Irakli Kobakhidze: “The Georgian draft law, initiated by the Power of the People, is fully in line with human rights standards.”
Verdict: FactCheck concludes that Irakli Kobakhidze’s statement is a LIE.
Resume: The standards established by the European structures illustrate that laws on the so-called foreign agents are incompatible with human rights and undermine the principles of a democratic society. The same can be said about the Georgian Dream’s draft law which is irreconcilable with the EU’s legal system. This is attested to by the latest statements from Georgia’s strategic partners (EU, CoE, UN, USA) where they unequivocally indicate that the initiated draft law is Russian and is not in line with the values and the principles of the EU.
Given the aforementioned, FactCheck concludes that Irakli Kobakhidze’s statement that the draft law initiated by the Power of the People is fully in line with human rights standards is a LIE.
Analysis
On 14 February 2023, the Power of the People, which is part of the Parliamentary Majority, initiated the draft Law on Transparency of Foreign Influence to the Parliament of Georgia. According to the draft law, a special register for agents of foreign influence will be created in order to ensure the transparency of foreign influence where all non-entrepreneurial legal entities and media organisations receive more than 20% of their non-profit income from abroad. The Georgian Dream supported the draft law.
According to the assessment of the Georgian Dream Chairperson, Irakli Kobakhidze, the US analogue of the draft law is fully incompatible with human rights standards and it resembles a Russian law: “I was rereading the American law and it is a total catastrophe. I can say directly as a lawyer and a human rights specialist that it is a total catastrophe. We at the Parliament of Georgia would not really have the nerve to adopt such a law.” Mr Kobakhidze also added that the “draft law prepared by the Power of the People is fully in line with human rights.”
FactCheck verified Irakli Kobakhidze’s statement.
What the Draft Law Says
The draft law introduced the idea of an agent of foreign influence and it is defined as follows:
a) Any NNLE which is not created by an administrative body which is a sports federation… that receives more than 20% of its total revenues during a calendar year from a foreign power.
b) A TV channel that receives more than 20% of its total revenues (except for revenues from ads) during a calendar year from a foreign power.
c) A legal entity which owns a print or an internet media outlet operating in Georgia and which receives more than 20% of its total revenues (except for revenues from ads) from a foreign power.
Foreign power should be considered as a source of revenue for a respective entity if:
a) This entity directly or indirectly took revenue from a foreign power.
b) This entity directly or indirectly took revenue from a legal entity which directly or directly took revenue from a foreign power.
c) The source of the aforementioned revenue is not identified.
In regard to foreign power, it is defined as follows according to the draft law:
a) Agency of a foreign government.
b) Individuals who are not citizens of Georgia.
c) Legal entities that are not established based on Georgian legislation.
d) Organisations (including a foundation, association, company, union, etc.) or other associations of individuals established under the law of a foreign state and/or under international law.
An entity which meets the criteria of an agent of foreign influence will be obliged to register as an agent of foreign influence. It will also carry the obligation to include such information in the registration statement as identification data, information about any amount of money that was received/spent in the previous year as well as about source of any other material profit, amount and purpose.
An entity registered as an agent of foreign influence will be obliged to submit a financial statement electronically in January of each year. Of note is that the Ministry of Justice will be authorised to carry out monitoring any time in order to reveal an agent of foreign influence or verify how the requirements of this law are being observed.
Information included in the registrar of agents of foreign influence will be public.
The draft law envisions administrative penalties for non-compliance (such as evading to register as an agent of foreign influence or the failure to submit a financial statement) mostly in the form of different fines. The maximum amount of fine is GEL 25,000.
Is the Georgian Draft Law in Line with European Human Rights Standards?
The Russian and Hungarian models of the so-called foreign influence transparency laws received harsh criticism from the European structures because of their wording, aims and consequences (see FactCheck’s article). Since the Georgian version of the draft law bears numerous similarities with these laws, it is possible to discuss the extent to which this criticism can also be applied to the Georgian Dream-supported draft law.
Term of a “Foreign Agent”
As mentioned earlier, the Georgian version of the draft law defined the term of an “agent of foreign influence”. The similar term (“foreign agent”) is stipulated by the Russian law on so-called foreign agents and was widely rebuked by the European structures.
According to the 2014 Venice Commission’s opinion (about the Russian law), the registration of organisations that receive foreign funding as foreign agents cannot be deemed to be “necessary in a democratic society” as a means of ensuring financial transparency. The Venice Commission stated that the mere fact that an NGO receives foreign funding cannot justify it to be qualified as a “foreign agent.”
The document reads that in light of the very negative connotation of the label “foreign agent,” the immediate effect of the law is that of stirring suspicion and distrust among the public and of stigmatising NGOs, thus having a chilling effect on their activities.
The European Court of Human Rights (ECHR) also discussed the term “foreign agent.” In particular, the Court’s position was reflected in a ruling pertaining to the Russian law on so-called foreign agents.
According to the ECHR, the registration of “foreign agents” imposed restrictions on the involvement of NGOs in public processes and in the carrying out of their activities. The ruling also says that the creation of a “foreign agent” status was not necessary for a democratic society and the authorities failed to produce relevant and sufficient reasons for the enactment this law as well as not being able to demonstrate that the law contributed to improved transparency.
The OSCE Office for Democratic Institutions and Human Rights, as well as international human rights organisations such as Amnesty International and the International Commission of Jurists (ICJ), also underline that attaching a “foreign agent” (and other terms of similar meaning) label to NGOs contribute to stigmatising them.
Of note is that none of the EU member states has legislation which would label NGOs as “foreign agents.”
Given of all the aforementioned, it is possible to say that the Georgian Dream’s draft law contradicts the standards established by the European structures, especially in terms of the use of the “foreign influence agent” term.
Of additional note is that the main problem of foreign influence transparency laws, similar to the draft law pushed forward by the Georgian Dream, is not the term “foreign agent” or “agent of foreign influence.” For instance, the Hungarian law used the term of “foreign funding recipient organisation.” Although this term is relatively mitigated, the Venice Commission still considered it as stigmatising. Ultimately, because of this and other reasons and owing to strong international pressure, Hungary had to abolish the law stigmatising its civil sector.
Discriminatory Treatment
In 2020, the International Court of Justice (ICJ) made the following judgement in regard to the Hungarian Transparency of Organisations Supported from Abroad law: “By the imposition of obligations of registration, the declaration and publication of a list of certain categories of civil society organisations directly or indirectly receiving support from abroad exceeding a certain threshold and which provide for the possibility of applying penalties to organisations that do not comply with those obligations, Hungary has introduced discriminatory and unjustified restrictions on foreign donations to civil society organisations as well as to those who support them.”
The ICJ ruled that the law was discriminatory since it differentiated between organisations operating within the private sector under a similar mandate and scope by a specific, discriminatory ground and imposed limitations.
In addition, the ICJ also ruled that that Hungarian law contradicted the free flow of capital – one of the fundamental rights enshrined in the Treaty on the Functioning of the European Union [1]. According to the ICJ, the law envisaged differentiated treatment in regard to capital circulating within the country and capital coming from a foreign country because it was applied exclusively to those associations and foundations on account of the ‘foreign’ origin of the financial support made available to them.
The European Convention on Human Rights and the International Covenant on Civil and Political Rights, where Georgia is one of the signatories, also forbid discriminatory treatment in equal and similar situations. In one of its rulings, the ECHR clarifies that origin of an NGO should not become a legitimate ground for a different treatment. According to the assessment of the Venice Commission, this approach is extended to foreign funding as well.
These deliberations of the European courts and international legal norms, considering their nature, also apply to the Georgian draft law on foreign agents. It is possible to say that through the lenses of standards established by the European structures, the Georgian Dream’s draft law is discriminatory.
Restriction of Freedom of Assembly and Association
One of the important freedoms that may be restricted by the law on so-called agents is the freedom of assembly and association enshrined in Article 11 of the European Court of Human Rights.
The European Court of Human Rights has already ruled that the Russian law on “agents” violates this right. In particular, the Court ruled that combination of measures envisioned by the Russian law: the imposition of inspection, requirements for registration, sanctions and other restrictions directly affected NGOs and their activities and, as a result, some of NGOs even ceased to exist.
The International Court of Justice also ruled that the freedom of assembly and association was violated vis-à-vis the Hungarian law and noted that measures envisioned by the law contradicted Article 12 of the Charter of Fundamental Rights of the European Union.
Since the Georgian Dream-supported draft law also envisions a similar combination of restrictive measures, including the registration as foreign influence agents, snap inspections, sanctions, etc., it is possible to say that the Georgian Dream’s draft law also contradicts the freedom of assembly and association safeguarded by the European Convention on Human Rights.
Right to Protection of Personal Data and Personal and Family life
The ICJ also ruled that the Hungarian Law on the Transparency of Organisations Supported from Abroad contradicted the rights of personal data protection and privacy. The Court concluded that the publication of a financial statement envisioned by the Hungarian law curbed the aforementioned rights enshrined in Article 7 and Article 8 of the Charter of Fundamental Rights of the European Union because it stipulated making personal data public.
The draft law, proposed and supported by the Georgian Dream, also envisions the publicity of the personal data of those entities that will be registered as agents. In addition, the draft law authorises the Ministry of Justice to carry out monitoring at its convenience which in turn allows the collection and processing of an unknown volume of personal data. Therefore, it is possible to say that the Georgian Dream’s draft law also contradicts the European standards even in this regard. In particular, it breaches the right of personal data protection and respect to privacy.
Procedural Part of Adopting the Draft Law
In its opinion vis-à-vis the Hungarian law on transparency of foreign funding, the Venice Commission noted that prior to the adoption of the draft law, it was necessary to hold public consultations. As per the Venice Commission’s recommendations, as many representatives of civil society organisations as possible should be involved in the consultations since these are the organisations which can be affected if the law is adopted.
In contrast to this recommendation, there are no consultations in Georgia and the discussion on the Georgian Dream’s draft law happens amidst the protest rallies as well as verbal and physical confrontations in the Parliament. All strategic partners, most of the opposition parties and civil society responded and issued very harsh assessments to the initiation of the draft law.
On 2 March 2023, 36 people including media workers were arrested at the rally outside the Parliament to protest the draft law.
Context of the Adoption of the Draft Law
On top of problems related to the content of the draft law, it is important to understand the situation where the amendments were initiated.
In its opinion about the Hungarian draft law, the Venice Commission noted that certain provisions of the law can possibly be in line with the standards: “The context surrounding the adoption of the relevant law and specifically a virulent campaign by some state authorities against civil society organisations receiving foreign funding and portraying them as acting against the interests of society may render such provisions problematic, raising a concern as to whether they breach the prohibition of discrimination, contrary to Article 14 of the ECHR.”
The Georgian Dream and those MPs who formally split from the ruling party have long been vocally expressing their dissatisfaction vis-à-vis the NGO sector. Furthermore, they have been spearheading an undisguised smear campaign in recent years. Therefore, it is possible to say that the draft law slated for adoption ostensibly to ensure transparency is in fact part of a campaign targeting the NGO sector and serves to suppress those ideas which are unacceptable for the government instead of achieving the officially declared goals of the draft law.
Conclusion
The standards established by the European structures show that the so-called laws on foreign agents are incompatible with human rights and undermined the principles of a democratic society. The same can be said about the draft law of the Georgian Dream which is incompatible with the European Union’s legal system. It is also attested to by numerous assessments of the draft law from Georgia’s strategic partners.
As stated by the EU Ambassador to Georgia, Pawel Herczynski, the draft Law on the Transparency of Foreign Influence is incompatible with the EU’s 12 priorities. According to Ambassador Herczynski: “All I can say is that this initiative is at least incompatible with the EU’s 12 priorities. The first priority is media freedom and the second is civil society.” He also added that the initiated draft law is not in line with the EU’s values and principles.
Joseph Borrell, the European Union’s High Representative for Foreign Affairs and Security Policy, is also concerned with the initiation of the draft law. He reminded Georgia that creating a favourable environment for civil society and media freedom are part of the 12 priorities.
The US Ambassador to Georgia, Kelly Degnan, stated that the draft Law on the Transparency of Foreign Influence is a Russian law. According to her, this is definitely not about transparency, since donors operating in Georgia have very detailed accountability systems. Ambassador Degnan also noted: “This law is not the US law either. The American law is targeted at lobbyists and law firms that are hired by foreign governments to represent the political interests of those foreign governments.”
On 28 February 2023, in her letter to the Speaker of the Parliament, Shalva Papuashvili, incumbent CoE Commissioner for Human Rights, Dunja Mjatovic, expressed concerns about Russian-type draft law supported by the ruling majority and stated that if adopted this law could have a “serious chilling effect” on the activities of civil society in Georgia.
The Commissioner’s letter, in particular, reads: “The draft law appears to set a separate legal regime for such entities, subjecting them to additional reporting requirements, inspections and sanctions. I am concerned that such a legislative initiative presents a number of human rights issues in the light of the Council of Europe standards in the field of freedom of association and expression.”
Given all of the aforementioned, FactCheck concludes that Irakli Kobakhidze’s statement that the draft law initiated by the Power of the People is fully in line with human rights standards is a LIE.
[1] Article 63 of the Treaty on the Functioning of the European Union.
[2] CASE OF THE MOSCOW BRANCH OF THE SALVATION ARMY v. RUSSIA, 2007.
Editor’s Note:
Irakli Kobakhidze’s statement was given a FALSE verdict in the original version of this article. As a result of new analysis of the article, the verdict was changed from FALSE to a LIE. There were no substantial changes to the content of the article. The article was updated with additional sources.
