On 18th May the President of Georgia, Salome Zurabishvili, vetoed the Law on Transparency of Foreign Influence. The President concluded that “it is impossible to improve this law” since it is “anti-constitutional, anti-Georgian, anti-European and anti-democratic.” The President affirmed that there was no alternative to withdrawing this law. In her motivated corrections, she proposed to terminate the law as rapidly as possible after its enactment and therefore amended the last article of the passed law (Article 11, para. 2) to read: “This Law shall be in force during one day from its publication.” According to the Constitutional provisions, the President’s motivated remarks can be overturned.^[1]

On 14th May, the Georgian Government finally adopted its controversial draft legislation “on the transparency of foreign influence” into law. It compels civil society organisations receiving foreign funding to register as an “organisation carrying out in the interests of a foreign power”. This was the second attempt to introduce such legislation, in the face of significant public protests.

In comparison to the first draft law proposed by the Georgian ruling party – Georgian Dream – in 2023, this new version changed “agents of foreign influence” to “organisations pursuing the interest of a foreign power”. A parliamentary hearing was conducted. The original draft law mandated civil society and media outlets receiving more than 20 per cent of their income “directly or indirectly from the agents of foreign influence” to register as “organisations pursuing the interest of a foreign power”. This may include money, as well as other assets in kind (movable or immovable assets).

There have been massive ongoing protests in reaction to the legislative proposals, and in response to the law’s adoption. The Georgian authorities have repeatedly resorted to the use of unlawful force against peaceful protesters and have failed to prevent violence by groups of unidentified men.^[2] The Government has not shied away from using disproportionate force against protesters, resulting in cases of “shocking” violence and intimidation, as well as the ambushing and beating of members of the opposition party and public defenders.^[3] The Government authorities have intensified crackdowns on civil society through threatening phone calls and posters containing insults. Protestors who actively participated in protests were summoned to the Interior Ministry for questioning. In sum, it seems that most public institutions, including the police, state security services, special investigation service, personal data protection service and the ruling party, all have been implicated in orchestrating massive repressions. This has been facilitated by unlawful interference into protesters’ personal lives by targeting them at their homes and through their phones. Finally, no investigation has been opened into the unidentified men who ambushed protesters.

Prior to proposing the controversial bill, Georgia’s ruling party proposed a discriminatory constitutional bill that, among other restrictions, bans any public expression of opinion or public gatherings that could be regarded as “promoting same-sex relationships”.^[4]

The Law on Agents of Foreign Influence

In the law, the “agents of foreign influence” are organisations, entities found under foreign laws and individuals, who are not citizens of Georgia. According to the law, upon its adoption, foreign-funded organisations would have two months to register themselves as “organisations pursuing the interests of a foreign power” and submit annual financial declarations on funds received from foreign sources. Failure to register would be an administrative offence, punishable by fines of up to 25,000 GEL (approximately 8,700 EUR). The law also authorises the Ministry of Justice to conduct “thorough investigations” of the registered organisations to ensure their respect of the laws. According to the final version of the law, designated officials from the Ministry of Justice will have the right to request any personal data from individuals, including confidential information such as details about their sexual life, philosophical or other beliefs, political views, membership in trade unions, etc. The law requires all individuals, bodies, organisations, and institutions from whom the authorised representative of the Ministry of Justice requests this information to provide all available data. Failure to provide the requested information will result in a fine of 5,000 Lari (approximately 1,820 EUR). Appealing the fine will not create exemption from the obligation of paying and might incur a further fine. Finally, the new sanction is additional and does not replace already established fines of ten, 20 and 25 thousand Lari.^[5]

The objective of Georgia’s Government is to increase the transparency of the financing of associations and curb foreign influences. The current law however seeks to control, rather than enable, access to funding. An explanatory note to the law maintains that it does not violate Georgia’s constitution, aspiration to join the European Union (EU) and that it is in line with international obligations. It is poignant, however, that the law has been adopted ahead of Parliamentary elections, and follows other patterns aimed at silencing human rights organisations and media outlets in Georgia. Most importantly, the EU has maintained that the Georgian Government was taking inspiration from similarly controversial legislation, primarily – Russia’s 2012 ‘Foreign Agents Law’ – which intentionally labels and discriminates against civil organisations.^[6] In recent years, legislation similar to Russia’s law has been gaining traction in neighbouring countries. In April 2024, Kyrgyzstan’s President signed a law on “foreign representatives” obliging non-profit organisations, including media outlets, to designate themselves as “foreign representatives”, and submit regular financial reports and audits.^[7]

Parallels to the US Foreign Agents Registration Act (FARA)

The Georgian law defines a “foreign agent” as any non-commercial legal person, which receives more than 20 per cent of its funding from a “foreign power”. Meanwhile, FARA defines a “foreign agent” to be any person who is under the control, or acts at the direction of, a foreign power. The definition in the Georgian law of a “foreign nexus”, which could ensnare organisations who accept 20 per cent of financial support or other gifts, is not aligned to FARA. The US law requires the foreign power or “principal” to have a degree of control over the possible foreign agent. That being said, FARA requires evidence of a principal-agent relationship between the “foreign agent” and its “foreign principal” implying a high level of dependence and control between the domestic association and its foreign donor. By contrast, a Georgian NGO receiving 20 per cent of their funds from abroad is sufficient evidence for the NGO to be considered a “foreign agent”. Therefore the approach of drawing parallels to FARA is deeply flawed, as the US law is targeted not at civil society, but at professional lobbyists. FARA’s main purpose is to regulate political players acting on behalf of governments, which is the opposite of what NGOs do.^[8]

Finally, the Georgian law, unlike FARA, does not provide exemptions for any persons or activities; such as Georgian organisations that receive funding from allies of Georgia; humanitarian aid organisations; Georgian scientific, academic and artistic organisations; media organisations; and nonprofit entities with foreign funding representing clients in Georgian courts.^[9]

There are already concerns that FARA can violate freedom of expression and association, principles that are embedded at the core of the US Constitution. Given its vagueness, there are those that argue that FARA could have a “chilling effect” on political speech, thus implicating First Amendment concerns.^[10] These are concerns even more relevant in the case of the Georgian law.

Pressing Social Need

Georgia is a signatory to the European Convention on Human Rights (ECHR) and has an obligation to recognise the protection of opinions and the freedom of expression and right to assembly protected under the European ECHR. Its case law suggests that Georgia’s law would not be able to withstand the scrutiny of the European Court of Human Rights (ECtHR). The ECtHR maintains that it is the right of a citizen to form a “legal entity in order to act collectively” in a field of mutual interest. It is one of the most important aspects of the right to freedom of association, without which the right would be deprived of any meaning.

According to international human rights law, Georgian authorities have an obligation to protect its institutions and citizens from association that might hinder them. However, exceptions to the rule of freedom of association should be strictly limited and only compelling reasons can justify restrictions on that freedom, with any interference corresponding to a “pressing social need”.^[11] The ECtHR also recognised the role of the NGOs as a “public watchdog” warranting similar protection as that of the press. The ECtHR has recognised that civil society makes an important contribution to the discussion of public affairs. The manner in which “the public watchdog” carries out their activities may have a significant impact on the proper functioning of a democratic society. It is the state’s obligation therefore to enable NGOs to draw attention to matters of public interest.^[12] However, if legislative amendments impose new requirements on previously existing organisations, they need to be justified as “necessary in a democratic society”.^[13]

In its new law, the Georgian Government chose to adopt a “stigmatising term,” i.e. a term with a negative connotation that bears a striking resemblance to “foreign agent”. It introduces a concept of an agency, in which control by the donor over the recipient is automatically implied rather than established on a case-by-case basis.^[14] This presumption is irrefutable since any evidence of operational independence of the grantee from the donor is legally irrelevant for the designation of the “organisation carrying foreign influence”. The mere fact that money is received from “foreign sources” is sufficient. There is no need to show proof that the organisation had been acting in the interest of foreign sources, therefore attaching the label of an “organisation that carries out foreign influence” that received funds from foreign entities is “unjustified” and “prejudicial”.^[15]

Contrary to what Georgia’s Government presume the objective of increasing the transparency of the financing of associations, can not justify the introduction of legislation based on a presumption and applied indiscriminately – that any financial support paid by a non-national natural or legal person, and any civil society organisation receiving such financial support, would automatically harm the State’s political and economic interests and the ability of its institutions to operate free from interference.^[16]

Strikingly, the law does not distinguish between various forms of “funding and other movable and immovable property,” this could entail different activities, for instance, a purchase of a computer by an NGO from an international company. On another note, in newly suggested amendments, the law does not specify whether a ‘person’ required to provide necessary information during the monitoring should work for the given organisation or is somewhat associated with it. This also violates the “principle of legal certainty,” which recognises that ill-defined laws are open to arbitrary application and abuse. The vagueness of these offences increases the risk that they may be applied in a manner that is contrary to the principle of international law, implying “no crime without law”.^[17] The laws concerned must be accessible and sufficiently precise to allow members of a society to decide how to regulate their conduct (foreseeability) and may not impose “unfettered or sweeping discretion” on those who enforce them.^[18]

Moreover, the “burdensome requirements” which have the effect of inhibiting an organisation’s activities may lead to an interference with the right to freedom of association.^[19] According to the Special Rapporteur on the situation of human rights defenders, registration authorities should be independent from the Government. It follows that reporting obligations should be “simple, uniform and predictable”.^[20] Therefore, organs in charge of registration and supervision should carry out inspections only during ordinary business hours, with adequate advance notice; and that powers should not be used arbitrarily and for the harassment or intimidation of organisations.^[21] Finally, authorities gaining access to one’s personal information undermines Georgia’s own national law and the Constitution.^[22] By the same token, it would violate the stringent proportionality test imposed by the ECHR.^[23]

Stigmatisation

The law also has a strong deterrent, and stigmatising effect, on NGOs’ operations. The label negatively colours civil society working to uphold respect for human rights, the rule of law and human development for the benefit of Georgian society and its democratic system.^[24] Moreover, in the example of Russia, the ECtHR established that the creation of such a new status severely restricted the ability of civil organisations to continue their activities owing to the negative attitude of their target groups and the legislative restrictions. In the case of Georgia, the new status will hinder NGOs ability to participate in public life and engage in activities that they had been carrying out prior to the creation of this new category of “organisations carrying foreign influence”. In their explanatory note, the Georgian authorities have not been able to provide “relevant and sufficient” reasons for creating that new category. There is no suggestion that these measures further the declared goal of increasing transparency. The creation of this new status as defined in domestic law will not justify the test implying “necessary in a democratic society”.^[25] The Special Rapporteur on Freedom of Expression submitted that freedom of association encompassed the right of NGOs to access financial resources, and without such resources, civil society would not be able to enjoy freedom of association.^[26] Moreover the right to receive and use resources from foreign sources was recognised and protected in international law. Poignantly, these restrictions have had a disproportionate impact on civil society organisations advancing the rights of marginalised groups, including women and LGBTI persons, which are often highly dependent on foreign funds to support their activities.

Severity of Penalty vs Proportionality

The nature and severity of the penalties imposed are important factors to be considered when assessing the proportionality of the law’s interference with an NGO’s activities and that of media outlets. The penalty should not amount to a form of censorship or undermine civil society’s important contribution to the administration of public affairs.^[27] By the same token, the penalty should not hamper NGOs in performing their task as independent monitors and “public watchdogs”. However, the current financial sanctions imposed by the law seem disproportionately high. In its previous case law, the ECtHR used the monthly salary, set and reviewed by the state’s federal agency, to put the financial impact of sanctions into perspective.^[28] The average salary for a Georgian NGO staffer varies from 2,380 to 4,500 Gel (approximately 800 to 1,500 EUR), therefore a 25,000 Gel fine (approximately 8,418 EUR) is approximately equivalent to one to three years’ subsistence income. According to the court, any limitation must further be “necessary in a democratic society”.^[29] To meet the condition of necessity to impose such a restrictive law, authorities must demonstrate that the measure can truly be effective in pursuing the legitimate aim and be the least intrusive means among those which might achieve the desired objective. It is then followed that the sanctions of such magnitude will trigger heightened scrutiny of the law’s proportionality.^[30]

Impact of Georgia’s new law and its implications

Contrary to what has been suggested by the Georgian Parliament this law is not similar to FARA, and it violates Georgia’s political, national and international legal obligations. The law fails to demonstrate that the measure can truly be effective in pursuing a legitimate aim and be the least intrusive means among those which might achieve the desired objective. The restrictions and barriers imposed by the law will directly affect the communities that civil society organisations serve. This will include aid organisations and institutions working to improve education and health. Restriction on foreign funding for civil society organisations will have a chilling effect on Georgian civil society, dissuading many such organisations from seeking these kinds of funds or forcing them to simply close. Amidst the homophobic rhetoric perpetrated by the ruling party, LGBTI organisations would be among the first organisations subjected to closer scrutiny and fines under the law, draining their limited resources. On a political level, it is incompatible in spirit with EU values and democratic principles and is in breach of at least two steps contained in the EU Commission’s recommendation on Georgia’s candidate status.^[31] Overall, the adoption of the law signals a derailment of Georgia’s aspirations towards EU membership embedded in its own constitution and commitments to human rights guaranteed by the ECHR.^[32] Finally, if the legislation goes forward, the EU will likely aim to sanction all members of the Georgian Parliament who voted in favour of it and will call to make all financial assistance to Georgia conditional on eliminating this law from the Georgian legal order.^[33]

On 21st May the Venice Commission issued an urgent opinion on the Georgian law on Transparency of Foreign Influence. It in its strongest terms, it recommended revoking the law since it will have an adverse impact on the freedoms of association and expression, right to privacy and rights to prohibition of discrimination. It went on to conclude that none of the threefold conditions encompassed by the ECHR or the Constitution of Georgia in relation to any of these rights, including legality, legitimacy and the necessity/proportionality test, were being met.[³⁴]

Photo credit: Medea Gugeshashvili. It was taken on 2 May 2024, showing the protests outside the Georgian Parliament.

Disclaimer: The views expressed in this piece are those of the author and do not reflect the views of The Foreign Policy Centre.

^[1] See Article 64 of the Constitution of Georgia.

^[2] Amnesty International Public Statement, Georgia: Authorities must stop using unlawful force against peaceful protesters and ensure accountability, Amnesty International, May 2024, https://www.amnesty.org/en/documents/eur56/8015/2024/en/

^[3] Ibid.

^[4] Amnesty International, Georgia: Halt legislative assault on LGBTI rights, March 2024, https://www.amnesty.org/en/latest/news/2024/03/georgia-halt-legislative-assault-on-lgbti-rights/#:~:text=%E2%80%9CBy%20promoting%20this%20openly%20discriminatory,individuals%20are%20increasingly%20under%20assault.

^[5] JAM News, The “foreign agents” bill in Georgia will also apply to individuals, May 2024, https://jam-news.net/foreign-agents-bill-for-individuals/

^[6] European Parliament, Motion for a resolution on the attempts to reintroduce a foreign agent law in Georgia and its restrictions on civil society,B9-0248/2024, April, 2024, https://www.europarl.europa.eu/doceo/document/B-9-2024-0248_EN.html

^[7] Article 19, Georgia: New attempts to introduce a ‘foreign agent’ law threaten freedom of expression, April 2024, https://www.article19.org/resources/georgia-new-attempts-to-introduce-a-foreign-agent-law-threaten-freedom-of-expression/

^[8] Samuel Rebo, FARA in focus: What can Russia’s foreign agent law tell us about America’s?, Journal of National Security Law and Policy, Vol. 12: 277, February 2022, https://jnslp.com/wp-content/uploads/2022/02/Fara_in_Focus_2.pdf

^[9] Civil.ge, US FARA versus Georgian Foreign Agents Law: Three Major Differences, April 2024, https://civil.ge/archives/591175

^[10] Rebo, p. 321.

^[11] Sidiropoulos and Others v. Greece,10 July 1998, para 40, Reports of Judgments and Decisions 1998‑IV, see: https://hudoc.echr.coe.int/eng#^{%22itemid%22:[%22001-58205%22}]

^[12] Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, paras 166-67, 8 November 2016, see: https://hudoc.echr.coe.int/fre#^{%22itemid%22:[%22001-167828%22}]

^[13] Moscow Branch of the Salvation Army, application no (72881/01) paras 73-77, see: https://hudoc.echr.coe.int/eng#^{%22itemid%22:[%22001-77249%22}]

^[14] EccoDefence and others v. Russia, App. nos. 9988/13 and 60 others. para 136.,14 June 202, see: https://hudoc.echr.coe.int/fre#^{%22itemid%22:[%22001-217751%22}]

^[15] Ibid.

^[16] Commission v. Hungary (Transparency of associations), C‑78/18, EU:C:2020:476) at EccoDefence and others v. Russia. para 46.

^[17] UN Mandates of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur on the rights to freedom of peaceful assembly and of association. OL USA (27 October, 2023). p.8.

^[18] Pakdemirli v. Turkey, no. 35839/97, para 59, 22 February 2005, see: https://hudoc.echr.coe.int/eng#^{%22itemid%22:[%22001-124320%22}]

^[19] Cumhuriyet Halk Partisi v. Turkey and Jehovah’s Witnesses of Moscow v. Russia,1920/13 para 71-72,26 April 2016, see: https://hudoc.echr.coe.int/eng#^{%22itemid%22:[%22001-162211%22}]

^[20] EccoDefence and others v. Russia, App. nos. 9988/13 and 60 others, para 150.

^[21] Ibid. para 150.

^[22] The Law on Personal Data Protection states that for the processing of personal data to be legal, it must meet the requirements of the law which provides for appropriate security measures for handling the data and should not infringe on the citizen’s rights enshrined in that law. See Article 15 which provides for the inviolability of private and family life, private space, and communications by containing a provision to disclose private data from the specially protected category. Article 22 on freedom of association: by enforcing self-stigmatisation and creating conditions for restricting the activities and eventually abolishing the organisations it applies to, and Article 11: The law is discriminatory to a specific segment of organisations without sufficient legal justification.

^[23] Article 8 of the European Convention on Human Rights.

^[24] Ibid. para 139.

^[25] EccoDefence and others v. Russia, App. nos. 9988/13 and 60 others. para 118.

^[26] UN Special Rapporteur on the Rights to freedom of peaceful assembly and of association. Access to resources Report of the, Clément Nyaletsossi Voule, Distr. General 10 May 2022. pp.8-10.

^[27] EccoDefence and others v. Russia, App. nos. 9988/13 and 60 others. paras 179-181,14 June 2022.

^[28] Tolmachev v. Russia, no. 42182/11, para 54, 2 June 2020, see: https://hudoc.echr.coe.int/app/conversion/docx/pdf?library=ECHR&id=001-202634&filename=CASE%20OF%20TOLMACHEV%20v.%20RUSSIA.pdf&logEvent=False

^[29] EccoDefence and others v. Russia, App. nos. 9988/13 and 60 others. para 188.

^[30] Ibid.

^[31] European Parliament, Motion for a resolution on the attempts to reintroduce a foreign agent law in Georgia and its restrictions on civil society,B9-0248/2024, April, 2024, https://www.europarl.europa.eu/doceo/document/B-9-2024-0248_EN.html

^[32] Article 78 of the Constitution. The constitutional bodies should take all measures within their powers to ensure the full integration of Georgia into the European Union and the North Atlantic Treaty Organisations.

^[33] European Parliament, Motion for a resolution on the attempts to reintroduce a foreign agent law in Georgia and its restrictions on civil society,B9-0248/2024, April, 2024, https://www.europarl.europa.eu/doceo/document/B-9-2024-0248_EN.html

[³⁴] Venice Commission, CDL-PI(2024)013-e, Georgia – Urgent Opinion on the Law of Georgia on Transparency of Foreign Influence, Council of Europe, May 2024, https://venice.coe.int/webforms/documents/?pdf=CDL-PI(2024)013-e