Source: HRO.org (info), 05/07/12

· Freedom of association  · Human rights defenders

On 5 June 2012 the Club of Third Sector Lawyers sent a statement to the Speaker of the State Duma of the Russian Federation, the office of the State Duma Committee on Civil Society and Religious Organizations, and also to the deputies who had initiated the high-profile bill on ‘foreign agents’.

According to the civil society representatives, the basic conception of the bill does not correspond to the democratic foundations of the Russian Constitution, and therefore they are appealing to the State Duma of the Federal Assembly to reject the bill as a whole. The first reading of the bill was set for 6 July 2012.

                                                                                                            Statement

by the Club of Third Sector Lawyers on the consideration by the State Duma of the Federal Assembly of bill № 102766-6 "On introducing amendments to specific laws of the Russian Federation that concern the regulation of the activities of non-profit organizations, carrying out the functions of a foreign agent.”

St. Petersburg, 3 July 2012

Having discussed the bill № 102766-6 “On introducing amendments to specific laws of the Russian Federation that concern the regulation of the activities of non-profit organizations, carrying out the functions of a foreign agent,” participants in the session of the Club of Third Sector Lawyers that took place in St Petersburg on 3 July 2012 make the following declaration.

Lawyers of the third sector direct attention to the negative connotations of the term "foreign agent", since – taking into account the totalitarian past of our state – such terminology creates the image of a non-profit as some kind of "external enemy." The passing of this law could deal an irreparable blow to the Russian non-governmental sector and to the strengthening of civic awareness at the cost of forming among the population a fear of participating in civil society organizations, including in those of a philanthropic nature, that have been declared “foreign agents.”

According to the bill, any Russian non-profit organization that receives foreign financial support, is viewed as an organization carrying out the functions of a foreign agent, if such an organization takes part in political activity. Such a definition is unacceptable.

From the point of view of civil law, an agent is a person who (for compensation) acts on behalf of another party. Clearly, this is what those who developed the bill had in mind when they use the term "foreign agent". At the same time, the bill does not distinguish between non-profit organizations acting at the behest (whether directly or indirectly) of foreign parties, and non-profit organizations who receive financial support from foreign parties to realize their own purposes, as established by their statute and without any instructions from foreign parties.

As distinct from the US law “Foreign Agents Registration Act” (FARA), which the authors of the bill have taken as a basis, the proposed text lacks the key demand that a foreign agent must be an organization that takes part in political life (above all through lobbying) on the instructions, request or under the control of a foreign party. The identification of any Russian non-profit that receives foreign financial support with a “foreign agent” derives from Article 2, Paragraph 1, of the bill which states that any organization that “takes part, including in the interests of foreign sources, in political activity on the territory of the Russian Federation” is a foreign agent.

At the same time the participation in political activity covers, according to the bill, "participation (including through financing) in the organization and conduct of political actions for the purpose of influencing the decisions of state bodes intended to change the state policy they are implementing, and also in the formation of public opinion for these purposes.” Such a formulation allows the activity of most non-profits, and in the first instance public organizations, to be considered as political, since their activity in many ways is linked with changes in government policy and the formation of public opinion for this purpose.

Consequently, in the bill in the form proposed declares all Russian organizations receiving grants and donations from foreign sources to be foreign agents if such organizations take part in "political activity". At the same time, receiving financial support through grants or donations does not presuppose the commission of actions that are on the instructions of, under the control of, or in the interests of the grantmaker (donor). The proposed form of regulation discriminates unjustifiably against Russian organizations that receive financial support from foreign sources, for purposes that are to the public benefit, since other Russian organizations that carry out similar activities to the public benefit are not obliged to be registered as foreign agents, to bear the financial burden of audits, or to use the terminology of "foreign agent " in their publications.

It should be noted that the removal from Article 2, Paragraph 1, of the bill of the phrase "including " from the definition of a Russian non-profit organization carrying out the function of a foreign agent (an organization that "takes part, including in the interests of foreign sources, in political activity conducted on the territory of the Russian Federation"), would not ensure the achievement of the lawful purpose of oversight of non-profit organizations, since the bill does not contain a definition of what is understood as activity "in the interests" of foreign sources. Such a formulation allows any activity to be considered as one carried out in the interests of a foreign source.

The proposed definition of an "organization carrying out the functions of a foreign agent", does not correspond to the provisions of Article 29 of the Constitution of the Russian Federation that guarantees freedom of expression, since it demands that an organization receiving foreign financing must identify itself as a "foreign agent", that is, must use a term with negative connotations as a compulsory condition for the dissemination of those ideas to which which the non-profit organization adheres.

The sanctions proposed by the authors of the bill (up to criminal sanctions) for violating the demands of the registration of a non-profit organization as a "foreign agent" are disproportionate to the purposes pursued and self-evidently violate the constitutional guarantee of the right of association, since the risk itself of being subject to such measures of liability will have a restraining effect and will result in a reduction in the activity of civil society organizations as Russian citizens refuse to engage in such activities.

Taking the above into account, we believe that the basic conception of the bill does not correspond to the democratic foundations of the Russian Constitution, and therefore we ask the State Duma of the Federal Assembly to reject the bill as a whole.

The Statement has been signed by:

Signatures of non-profits and other civil society organizations: