Should we appeal against the "foreign agents" law? report from the "Strasbourg Sessions"

28 November 2012 

Vera Vasilieva

On 27 November 2012 a regular roundtable meeting of the "Strasbourg Sessions" was held at the Independent Press Centre in Moscow. Up for discussion was the possibility of appealing the requirement for public organizations to register as "foreign agents" at the European Court of Human Rights (ECHR).

The event was organised by the Centre for International Protection and was led by the non-profit’s deputy project director Valentin Moiseev. Also taking part in the discussion was the Centre's project director, lawyer, Commissioner and member of the Executive Committee of the International Commission of Jurists Karinna Moskalenko, alongside the Centre's Aleksandr Manov, Maria Samorodkina and Igor Zuber.

The roundtable participants sought to establish whether human rights defenders currently have grounds to apply to the ECHR to appeal the law on "foreign agents". They also wanted to ascertain if there is a potential victim in the situation resulting from the law, how to bring about the exhaustion of legal remedies inside the country and if it is necessary to completely exhaust them.

Valentin Moiseev:

We got together on the eve of an important date in the life of our organization – in a few days we will turn 18. We will reach this milestone with relatively good results: 135 cases won, which is 14 % of all Russian cases won at the ECHR. Coming up to the organization's anniversary, we would like to be able to discuss plans for the future, but right now it's unclear.

What will this law bring? More frequent reports, for one. But the mandatory registration as a "foreign agent" has provoked considerable protest. Aside from the philological dispute, it is clear that some judicial consequences have arisen. I don't currently have any information that a whole series of NGOs have been closed as a result of the law, but it must also be said that I have no information about the positive impact of the law, either.

Igor Zuber:

Our authorities are misleading Russian citizens and human rights organisations when they claim that the law on "foreign agents" is based on Western models, in particular, on the USA's legal norms. This comparison is completely meaningless, because NGOs in the USA that receive foreign funding but not direction from their sponsors are not subject to this law.

Karinna Moskalenko:

Aside from the fact that this smacks of yellow stars, it makes you think of the repressive practices of the USSR in the 1930s. Long prison sentences or the death penalty were the consequences of confessing to being a "foreign agent". This is a juridical fact. I would even say that it is a great number of juridical facts.

This practice has never been condemned by the state. To anyone who offers up thousands of instances of rehabilitation to dispute this, I simply pose the following question: were people rehabilitated because their work as foreign agents was never proven? No. The absurdity of the allegations was what everyone talked about during the rehabilitation process, not about the fact that the idea of people working as foreign agents was a complete fabrication, and was unproven by the circumstances.

For our state, the term "foreign agent" has always signified a concrete deed.

Speaking about the M case, Russia's president stated long before court, that: "Yes, there is a lot of commotion around these characters just like before, but I believe that in these situations our agency acts in the interests of the state... We are working based solely on the facts. It doesn't matter what intelligence service he worked for, South or North Korean."

Meanwhile, the ECHR subsequently ruled that the court hearing M's case was unfair and not independent.

If we are not foreign agents because we give the term a legal meaning and no other, then it means that the authorities are forcing us to knowingly report false information about ourselves.

The reality is that we are not doing the bidding of our foreign donors, they are doing ours. When they announce a competition for a grant, they only dictate the sphere in which the money will be used (legal training, social assistance, etc.) and we decide what we will do with it.

I think we are all unanimous in our view of this law, but our opinions diverge on the question of whether we now need to apply to the European Court.

I believe that an application at this moment would be premature, as the authorities have not yet taken any repressive actions against us. All they are doing is gleefully proposing that if we are foreign agents anyway, to simply call ourselves by that name. This is why the European Court could consider our application unfounded.

Aleksandr Manov:

Above all I am troubled by the issue of free legal assistance. Where can a poor person turn if they lack the funds to obtain qualified legal assistance? Only to human rights defenders, if the person has truly serious issues. Normal, serious human rights organisations which work with lawyers or simply with specialist jurists can help this person. If these human rights organisations are to be forced to cut back on their activity, who will fund and carry out this work?

The next thing I think needs attention is terminology. Calling someone a "foreign agent" isn't just insulting; it's a violation of the principle of equal rights. Why should a citizen like any other have to call themselves a "foreign agent"?

I will touch a bit more upon the issue of political activity at work in this law. The responsibility for interpreting what this means precisely under this law has been handed off to judges, who will have to interpret various types of activity as either being political or non-political.

Moreover, what is the procedure for registering as a "foreign agent"? We have already been through this. Think of vodka vouchers, cigarette vouchers and the notion of a "heavy smoker".

The theory of law stipulates that the state must avoid unnecessary enforcement of the law. In other words, if we can do without vouchers for clothes, for example, and simply go into a shop and buy them, then we need to do without them. In our case, an unnecessary legal stage has been introduced where we are forced to register ourselves as foreign agents. From a legal regulation standpoint, this is simply unscientific.

Given that this law leaves a great deal to the discretion of the individual civil servant in each concrete instance, it is worth discussing the law’s openness to corruption. This could be a consequence of its lack of legal clarity, but it could also have been deliberately engineered.

As regards applying to the European Court, in principle, I think it is a possibility. But the European Court's regulations are constructed in such a way that it will be very difficult to achieve a positive ruling. I believe that we need to gather material before we submit an application.

The final option would be to apply to the UN Human Rights Committee. However, its decisions are of little interest to the Russian Federation and it does not comply with them.

Maria Samorodkina:

Let's turn to the procedural part. It's obvious that right now we must reason that the application could only be submitted by a potential victim. Precedents exist, but there are few of them. We need to establish whether we can comply with the admissibility criteria for an application.

In particular, we need to consider the difficult issue of exhausting legal remedies, as I think we could end up in a dangerous situation.

The Constitutional Court has already been mentioned today. A potential victim cannot apply to the Constitutional Court. Before we can go there, the potential victim must become an object of law enforcement. In addition, before applying to the Constitutional Court we need to exhaust all domestic legal remedies of the first instance, of the second instance, etc.

It's clear that we haven't done this and, as such, we can only talk about the criteria for exhausting legal remedies in a hypothetical way.

If we argue that the potential victim does not have to exhaust domestic remedies when applying to the European Court because we believe them to be ineffective, then we will have to go to Strasbourg and show this convincingly. We will have to present facts and evidence, not unsubstantiated statements.

I think that it would be difficult to explain to the European Court why we have not exhausted the legal remedies of the Russian Federation.

I would also like to say something else about another layer of problems I see. I have a question for my colleagues, which is: what are we going to analyse? If we don't have a concrete case and no applicant who has been the object of law enforcement, it will be quite problematic to justify this application.

It's possible that it would be wrong to wait while alarm bells are ringing in all our heads. The warning signs in this vague bill are clear to everyone. But considering the application from an admissibility standpoint, the European Court could find insufficient.

For this reason I say it's too early to go to Strasbourg on this potential case, though there’s no question that we have to prepare for this eventuality.