Is Russia’s ‘foreign agent’ law illegal?

Grigory Tumanov  10 March 2014, published by Open Democracy

On 6 March the Russian Federation’s Constitutional Court began hearings on whether a law affecting thousands of NGOs is in fact unconstitutional. But many civil rights campaigners believe that whatever the outcome, it will be too late.

Russia’s conservative politicians and professional guardians of traditional values had long complained about ‘the human rights people promoting the interests of their foreign bosses’, and in November 2012 they achieved a victory. Under new legislation the informal slur ‘foreign agent’, often levelled at NGOs, became an official definition, and any organisation funded from abroad and engaging in political activity was obliged to register as such. Failure to do so would mean a fine or possibly even criminal prosecution.

One of the law’s authors, ‘United Russia’ deputy Aleksandr Sidyakin, claimed at the time that it was almost a carbon copy of the American FARA (Foreign Agents Registration Act): the USA, he stressed, also had special regulations and monitoring systems for lobbyists representing the interests of foreign governments. But Yelena Topoleva-Soldunova, a member of the NGO development group on the Presidential Council for Human Rights, objected that, ’there are professional lobbyists of this kind everywhere, and FARA is an example of how they can be controlled, but our NGO law is nothing to do with these lobbyists — it is ordinary voluntary organisations that will be affected by it.’

And so it has turned out. At first even Justice Minister Alexandr Konovalov, speaking in parliament, remarked that the new law would ‘contravene the spirit of existing NGO legislation’, while senior officials at his ministry admitted in private that in their view, as lawyers, the bill was badly drafted, and that they would attempt to delay its implementation and generally distance themselves from it as much as possible.

Building of the NGO Memorial covered with graffiti reading 'foreign agent loves USA.' Building of the NGO ‘Memorial’ was covered with graffiti reading ‘foreign agent.’ Photo via memo.ruHowever in February 2013 the Prosecutor General’s Office intervened: according to internal sources, the whole thing was part of a long running personal power struggle between its chief Yury Chaika and Aleksandr Bastrykin, head of the Investigative Committee (Russia’s equivalent of the FBI). In the words of one source, ‘It was the ideal way for Chaika, who was losing the battle, to remind people at the top of his relevance and importance’.

Even Russia’s Justice Minister remarked that the new law would ‘contravene the spirit of existing NGO legislation.’

The result was a mass inspection of NGO premises, with prosecutor’s departments working in collaboration with every possible regulatory agency. Initially the Prosecutor General’s Office claimed that the health and safety, fire and police checks that environmental, human rights and other organisations were being subjected to were part of a routine inspection programme. However, Kommersant newspaper managed to unearth a document that had been sent to regional authorities. This said nothing about routine checks, and stated explicitly that NGOs had to be inspected in connection with the new law, so confirming the worst fears of the human rights campaigners.  

The first victim

The inspectors classified around 200 organisations as ‘foreign agents’, and criminal charges were initiated against more than twenty. The vagueness of the term ‘political activity’ also meant that all kinds of NGOs could find themselves on the wrong side of the new law: ‘Soldiers’ Mothers’, for example, which fights for the rights of prisoners of war, and ‘Ulukitkan’, which campaigns for the protection of the natural environment and traditions of the peoples of the Russian north were both on the hit list.

All this time the Ministry of Justice was keeping its distance from the proceedings, but in April 2013 the phone rang in the Moscow office of the election watchdog ‘Golos’ and its director Lilia Shibanova was summoned to a meeting with none other than the head of Ministry’s NGO department. There she was told that Golos was in flagrant contravention of the new law, and that she would be served a notice of administrative offence. The Ministry, it turned out, regarded her organisation’s attempts to formulate amendments to the Electoral Code as a ‘political activity.’ The main issue was about foreign funding: Golos had already declined any further grants from abroad before the law was introduced, but the Ministry saw the Sakharov Prize of €50,000, awarded to the NGO for its ‘promotion of democratic values’, as foreign funding.

The fact that Shibanova and her colleagues had refused the prize didn’t cut any ice either; both she personally and Golos were fined, and its work suspended for six months. Rather than wait to be closed down, the NGO chose to wind itself up, and has since been reborn as a voluntary organisation funded entirely by donations from the Russian public, and as such doesn’t need to be registered for another three years. Its deputy head Grigory Melkonyantz is now convinced that the closure of Golos was one of the main aims of the NGO law, as the organisation and the volunteer observers it trained were in part responsible for the massive protests over rigged election results in 2011.

Organisations have had to throw money and time at legal tussles, that would have been better spent on their actual work.

After all the inspections had been carried out, the trials began. The Prosecutor’s department won some cases and lost others, but in either event dozens of organisations have been forced to throw a large amount of money and time at legal tussles with the state that would have been better spent on their actual work. Many NGOs, following Golos’s example, have stopped accepting funding from outside Russia, refusing on principle to brand themselves as foreign agents.

But then the state took the game a step further. Ella Pamfilova, a former head of the Presidential Council for Human Rights, was appointed to oversee a new project: grants for NGOs from the Kremlin itself. These grants have even been awarded to NGOs known for their opposition to the regime, including the human rights organisation Agora  whose lawyers are now challenging the law in the Constitutional Court.

The law may be imperfect, but it is working

If you were to judge the effectiveness of the new law from statistics, its consequences would appear minimal: the only foreign agent to have been ‘taken out’ was Golos, and just one new organisation has been registered with the Ministry of Justice – ‘Aid for the Development of Competition in the CIS.’ This non-profit partnership was registered voluntarily by businessman Vasily Rudomino without consulting the other members of its ruling body, who were less than enthusiastic about the move; but unfortunately, once registered as a foreign agent, you can’t de-register.

Members of the election monitoring NGO 'Golos' marching in a protest. Members of the election monitoring NGO ‘Golos’, which remains the only casualty of the NGO law. Photo via Kasparov.ruThe law’s author, Aleksandr Sidyakin, however, believes that this is not the best criterion by which to judge his brainchild: ‘we have achieved our main aim: organisations are gradually distancing themselves from foreign financing; some are closing down, others realise they need to be more transparent.’ To some extent he is right: what has been happening with the voluntary sector now is very similar to what happened during the regime’s battle with the oligarchs at the start of the 2000s: the alarm call, that times were changing and that everyone had to rally round the Kremlin, was practically the same. Then it was the Yukos oil company and its owner Mikhail Khodorkovsky that were the scapegoats that convinced big business to draw closer to the Putin regime. This time around, Golos was the sacrificial lamb, and many international grant giving bodies such as USAID, which withdrew from Russia last September, are now nervous about funding Russian NGOs. Golos itself, despite a brave new website [in Russian], is not doing very well. Its head Lilia Shibanova has been effectively forced to emigrate to the USA to avoid criminal prosecution for breaking the NGO law, and the funding it can raise in Russia is tiny compared with what it had before.

Lilia Shibanova has been effectively forced to emigrate to the USA to avoid criminal prosecution.

The regime will probably be able to breathe easily when the next elections come around. The change was already noticeable during Moscow’s mayoral election last summer: at some polling stations there were no opposition observers, an extra advantage which Aleksei Navalny (who came second against the acting mayor Sergei Sobyanin) feels Sobyanin’s team were able to exploit.

Changes are inevitable

No one, however, doubts that amendments will be made to the law. As Kommersant noted on its pages, it has come in for criticism even from Prosecutor General Yury Chaika, who admitted that the inadequate drafting of the law made things difficult for himself and his colleagues during the mass inspections. The head of Agora, Pavel Chikov, believes however that the Duma won’t want to touch it again. ‘It caused so much fuss and ructions the first time round’, he argues. ‘Imagine what it will be like if they try to amend it now – the NGOs will be up in arms again, screaming that they aren’t anybody’s agents.’ So all hopes are on the Constitutional Court as it begins its hearings.

This article is published under a Creative Commons Attribution-NonCommercial 3.0 licence.

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