Georgia’s Foreign Agent Law 2.0

In a recent contribution to this blog, Tolga Şirin argued for activating interim measures under Rule 39 of the European Court of Human Rights (ECtHR) in cases of political prosecution, such as that of Istanbul’s mayor İmamoğlu. This argument gains renewed urgency in light of Georgia’s proposed foreign agent law. Indeed, as civil society organisations (CSOs) face the threat of criminal sanctions under “Foreign Agent Law 2.0” – a near copy-paste of the U.S. Foreign Agents Registration Act (FARA) – Rule 39 could become their last remaining remedy.

Foreign agent laws in Georgia

The saga of Georgia’s foreign agent laws began in 2023, when Georgian Dream (GD) introduced legislation forcing CSOs receiving over 20% of foreign funding to register as “foreign agents” or face fines. The bill sparked mass protests, was hastily repealed, and then brought back amid public outrage. Following the rigged parliamentary elections of October 2024 – which both the European Union (EU) and Council of Europe (CoE) deemed neither legitimate nor fair – the public protests and political crisis erupted once more. Five months on, Georgian Dream passed a second, FARA-inspired version of the law, still without having enacted or repealed the original. It is set to come into force on May 31, 2025.

Under the new law, directors of NGOs and media outlets risk criminal prosecution if the state claims they acted on behalf of a foreign principal and deliberately failed to register. Considering public statements by the Prime Minister of Georgia, it is hardly speculative to expect selective enforcement of the law against the most outspoken CSOs. And as if two foreign agent laws were not enough, recent amendments to the law on Grants now also require donor organizations to obtain prior approval from the GD government – or a designated agency – before issuing any funding. Unlike the first foreign agent law, which dominated political discourse in 2023, current attacks on CSOs are unfolding more quietly – against the backdrop of a broader, faster, and more systematic dismantling of the rule of law and human rights. In the face of this escalation, the tools already embedded in the ECtHR’s jurisprudence offer a way forward: Rule 39 can – and must – be reactivated to protect CSOs from a consolidating autocratisation.

The ECtHR’s sobering experience with foreign agent laws

The ECtHR’s engagement with Russia’s foreign agent laws has been a sobering experience. In Ecodefense, the Court issued its judgment eight years after the initial application was filed -without separately addressing the Article 18 claim of rights abuse by the states. The result fell far short of a timely or adequate response to Russia’s systematic efforts to dismantle civil society. The Court’s failure to engage Art. 18 was particularly striking, given that its proportionality analysis had already hinted at the core finding of “bad faith”. As it noted, “[t]he Government has not been able to […] show that those measures furthered the declared goal of increasing transparency” (para 146).

It would take another two years for the ECtHR to explicitly acknowledge “the extent to which the ‘foreign‑agent’ designation has been misconceived, misleading and misused by the Russian authorities” in Kobaliya (para 77). In pretty sharp language, the ECtHR stated that the labeling requirement was “unrelated to the stated purpose of transparency and creates instead an environment of forced self-stigmatisation […]” bearing “the hallmarks of a totalitarian regime” [emphasis added, para 86].

The 2025 decision in Novaya Gazeta, concerning the crackdown on dissent following Russia’s invasion of Ukraine, offered concurring Judge Pavli an opportunity to reflect on these missed opportunities:

“[..] with the benefit of some hindsight and a large body of case-law behind us, can it be said that the Court sounded the alarm loudly enough, and early enough? And more importantly for the future, is it now prepared to do so in relation to other European political systems whose democratic protections might be eroding in ascertainable ways?” (para. 15).

As Tolga Şirin previously argued on this blog, if Judge Pavli’s questions resonate with other members of the Court, there is, indeed, ample doctrinal basis for sounding the alarm – both loudly and early – when democratic safeguards are visibly eroding. That ground lies in the Court’s own Rule 39.

The slow shift toward an effective Rule 39

Indeed, the ECtHR record includes more than missed opportunities, and recent Rule 39 landmarks exhibiting a gradual shift toward greater flexibility serve as testimony to that. Interim measures are no longer confined to non-refoulement cases involving mere individualized and foreseeable threats – such as the risk of torture or the (re)use of evidence obtained by torture following removal to a foreign country (see Abu Qatada). Instead, they are now increasingly applied in response to threats to democracy and the rule of law, even where the precise forms such threats may take are not yet fully known. This shift has been most evident in cases involving, for example, the ownership of a media company in Georgia (2017), the protection of a journalist’s sources in Ukraine (2018), the right to exist of a human rights NGO  (2021) and of a news outlet in Russia (2022), punitive measures against judges in Poland (2022-2023), and demonstration dispersal techniques in Serbia (2025).

The wording of interim measures has also become more open-ended. The Court now increasingly issues orders suspending domestic decisions or proceedings, or instructing states to refrain from actions likely to produce certain harmful effects. For example, in an interim measure issued in 2022 in the case of Novaya Gazeta, the Court instructed Russia “to abstain until further notice from actions and decisions aimed at full blocking and termination of the activities of Novaya Gazeta, and from other actions that in the current circumstances could deprive Novaya Gazeta of the enjoyment of its rights guaranteed by Article 10 of the Convention” (para 12). In an interim measure issued in 2025 in the case of Đorović, the Court referred to “potentially serious health effects” and instructed Serbia that “any use of sound devices for crowd control […] must be prevented in the future” without even prejudging whether such a crowd control mechanism was actually being used.

This shift toward a broader application of Rule 39, accompanied by more flexible instructions to states in individual cases, offers a measure of hope. But if the ECHR is to offer practical and effective protection, the Court must accelerate this shift, so as not to allow consolidating autocracies to slip through the cracks of supranational oversight. The tools for this are already in place. Within its existing doctrine, the Court has at least four avenues it could draw on to reactivate Rule 39 more forcefully in contexts like Georgia: the “Administrative Practice” exception, the “Potential Victim” standard, the “Chilling Effect” standard, and lastly, the Bad Faith standards under Art. 18.

Activating ECtHR’s Rule 39

One of the clearest foundations for a more assertive Rule 39 lies in the Court’s existing doctrine on “administrative practice” – an exception to the usual requirement that applicants first exhaust domestic remedies. This exception allows the ECtHR to intervene earlier when there is evidence that the violations are not isolated but part of a repeated pattern that the authorities tolerate or ignore (see Georgia v. Russia (I), paras. 122–124). As attacks on civil society become more organised and state-driven, the Court should apply this exception more boldly – especially where such patterns point to systemic bad faith. Doing so would allow the Court to treat repressive legal regimes not as one-off legal disputes, but as coordinated assaults on rights that demand timely supranational oversight.

The Court also should not hesitate to apply Rule 39 even before punitive measures are enforced against specific individuals or organisations. Its “potential victim” doctrine provides a basis for doing so – particularly where civil society organisations (CSOs) face looming sanctions that could have a chilling effect on their activities. The Court typically avoids ruling on cases in the abstract – meaning without a specific individual measure being applied. But it makes exceptions where the mere existence of punitive measures causes individuals to modify their conduct or engage in self-censorship (see S.A.S., para 57), or where status-setting laws designate a group whose members face changes in their access to rights or privileges (see Marckx, para. 27). Crucially, the Court connects this anticipation of altered conduct to its “chilling effect” doctrine (see RID Novaya Gazeta, para. 59‒62).

The Court uses this concept of “chilling effect” to describe how certain measures discourage applicants – or others in similar situations – from exercising their rights. It is most commonly invoked to protect freedom of expression and media (see Fatullayev, paras. 102, 128), opposition politicians (see Mammadov, paras. 93‒94), critical or “disloyal” judges (see Baka, paras. 167, 173), members of judicial self-governing bodies (see Żurek, para. 227), and prosecutors (see Kövesi, para. 209). The concept has also been applied to safeguard the freedoms of assembly (see Navalnyy, paras. 103, 152), private life (see Kogan, paras. 70, 76), and most importantly in this context, freedom of association.

In shaping its Rule 39 practice, the Court should take a stricter approach where prima facie evidence points to this “chilling effect” being intended rather than incidental. Notably, the Court has already begun to move away from neutral language (Baka and Ecodefense above) in this regard. For instance, the Court suggested that measures were part of “a strategy aimed at intimidating (or even silencing)” judges who had defended the rule of law and judicial independence in Poland (Żurek above), or that the imposition of fines for failing to comply with labeling requirements by NGOs “demonstrates the authorities’ intention to stifle critical voices and create a chilling effect on freedom of expression.” (Kobaliya above). In cases where the Court has found violations of Article 18, the inference of an intended chilling effect has often been inevitable, even if the state’s intentions regarding the “chilling effect” were framed in neutral terms (see Navalnyy, Kogan above).

Last but not least, the evidentiary approaches developed in Art. 18 case law since Merabishvili (2017) can meaningfully inform Rule 39 decisions. As demonstrated in Selahattin, this includes taking into account public statements of high-ranking officials, as well as the broader state of judicial independence, which ultimately determines the impact that such statements may have on the ultimate good faith application of law.

Taking irreversibility of autocratic consolidation seriously

Together, the interconnected ECtHR standards of “potential victim,” “chilling effect,” and the bad faith standard under Art. 18 can be key in activating Rule 39 so as to prevent consolidating autocracies such as Georgia – where practically all legislative activity induces a “chilling effect” on critical conduct – from slipping through the ECtHR’s oversight. The Court’s growing willingness to respond to bad faith and tolerated patterns of abuse, as seen in its evolving approach to “administrative practice,” further strengthens the case for a more flexible application of interim measures. This logic is especially persuasive in the context of foreign agent laws, where the irreversible damage inflicted on civil society in Russia provides a cautionary basis for anticipating similar effects in other member states.

Activating interim measures in this way also aligns more broadly with the emerging theory of militant constitutionalism and rule of law, providing a crucial self-defense against autocratic rulers hostile to the temporariness and institutional constraints of democratic government. As the legal theorist Sajó notes, “[g]iven the potentially irreversible consequences of illiberal democracy on constitutionalism and democracy, it is morally imperative to consider to what extent the arsenal of […] democracy-limiting preventive measures should be applied to counter the current trend” (emphasis added, p. 191). This aspect of irreversibility is key: the ECtHR’s Rule 39 mechanism is designed specifically to address rights-restricting measures that cannot be remedied after the fact. As such, it has the potential to serve as a forceful mechanism of militant constitutionalism and the rule of law. The only adequate response to the increasing autocratisation in member states, then, is for the ECtHR to fully leverage Rule 39 – particularly when, in Judge Pavli’s words, democratic protections are eroding in [judicially] ascertainable ways.