On October 9, the Georgian Constitutional Court announced its decision to accept for substantive consideration parts of the appeals against the Foreign Agents Law, but not to grant the petitioners’ request to suspend the validity of the disputed norms pending the final decision on the case.
The preliminary hearing on the lawsuits against the Foreign Agents Law filed by President Zurabishvili, 121 civil society and media organizations, opposition MPs, and two journalists, all combined in a single case, were held from August 29 to 31.
The Court found that the applicants hadn’t provided sufficient evidence that the organizations, which will have to continue their work as ‘foreign agents’, will suffer substantial reputational damage for the law to be suspended before the Court makes a final ruling. The Court noted that if it finds the law to be unconstitutional, the situation will return to what it was before the law was enacted, so the reputational damage will be gone.
The Court also found that since the Ministry of Justice has not yet started monitoring any organization, “there is no imminent threat” that this monitoring process will interfere with the organization’s work process, and therefore it can’t be the reason for the law to stop working. The same goes for the fines against an organization that could stop its work, on which the court states that since no fines have been issued yet, there is no reason to put a stop to the law.
On the point that the Foreign Agents Law must be stopped before the Court’s final ruling because it contradicts Georgia’s goal of EU integration, enshrined in Article 78 of the Constitution, the Court stated that there wasn’t enough evidence that the Court’s final ruling would be insufficient to restore the EU integration process if it had been stopped because of this law.
The Court further claims that “even if the court suspends the operation of the law, it cannot remove it from the legal space, nor can it create a legitimate expectation that it will be recognized as unconstitutional.” It then concludes: “Accordingly, no justification has been provided as to why suspending the operation of the law pending a substantive review will ensure the dangers of worsening relations with the European Union. Even if one shares the applicant’s argumentation regarding the dangers posed by the Law, it is clear that the results the applicant wishes to achieve are linked to the recognition of the unconstitutionality of the disputed norms and not to their temporary suspension.”
Notably, Judges Giorgi Kverenchkhiladze and Teimuraz Tughushi have issued a dissenting opinion on the non-satisfaction of the plaintiff’s request for suspension of the disputed norms, and Judge Eva Gotsiridze has issued a dissenting opinion on the acceptance of the constitutional complaints No. 1828 and No. 1834 “On Transparency of Foreign Influence” in relation to Article 78 of the Constitution of Georgia, as part of the request for recognition of the law as unconstitutional. The dissenting opinions aren’t publicly available yet.
Parts of the appeals weren’t accepted for substantive consideration:
- Whether the first part of the second article of the Agents’ Law, which states that those non-commercial organizations that are not established by an administrative institution, the Georgian Sports Federation or a blood institution and receive more than 20% of their funding from abroad are “foreign powers”, contradicts the 12th article of the Constitution on the “Right to Free Personal Development”;
- Whether the articles requiring an organization to disclose private information, including financial statements and personal information of its employees, and in the case of refusal, to pay the fine of GEL 5,000, contradicts the 15th article of the Constitution on “Rights to personal and family privacy, personal space and privacy of communication“;
- Whether the articles on media organizations falling under the category of Foreign Agents contradicts the second and third sentence of the third part of article 17 of the Constitution, that says that “Censorship shall be inadmissible. Neither the State nor individuals shall have the right to monopolize mass media or the means of dissemination of information.”;
- Whether the articles of the law contradict part 2 Article 22 on Freedom of association, which states that “an association may only be dissolved by its own or a court decision in cases defined by law and in accordance with the established procedure.” As well as, whether some of the articles contradict the first part of the same article, which states: “Freedom of association shall be guaranteed.”
- Whether the Article 8 of the Agents’ law, which provides that the monitoring of an organization may be initiated based on a decision of a person authorized by the Ministry of Justice of Georgia or a letter of the same Ministry, is in contradiction with the first, second, third and fifth parts of Article 17 of the Constitution, as well as the first part of Article 22.
Applicants’ Reactions to the Decision
Nona Kurdovanidze, Chair of the Georgian Young Lawyers’ Association (GYLA): “The Constitutional Court had a historic opportunity to speak out against the Russian law, to act in accordance with the Constitution and to suspend the norms. Unfortunately, the Constitutional Court did not fulfill the function assigned to it. However, we will not stop our struggle against the Russian law and we will definitely achieve its unconditional abolition.”
Nino Dolidze, Head of the International Society for Fair Elections And Democracy (ISFED): “The Constitutional Court did not suspend the operation of the norms of the Russian law. It is regrettable that the court did not use this opportunity to make a significant contribution to the democratic and European development of the country. Perhaps we even expected this. We will certainly continue to fight against the Russian law.”
Tamar Kordzaia, One of the Leaders of Coalition “Unity”: “The Georgian Constitutional Court followed the path of the Russian Constitutional Court. The judges of the Georgian Constitutional Court shared the fate of the 84 deputies who treacherously, following Russian orders, adopted the so-called Russian law, as they call it, the “Transparency Law”. Sadly, the Constitutional Court did not dare to suspend the law and it is very sad that it does not dare to recognize the harmful consequences of this law both from the European perspective and from the perspective of the destruction of civil society. I am sorry that in this country there were no judges of the Constitutional Court to protect the interests of the state, but on October 26, the citizens of Georgia will protect this country, this country’s democracy, and this country’s European perspective.”
Also Read: