9 November 2022
by Aleksei Sviridov & Maria Starikova
For the third time, Memorial Human Rights Centre failed in its appeal against the earlier decision to liquidate it for a ‘systemic violation’ of the law on foreign agents. The corresponding appeal was rejected by the Second Court of Cassation’s judicial panel, which agreed with the Moscow Prosecutor’s Office and the Moscow Ministry of Justice.
The Second Court of Cassation’s judicial panel session lasted about two and a half hours on Wednesday. During it, lawyers for Memorial Human Rights Centre were able to speak, as were the prosecutors and a representative of the Moscow Ministry of Justice. The former pointed out that it was impossible to liquidate the Human Rights Centre for several good reasons, while their opponents declared that all of these reasons were unfounded.
In November 2021, the Moscow Prosecutor’s Office called for the liquidation of the Human Rights Centre on account of its ‘systemic violation of the law on foreign agents’, in particular for the lack of labelling on books, website materials and social media posts that identified Memorial as a foreign agent. The Prosecutor’s Office also alleged the use of ‘inappropriate’ wording when placing the label (for example, instead of ‘foreign agent’ or ‘recognised as a foreign agent’, descriptions of the norms of laws governing labelling requirements).
However, neither the Prosecutor’s Office nor the Ministry of Justice clarified verbatim what the appropriate wording should be and how exactly it should be placed in each public message on the Internet or in printed materials.
The supervisory body drew attention to the fact that the absence of foreign agency labelling in the Human Right Centre’s materials carries a ‘risk for a child’s development and of harm to one’s health’ that can ‘cause depression’. The prosecutors presented the court with the results of an expert examination, according to which the materials on Memorial’s website ‘showed evidence of justifying extremism’. Their experts identified the publication of lists of Russian political prisoners.
Memorial, in turn, assured that it had rectified all identified labelling violations in 2018, 2019 and 2020, paying more than 4m roubles in fines. In the appeals and cassation complaints, it was first of all argued that these violations have been rectified, which cannot be grounds for double punishment (in the form of liquidation), and secondly, that they ‘do not pose any danger to the public’.
In a statement issued in connection with their filing an appeal with the Second Court of Cassation, Memorial’s lawyers said that ‘It is likely that no one will ever find out whether the ‘material belonging to the non-profit acting as a foreign agent’ (From the Prosecutor’s Office lawsuit demanding liquidation. – Kommersant) is merchandise, business cards, invitations to film screenings, statements about crime, humanitarian aid”. The question remains whether an innocent bystander who presents themselves as an employee of a non-profit organisation, can send ‘material’ on behalf of a non-profit that doesn’t have any labelling. The last fine that the Human Rights Centre received was for not labelling a letter to the Foreign Ministry. We learned about the existence of this letter from the Prosecutor’s Office. It was sent by an employee from his personal email, and during the liquidation the prosecutor’s office blamed Memorial for the demonstrative violation of labelling requirements.’
During the trial, lawyers Aleksandra Baeva and Eva Korneichik insisted that the organisation’s liquidation violated the right to freedom of association and speech. They pointed out that the decision of the European Court of Human Rights [ECtHR] dated 14 June 2022, in which Strasbourg determined that the inclusion of Memorial in the register of non-profit-foreign agents in 2016 violated several articles of the Convention and, consequently, the rights of human rights defenders with regard to freedom of association and expression. Both Ms Korneichik and Ms Baeva reminded the court of Memorial’s ‘almost 30 years of work’ on cases involving the torture, kidnapping and murder of citizens, including on the territory of Chechnya.
“The courts correctly decided to liquidate Memorial,” one of the prosecutors stated in response. “The lack of labelling poses a real threat and harms society, as this enables the Human Rights Centre to hinder the monitoring of its activities.”
Arseny Sindetsky, an employee of the Ministry of Justice, also curtly stated that he was ‘against allowing the appeal’.
Judge Larisa Shelomanova retired from the room for ten minutes and, upon returning, determined that ‘The appeal should be dismissed.’ Memorial’s lawyers explained to Kommersant that this means that the defence has only one option left before it has “exhausted” all means at the national level: to file an appeal against the decision on liquidation with the Supreme Court. “Most likely, justice will have to be sought outside the Russian Federation, in international courts,” Aleksandra Baeva stated.
On 30 October, representatives of International Memorial (also liquidated in December 2021 for violating foreign agent legislation) challenged the organisation’s liquidation at the ECtHR. Memorial Human Rights Centre has not yet exhausted all possibilities for protection at the national level, which is required before an appeal can be submitted to Strasbourg. Today the eponymous centre for the protection of human rights operates on the platform of the liquidated Memorial Human Rights Centre, whose lawyers turned to the ECtHR on behalf of International Memorial.
Translated by Tyler Langendorfer