Furkat Tishaev: Amending the Law on 'Foreign Agents'

posted 29 Oct 2013, 14:41 by Rights in Russia   [ updated 29 Oct 2013, 14:50 ]
24 October 2013 

Furkat Tishaev

Source: HRO.org
The State Duma's legislative initiatives over the past two years can without doubt be described as repressive because just about all of them have been aimed at restricting various human rights and freedoms.

Some of these laws (relating to meetings, to ‘propaganda of non-traditional sexual relations among adolescents’ and to NGOs - the ‘foreign agent’ law) have already been deemed to bes incompatible with the Constitution and/or international human rights standards, including those regulated by the specialised bodies of the Council of Europe.

The adoption of the law on ‘foreign agents’ has proved to be one step too far for the patience of civil society as, for the first time ever, the third sector has openly declared that it is boycotting a federal law that has already entered into force. 

Moreover, in February 2013 a group of leading Russian human rights organisations brought a collective complaint to the European Court of Human Rights regarding the ‘foreign agent’ law before it came into force. The main argument presented in the application was that this legislation did not meet international human rights standards, in particular, there was a significant restriction on freedom of association and on freedom of expression by these associations. 

Subsequent application of the law by the Public Prosecutor's Office and the Ministry of Justice has confirmed all the concerns raised in this preventative application to the ECHR. 

The law on ‘foreign agents’ was also sharply criticized by the expert community, both in Russia and abroad. Those who have criticized the law as a gross violation of numerous principles of human rights and freedoms include the Council of Europe Commissioner for Human Rights, the chair of the Presidential Human Rights Council, the Independent Council of Legal Expertise, the non-profit partnership Lawyers for Civil Society, and many other experts. 

The interpretation of the ‘foreign agent’ law by the Russian courts put an end to the debate about the compatibility of this piece of legislation with the rule of law. The situation at times became absurd, when participation in a round table that had not taken place or bringing an application to the European Court of Human Rights was considered as being political activity. 

It also became obvious that the absurdity of the judgments of the courts was caused by the law itself, rather than by its whimsical interpretation by individual judges. With ‘political activity’ redefined as ‘influencing public opinion,’ the courts simply do not have the possibility to object to the will of the legislature and declare that this law defies common sense. Therefore, in Russia there is only a negative judicial practice in relation to the interpretation of ‘political activity.’ The courts are simply forced to play by the rules established by the legislature. For example, in the case of the Ministry of Justice against the regional organization Golos, the magistrate considered that taking part in a round table discussion constituted political activity, and explicitly concluded: "The law is now in force and therefore must be applied". 

In this way, as long as this law is not annulled or amended, the Russian third sector will be subject to a substantial restriction on its activities, a restriction that eventually will lead to the closing down of independent and ‘uncompromising’ NGOs in Russia. For example, Golos was fined 400,000 roubles for refusing to register as a ‘foreign agent’ and decided to dissolve itself because its managers could at any time be subjected to criminal prosecution for failure to comply with the requirements of the law. In other words, the current version of the law on ‘foreign agents’ hangs like a sword of Damocles over the Russian third sector, which in itself leads to significant self-censorship in the work of NGOs. 

In such circumstances it is clear that, in order to maintain the very institution of NGOs in Russia, this flawed law should be abolished or, at least, be subject to a major redrafting. Moreover, there are several provisions of this much criticised law give grounds for serious concern: a too vague and a too far-reaching definition of ‘political activity’; the very existence of the term ‘foreign agent’, a phrase which in Russian invokes the negative concepts of ‘spy’, ‘enemy’ or even ‘traitor’; a discriminatory approach in the treatment of NGOs that receive foreign funding in comparison to other NGOs, as well as stricter legal regulation of such NGOs (an increased reporting regime, grounds for unscheduled inspections, special sanctions, etc). 

In this connection, suggestions made by the experts of the Moscow Helsinki Group to bring Russian legislation on NGOs in line with the Constitution and also international human rights standards are to be welcomed. 

Thus, a prerequisite for reform of the legislation must include an outright rejection of the term ‘foreign agent’, a radical change in the definition of ‘political activity’, and also strictly non-discriminatory treatment of NGOs, irrespective of their sources of funding. It is to be noted that receiving funding from foreign sources is an inalienable right of any NGO, as confirmed by many international agreements of the United Nations and the Council of Europe.

So far as the definition of ‘political activity’ is concerned, it should be noted that ‘political activity’ has already been defined with sufficient clarity in other areas of Russian law. Thus, the law on the status of judges provides a sufficiently precise and clear definition, the essence of which is unambiguously the types of activity that directly or indirectly are aimed at achieving and retaining state power (participation in, or financing, the congresses of political parties, putting forward candidates for election, political campaigning, etc.). It is obvious that ‘influencing public opinion’ cannot be included in the definition, since influencing public opinion is no other than the exercise of freedom of expression, as guaranteed by Article 29 of the Constitution and Article 10 of the European Convention. 

For these reasons, the necessary reform of the legislation on NGOs will result in the law on ‘foreign agents’ losing all sense, because foreign funding of political activity in its true meaning is in any case prohibited by law, something which is the usual and perfectly acceptable practice not only for Russia but also for any other country, in the context of compliance with the universal international principle of non-interference in the internal affairs of states. Therefore the most appropriate and effective way to address this situation would be to completely repeal this controversial law. Indeed, this has been the purpose of the collective application to the ECHR by a dozen Russian NGOS since the law first on ‘foreign agents’ first came into force. There is no doubt that sooner or later this law will be repealed. 

Source: Memorial Human Rights Centre