Why Georgia’s Law on Transparency Violates the Constitution

Since the spring of 2024, the political landscape of Georgia has been experiencing turbulent times. The so-called law “On Transparency of Foreign Influence (“Law on Transparency”) has, for the second time, caused huge public tension. Since gaining independence, the country has seldom witnessed such large-scale peaceful protests involving hundreds of thousands of peaceful protesters on the streets. Unlike in the spring of 2023, the ruling party has firmly maintained its position. Despite widespread citizen protests and stern warnings from partner countries and international organizations – including the UN, Council of Europe, EU, OSCE/ODHIR, and the Venice Commission – the Parliament overrode the President’s Veto. Consequently, the Speaker of the Parliament signed the Law on Transparency.

As a result, negotiations regarding Georgia’s accession to the European Union have been halted.  Legal actions against the Law on Transparency have been initiated by the President of Georgia,¹⁾ 122 non-governmental organizations²⁾, and the parliamentary opposition³⁾, all of which have filed lawsuits in the Constitutional Court of Georgia. Should these lawsuits be unsuccessful, the appellants plan to take their case to the European Court of Human Rights (ECtHR) in Strasbourg, which has previously adjudicated similar cases. For example, in  “Zhdanov and Others v. Russia”,⁴⁾ the ECtHR ruled that refusal to register associations in comparable circumstances was “discriminatory if it has no purpose and justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim thought to be realized.”⁵⁾  The Court of Justice of the European Union has also addressed an identical case against Hungary.⁶⁾ However, as Georgia is not an EU member state, it does not fall under the jurisdiction of the ECJ.

This blogpost will explore issues and perspectives indicating that the Law on Transparency contravenes the Constitution of Georgia and therefore the will of the Georgian people reflected in it. The “Law on Transparency” contradicts i) the rights of individuals, b) the rights of non-commercial and media organizations guaranteed by the Constitution of Georgia, and ii) the country’s constitutional commitment to European integration.

Rights of individuals

Interference in an individual’s private life is highlighted by the reference in Article 8, paragraph 3 of the “Law on Transparency” to Article 3, subparagraph b) of the Law on Personal Data Protection. This includes sensitive personal data such as race or ethnicity, political opinions, religious or other beliefs, membership in professional organizations, health, sex life, and genetic identification data. Such interference is arbitrary and cannot be justified. This legal provision also violates Article 15 of the Constitution of Georgia, which protects the rights of personal and family life, the rights of personal space, and privacy of communication.

For example, while such sensitive information previously could be accessed only through stringent criminal legal procedures, this law arbitrarily permits access to the most protected personal data, thereby violating the right to human dignity as it touches upon highly personal areas of life that belong to the intimate sphere. It effectively implements a procedure akin to criminal law without the safeguard mechanisms, such as judicial involvement  (Article 9 of the Constitution of Georgia).

Furthermore, this law disproportionately limits the rights of vulnerable groups, such as those living in the occupied territories of Georgia. As is well known, Georgian territories are occupied by Russia. People living on this territory receive substantial support from the Georgian non-governmental sector, particularly in education, healthcare, assistance with domestic violence issues, and initiatives to start professional, cultural, and artistic endeavors. Many of these grant projects are financed by the European Union, individual EU countries, and US funds. The beneficiaries of such projects often maintain confidentiality to protect their identities, as disclosing this information could endanger their lives and physical well-being under the de facto regime in the occupied territories. Thus, the reference to personal data in paragraph 3 of Article 8 of the “Law on Transparency” violates their rights to life and physical integrity (Article 10 of the Constitution of Georgia).

Consequently, these vulnerable groups are likely to cease participation in such beneficial projects, which would significantly impact their well-being and hinder the integration process of the occupied territories with Georgia.

Additionally, the “Law on Transparency” also violates constitutional principles of non-retroactivity and trust (paragraph 9, Article 9 of the Constitution of Georgia). If individuals participating in grant projects had known that their data would be made public, thereby endangering their lives, they might have refrained from participating in such NGO-led initiatives.

Rights of NGOs and media organizations

The main target of this law still is civil society and media organizations. The “Law on Transparency” mandates the creation of a registry for non-governmental organizations (non-commercial organizations; broadcasting entities, press, and internet domain owners or users) that receive more than 20% of their total income from a “foreign power” within a calendar year. Such organizations are required to register “as an organization carrying out the interests of a foreign power” and to publish their registration and other documents.

The designation of “organization carrying out the foreign power” imposes a stigma on these entities and violates their social identity by subjecting them to harmful reputational and social image evaluations. This stigmatization violates their constitutional rights, including the right of association (Article 22 of the Constitution of Georgia) and the right to freedom of opinion, information, mass media and the internet (Article 17).

The law’s strict and arbitrary monitoring mechanism is indicative of a repressive system, requiring the immediate provision of information regardless of the volume or the time needed for retrieval and processing. The norms do not consider any meritorious circumstances or hardships. Failure to provide the requested information immediately results in a fine of 5000 GEL. An appeal does not halt the fine’s enforcement.  This financial burden can be devastating, especially for small-scale non-governmental, non-profit legal entities, as they may incur multiple fines simultaneously.

The punitive nature of these fines is evident in Article 9 of the “Law on Transparency”, which imposes disproportionately high fines (ranging from 5000 to 25000 GEL).  For instance, while a public/government official may be fined 1000 GEL for failing to fulfill declaration duties, an NGO or an individual faces a fine of 5000 GEL for the same infraction. Moreover, public/government servants are salaried from taxpayer funds. The issue of reputation and high fines is particularly critical for organizations monitoring the parliamentary elections of October 2024. Labeling these organizations as entities carrying out foreign interests will significantly hinder their ability to attract the thousands of observers needed for election monitoring.

Georgia’s constitutional obligation regarding integration into the Euro-Atlantic space

Integration into the European Union is a national interest explicitly declared by the Georgian Constitution, the Parliament, the Government, and the vast majority of the Georgian people. All state bodies support the European integration process, as enshrined in Article 78 of the Georgian Constitution, which mandates that state bodies take measures to promote integration within their competence. The European Council, in its conclusions from the meeting on June 27, 2024, halted negotiations with Georgia regarding its candidacy for accession, citing the detrimental effects of the Law on Transparency, as well as increasing acts of intimidation, threats, and physical assaults against civil society representatives, political leaders, civil activists, and journalists.⁷⁾

Therefore, it is clear that the adoption of the “Law on Transparency” is not only a gross violation of one of the main goals of Article 78 but also constitutes a significant obstacle to Georgia’s full integration into the European Union. This law creates serious or irreparable barriers on our path to European integration, demonstrating that the Georgian government is in violation of Article 78.

Where and how?

Georgia is now at a historical crossroads. Since the 17th century, the country has patiently pursued a path toward Europe. However, the Russian occupation in the last century separated us from this path for 70 years. Today, we are facing a similar challenge as we did in 1921. At that time, Russia emerged victorious, but now it is time to make a decision that aligns with the best interests of the Georgian people.

The “Law on Transparency” represents more than a mere legal issue; it symbolizes the country’s choice between totalitarianism and democracy.  The Constitutional Court now has the opportunity to enforce the true will of the Georgian people.  Additionally, the upcoming elections on October 26, 2024, will once again affirm that the Georgian people’s true will is reflected in the preamble of the Constitution of Georgia, which aims to “establish a democratic social order, economic freedom, and a legal and social state”.