Why Should I be interested in this topic? 

• Practically every social group as well as international partners consider the agents’ draft law incompatible with the national, social, and political interests of the country. It is indisputable that this initiative is also in fundamental contradiction with the Constitution of Georgia. 

Our comment 

• The position and arguments of the parliamentary majority regarding the foreign influence agents are problematic not only because of political context and negative impact on the European perspective of Georgia, but it is clearly incompatible with the Constitution of Georgia.
• In particular, the initiative supported by the Parliamentary Majority is in contradiction with the essence of the Georgian Constitution, as well as with the freedom of association, right to protection of personal data, and equality. 

Freedom of association

The Constitution of Georgia protects the freedom of association that according to the interpretation of the Constitutional Court is of an utmost importance in the light of establishing democratic and free society. The court notes that “the action of the authorities when restricting or prohibiting an association or information having particular aim or content shall be subject to strict scrutiny”. 

The so-called initiative on the Agents interferes with the freedom of association, due to the following reasons: 

• Creates a hostile environment for organisations; 
• Limits accessibility to the sources of financing; 
• Imposes complicated reporting requirements;
• Determines a power of governmental inspections;
• Determines strict administrative sanctions. 

The problem of the constitutionality of the draft law is related to the lack of appropriate justification and legitimate purpose. Abstract fears and hypothetical threats cannot serve as a basis for restricting the right. Exactly this kind of spirit underpins the draft law - there is no connection between security interests and the necessity to adopt the draft law. Such gross interference with the freedom of association ultimately threatens the exercise of freedom of opinion and expression as well. In the case against Russia, the European Court of Human Rights found violation of the right to association “in the light of the interpretation of freedom of expression.” In a number of other cases, the Court has noted that the protection of freedom of expression within the framework of the Convention is one of the objectives of the right to association. A similar interpretation was made by the Venice Commission in its published opinion on the Hungarian law. 

The right to protection of personal data 

The Ministry of Justice was given the authority to identify and monitor agents of foreign influence and for this purpose obtain any kind of data, including personal data. Article 15 of the Constitution of Georgia declares the inviolability of a person‘s private and family life. According to the constitution, this right may be restricted “for ensuring national security or public safety, or for protecting the rights of others, insofar as is necessary in a democratic society”. The initiated bill grossly violated this provision. There was no solid, clear, and substantiated relation between the increased powers of the Ministry of Justice and any grounds for limiting the right. 

A mere reference to the reinsurance of security risks in the rhetoric of the parliamentary majority cannot justify the interference with the right to private life. This legitimate aim must be supported by a proper justification of unavoidable necessity and a proportionate measure. The purpose of ensuring security by the draft law was based solely on the fact of foreign funding and on this basis, it made possible the uncontrolled processing of personal data. Such generalization is against the logic, principles, and provisions of the Constitution. The onus is on the state to prove that the presence of foreign funding itself poses security risks. If this were possible, then the existing legal regulation of the transnational circulation of capital in general would also be called into question. 

Right to equality 

The mentioned draft law is also in contradiction with the right to equality, as it selectively applies only to those organizations that receive more than 20% of their funding from foreign sources. A reasonable basis must be provided for differentiation to be justified. According to the draft law, its purpose is to ensure transparency. However, no assessment of any European organization, court or institution can be found that considers the differential treatment of a specific group to be permissible on the basis of the interest of transparency. Even if it were the case, it would be unclear why the transparency argument would not apply to others, such as those financed by private individuals/businesses (both from abroad and in the case of domestic money circulation). Thus, it is indisputably discriminatory.

The status of the agent

Beyond the legal argument, the political and historical meaning that the word “agent” carries in the post-Soviet environment is important. In Georgia, it is perceived as a synonym for a spy and inherently causes a negative association in society. Such stigmatization of specific groups and people in society will cause to have the so-called “chilling effect”, which, according to the interpretation of the Constitutional Court, is one of the indications of the unconstitutionality of the provision. A manifestation of the chilling effect would be that, in order to avoid being granted the agent status, organizations would refuse to register, which would lead to sanctions being imposed on them. Eventually, the financial burden may push organizations to the brink of closure. 

The above-indicated arguments are found in the practice of the European Court of Human Rights and the Court of Justice of the European Union. The latter repealed the Hungarian law in 2020. The former made a similar decision in relation to the Russian Federation. This is particularly important in light of Article 78 of the Constitution of Georgia which declares integration into the European Union and the Euro-Atlantic Alliance as the supreme objective. The initiative supported by the parliamentary majority is completely incompatible with this spirit of the Constitution. 

The article was prepared by the Komentari with the support of the USAID Rule of Law Program funded by the United States Agency for International Development (USAID) through the East-West Management Institute (EWMI). The views expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of USAID and EWMI.