Arkady Liubarev: Is it impossible to fix an ineffectual, harmful and inhumane law?
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3 February 2022

by Arkady Liubarev*, an expert on electoral law (included in the Russian Ministry of Justice’s register of individuals deemed to be media foreign agents)

Source: Moscow Helsinki Group [original source:]

From a common-sense point of view, the answer to the provocative question in the title is obvious: no. But the reality we are living in makes the impossible necessary. A particular joke springs to mind: it would be cruel to cut off a snake’s head, but you can cut off its tail right at the point where it meets its ears.

I was reminded of this joke today during a roundtable organised by the Moscow Helsinki Group and the Association of Independent Regional Publications. The roundtable was dedicated to reforming the legislation on foreign agents.

Around 20 people spoke at the event, most of whom were experts in the field, and not one of them had a single positive word to say about this legislation. Let me cite a few examples of how it was described: “discriminatory, unlawful, unconstitutional” (Aleksandr Shishlov), “undermining trust in NGOs” (Niuta Federmesser), “inhumane” (Grigori Okhotin), “works against the interests of the Russian Federation” (Sofia Groisman), “One if the most disgraceful laws” (Irina Alebastrova”), “a mockery of common sense” (Sergei Lapenkov), “based on a forgery, a legal absurdity” (Ekaterina Shulman), “double standard” (Maksim Krupsky), “destructive” (Svetlana Astrakhantseva). For me, Mikhail Fedotov’s put it best: “utter crap; if a second-year university student wrote something like that, they would get an F”.

Overall, the group was almost unanimous in their views on the law. Such a stark contrast to what the officials are saying!

So, what do we do with all this?

For Aleksandr Shishlov and Grigori Okhotin, the answer is simple: the entire legislation (which amounts to either 36 or 47 individual laws) must simply be scrapped. The relevant bills have already been drafted.

And most of those who spoke at the event are broadly in agreement: scrapping the laws altogether would be the best option. But…many feel that this is an unachievable aim.

Ekaterina Shulman spoke wisely: constantly voicing demands to abolish the laws is the only way to force any changes at all. I tend to agree, but with one proviso: only if the supporters of complete abolition do not get in the way of those fighting for amendments.

In this regard, there is one more aspect we must bear in mind. Those calling for complete abolition simply need to state their demands. There is nothing else to discuss. But when we call for amendments to the law, then we can justify each of our demands. And for each proposed amendment, we have an opportunity to explain in detail what is wrong with this law – or, to be more precise, how exactly it is ineffectual, harmful and inhumane.

Two bills have already been officially submitted to the State Duma, by A Just Russia and New People. A Just Russia’s St Petersburg working group has also drafted a bill. They each make different proposals and, on the whole, they are all positive. But even between the three bills, they do not cover everything. Yesterday I drew up a pack of 27 points. Some of these points are covered by the bills, but not all of them. And today, we heard some sensible proposals from Irina Alebastrova, Elena Abrosimova and Mikhail Fedotov, all of whom hold law doctorates. If we combine forces, we should be able to propose a bill which really does “cut off the tail right at the point where it meets the ears”. Of course, a bill like that is unlikely to pass into law, but I believe that it would be a powerful tool that could enable us to achieve something much more meaningful than we could by simply calling for abolition outright.

In conclusion, let me recall my brief speech (I was given the floor at the beginning of the discussion part, I had about 4 minutes):

Good afternoon, I am, as already noted, included in the register of ‘foreign mass media performing the functions of a foreign agent.’ I would add to what has already been said about the absurdity of the law, that it is nonsense to declare a Russian citizen a media outlet, and all the more a foreign media outlet.

But I represent the largest group of ‘foreign agents’: there are 20 of us, activists from the Golos movement, on the register. But I also have, as it was said before, a PhD in law and I analyzed this legislation as a lawyer.

Like many people here, I think the best option is the complete abolition of the ‘foreign agent’ legislation. But I agree with the assessment that this is not realistic. An alternative to complete repeal is, I believe, a comprehensive reform of this legislation. Comprehensive in two ways. On the one hand, it should apply to all four types of ‘foreign agent’. On the other hand, it should address all aspects of the law. There are three main aspects: 1) conditions of recognition as a ‘foreign agent,’ 2) the procedure of recognition as a ‘foreign agent’ and 3) requirements and restrictions placed on ‘foreign agents.’ For me, however, the main thing is the conditions for recognition as a ‘foreign agent.’

I agree with those who spoke about the inhumanity of this legislation. But I think that in a conversation with lawmakers the emphasis should be on something else. I mean the fact that the practice of the application of the legislation is completely inconsistent with its declared goals. This has been said many times today. And our experience provides additional arguments.

As I said, we are 20 ‘foreign agents’ in Golos. We are all in the process of appealing our status in court. Only in court will we find out why we were put on the register. As of today, 15 out of 20 of us have already received this information – the reason for inclusion. Here it has been suggested that there should be a threshold of funding of 50,000 roubles to be registered as a ‘foreign agent’. Of our 15 people, 13 received sums less than 50,000 and 10 received less than 25,000 roubles. Five had received money more than a year before they were put on the registry. One of us received only 500 roubles, back in 2019. As we found out, Rosfinmonitoring checked the receipts for 20 months, so all these amounts should be divided by 20 to get the average receipts for the month. And most of the receipts are household transfers that have no connection to a person’s public activities.

That is why I support the suggestion that there needs to be a link between funding and public activity. But if it does not pass, there should at least be introduced a time limit (say, one year) and a lower limit on the amount of money (at least 50.000 roubles, though 100,000 roubles or even more would be better).

* Entered by the Russian ministry of Justice in the register of individuals recognised as ‘media foreign agents.’

Translated by Judith Fagelson and Simon Cosgrove

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