Statement of Public Defender’s Office on Draft Law of Georgia on Transparency of Foreign Influence
The Public Defender’s Office is echoing the draft law of Georgia "On transparency of foreign influence" and considers that the proposed document does not comply with international or domestic human rights standards and is incompatible with the basic principles of a modern democratic state.
To ensure transparency, the above-mentioned draft law provides for the registration of non-entrepreneurial (non-commercial) legal entities and media outlets as "agents of foreign influence" if they receive some of their funding from abroad. According to the bill, such legal entities shall be subject to financial reporting obligations, which include, inter alia, providing information on the amount and purpose of any funds spent in the previous calendar year. The bill also provides for making this information public. In order to identify the "agent of foreign influence", the Ministry of Justice of Georgia will have the opportunity to carry out monitoring, within the framework of which, it will be granted the authority to process all necessary information, including personal data. The bill also gives the Ministry the power to impose fines and force the registration of organizations. The Public Defender’s Office points out that freedom of association and expression guaranteed by the Constitution of Georgia is a vital prerequisite for the existence of a democratic society, which enables non-governmental and media organizations to jointly contribute to the promotion of democracy, the rule of law and realization of human rights. The UN Declaration on Human Rights Defenders grants such associations the right to solicit, receive and utilize resources (including to receive funding from foreign sources) for the purpose of carrying out their activities. At the same time, States are responsible to create a safe and enabling environment in which human rights defenders can operate free from hindrance.
In light of freedom of association and expression, as well as the right to privacy, similar regulations reflected in the legislation of the Russian Federation and Hungary have been criticized by the European Court of Human Rights, the Court of Justice of the European Union, the OSCE Office for Democratic Institutions and Human Rights (ODIHR), the Council of Europe Commissioner for Human Rights, the Venice Commission and the UN Special Rapporteur.
In particular, pursuant to the assessment of the OSCE/ODIHR, human rights defenders invariably become targets of stigmatization and smear campaigns that can be launched in various countries, inter alia, by adopting legislative regulations to label them as “foreign agents”. International organizations point out that defining the status of organizations in this way creates an atmosphere of distrust, fear and hostility towards them. According to the Venice Commission, by bringing back the rhetoric used during the communist period, this term stigmatizes civil society to which it is applied, tarnishing their reputation and seriously hampering their activities. As stated in the relevant opinion of the Human Rights Commissioner of the Council of Europe, taking into account the historical context, a "foreign agent" may be associated with a "foreign spy" or a "traitor", which will complicate their cooperation with society and especially government officials, and as a result, their involvement in political life. According to the European Court of Human Rights, the use of this term is an unjustified interference with freedom of association, insofar as it creates the impression that the corresponding organizations are under foreign control. The Venice Commission's assessment is also noteworthy, which maintains that registering organizations as foreign agents without their consent amounts to a disproportionate interference with the right to freedom of association and expression, and this possibility should not be established by law.
Taking into account Article 78 of the Constitution of Georgia, the decision of the Court of Justice of the European Union merits particular emphasis, which considered the similar regulations in Hungary inconsistent with the EU law and fundamental principles.
Special attention should be paid to the fact that the bill creates the basis for the collection and publication of a large amount of personal data on persons considered to be "agents of foreign influence" or those in varying relationships with such persons. In addition to potentially imposing an unjustified organizational burden on organizations and detracting them from their core activities, it may contravene the right to privacy by creating the possibility of processing and disclosing the personal data of any individual who has any form of employment or service contractual relationship with these organizations.
It should be noted that ensuring the transparency of the activities of associations constitutes an important legitimate aim and pertinent legal regulation for achieving this goal, as well as the tool for collecting, analyzing and reporting information on foreign aid (eAIMS), is not unknown to Georgia as well. However, in order for the proposed interference with human rights to be considered justified, it must be necessary due to "pressing social need" and at the same time, the restrictive measures and accompanying procedures must not be disproportionate, which, according to the assessment of the Public Defender's Office, is not met by the draft law.
Taking into account all the above, we consider that the adoption of the draft law will not be in line with human rights standards.
 UN Declaration on Human Rights Defenders, Article 13.
 UN Human Rights Council, Resolution on the Protection of Human Rights Defenders, 12 April 2013,
A/HRC/RES/22/6, para. 2.
 OSCE/Office for Democratic Institutions and Human Rights (OSCE/ODIHR), Guidelines on the Protection of Human Rights Defenders, 2014, para. 120, para. 214, available at: < bit.ly/3k9b94y > [16.02.2023].
 Joint Interim Opinion of the OSCE/ODIHR and the Venice Commission on the Draft Law Amending the Law on Non-Commercial Organisations and other Legislative Acts of the Kyrgyz Republic, CDL-AD(2013)030, 16 October 2013, para. 47, available at: < bit.ly/3S1UvQU > [16.02.2023].
 Opinion of the Venice Commission on the law of the Russian Federation on Foreign Agents, CDL-AD(2014)025, 17 June 2014, para. 132, available at: < bit.ly/3K8mahi > [16.02.2023].
 Opinion of the Commissioner for Human Rights of the Council of Europe on the legislation of the Russian Federation on Non-Commercial Organisations, CommDH(2013)15, 15 July 2013, para. 57, available at: < bit.ly/3K6LDYu > [16.02.2023].
 Judgement of the European Court of Human Rights of June 14, 2022 in the case of Ecodefense and Others v. Russia, Fri. 136.
 Opinion of the Venice Commission on the law of the Russian Federation on Foreign Agents, CDL-AD(2014) 025, 17 June 2014, para. 63 and para. 134.
 Judgement of the Court of Justice of the European Union of June 18, 2020 in the case European Commission v Hungary.
 Judgement of the European Court of Human Rights of June 14, 2022 in the case of Ecodefense and Others v. Russia, para. 159.
 Judgement of the Court of Justice of the European Union of June 18, 2020 in the case European Commission v Hungary, para. 120-134.
 Article 32 of the Tax Code of Georgia, <https://matsne.gov.ge/document/view/1043717?publication=194>
 The eAIMS (e-Aid Information Management System) system, created jointly by the Ministry of Finance of Georgia, the Office of the State Minister of Georgia for European and Euro-Atlantic Integration, and the Administration of the Georgian Government, is an information collection, analysis, and reporting tool aimed at improving transparency, accountability, and effectiveness of international aid flows (development assistance) to Georgia, <https://eaims.ge/>