Tatyana Glushkova: “The gateway to a hell of limitless arbitrariness.” On the bill on advance oversight of NGOs’ activities

11 November 2020

By Tatyana Glushkova, lawyer, Memorial Human Rights Centre: 

Source: Moscow Helsinki Group [original source: facebook.com/glush.tat]

Yesterday the Government of the Russian Federation submitted to the State Duma a bill aimed at “improving the legal regulation” of the activities of NGOs “performing the functions of a foreign agent” (in simple language, foreign-agent NGOs). The key innovation is the introduction of oversight (moreover, oversight in advance) over the significant activities of the relevant NGOs.

When this bill becomes law (and, frankly, there’s no doubt this will happen), foreign-agent NGOs will be obliged to send to the Ministry of Justice any “foreign documents supplied for the implementation of the programme, which are the basis for the implementation of activities” (prior to the implementation of these programmes), as well as reports on the implementation of these programmes and the implementation (or non-implementation) of planned measures.

The Ministry of Justice, in turn, will be empowered to prohibit the implementation of any given programme of a foreign-agent NGO. Such a decision, according to the bill, should be “reasonable” but there is no question of any kind of defined list of potential motives. Failure to comply with this prohibition, in turn, will lead to the liquidation of the NGO.

So, in fact, we are standing at the gateway to a hell of unlimited arbitrariness.

Now let’s turn to history.

The law on foreign-agent NGOs was adopted in July 2012 and entered into force 120 days later, in November of the same year. Its initiators and supporters frequently stressed that it did not forbid anyone from doing anything – “foreign agents” could receive money from any source, as before, and engage in any activity. It was only necessary to announce publicly that the activity was funded by foreign money (hence the requirement to stick the corresponding labels on their publications), and to report more often on this activity.

The Constitutional Court of the Russian Federation relied on this argument when in April 2014 it recognised the law on foreign-agent NGOs as compliant with the Constitution, since its provisions (I will give only two brief quotes from the operative section) “do not imply government interference in determining the preferred content and priorities of such activities” (“such” in this case means “any activity carried out by NGOs with foreign money”) and “do not prevent non-profit organisations from freely seeking and receiving money and other property from both foreign and Russian sources”.

But by November of the same year, NGOs included in the register were already banned from observing elections and referenda.

In May 2015, the law on Undesirable Organisations was passed, making it, with one stroke of a pen, a criminal offence to interact with specific foreign or international non-governmental organisations. The practical application of this law has sharply reduced (and continues to reduce) the list of those organisations from which Russian NGOs – whether recognised as foreign agents or not – can accept funding for their work.

In July 2018, foreign-agent NGOs were banned from nominating candidates for membership of the Public Monitoring Commission, and in October from conducting anti-corruption assessments of draft regulatory legal acts. 

I will not even enumerate the kinds of pressure and restrictions on activities that are not foreseen by the law which NGOs entered in the register have encountered since then, such as conversations between the FSB and the winners of the school competition “People in History” (a competition for high school students’ research papers on the history of the 20th century). 

And now, here we are.

To be frank, speaking in this regard about the latest round of pressure on civil society in Russia, or the hypocrisy of those in power, is even less interesting than writing a complaint about a rally by hand. There are no surprises in this bill either – of course, nobody expected that it would appear on 10 November 2020, and be formulated in this way – but the idea itself is not new. For example, back in 2018, senators proposed to inhibit the implementation of any foreign programmes in Russia, apart from those that are carried out jointly with Russian government agencies.

Therefore, I will simply note how much widespread tolerance of this kind of news has increased in recent years. I remember the storm of emotions caused by the bill on foreign-agent NGOs. I remember the plight of “how to survive from now on” – although in its then-form it really only caused reputational damage, without hindering meaningful work in any way. The reaction to this newly-announced restriction on everything we do is much weaker and comes down mainly to a bit of swearing. Such an increase in our “pain threshold” was of course predictable, but it is imperative that we fix it, at least so we can reflect further.

Translated by Anna Bowles

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