Georgia’s Overseas Agent Legislation 2.0 – Model Slux

Activating ECtHR’s Rule 39 as a Instrument of Militant Constitutionalism

In a latest contribution to this weblog, Tolga Şirin argued for activating interim measures below Rule 39 of the European Courtroom of Human Rights (ECtHR) in instances of political prosecution, comparable to that of Istanbul’s mayor İmamoğlu. This argument positive aspects renewed urgency in gentle of Georgia’s proposed international agent regulation. Certainly, as civil society organisations (CSOs) face the specter of prison sanctions below “Overseas Agent Legislation 2.0” – a close to copy-paste of the U.S. Overseas Brokers Registration Act (FARA) – Rule 39 may develop into their final remaining treatment.

Overseas agent legal guidelines in Georgia

The saga of Georgia’s international agent legal guidelines started in 2023, when Georgian Dream (GD) launched laws forcing CSOs receiving over 20% of international funding to register as “international brokers” or face fines. The invoice sparked mass protests, was swiftly repealed, after which introduced again amid public outrage. Following the rigged parliamentary elections of October 2024 – which each the European Union (EU) and Council of Europe (CoE) deemed neither reputable nor truthful – the general public protests and political disaster erupted as soon as extra. 5 months on, Georgian Dream handed a second, FARA-inspired model of the regulation, nonetheless with out having enacted or repealed the unique. It’s set to come back into power on Might 31, 2025.

Underneath the brand new regulation, administrators of NGOs and media retailers danger prison prosecution if the state claims they acted on behalf of a international principal and intentionally did not register. Contemplating public statements by the Prime Minister of Georgia, it’s hardly speculative to anticipate selective enforcement of the regulation towards probably the most outspoken CSOs. And as if two international agent legal guidelines weren’t sufficient, latest amendments to the regulation on Grants now additionally require donor organizations to acquire prior approval from the GD authorities – or a delegated company – earlier than issuing any funding. Not like the primary international agent regulation, which dominated political discourse in 2023, present assaults on CSOs are unfolding extra quietly – towards the backdrop of a broader, quicker, and extra systematic dismantling of the rule of regulation and human rights. Within the face of this escalation, the instruments already embedded within the ECtHR’s jurisprudence supply a method ahead: Rule 39 can – and should – be reactivated to guard CSOs from a consolidating autocratisation.

The ECtHR’s sobering expertise with international agent legal guidelines

The ECtHR’s engagement with Russia’s international agent legal guidelines has been a sobering expertise. In Ecodefense, the Courtroom issued its judgment eight years after the preliminary utility was filed -without individually addressing the Article 18 declare of rights abuse by the states. The consequence fell far wanting a well timed or satisfactory response to Russia’s systematic efforts to dismantle civil society. The Courtroom’s failure to have interaction Artwork. 18 was significantly hanging, on condition that its proportionality evaluation had already hinted on the core discovering of “dangerous religion”. Because it famous, “[t]he Authorities has not been capable of […] present that these measures furthered the declared aim of accelerating transparency” (para 146).

It will take one other two years for the ECtHR to explicitly acknowledge “the extent to which the ‘international‑agent’ designation has been misconceived, deceptive and misused by the Russian authorities” in Kobaliya (para 77). In fairly sharp language, the ECtHR acknowledged that the labeling requirement was “unrelated to the acknowledged objective of transparency and creates as a substitute an setting of pressured self-stigmatisation […]” bearing “the hallmarks of a totalitarian regime” [emphasis added, para 86].

The 2025 determination in Novaya Gazeta, in regards to the crackdown on dissent following Russia’s invasion of Ukraine, supplied concurring Decide Pavli a possibility to mirror on these missed alternatives:

“[..] with the advantage of some hindsight and a big physique of case-law behind us, can it’s mentioned that the Courtroom sounded the alarm loudly sufficient, and early sufficient? And extra importantly for the long run, is it now ready to take action in relation to different European political methods whose democratic protections may be eroding in ascertainable methods?” (para. 15).

As Tolga Şirin beforehand argued on this weblog, if Decide Pavli’s questions resonate with different members of the Courtroom, there’s, certainly, ample doctrinal foundation for sounding the alarm – each loudly and early – when democratic safeguards are visibly eroding. That floor lies within the Courtroom’s personal Rule 39.

The sluggish shift towards an efficient Rule 39

Certainly, the ECtHR file consists of greater than missed alternatives, and up to date Rule 39 landmarks exhibiting a gradual shift towards higher flexibility function testimony to that. Interim measures are not confined to non-refoulement instances involving mere individualized and foreseeable threats – comparable to the chance of torture or the (re)use of proof obtained by torture following removing to a international nation (see Abu Qatada). As an alternative, they’re now more and more utilized in response to threats to democracy and the rule of regulation, even the place the exact types such threats could take usually are not but totally recognized. This shift has been most evident in instances involving, for instance, the possession of a media firm in Georgia (2017), the safety of a journalist’s sources in Ukraine (2018), the best to exist of a human rights NGO  (2021) and of a information outlet in Russia (2022), punitive measures towards judges in Poland (2022-2023), and demonstration dispersal strategies in Serbia (2025).

The wording of interim measures has additionally develop into extra open-ended. The Courtroom now more and more points orders suspending home selections or proceedings, or instructing states to chorus from actions prone to produce sure dangerous results. For instance, in an interim measure issued in 2022 within the case of Novaya Gazeta, the Courtroom instructed Russia “to abstain till additional discover from actions and selections aimed toward full blocking and termination of the actions of Novaya Gazeta, and from different actions that within the present circumstances may deprive Novaya Gazeta of the enjoyment of its rights assured by Article 10 of the Conference” (para 12). In an interim measure issued in 2025 within the case of Đorović, the Courtroom referred to “doubtlessly severe well being results” and instructed Serbia that “any use of sound gadgets for crowd management […] have to be prevented sooner or later” with out even prejudging whether or not such a crowd management mechanism was really getting used.

This shift towards a broader utility of Rule 39, accompanied by extra versatile directions to states in particular person instances, provides a measure of hope. But when the ECHR is to supply sensible and efficient safety, the Courtroom should speed up this shift, in order to not enable consolidating autocracies to slide via the cracks of supranational oversight. The instruments for this are already in place. Inside its current doctrine, the Courtroom has at the least 4 avenues it may draw on to reactivate Rule 39 extra forcefully in contexts like Georgia: the “Administrative Apply” exception, the “Potential Sufferer” customary, the “Chilling Impact” customary, and lastly, the Unhealthy Religion requirements below Artwork. 18.

Activating ECtHR’s Rule 39

One of many clearest foundations for a extra assertive Rule 39 lies within the Courtroom’s current doctrine on “administrative apply” – an exception to the same old requirement that candidates first exhaust home treatments. This exception permits the ECtHR to intervene earlier when there’s proof that the violations usually are not remoted however a part of a repeated sample that the authorities tolerate or ignore (see Georgia v. Russia (I), paras. 122–124). As assaults on civil society develop into extra organised and state-driven, the Courtroom ought to apply this exception extra boldly – particularly the place such patterns level to systemic dangerous religion. Doing so would enable the Courtroom to deal with repressive authorized regimes not as one-off authorized disputes, however as coordinated assaults on rights that demand well timed supranational oversight.

The Courtroom additionally mustn’t hesitate to use Rule 39 even earlier than punitive measures are enforced towards particular people or organisations. Its “potential sufferer” doctrine gives a foundation for doing so – significantly the place civil society organisations (CSOs) face looming sanctions that might have a chilling impact on their actions. The Courtroom usually avoids ruling on instances within the summary – that means with out a particular particular person measure being utilized. Nevertheless it makes exceptions the place the mere existence of punitive measures causes people to switch their conduct or interact in self-censorship (see S.A.S., para 57), or the place status-setting legal guidelines designate a gaggle whose members face modifications of their entry to rights or privileges (see Marckx, para. 27). Crucially, the Courtroom connects this anticipation of altered conduct to its “chilling impact” doctrine (see RID Novaya Gazeta, para. 59‒62).

The Courtroom makes use of this idea of “chilling impact” to explain how sure measures discourage candidates – or others in related conditions – from exercising their rights. It’s mostly invoked to guard freedom of expression and media (see Fatullayev, paras. 102, 128), opposition politicians (see Mammadov, paras. 93‒94), important or “disloyal” judges (see Baka, paras. 167, 173), members of judicial self-governing our bodies (see Żurek, para. 227), and prosecutors (see Kövesi, para. 209). The idea has additionally been utilized to safeguard the freedoms of meeting (see Navalnyy, paras. 103, 152), non-public life (see Kogan, paras. 70, 76), and most significantly on this context, freedom of affiliation.

In shaping its Rule 39 apply, the Courtroom ought to take a stricter method the place prima facie proof factors to this “chilling impact” being supposed reasonably than incidental. Notably, the Courtroom has already begun to maneuver away from impartial language (Baka and Ecodefense above) on this regard. For example, the Courtroom urged that measures have been a part of “a technique aimed toward intimidating (and even silencing)” judges who had defended the rule of regulation and judicial independence in Poland (Żurek above), or that the imposition of fines for failing to adjust to labeling necessities by NGOs “demonstrates the authorities’ intention to stifle important voices and create a chilling impact on freedom of expression.” (Kobaliya above). In instances the place the Courtroom has discovered violations of Article 18, the inference of an supposed chilling impact has typically been inevitable, even when the state’s intentions relating to the “chilling impact” have been framed in impartial phrases (see Navalnyy, Kogan above).

Final however not least, the evidentiary approaches developed in Artwork. 18 case regulation since Merabishvili (2017) can meaningfully inform Rule 39 selections. As demonstrated in Selahattin, this consists of taking into consideration public statements of high-ranking officers, in addition to the broader state of judicial independence, which in the end determines the affect that such statements could have on the last word good religion utility of regulation.

Taking irreversibility of autocratic consolidation severely

Collectively, the interconnected ECtHR requirements of “potential sufferer,” “chilling impact,” and the dangerous religion customary below Artwork. 18 will be key in activating Rule 39 in order to forestall consolidating autocracies comparable to Georgia – the place virtually all legislative exercise induces a “chilling impact” on important conduct – from slipping via the ECtHR’s oversight. The Courtroom’s rising willingness to answer dangerous religion and tolerated patterns of abuse, as seen in its evolving method to “administrative apply,” additional strengthens the case for a extra versatile utility of interim measures. This logic is very persuasive within the context of international agent legal guidelines, the place the irreversible injury inflicted on civil society in Russia gives a cautionary foundation for anticipating related results in different member states.

Activating interim measures on this method additionally aligns extra broadly with the rising concept of militant constitutionalism and rule of regulation, offering an important self-defense towards autocratic rulers hostile to the temporariness and institutional constraints of democratic authorities. Because the authorized theorist Sajó notes, “[g]iven the possibly irreversible penalties of intolerant democracy on constitutionalism and democracy, it’s morally crucial to think about to what extent the arsenal of […] democracy-limiting preventive measures needs to be utilized to counter the present development” (emphasis added, p. 191). This facet of irreversibility is vital: the ECtHR’s Rule 39 mechanism is designed particularly to deal with rights-restricting measures that can not be remedied after the actual fact. As such, it has the potential to function a forceful mechanism of militant constitutionalism and the rule of regulation. The one satisfactory response to the growing autocratisation in member states, then, is for the ECtHR to completely leverage Rule 39 – significantly when, in Decide Pavli’s phrases, democratic protections are eroding in [judicially] ascertainable methods.

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