Elena Zhemkova. Source: http://old.memo.ru
An international organisation – the International Memorial – was included in the Russian list of “organisations performing the functions of foreign agents” for the first time on 4 October 2016, as the 145th “agent” on the list. Elena Zhemkova, Executive Director of the International Memorial, explains how being included in the foreign agents registry has affected the organisation’s work and comments on the NGO’s options for challenging the Ministry of Justice decision.
What is the International Memorial?
Today, Memorial is an international community of organisations governed by a common charter. There are more than 50 organisations, of which more than 40 are based in Russia, with others operating in Ukraine, Latvia, Kazakhstan, Germany, Italy, France, and the Czech Republic. Their mission is to research the past, reveal the truth about the history of political terror in the USSR, and monitor the current situation with human rights. This combined focus on history and current human rights is our specific feature: we study the history of massive human rights violations in the past with an understanding that the current human rights situation is directly related to our history and the lessons we have – or haven’t – learned from our common past. This involves a lot of work: numerous projects, exhibitions, conferences, publications, putting together archival and museum collections, reaching out to school students, offering social support to former victims, and other activities.
In addition to this, does each branch of Memorial have its own specific focus?
Of course; but we also engage in a lot of horizontal projects carried out jointly by different organisations without any centralised coordination. Memorial in Ryazan, for example, is known as the creator of one of the best human rights websites. Memorial in Petersburg is famous for its excellent social work, which includes a dedicated service providing social assistance to former victims of repression. Memorial in Tomsk has created a fascinating museum based in a former NKVD prison in the city’s centre. Memorial in Germany is known for its social work, support for victims and outstanding research projects, in particular, about the Germans who were deported.
Which of Memorial’s organisations have been labelled “foreign agents” and how did it happen?
The Russian law applies only to Russian organisations which are part of Memorial. In fact, over the past two-plus years, virtually all of the key organisations associated with Memorial in Russia have been labelled as “organisations, performing the functions of foreign agents”. They include the Human Rights Centre Memorial, the head organisation focusing on human rights in the Memorial community. They also include Memorial in Ryazan, the Memorial Human Rights Commission in Syktyvkar, the Memorial Research and Information Centre in St. Petersburg, which is also one of the leading organisations engaged in historical and educational projects. In Yekaterinburg, the authorities labelled two Memorial organisations as foreign agents –Yekaterinburg Memorial Human Rights Centre and the regional Memorial Society. One organisation – Memorial Anti-Discrimination Centre in St. Petersburg – which decided to close down after being listed, while another one – Youth Memorial in Perm – realising that getting a “black spot” was inevitable, decided to close down pre-emptively.
And now, unfortunately, International Memorial – the head organisation that brings together all other Memorials in different countries – also shares this fate. The Prosecutor General’s Office initiated an unscheduled inspection of the organisation, which was carried out by the Ministry of Justice between 5 and 30 September 2016. During this all-out inspection, Memorial had to provide 31,200 pages of documents, i.e. virtually all of its documentation reflecting its operations as well as finances. Based on its findings, the Ministry of Justice listed International Memorial as “an organisation performing the functions of a foreign agent”.
We were surprised, as the Ministry of Justice decision explicitly contravened the Constitutional Court’s ruling adopted in the spring of 2014 following complaints from a number of organisations about issues with the foreign agents law. We had hoped that the Constitutional Court would provide a clarification of the blurred language in the definition of “political activity” in the said law. Indeed, the wording of the law is so vague as to allow the federal and regional justice authorities to interpret any type of activity as political. Thus, all sorts of statements, actions, texts, books, whatever, have been used as grounds to list organisations in the foreign agents registry. Unfortunately, the Constitutional Court failed to provide any clear definitions, so generally its ruling ended up not quite in our favour, except one particular point: the Constitutional Court explicitly indicated that international organisations, by virtue of their international status, cannot be recognised as anyone’s agent and thus do not fall under this law. International Memorial is registered in the Russian Federation as an international organisation; moreover, the organisation has operated since 1989 and has renewed its registration multiple times, amending its charter in accordance with changes in applicable legislation. The most recent registration which confirmed the organisation’s international status occurred in 2015. Nevertheless, despite the Constitutional Court’s ruling, the Ministry of Justice decided to list International Memorial in the foreign agents registry.
But it was not the first such inspection related to the “foreign agent” status, or was it
Of course not; International Memorial and our other organisations have always been monitored and inspected by various authorities. In particular, a large-scale all-out inspection of all Memorial organisations, including those based in Moscow, was carried out in March 2013. To clarify, our Moscow-based organisations, in addition to International Memorial, also include the Russian Memorial, the Moscow Memorial, the Human Rights Centre Memorial, and the Research and Information Centre Memorial – because Moscow hosts both local organisations and head offices of the broader Memorial network. So all of these five Moscow-based organisations were inspected, and based on the findings from this inspection, the Human Rights Centre Memorial – but not the Russian or International Memorials – was listed as a “foreign agent”.
In addition to this, we are required by law to file comprehensive narrative and financial reports with the Ministry of Justice. Moreover, International Memorial is regularly audited by external auditors. In other words, the organisation’s entire operation is fully transparent and verifiable.
According to the Ministry of Justice, what were the grounds for listing International Memorial in the foreign agents registry?
On one hand, making this decision should have been impossible on formal grounds, since an international organisation cannot have this status. As to the merits of this decision, for an organisation to be recognised as performing the functions of a foreign agent, the law requires a combination of two things. First, the organisation should have foreign sources of funding, which International Memorial obviously has, and we have never attempted to hide it, because we are an international organisation and it is only natural for us to have international funding. Second, the organisation should engage in political activity. The Ministry of Justice referred to a few things, interpreting them as our political activity: first, that we had repeatedly criticised the foreign agents law, which in fact we did, both at the stage of hearings before its adoption and certainly afterwards, when we protested against the listing of the Human Rights Centre Memorial and others, such as the Sakharov Centre, in the foreign agents registry. While the Ministry of Justice referred only to these two examples, there have been many more. Indeed, we have on many occasions criticised this law. Second, they referred to our statement concerning the events in Ukraine. At the onset of the known events in Ukraine, International Memorial’s Board came up with what we believe to be a very appropriate and absolutely legitimate statement, drawing the attention of our society and the country’s leadership to the fact that what was happening in Ukraine would fully fall under the UN definition of aggression and that we found it extremely harmful for our own country to be the aggressor. Yet another statement brought up by the Ministry of Justice was the one we made in connection with Boris Nemtsov’s death. Our position has always been that his murder was politically motivated, and the responsibility, to a very large extent, lies with the country’s leadership. The atmosphere created in the country had led to this murder, and the lack of results after many months of investigation only confirms that we were right. These statements, which were in essence expressions of the organisation’s opinion, were labelled as political activity. In its decision, the Ministry of Justice also referred to the private opinions of our Board members expressed in their blogs and social media – such as Jan Raczynski’s statement about legislation concerning revision of WWII results. Raczynski, a member of International Memorial’s Board, expressed his opinion in a blog as an expert on the subject. To sum up, everything that the Ministry of Justice claimed to be International Memorial’s political activity could be described as an expression of our position.
From our perspective, this decision totally contradicts the Russian Constitution, which guarantees every citizen and thus every association of citizens freedom of speech and opinion.
And where do we draw the line between the study of history, human rights defence, and politics?
Unfortunately, this is exactly the problem with the said law. It turns out, this line is not clearly defined, and since it is not defined, government inspectors feel free to interpret it in any way they choose. At one time the authorities may come over for an inspection and find nothing, although certain views have been expressed and positions stated. After all, one of the reasons why non-governmental associations are set up is to enable the expression of opinions. But then at some other time the authorities may suddenly decide that even the expression of opinion by an organisation’s member is political activity. This is one of the main reasons why we criticise this law – because we believe that a definition of political activity should be based on established criteria, such as participation in elections and representative bodies, something that political parties normally do. From this perspective, Memorial does not engage in political activity. As for the interpretation used by the Ministry of Justice, where our civic-mindedness and working with public opinion are treated as signs of political activity, we consider it wrong.
What are the prospects of your appeal?
The prospects are bleak, of course. But we will definitely take our case to court and continue to use every legal means available to prove that we are right. It’s a long process. The first step – which we have already taken – is to submit our objections to the Ministry of Justice at a so-called pre-trial stage. Our objections are fairly short, because our position is clear.
On one hand, we refer to the Constitutional Court’s ruling concerning international organisations, and on the other hand, we recall that this country has freedom of speech and opinion. Following the pre-trial stage, we will challenge in court the Ministry of Justice decision to list us in the foreign agents registry, first taking the case to a district court, then to Moscow City Court and, if needed, to the Supreme Court. At the same time, we will probably appeal to international protection mechanisms.
While these proceedings are pending, will Memorial remain listed?
The law is so discriminatory that being listed in the registry becomes effective immediately without any court proceedings, and the listed organisation’s director is fined retroactively, because it is assumed that the organisation, as long as it has received foreign money, should independently assess its expected activities, understand that they are political in nature and immediately volunteer to be entered in the foreign agents registry. If you fail to do so, you are breaking the law. Therefore, the Ministry of Justice immediately enters the organisation in the registry and imposes a fine on the director before they have a chance to argue their case in court.
Being labelled a foreign agent – how is it affecting Memorial’s activity?
It is certainly a serious trauma for the organisation. First, it’s a blow to our reputation: the “foreign agent” label sounds defamatory to ordinary people with whom we are working and whom we are helping. Indeed, this is exactly the effect this law is designed to produce, as well as creating an overwhelmingly hysterical and negative atmosphere around all non-governmental organisations. In fact, such an atmosphere has been created, setting loose all sorts of thugs and hate groups.
What might be the consequences of all this? Some people may become scared and turn away to avoid dealing with such an organisation. Schoolteachers with whom we have been working to organise our Person in History competition and other educational projects, may feel intimidated. This is one aspect. There is another aspect, also very serious. We have been working with government on many projects. Commemorating victims, building a memorial, creating a Book of Memory is impossible without cooperation with the authorities. But whether government officials will be responsive to our requests and assist us in solving problems now is a big question mark. I can well imagine that some might refuse to deal with us. And finally, a third and perhaps not the worst aspect is about resources – the law’s paperwork requirements will create an enormous, absolutely disproportional workload for us. Just so you understand, we used to file a huge load of documents as part of our financial and narrative reporting once a year; from now on, however, we will be required to compile an even bigger comprehensive report twice each year, in addition to a separate quarterly report on our events and activities, including every gathering, every lecture, every round table and every meeting conducted. Such an overwhelming amount of red tape will further increase the burden on our accounting department. This formalistic, meaningless bureaucracy will be depleting our team’s energy. On top of that, we will be required to have an external audit annually – which is not a problem at all, as International Memorial has already been externally audited on a regular basis. In my opinion, it is a good thing; the only problem is the cost – external audits are expensive and will need to find the money to pay for it. But although I can imagine it being a serious challenge for a small organisation with limited or no funds, it is not so terrible for International Memorial with our substantial scope of activities.
What, in your opinion, may be the prospects for Memorial’s organisations and other NGOs in connection with this law?
Well, we always want to believe that the monster has eaten enough and is now satisfied. But this monster will never be satisfied. More organisations will continue to be added to the registry, especially that, as we know, new amendments to the NGO law are being prepared – in particular, those introducing new forms of reporting for all non-governmental organisations, whether or not they are listed as foreign agents. These new reporting forms will force us to investigate our sources of funding, including domestic donors, whether or not they may be receiving foreign money. This requirement is virtually impossible to meet, because it means that you need to write a letter to everyone with whom you are dealing, let’s say a company making you a donation, asking them: “Could you please certify whether among your other funding sources there may be any foreign ones?” Such reporting requirements automatically assume everyone to be an offender and effectively criminalise the entire non-governmental sector. Even today, there is a precedent of an NGO being listed as a foreign agent not because it was receiving any foreign money directly, but because one of its donors was a “foreign agent” receiving foreign funds. So you can understand that from this perspective, the monster can never be fully satisfied.
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