17 July 2021
by Leonid Nikitinsky, Novaya gazeta correspondent, member of the Presidential Council on Human Rights and Civil Society, laureate of the Moscow Helsinki Group Prize for Human Rights
The Institute of Law and Public Policy, which has just been deemed a foreign agent, has published the conclusion of the Venice Commission of the Council of Europe on this topic
On 15 July, the Justice Ministry announced that it was adding the Institute for Law and Public Policy (IPPP) to the register of NGO foreign agents, and on the 16th, on the IPPP website, a translation appeared of the conclusion of the European Commission for Democracy through Law (the “Venice Commission,” a consultative body on constitutional law under the Council of Europe), “On the correspondence to international standards on human rights of several bills passed by the Russian State Duma between 10 and 23 November 2020 that made changes to the legislation on foreign agents.”
Of course, this is a coincidence. The conclusion was drawn up by four legal scholars from the Czech Republic, Iceland, Germany, and Belgium, after consultations with Russian governmental and nongovernmental organizations, and approved at a plenary session on 3 July. The translation of the 40-page IPPP document took less than two weeks, and since it happened that the Justice Ministry slightly beat out the IPPP — well, you don’t throw out a document this interesting!
Jurisprudence, in those countries where the law actually functions, is a fairly precise science, based on texts that have to be read exactly the way they were written. From this standpoint, in its persuasiveness and beauty, the Venice Commission’s conclusion is like the proof of a theorem: you can dispute it, of course, but you can also make a fool of yourself.
That is what Russian officials tried to do, referring in conversations with Commission members to analogous legislation of other countries, including the United States, Israel, Hungary, and Estonia. In the proof of a theorem, the counterarguments have to be refuted, and in its conclusion the Venice Commission did just that:
- In the United States, the law on foreign agents regulates only lobbying activity carried out by individuals “acting in the capacity of agent, representative, employee, or contractor of a foreign principal in his interests and using his means,” but collecting donations in any currency, whether inside the country or abroad, for any legitimate purposes, naturally, is not prohibited;
- In Israel, the legislation on foreign agents assumes financing only from “foreign political bodies” and in no way from private organizations or physical persons; the restrictions affect only those NGOs in whose budgets such funds comprise more than half, and they are required to disclose their financing sources only in public reports and in contacts with official state persons;
- In Hungary, the law on foreign agents was repealed after criticism by the Venice Commission in April of this year, and in Estonia, work on its draft was halted as soon as its content became public.
The Russian legislation on foreign agents, apart from the negative connotations obvious to the Russian ear, definitely assumes a nonspecific and even indeterminate concept of “political activity,” by which it means the spreading of any information “that may influence decision-making by state organs” (that is, it also may not). In this context, the Commission notes, restrictions on the activity of NGOs that have been given this label challenge citizens’ fundamental rights (which are fixed in the Russian Constitution) to freedom of association, freedom to distribute information and express opinions, and to participate in the governance of the state, the general ban on discrimination, and the right to privacy. Although none of these laws is absolute, they can be limited only when they create a real and not hypothetical threat to national security or to the rights and freedoms of other persons — the Conclusion emphasizes.
The Russian legislation on foreign agents drew the attention of the Council of Europe beginning in 2012, when it had just appeared, but on 18 December 2020, its steady tightening forced Boris Tsilevitch, chair of the Committee on Law and Human Rights of the Parliamentary Assembly of the Council of Europe, to again request a conclusion from the Commission for Democracy through the Law on whether the recent relevant amendments to the laws of the Russian Federation meet international standards in the sphere of human rights.
The full text of the Conclusion can be read on the Institute of Law and Public Policy website. Need it be mentioned again that it has been deemed a foreign agent?
In any case, we will mention it, although by doing so the Justice Ministry has violated the procedure it itself established, and the IPPP intends to appeal its decision of 15 July.
One can assume, actually, that the political decision was taken not by the Justice Ministry and is explained by the fact that for legislative and judicial bodies in the Russian Federation, genuine, honest jurisprudence has become intolerable.
Novaya Gazeta is planning to follow the developments on this matter and to tell the detailed story of the creation and development of this foreign agent, the Institute of Law and Public Policy.
Translated by Marian Schwartz