Maksim Krupsky on the dangers presented by the new bill on ‘foreign agents’ [Advokatskaya ulitsa]

26 April 2022

‘The final solution to the ‘foreign agents’ issue’ – Advokatskaya ultisa interviews lawyer Maksim Krupsky

Source: Moscow Helsinki Group [original source: Advokatskaya ulitsa]

At the beginning of the week, a new ‘unifying’ bill on ‘foreign agents’ was introduced to the State Duma. One of its co-authors, Senator Andrei Klimov, has already told the media that the document should ‘close additional loopholes for “foreign agents”’. Maksim Krupsky, a lawyer and independent expert at the Ministry of Justice of the Russia Federation, studied the draft law and answered Ulitsa’s questions in writing. According to him, the new law ‘provides virtually limitless possibilities for recognizing anyone as a “foreign agent”’.

– If I understand correctly, this bill, if passed, will replace all other ‘foreign agent’ laws? 

Yes, it was announced as an independent normative act that will unite all the existing disparate ‘foreign agent’ regulations. For example, a single registry will be created for all existing ‘foreign agents’. This will include a completely new ‘subspecies’: ‘individuals affiliated with foreign agents’. An exception is the norms on criminal and administrative liability for violating ‘foreign agency’ legislation. They will remain in their respective Codes.

– On what grounds will the state now be able to recognize a person as a ‘foreign agent’?

– It is very important to note that the law introduces radical changes to the institution of ‘foreign agents’. Here’s one example: not everyone knows that for the last 10 years, the law has been using the wording ‘a person acting as a foreign agent’. And now it will finally be replaced by the quite unambiguous concept of ‘foreign agent’. The draft law understands it as ‘a person who has received support and/or is under foreign influence in other forms, and who carries out the types of activity specified in the law.’ And ‘foreign influence’, according to the law, is ‘the provision of support by a foreign source to a person and/or influencing them, including through coercion, persuasion and/or other means’.

In turn, ‘support” is expressed as ‘providing money and (or) other property to a person, as well as providing a person with organisational, methodological, scientific and technical assistance, or assistance in other forms’ by a foreign source.

The new wording is not just cosmetic – it radically changes the very institution of foreign agents. The new law provides virtually limitless possibilities for recognising anyone as a foreign agent. 

Maksim Krupsky

By making the feature of foreign funding optional, the law allows any foreign relationship to be classified as ‘influencing’ if one so desires. On this basis, any person can be recognized as a ‘foreign agent’.

‘Foreign source’ is defined in the law as broadly as possible. This includes

  • foreign governments;
  • public authorities of foreign governments;
  • international and foreign organisations;
  • foreign citizens;
  • stateless persons;
  • persons authorised by the persons listed above;
  • citizens of Russia and Russian legal entities receiving funds and/or other property from the sources listed above or acting as intermediaries in receiving these funds;
  • Russian legal entities whose beneficial owners are foreign and stateless persons, as well as persons under the influence of all the persons listed above.

Particular attention should be given to the ‘activities’ that will be used to justify the designation of ‘foreign agent’ status. The law retains the already familiar ‘political activity’ (the definition of which migrated to the new law from the Federal Law ‘On non-profit organisations’) and the ‘deliberate collection of information on the military and military-technical activities of the Russian Federation’ (this wording is taken from the Federal Law ‘On measures of influence on persons involved in violations of fundamental human and civil rights and freedoms of citizens of the Russian Federation’). But now the law proposes to give a person ‘foreign agent’ status for “distributing messages and materials intended for the general public, and/or participating in the creation of such messages and materials’. ‘Financing’ of the listed activities also serves as a basis for obtaining ‘foreign agent’ status.

By making the indication of foreign funding optional, the law allows any foreign connections to count as “exerting influence” if desired. And on this basis, anyone can be recognised as a “foreign agent”.

A “foreign source” is defined as broadly as possible in the law. These are:

  • foreign states;
  • public authorities of foreign states;
  • international and foreign organisations;
  • foreign nationals;
  • stateless persons;
  • persons authorised by the above-mentioned entities;
  • Russian citizens and Russian legal entities who receive funds and/or other property from the sources listed above or act as intermediaries in the receipt of such funds;
  • Russian legal entities, the beneficiary owners of which are foreign persons and stateless persons, as well as persons influenced by all of the above.

Particular attention should be paid to the “activities” that would give rise to “foreign agent” status. The law retains the already familiar ‘political activity” (the definition of which has been carried over into the new Law from the Federal Law “On Non-Commercial Organisations”) and “intentional collection of information on the military and military-technical activities of the RF” (this wording is taken from the Federal Law “On Measures to Influence Persons Involved in Violations of Fundamental Human and Civil Rights and Freedoms of the Russian Federation”). But now the law proposes to grant a person the status of a “foreign agent” for “disseminating messages and materials intended for an unlimited number of persons, and/or participation in the creation of such messages and materials”. “Financing” of the listed activities also serves as grounds for receiving “foreign agent” status.

The new law allows literally any post, comment or tweet on a social network, any video or other material created “under foreign influence” to qualify as an activity allowing a person to be recognised as a “foreign agent”.

Maksim Krupsky

– Who exactly can be recognised as a “foreign agent” under the new law?

“Foreign agent” status can be given to:

  • A Russian or foreign legal entity, a public association, or other association of persons;
  • A foreign entity without the formation of a legal entity;
  • A natural person, irrespective of citizenship.

It is important to note that the new law does not define the term “other association of persons”. Actual practice will show what the enforcers of the law mean by it. However, it is clear that this concept is being introduced for the sake of maximum coverage of the public space. So that independent media projects, for example, should not escape the status of a “foreign agent” whatever the circumstances. In general, any horizontal communities that do not fall under any status formally described in the law – legal entity, public association, etc.

However, there are exceptions. The following are not under threat of being labelled a “foreign agent”:

  • The public authorities of the Russian Federation;
  • Persons under the control of the Russian Federation, subjects of the Russian Federation, municipalities;
  • Public-law companies;
  • State companies, state corporations, as well as the persons under their control;
  • State extra-budgetary funds;
  • Religious organisations and political parties.

Who are “persons under the control” of the authorities or state corporations?

– The bill does not answer this question. Based on the stated meaning of the initiative, we can assume that we are talking about loyal, “trustworthy” persons. Actual practice will show how this loyalty will be established from a formal legal point of view.

– The wording “family member of a ‘foreign agent’” has been discussed on social media. Does the law really cover this variation as well?

– The bill does not contain that actual wording.

– Who will make the decision on declaring a person or organisation to be a “foreign agent”?

– The Russian Ministry of Justice, as before.

– Have the obligations required of “foreign agents” changed? What is now required of them in terms of labelling?

– “Foreign agents” will still be required to make their status known. However, the law specifies that displaying this status is not always necessary, but only when carrying out the forms of activity named above. Yet it is impossible to understand when one is “carrying out an activity”, and when not.

Declaring one’s status as a “foreign agent” is required in communications with public authorities and educational institutions, as well as “other bodies and organisations”. It will also be necessary to mention this status to “founders (participants), beneficiaries and workers (employees)” of these organisations.

The labelling of “materials distributed and produced in connections with the fulfilment of ‘the activity of a foreign agent’” remains compulsory. It will also still be required to label information which relates to this activity and is distributed in the media and online. This requirement – when engaging in the forms of activity named above – applies to founders, members, participants and leaders of “foreign agents” as legal entities, as well as to individuals belonging to such an entity.

Requirements relating to bookkeeping, audits and accounting remain the same.

– How does the law restrict the rights of “foreign agents” and individuals “affiliated” with them?

– The new law expands on the list of restrictions for “foreign agents”. For example, another radical change is the complete ban of teaching, pedagogical and pastoral activity with minors. Besides this, they are forbidden to participate in the production of informational materials for minors.

Individuals will practically be deprived of any opportunity to hold public office. Furthermore, they will not be allowed to participate in the activities of bodies formed by public authorities, or to be members of electoral or referendum commissions. It will be possible to deny them access to state secrets. Public associations classified as “foreign agents” will be barred from nominating candidates to the Public Monitoring Commission. 

“Foreign agents” are also prohibited from:

  • conducting independent anti-corruption analysis of regulatory legal acts;
  • participating in any kind of election or referendum campaign;
  • making donations to electoral funds;
  • organising public events;
  • financing the organisation and holding of public events;
  • donating to political parties or doing business with them.

In addition, “foreign agents” are barred from “activities with the aim of securing state or municipal needs” and from receiving state financial support. It will not be possible to insure funds in the possession of “foreign agents” (with the exception of private individuals) and to which they have access. “Foreign agents” are not entitled to use the simplified system for filing taxes, as well as simplified accounting methods, including simplified accounting (financial) statements. “Foreign agents” are also subject to restrictions and prohibitions stipulated in the Federal Law “On the Procedure for Making Foreign Investments in Business Entities of Strategic Importance for Ensuring the Defence of the Country and the Security of the State”.

At the same time, the law contains an important distinction – the requirements and restrictions established for “foreign agents” do not apply to “affiliated” individuals.

– What are the penalties if “foreign agents” violate the provisions of this law?

– Failure to comply with the law entails administrative, criminal and other liability. Repeated failure by a “foreign agent” to provide information required by law is grounds to apply to the courts for its liquidation.

– You are talking, of course, about organisations, not individuals…?

– Yes, we are talking specifically about the liquidation of legal entities, public associations and other associations of individuals.

It is also possible to prohibit “foreign agents” from carrying out any programme (or part of it) by decision of the Russian Ministry of Justice. Failure to comply with such a decision also entails the liquidation of the “foreign agent”. And so on and so forth, up to the already existing norms regarding restricting access to the information resource of a “foreign agent” if it violates the “foreign agents” legislation.

– Is it possible to be removed from the register? If so, how?

– This decision can be taken by the Russian Ministry of Justice. According to the bill, exclusion from the register “is carried out in connection with the termination of the activities of a legal entity or association, with the death of a natural person”. But the “foreign agent” itself can also ask to be excluded. In order to be excluded, they must not receive any funds or other property from foreign sources, as well as organisational, methodological, scientific or technical assistance or “assistance in other forms” for a year before the request is submitted. Also, the “agent” must not carry out the activities listed above (political and so on) for at least a year. For persons who had already been excluded from the register, but had then been re-entered, this period is three years.

There is another option for exclusion. This requires that the “foreign agent” must, no later than three months from the date of inclusion in the register, “refuse to receive funds and (or) other property from foreign sources and return them to the foreign source, and not receive from foreign sources organizational, methodological, scientific or technical assistance, or assistance in other forms”.

Such a statement by a “foreign agent” will be verified within 60 calendar days – and then the Ministry of Justice will make a decision. Individuals included in the register for the first time have the right to submit a free-form application “attaching a confirmation of the cessation of the circumstances that served as the basis for their inclusion in the register”. The decision on such an application shall be made within 30 working days.

– What about affiliated persons?

– They may be excluded from the register by decision of the relevant body – if for at least two years there have been no indications of the grounds on which they were included in the register.

– One gets the impression that now literally everyone in the country can get “foreign agent” status.

– This is, indeed, a radical change in the institution of “foreign agents,” making it a comprehensive mechanism for identifying those the authorities consider ‘unreliable’ and stigmatising them.

Translated by Tyler Langendorfer, Anna Bowles, Elizabeth Rushton and Simon Cosgrove

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