawyers Association, the
International Society for Fair Elections and Democracy, and the Transparency International Georgia,
based on the analysis of practical and legislative irregularities on and following the Election Day over
the past years, as well as applicable international standards. The recommendations address a number of
problems in the electoral legislation with the aim of helping create a more competitive and healthier
electoral environment.

II. The Electoral System

About the problem
Local self-government elections are scheduled to be held in October 2017. Electoral system plays an
important role in free and democratic conduct of elections.
Local representative bodies Sakrebulos are formed through a mixed electoral system where some
members are elected by a majoritarian voting system and others by a proportional voting system. 1 In
the majoritarian voting system a candidate that garners more votes than others is a winning candidate,
while in the proportional voting system mandates are distributed among parties and electoral blocs that
garner no less than 4% of votes that have been cast in the elections. 2
The existing electoral system has long been criticized by NGOs and political parties due to its
significant drawbacks. One of the main problems is the fact that the electoral system fails to protect the
principle of equality of vote weight because local majoritarian electoral districts (local
constituencies) vary greatly in size. The problem is highlighted in the European Commission for
Democracy Through Law (Venice Commission) and OSCE Office for Democratic Institutions and
Human Rights (OSCE/ODIHR) Joint Opinion on the Draft Election Code of Georgia, which
recommends revising the electoral system ahead of the local self-government elections to ensure
equality of the vote.3
Equality of vote weight was also violated during the parliamentary elections, and was declared as
unconstitutional by the Constitutional Court. As a result, certain amendments were made to the
Election Code in 2015 to equalize majoritarian constituency sizes for the parliamentary elections.

1
See Article 149 of the Organic Law of Georgia the Election Code of Georgia.
2
See Article 148 of the Organic Law of Georgia the Election Code of Georgia.
3
European Commission for Democracy Through Law (Venice Commission)and OSCE Office for Democratic Institutions
and Human Rights(OSCE/ODIHR) Joint Opinion on the Draft Election Code of Georgia, 19 December, 2011, pp.6-8
2
Equality of vote weight is important both for parliamentary and self-government elections, which
means that equality of voting weight should be ensured and local majoritarian constituencies should be
equalized for local self-government elections too.
In addition to the said problem, the existing electoral system for local self-government elections fails to
ensure the proportionality principle in particular, votes are not proportionally translated into seats.
In a mixed electoral system often parties with fewer supporters receive mandates that are less than
votes that they were able to garner in the elections, or sometimes percentage of representation of more
powerful political parties in Sakrebulos is higher than percentage of support that they received in the
elections. Such disproportionality is caused by the fact that more powerful parties receive additional
mandates at the expense of the majoritarian system.
An example of this is the disproportionality between votes received by parties and mandates that they
were given on the basis of results of the 2014 local self-government elections:
In Marneuli, the United National Movement (UNM) garnered 28.87% of votes but it received only
18% of seats in Sakrebulo. In Telavi it received support from 24.54% of voters but only 16% of
mandates.
As noted earlier, parties that enjoy higher support of voters actually benefit from such disproportion. In
Kareli the coalition Georgian Dream received 57% of votes but 72% of mandates. In Tbilisi the
coalition Georgian Dream received 46% of votes but 74% of total seats in Sakrebulo. This is true for
nearly all Sakrebulos.4
NGOs demanded reform of the electoral system for local self-government elections as early as in 2014,
when we submitted recommendations to that end5, but despite numerous calls from NGOs and parties
the electoral system has not been reformed in any substantial manner, not including two positive new
regulations that were introduced. These new regulations established direct Mayoral/Gamgebeli
elections and a 50% threshold, and reduced the threshold for Sakrebulo elections down to 4%.6
It was expected that the electoral system would be substantially reformed ahead of the 2017 local self-
government elections and remaining important irregularities would be eliminated, as discussed and
highlighted a number of times, but unfortunately working on the reform didnt commence in time for
the elections.
Recommendation:

In view of the short period of time remaining before the elections, we recommend maintaining
the existing mixed electoral system and equalizing majoritarian constituency sizes instead, in
order to ensure equality of vote weight as one of the most important criteria and internationally
recognized principle for conduct of fair elections;
It is important to make changes in the electoral system to ensure distribution of mandates in
proportion to votes garnered in elections.

4
For detailed information, please see Why Should the Election System be Changed in Georgia? available at:
http://www.isfed.ge/main/783/geo/
5
Joint recommendations of GYLA, ISFED and Transparency International Georgia about the election system, available
at: http://www.isfed.ge/main/1009/geo/
6
Analysis of new regulations introduced ahead of the 2014 local self-government elections are available at:
http://www.electionsportal.ge/uploads/reforms/13/Analysis_of_the_Amendments_Final_GEO.pdf
3
III. Mandatory Gender Quota

About the problem

Georgia currently ranks 120th among 193 countries in the world classification of women in national
parliaments. In the Global Gender Gap Report it ranks 90th among 144 countries in terms of womens
political participation in political, economic and social life; however, as to womens political
participation and the number of women in parliament in particular, Georgia ranks 114th. 7 In these
rankings Georgia is far behind not only of European and Western countries but also countries that are
much more conservative than Georgia. Therefore, it is safe to conclude that womens political
participation in Georgia is extremely low and needs a particular attention.
The Parliamentary Elections in October 2016 was a step forward for womens political participation
considering that previous parliament had a fewer number of women. In 2012-2016, there were only 18
women MPs in Georgia, accounting for as low as 12% of all 150 MPs. Following the elections in
2016, 24 women were able to gain seats, accounting for 16% of the total number of MPs. In the
process of formation of the government and after some candidates turned down their parliamentary
seats, the number of women MPs remained 23.
Women are also underrepresented in local self-governments. Following the 2014 local self-government
elections, proportion of seats held by women in representative bodies Sakrebulos is 11,6%. Women
are even more underrepresented in local executive bodies: in 59 municipalities, only one elected
Gamgebeli is a woman and there are no women among Mayors of 12 self-governing cities.
Here we must note that in its recommendation adopted in 2003 on balanced participation of women
and men in political and public decision making, the Committee of Ministers8 recommends having a
sex ratio of at least 40% in political or public life.
Recommendation
Parties must be required to submit gender balanced lists for elections where every other candidate is of
a different sex. If they fail to comply with this requirement, the CEC should return the list back to the
party for remedying the irregularity, and in an event of the partys failure to do so it must be denied
registration. In addition, if Sakrebulo member abandons his/her mandate, next successful candidate on
the party list who is of the same sex must replace him/her.
Recommended formulations:
1) Para.5 of Article 143 of the Election Code should be formulated the following way:
5.The procedure for drawing up a party list shall be determined by parties and electoral blocs in a way
that ensures that every other candidate on the list is a representative of an opposite sex. If a list
provided by a party fails to ensure 50% gender balance by allocating every other place on the party list
to the opposite sex, the list should be returned back to the party for remedying the irregularity.
Otherwise, the party should be denied registration.
b) Paragraphs 1 and 2 of Article 154 should be formulated the following way:

7
http://reports.weforum.org/global-gender-gap-report-2016/economies/#economy=GEO
8
Recommendation Rec (2003)3 of the Committee of Ministers to member states on balanced participation of women and
men in political and public decision making, https://wcd.coe.int/ViewDoc.jsp?id=2229
4
1.If the term of office of a Sakrebulo member elected through the proportional system terminates
early, his/her successor, the next candidate on the same party list who is of the same sex, shall take
his/her place in the Sakrebulo within two weeks, provided that the candidate accepts membership in
the Sakrebulo within ten days after being notified by the CEC. If no candidate of the same sex is left in
the submitted party list, the seat shall be eliminated.
2. If the Sakrebulo member who last held the vacant seat was elected through the party list of an
electoral bloc and the party list specified that the member was a member of one of the parties in the
electoral bloc, the next candidate on the same party list for Sakrebulo membership, who is of the same
sex, shall replace him/her within two weeks, provided that the candidate accepts membership in the
Sakrebulo within ten days after the vacancy occurs. Otherwise, the vacancy shall be filled by the next
candidate of the same sex on the same party list, etc. If the party list did not specify that the Sakrebulo
member who last held the vacant seat is a member of one of the parties in the electoral bloc, his/her
successor shall be determined under the first paragraph of this article.
c) Para.5 of Article 158 should be formulated the following way:
5. The procedure for drawing up of the party list shall be defined by the parties and electoral blocs in
a way that ensures that every other candidate on the list is a representative of an opposite sex. If a list
provided by a party fails to ensure 50% gender balance by allocating every other place on the party list
to the opposite sex, the list should be returned back to the party for remedying the irregularity.
Otherwise, the party should be denied registration. While drafting the party list, it should be taken into
account that the seats acquired by a party/electoral bloc according to the election results, shall be
distributed sequentially, from the top of the list.
d) Paragraphs 1 and 2 of Article 164 should be formulated the following way:
1.If the term of office of a member of Tbilisi Sakrebulo elected through the proportional system
terminates early, his/her successor, the next candidate on the same party list who is of the same sex,
shall take his/her place in the Sakrebulo within two weeks, provided that the candidate accepts
membership in the Sakrebulo within ten days after being notified by the CEC. If no candidate of the
same sex is left in the submitted party list, the seat shall be eliminated.
2. If the member of Tbilisi Sakrebulo who last held the vacant seat was elected through the party list of
an electoral bloc and the party list specified that the member was a member of one of the parties in the
electoral bloc, the next candidate on the same party list for Sakrebulo membership, who is of the same
sex, shall replace him/her within two weeks, provided that the candidate accepts membership in the
Sakrebulo within ten days after the vacancy occurs. Otherwise, the vacancy shall be filled by the next
candidate of the same sex on the same party list, etc. If the party list did not specify that the Sakrebulo
member who last held the vacant seat is a member of one of the parties in the electoral bloc, his/her
successor shall be determined under the first paragraph of this article.

5
IV. Election Campaigning

a) Definition of Terms
About the problem
To create a competitive electoral environment it is important that the Election Code addresses
challenges created as a result of development of modern technology. Recently campaigning using
electronic means has become more and more frequent. There is no uniform approach to address the
problem and existing norms are used in an inconsistent manner. Campaigning by civil servants during
working hours using electronic/social media is especially alarming.
Recommendation
It is important to define clearly and unambiguously that the Election Code regulates campaigning using
both traditional and electronic media.
Recommended formulations:
Paragraph z8 of Article 2 of the Election Code should be formulated the following way:
z8) campaigning - appeal to voters in favor of or against an electoral subject/candidate, as well as any
public action facilitating or impeding its election and/or containing signs of election campaign,
including the participation in organization/conduct of pre-electoral events, preservation or
dissemination of election materials, work on the list of supporters, presence in the representations of
political parties; any such action carried out using electronic/social media also amounts to
campaigning.

b) The group of individuals prohibited from conducting and participating in an election

campaign
About the problem
To create a healthy and competitive electoral environment, the electoral legislation provides a set of
rules about participation in campaigning. Para.4 of Article 45 of the Election Code defines the circle of
individuals that are prohibited from participating in campaigning. The list includes charity
organizations.
During the campaign period ahead of the 2016 parliamentary elections, a charity organization non-
profit (non-commercial) legal entity Georgian Dream Healthy Future engaged in campaigning for
the benefit of the Georgian Dream Democratic Georgia 9 , which amounts to a violation of the
electoral legislation.
ISFED filed with the Central Electoral Commission (CEC) requesting a probe into the alleged
violation of campaigning rules. On July 26, 2016, the Chair of the Central Election Commission
rejected ISFEDs complaint and terminated administrative proceedings. Under the resolution of the
CEC chair, charity organization stated in Article 45(4g) of the Election Code of Georgia is an
organization that has been given a status of a charity organization under Article 32 of the Georgian Tax
9
See report of ISFED, available at: http://www.isfed.ge/main/1100/geo/, and ISFED statement, available at:
http://www.isfed.ge/main/1076/geo/http://www.isfed.ge/main/1103/geo/
6
Code. Because non-profit organization Georgian Dream Healthy Future is not registered in the
register of charity organizations available on the official website of the Ministry of Finance of Georgia,
it has not been given the status of a charity organization. Therefore, it is not subject to the prohibition
foreseen by the Election Code of Georgia.
Whether an organization is registered as a charity organization with a tax agency is not decisive for
electoral purposes. Rather, the registration is used for tax purposes, for receiving tax exemptions.
Therefore, registration with a tax agency is a charity organizations right not an obligation. The above
narrow interpretation of the law may encourage similar organizations not to register with the tax
agency if their goal is to participate in illegal campaigning bypass requirements of the Election Code of
Georgia in favor of a political party, not to obtain tax breaks. This amounts to a dangerous form of
political corruption.
Recommendations
We recommend changing formulation of the norm in order to avoid difference of opinion and ensure
effective fulfillment of the goal that the prohibition established by the legislator serves to accomplish.
Otherwise, the norm will be pointless and absolutely unusable.
In light of the spirit of para.4g of Article 45 of the Election Code, any organization that
predominantly pursues charity work should be considered a charity organization, instead of only those
that are registered with the tax agency.
Recommended formulation

Para.4g of Article 45 of the Election Code should be formulated the following way:
g) charity and religious organizations, as well as legal entities that pursue charity work;

c) Participation of aliens in election campaign

About the problem
During the pre-election period of the 2016 parliamentary elections, a citizen of Ukraine and then-
Governor of Ukraines Odessa Oblast, former President of Georgia participated in campaign meetings
held in Gardabani and Batumi constituencies using electronic means of communication. 10 The
Georgian Young Lawyers Association filed a complaint with Gardabani no.21 and Batumi no.79
district electoral commissions, requesting a probe into the allegedly illegal participation in
campaigning and further legal actions. The DEC commissions explained that they cannot impose an
administrative liability on a foreign national because broadcasting on the Georgian territory using
Internet or a recording does not amount to an administrative offence envisaged by the Georgian
legislation since the individual in question was not on the Georgian territory. 11 GYLA filed complaints
with the CEC about these decisions, on August 8 and 9, 2016.12
The CEC examined the complaints and found that the case concerned an alien who was not on the
Georgian territory and therefore, his action prohibited by the Election Code could not have served as

10
https://gyla.ge/ge/post/gubernatoris-moadgile-samushao-saatebshi-socialur-qselshi-agitacias-etseoda
11
Decision of the Chair of Batumi 79 DEC 02-44, dated 6 August 2016; Decision of the Chair of Gardabani 21
DEC, dated 8 August 2016.
12
The CEC reference numbers for the complaints are 2719 and 2751.
7
the basis for imposing the administrative penalty envisaged by the Georgian legislation, including for
drawing up a protocol (report) of an offence. The CEC issued a resolution no.326/2016, dated 10
August 2016,13 rejecting GYLAs complaints and upholding decisions of the DEC chairs.
Recommendation
Prohibition of participation of aliens in campaigning serves important state interests, which is why
para.4f of Article 45 of the Election Code of Georgia prohibits aliens and foreign organizations from
conducting and participating in campaigning. To prevent and punish any such violations we
recommend recognizing witting participation of unauthorized individuals in campaigning as a violation
of pre-election campaign (canvassing) rules by the campaign event organizer.
Recommended formulation:
The following paragraph 71 should be inserted in Article 45 of the Election Code:
71) Witting participation of unauthorized individuals in campaigning shall be considered violation of
election campaign (canvassing) rules established by the present Law by the campaign event
organizers.

V. Administrative Resources
Despite certain new regulations introduced in the electoral legislation in 2013 for placing limitations
on use of administrative resources, 14 based on the assessment of previous election cycles it is safe to
say that certain problems persist in this area, threatening creation of level playing field for elections.

a) Participation of officials in electoral processes

About the problem
As evidenced by previous elections, often officials are actively involved in election campaigning in
favor of the ruling party. Although active participation of political office holders in electoral processes
does not amount to violation of the law, it undermines creation of level playing field for elections.
Recommendation
By virtue of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of
the CSCE, there should be a clear separation between the State and political parties.
The legislation should draw a clear line between party-related activities and public service. It should
also protect the free expression of the opinion of civil servants.
To create a competitive electoral environment, the circle of political office holders who have the right
to participate in electoral processes freely, without any restrictions, must be narrowed down. To this
end, new regulations should be introduced in the Election Code imposing restrictions on participation
of deputy ministers and state representatives/governors in campaigning, including during working
hours.

13
http://cesko.ge/res/docs/CG326.pdf
14
http://www.electionsportal.ge/uploads/reforms/12/analysis_interfaction_group_recommendations_GEO.pdf
8
b) Introducing the notion of passive campaigning and limiting participation of a certain group of
individuals in campaign events
About the problem
The definition of campaigning and participation in campaigning provided by the Election Code is
inadequate, which created certain problems for electoral subjects (contestants) and other stakeholders
during the pre-election period. 15 For instance, it was unclear whether individuals whose right to
participate in or conduct an election campaign was limited under the Election Code were allowed to
attend campaign events,16 including it was unclear whether employees of the Interior Ministry had the
right to attend campaign events and under what circumstances.
Here we must note that during the pre-election period of the 2013 elections, the Inter-Agency Task
Force for Free and Fair Elections took the Interior Ministrys instructions into consideration and issued
a recommendation that established the notion and the terms of participation in a pre-election
campaigning.17
According to the instruction of the Interior Ministry, police officers are allowed to attend a campaign
event when they are not in the line of duty and in a police uniform.18 This is how both district and
appellate courts interpreted the issue when they established that police officers in civilian clothes were
not prohibited from attending a campaign event because they were not in the line of duty.
Recommendation
Elaborate the definition of campaigning and specify that campaigning entails both active and passive
actions - i.e. attending campaign events; specify when a certain group of individuals (representatives of
the law enforcement, religious organizations, etc.) are prohibited from attending campaign events.
Having legal regulations in place will eliminate any ambiguities that exist about the issue and all
stakeholders will have a clear understanding of rules that apply to a certain group of people attending
campaign events.

15
http://www.osce.org/odihr/elections/110301?download=true
16
Article 45 of the Election Code
17
http://www.justice.gov.ge/Multimedia%2FFiles%2Frekomendaciebi%2Fpdf%2FRecommendations%2030%2009%20201
3.pdf
18
Under Article 25 of the Constitution and Article 1.2 of the Law on Assemblies and Manifestations, members of Georgian
armed forces and employees of the Inteiror Ministry (including police officers) have no right to assembly. In addition,
under Article 45.4 of the Election Code, they have no right to conduct and participate in election campaign. Under Article
11 of the European Convention on Human Rights and Fundamental Freedoms, freedom of and association can be subjected
to legal limitations if it concerns armed forces, police of members of the state administration. We must also highlight that
Guidelines on Freedom of Peaceful Assembly: Second Edition prepared by the OSCE and the CoE Venice Commission
(available at www.osce.org/odihr/73405) states that legislation should not restrict the freedom of assembly of law-
enforcement personnel (including the police and the military) or state officials unless the reasons for restriction are directly
connected with their service duties, and then only to the extent absolutely necessary in light of considerations of pro-
fessional duty.

9
VI. Electoral Disputes

a) Group of claimants
About the problem
Based on the past experience, leaving complaints without consideration because different observers of
an organization had filed a complaint with district and precinct electoral commissions over the same
incident is a problem. There were several instances when citing the said grounds DECs found ISFED
observer that filed a complaint with the DEC to be an unauthorized individual and refused to consider
the complaint. They also explained that the complaint should have been filed by an observer who was
stationed at the PEC concerned, detected the violation and filed a complaint with the relevant PEC.
Such statement is completely unacceptable and undermines the monitoring mission.
Any accredited observer that implements a monitoring mission acts within the mandate and on behalf
of the organization that s/he represents, based on instructions that it has received from the organization.
Lodging complaints is an integral part of the monitoring activities and cannot be viewed separately. A
complaint lodged by an observer is a complaint lodged by the organization and name of a particular
observer that lodged the complaint is of no substantial importance. Because of the specific nature of
the Election Day, an observer cannot leave the precinct to lodge a complaint with the DEC. This will
hinder the monitoring process and will make it impossible for the organization to conduct monitoring
and release comprehensive findings about the process.
Although the problem was not large-scale and such incidents were found only in several DECs, it is
important to regulate the issue by the legislation to make sure that DECs dont leave complaints
without consideration without a valid reason. To address the issue, relevant clarification was included
in the guidebook for electoral disputes adopted by the CEC in 2016 but the practice has proven that the
measure was inadequate because it couldnt effectively eliminate such incidents.
An observer represents an organization with the status of an observer at a polling station and acts
according to interests of the organization before the electoral administration or court. In addition,
Article 78 of the Election Code that defines group of claimants for different types of disputes
establishes a differentiated approach for an organization with the status of an observer and its
representative (observer). According to the said article, an organization with observer status is a
claimant in a certain type of disputes, while in other types of disputes before district or central electoral
commission the organizations observer is the claimant. Here we must also note that in similar types of
disputes e.g. appealing PEC summary protocol due to a decree of higher election commission, an
organization with observer status has the right to file a complaint in court, while complaints about
recognizing or not recognizing polling results in a polling station due to a decree of a DEC can be filed
only by an observer of an organization with observer status, in appropriate DEC. This creates certain
problems for local monitoring organization to effectively manage their own resources, especially
considering the fact that they are quite busy during a pre-election period and even more so on the
Election Day.

10
It is also important to revise certain paragraphs in Article 78 stipulating that a monitoring organization
has no right to be a claimant and file a complaint in court over violation of an electoral legislation. 19
Recommendation
The Election Code must clearly stipulate that any observer of an organization with observer status has
the right to file a complaint concerning violations that other observers of the organization detected and
filed a complaint about.
There should not be such clear differentiation and an organization with observer status should be able
to be named as a claimant in all disputes where under the applicable legislation only its representative
has the right to file a complaint with court.
It is also important to further elaborate the group of claimants and give local monitoring organizations
the right to file a complaint in all cases that are envisaged by Article 78 of the Election Code (e.g.
registration of a representative of an electoral subject).

Recommended formulation
a) Paragraphs 10 and 11 of Article 78 should be formulated the following way:
10. The following entities shall have the right to file a complaint with the court concerning the
electoral registration of a party, electoral bloc, initiative group of voters, and their representatives:
a) a party, an electoral bloc, a representative of an initiative group of voters to the CEC (during
elections for the President of Georgia), an organization with observer status, if the CEC chairperson
did not register the party, the electoral bloc, the initiative group of voters or their representatives, or
cancelled their registration;
b) a party, an electoral bloc, a representative of an initiative group of voters to the respective
DEC (during elections for a local self-government representative body Sakrebulo and the Parliament of
Georgia through the majoritarian electoral system), an organization with observer status, provided the
DEC chairperson failed to register the initiative group of voters, or their representatives, or provided
the CEC cancelled their registration;
c) a party, an electoral bloc, a representative of an initiative group of voters to the CEC (during
elections for the President of Georgia), an organization with observer status, if they believe that the
party, the electoral bloc, or the initiative group of voters have been registered in violation of the
requirements of the electoral legislation of Georgia;
d) a party, an electoral bloc, a representative of an initiative group of voters to the respective
DEC (during elections for the Parliament of Georgia and for a Sakrebulo held under the majoritarian
electoral system), an organization with observer status, if they believe that the initiative group of voters
has been registered in violation of the requirements of the electoral legislation of Georgia.
11. The following entities may file a complaint with the court concerning a decree of an
election commission chairperson on the registration of a candidate for President of Georgia, of a party
list submitted by a party/an electoral bloc running independently in the elections, of individual
candidates entered into the list, of a candidate nominated in a single-seat electoral district, and of a
Mayoral/Gamgebeli candidate:

19
Citing para.10 of Article 78 of the Election Code, the court rejected the complaint of GYLAs observer, explaining that
it is not within an observers powers to examine and react on issues related to registration of a representative of an electoral
bloc (decision of Zugdidi District Coourt dated 19.06.2014, case #020310014526651(3/41-14)).
11
 a) a party/an electoral bloc running independently in elections, a majoritarian candidate, a
representative of an initiative group of voters to the CEC (during elections for the President of
Georgia), a representative of an initiative group of voters to the respective DEC (during elections for
the Parliament of Georgia and for a Sakrebulo held under the majoritarian electoral system), an
organization with observer status, if the CEC Chairperson did not register the candidate for President
of Georgia, the candidate for Mayor of Tbilisi, the party list presented by the party/the electoral bloc,
individual candidates entered into the list, and if the DEC chairperson did not register the candidates
nominated by a party/an electoral bloc, or by an initiative group of voters during elections for the
Parliament of Georgia, or did not register a party list presented by a party/an electoral bloc, or
individual candidates entered into the list, or the candidates nominated by a party/an electoral bloc/an
initiative group of voters during Sakrebulo elections, or the Mayoral/Gamgebeli candidates nominated
by a party/an electoral bloc during elections for Mayor/Gamgebeli of a self-governing city (other than
Tbilisi)/community, and/or if the chairpersons of the above commissions cancelled their registration;
b) a party registered for elections and independently running in the elections, a registered
electoral bloc, a representative of a registered initiative group of voters to the CEC (during elections
for the President of Georgia), an organization with observer status, if they believe that the CEC
Chairperson registered a party/electoral bloc list, individual candidates entered into a party/electoral
bloc list, a candidate for President of Georgia, or a candidate for Mayor of Tbilisi in violation of the
requirements of the electoral legislation of Georgia, and also if individual candidates entered into the
party/electoral bloc list fail to meet the requirements referred to in the Constitution of Georgia and
other legislative acts of Georgia or those requirements have been fulfilled in violation of the procedure
defined by the legislation of Georgia;
c) a party registered for elections and independently running in the elections, a registered
electoral bloc, a representative of an initiative group of voters to the respective DEC (during elections
for the Parliament of Georgia and for a Sakrebulo held under the majoritarian electoral system), an
organization with observer status, if they believe that the DEC chairperson registered a party/electoral
bloc list, individual candidates nominated under the majoritarian system or entered into the
party/electoral bloc list, or Mayoral/Gamgebeli candidates of a self- governing city (other than
Tbilisi)/community in violation of the requirements defined in the electoral legislation of Georgia, and
also if individual candidates nominated through the majoritarian system or entered into the
party/electoral bloc list fail to meet the requirements of the Constitution of Georgia and other
legislative acts of Georgia or those requirements have been met in violation of the procedure defined
by the legislation of Georgia;

b) Para.21 of Article 78 should be formulated the following way:

21. The following persons may file a complaint with the court concerning a DEC decree on
declaring voting results valid or invalid in an electoral precinct: a representative of a party, of an
electoral bloc, of an initiative group of voters, a majoritarian candidate, a Mayoral/Gamgebeli
candidate of a self-governing city/community, an organization with observer status in the DEC
concerned.

c) The following para.25 should be inserted in Article 78:

25. If an applicant/plaintiff in a precinct commission is an observer of an organization with
observer status, other registered observers of the organization shall have the right to file an
application/complaint with the DEC concerning the same violation, while if an applicant/plaintiff is a

12
representative of an electoral subject in a precinct electoral commission, the electoral subjects
representative in appropriate DEC shall have the right to file an application/complaint with the DEC
concerning the same violation.

b) Forms of Complaint and Lawsuit

About the problem
In electoral disputes complaints and appeals are lodged in courts using forms approved by the High
Council of Justice (HCoJ). These are the forms that are usually used in civil and administrative
proceedings where a complaint can be filed within a period of one month, and are not tailored to
specific needs of electoral disputes where terms for appeal are minimal mostly 2 days. Filling out
these forms or getting appropriate legal consultation for filling them out is a challenge for individual
citizens and other persons with the right to appeal.
Recommendation
The process of appealing should be simple, which can be achieved by introducing special forms.
Because there is a very tight timeframe for appealing in electoral disputes, the HCoJ should be ordered
to prepare simple forms for any electoral dispute (appealing a decision, an action or omission of the
electoral administration), in view of the fact that these forms must be filled in a very short period of
time, unlike in other cases.

c) Summarization of polling results at DECs

About the problem
Under Article 124 of the Election Code of Georgia, a DEC shall, based on protocols of PECs and
decisions of district/city courts, summarize polling results. Based on the formulation of the Article, a
district commission is not obligated to consider the appellate courts decision in the process of
summarization of the results. The law does not envisage what happens if after summarization of
polling results at a district commission the appellate court, say, invalidated precinct commission results
or made any other decision that affects election results.
Recommendation
DECs should take into account final decisions of all levels of court when summarizing polling results.
Recommended formulation
Para.1 of Article 124 should be formulated the following way:
1. A DEC shall, based on protocols of PECs and decisions of district/city and appellate courts,
summarize polling results at its session and shall enter them into summary protocols of final results of
elections held through the majoritarian and proportional systems.

d) Delivering a courts decision

About the problem
13
The Election Code prescribes a timeframe for delivering a district/city courts decision to parties but it
does not envisage any such timeframe for delivering an appellate courts decision to parties.
Recommendation
The Election Code should prescribe a timeframe for delivering an appellate courts decision to parties,
as envisaged in the case of a district/city court.
Recommended formulation:
Para.6 of Article 77 should be formulated the following way:
6. If a lawsuit/complaint is lodged with the court, the court shall immediately inform a DEC/CEC
about receipt of the lawsuit/complaint and about the decision once it is delivered. The decision of the
district/city and appellate courts shall be given to parties before 12:00 on the following day.

e) Lodging an appeal with the court over a refusal of the electoral administration to draw up a
protocol of administrative offences

About the problem

During the pre-election period of the 2016 parliamentary elections, the Georgian Young Lawyers
Association lodged a complaint in Tbilisi City Court over the CECs refusal to draw up a protocol of
administrative offences but the board of administrative cases of the court refused to admit the appeal. 20
The court explained that when an appeal is lodged over a refusal to draw up a protocol of
administrative offences, the court is not authorized to examine lawfulness of the decision that has been
appealed, because the court is authorized to handle the issue only if the CEC has granted the complaint
and has drawn up corresponding protocol of administrative offences. The court found that the appeal
did not fall under the category of cases handled by the court and refused to admit it.
The Georgian Young Lawyers Association filed a private complaint with the appellate court
concerning Tbilisi City Courts decision, demanding invalidation of the refusal to admit the complaint
and returning the case back to Tbilisi City Court for judging the complaint on its merits. The Appellate
Court fully upheld the arguments of Tbilisi City Court about refusal to admit the complaint and
rejected the private complaint. 21
Recommendation
The Election Code should directly define the possibility to appeal refusal of the CEC chair, and of
authorized representatives (officials) of the CEC and relevant DEC to draw up a protocol of
administrative offences in the court.

20
Decision N3/6002-16 of Tbilisi City Courts Board of Administrative Cases, dated 14 August 2016.
21
Decision N3b/1508-16 of Tbilisi Appellate Courts Board of Administrative Cases, dated 18 August 2016.
14
VII. Vote Buying

About the problem

Regulation of vote buying is rather ambiguous and unforeseeable; definitions and applicable sanctions
are provided in three different legislative acts, meaning that the existing regulations need to be
harmonized with one another. It is important that these definitions are harmonized and ambiguities that
allow for a broad an unsubstantiated interpretation of the notion of vote buying are removed. For
instance, the criminal provision that envisages liability for making ostentatious, malicious or any
other agreement for the purpose of averting legal prohibitions is problematic. With this provision the
norm goes beyond its own purpose and defines liability for averting any prohibition established by the
law. More importantly, the criminal provision prescribes a fine or imprisonment for up to three years
as punishment. The legislator should decriminalize vote buying in view of not only international
experience but also the local context in the country, including social factors like the problem of
unemployment, poverty rate, low level of voter awareness, etc.
In addition, under Article 47 of the Election Code, registration of the electoral subject that engaged in
vote buying will be revoked by a court decision. Revoking registration for a first-time offence is
inexpedient. Because the sanction is rather strict, it is never used in practice, meaning that there is no
point in having the said norm.

Recommendation
Regulation of vote buying should be based on the following principles:

notions of vote buying stipulated by various different legislative acts must be harmonized;

the Criminal Code should criminalize vote buying with the value of more than GEL 300 and for
election purposes;

registration of an electoral subject should be revoked only if the vote buying has a substantial
effect on election outcomes;

stipulation of the criminal norm about liability for making ostentatious, malicious or any other
agreement for the purpose of averting legal prohibitions should be removed;

criminal liability of an object of vote buying should be ruled out;

an administrative liability should be imposed on an object of vote buying for receiving any
illegal benefit if s/he engaged in such action wittingly; s/he should be relieved of liability after
confessing the fact;

liability for vote buying envisaged by the law on Political Unions of Citizens should also apply
to independent candidates.

15
VIII. Institutional Independence of the State Audit Office

About the Problem

Under the applicable law, monitoring of financing of political parties and election subjects is carried
out by the State Audit Office (SAO). While we welcome that there is an agency that supervises party
financing we also realize the importance of independence and impartiality of the SAO because of its
purpose and functions, for avoiding any doubts about the SAO mandate and performance.

In its Third Round Evaluation Report on Georgia, the Group of States against Corruption (GRECO)
shares the above opinion and urges the state to create guarantees for independence. In particular,
GRECO recommends having an independent and impartial agency that oversees political party and
campaign financing, in order to ensure independence of the SAO with regard to monitoring of political
financing.

Recommendation

In order to ensure high degree of independence of the State Audit Office and to shield it from political
influence, certain prohibitions must be placed on political/party activities of the Auditor General and
his/her deputies, not only during their term of office but also during certain period before they assume
their office at the SAO and after their official authority is terminated; in particular, three years before
appointment to the office and three years after termination of their official authority, these individuals
should be prohibited from being named as a candidate for membership of any elected office, from
being a party member or political office holders. Such prohibition would rule out any ties of the SAO
officials with a political party and any political influence on their activities. This will ensure that the
SAOs work is impartial.

16