Let’s suppose there is an informal organisation named ‘Square’ that has been declared a ‘foreign agent’. I am the leader of this organisation. What are we supposed to do?
You must display the ‘foreign agent’ label on your website and in social media accounts, including those of the group’s members, and on all printed materials you distribute. You must also file reports.
You may find the labelling requirements confusing. Where are the limits? What about business cards? What about blank notebooks you hand out to meeting participants – does it count as dissemination of informational material?
Be careful of what you post in personal social media accounts. If you tweet about problems with heating in your home, this may be regarded as your assessment of the government’s performance, which is political activity.
How can one challenge the ‘foreign agent’ status?
Theoretically, it is possible to appeal against the MoJ decision in court, but I wonder how an unregistered organisation can do so.
Back to our ‘Square’ initiative group. They do not have a charter or a formal leader but have been declared ‘foreign agents’. Suppose that someone, let’s call her Maria Ivanova, wishes to appeal on behalf of the group the fact that it was entered in the registry. Two outcomes are possible: either the court will find Maria not having due authority to act on behalf of the organisation and reject her appeal, or it will determine that she is the head of the organisation, with all consequences, such as the obligation to report, penalties for non-compliance, etc.
To which court should she appeal?
She should appeal to the local court at the location of the government agency which entered the organisation in the registry.
But is it not the federal Ministry of Justice that enters organisations in the registry?
The original purpose of giving this power only to the federal Ministry was to protect organisations from local bureaucrats. But this protection is not effective, because the federal Ministry makes its decision on the basis of findings from inspections performed by local bureaucrats.
Although you challenge a decision made by a federal authority, the problem arises from the actions of a local authority, so you can file you claim at the location of this local authority.
Do I have any chance of winning in court?
I do not know of a single case in which a non-profit organisation successfully appealed its ‘foreign agent’ status. But with sufficient resources, it is possible to exhaust domestic remedies before all four appeal instances and then file a complaint with the European Court of Human Rights. The stamp duty is affordable, and your costs will depend on how much the lawyer will charge for representing your case. There are NGOs helping other NGOs in this situation, and they can provide legal representation for free.
There is no effective strategy one can use to convince a Russian court that you are not an ‘enemy of the people’, so there is a 99% chance that you will lose the case. But if you are determined to continue fighting and to take your case to the ECtHR, you should argue that whatever the Russian authorities found to be political activity was not political activity in the universally accepted sense of this term as ‘struggle for political power’, but it was normal and healthy activity of civil society.
Normally, you will need to invoke the freedom of association argument if you are a ‘foreign agent’ organisation and the freedom of expression argument if you are an individual. Another argument you can use is that the law is too vague and does not make it clear what exactly an organisation should do to comply, e. g., with the labelling requirements.
Will it make sense to take the case to the ECtHR?
To be honest, I am disappointed with the European Court on this issue, because for eight years now, it has not made any statement concerning the situation with ‘foreign agents’.
The first related application was filed back in February 2013, before the law was enforced for the first time, by 11 NGOs that considered themselves potential targets of this legislation. It is noteworthy that ten of them ended up in the registry, except one, the Moscow Helsinki Group, that immediately refused all foreign funding. They were concerned for a good reason.
The Court proceeded to consider the application and asked the applicants and the Russian authorities a series of questions, but that was the end of it. The answers were sent to the Court back in March 2018, but there is still no judgment, although we have been saying this at all fora and platforms available to us: while you are silent, they are killing us.
If the Court issues its judgment before Russia’s civil society is finished off altogether, at least the Russian authorities will be obliged to return all the fines that have been paid.
So our unregistered group ‘Square’ has been declared ‘foreign agent’. What will happen next if we do nothing at all, never file any papers or take the case to court?
The authorities will somehow identify people whom they believe to be the group’s official leaders and start bombarding them with fines.
But the consequences will be even worse for ’individual foreign agents’ who ignore the MoJ decision. They may face prosecution immediately, if found to collect ‘information threatening military security’, or after repeated noncompliance, if simply found to engage in political activity, with possible sanctions of up to five years in prison. To put things in perspective, murder with extenuating circumstances can also result in a five-year prison term.
There are also ‘undesirable’ foreign organisations, with whom any type of collaboration is banned. Are there any updates concerning them?
Quite recently, on May 4, two bills were launched in the State Duma to toughen the legislation on ‘undesirable’ organisations: first, to prohibit any participation in the activities of such organisations not only within but also outside Russia, and second, to facilitate criminal prosecution for connections with ‘undesirable’ organisations.
Today, one can face prosecution for involvement with an ‘undesirable’ organisation after two administrative penalties within one year, while the new bill proposes lowering this threshold to one administrative penalty. The proposed criminal sanctions will be somewhat milder: one to four years instead of two to six years in prison as it is today.
However, the leaders of ‘undesirable’ organisation would face prosecution immediately, even without prior administrative sanctions, with prison terms of up to six years.
Should both bills become law, a person could potentially face prosecution for contacts with an ‘undesirable’ organisation outside Russia.
Suppose a person travels to another country, meets with someone ‘undesirable’ there, and if the Russian authorities learn about this, the person could be declared ‘leader of an undesirable organization’ and sentenced to a prison term immediately upon his or her return to Russia.
It is worth mentioning that the Russian Supreme Court issued a negative opinion on this bill, indicating that any toughening of sanctions must be balanced by ‘a reasoned justification, confirmed by convincing information and statistics to demonstrate that the existing regulation is insufficient’ and by ‘findings from special studies which prove the expediency of introducing the new norms’. Needless to say, the bill’s initiators have not provided any such information, so there is still some hope left that the proposed new regulations will not become law.
According to some people, the ‘foreign agent’ status is still bearable as long as the organisation is not declared ‘undesirable’.
The ‘undesirable’ status can only be applied to a foreign or international organisation, and those Russian NGOs which are concerned about being found ‘undesirable’ may just be unaware of this.
Indeed, there is currently a hierarchy of statuses which may be imposed on organisations in Russia. The ‘foreign agent’ status is the least burdensome, because there is no liability for individuals involved with a ‘foreign agent’ NGO. The ‘undesirable’ status is worse because participation in an organisation so declared may trigger criminal proceedings for repeated non-compliance after administrative sanctions (at least for now). Next comes the ‘extremist organisation’ status, followed by the worst of all ‘terrorist organisation’ status. Until recently, the assumption had been that the two latter statuses could apply primarily to ultra-religious and radical nationalist groups, but the recent labelling of the Anti-Corruption Foundation (FBK) as ‘extremist’ indicates a change of outlook.
Some say that in the U.S., one can also be labelled a Foreign Agent. Is it indeed similar to Russia’s ‘foreign agent’ legislation?
There is no similarity between the two. Yes, FARA in the U.S. is applicable to individuals and entities. However, Memorial has published a detailed analytical paper to explain why the U.S. and Russian systems are two completely different things. There is a Russian meme, ‘you don’t understand, that’s different’.
But jokes aside, there is really a difference. First, the reason why individuals or entities are required to register under FARA is that they act on behalf of a foreign government. Thus, a human rights organisation will not be required to register under FARA. The U.S. law clearly states that an agent engages in political activities on behalf of a foreign principal. In contrast, the Russian law makes no connection between foreign funding and acting on behalf of a foreign principal.
Second, the consequences are different. In the U.S., the phrase ‘foreign agent’ does not carry the connotation of being an ‘enemy of the people’ and does not mean that others will stay away from you. Being on the FARA list simply means that an individual or entity engages in lobbying on behalf of some government. Lobbying is a normal part of American political culture and does not imply hostile intentions.
The Russian ‘foreign agents’ law is a distorting mirror image of FARA. Our law does not use the criterion of ‘acting on behalf of a foreign principal’. Human rights organisations act on behalf of human rights, not foreign governments, but this does not stop the Russian authorities from labelling them. In Russia, no attempt is made to establish a link between foreign funding and hostile interests.
This legislation is indeed a minefield and must be negotiated with caution. What practical advice would you give to people and organisations which receive foreign money and engage in civic activism?
None, if ‘being quiet and attracting as little attention as possible’ or ‘advocating for higher old age pensions rather than freedom for political prisoners’ are not valid options. Honestly, I do not see any practical way to avoid risks.
Yes, we can advise members of unregistered groups not to publicise their involvement to avoid being considered the group’s leader, but then again, we can also advise them to ‘get some training as a manicurist and a job at a nail salon but forget about human rights’.
If legal nihilism is prevalent, why would the authorities even bother to make it look legitimate in the first place?
Making it look legal is good for propaganda purposes. Saying ‘we have arrested him because we can’ may cause outrage even among those who usually support the government – remember how people get angry at arbitrary police violence. Therefore, the authorities make laws and use them to repress people legally.
Another reason is that such laws, like the Sword of Damocles, create a sense of impending doom for every dissenter – not only for vocal activists or for NGOs critical of the government, but for everyone who dares to make a public statement as a citizen.
Look at the first five ‘individual-media-foreign agents’: a respected veteran human rights defender, two journalists who wrote for ‘foreign agent’ media outlets and a journalist/civic activist who posted things in social media. This list clearly shows that anyone, irrespective of their visibility, reputation or affiliation with another ‘foreign agent’, can end up in the registry.
Are there technically any legal ways to avoid being hit by this steam roller, so to speak?
To reiterate, I do not see any options other than ‘switching careers from a human rights defender to a car mechanic’. This legislation is designed in such a way as to leave you these two options: either face continuous impending danger or give up civic activism and post nothing but cute kittens in social media. The choice is yours.