28 April 2022
Extracts from an interview with media lawyer Galina Arapova by Alina Pinchuk and Liubov Chizhova
A comprehensive register of foreign agents will appear in Russia.
A draft law on the creation of a new register of foreign agents has been introduced in the State Duma of the Russian Federation. The current lists will be retired, and in place of them there will be a single comprehensive register. It will include those people and organizations which were previously recognized as foreign agents and included in other registers. The criteria proposed in the bill will allow for the inclusion of yet more people in the list of foreign agents and the imposition of yet more restrictions on them.
On April 25, a bill was introduced in the State Duma entitled ‘On the monitoring of activities of individuals under foreign influence,’ which will broaden the criteria for inclusion in the register of foreign agents and impose new restrictions.
At the moment there are several criteria for inclusion in any of the registers. For example, a person or organization that distributes any materials to an unlimited number of people and receives money or property from foreign sources may be included in the register of media foreign agents. Moreover, receipt of money must not necessarily be connected with the activity. For example, journalist Pyotr Manyakhin was included in the register because of three bank transfers in dollars between two of his own accounts.
There are also two criteria for inclusion in the register of individual foreign agents. These are receipt of aid from foreign sources (not necessarily financial) and engagement in political activity or the gathering of military intelligence that could be used against the security of Russia.
In the new draft law one of the criteria for inclusion in the register is receipt of foreign aid or the act of being under foreign influence. At the same time, there is no clear explanation in the text of what exactly is meant by this influence: it can be coercion, persuasion, or exertion of influence by any other means.
We asked the founder and director of the Media Rights Protection Centre, Galina Arapova, to analyze the bill.
– How might this look in practice? How can it be proven that someone is under foreign influence?
– I am afraid that we cannot even imagine, because the concept of ‘being under foreign influence’ is absolutely not a legal concept. Let us take the situation to the point of absurdity and imagine what this influence might be. It may be mental, physical, financial. Physical – this is a foreign vaccine, or, for example, the use of foreign medicines. This is foreign influence in its own right, by their logic. It is clear that here, most likely, some kind of intellectual influence which affects a person’s behavior will be considered. But we cannot even imagine what is in the heads of the people who wrote this law. In that case, they may view education at a foreign university as foreign influence, or reading foreign literature, relatives you may have abroad, your foreign travels, let’s say to NATO countries. Anything at all and to the point of total idiocy.
— As a lawyer, can you think of other ways of defining the term ‘foreign influence’?
— When it comes to the law, the construction of any legal term must be clear. If the term has not previously been used in any law, then the law in which it is used for the first time should contain a clear, explicit, and unambiguous definition, so that we understand what’s being said. People need to understand what it is that they are not to do, so that they are not punished. When the Criminal Code says ‘You must not kill’, you understand what you must not do, in order to avoid being put in prison. What is it, then, that you should not do, so that you are not under foreign influence? The point being that being under foreign influence has pretty negative, discriminatory consequences. It essentially strips you of your civil rights. There are many things you can’t do; you’re even disqualified from bringing up children. So what should you do or not do, to avoid being under foreign influence? Go off into the taiga and cut yourself off completely, like Agafia Lykova? Or is it enough not to read Shakespeare? Perhaps you should renounce the fact that you were educated in a foreign university? ‘Unfriend’ all your Facebook friends who are foreign citizens? It’s not clear what you should do. The legal term ‘foreign influence’ introduced here has no counterpart elsewhere in the law, and it’s not defined in this statute either. There is no such legal concept. The result is an absolutely broad term offering an open-ended opportunity for arbitrary interpretation. In any situation it could be applied as widely as the imagination of the particular law-enforcer can stretch.
Nor is there any clear explanation in the bill as to what exactly might be regarded as ‘assistance’: it might be the provision of money or property, or ‘organisational, methodological, scientific and technical assistance, and other forms of assistance’.
— Could scientific conferences organised by foreign organisations, for example, be regarded as ‘assistance’ caught by this law? And does this make collaboration with foreign scientists and institutions risky?
— It certainly does. Organisational, methodological, scientific and technical assistance, and any other kind of assistance―it’s all under threat. But all this needs to be clarified, and with sufficient precision. For example, the ‘Dima Yakovlev Law’, which was enacted a while back and concerns ‘foreign agents’ who are natural persons, said that a natural person ‘foreign agent’ could be included in the register for receiving ‘organisational and methodological assistance’ from abroad. The only reference to this kind of assistance in Russian legislation concerns the continuing professional development of teachers. The context is the provision to teachers, by way of ‘organisational and methodological work’, of guidelines on the conduct of lessons. That’s all we have; the term has not been used anywhere else in Russian legislation. Meaning that even as the legislators were using ‘organisational and methodological assistance’ in the ‘Dima Yakovlev law’, it was not clear what they meant by it, what they had in mind: seminars, educational literature, or something else.
And what about Booking.com? It’s a foreign resource that allows you to book hotels―that’s ‘organisational help’, isn’t it? Of course it is. Is it foreign? Yes it is. Another example: AliExpress. It operates a parcel delivery service: is that ‘organisational’ help? Of course. And what is meant by ‘scientific and technical assistance’? Would using a foreign-made computer be ‘scientific and technical assistance’? What about the computer itself: it’s obviously the result of scientific and technical development. Take another example. Russia does not produce mobile phones. There’s undreamed-of scope for interpretation right there.
It’s also notable that this law is packed with clauses ending ‘and other’, ‘and other forms’, ‘and such like’. Meaning that any list included in the clause is not exhaustive. That directly contradicts the position of the Constitutional Court, which has said that in a situation where certain restrictions are being imposed, it is unacceptable to include a non-exhaustive list.
In other words, this law has been deliberately drafted so that it can be applied to anyone except Agafia Lykova.
Additionally, Russian citizens or organizations may be considered foreign sources if they receive money or assets from foreign governments, organizations or citizens. Apart from foreign aid or influence, to be added to the register of foreign agents one must be engaged in one of the types of activity enumerated in the bill. That includes political activity, collecting military intelligence and disseminating material to the general public. Things that can be considered political activity include participation in the organization of demonstrations, pickets, public debates, or in election observation. They will also add to the register people affiliated with foreign agents: people who work or have worked in an organization considered a foreign agent. It is argued that demands or limitations imposed on foreign agents will not be extended to include them.
– So what’s even the point in adding people affiliated with foreign agents to the register?
– We did a detailed analysis on this question in March. Back then the Ministry of Justice published a bill on affiliated persons. It was already understood that they wanted to use it in the electoral legislation during elections. That is, a person goes to the polls, and if they show up as an employee of an organization labeled a “foreign agent,” or as a member of a board of directors or trustees and so forth, then in all those cases, they wanted to make work easier for the electoral commission. To enable them to poke into that one, singular register and see: aha, Vasya Pupkin is affiliated with Lev Ponomarev; he used to work for Memorial, what a no-good person. The idea was that that person would have a note attached to their name as an affiliate of Memorial or Golos, or that they had worked for some human rights organization. That is a ‘black mark.’ In other words, it’s a move toward stigmatization, toward squeezing civil society out of any kind of political processes which might influence public opinion, or influence the administration of the state, and so forth. And I don’t think they will stop at that. I don’t rule out the possibility that – despite what is written in the bill – they would expand these obligations; that is, by convention, they are not supposed to write the reports themselves, they are not supposed to post the notes on their social media pages, and so forth, they will not be allowed to establish legal entities, but these people added to the list will nonetheless will be stuck with this black mark, and when they go to the polls they will have this mark that they are affiliated, and they will be on this list. It is, you know, a kind of ‘enemies of the people’ list.
People who are in one way or another connected with the Russian state will be protected from ending up on the list: organs of government, state companies, state corporations and persons under their control. According to this law, mass media outlets like RT and TASS, which receive financing from abroad, will not end up on the list of foreign agents. Likewise, registered religious organizations and political parties will not be added to the registry.
This bill proposes that the Ministry of Justice be allowed to carry out scheduled and unscheduled inspections, and not just of legal entities, but also of physical persons. The ministry will also be able to request information about the financial-economic activity of foreign agents, including banks, and send its representatives to attend events organised by foreign agents.
– It turns out that in order to get information from a bank, you only need the desire and a request from the Ministry of Justice? No court decision is needed?
– This bill allows the Ministry of Justice to conduct scheduled and unscheduled inspections, not only of legal entities, but of individuals as well. This has never happened before. Previously, only investigations into a suspected violation of administrative law or an investigation as part of a criminal case could be conducted against citizens. The Ministry of Justice could not conduct any checks itself. That is, in a sense, an expansion of the powers of regulatory bodies in the direction associated with the private life of the person. So, generally speaking, if a person works as a journalist, the Ministry of Justice has no right to check up on them. What they do is within the competence of their employer. And so these unscheduled inspections by the Ministry of Justice, which it can now carry out on individuals, are a legal nonsense. In addition, this ministry can now request information about the financial and economic activities of a ‘foreign agent.’ Note that the law says that this can be done not only by the Ministry of Justice. First, the Ministry of Justice receives information from Rosfinmonitoring, the tax authorities, the police, and for some reason the Pension Fund. Why the hell is the Pension Fund there?
It is clear that the Pension Fund receives funds, pension contributions from salaries, but similarly a contribution, only for social, medical insurance, is also paid into other funds. Why does the Pension Fund have to inform the Ministry of Justice about anything? The appearance of the Pension Fund in this list is very strange. The feeling is that the people who wrote this law do not really understand what these bodies are doing, including the Pension Fund. Generally speaking, the fact that the Pension Fund, the tax authorities, and Rosfinmonitoring are now entitled to transfer information to the Ministry of Justice means that they are obviously overstepping their authority. This is an invasion of privacy and a violation of banking secrecy. Rosfinmonitoring now generally works on the basis of the law on legalization of illegally obtained income and the financing of terrorism. That is, against ISIS and hiding money offshore. As part of this control function, Rosfinmonitoring had the right to receive information from banks directly, in automatic regime. Conventionally speaking, banks were required to have a personal account on the Rosfinmonitoring site. And via this account Rosfinmonitoring had access to all information about all the accounts of the bank’s clients. The Ministry of Justice is not involved in the oversight of financial activities at all, it has no such authority under the law. A bank has no right to transfer anything to the Ministry of Justice. But here we have a chain like this: the bank automatically provides this information to Rosfinmonitoring. Accordingly, this won’t be a request from the Ministry of Justice to the bank; it will simply be a bank passing on information to Rosfinmonitoring. And if this law is adopted as it is, Rosfinmonitoring will further pass this information on to the Ministry of Justice and this will already be done on the basis of this law. Although we understand that this is, to put it mildly, an invasion of privacy and a violation of banking secrecy. And there is no need for a court order. Unscheduled inspections, according to the bill, can be carried out on the basis of a denunciation by virtually anyone: a notification of a violation of the law on foreign agents by a public authority, a citizen or an organisation profit will be enough. Further grounds for such an inspection would be a notification about individuals who, the notifiers believe, should be designated as foreign agents. And this could come from the authorities, a political party, a non-profit organisation, the Public Chamber, or the national media.
Obligations and restrictions
The draft law proposes the introduction of one relaxation of the rules – the partial lifting of the obligation that a foreign agent must name their status in publications. At present, even when they post photographs of their children or kittens on social media, foreign agents are obliged to provide a whole paragraph about their status. The draft law proposes that they only do this in publications linked to their activities as a foreign agent. Russian legal persons on the register will have to conduct a yearly audit, provide an account of their activities every six months and, every quarter, report the amount of money received from foreign sources and the use to which it is put.
Many restrictions are envisaged for foreign agents. They cannot work in public authority bodies, become a member of an election commission, conduct independent anti-corruption reviews of normative acts or draft laws or take part in election campaigns. A foreign agent is not entitled to be the organizer of a public event. Nor may they engage in teaching, educating or training activities for legal minors. The production of information content for minors is also forbidden. In addition, a foreign agent is not entitled to financial support from the state. Officially this support includes assistance to low-income families and those with many dependent children, the disabled and so on.
Coming off the register
The draft law provides for the possibility of coming off the register of foreign agents. No such procedure exists at the moment and a foreign agent may only challenge the Justice Ministry’s decision in court. Moreover, almost no one has managed it: in February this year, a court ruled for the first time that an organisation should be taken off from the register. The ruling was obtained by the Humanitarian Action charitable foundation which had been included in the list of foreign agent GOs.
The proposal now is to give the foreign agent the opportunity to petition the Justice Ministry on their removal from the register. Removal will be possible if, during the year prior to the petition, the foreign agent has received no financial or any other help from foreign sources or has not taken part in any of the activities defined in the law. The Justice Ministry must find all this out during an unscheduled check into the foreign agent. After a second inclusion in the register, removal will be possible only when three years have expired. It will also be possible to secure removal if money or property received from a foreign source is returned within three months of being put on the register. People affiliated to a foreign agent may be taken off the register if they have no contact with a foreign agent organisation for more than two years from the moment of being included in the list.
Asked whether the possibility of being taken off the register could be seen as a positive change, Galina Arapova said:
— It can’t be considered a positive change because the appearance of affiliated persons is a bad thing in itself. When we talk about a gas chamber, the colour isn’t important, whether it’s green or yellow: it’s a gas chamber. That people will be called affiliated, that they will be put on that register is discrimination whatever. And in order to come off it, they will be forced to change jobs, quit work, no longer be a founder member of an organisation, alter the way they see the world, sit still and keep their head down. All of this is bad. So I can’t bring myself to say it’s a good thing. It’s about the same somehow as the death of a physical entity being the reason for exclusion from the register of “foreign agents”. On the whole, this is in itself a surgical procedure. There is no option apart from having to alter your conscience, your view of the world, your political opinions, your place of work and to cease being a journalist. For, if you do quit your job because of this, you will still have all the previous year’s payment and money transfers from Radio Liberty and they can keep you on the register of “foreign agents” for a whole year more. In other words, it’s not true that leaving work and changing employer will save you. In my view, this law shouldn’t exist at all because it is so discriminatory, it’s hard to find a comparison.