Olga Zimenkova: "This Bill will Lead to Discrimination and the Infringement of the Rights of Non-Profits in Russia"

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

· Freedom of association  · Human rights defenders

Olga Zimenkova: “The unscrupulous borrowing of US legislation in the provisions of the Russian draft federal law will lead to discrimination against the activity of non-profit organisations in Russia and the infringement of their rights...”

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Conclusions on the draft federal law On Introducing Amendments to Certain Legislative Acts of the Russian Federation Pertaining to the Regulation of the Activity of Non-profit Organizations, which Perform the Functions of a Foreign Agent, in comparison with foreign legislation and international legal treaties and agreements.

The draft federal law On Introducing Amendments to Certain Legislative Acts of the Russian Federation Pertaining to the Regulation of the Activity of Non-profit Organizations, which Perform the Functions of a Foreign Agent is a poor imitation of the 1938 US Foreign Agents Registration Act (FARA).

This law was passed in 1938 in order to monitor the activity of lobby groups supporting Fascist Germany and its satellite states.

It was applied several times during the Second World War, but once responsibility for the law passed from the Department of State to the Department of Justice in 1942, use of the law was restricted to sending letters and notifications to people who were considered potential agents of foreign principals, announcing that they were obliged to undergo registration. Sending these letters in several cases served as proof in court that the person had intentionally refused to register.

The most important amendments to the law were made in 1966. These were above all aimed at making the US Government’s decision-making process “better ordered”, as lobby groups’ actions in those years had gained considerable weight in the sphere of economic policy, particularly in defining the sugar quota following the embargo placed on Cuba, the most important sugar supplier on the market. The amendments to the law required anybody participating in what the law defined as “political activity” to undergo registration as an agent of a foreign principal.

This amendment narrowed the provisions of the original law considerably, which had previously not required the activity to be “in favour or in the interest” of a foreign principal.

Moreover, the application of the provisions to administrative and criminal responsibility was almost entirely replaced by civil responsibility, and so the law was ‘decriminalised’. Since 1966 the issue of applying criminal sanctions has arisen at a grand total of three court cases. For various reasons, mostly a lack of evidence or an agreement reached by the parties in court, sanctions were never employed.

Two other well-known cases that saw FARA applied, presided over by a grand jury, also ended without sanctions being levelled by the court. The first of these came at the end of the 1970s in Chicago, and involved the financing by the Iranian government of demonstrations in support of the Shah of Iran during his official visit to the USA. The court took the recommended decision, preventing the defendant from taking part in such activities, but even this recommendation was overturned by the public attorney.

The second case, in the state of Connecticut, involved an advertising campaign conducted by two advertising agencies funded by an official representative of the government of Jamaica. Very large sums of money from abroad were involved in all cases where the question of applying criminal sanctions arose. In the case surrounding the demonstrations in support of the Iranian Shah, the sum involved was 11 million US dollars, spent on three days of demonstrations. The other cases featured the same or comparable sums - between 2 and 11 million US dollars.

Since these cases, the law has been applied a total of 17 times in civil disputes. Of these, ten ended in civil sanctions being applied, and seven were settled out of court.

The Department of Justice employs administrative actions much more frequently. Practice of applying the law has shown that FARA is a malum prohibitum, which is barely known outside lobbying circles. Its application is restricted to an office of the Department of Justice sending a letter to the person who is allegedly doing the lobbying. As a rule, within a reasonable period of time that person either undergoes registration, or gives a substantiated response showing that they are not an agent, or that they fall under the dispensation provided by law. Registration is seen as “voluntary compliance” with the law.

If the addressee does not reply, or if they do not have suitable grounding for their actions, the Department of Justice requests that the FBI either carry out the necessary investigation or close the case.

The law is still operational today, although its basic provisions have undergone significant changes through precedents set in law enforcement practice. The underlying implication of FARA is that any individual, combination of people in the form of a partnership (not considered a legal entity in American law) or group of people acting in the interests of a foreign legal entity should be registered with the US Department of Justice, providing their name, address, company name, citizenship and status.

They must also supply details about the aims of their activity, the legal status of the organisation and the nature and form of their relations with foreign entities, and provide copies of all the contracts and agreements with foreign entities, details of financial support, all events carried out, information about the people in whose interests they are acting, and any other documentation affecting national security.

The original version of the 1938 law was aimed at “subversive” political propaganda from foreign agents. In 1966 the law was amended to include all activity sponsored from abroad, including economic activity, whether or not this activity was “subversive”. Following the passing of the Lobbying Disclosure Act in 1995, groups that lobby for foreign economic interests also have to undergo registration according to FARA. All organisations in the USA acting in the political interests of any foreign principal therefore fall within the scope of this law.

Non-profit organisations are also subject to the law, with the exception of organisations which undertake non-profit “religious, scholastic, academic, or scientific pursuits or of the fine arts” (Paragraph 613 (e)). The Business Council for International Understanding, the Hong Kong Trade Development Council, the DBA International Forum Institute in Jacksonville, FL, the Korea-United States Exchange Council, the Korea Economic Institute of America, and the American Section of the World Zionist Organization are just some of the non-profit organisations registered under the FARA legislation.

The key terms of FARA are the “person” obliged to undergo registration with the US Department of Justice; “foreign principal” and “foreign agent”.

According to Title 22 of the US Code (paragraph 611), the term “person” includes an individual, partnership, corporation, organization, or any other combination of individuals.

According to the law, “foreign principal” includes: 1) a government of a foreign country or a foreign political party; 2) a person outside of the United States, apart from individuals domiciled within the United States, or legal bodies created under the laws of the United States or of any State or other place subject to the jurisdiction of the United States and with their principal place of business within the United States; 3) a partnership, association, corporation, organization, or other combination of persons organized under the laws of a foreign country or having its principal place of business in a foreign country.

The term “agent of a foreign principal” applies to any person who acts as an agent, employee, or worker, or any person who acts in any other capacity at the order, request, or under the control of a foreign principal or of a person any of whose activities are directly or indirectly controlled, directed, financed, or subsidized in whole or in part by a foreign principal, or by a person who directly or through any other person:
- engages within the United States in political activities for or in the interests of a foreign principal;
- acts within the United States as a public relations counsel, publicity agent, information service employee or political consultant in the interests of a foreign principal;
- within the United States solicits, collects or dispenses things of value, gives out loans, money, or other things of value in the interest of a foreign principal;
- within the United States represents the interests of a foreign principal before any agency or official of the Government of the United States;
- any person who agrees, purports to act, or who presents himself to third parties as an agent of a foreign principal, whether or not there is a contractual relationship in place with the latter.

The law does not apply to the media, excluding those controlled or financed by foreign principals, diplomatic and consular institutions of foreign countries, official representatives of foreign countries, employees of foreign diplomatic representatives, or persons involved in:

1) private or non-political activity, or non-profit activity in commercial relations with a foreign principal;

2) any other activity in which the foreign interest does not take priority;

3) collecting funds with the aim of distributing them in the USA for medical assistance, clothing or food to provide relief to people, if this activity does not contravene the provisions of Title 9 of the law. The law does not apply to persons carrying out non-commercial activity in the fields of religion, education, science or art.

A special case is the activity of persons who represent the interest of a foreign country, if the President of the USA believes that said activity is of vital importance both for that country and for the USA. However, in that case the foreign country shall inform the US Attorney General about the persons representing its interests in the USA. Finally, lawyers representing the interests of foreign principals in the USA do not have to register.

Despite the ‘severity’ of the FARA legislation, it is worth mentioning three key points.

1. The word “agent” in English legal jargon is understood to mean “representative”. The law therefore affects persons who are representatives of foreign countries, their agencies and organisations and who are acting in precisely that capacity.

2. FARA is a law that concerns the disclosure of the status of individuals and organisations in the USA, who act as representatives for the political actions of foreign countries and foreign political parties, with the aim of periodically disclosing information about their relations.

3. The law refers to the activity of political parties from foreign countries and to the various types of economic influence from state agencies and private organisations in foreign countries, but it is in no way directed expressly at non-profit organisations. On the contrary, the agents (representatives) subject to registration are principally citizens acting in the interest of foreign political parties and who declare themselves as such.

In conclusion, the inexact, or better, unscrupulous borrowing of US legislation in the provisions of the Russian draft federal law will lead to discrimination against the activity of non-profit organisations in Russia and the infringement of their rights.

FARA in the USA is the only law of its type in the world, with no similar laws existing in Europe. The presence of this law in the US federal legal system and the very relaxed form of its application proves that the law is essentially outdated and is in clear need of considerable adaptation and amendment.

Negative viewpoints on this law can be found online, essentially boiling down to the fact that citizens who registered under the law, including because they worked in organisations run from abroad, experienced negative consequences as a result.

Because they were included on the list they could not find work, as potential employers did not understand their status. Only having “unsubscribed” from the list could they once more find a job. In contrast, there are also Internet testimonials reporting that the law for some reason does not apply to congressmen and senators who hold a foreign nationality as well as being American citizens.

Russian members of parliament have therefore recycled a very outdated US law as an example of “brand new” legislation. What is more, the new bill is a consciously and fundamentally degraded version of the American law.

O.N Zimenkova, Expert at the Independent Council of Legal Expertise (NEPS), PhD (Law)

Source Independent Council of Legal Expertise