17 May 2024

Georgia’s Rule of Law Crisis

A Letter from Tbilisi

Over the past few weeks, I have closely followed the unfolding events in Georgia from Berlin, experiencing a mix of emotions: fear, anger, and frustration, and a glimmer of hope. Now, having arrived in Tbilisi, these sentiments have only intensified. The current cause of concern lies in the “transparency of foreign influence” law, which subjects civil society organisations (CSOs) and independent media receiving substantial foreign funding to constant monitoring. Failure to meet onerous registration and reporting requirements could result in sizable fines. If that sounds familiar, it is because Russian authorities have used a similar law to suppress critical voices. Notably, this is Georgian Dream’s second attempt at pushing through this law, following last year’s withdrawal of the bill due to domestic and international outcry. The law poses significant obstacles to Georgia’s path towards EU integration, compounding the government’s prior resistance to crucial reforms aimed at bolstering the rule of law.

The growing realization that the ruling Georgian Dream prioritises its grip on power over Georgia’s human rights commitments and its aspirations to join the EU has prompted tens of thousands of Georgians to take to the streets of Tbilisi in protest. Despite police violence against peaceful protesters and journalists, as well as a widespread intimidation campaign to stifle public outcry over the law, the demonstrations have not subsided. On 14 May 2024, the Georgian Parliament still passed the contentious “transparency of foreign influence” law in its third and final reading amidst widespread public outcry.

The newly enacted law mandates that non-commercial legal entities and media outlets receiving over 20 % of their annual income in funds or property from foreign powers – such as foreign states, organizations established under foreign or international law and foreign citizens – must register as “organisations pursuing the interests of foreign powers” and submit financial declarations. Failure to comply with these requirements will result in substantial fines (approximately 8,200 EUR for avoidance and varying amounts for other violations). Moreover, the law grants the Ministry of Justice the authority to monitor and identify entities failing to meet these requirements, entailing the collection of information, including personal data. It also encourages anyone to report such entities to the Ministry. Monitoring is allowed against the same entity every six months.

In scope and nature, the legislation mirrors the “Foreign Agents Law” used by Russian authorities to repress civil society and independent media. Similar to the Russian authorities, Georgian Dream leaders claim that the bill aims to enhance transparency and is modelled on the US Foreign Agents Registration Act (FARA). The explanatory note for the Georgian bill conspicuously omitted reference to the Russian law when discussing relevant foreign practices. Notably, differences between the US FARA and Russian/Russian-style Foreign Agents laws, as highlighted by the Venice Commission and others, underscore concerns about the Georgian legislation.

The scrutiny and criticism from CSOs and independent media have visibly bothered Georgian Dream politicians in the past few years. The law conveniently serves two purposes: distracting and weakening critics ahead of parliamentary elections this October and appeasing the Kremlin. Georgian Dream’s hostile rhetoric towards CSOs provides enough reason to believe that increased transparency, a declared goal of the law, is merely a cover-up. Even if Georgian Dream genuinely pursued this goal, they failed to substantiate that interference with the right to association through this law was necessary and proportionate, in line with Georgia’s human rights commitments and aspirations for EU membership.

Georgian Dream did not wait for the opinion of the Venice Commission on the bill expected in June and pushed forward with its adoption. However, in commenting on the Russian version of the law, the Venice Commission and the European Court of Human Rights (in Ecodefense and others v Russia, the ruling of 14 June 2022) had already raised concerns about its vagueness, absence of safeguards against arbitrary exercise of wide discretion by the executive, as well as the absence of a convincing explanation as to why the measures envisaged by the law were necessary to achieve the transparency goal and as to their proportionality. These concerns are pertinent to the Georgian law as well.

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Removing the term “agents of foreign influence” from the final version of the law does not alleviate the stigma or lessen the burden on entities receiving foreign funding. The alternative term “organisations pursuing the interests of the foreign power” carries negative connotations as well. The law still equates acceptance of foreign funding with action in foreign interest and does not envisage any further inquiry as to whether the entity in question fulfilled the orders or was under direct control of the foreign funder.

As already argued elsewhere, the information about foreign funding is publicly available in line with other existing legislation which renders reporting requirements under the new law redundant. Broad monitoring powers of the Ministry can easily be used selectively and abused to target entities criticising the government. Although less far-reaching than the Russian law in some respects (for example, it does not envisage dissolution or criminal sanctions and does not extend to individuals), the Georgian law still imposes a significant burden on CSOs and independent media in view of the additional resources needed to fulfil its requirements and sizeable fines for non-compliance.

How did we get here?

Over the past decade, Georgia has witnessed the gradual oligarchization of governance. Bidzina Ivanishvili, a billionaire with Russian connections and a founder of the ruling Georgian Dream, has governed largely informally and without any accountability. Georgian Dream has systematically dismantled checks and balances so that actors meant to sanction governmental abuse were rendered powerless. They achieved this goal by (a) placing loyalists in key institutions and (b) attacking, seeking to weaken, or intimidate critics. Because this process was gradual, the rule of law decline was not immediately noticeable.

Reforms often masked informal power dynamics detrimental to the rule of law and created an illusion of governmental willingness to address concerns in this respect. Despite formal safeguards, the de facto politicisation of the judiciary persisted. Legislative changes were delayed and/or incomplete. The resulting loopholes in laws enabled oligarch-friendly judges to monopolize positions of power in the judiciary and pack courts with loyal cadre, including at the Supreme Court level, through processes that, according to ODIHR, lacked objectivity and credibility.

The collusion between these influential judges in positions of power and Georgian Dream politicians allowed the ruling party to influence judicial behaviour on and off the bench indirectly, as needed, including in politically sensitive cases. Unsurprisingly, Georgian Dream politicians and influential judges used almost identical argumentation to contest the appropriateness of subjecting the Supreme Court judges, judicial council members and court presidents to integrity checks with the involvement of international experts, as demanded by the European Union.

Appointments to the Constitutional Court of judges closely affiliated with judicial oligarchs, alongside political appointees, arguably made the court more deferential over time as well. The politicisation of the Prosecutor’s Office is another issue, resulting in the call for changing the appointment procedure of the Prosecutor General from a simple to a qualified majority and increasing individual independence of prosecutors.

In 2022, Georgian Dream abolished the State Inspector’s Office, an independent agency investigating allegations of human rights violations by law enforcement and other public officials. The appointment of former politician and MP Levan Ioseliani as ombudsperson in 2023 further weakened oversight mechanisms.

In sum, recent developments are part of a systemic strategy to undermine governmental accountability. Georgian Dream’s reluctance to acknowledge systemic issues, including in the justice system, signals a determination to retain power at the expense of the rule of law.

What is next?

According to the Georgian Constitution, the Parliament is required to send the law to the President within 10 days. The President then has two weeks to either sign the law or return it to the Parliament with comments. The President has stated her intention to veto the transparency of foreign influence law; she has ruled out any negotiations with the ruling party regarding specific aspects of the law to mitigate its damaging effects, as the law is deemed unacceptable, a view shared by Georgian CSOs. While the presidential veto may not block the law’s adoption – as Georgian Dream can easily override it with the same number of votes – it could potentially delay the process, providing more time to protestors and the international community to exert pressure and achieve the withdrawal of the bill.

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Recent polls by the National Democratic Institute indicate that eighty-one percent of Georgians support European integration. Georgian Dream’s determination to push the law, despite its ramifications for Georgia’s European aspirations, is alarming. To prevent further erosion of the rule of law, targeted financial sanctions and travel restrictions, as called for by Freedom House and other CSOs, may be necessary. Previous developments have shown that even if Georgian Dream yields to the pressure and drops the law, sustained vigilance will be essential to thwart similar efforts in the future and to reverse some of the systemic damage to the rule of law, particularly if Georgian Dream retains power after the parliamentary elections in October. If Georgian Dream does not prevail in the elections, the restoration of the rule of law will neither be swift nor easy, due to the extent of the rule of law erosion that has already taken place.

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