Discussion on "foreign agents" (The New Times)

14 May 2013 

Source: HRO.org (info
The number of non-profit organisations declared to be foreign agents is rising sharply. Should NGOs meekly go on to the register of enemies of the state, which is ‘struggling against Russia’s international foes’? Or should they fight to the last? Different sides met to put their cases in the offices of The New Times

Participants (left to right): Furkat Tishaev (senior lawyer, Memorial Human Rights Centre), Ivan Ninenko (Transparency International - Russia), Mikhail Anshakov (Society for the Protection of Consumers' Rights), Svetlana Gannushkina (Civic Assistance), Aleksandr Cherkasov (Memorial Human Rights Centre), Yan Rachinsky (International Memorial Society)

Nearly all those present here have already been inspected, and several have been declared to be ‘foreign agents’ — except for the Society for the Protection of Consumer Rights... 

Anshakov (Society for the Protection of Consumer Rights): We were the first, just after the law came into force, to declare on our website: "We are foreign agents." But we have so far not made it onto the register. I feel offended, the merits of our colleagues have been recognised, but ours haven't. 

But you didn't submit a declaration to the Justice Ministry? 

Anshakov: No, of course not. We don't acknowledge the right of the state to introduce this type of segregation and declared straight away that we would never submit any kind of documents. Incidentally, we do not receive any foreign financing, but as you know anyone can fall foul of this law. Say someone comes to us for advice, a consumer for example. If they have a Ukrainian passport and they pay us 500 roubles for the consultation, that's foreign funding. 

When this law was being discussed last summer many assumed that it would be applied to specific targets. But now dozens at a time are being told they are ‘foreign agents’, from sociologists at the Levada Centre to environmentalists protecting cranes. 

Gannushkina (Civil Assistance): Because the cranes didn't fly after Putin. 

Cherkasov (Memorial Human Rights Centre): If there is a law and someone to enforce it then the law will start functioning irrespective of any kind of targeting. And if on top of that you have calls from above...When in April the Justice Ministry said that over 500 organisations had been inspected, and that only one of them, Golos, had been found to be engaged in political activity, an outcry followed, and they redoubled their efforts. Genka (that's what they call the Prosecutor General's Office in their circles) said that they needed to plough on, and plough on they did. What's more, the inspections in Moscow were nowhere near as ferocious as they were in the regions: at least we weren't asked to provide measles vaccinations and chest x-rays for our employees. And in St. Petersburg the district prosecutors themselves ran around the organisations from morning to night. It was similar to the situation in the 1930s in terms of competition for results inside departments between different structures. 

One mustn’t lie 

Let's clarify again whether you would countenance the possibility of going on to the register of foreign agents? 

Gannushkina: Not us. Because that would be a lie, and I cannot allow myself to lie to the Russian population. Not only is our organisation not a foreign agent, it is not any kind of agent at all. An agent, even in the positive sense of the word, is a representative, in other words we are supposed to carry out someone else's orders. But we are not agents, we are partners of the Office of the UN High Commissioner for Refugees. What's more, I did a specific online search for "foreign agent" and found a great number of synonyms: crook, spy, traitor. And not one positive connotation. So why on earth should we call ourselves something which has absolutely no relation to who we are? It is perfectly obvious that the intention is to defame non-governmental organisations in the eyes of the wider public and within official circles. If even now all our seminars are still being attended by representatives of the Federal Migration Service, the Interior Ministry, and other ministries and departments, then how will they come if it is written in black and white that they are being invited by a "foreign agent?" Judges' hands will be burned by booklets containing material by us, stamped "published by a foreign agent." There have even been comical instances when in the depths of winter charity workers tried to pull homeless people who were suffering with chilblains out of freezing basements, only to be told: "We are patriots, and you are foreign agents." So both in the eyes of officials and the general public we are pariahs, with whom it is best not to have any dealings. 

Rachinsky (International Memorial): Some people tell us that there's nothing wrong with going on the register of foreign agents, where's the harm? But you can't ask Vladimir Putin in the same way why he doesn't want to call himself a former Gestapo agent. After all, Gestapo simply means secret state police, nothing more. But this term has certain connotations in Russian, just like "foreign agent" does. 

: In the 1930s hundreds of thousands of people, before they were shot, testified that they were "foreign agents." And Memorial knows better than most how many of these people there were, by name. It is simply the memory of our own history that makes it very hard to accept this law. These observations are partly practical, partly emotional. But there is another kind of observation: none of this complies with the obligations Russia assumed as a member of the Council of Europe. 

Tishaev (Senior Lawyer with the Memorial Human Rights Centre): Yes, this law directly contradicts the European Convention for the Protection of Human Rights and Fundamental Freedoms, on at least four articles. Article 11, the right to freedom of assembly and association, Article 10, the right to freedom of expression, Article 14, prohibition of discrimination and Article 18, prohibition on illegitimate restrictions on rights. 

The main problem lies in the fact that the very concept of "political activity" in the law is incredibly vague, and the European Convention contains certain legal and technical requirements of laws. One of these requirements is that a definition is exact and clear, so that anyone to whom the law applies can foresee the legal consequences of how it applies to them. If absolutely everyone is found to be engaged in political activity, then the concept becomes so all-encompassing it loses all meaning. That is why no NGO can determine with absolute certainty whether or not they are engaged in political activity. As far as the term "foreign agent" is concerned, here things are much clearer: it means a significant reputational loss for any NGO. But the issue of inspections and reporting is still important. This is not merely about additional reporting. It means an expansion of the list of reasons for unannounced inspections by many agencies. It turns out that any individual can write to the relevant body: "I believe that Golos is engaged in extremist or political activities," and immediately a team of officials from various agencies begins inspecting the organisation. It took four whole days for our inspection to be completed, to complete all these reports, make copies of documents, etc. In other words the organisation was completely paralysed for four whole days simply for one inspection. So just imagine if they were to be subjected to inspections on a weekly basis, for instance. Then there are the mandatory audits for "agents," which, according to estimates by experts, will cost between 50,000 and 250,000 roubles. Add to that the huge fines if the organisation forgets to introduce themselves as a "foreign agent" somewhere, up to 500,000 roubles. The organisation will drown under all these checks. 

Money and reputation 

It has been said that NGOs are reluctant to register as foreign agents because foreign foundations are forbidden under their law to give money for political activities... 

Cherkasov: This is an old topic and involves a mixing up of concepts. Activities in defence of public interests, ordinary public activities are declared to be political. This is difficult for people in the West to understand. They don't want to finance political activities, meaning elections and the work of political parties, but in Russia we have a different understanding. Nobody is obliged to enter into the essence of the ravings of our Ward No. 6. 

Ninenko (Transparency International - Russia): The board of Transparency took the decision not to register as a foreign agent. Firstly because Transparency International is not involved in political activity. That was one of the conditions of us being part of Transparency International. If we suddenly declared that we were engaged in political activity we would lose our accreditation to the international movement. 

Anshakov: In my view, the state's attempt to make foreign agents of us all and make us wear something similar to the Star of David is simply a blatant challenge to civil society. I cannot find any terms to describe it other than the ‘trolling’ of civil society on the part of the state. And I propose a commensurate, coordinated and combined response to this ‘trolling’: the shaping of public opinion. That is unfortunately the most we can do in this situation. Despite all the propaganda from the state TV channels, a large enough number of people in the country take a positive attitude towards non-governmental organisations. I am proposing something else: declare on our websites that we are "foreign agents" and explain to society that the state has forced us to pin this label on ourselves. But we will help you anyway, in spite of the fact that the state is persecuting us in this way. We need to be more active and purposeful in shaping public opinion on this issue, so that this ‘trolling’ comes back to hit the authorities like a boomerang. And so that after a certain time they can feel it. 

Gannushkina: There are not that many of us and destroying us is not hard. We have not won over people's minds, and that is very much our fault and a big shortcoming of our work. So when you say that people have a positive attitude to those who assist, for instance, refugees, that's not strictly true. I've repeatedly heard the reproach: why are you bringing them all here? And explaining that we are not bringing them here is very hard. 

Cherkasov: In actual fact over the last year a whole series of laws have been adopted that have restricted fundamental rights and freedoms. It is completely deliberate social engineering, which is being accompanied by very harsh measures, masked by the law, but what should be done about such crass social engineering is not entirely clear. 

How to survive 

Let's look at the issue from the point of view of those people you are helping. If you refuse to register as a foreign agent and get shut down as a result, these people, these beneficiaries as you call them, will be left without assistance. From their point of view, it would probably be better for you to carry on with your work, even if that means having an offensive stigma attached to your name. 

Gannushkina: It seems to me that it won't be possible to carry on working and living like we used to with a yellow star on our sleeves. They won't allow us to work, that much is clear. 

Ninenko: Registering as a foreign agent would mean that you could be closed down at any moment. You would have to consider every step: will this or that action lead to comrade N from the anti-extremism department slipping me a dollar and I'll be closed down? Working under such circumstances is impossible. 

Cherkasov: There is also the related law on treachery. If we label ourselves "foreign agents" and perform our normal work, representing the interests of our applicants at the Strasbourg Court, we are establishing contact with an international organisation and therefore fall under Article 275 of the Criminal Code. That means the normal activities of our organisation are criminalised: in essence, and to put the issue in focus, appealing to the European legal mechanisms becomes impossible. So to talk of normal activity with the stigma of being a "foreign agent" is quite a challenge. 

So what is to be done? 

Gannushkina: Firstly, carry on litigating and appealing to the Constitutional Court to clarify the constitutionality of this law. Wait for the response of the European Court of Human Rights. And continue our work, regardless of the fact that this now requires herculean efforts. Appeal to society, something we have so far failed to do. As far as the future is concerned we probably have to talk with the people enforcing the law. We've tried to talk to the Public Prosecutor's Office and invited their representatives to the Presidential Council for Civil Society and Human Rights, but they didn't show up. Even though behind the scenes the prosecutors say, "You understand, we want to set some kind of precedent for how this law is applied, so that everyone can see how bad it is. But while we have no practical application we cannot even question its shortcomings." But these are just excuses. 

Would it make sense to put something in your statute, so that you don't give them any reason to level accusations? 

Ninenko: We had our first scheduled inspection by the Justice Ministry; they didn't find anything, everything was fine, no political activity of any kind. The unannounced inspection by the Public Prosecutor's Office didn't find anything either. It was the only the new spot check by the Public Prosecutor's Office that found evidence of political activity, in the form of an evaluation of a law in terms of anti-corruption. But I'm sorry, to suggest that an anti-corruption evaluation, which is exactly the sort of thing that falls under our remit, is political activity, is just ludicrous. 

Gannushkina: The same goes for legal defence. 

Ninenko: I do not rule out that there are some NGOs that have accidentally gotten into hot water for simply being used by prosecutors to earn themselves a good mark. But the majority of organisations have ended up on the list of "agents" as a result of completely intentional and deliberate actions, the authorities have had it in for them for a long time and now the opportunity is there to close them down. They don't care what we write in our statutes, the only way to protect ourselves is to stop what we are doing. 

Tishaev: The law itself states: "irrespective of the goals and objectives set out in the statute." In other words, look at the activities themselves. And if an employee of the organisation has attended a rally, you can boldly say that the organisation is involved in political activity. So any activity can be made to fit the law. So trying to be clever won't help. 

Members of the underground and dissidents 

One of our opposition activists said in a fit of temper that it would be better for us to be like Belarus: everyone knows that everything is forbidden, so we work in peace as part of the underground. What do you think of this option? 

Cherkasov: We are talking about ways of preserving ourselves as open and active non-governmental organisations, not secret societies. So in my opinion that is not the correct formulation of the problem. The term "dissident" is more appropriate to the situation, in the sense that we can live as free people in an unfree country. The underground is not an option. 

Ninenko: Transparency International cannot in principle go underground. Then it would be a different organisation, different activities. 

Are there any other kind of purely legal tricks? For instance, if you are closed down register under a slightly different name? 

Anshakov: I have a whole set of documents of non-governmental organisations with similar names in my bedside table, just in case. I know full well that if we get the chop we will open a new bank account for a new legal entity. 

Cherkasov: Tricks won't save us here. About 15 years ago, I heard about the following from some Cossacks in the Caucasus after the third glass: a secret plan for world Zionism consisted, in their opinion, in that the Armenians would build an Islamic state from the Black Sea to the Caspian Sea. In principle, the search for foreign agents, not at the Cossack level but at the state level today, both in terms of coherence and depth, is about the same. 

Gannushkina: There is a terrible insularity among those in power. Their favourite saying is he who pays the piper calls the tune, because apart from servility they have nothing in their heads, and that is the great tragedy of Russia. 

Photographs: Egor Slizyak, Reuters

Source: "The New Times"