Legislation Changes for the Restriction of Civil Society

Legislation Changes for the Restriction of Civil Society

The Government Strengthens Supervision over the NGOs through Legislative Amendments

Authority has thrown all its power into creating controls over NGOs and forcing changes to Article 35 of Georgian Civil Code on November 26, 2004, which pertains to “State Supervision over Activities of a Union or Foundation.”  The amendment addresses the rights of an interested individual with respect to the liquidation of a Union or Foundation.  NGO representatives are quite unclear about the notion of an “interested person”, however, because the law does not define the term.

Before considering the amendment itself, I would like to give some quick background about the activity of Unions and Foundations, their registration, reorganization and liquidation.

Civil code regulates the legal relationship, not only of persons, but of non-commercial legal individuals as well. This latter category includes organized entities created for the attainment of stated objectives and having property ownership which is independently liable. It also acquires rights and duties in its own name, makes transactions, and can sue or be sued (Article 24 of the Civil Code of Georgia).

Having reviewed the amendments in Article 35 of the Georgian Civil Code, we now focus on non-commercial legal entities under the private law that includes Unions and Foundations.
        
Under Article 30 of the Civil Code of Georgia, a legal entity whose objective is not entrepreneurial may exist as a Union (Association) or as a Foundation. Unions and Foundations, in addition, carry out their own entrepreneurial activity, which has a supplementary nature and does not serve to receive a profit, but to accomplish the common goal of a legal entity.

Unions, as legal entities, are subject to registration by the court; Foundation registration, however, is handled by the Ministry of Justice.

It was formulated in the Civil Code of Georgia (prior to the amendment), that a court/the Ministry of Justice would cancel the registration of a Union or Foundation if it actually engaged in entrepreneurial activity (not as a supplemental) or if attaining the objectives of its charter had become impossible.

According to the first amendment of Article 35 of the Civil Code of Georgia on June 24, 2004, the Ministry of Justice is now granted the right to revoke registration, which means that court is now deprived of the right to register; these rights is transferred to the territorial state registering branch of the Ministry of Justice. According to expert Lali Bakradze, this amendment is unconstitutional and that is why another amendment had to be made on November 26 of 2004.  Its clauses provided that:
       1. A decision about cessation and restriction of activity of a Union or Foundation is to be made by the court by the organic law determined and established cases.
       2. The Court is to examine and decide whether or not to restrict the activity of a Union or Foundation in cases in which it has actually turned to entrepreneurial activity or its objectives have become impossible to accomplish; this examination is conducted on the basis of a petition from either the Ministry of Justice or a concerned entity.
      3. In the event that a decision is made by the court to restrict the activity of a Union or Foundation, the territorial state registering branch of the Ministry of Justice must cancel the registration.

There is a tendency, then, that the courts are again granted the right to make decisions regarding the abolishment or restriction of Union and Foundation activity according to the amendment of November 26 of 2004. This amendment enters into force on March 2, 2005. The Court examines a matter on the basis of a petition from the Ministry of Justice or a concerned entity; and this means that the rights of an entity regarding the activity of Union and Foundation are expanded. The representatives of NGOs, however, have only a very vague notion about the nature of the entity concerned.

Regarding this amendment, we appealed to Mr. Ucha Nanuashvili, Executive Director of the Human Rights Information and Documentation Center, who does not consider this amendment necessary after the revolution. “The period when this amendment was made leads us to think that the state is trying to take control over NGOs, to have more power to interfere in the internal activity of Non-Governmental Organizations.”

About our question concerning who is eligible as the “concerned person” mentioned in the law, lawyer Lia Mukhashavria explained that it might be a representative or a constituent of this organization-- even a person who has some kind of relation to the organization, but not just anyone.  Mr. Nanuashvili considers that it is uncertain who might be a “concerned person” because the law itself doesn’t answer the question.

- Could that person be a state representative as well?

- Of course it could, because there is no answer in the law regarding this question. It is also very unclear what is meant by the “non-fulfillment of an organization’s goals,” because that is a very subjective issue. Who is to determine whether an organization fulfills its goals or not? That is quite conditional. An organization might have active and passive periods depending on its resources and that does not mean that it should be cancelled.  It is a common part of a civil society in which the government should not interfere. The fact of such limitations indicates that the state is not interested in the development of the civil society but in its limitation. It will start campaigns against concrete organizations that are critical of the government and will not close their eyes to its violations. The government is trying to control the NGO sector.

Mr. Nanuashvili also mentioned that the matter might not go as far as to annul registrations, but that because of court proceedings, organizations will have to spend its resources in vain, and this fact might have an adverse effect on its image. Additionally, pressure from the state might cause the organization to change its policies. But for the cases in which an organization commits any crime, there have always existed remedies.

Catherine Tsiklauri

Nino Gvedashvili