The European Court of Human Rights issues a long-awaited judgment on Russia’s ‘foreign agents’ law: expectations and reality

Published by Mariia Novikova at 13/10/2022

In early June 2022, the European Court of Human Rights (the Court) issued its judgment in Ecodefence and Others v. Russia – a decision which representatives of 73 Russian non-governmental organisations had been expecting for nine years. The Court has finally recognised that the Russian Foreign Agents Act violates Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, i. e. the rights to freedom of assembly and association, and the Russian government’s application of the ‘foreign agent’ concept is arbitrary. The Court awarded each applicant organisations 10,000 euros in compensation. However, the applicants’ representatives had expected more from the Court’s judgments, especially since the Russian context in which the law is enforced has changed significantly over the years – not to mention that Russia has no intention to execute the judgment. In this article, we discuss which violations have been recognised by the Court, what else human rights defenders continue to expect from the Court, and potential consequences of this judgment for Russia.

The history of ‘foreign agents’ in Russia

The concept of a ‘foreign agent’ first appeared in Russian legislation in 2012 ¹Federal Law No 121-FZ of 20 June 2012 on Amending Certain Federal Laws in Regard of Regulating the Activities of Nonprofit Organisations Performing the Functions of Foreign Agents in respect of organisations receiving foreign funding and engaged in ‘political activity’. Note that the definition included both the NGOs which used funds from foreign sources on a regular basis and those which had once received a small donation from another country. As for political activity, its interpretation by the Russian authorities has been excessively broad and vague and includes, e. g. any appeals to amend current laws.

Sometime later, the State Duma adopted a series of amendments ²Federal Law No 147-FZ of 4 June 2014 on Amending Article 32 of the Federal Law on Nonprofit Organisations to this law, followed by the ‘foreign agent’ status being imposed on several organisations with essential roles in Russia’s civil society. The Ministry of Justice was given the power to put organisations on the register of ‘foreign agents’ at its own discretion.

In February 2013, eleven Russian NGOs filed a complaint with the Court concerning Federal Law No 121-F of 20 June 2012 on Amending Certain Federal Laws in Regard of Regulating the Activities of Nonprofit Organisations Performing the Functions of Foreign Agents. The applicants included a number of highly significant civil society organisations: the Moscow Helsinki Group, the Movement for Human Rights, the Memorial Human Rights Centre, the Committee against Torture – an NGO in Nizhny Novgorod, the Public Verdict Foundation, and others.

They claimed that the State was violating their right to engage in legitimate activities and insisted that the very existence of Russia’s Foreign Agents Act violated Council of Europe standards. The application challenged the provision which required all NGOs receiving foreign funding and engaging in political activity to seek registration with the Ministry of Justice as ‘foreign agents’. The human rights defenders expected the Court to adopt a judgment promptly, because this legislation was highly repressive even in comparison with other laws restricting civil rights in Russia at the time.

When the case was communicated to the Russian authorities, they referred to the decision of the Russian Constitutional Court which affirmed that the requirements imposed on ‘foreign agents’ were clear and not excessive. The Ministry of Justice also argued that the ‘foreign agents’ legislation did not enable the State’s interference in the work of NGOs, nor did it imply a negative assessment of any such organisation. The applicant organisations objected to the Government’s position and continued making submissions to the Court from time to time in addition to the original collective complaint.

Meanwhile, new NGOs were added to the register of ‘foreign agents.’ Using its discretion, the Ministry of Justice began to register as ‘agents’ those NGOs which, by definition, could not be engaged in political activity, such as educational or charitable organisations. Taking advantage of the excessively broad and vague definition of ‘foreign agents’ in the law, the authorities imposed this status on any organisation advocating for human rights, media freedom, environmental protection or fair elections, including those calling to repeal anti-constitutional and repressive laws. Indeed, any activity capable of causing public resonance and influencing popular opinion was automatically considered ‘political’.

Anyone who supported such activity – journalists, activists, lawyers and politicians – were also deemed ‘foreign agents’ and included in the register. When they tried to challenge their ‘foreign agent’ status in domestic courts, civil society activists argued that this legislation and the undue restriction it imposed on organisations and individuals contravened the European Convention on Human Rights. But Russian courts were unwilling to examine the organisations’ financial statements, let alone the question of whether their activity was ‘political’, and blindly trusted any ‘evidence’ brought by the Ministry of Justice, hoping that the Ministry knew what they were doing. As a result, most attempts to challenge a ‘foreign agent’ status in domestic courts have been unsuccessful, and new applicant NGOs were joining in the collective complaint to the Court.

The Court’s long-awaited judgment

Finally, nine years later, the Court found a violation of Article 11 (freedom of assembly and association) interpreted in the light of Article 10 (freedom of expression) of the European Convention. The Court fully agreed with the applicant organisations in that the law was vaguely worded and imposed unforeseeable restrictions on legitimate operation of civil society. The Court found a violation in the government’s use of the term ‘foreign agent’ and described the attempts to re-establish the negative context of this term as a ‘Soviet-era stereotype which was no longer meaningful in today’s realities’. The Court also found the Russian Government in violation of the Convention for imposing undue restrictions on ‘foreign agent’ NGOs’ operation, including burdensome and excessive requirements such as addition reporting, and forcing these organizations to refuse foreign funding and to label their publications.

The Court has expressed concern that ‘foreign agent’ status has curtailed the applicant organisations’ ability to interact with representatives of State authorities, including those with whom they had worked together for many years prior to their registration as ‘foreign agents’. Further, the Court found the amounts of fines imposed on organisations as sanctions for non-compliance with the Foreign Agents Act excessive. The Court emphasised that the State Duma did not have relevant and sufficient reasons for creating a special status of ‘foreign agents’ and imposing additional requirements or restrictions on organisations registered as such. ‘The cumulative effect of these restrictions – whether by design or effect – is a legal regime that places a significant “chilling effect” on the choice to seek or accept any amount of foreign funding, however insignificant, in a context where opportunities for domestic funding are rather limited, especially in respect of politically or socially sensitive topics or domestically unpopular causes,’ the Court held.

While this judgment certainly marks a significant milestone, it is sad that we should have waited so long for it. It is worth noting the relevance of this judgment also for other countries, such as Hungary, where attempts have been made to pass a law on NGOs receiving foreign funding, or Poland, where pressure on independent NGOs remains high. The potential impact of this judgment, therefore, is not limited to a single country but is likely to be universal, since the Court has addressed the more fundamental question of whether legislation on ‘foreign agents’ is necessary in a democratic society.

Human rights community’s disappointment

The Court’s judgment has caused much debate among human rights activists. Some say that the Court was not sufficiently constructive but unnecessarily cautious in adopting it. Indeed, the Court made no assessment of the underlying purpose of this legislation, although the applicants’ representatives raised this as one of the key aspects of their complaint. It is difficult to say what guided the Court in making such a non-substantive judgment, particularly at such a difficult time for Russian civil society. The Court’s obvious findings concerning the poor quality of the law and the disproportionate sanctions are clear, but the applicants had sought in particular to expose the actual purpose behind this legislation. The Russian authorities have been deliberately destroying the country’s civil society by mounting pressure on those who attempt to oppose the regime. Yet the Court refused to consider a violation of Article 18 of the Convention – Limitation on use of restrictions of rights – in other words, to examine whether the enforcement of the Foreign Agents Act was politically motivated.

The applicants also submitted a violation of Article 14 – Prohibition of discrimination. A total disregard of this aspect by the Court came as a surprise to the representatives of applicant NGOs, because by being recognized ‘foreign agents’ in Russia, these organisations lost the opportunity to engage in various legitimate activities, leaving them vulnerable to discriminatory practices.

Unfortunately, the Court waited too long to adopt the judgment, although it could have done so soon after the exchange of legal positions between the parties in 2018. Russia’s repressive law-making machinery used this delay to make the life of ‘foreign agents’ in Russia unbearable. Some NGOs were dissolved by courts for non-compliance with the requirements for ‘foreign agents,’ while others were forced to dissolve themselves due to restrictions on their work and exorbitant fines. Eventually, the ‘foreign agent’ status was expanded to include individuals, leading to the emergence of ‘individual-mass media-foreign agents’ and even ‘individuals affiliated with foreign agents’.

Will Russia implement the Court’s judgment?

Expelling the Russian Federation from the Council of Europe severed any connection Russia may have had with human rights. Human rights organisations have been dissolved, independent media closed down or suspended operation. Many NGOs’ reputation has been unfairly tarnished, and their employees have faced intimidation or prosecution. Most civic activists, journalists and lawyers designated as foreign agents chose to leave Russia.

The judgment in Ecodefence and Others v. Russia will become final three months from the date of the judgment, on 14 September 2022, unless referred to the Grand Chamber. Some organisations have expressed their intention to push forward and seek a stronger and more constructive judgment from the Court. Once final, the Court’s judgments are binding on the respondent State, and there is no choice whether or not to execute any of them.

But Russia today is more than ever defiant of European decisions. Since the cessation of Russia’s membership in the Council of Europe, chances that the country will execute the Court’s judgments are close to zero. A couple of days after this judgment, President Putin signed into effect a law ³Federal Law No. 183-FZ of 11 June 2022 on Amending Certain Legislative Acts of the Russian Federation and on Invalidating Certain Provisions of Legislative Acts of the Russian Federation allowing the state not to execute the Court’s judgments adopted after 15 March 2022. The Russian authorities have discontinued their contacts with the CoE Committee of Ministers and no longer report on the execution of judgments. Since being expelled from the Council of Europe, they no longer attend meetings where they could also report. As for the Court’s judgment concerning the ‘foreign agent’ legislation, according to Russian president’s press secretary Dmitry Peskov, ⁴Russia will not comply with the ECtHR decisions concerning the payment of compensation to foreign agents Russia will not pay compensations awarded to ‘foreign agent’ NGOs.

It appears that the Russian’ authorities’ wish to disconnect from the European values and trends is the real reason behind their pressure on civil society and destruction of democratic institutions by enforcing the ‘foreign agents’ legislation. The Russian authorities are convinced that respect for human rights and the rule of law are ‘domestic affairs’ of the state while external ‘interference’ with these matters, such as examining cases at international courts, is suspicious and may endanger national interests. However, making sure that countries respect human rights is the collective responsibility of the Council of Europe member states. Having chosen the path of de-Europeanisation, the Russian Federation is increasingly moving away from the fundamental values of the Convention.

What’s next?

Obviously, following the Court’s judgment, Russia is supposed to repeal the Foreign Agents Act, but we can hardly expect it to do so in the near future. Moreover, in mid-July 2022, President Putin signed yet another law ⁵Federal Law No 255-FZ of 14 July 2022 on Control over Activities of Persons under Foreign Influence by which any individual or entity can be declared a ‘foreign agent’ for ‘receiving support from abroad or being under foreign influence’. In addition to receiving funds from abroad, one can be labelled an ‘agent’ for accepting other types of support from sources such as international organisations, citizens of other countries, or even from Russian citizens or entities already receiving foreign support. This new law further restricts the activities of already disadvantaged Russian NGOs and their representatives. It prohibits ‘foreign agents’ from teaching and educating minors and from offering information products to minors. Some other activities are also banned to ‘foreign agents’. These measures make it impossible for anyone designated as ‘foreign agent’ to continue working in Russia.

It is my hope that the Grand Chamber will make a strong decision and issue a more constructive judgment, particularly in the context of increasingly repressive rules for ‘foreign agents’ in Russia. Undoubtedly, the mere fact that the Court has found a violation of the applicant NGOs’ rights is important both from the moral and legal perspectives. In any event, having a judgment from the European Court of Human Rights is better than not having any, and this judgment will certainly be implemented, sooner or later.