Why Georgia’s Regulation on Transparency Violates the Structure – Verfassungsblog – Cyber Tech

For the reason that spring of 2024, the political panorama of Georgia has been experiencing turbulent instances. The so-called legislation “On Transparency of International Affect (“Regulation on Transparency”) has, for the second time, induced large public pressure. Since gaining independence, the nation has seldom witnessed such large-scale peaceable protests involving a whole lot of 1000’s of peaceable protesters on the streets. In contrast to within the spring of 2023, the ruling occasion has firmly maintained its place. Regardless of widespread citizen protests and stern warnings from companion nations and worldwide organizations – together with the UN, Council of Europe, EU, OSCE/ODHIR, and the Venice Fee – the Parliament overrode the President’s Veto. Consequently, the Speaker of the Parliament signed the Regulation on Transparency.

Consequently, negotiations concerning Georgia’s accession to the European Union have been halted.  Authorized actions towards the Regulation on Transparency have been initiated by the President of Georgia,¹⁾ 122 non-governmental organizations²⁾, and the parliamentary opposition³⁾, all of which have filed lawsuits within the Constitutional Court docket of Georgia. Ought to these lawsuits be unsuccessful, the appellants plan to take their case to the European Court docket of Human Rights (ECtHR) in Strasbourg, which has beforehand adjudicated comparable instances. For instance, in  “Zhdanov and Others v. Russia”,⁴⁾ the ECtHR dominated that refusal to register associations in comparable circumstances was “discriminatory if it has no goal and justification; in different phrases, if it doesn’t pursue a official goal or if there may be not an affordable relationship of proportionality between the means employed and the goal considered realized.”⁵⁾  The Court docket of Justice of the European Union has additionally addressed an an identical case towards Hungary.⁶⁾ Nevertheless, as Georgia shouldn’t be an EU member state, it doesn’t fall below the jurisdiction of the ECJ.

This blogpost will discover points and views indicating that the Regulation on Transparency contravenes the Structure of Georgia and subsequently the need of the Georgian individuals mirrored in it. The “Regulation on Transparency” contradicts i) the rights of people, b) the rights of non-commercial and media organizations assured by the Structure of Georgia, and ii) the nation’s constitutional dedication to European integration.

Rights of people

Interference in a person’s non-public life is highlighted by the reference in Article 8, paragraph 3 of the “Regulation on Transparency” to Article 3, subparagraph b) of the Regulation on Private Information Safety. This consists of delicate private knowledge akin to race or ethnicity, political beliefs, non secular or different beliefs, membership in skilled organizations, well being, intercourse life, and genetic identification knowledge. Such interference is bigoted and can’t be justified. This authorized provision additionally violates Article 15 of the Structure of Georgia, which protects the rights of non-public and household life, the rights of non-public area, and privateness of communication.

For instance, whereas such delicate data beforehand may very well be accessed solely by way of stringent felony authorized procedures, this legislation arbitrarily permits entry to essentially the most protected private knowledge, thereby violating the best to human dignity because it touches upon extremely private areas of life that belong to the intimate sphere. It successfully implements a process akin to felony legislation with out the safeguard mechanisms, akin to judicial involvement  (Article 9 of the Structure of Georgia).

Moreover, this legislation disproportionately limits the rights of weak teams, akin to these residing within the occupied territories of Georgia. As is well-known, Georgian territories are occupied by Russia. Folks residing on this territory obtain substantial help from the Georgian non-governmental sector, notably in schooling, healthcare, help with home violence points, and initiatives to begin skilled, cultural, and inventive endeavors. Many of those grant initiatives are financed by the European Union, particular person EU nations, and US funds. The beneficiaries of such initiatives usually keep confidentiality to guard their identities, as disclosing this data might endanger their lives and bodily well-being below the de facto regime within the occupied territories. Thus, the reference to private knowledge in paragraph 3 of Article 8 of the “Regulation on Transparency” violates their rights to life and bodily integrity (Article 10 of the Structure of Georgia).

Consequently, these weak teams are more likely to stop participation in such helpful initiatives, which might considerably affect their well-being and hinder the combination strategy of the occupied territories with Georgia.

Moreover, the “Regulation on Transparency” additionally violates constitutional rules of non-retroactivity and belief (paragraph 9, Article 9 of the Structure of Georgia). If people collaborating in grant initiatives had identified that their knowledge could be made public, thereby endangering their lives, they could have avoided collaborating in such NGO-led initiatives.

Rights of NGOs and media organizations

The principle goal of this legislation nonetheless is civil society and media organizations. The “Regulation on Transparency” mandates the creation of a registry for non-governmental organizations (non-commercial organizations; broadcasting entities, press, and web area house owners or customers) that obtain greater than 20% of their complete revenue from a “international energy” inside a calendar 12 months. Such organizations are required to register “as a company finishing up the pursuits of a international energy” and to publish their registration and different paperwork.

The designation of “group finishing up the international energy” imposes a stigma on these entities and violates their social identification by subjecting them to dangerous reputational and social picture evaluations. This stigmatization violates their constitutional rights, together with the best of affiliation (Article 22 of the Structure of Georgia) and the best to freedom of opinion, data, mass media and the web (Article 17).

The legislation’s strict and arbitrary monitoring mechanism is indicative of a repressive system, requiring the rapid provision of knowledge whatever the quantity or the time wanted for retrieval and processing. The norms don’t contemplate any meritorious circumstances or hardships. Failure to offer the requested data instantly ends in a effective of 5000 GEL. An attraction doesn’t halt the effective’s enforcement.  This monetary burden may be devastating, particularly for small-scale non-governmental, non-profit authorized entities, as they might incur a number of fines concurrently.

The punitive nature of those fines is obvious in Article 9 of the “Regulation on Transparency”, which imposes disproportionately excessive fines (starting from 5000 to 25000 GEL).  As an example, whereas a public/authorities official could also be fined 1000 GEL for failing to meet declaration duties, an NGO or a person faces a effective of 5000 GEL for a similar infraction. Furthermore, public/authorities servants are salaried from taxpayer funds. The problem of status and excessive fines is especially crucial for organizations monitoring the parliamentary elections of October 2024. Labeling these organizations as entities finishing up international pursuits will considerably hinder their potential to draw the 1000’s of observers wanted for election monitoring.

Georgia’s constitutional obligation concerning integration into the Euro-Atlantic area

Integration into the European Union is a nationwide curiosity explicitly declared by the Georgian Structure, the Parliament, the Authorities, and the overwhelming majority of the Georgian individuals. All state our bodies help the European integration course of, as enshrined in Article 78 of the Georgian Structure, which mandates that state our bodies take measures to advertise integration inside their competence. The European Council, in its conclusions from the assembly on June 27, 2024, halted negotiations with Georgia concerning its candidacy for accession, citing the detrimental results of the Regulation on Transparency, in addition to rising acts of intimidation, threats, and bodily assaults towards civil society representatives, political leaders, civil activists, and journalists.⁷⁾

Subsequently, it’s clear that the adoption of the “Regulation on Transparency” shouldn’t be solely a gross violation of one of many foremost targets of Article 78 but in addition constitutes a big impediment to Georgia’s full integration into the European Union. This legislation creates severe or irreparable obstacles on our path to European integration, demonstrating that the Georgian authorities is in violation of Article 78.

The place and the way?

Georgia is now at a historic crossroads. For the reason that seventeenth century, the nation has patiently pursued a path towards Europe. Nevertheless, the Russian occupation within the final century separated us from this path for 70 years. As we speak, we face the same problem as we did in 1921. At the moment, Russia emerged victorious, however now it’s time to decide that aligns with the very best pursuits of the Georgian individuals.

The “Regulation on Transparency” represents greater than a mere authorized subject; it symbolizes the nation’s selection between totalitarianism and democracy.  The Constitutional Court docket now has the chance to implement the true will of the Georgian individuals.  Moreover, the upcoming elections on October 26, 2024, will as soon as once more affirm that the Georgian individuals’s true will is mirrored within the preamble of the Structure of Georgia, which goals to “set up a democratic social order, financial freedom, and a authorized and social state”.