Moscow Helsinki Group calls on the Public Prosecutor’s Office to withdraw its lawsuit to shutdown Memorial

15 November 2021

Statement by Moscow Helsinki Group

The Moscow Helsinki Group has sent an open appeal to the Prosecutor General requesting that the lawsuit to shutdown the Memorial Society be withdrawn on the grounds that it is groundless, disproportionate, and incompatible with freedom of association. The Moscow Helsinki Group has also requested that the Moscow prosecutor be instructed to withdraw a similar lawsuit against the Memorial Human Rights Centre for the same reasons.

In addition, the human rights activists have called on the General Prosecutor’s Office to ask the President of the Russian Federation to introduce a legislative initiative into the State Duma that would end the designation of NGOs and individuals as foreign agents (and thus their subsequent prosecution, as is happening today with Memorial) on the basis of public criticism of the authorities.

The MHG also calls on the Prosecutor’s Office to request that the President of the Russian Federation bring forward legislative and organizational initiatives that would dramatically increase the powers and opportunities for prosecutors to investigate and prosecute law enforcement and prison officials who allow lawlessness, including such egregious manifestations as torture of defendants or convicts.

MHG: Open appeal to the Prosecutor General of the Russian Federation

15 November 2021

To the Prosecutor General of the Russian Federation

I.V. Krasnov

Dear Igor Viktorovich,

On 8 November this year, you filed a lawsuit at the Supreme Court of the Russian Federation to liquidate the International Memorial Historical Enlightenment, Charity and Human Rights Society and its structural subdivisions. At the same time the Moscow City Prosecutor filed a lawsuit to liquidate the Memorial Human Rights Centre.

The protection of human rights and freedoms is the primary objective of both these non-governmental organizations and the General Prosecutor’s Office of the Russian Federation. The fact that the Prosecutor General’s Office of the Russian Federation is trying to liquidate them instead of cooperating with like-minded organizations is a symptom of a severe disease of the state organism of the Russian Federation. Your initiative looks especially alarming against the background of inaction of the Prosecutor General’s Office with regard to the mass violations of human rights and freedoms by law enforcement officers and in the system of the Federal Penitentiary Service, including such blatant lawlessness as torture during preliminary investigation and in places of detention.

Your lawsuit of 8 November this year is based on the federal legislation on nonprofit foreign agents. But this legislation itself is an attack on the foundations of the state system of the Russian Federation, because it artificially confused two linguistically and essentially different concepts: “activities” (political) and “statements” (including on vital political issues). The result of this confusion of “activity” and “statement” has been the de facto establishment of political censorship in our country, including the suppression of criticism of those criminal phenomena that pose a real threat to Russia’s future.

Since its inception, the legislation on foreign agents has been the subject of widespread criticism by both international human rights institutions and national ones. Demands and recommendations for the repeal or amendment of the foreign agents legislation have been made at various times by the UN High Commissioner for Human Rights[1], the UN Special Rapporteurs on Freedom of Assembly and Association, Human Rights Defenders and Freedom of Expression[2], the UN Committee Against Torture[3], the Committee on the Rights of the Child[4], UN Committee on the Elimination of Racial Discrimination[5], Council of Europe Commissioner for Human Rights[6], Council of Europe Parliamentary Assembly[7], Council of Europe INGO Conference[8], OSCE Parliamentary Assembly[9], OSCE ODIHR[10], Venice Commission[11], Advisory Committee of the Framework Convention for the Protection of National Minorities[12] and the International Commission of Jurists[13].

Similar demands and recommendations have been made by the Presidential Council for the Development of Civil Society and Human Rights [14], the Public Chamber of the Russian Federation [15], the Committee of Civic Initiatives [16], the Organising Committee of the All-Russia Civic Forum [17], the Agora human rights organisation [18], the Human Rights Resource Centre [19], the Centre for Anti-Corruption Research and Initiatives of Transparency International-R [20], Lawyers for Civil Society [21] and other respected civil society organisations and experts. A petition for the repeal of the law on foreign agents, launched in September, has already been signed by more than 230,000 people, as well as by several hundred Russian NGOs, civic associations and groups of journalists [22].

Now a wide range of representatives of civil society both in Russia and abroad have spoken in defence of Memorial and against its liquidation.

Any restrictions on freedom of association must be prescribed by law and must be both essential and proportionate to achieve a legitimate purpose. This fundamental principle is universally recognised, and is reflected in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and the OSCE Guidelines on Freedom of Association [23]. These are based on the principle, “the prohibition and dissolution of associations should always be employed only as a means of last resort.”

The Venice Commission, in its recent opinion on the latest amendments to the legislation on foreign agents, also pointed to the extreme nature of this measure, as well as to its excessiveness in the context of the laws on foreign agents: “The dissolution of an NGO is an act of last resort that must be based on a valid reason, and it is clearly established in international case law that it may be resorted to only in exceptional circumstances, such as, for example, the violation of fundamental democratic principles … In this regard, punishment in the form of liquidation for simple non-compliance with the Ministry of Justice’s prohibition of certain activities is incompatible with freedom of association and should be reserved for extreme cases of serious violations that threaten democracy” [24].

Similar considerations are set out in Resolution A/HRC/22/L.13 of the UN Human Rights Council “On the protection of human rights defenders,” which is directed against any law that is used with the aim of unduly obstructing or criminalising the work of human rights defenders in connection with the source of their funding.

The extent of public reaction to the liquidation of Memorial, the controversial nature of the law on foreign agents, and the obvious irrelevance of this case in relation to “serious violations that threaten democracy,” clearly indicate that this measure cannot be considered either reasonable or proportional. This is particularly clear given that Memorial is already dutifully paying gigantic administrative fines and is suffering serious material damage as a result of the defective and unjustified legislation on foreign agents.

As the UN Special Rapporteur on Human Rights Defenders has convincingly noted, “Human rights defenders should be able to participate in public affairs and to raise issues of public interest in a critical manner, regardless of where they receive funding from. … This form of activity should not be assessed as political activity, but should be perceived as a necessary element of an open and democratic society” [25].

It is worth noting that the European Court of Human Rights is currently considering the case brought by thirteen Russian NGOs (“Ecodefence and others vs Russia”) (No 9988/13), in the course of which the legislation on foreign agents will be checked for compliance with the requirements of the European Convention on Human Rights. Given that the case was registered in 2012, we expect it to be substantially considered in the near future.

With regards to the above, we request that you:

1. Withdraw your claim from 8 November this year regarding the liquidation of the Memorial Society as it is unreasonable, disproportionate and incompatible with freedom of association; We ask you to instruct the Moscow prosecutor to withdraw a similar claim against the Memorial Human Rights Centre on the same grounds.

Your claim is untimely, also in connection with the aforementioned complaint to the ECtHR against the foreign agents legislation, which is a “new circumstance” that entails, in accordance with Article 392, Part 4, Paragraph 4, of the Code of Civil Procedure, the possibility of annulling a court’s decision in a civil case.

It is also necessary to point out the special role of Memorial in preserving the historical memory of our country, which as a social value is incomparably higher than the formal reasons underlying your claim to liquidate Memorial. To understand this special role of Memorial, it is enough to recall the words of President Vladimir Putin, who said at the opening of the Wall of Sorrow on October 30, 2017: “Millions of people who were declared ‘enemies of the people’, were shot or injured, went through the torment of prisons, camps and exile. This terrible past cannot be erased from the national memory and, moreover, it is impossible to justify in any way, and not in terms of any so-called superior benefits of the people.”

2. Apply to the President of the Russian Federation with a request to come up with a legislative initiative, which will stop the recognition of NGOs and individuals as foreign agents (and thereby their prosecution, as is happening today with the Memorial Society and the Memorial Human Rights Centre) on the basis of those or other publicly declared critical positions. On 21 October this year, at the Valdai discussion club, answering a question from the editor-in-chief of Novaya gazeta and Nobel Peace Prize laureate Dmitry Muratov, the President of the Russian Federation Vladimir Putin unequivocally expressed support for the revision of the provisions of the legislation on foreign agents. We quote: “I promise you, we will look again at these vague criteria. I constantly give such instructions to the Presidential Administration and to the State Duma deputies to improve this tool and in no way abuse it. “

3. To appeal to the President of the Russian Federation with a request to introduce legislative and organisational initiatives to the State Duma that radically increase the powers and opportunities for prosecutors to investigation and prosecute officials of law enforcement agencies and the penal system who commit lawlessness, including in such outrageous manifestations as the torture of accused or convicted persons.

Moscow Helsinki Group

[1] https://tass.ru/mezhdunarodnaya-panorama/3360030

[2] newsarchive.ohchr.org/RU/NewsEvents/Pages/DisplayNews.aspx?NewsID=13323&LangID=R

[3] http://hrlibrary.umn.edu/russian/cat/Rrussia_2012.html

[4] tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/RUS/CRC_C_RUS_CO_4-5_16305_E.pdf

[5] https://newsarchive.ohchr.org/RU/NewsEvents/Pages/DisplayNews.aspx?NewsID=13323&LangID=R

[6] https://rm.coe.int/-3-36-9988-13-48-/16807457c1; http://monitoring.mhg.ru/sites/default/files/files/commhr201315_ru.pdf; http://monitoring.mhg.ru/sites/default/files/files/commdh201517_ru.pdf

[7] https://bit.ly/3ow71tC

[8] monitoring.mhg.ru/sites/default/files/files/oing_conf_exp_2013_1_opinion_ngo.pdf

[9] web.archive.org/web/20150708070133/http://www.oscepa.org/meetings/annual-sessions/2015-annual-session-helsinki

[10] https://www.osce.org/ru/odihr/445243

[11] https://academia.ilpp.ru/zaklyucheniya-venetsianskoj-komissii/rossiya-zaklyuchenie-1014-2020/; https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2014)025-e