How to Defend Non-Profits from the Anti-Magnitsky Law: Instructions for Non-Profit Lawyers

15 January 2013

Source: (info
The “anti-Magnitsky law” came into force on 1 January 2013. Among other things, the legislation grants the Ministry of Justice new sweeping powers to curb the activity of Russian non-profits. Unlike the recent law on "foreign agents", this initiative is directed against all NGOs, even those which receive no funding from abroad. The Ministry of Justice can now paralyse the work of any NGO if it sees it as a threat to Russia's interests. 

As such, all NGOs are now subject to the new law (its official name is "On measures for regarding individuals involved in violating fundamental human rights and freedoms and the rights and freedoms of citizens of the Russian Federation"), including the Russia-based offices of foreign and international organisations.

At the request of, the lawyer Ramil Akhmetgaliev, legal analyst at the Agora Human Rights Association, explained how NGOs can properly protect themselves against the anti-Magnitsky law and reduce the risk of ending up on the Justice Ministry's "hit list". 

Following the general principles enshrined in the Constitution, this counter-productive law does not have retroactive effect. This means that in application the law will take into account only NGOs’ activity after 1 January 2013. 

The Ministry of Justice's Grounds for the Law 

The anti-Magnitsky law (like the previous "foreign agents" law against NGOs) contains vague and ambiguous terms and concepts. owever we can highlight three separate reasons for adopting these coercive measures. 

1. The participation of the NGO (or its divisions) in political activity carried out on the territory of the Russian Federation and the receipt of voluntary funds and other assets from citizens (organisations) of the USA. 

It is important to note that there is no requirement for a link to exist between an NGO’s political activity and the receipt of voluntary funds; funds can be received for one project, while political activity may be carried out without any funding whatsoever. The presence of both indicators - even if they are unrelated - is enough to provoke a reaction from the Justice Ministry. 

2. The NGO (or its divisions) implements projects or programmes, or carries out any other activity on the territory of the Russian Federation which poses a threat to the interests of the Russian Federation. 

It should be pointed out that the presence or absence of funding is not a required element for stopping an organisation's activity on this basis. It will be sufficient to show that the NGO is carrying out activity which threatens the interests of the Russian Federation. 

3. Individuals which hold citizenship in both states (RF and USA) cannot be managers of NGOs or divisions which engage in political activity. 

The key point here is that this restriction applies only to organisations headed by individuals with dual citizenship. These people are not prohibited from heading all NGOs and their divisions, only those which engage in political activity. 

We consulted linguistic experts on this matter, and this is how they understood the context: 

"The Ministry of Justice can halt the activity of NGOs which: 

a) participate in political activity on the territory of the Russian Federation and (a unifying conjunction) voluntarily receive funding and assets from citizens (or organisations) from the USA; 

b) implement projects or programs, or carry out any other activity on the territory of the Russian Federation which poses a threat to the interests of the Russian Federation. The two paragraphs are joined by the disjunctive conjunction or, which indicates the need to choose between the proposals. For organisations the proposals on money refer to the first paragraph, but upon carrying out the activity in the second paragraph, the activity will be halted irrespective of funding." 

Furthermore, there are two terms used in the law: "political activity" and "threat to the interests of the Russian Federation". Specialists in the fields of legal theory, linguistics and logic point out that these terms contain ambiguous and unclear elements and that it is impossible to give them a correct ("closed-loop") definition. It is therefore impossible to categorically define the multitude of items and indicators which fall under these terms. The vagueness of these concepts leaves room for abuse in the law’s application. 

Despite this, Justice Ministry specialists will be obliged to apply this law and justify their decisions (including references to legislation) and so it is important to at least define general boundaries for each term and give corresponding recommendations. 

Political Activity 

In response to questions from the media, the Ministry of Justice explained that it would be guided by the norms of the federal law on NGOs (meaning the "foreign agents" law), which contains a definition of NGO political activity, when evaluating NGO activity as political. This means that the anti-Magnitsky law and the law on foreign agents will be jointly employed against NGOs by the Justice Ministry. In each specific instance it will be very difficult to give an answer as to whether certain activity is political or not. 

On that basis, it will be necessary to provide evidence of non-violation of the law and to substantiate that an NGO engages in those types of activity which the law expressly defines as not political. 

The “foreign agents” law clearly specifies that the following types of activity do not constitute political activity (the list is not exhaustive): activity in the sphere of science, culture, art, public health, preventative measures and citizens' healthcare, citizens' welfare and protection, protection of motherhood and childhood, welfare of people with disabilities, promoting healthy lifestyles, physical fitness and sport, protection of plant- and wildlife, charitable activity, as well as activity encouraging charitable and voluntary work. 

It is important to note that there is no need to be registered as a charitable organisation in order to carry out charitable activity. This type of activity can be carried out by anyone irrespective of their status. 

In Russian legislation, charitable work is understood as voluntary activity by citizens and legal entities for the altruistic (voluntary or on special terms) transfer of assets to citizens and legal entities, including monetary funds, voluntary works, services or any other support. 

Threat to Russia's Interests 

What are "Russia's interests"? History has shown that at various times the state authorities have set out a range of indicators for this term. It should be taken into account that the interests of the state are not identical to the interests of the authorities. In any event, the Ministry of Justice and other state agencies will now be obliged to take the provisions of the Constitution into consideration, if only as a formality, and to bring charges against those posing a threat to Russia as set forth in legislation. 

Russia's interests are enshrined in the Constitution and in the "National Security Strategy of the Russian Federation until 2020". These documents indicate that the Russian Federation's national interests are the totality of the state’s domestic and foreign requirements for the protection and stable development of individuals, society and the state. 

Thus we can conclude that activity threatening to Russia's interests should be understood as activity which works against the development of individuals, society and the state. This definition comes from, among other sources, Article 13 of the Russian Constitution, which underscores the fact that an NGO's activity can only be limited in strictly defined circumstances; namely, if its goals or actions are aimed at overthrowing the constitutional system and violating the integrity of the Russian Federation, undermining the security of the state, creating paramilitary forces or inciting social, racial, national or religious hatred. 

Reducing Risk 

The anti-Magnitsky law will not affect NGOs which do not engage in political activity or any other activity which threatens Russia's interests. We can suggest that NGOs and donors take steps to reduce the risk posed by this law. Russian NGOs need to reinforce and record all indicators which will help to classify their activity as non-political and/or non-threatening to Russia's interests. In particular, they should highlight and document the charitable nature of the organisation's work, as well as the charitable nature of any foreign funding received. 

At the Donors Forum conference, deputy director of the Justice Ministry's department for NGO affairs, Tatyana Vaghina, stressed that, according to the law, charitable activity is not political and consequently there are no grounds for including such organisations in the foreign agents register. 

Recommendations for Russian NGOs 

NGOs need to pass a provision on the scope of their activity based on their charter. This document will become a local (internal) normative act in itself and can be passed at a general meeting of an NGO's managing body. The charter's clauses (goals and tasks) will be concretely defined in this provision. 

The document structure may look like this: 

- Set out a non-political mission statement, which can be worded as follows: "The Organisation does not pursue political goals while taking any measure to achieve its specified goals and tasks. The Organisation is not linked with any political party or other political association. The Organisation does not support or oppose any political party or individual politician. The Organisation does not participate in any form of political activity, including political demonstrations aimed at expressing the political views of any political association or individual politician, or in elections and referendums." 

- Concretely define the scope of activity using the formulations from the Law "On charitable activity". For example: "The NGO’s tasks are to influence activity in the spheres of education, science, public awareness and personal spiritual development. The Organisation's activity is carried out in the interests of the citizens of the Russian Federation and their associations." 

- Concretely define the principle of legality of the chosen methods and means of achieving the charter goals (adherence to the principle of legality). For example: "In the aim of achieving its charter goals and tasks, the Organisation uses only the legal methods and means provided by law and wholly rejects violent methods, including those aimed at overthrowing the constitutional system, violating the integrity of the Russian Federation, or inciting social, racial, national or religious hatred." 

Ramil Akhmetgaliev, lawyer and legal analyst at Agora Human Rights Association