On April 8, the Constitutional Court of the Russian Federation recognized as constitutional the 2012 amendments to the federal laws “On non-commercial organizations” and “On public associations”—the notorious “law on foreign agents.” IMR advisor Ekaterina Mishina comments on the ruling of the Constitutional Court and the court’s legal stance with regard to these amendments.
All in all it’s just another brick in the wall.
“The Wall” by Pink Floyd
A protester standing in front of the State Duma is holding a sign that reads: "Toughening of the NGO legislation is the authorities' paranoia."
In July 2012, a number of amendments were introduced to Russia’s federal laws on non-commercial organizations and public associations, which brought back the nearly forgotten Soviet-era term “foreign agent.” From that moment on, according to paragraph 6 of article 2 of the federal law “On non-government organizations” (NGO law), Russian non-commercial organizations that receive “funds and other property from foreign states, their government bodies, international and foreign organizations, foreign citizens, persons without citizenship or persons authorized by them, and/or Russian legal entities receiving funding and other property from said sources” and engage, “including in the interest of foreign sources, in political activities carried out in the territory of the Russian Federation” are considered foreign agents.
I will not describe the well-known degree of public cheer over this subject. I will only say that these legal changes were accompanied by political propaganda: persistent efforts were made to explain to shaken citizens that these amendments were nothing but a Russian version of the 1938 U.S. Foreign Agent Registration Act (FARA). This portrayal was a ruse, pure and simple: in its original version, FARA applied specifically to agents, that is, to representatives of interests of foreign governments. The 1966 amendments limited the sphere of FARA to regulation of lobbyism in the interests of foreign principals, and clearly defined the difference between internal and external lobbying activities. The activity of internal lobbyists, representing national structures, had already been controlled for twenty years by the Federal Regulation of Lobbying Act of 1946.
The analogy between the U.S. act regulating the lobbying activity of foreign powers, and the amendments directed against Russian non-commercial organizations involved in the solving of internal Russian problems and receiving foreign funding (due to a deficit of Russian donor organizations), was clearly far-fetched and did not stand up to criticism. The application of the new statutes of the NGO and public associations legislation resulted in many complaints from legal entities and individuals, including Russia’s human-rights ombudsman, being submitted to the Russian Constitutional Court. The Constitutional Court reviewed these complaints, combined into one case, and on April 8, 2014, announced its long-awaited ruling.
Ruling N 10-P of the Constitutional Court of the Russian Federation from April 8, 2014, is more than just a court decision: it is the result of scientific research, a work of art, and even a kind of sports activity. After all, a branch of law called sports law has recently appeared. Consequently, legal gymnastics, which this ruling supplies in abundance, have a right to exist. As a scientific effort, the April 8, 2014, ruling of the Constitutional Court can be considered a philosophical treatise inspired by solipsism, or subjective idealism, according to which the world is our perception of it, since the degree of disconnect from legal reality that this document demonstrates is quite stunning. This paragraph seems reasonable enough: “Given that the Russian Federation, as directly follows from the preamble of the Constitution of the Russian Federation, recognizes itself as part of the international community, according to the legal opinion of the Constitutional Court of the Russian Federation expressed in its ruling N 14-P from June 22, 2010, the fact itself that Russian non-commercial organizations, engaged in political activity, receive foreign financing cannot put in doubt the loyalty of such organizations toward their state” (p. 23 of ruling N P-10). According to the document, a different approach “would not only be incompatible with the Constitution’s guarantee of mutual respect between citizens (their associations) and the government, but would also contradict Paragraph 1 of Article 21 of the Constitution of the Russian Federation, which entrusts the state with the responsibility to protect human dignity and to prevent its derogation.”
It gets worse as it goes on, though. It turns out that “the legislative designation of a non-commercial organization as a ‘foreign agent’ does not imply that this organization will be viewed negatively by the state, is not aimed at promoting a negative attitude toward its political activity, and consequently cannot be seen as a sign of distrust or an intent to discredit such a non-commercial organization and/or the objectives of its activity” (italics mine). This, however, is a miscalculation. Associative thinking dictates the strong negative connotation of the term “foreign agent,” regardless of the lawmakers’ original intentions. This attitude is understandable, too, since the path from being a “foreign agent” to becoming an “enemy of the people” can sometimes be quite short. The infamous terms “enemy of the people” and “family member of an enemy of the people” do not provoke positive associations. Consequently, no Soviet or post-Soviet Russian citizen not suffering from amnesia can remain indifferent to the term “foreign agent.”
A non-commercial organization’s participation in political activity on Russian territory is requisite for concluding that it is “acting as a foreign agent.” The ruling states that ‘political activity’ (regardless of the tasks and objectives mentioned in an NGO’s constitutive documents) includes participation in the organization and the carrying out of political actions aimed at influencing the decision-making processes of government bodies in order to change current government policies, and affect public opinion thereof.
As a scientific effort, the April 8 ruling of the Constitutional Court can be considered a philosophical treatise inspired by solipsism, or subjective idealism, according to which the world is our perception of it, since the degree of disconnect from legal reality that this document demonstrates is quite stunning.
A non-commercial organization’s constitutive documents, policy papers, and other official documents can serve as confirmation of its intentions to participate in political activity on Russian territory (even if political activity is not mentioned among the NGO’s tasks and objectives), as can “public speeches made by its management [officials], containing calls for making, changing, or canceling any government decisions; notifications about upcoming events, meetings, rallies, marches, or pickets, sent by the non-commercial organization to executive authorities of the subjects of the Russian Federation or to local authorities; drafting and introducing legislative initiatives; as well as other examples of social activity demonstrating the NGO’s intent to engage in organizing and carrying out political actions directed at influencing the decision-making processes of government bodies and current government policies.”
Let us suppose that an NGO official (for instance, an accountant) says in public that he personally does not approve of some government decision, for example, the amendments to the tax code, and he would rather these amendments were eliminated. Since the adoption of regulatory legal acts is one of the three types of government decisions, in light of the recent ruling of the Constitutional Court, an eager law enforcer could interpret this innocent statement as an intention to engage in political activity.
Interpreting the drafting of legislative initiatives as confirmation of an intention to participate in political activity is a contortion of logic. The bill drafting process represents an expert activity and not a political one. This is especially relevant for today’s Russia, which is marked by the absence of civilized lobbying, one of the functions of which is managing information concerning specialized regulatory activity. Moreover, the Constitutional Court clearly defined what is not included in political activity: activity in such areas as “science, culture, arts, health care, preventive health care and health promotion of citizens, social support and social welfare of citizens, maternity protection and child protection, social support for disabled people, healthy lifestyle promotion, physical fitness and sports, wildlife protection, charity, as well as charity and volunteerism promotion, even if it is directed at influencing the government decision-making process and the government policies, providing that these objectives do not go beyond the limits (framework) of the corresponding area of activity” (pp. 38–39).
The Constitutional Court has emphasized that crucial to understanding the true meaning of the new provisions of the federal law “On non-commercial organizations” are the provisions of the Constitution of the Russian Federation on the ideological and political diversity and equality of all public associations before the law, as well as guarantees of freedom of their activity “which, being interrelated to Articles 19 (Paragraph 1), 28, 29 (Paragraphs 1, 2 and 4), 31, 32 (Paragraph 1) and 33 of the Constitution of the Russian Federation, suggest that non-commercial organizations (including public associations) that receive funds and other property from foreign sources have the right to participate in political activity on equal legal terms, regardless of their attitude toward the decisions and the policies of government bodies” (p. 24).
At the same time, the Constitutional Court referred to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and came to the happy conclusion that the “fact itself that a non-commercial organization receives foreign funding and is capable of engaging in political activity on the territory of the Russian Federation does not constitute grounds for registering it as a foreign agent.” Such a non-commercial organization will have to register as a foreign agent only if, after receiving funds and other property from foreign sources, the NGO demonstrates an intent to participate in political activity on the territory of the Russian Federation (p. 31). Considering the rather vague and overly broad wording of “confirmation of an intent to participate in political activity,” such NGOs will inevitably face the aforementioned responsibility to register as a foreign agent.
As a result, the Constitutional Court did not restrict itself to recognizing the contested provisions as constitutional. The judicial disposition of the Constitutional Court’s April 8 ruling states that these provisions “not only do not contradict the Constitution of the Russian Federation, but on the contrary, they are directed at promoting the transparency (openness) of the activity of non-commercial organizations that receive funds and other property from foreign states and engage in political activity on the territory of the Russian Federation” (p. 40). The registration of NGOs as foreign agents “does not suggest state interference in order to determine the preferable activity content and priorities, and does not indicate a negative opinion of non-commercial organizations acting as foreign agents” (p. 51). Moreover, according to the Constitutional Court, the contested provisions do not prevent non-commercial organizations from “freely raising and receiving funds and other property from both foreign and Russian sources and using these funds to organize and engage in political activity, including in the interests of foreign sources.”
So, there it is. Lawmakers acted with the best intentions; the provisions were formulated in full compliance with the Russian constitution and the corresponding international legal statutes; and the provisions were designed in order to increase the transparency of and improve the situation of NGOs that are involved in political activity and receive foreign funding. In other words, we plebeians should rejoice. However, if one actually sets out to find anything positive in the ruling of the Constitutional Court, then, judging by numerous references to the practice of the European Court of Human Rights and its legal opinions represented in its decisions, there seems to be a thaw in the attitude of the Russian Constitutional Court toward the European Court in Strasbourg. One can also be happy for the Golos Association, rehabilitated by the Constitutional Court.
