Pavel Chikov on the New NGO Law: On the Road to Treason?

Source: HRO.org (info), 05/10/12 

· Human rights defenders

Nikita Girin
, Novaya gazeta
: The enforcement of the foreign agents law draws nearer. Legal experts are worried about the lack of reaction from the NGOs, which could be accused of espionage as well. The president of the Agora Human Rights Association, Pavel Chikov, who is now conducting training sessions for NGOs in major Russian cities, did a lightning analysis of the law on foreign agents. He talked about the possible variations of its implementation, the mood among the “foreign agents” themselves, as well as the new obstacles that legislators are preparing for them.

Any day now the Ministry of Justice should respond to the inquiry from Agora Human Rights Association about the application of the law on foreign agents to non-profit organisations. The lawyers have asked the Ministry to explain such “flexible” legal terms, for example as “the formation of public opinion”, or “influencing decisions by government agencies”. By the will of the State Duma these obscure concepts have become the characteristics of “political” NGOs, which, having received some kind of foreign funding, will be obliged to register as foreign agents from 21st November 2012. Agora’s experts are convinced that these characteristics are more or less inherent in all NGOs. Moreover, most NGO leaders, are not doing anything about it, even though they are threatened with severe fines and criminal prosecution for not meeting the demands of the law.

State treason – in a package:

No one has a clear position as to how to behave in this situation. Meanwhile the consequences of the passing of the foreign agents law, and the accompanying amendments to the Adminstrative Code and the Criminal Code, could be very significant. This is not only the suspension of activity, but also fines amounting to millions of roubles for an organisation, and up to 50,000 roubles for its director. According to the new article of the Criminal Code, “Malicious evasion of the obligations of a foreign agent,” this could lead to the criminal prosecution of the NGO’s director.

It is obvious that within the package of measures in the foreign agents law are included amendments to the articles of the Criminal Code on state treason and espionage, in which there is now the inclusion of yet one more form of crime: “aiming to pass on information”. This really widens the concept of state treason and it includes the gathering of any kind of information threatening the security of Russia, and passing this information to an international organisation.

Crudely speaking, even an application to the European Court for Human Rights can be considered as state treason, if the information expressed in the application threatens the country’s security.

And if an NGO is on the register of foreign agents, it effectively simplifies the requirement to show that it is acting in foreign interests. In September all these amendments were passed by the Duma at the first reading. The deputies are planning to return to them in the middle of October.

The General Mood:

At the present moment all this sounds nonsense, but a year ago it seemed unlikely that it would happen in Russia now. Therefore we held seminars for NGOs in Moscow, Nizhny Novgorod, Novosibirsk, Perm and St Petersburg. All in all, there were representatives from about 300 different NGOs taking part, not all of them from human rights organisations. There will be further seminars in Voronezh and the North Caucasus.

The general mood is such: nobody is taking the law seriously, and nobody is planning to enter the register. Moreover, prior to the training sessions, nobody knew practically anything about this law, and only joked about calling one another foreign agents. After the seminars, many felt quite despondent.

With regard to this law, there is a fine line between human rights organisations and all the others. The position of human rights activists is well known: they are in favour of open disobedience of this law. Only a few organisations, basically socially orientated, but very influential all the same, stated that if all their activity is at stake, they will consider the question of entering the register.

It is essential to remember that in order for an NGO to be recognised as a foreign agent, it must satisfy two criteria.

The first relates to foreign funding. The provisions of the law are such that any NGO can fall under into this category. Foreign funding is categorised as the receipt of property, including money, from a foreign government, its agencies, foreign nationals, stateless persons, or foreign or international organisations. For example, according to the law, foreigners can join trade unions. Let’s say some people, for example Ukrainian and Belorussian citizens, join the pilots’ trade union. Their membership dues will be considered to be foreign funding.

An organization that receives money from any Russian legal body, which in turn, receives money from a foreign organization, will also fall into this category. Receiving funding from any stockholding company registered offshore, or from an organisation that is in receipt of credit from a foreign bank, would also satisfy these criteria.

The second criterion is about participation in political activity. Any kind of activity aimed at forming public opinion can be deemed political. But it is difficult to define clearly what forming public opinion really means. There is no clear answer to this in the law.

Moreover, the law does not indicate that foreign financing should go precisely towards political activity. These are two independent criteria. Are you in receipt of foreign funding? Are you shaping public opinion? Welcome to the register!

However, it is not clear who will carry out this work of registering – the regional divisions of the Ministry for Justice, or the Ministry’s central staff. Moreover, the law states how you can enter the register, but not how you can leave it. Does this mean that it is impossible to leave it? Again, there is no answer.

Punishment:

NGOs do not realise that the law makes them responsible for defining whether or not they are foreign agents or not. This is, of course, pure equivocation. It would be just the same if the authorities said, “After tomorrow, all people living in Russia will be divided between black and white. Everyone must decide which one they are. Those who don’t get it right, or who don’t decide at all, will be punished.”

Meanwhile, as from 21st November, there will suddenly appear a whole series of measures which the Ministry for Justice can make use of in a purely voluntaristic way. First of all, there will be a warning that the law is being broken. This is a mere mosquito sting. Secondly, the suspension of activity for a span of six months. Thirdly, opening of an investigation for an offence under the Administrative Code. This can be instigated in relation both to an organisation, and its director. Moreover, cases can be instigated simultaneously with regard to all three of the newly defined offences.

In the worst case scenario this means there could be six separate investigations: three each against both the director and the organisation.

Finally there is the criminal case for “Malicious evasion of the obligations of a foreign agent.” We could suppose that the malicious evasion could be considered to arise where the organisation has appealed in court against some action by the Ministry of Justice, and the court has accepted the action as lawful, the judgement has taken effect, but in the course of a long period of time, the organisation did not carry it out. The punishment would be up to four years’ imprisonment.

Judging by the mood of the Ministry of Justice, the department itself is not exactly ecstatic about the law, and will not actively prosecute its implementation in a punitive manner. However, “will not” does not mean “cannot”. If the order comes to take measures against a particular organisation, they can immediately come down heavily against it using all the provisions of this law.

The order from above:

My feeling is that the law has been adopted with a view to using it against specific organizations. Firstly, against those that organise public demonstrations; and secondly, against those involved in the election process. Bluntly speaking, against the Golos electoral rights organization on the one hand, and against NGOs that “stir up” protests in Moscow on the other.

A number of NGOs have been told in the regional divisions of the Ministry for Justice, “What are you getting upset about? You don’t fall under this law; you don’t hold demonstrations, and you’re not involved in elections.” However, the officials immediately went on to state that this was only their personal opinion, and they themselves were waiting for clarification from Moscow.

What should be done?

When the foreign agents law was first adopted, it seemed that the safest way to react to the situation was to enter the register, insofar as fulfilling the responsibilities of a foreign agent was not a great legal burden. However, the amendments to the law on treason which are being adopted in practice mean that anyone entering the register will become a suspect for the authorities. It will only remain to prove the fact of gathering any kind of information, which, in the opinion of the FSB investigators, would threaten the security of Russia. Therefore the variant of entering the register no longer seems to provide even minimal security for NGOs. On the contrary, it seems that it will be necessary on all accounts to prevent entry in the register, even at the price of a threat of a fine.

Source: Nikita Girin, Novaya gazeta

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