Introduction

On March 27, 2025, Georgian Dream introduced a draft law aimed, according to their statements, at prohibiting the “Collective National Movement” from participating in elections. It remains unclear which specific opposition parties are targeted by the draft law. However, Mamuka Mdinaradze stated that forces opposing the regime “are anti-Georgian, anti-constitutional, anti-national, and criminal parties, they will be declared unconstitutional and their activities will be prohibited!”.[1] On March 31, the Parliamentary Bureau made a decision and instructed the lead (Legal) Committee to begin the review process.[2] On April 14, the Legal Committee approved the draft law in its first reading.[3]

1. Review of the Initiated Draft Law and Its Inconsistency with the Constitution

The proposed draft legislative package includes two amendments.

Expanding the Grounds for Banning Political Parties, Which Contradicts the Constitution

The first amendment concerns Article 36 of the Organic Law of Georgia “On Political Associations of Citizens”, to which a new Paragraph 2 is added. The current version of Article 36 closely mirrors Article 23 (3) of the Constitution, which states that “the establishment and activity of a political party that aims to overthrow or forcibly change the constitutional order of Georgia, infringe on the independence or violate the territorial integrity of the country, or that propagates war or violence or incites national, ethnic, provincial, religious or social strife, shall be inadmissible. The establishment of a political party on a territorial principle shall be inadmissible.” [4] The only substantive difference in the Organic Law is the inclusion of a reference to “the formation of an armed group” as a basis for prohibition. This difference appears more technical than essential and is explained by the fact that the Organic Law retains language from before the most recent constitutional revision (2017–2018), which previously included this basis. Specifically, the 2013 version of the Constitution stated that “the creation of armed groups by public and political unions shall be prohibited.”[5]

Under the proposed draft law, Article 36 (2), will be formulated as follows: “The Constitutional Court of Georgia may ban a party whose declared purpose and/or the essence of its activities (including its personnel and/or the composition of the party list submitted to the relevant election commission) essentially repeats the declared purpose and/or the essence of activities (including its personnel) of a party banned by the Constitutional Court of Georgia on the basis of Paragraph 1 of this Article.”[6]

The explanatory note to the draft law states that the adoption of the amendments is intended to enable “effective constitutional control” over political parties. The logic of the draft law is relatively straightforward. It rests on the premise that if the court bans a party - such as on the grounds of inciting ethnic hatred - another party deemed essentially similar should be banned automatically through expedited procedures. At the normative level, this “essential similarity” is based on the criteria of a party’s “declared purpose” and/or the “essence of its activities,” which also includes the similarity of the composition of its party list. Specifically, if the court bans party “A” and determines that the party list of party “B” includes a sufficient number of individuals (though it remains unclear what will be considered “sufficient” for this purpose), then the two parties will be regarded as “essentially similar”. This classification would serve as grounds for banning party “B.”

This new legal framework fundamentally contradicts the Constitution of Georgia, which explicitly states that “the prohibition of a political party shall be admissible only by decision of the constitutional court, in cases defined by the organic law and in accordance with the established procedure”.[7] Naturally, the reference to the Organic Law means that only through this law should the procedural rules and stages for banning a political party be defined. However, it cannot be interpreted as allowing the introduction of new substantive grounds for banning political parties, as the Constitution already provides an exhaustive list. Thus, in reality, the draft law establishes a new ground for banning political parties.

Rather than assessing whether the specific constitutional criteria apply in a given case, the Constitutional Court would instead be required to determine whether the declared purposes and/or activities of two different parties are essentially similar. In turn, the terms used are vague and leave room for arbitrary interpretation. However, even if that were not the case, it enables the banning of a political party by bypassing the Constitution. It sets as the criterion for assessment not the party’s intent to carry out an action prohibited by the Constitution, but its “similarity” to the activities carried out by another party. As a result, the proposed amendments unjustifiably and unconstitutionally expand the mandate of the Constitutional Court.

Consideration of the Issue of Banning Political Parties within Tight Deadlines and the Radical Worsening of the Standard

The second amendment to the law concerns the Organic Law “on the Constitutional Court of Georgia”, which aims to shorten the deadlines for considering the banning of a political party. Specifically, according to the draft law, a decision to ban a party or terminate the mandate of a Member of Parliament elected on the party’s nomination must be made no later than 9 months from the filing of the lawsuit. During the election period, in the case of the newly added Paragraph 2 of Article 36 (the so-called banning of a similar party), the decision must be made within a maximum of 14 days.[8]

In general, the grounds for banning a party listed by the Constitution require a thorough examination of each circumstance. This involves analyzing the party’s activities, connections, statutes, and the means through which the party achieves its goals - whether officially or unofficially. Given the constitutional provision regarding the role and importance of political parties in a democratic society, the decision to ban a party must meet an exceptionally high standard of justification and evidence. In this context, the draft law introduces a provision that makes it possible to dissolve a party within two weeks. This not only establishes a new ground for banning a party but also radically weakens the standard for prohibition.

The role of political parties in society and the importance of party pluralism are clearly defined in the Constitution of Georgia. Article 3 defines democracy as the exercise of power by the people through their representatives and in the forms of direct democracy.[9] Political parties play a central role in this process, as they “participate in the formation and implementation of the political will of the people”.[10] Therefore, the existence and diversity of political parties are essential for safeguarding democratic principles, and their prohibition can only occur in accordance with the Constitution, under conditions of extreme necessity, and through clear, specific procedures and evaluation criteria. The proposed draft law fails to consider any of these conditions and undermines the legal framework established for political parties.

1. Banning Parties as a Last Resort to Protect Democracy and Security

The European Court of Human Rights applies particularly strict scrutiny when assessing the compatibility of party bans with the freedom of association under Article 11 of the Convention. This is due to the fact that political parties are fundamental instruments of democracy and pluralism[11] - which is not merely restricted in such cases, but entirely banned.[12]

Under this rigorous standard, the Court requires convincing justification of the absolute necessity of the ban, based on narrowly defined legal grounds and specifically identified threats to democracy and public security.[13] A key requirement is that the decision must be made by a court, which attributes the threat to the actions of a particular party - not through general assumptions, but based on concrete evidence.[14]

There are only a few instances in the Court’s case law where it has not found a violation in the banning of a party. Even in those cases, the Court’s reasoning highlights that banning a political party is an exceptional and extraordinary measure.[15]

The Banning of a Party is Permissible Only under a Clear and Non-retroactive Law.

The general requirement of the rule of law is that any restriction of rights must be based on a strict and foreseeable law. Moreover, a measure that has the effect of criminalizing legal entities[16] - such as the banning of a party, to which it is effectively equivalent - cannot be imposed as a punishment for an act committed before the introduction of the legal grounds for such a ban.[17]

The Banning of a Party is Permitted Only in Cases of a Serious and Imminent Threat to Civil Security and Democracy.

The grounds for such a ban must be narrowly defined by law and established by a court based on specific evidence. These grounds must relate to the party’s incitement to violence, disruption of civil peace, or violation of fundamental democratic principles.[18] Accordingly, it is the court that determines the standard of seriousness and imminency required to justify restricting a political party.[19] The court has made clear that a threat is not constituted merely by a party holding unpopular or offensive views,[20] or by its intention to alter the existing constitutional order through lawful and democratic means.[21] As the European Court has emphasized, the essence of democracy lies precisely in the diversity of political programs, including those that challenge the current state structure - so long as this is not pursued to the detriment of democracy itself.[22]

The Obligation to Use Less Restrictive Means and the Prohibition of Using Party Bans for ‘Political’ Purposes

Finally, the European Court will find a violation even where compelling and sufficiently serious grounds for banning a party exist, if the objective - protection of democracy - could have been achieved through less restrictive means.[23]

Furthermore, Article 18 of the Convention prohibits the use of such measures primarily for political purposes. A violation will be found on this basis even if objective grounds for banning a party are hypothetically accepted.[24]

1. ‘Old’ and ‘New’ Parties, Individual and Organizational Liability

A problematic aspect of the proposed changes is the introduction of a new basis for banning political parties, which blurs the distinction between individual and organizational liability.

A similar issue was examined by the European Court of Human Rights in the case of Herri Batasuna and Batasuna v. Spain (2009), where the Court provided important clarifications regarding the conditions under which a party ban based on individual responsibility may be permissible.

In that case, Spain adopted an organic law in 2002, under which, in March 2003, the Spanish Supreme Court banned the political parties Herri Batasuna and Batasuna due to their ties with the Basque separatist group ETA, which had been designated a terrorist organization, and for their support of terrorism.[25] Shortly thereafter, members of these banned organizations sought to participate in the local elections scheduled for May 25, 2003. On April 28, 2003, the Basque Electoral Commission registered their electoral coalitions. However, on May 1, the public prosecutor filed a request with the court to remove approximately 300 individuals from the candidate lists of these coalitions. The official reasoning was that these coalitions were essentially continuing the activities of the parties declared illegal by the Supreme Court 1 year before. The Supreme Court upheld this request, and the Constitutional Court declared the coalition’s appeal inadmissible, leading to an application before the European Court of Human Rights.[26]

Although the European Court of Human Rights did not find a violation of Article 11 of the Convention, it established clear criteria for assessing such cases. The Court echoed the reasoning of the Spanish Constitutional Court, which found that the Supreme Court’s decisions were “reasonable and well-founded in establishing that there was a joint strategy developed by the terrorist organization ETA and the banned party Batasuna, aimed at re-establishing the party and its participation in the elections.” Consequently, the banning of the party met the threshold of a “pressing social need”. The Strasbourg Court concluded that there was indeed a connection between the applicant parties and ETA. It noted: “in view of the situation that had existed in Spain for many years with regard to terrorist attacks, particularly in the “politically sensitive region” of the Basque country, those links could objectively be considered as a threat to democracy. Lastly, the Supreme Court’s findings had to be placed in the context of the international resolve to condemn the public defense of terrorism. Consequently, the acts and speeches imputable to the applicant parties, taken together, created a clear image of the social model that was envisaged and advocated by them, which was in contradiction with the concept of a democratic society”.[27]

This case allows us to draw several conclusions: 1. The change of party configurations by individual politicians can become problematic only if the individuals’ goal is to continue the prohibited organizational activity. 2. The banning of an organization does not in itself mean a permanent suspension of political activity for the individual. The ‘similar’ political association must actually be involved in the activity that has already been declared prohibited. 3. The old and new parties must share a common vision regarding the prohibited activities. Otherwise, they must not reveal any essential differences in political or ideological issues and ways of achieving the goals. In other words, the new activity must be a reaction to the impossibility of continuing the old one; there must be individual goals to restore the prohibited activity; and the ‘similarity’ must be organizational, not personal.

In the Georgian draft law, the potential ban on the activities of a ‘similar’ party is not preceded by the knowledge of individual politicians who are members of it that they were previously involved in prohibited activities. As a result, no elements are suggesting the establishment of a new party following a ban or the continuation of prohibited activities. Furthermore, in the ongoing discussions regarding the ban on political parties in Georgia, the Georgian Dream refers to examples and cases involving the specific period of public service of certain politicians. These politicians were involved not under the framework of a party, but under the framework of public authority, sometimes with legitimacy and mandates obtained through elections. Their activities in these positions were not aimed at party work as such, and the party organization had no influence over their conduct.

In addition, the proposed draft law is based on an exceedingly vague and fundamentally problematic criterion - the similarity of the composition of the party list. As previously mentioned, the issue of ‘similarity’ requires the alignment of prohibited goals, actual activities, and political plans. Simply matching personnel cannot automatically serve as a valid criterion for prohibition.

Moreover, it remains unclear how many individuals would be considered a sufficient number, and how many would not. Once again, this condition disproportionately expands the grounds and possibilities for the Constitutional Court to ban a party, which does not align with Article 23 of the Constitution. It should also be noted that, according to the Venice Commission, “dissolution of political parties based on the activities of party members as individuals is incompatible with the protections awarded to parties as associations. This incompatibility extends to the individual actions of party leadership, except cases in which they can be proven to act as a representative of the party as a whole”.[28]

The European Court of Human Rights has ruled that it is inadmissible to automatically attribute the actions or speeches of party members or leaders to the party itself. According to the Court’s standard, the court must assess, based on evidence, whether the actions and public statements of individual members or leaders can be reasonably attributed to the party as a whole. This criterion must also consider the party’s ability to distance itself from such actions, including, for instance, any calls for violence made by its leaders. A ban on the actions of party leaders can only be justified if those actions are carried out in the name of the party and, when examined in conjunction with the party’s program and declared objectives, provide sufficient evidence of a serious and immediate threat to civil peace and democracy.[29] The European Court has further clarified that it is inadmissible to ban a party based on statements made by its former members if these do not reflect the party’s position.[30] Additionally, even if the actions and public statements of party members and leaders are attributed to the party under this standard, it must also be determined whether the party is formulating a plan to implement a model of social order that is contrary to the principles of a ‘democratic society’.[31]

The initiated draft law relies on the assumption that the coincidence of individuals automatically leads to the continuation of activities that, in the context of another party, were retrospectively declared prohibited. This is not only an arbitrary presumption but also disregards the guidance of the European Court of Human Rights, which has clearly stated that the mere potential for engaging in illegal activities is not sufficient grounds for banning a party. According to the established jurisprudence and standards of the Strasbourg Court, the Venice Commission, and the Parliamentary Assembly of the Council of Europe, “banning a party is not permissible if it does not resort to violence and does not pose a threat to civil peace and the democratic constitutional order of the country.” [32] Such a possibility must be “extremely limited and applicable only in exceptional cases.”[33] This approach is mirrored by the UN Human Rights Committee, which has emphasized that a party ban can only be considered proportionate when there is substantial evidence that its leaders present a “repeated, concrete, and imminent threat” to the democratic order.[34]

4. The Constitutional Court is Another Independent Institution that has been Politically Subordinated to the Regime

The introduction of vague and unconstitutional grounds for banning political parties is especially problematic given that the final decision on such bans rests with the Constitutional Court - an institution that has long functioned in service of the current political regime, frequently abusing constitutional oversight in favor of the ruling power and contrary to the spirit of the Constitution.

It is worth emphasizing that the Constitutional Court was one of the first constitutional bodies targeted by the “Georgian Dream” party during its initial term in office - a goal it ultimately achieved over the following years. The party’s strategy reflects the tactics employed by modern authoritarian regimes, which manipulate constitutional and legal principles to serve undemocratic and illiberal ends.[35]

A number of decisions confirming this trend can be found in the recent practice of the Constitutional Court (for example, the rulings on the unconstitutionality of elections, impeachment proceedings, and the consideration of the law on the transparency of foreign influence),[36]which strongly suggest that, in the event of a constitutional lawsuit seeking to ban political parties, the Court is likely to continue its existing harmful trend.

It should also be noted that, much like the procedural vagueness surrounding the preparation of conclusions on the impeachment of specific officials, the legislation provides no clarity on how the Constitutional Court would handle such an extremely important and sensitive matter for democracy. The absence of judicial precedent further prevents any meaningful prediction regarding the standard of evidence the Court would apply in reaching its decision.

Conclusion

The draft law banning political parties is yet another expression of the multifaceted legalistic assault and authoritarian consolidation carried out by the Georgian Dream in recent years against political opposition and critical opinion. In clear defiance of constitutional norms, the draft law expands the mandate of the Constitutional Court, granting it the authority to ban a party based not on its actions, but on the alleged similarity - whether in declared goals, activities, or even personnel composition - to another party previously banned by the Court. Under the draft law, the Constitutional Court is required to issue a ruling on such matters within 14 days during an election period.

This legislative initiative contradicts the Constitution by introducing new grounds and simplified procedures for banning a party. Unlike the Constitution, which specifies concrete grounds for prohibition - such as threats to the country’s independence, propaganda of war or violence, or incitement of national or ethnic hatred - the draft law replaces these with the vague and unsubstantiated criterion of “similarity” to a previously banned party. As a result, the standard for constitutional protection of political associations is weakened, opening the door to arbitrary interpretations and abuse, particularly through the ambiguous notion of personnel overlap in party lists.

The proposed amendment also stands in clear contradiction to the jurisprudence of the European Court of Human Rights, which permits the banning of a political party only in exceptional cases, and solely to prevent a concrete and immediate threat to the democratic order. The amendment blurs the line between individual and organizational responsibility, allowing for a party to be banned based on the presumption of a hypothetical threat. As such, the draft law is incompatible with both domestic legal norms and international standards, as well as with established European judicial practice.

It is equally evident that, given its current state of political subordination, compromised independence, and the erosion of its jurisprudence, the Constitutional Court is unlikely to fulfill its constitutional duty to safeguard democracy and act as a check on authoritarianism. On the contrary, it risks becoming a key instrument in the formalization and entrenchment of autocracy in Georgia.

Party bans have historically been more common in ‘new’ democracies emerging from authoritarian regimes,[37] while established democracies are generally hesitant to resort to such extreme measures. For instance, Germany - the birthplace of the concept of ‘militant democracy’ - has long moved away from banning political parties, choosing instead to address challenges to democratic values through less restrictive means, such as criminalizing Holocaust denial.[38] In a 2017 decision, the German Constitutional Court acknowledged the National Democratic Party’s unconstitutional aims but declined to ban it, citing the absence of a tangible threat that those aims could be realized.[39] Similarly, in the context of the right to stand for election,[40] the European Court of Human Rights emphasizes the importance of the temporal context, recognizing that certain measures may be justified in a ‘new’ democracy but must be periodically reassessed for necessity.[41] In the Georgian context, with the Georgian Dream now in its thirteenth year in power, marked by extreme consolidation of authority and a heightened risk of autocratization, it is evident that the aim of banning political parties is to restrict democratic space and eliminate opposition. Such a move cannot be justified by invoking a transition from autocracy to democracy or the need to protect democratic order.

In general, it must be noted that modern authoritarian regimes often rely on constitutional mechanisms not to uphold democracy, but to undermine it. Rather than resorting to overt repression, they operate within the formal boundaries of constitutional legality while subverting its spirit and fundamental purposes. Legal theory refers to this phenomenon as constitutional capture - a process through which legal instruments are co-opted by dominant political forces to legitimize the usurpation of power. In Georgia’s case, it is clear that the ruling party is attempting to delegitimize and ultimately eliminate political competition through legislative means. These legislative changes are not occurring in isolation - they are accompanied by sustained attacks on the political opposition, independent media, and civil society. This clearly reveals the Georgian Dream’s intent to curtail and dismantle democratic competition and civic space.

Therefore, the draft law on banning political parties, initiated by the Georgian Dream, represents a sharp deviation from democratic governance and the constitutional order, amounting to an attempt to capture and subvert the system. Its rationale is built on opaque, ambiguously worded provisions designed for political retaliation. The draft law significantly weakens the constitutional framework that ensures a high standard of protection for the freedoms of political associations, thereby substantially shrinking the space for political pluralism and competition in the country.

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