The Georgian Constitutional Court announced on October 9 that it had decided to accept certain appeals against the Foreign Agents Law for substantive consideration, but to deny the petitioners’ request of suspending the validity of disputed norms until the final decision in the case.
The preliminary hearings on the lawsuits filed against the Foreign Agents Law by President Zurabishvili and 121 civil society, media, and opposition MPs were held between August 29 and 31.
The Court determined that the applicants had not provided enough evidence that the organizations that will continue to work as ‘foreign agent’ will suffer substantial reputational damages for the law to suspend before the Court makes its final ruling. The Court noted that, if the law is found to be unconstitutional by the Court, the situation will return back to the way it was before it was enacted. Therefore, any reputational damage caused will be gone.
The Court also found out that, since the Ministry of Justice had not yet begun monitoring any organizations, “there isn’t an imminent threat” of this monitoring process interfering with the organization‘s working process and, therefore, it couldn’t be a reason for the law’s inaction. The court also stated that fines against organizations that could stop their work are not a reason to stop the law, since they haven’t been issued yet.
The Court said that there was not enough evidence to show that the Court’s final decision would not be sufficient to restore the EU Integration process if the law had been stopped.
The Court also claims that “even though the court suspends its operation, it cannot remove the law from the legal space nor can it create legitimate expectations that it will be recognised as unconstitutional.” Finally, it concludes that “no justification has yet been provided for why suspending the law’s operation pending a substantive assessment will increase the risk of worsening relationships with the European Union.” Even if you agree with the applicant’s argumentation about the dangers of the Law, the results that the applicant wants to achieve are not linked to a temporary suspension.
Notably, the judges Giorgi Kverenchkhiladze, Teimuraz Tuhushi, and Eva Gotsiridze have issued dissenting opinions on the non-satisfaction to the plaintiff’s demand for suspension of disputed norms. 1828 and No. 1834 “On the Transparency of Foreign Influence”, in relation to Articles 78 of Georgia’s Constitution, as part of a request for recognition of this law as unconstitutional. The dissenting views are not yet publicly available.
Some parts of the appeals were not accepted for substantive consideration
* Does the first part of article 2 of the Agents’ Law which states that non-commercial organizations not established by administrative institutions, the Georgian Sports Federation, or a blood institution that receive more than 20 percent of their funding from outside are “foreign power” contradict the 12th Article of the Constitution regarding the “Right to Free Personal Development?”
* Whether or not the articles that require an organization to reveal private information, such as financial statements and the personal information of their employees, and if they refuse, to pay a fine of GEL 5, 000, are in contradiction with the 15th Article of the Constitution, which is about “Rights to privacy and personal space, privacy of communication, and rights to privacy for family members”;
* Whether or not the articles on media organisations falling under the category Foreign Agents contradict the second and third sentences of the third part article 17 of Constitution that states that “Censorship is inadmissible.” The State or individuals cannot monopolize the mass media, or the means for dissemination of information.
* Whether certain articles of the law are in contradiction with part 2 of Article 22 on Freedom Of Association, which states “an association can only be dissolved in cases defined by the law and according to the established procedures.” Also, if some articles contradict the first half of the same article which states “Freedom of Association shall be guaranteed.”
* Is Article 8 of Agents’ Law, which states that monitoring of an organization can be initiated on the basis of a decision of person authorized by the Ministry of Justice of Georgia, or a letter from the same Ministry in conflict with the first, second third and fifth parts of Article 17 of Constitution, as well the first part of Article 22,
Reactions of the Applicants to the Decision
Nona Kurdovanidze is the Chair of the Georgian Young Lawyers’ Association. She said: “The Constitutional Court was given a historic chance to speak out against Russian law, act in accordance to the Constitution, and suspend the norms. Unfortunately, the Constitutional Court failed to fulfill its function. We will not give up our fight against the Russian law. We will achieve its unconditional abolition.”
Nino Dolidze is the head of the International Society for Fair Elections and Democracy (ISFED). “The Constitutional Court has not suspended the operation of Russian law norms. It is regrettable that this court did not take advantage of this opportunity to contribute significantly to the democratic and European growth of the country. We may have even expected it. “We will continue to fight against Russian law.”
Tamar Kordzaia is one of the leaders of the coalition “Unity”. She says: “The Georgian Constitutional Court has followed the path set by the Russian Constitutional Court. The judges of Georgia’s Constitutional Court share the fate of 84 deputies, who, treacherously following Russian orders, adopted what they call the “Transparency Law”, the so-called Russian Law. The Constitutional Court has not suspended the law, and it’s sad that they don’t recognize the damaging consequences of this law from both the European perspective and the perspective of the destruction civil society. I am sorry there are no judges in this country to protect the interests and values of the state. But on October 26, Georgians will protect their country, its democracy, and its European perspective.
* 02/10/2024: First entries in Foreign Agents Registry appear as Constitutional Court remains silent
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