Time to go to the Constitutional Court

posted 19 May 2013, 11:58 by Rights in Russia   [ updated 19 May 2013, 12:03 ]
16 May 2013

Source: HRO.org (info)
Olga Prosvirova writes: According to some experts, NGOs would have a chance to beat off the attacks by the Public Prosecutors Office if they were to go to the Constitutional Court.

For months now, non-profit organisations accused by the Ministry of Justice of engaging in political activities whilst receiving money from abroad have been looking for ways to get around the impasse.

Some organisations, such as the GOLOS Association, which has already been defeated in the Court of First Instance and is now pinning its only hope on an appeal, do not rule out that NGOs will have to shut down, albeit with the sole purpose of creating a new organisation afterwards with the very same goals. Others are gearing themselves up for protracted legal proceedings; to deny everything for as long as is feasible (such a stance has been taken by the human rights organisation Memorial). Others still are simply refusing to let the Public Prosecutor's Office through the door, as was the case with the Movement for Human Rights.

All things considered, GOLOS' frame of mind may not be at its most optimistic, but it is, at least, realistic: at the St. Petersburg International Legal Forum on Tuesday, Justice Minister Alexander Konovalov said that the Justice Ministry would be seeking the break-up of GOLOS if the Association did not register as a foreign agent: "This would obviously mean going to court, if [the Association] should choose not to comply with the law."

NGOs have long taken the attitude that this law is simply not worth complying with: the ‘Agents’ register is still empty, almost six months after coming into force. However there are legal grounds for such an approach. Olena Lukyanova, Doctor of Law and member of Russia's Public Chamber, is quite sure of that. In her expert report she states that the NGO law is technically unconstitutional.

“Everyone has had their say about NGOs, but no one has touched on the main point: there are two concepts: ‘public associations’ and ‘public organisations’, and they partially overlap. These bodies are subject to two different laws. Yet none of the authors of the law on non-profit organisations has thought about the fact (slackers!) that although not all NGOs are public associations, each and every public association is an NGO," says Lukyanov.

Take Article 5 of the Federal law 'On public associations' (No. 82-FZ of 19 May 1995): "A public association shall be understood as a voluntary, self-governing, non-profit organisation formed on the initiative of individual citizens who are united by common interests to achieve common goals, as set forth in the Charter of that public association."

In Lukyanova's expert report it states: "All of the amendments made to the Law 'On non-profit organisations' apply, without exception, to the work of public associations." That means to political parties, public institutions, foundations and movements.

The Russian Constitution makes no mention of NGOs, but it has a lot to say about public associations. In particular, part 4 of Article 13 makes specific provision for the equality of all public associations before the law, which is done away with in a stroke by the NGO law.

The UN independent human rights experts support this assessment; they stated during their appearance in Geneva on Tuesday that the law, "does not comply with international law and standards". They also recalled a resolution adopted by the Human Rights Council that was directed against laws used to unduly impede and criminalise the work of non-profit organisations on the basis of their source of funding.

Elena Lukyanova told Novaya how this may work in the favour of public organisations, many of which are only preparing to prove their 'innocence' (if such a word is even appropriate, given the situation) in court. "There are lots of meetings underway at the moment on the matter of what to do about this nonsense. But one thing is clear: the need to take action with the Constitutional Court." Non-profit organisations, as well as State Duma deputies, have the right to go to court.

It may be that, for many NGOs (in particular GOLOS, whose future no one is sure of any longer), this will end up being the only way out of the situation.

Source: Novaya Gazeta