The Commissioner
Le Commissaire

Ref: CommHR/DM/sf 016-2024

Mr Shalva PAPUASHVILIChairman of the Parliament of Georgia
Strasbourg, 11 April 2024

Dear Chairman,
My mandate is to foster the effective observance of human rights in all 46 member states of the Councilof Europe. An important part of my work is to engage in dialogue with the governments and parliamentsof member states, and to assist them in addressing possible shortcomings in their laws and practices.
In this context, I am writing in relation to the draft law “On transparency of foreign influence” (N 073/433/10) which was registered in the Parliament on 3 April 2024.
This legislative initiative appears to be similar to the draft law which was on the Parliament’s agenda inFebruary last year (N 07-3/293/10) and was then withdrawn from consideration several weeks after it
was introduced. My predecessor sent you a letter in connection with that legislative initiative, in which
she stressed that it raised a number of concerns in the light of human rights standards and called onmembers of the Parliament to reject it or any similar draft laws.
I would like to reiterate these preoccupations in connection with the newly introduced draft legislation
which, if adopted, would provide for the registration of non-commercial legal entities and media outlets
as “organisations pursuing the interest of a foreign influence” if they receive directly or indirectly morethan 20% of their total yearly funding from a “foreign power”. I understand that it would set a separate
legal regime for such entities, subjecting them to additional and cumbersome reporting requirements,
giving vaguely defined and broad inspection (monitoring) powers to the authorities to identify such
entities, and introducing heavy administrative fines (amounting to up to 25000 GEL, approximately 8700
EUR) in case of non-compliance.
I am concerned about the compatibility of this legislative initiative with the human rights standards inthe field of freedom of association and expression, including the chilling effect its adoption may haveon the work of media outlets and civil society organisations, in particular those working on human rights,
democracy and the rule of law in Georgia.
I note that the European Court of Human Rights (the Court) stressed in the case of Ecodefence andothers v Russia that “in order to ensure that NGOs are able to perform their role as the “watchdogs ofsociety”, they should be free to solicit and receive funding from a variety of sources. The diversity ofthese sources may enhance the independence of the recipients of such funding in a democraticsociety”. The Committee of Ministers Recommendation Rec(2007)14 on the Legal Status of NonGovernmental Organisations in Europe provides in Article 50 that “NGOs should be free to solicit andreceive funding – cash or in-kind donations – not only from public bodies in their own state but also frominstitutional or individual donors, another state or multilateral agencies, subject only to the laws
generally applicable to customs, foreign exchange and money laundering and those on the funding ofelections and political parties”.
Furthermore, under Article 11(2) of the European Convention on Human Rights (ECHR), any restrictionof the freedom of association should be prescribed by law, which entails the test of clarity andforeseeability. It should also be necessary in a democratic society. The notion of necessity includes twoconditions: any interference must correspond to a “pressing social need”, and the interference must be
proportionate to the legitimate aim pursued. In addition, under Article 14 of the ECHR, the restriction
must be non-discriminatory.

F – 67075 Strasbourg Cedex, Fax: +33 3 90 21 50 53, http://www.coe.int/commissioner e-mail: commissioner@coe.int

2Concerning the necessity aspect, the objective of increasing transparency with regard to the funding ofcivil society organisations may correspond to the legitimate aim of the prevention of disorder in Article
11 (2) of the ECHR as noted by the Court in the aforementioned judgment. However, it should not besought through disproportionate means, and to the detriment of the effective enjoyment of human rights
and freedoms. In particular, according to the OSCE-ODIHR and Venice Commission Guidelines on
Freedom of Association, “(e)nsuring that an interference by the state in the exercise of a fundamental
freedom does not exceed the boundaries of necessity in a democratic society requires striking areasonable balance between all countervailing interests and ensuring that the means chosen be theleast restrictive means for serving those interests. At the legislative stage, this should be done byassessing whether a planned interference in the exercise of the right to freedom of association isjustified in a democratic society, and whether it is the least intrusive of all possible means that could
have been adopted.”
As regards non-discrimination, the legal framework governing the legitimate work of non-commercialorganisations should contain provisions which are non discriminatory and should always be based on
clear and non-biased standards of transparency and reporting, irrespective of the sources of theirfunding. I note that the legislative initiative provides for a difference in treatment of the non-commercial
legal entities and media outlets solely on the basis of the foreign origin of some of the funding. I alsofind that the term “organisation pursuing the interest of a foreign influence” – which is used in the draft
law - implies a high level of dependence and control between the organisation which receives foreign
funding and the donor organisation. This does not seem to correspond to the requirement of receiving- directly or even indirectly - only over 20% of the total yearly income from abroad. This designation
should also be seen against the background of an increasing stigmatisation of human rights and otherNGOs in political discourse in Georgia. I would like to stress in this context that, instead of restricting
the freedoms of NGOs, national authorities should foster a safe and enabling environment for theirwork, in line with the Council of Europe’s Committee of Ministers Recommendation CM/Rec(2018)11
on the need to strengthen the protection and promotion of civil society space in Europe.
If adopted, the implementation of this law is likely to result in the stigmatisation and discreditation of thecivil society organisations and media outlets who receive foreign funding and their activities, includingin the eyes of the general public and state institutions, which will consequently render their activities
difficult or impossible to carry out.
In the light of the above, I respectfully ask members of the Parliament to refrain from adopting the draft
law “On transparency of foreign influence” as tabled and engage with national and international
partners, including the Council of Europe, on how best to ensure an enabling environment for thelegitimate work of non-commercial organisations and media outlets in the country.
I would be grateful if you could ensure that all members of the Parliament receive a copy of this letter.
I stand ready to continue our constructive dialogue on this and other human rights issues in Georgia.

Yours sincerely,

Michael O’Flaherty