Maria Kanevskaya on the ruling of the Constitutional Court on the 'foreign agent' law: Don’t wait until they come for you

posted 13 Apr 2014, 11:04 by Rights in Russia   [ updated 13 Apr 2014, 11:19 ]
9 April 2014

Source: (info)
Maria Kanevskaya, director of the Human Rights Resource Centre in St Petersburg: 

Yesterday’s decision of the Constitutional Court was a starting point for the beginning of possible further repressive actions against the more active NGOs. 

It is sad that the Constitutional Court of Russia did not pay attention to the fact that the law on ‘foreign agents’, in addition to the right of association, concerns the following constitutional rights, such as:
  • Freedom of expression, including the freedom to disseminate information by any lawful means (Article 29 of the Constitution of the Russian Federation); 
  • Artistic freedom (Article 44 of the Constitution); 
  • Equality of all before the law and before the courts (Article 19 of the Constitution); 
  • Ban on arbitrary restrictions on civic rights and freedoms (Article 55 of the Constitution). 
I do not think that this ruling represents the ‘maximum’ that the Constitutional Court could do. Taken altogether for the sector, this is a negative ruling. What will come out of it? The review of a number of cases (for example, against the director of Golos Association) and a reduction in fines. But on the whole, for the Third Sector there will be no general improvement since the law will not be revoked or reviewed. The Constitutional Court today has ‘trodden on the throat’ of human rights in Russia.

From the ruling of the Constitutional Court the conclusion can be drawn that if a non-profit organization holds a rally in support of a decision taken by the government, it will not be considered to be taking part in political activity; whereas holding a rally against the same decision, or for the purpose of changing it, would automatically make this action political.

Consequently, this legal regulation which has been introduced will result in the legal status of non-profits depending on whether they are loyal to government policy or not, in other words in practice the legal status will depend on the beliefs held by the organization.

At the same time, the inclusion of a non-profit in the register of non-profits acting as foreign agents is not only a formality, but places on the organization additional responsibilities, including those of a financial nature: the obligation to conduct an audit of annual accounts (Article 32, Section 1, para 1 of the law ‘On Non-Profit Organizations) with the presentation of the audit’s conclusions to the appropriate authority (Article 32, Section 3, para 1 of the same), more frequently than in comparison with other non-profits and with threat of sanctions under Article 19.7.5-2 of the Administrative Code concerning the presentation of reports to the responsible body (Article 32, Section 3 of the law ‘On Non-Profit Organizations), and also the publication of these reports (Article 32, Section 3.2 of the same). Moreover, in relation to non-profits functioning as foreign agents, the grounds for unscheduled inspections is broader Article 32, Point 4.6 of the same).

It must also be pointed out that according to recommendations by the Human Rights Commissioner of the Council of Europe, the demands for reporting and accounts must be the same for all non-profit organizations, while any long-term use of the term ‘foreign agent’ in legislation and practice in relation to non-profit non-governmental organizations will only lead to further ostracism in relation to civil society and have a restraining influence on the activity of such organizations (Conclusion of the Human Rights Commissioner of the Council of Europe of 15 July 2013 on the legislation of the Russian Federation on non-profit organizations with regard to the standards of the Council of Europe, CommDH(2013)15, §§ 78 и 80). 

Maria Kanevskaya, director of the Human Rights Resource Centre in St. Petersburg 

To my great regret, the Constitutional Court confirmed the stigmatization of non-profit organizations receiving foreign funding by separating them off into a category of ‘foreign agents’, determining that the phrase ‘foreign agent' has no negative context and has 'no constitutional or legal basis.' 

True, today the decision of the Constitutional Court has no practical impact, since on 8 April 2014 St. Petersburg city court dismissed an appeal lodged by the Memorial Anti-Discrimination Centre against a ruling by the city’s Lenin district court that had found it to be a ‘foreign agent’. 

It is regrettable, but true, that the decision of the Venice Commission, that we had expected in October, has been delayed, just as we are still awaiting the decision of the European Court of Human Rights on the same issue.

Six years ago when we started the nationwide direct line for legal assistance to non-profits (8-800-3333-068), we did not expect that the service would provide such practical assistance to Russian non-profits.

Our main achievement has been to help organizations prepare in the best way possible for inspections, and also to advise them and to give them legal representation in court. We have succeeded in winning ‘agent cases’ brought against St. Petersburg non-profits, however the case of the Centre of Social Policy and Gender Research in Saratov was lost, and is now at the Constitutional Court – and unfortunately I am not at liberty to comment upon this since it could be interpreted as contempt of court.

So far as legal cases are concerned, I join with my colleagues in calling on non-profit organizations to be proactive, and not to 'wait until they come for you.' Use all possible lawful means to protect your organizations, and also make sure you use qualified legal assistance.

However, one has to be prepared to lose cases taken to court, since in each concrete instance the court’s decision can be different. No two cases are the same.