A New CRRC-Georgia/PROLoG Report: Legal Professionals’ Views on the Legal System

CRRC-Georgia’s report The Judicial System in Georgia: Views of Legal Professionals was published on 11 July, 2016. The report details the results of a baseline study for the USAID-funded project Promoting Rule of Law in Georgia (PROLoG) implemented by East-West Management Institute (EWMI). The study evaluated how the following aspects of the justice system are seen by judges, prosecutors and private, NGO and Legal Aid Service (LAS) lawyers: 

1. Whether there is an effective balance between parties in law and practice;
2. Whether citizens, including minorities and vulnerable groups can benefit from the protection the justice system offers; 
3. The quality of legal education in Georgia;
4. How different judicial institutions perform.

During the survey, 310 lawyers (of which 204 private lawyers, 49 NGO lawyers and 57 LAS lawyers), 108 judges and 102 prosecutors were interviewed. In addition, semi-structured interviews were conducted with seven judges and seven prosecutors and four focus-groups with private, NGO and LAS lawyers. 

Overall, prosecutors and judges tended to report the most positive views. The assessments of lawyers, and in particular NGO lawyers, were generally less positive compared to the assessments of prosecutors and judges. 

CRRC-Georgia’s researcher Mariam Kobaladze presents the main findings of the PROLoG report at the Frontline Georgia Club in Tbilisi on 11 July 2016. Photo by Mariam Sikharulidze. 

The main findings of the report are presented below:

Balance between Parties in Law and in Practice

• With regard to civil and administrative law, the majority of all legal professionals assess that the balance between parties is similar both in law and in practice, but more lawyers say that there is equality of arms neither in law nor in practice; 
• With regard to criminal law, the majority of judges and prosecutors assess the balance between the parties as similar both in law and in practice, but fewer than half of lawyers agree with this assessment.

Ability of Citizens to Benefit from the Justice System

• NGO lawyers reported more frequently that the LGBT community and religious minorities are the groups the courts and Prosecutor’s Office do not treat fairly or equally, compared to other social groups. However, the majority of other legal professionals thought all groups were treated mainly or fully fairly/equally;
• Compared to other legal professionals, NGO lawyers less frequently think that representatives of all social groups are treated fairly or equally by the courts and the Prosecutor’s Office;
• Many legal professionals consider the police less effective than other legal institutions. Even some prosecutors, who, overall, reported very positive assessments of justice institutions, called for police reform. 

Quality of Legal Education  

• Prosecutors were, again, the most positive about the quality of legal education in Georgia, with slightly more than half giving a positive assessment. The majority of judges and lawyers did not provide positive evaluations of legal education, either theoretical or practical.

Performance of Justice System Institutions

• The majority of legal professionals considered the performance of most justice system institutions as largely transparent, but lawyers (private, NGO and LAS) assessed the transparency and performance of these institutions harsher than judges and prosecutors; 
• Almost all legal professionals agree that the lack of speedy trials is an impediment to the judicial process that is mainly caused by a shortage of judges and lack of alternative dispute resolution outside of courts;
• The high caseload in the courts was seen as a major issue that has negative effects on the speed, quality and, in the case of the Supreme Court, uniformity of legal decisions. 

The full report of the baseline study is available here. 

State capacity in the South Caucasus: How do you measure how much the state can do?

State capacity is a concept which has gained wide interest from political scientists in recent years as an important concept for economic development and regime classification, yet it still lacks agreed upon definitions and indicators. Its definitions vary, with different scholars highlighting different aspects of the concept based on their angle on the subject, but some definitions of state capacity are broader than others. A good example of a broad definition of state capacity is “the state’s ability to implement public policy” (Rogers and Weller, 2014).

The lack of agreement on indicators and definitions is due to the inherent multidimensionality of the concept. This multidimensionality is well exemplified by Fjelde and De Soya’s 2009 article which identifies state capacity as a state’s ability to coerce, co-opt, and cooperate with society. While the authors provide indicators for these capacities, their schema seems more to describe a state’s relationship and interactions with citizens rather than state capacity in and of itself.

The fact that different scholars have theorized different capacities including fiscal capacity, bureaucratic-administrative capacity, and coercive capacity as component parts of state capacity further illuminates the multidimensionality of the concept. This blog post looks at three of the many possible indicators which could be used to gauge state capacity in the South Caucasus: revenue excluding grants as a share of GDP for fiscal capacity, taxes on income, profit, and capital gains as a share of total revenues for bureaucratic-administrative capacity, and military expenditures as a share of central government expenditures for coercive capacity. So, how strong are the South Caucasus states?

Fiscal capacity is considered one of the most important state capacities by most authors as without the financial means to accomplish a stated policy, that policy will likely never be realized in practice. The graph below presents World Bank data for state revenue excluding grants as a share of GDP and shows how much the South Caucasian governments collect from their societies. What appears most prominently is that Azerbaijan’s fiscal capacity far outstrips that of Georgia and Armenia, which exhibit similar levels of extraction. It is important to keep in mind here that revenue consists not only of taxes but also funds collected through fines, fees, and resource rents. The latter are particularly important for Azerbaijan as the government received 54% and 65% of state revenues from oil and gas in 2005 and 2011 respectively. Without its oil wealth, Azerbaijan would collect significantly less in revenues.

Definitions of bureaucratic-administrative capacity often center on a state’s ability to collect and manage information (Hendrix, 2010). This capacity is central to a state’s ability to act and likely enables a state to have fiscal and coercive capacity. For example, if a state is unable to gather information on potential militants within its territory it will be unlikely that it can coerce or co-opt them into compliance. In order to successfully cooperate with society, information gathered must be channeled into usable and comprehendible forms which enable the government to act.

Income, profit, and capital gains taxes as a share of total taxes are a useful indicator of bureaucratic-administrative capacity. While at first glance it may be taken to indicate fiscal capacity, income taxes are more closely related to bureaucratic-administrative capacity, because this form of taxation is both a relatively difficult and relatively desirable tax to collect (Rogers and Weller, 2014). The desirability of income tax stems from the fact that it generally provides a revenue stream which does not drastically fluctuate. In most circumstances, however, it is a relatively difficult tax to collect (though the system of income tax payment by employers has lowered this difficulty in Georgia, Transparency International Georgia has noted that non-compliance with income tax remains problematic). As such, the share of income tax as a percentage of total state revenues proxies how well a state can extract from and manage information on its population. The graph below presents taxes on income, profits and capital gains (two other taxes which are similar to income tax) as a percentage of total taxes collected. The graph demonstrates that Georgia’s bureaucratic-administrative capacity on this measure is higher than that of Armenia or Azerbaijan. While Azerbaijan’s relative weakness in this sector is likely caused by hydrocarbon revenues, Georgia’s relative strength likely comes from the reforms in tax collection and enforcement, which started with the tax code passed in 2005.

A final important capacity of state is its ability to coerce its population; without the capability to put down paramilitaries or suppress violent groups, a state can quickly devolve into chaos. Taking military expenditures as a share of central government expenditures as an indicator of coercive capacity, the graph below gives a possible indication of coercive capacity. This indicator, though, also likely describes the changing relative importance of coercion to each state over time, as one would expect the share of total expenditures dedicated to military expenditures to increase if security issues became relatively more important – hence Georgia’s relatively high expenditures in 2008, which are largely a result of the 2008 August War with Russia. When looking at the figures, it is important to note that Azerbaijan’s budget is significantly larger than either Georgia’s or Armenia’s and as such has a much larger absolute level of coercive capacity.

This blog post has looked at three of the many possible indicators of state capacity. For readers interested in the subject, this 2010 article by Cullen Hendrix goes through a wide variety of indicators, although the data set used does not include any of the South Caucasus countries.

Have any ideas about other indicators? Join the conversation on Facebook or at CRRC-Georgia’s office on December 10th for the Works-in-Progress talk: State/party capacity and constraints on state action: Operationalizing and indexing state capacity in Georgia and Armenia.

Focus on non-oil tax policy as oil revenues predicted to decline

The IMF has recently published its analysis of the developments in non-oil tax policy, administration and revenues in Azerbaijan. Non-oil tax policy could be an important tool in stimulating the development of non-oil sectors of the country’s economy.

In 2007 the oil sector accounted for over the half of the country’s GDP. Last year 62% of FDI went to the oil industry. While the non-oil sector is reported to grow by 15.6% during the first half of 2008, the oil sector remains the major source of budgetary revenue.

The IMF has warned previously that the growth rates in Azerbaijan are expected to decline significantly after 2010, once oil production passes its peak period. Even though this forecast was later refuted by some experts, who believe that the oil potential of the deep-water oil fields has not been fully explored yet, the importance of development of the non-oil sectors is widely recognized.

The decline of oil production will directly affect the revenue from the tax collection. Although the non-oil tax revenues have been steadily increasing since 2003 (see the chart below), the collection level still is below its potential. Several reforms aimed at modernizing the tax administration were implemented. Still, the wide-spread underground economy adversely affects the level of tax revenue. To broaden the tax base, the IMF recommends to reduce tax exemptions and benefits, and to make the tax privilege procedures more transparent. Also, to increase compliance, tax regulations, as well as all instructions and forms must be simplified and made easy to understanding of all taxpayers. The author of the report also recommends to reduce direct tax rates and to apply a unified rate to personal and corporate income. Tax and custom administration in general must be strengthened. The paper is available at the IMF website.

Source: IMF 2008

The Georgian Tax System in the Context of the European Neighborhood Policy (ENP)

Eurasia Foundation and the Heinrich Böll Stiftung are sponsoring three roundtables on Georgian compliance with the European Neighborhood Policy (ENP), the results of which will be disseminated to Georgian policymakers in the form of an action plan. The most recent roundtable surrounded the lagging updates to the Georgian tax scheme and the major problems plaguing the current system. As it stands currently, there is a 12% income tax and 20% social tax, but Saakashvili claims he will lower the combined tax to 25% in the upcoming year.

According to the roundtable participants, the Georgian tax code as it currently stands is fundamentally flawed and easily lends itself to abuse and manipulation. In the Western context, taxpayers enter into a contract with the government whereby their tax contributions are expected to bear fruit in the forms of social services and infrastructure upkeep. The taxpaying scheme should be a mutually beneficial endeavor. This vision, panel participants argued, has not yet fully arrived in Georgia. Taxpayers still distrust the state and often are unsure where these tax revenues go and tax-dodge by concealing their income streams. To their credit, the Ministry of Finance created a Revenue Office to control the process of tax code reform and the performance of the newly established tax department but their independence and capabilities are questionable.

A major concern of the EU is Georgia’s policy of double taxation. Extra taxes - above and beyond the normal tax percentage - are levied for cleaning up garbage and other miscellaneous governmental responsibilities. It is unclear to many citizens why these services aren’t covered by the initial tax.

Additional complaints center around surprise extrajudicial visits to “audit” private organizations and charge fees for “illegal actions” or fraud without disclosing the details of their investigation. When organizations or individuals appeal to the Revenue Office for clarification over the “investigation” or ambiguous rules, they often don’t get a clear answer. While the tax department is investigating, it will freeze the organizations’ bank accounts indefinitely, effectively paralyzing their operations for no discernable reason. To add insult to injury these organizations are then charged for the tax agencies’ time regardless of whether or not any fraud occurred. All of these behaviors are worsened by governmental intrusion on the tax paying process.

Roundtable participants felt that as long as the Ministry of Finance has the authority to interpret the tax code as they see fit, the human factor and susceptibility to corruption will perpetuate the current inadequacies of the system.