Yury Kostanov: A Bill of This Kind Is Conceptually Unsound

Source: HRO.org (info), 03/07/12

· Freedom of association  · Human rights defenders  · Persecution of activists  · Moscow City & Moscow Region

Yury Kostanov: "Obviously, such practice cannot be enshrined in law. As regards human rights, there is no need to discuss them whatsoever, because in this legal relationship a person is not a subject in possession of equal rights but is an object of persecution by omniscient lawmakers and civil servants (who know better than the people themselves precisely who they are – spies, agents of influence and so forth, sabotaging the interests of the motherland)..."

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I, Yury Artemevich Kostanov, an expert with the Independent Council for Legal Expertise, candidate of legal sciences and associate professor, State Law Adviser Grade 2 with 49 years and 8 months experience in the legal profession, including 24 years and 8 months in the Prosecutor's Office and 5 years and 8 months in the judiciary, have been invited to express my opinion regarding the draft of the Federal Law "On the introduction of changes to the separate legislative acts of the Russian Federation pertaining to the regulation of the activity of non-profit organisations which perform the functions of a foreign agent," introduced by State Duma deputies I.A. Yarovaya, A.L. Krasov, A.G. Sidyakin, M.E. Starshinov, A.L Shkhagoshev and V.A. Nikonov.

Having studied the aforesaid bill, I have come to the conclusion that it is conceptually unsound, which in my view is grounds for its rejection by the State Duma at first reading.

1. The bill proposes that additions be made to the Federal Laws "On public associations", "On non-profit organisations" and "On countering the legalisation of illicit earnings (money laundering) and the financing of terrorism" as well as to the Administrative Offences Code of the Russian Federation and the Criminal and Criminal Procedure Codes. These changes are intended to increase supervision of the activities of non-governmental, non-profit organisations by state bodies. This is to be achieved by establishing supervision of the financing of these organisations' activities (including receipt and expenditure of funds) by foreign sources.

As stated in Article 2, Paragraph 1 of the bill, "In this Federal Law, non-profit organisations performing the functions of a foreign agent shall be understood to be a Russian non-profit organisation which receives monetary funds or other assets from foreign states, their foreign agencies, international and foreign organisations, foreign citizens, stateless persons or persons authorised by them and/or from Russian legal persons which receive monetary funds or other assets from the sources indicated (hereafter referred to as "foreign sources"), excluding open joint-stock companies with state participation and their subsidiaries, and which participates, including in the interests of foreign sources, in political activity carried out on the territory of the Russian Federation."

And also: "A non-profit organisation, excluding political parties, is recognised as participating in political activity when, independently of the aims and tasks stated in its founding documents, it participates (including via financing) in the organisation and holding of political actions with the aim of pressuring state bodies to make decisions intended to change the policy of state agencies, as well as in the formation of public opinion to these ends."

Anyone can be considered a sponsor: foreign states, their foreign agencies, international and foreign organisations, foreign citizens, stateless persons or persons authorised by them and/or from Russian legal persons which receive monetary funds or other assets from the sources indicated.

Underlying the bill is the recognition of non-profit organisations whose activities are either wholly or partly financed by foreign sources as organisations which "perform the functions of a foreign agent."

The authors of the bill propose that these non-profit organisations be obliged to recognise themselves as a foreign agent and declare their status as a foreign agent in various documents presented by the relevant state bodies. In the opinion of the bill's authors, failure to present these documents or refusal to recognise oneself as a foreign agent ought to entail administrative or criminal liability.

2. In Russian the word "agent" signifies a person (individual or legal) acting in someone's interests, carrying out someone's orders, an aide.

"AGENT [Ger. Agent <Lat. agens (agentis) active] - 1) a person acting on the orders and in the interests of someone; a representative of an institution, organisation etc.; 2) a secret officer of the special services of a state; 3) a regular officer in the special services in certain states; 4) a champion of someone's ideas; 5) an active reason which brings about these or other occurrences."

(E.S. Zenovich, Dictionary of Foreign Words and Expressions, ACT Publishing, Moscow: OLIMP, 2000, pp. 24-25)

"AGENT m. 1. A person authorised by an institution or enterprise to carry out official or business assignments. Supply agent. Diplomatic agent. Insurance agent. 2. A person who acts in the interests of someone or something, serves the interests of someone or something. 3) A spy."

(S.I. Ozhegov and N.Yu Shvedova, Explanatory Dictionary of the Russian Language, V.V. Vinogradov Russian Language Institute, Moscow, 2001, p. 18).

To date the term "agent" has only been used in law in Chapter 52 of the Civil Code of the Russian Federation, which concerns shipping agents. In accordance with Article 1005, Section 1 of the Civil Code of the Russian Federation, "Under the brokerage contract one party (agent) shall undertake to perform legal and other actions for remuneration on the instruction of the other party (principal) on his own behalf, but at the expense of the principal or on behalf and at the expense of the principal."

In all the occasions mentioned, a person becomes an agent of their own accord. As such, if an agent's activity is illegal (foreign intelligence agents or aides of those or other criminal and similar groups and persons), then liability for such activity must be followed up with the procedures provided for by law (Administrative Procedure Code and Criminal Procedure Code of the Russian Federation). Virtually nothing is dependent on the will of the organisation itself and no adversarial procedure to recognise a person as an agent is provided for.

According to the proposed bill, an organisation must recognise itself as a foreign agent and it is of no import if an organisation does not consider itself to be a foreign agent and thus will not declare itself to be one; the relevant state structures consider the organisation to be a foreign agent and they can institute proceedings against the organisation itself and its functionaries under administrative or even criminal law.

Therefore the key condition is whether an organisation is a foreign agent, which is not established by court following the relevant procedure but by the arbitrary judgement of officers of executive authorities. This means that non-admission of collaboration with foreign structures rather than the collaboration itself will become punishable by law.

Such practice - effectively punishing people not for a crime, but for refusing to admit their guilt - has until now been typical of police officers abusing their authority by beating admissions of guilt from detainees and promising to take strong measures if they do not comply.

In the absence of supervision by the Prosecutor's Office of the investigation and due process guarantees by the courts, this situation has led to terrible consequences.

"Obviously, such practice cannot be enshrined in law. As regards human rights, there is no need to discuss them whatsoever, because in this legal relationship a person is not a subject in possession of equal rights but is an object of persecution by omniscient lawmakers and civil servants (who know better than the people themselves precisely who they are – spies, agents of influence and so forth, sabotaging the interests of the motherland)..."

3. The authors of the bill do not distinguish the activity of foreign sponsors whose actions are often based on charitable and other positive motivations. Both organisations under the influence of foreign special services and those in receipt of grants for nature conservation and epidemic and epizootic control may be subjected to the sanctions stipulated in the bill.

The articles of the bill which establish administrative and criminal liability do not contain provisions on damage caused to public relations or on the public danger of the punishable acts (which is rightly pointed out in the review by the Supreme Court of the Russian Federation).

4. The bill has many shortcomings in terms of judicial technique - a range of instances of vague wording, unclear differentiation between administrative offences and crimes, establishing punishments for administrative offences that are on a par with criminal punishments in their degree of severity and so on. Revealing these flaws requires time and can be carried out later if the bill successfully passes its first reading in the State Duma.

Yu.A. Kostanov, ICLE expert

Source: Independent Council for Legal Expertise
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