Leonid Nikitinsky: ‘Foreign agents’ prepare to fight back

4 February 2022

by Leonid Nikitinsky, Novaya gazeta columnist, member of the Russian Presidential Human Rights Council, Moscow Helsinki Group prize-winner

Source: Moscow Helsinki Group [original source: Новая газета]

Official and quite unofficial figures unite to fight the ‘foreign agents’ legislation

The Moscow Helsinki Group (MHG) held its latest roundtable on 3 February devoted to the ‘foreign agent’ legislation. The purpose of this series of events is to bring together critics of the legislation, ranging from activists to State Duma deputies.

The discussion brought together those who advocate the complete abolition of the ‘foreign agent’ legislation with those who propose at least amending this legislation in the window of opportunity that has opened up.

There are drafts of such amendments which will be put before the State Duma by the Just Russia and New People factions. Just Russia deputy Nikolai Novichkov, who participated in the discussion, assured those present that his faction considers their proposals a priority, which guarantees they should be considered in a first reading in the coming spring session. New People deputy Sardana Avksentieva said her faction is going to submit a more detailed draft to introduce the concept of ‘principal’ in whose interests the ‘agent’ acts, as well as defining the lower threshold of funding for recognition as a ‘foreign agent’ – not less than 30% of an organisation’s working capital,

The Just Russia faction in the Legislative Assembly of St. Petersburg will present its own draft which goes further than the draft of the same faction in the State Duma, its deputy speaker Marina Shishkina explained. Meanwhile, the Yabloko faction in the St. Petersburg Legislative Assembly will insist on complete repeal of ‘foreign agent’ legislation. OVD-Info, recognized as a ‘foreign agent’, has also developed a draft bill for the complete repeal of the ‘foreign agent’ legislation, in line with which, according to Grigory Okhotin who presented the proposal at the round table, 47 amendments will have to be made to the legislation, including to the Criminal Code and the Code of Administrative Offences. 262,000 individuals have signed a petition in support of the OVD-Info draft bill that takes into account the views of of 243 NGOs and media and meets the expectations of 48 percent of the public as polled by the Levada Centre (itself a ‘foreign agent’).

Of course, the drafts submitted by organisations that have no right of legislative initiative can only be seen as material for those who do have such right – in particular, for the deputies of both houses of the Federal Assembly. But even a draft’s official submission to the Duma is no guarantee of acceptance. Everything will depend on the majority faction which is that of United Russia.

Nevertheless, the widespread public discussion creates a certain pressure, which the presidential administration can take into account.

While it may not be possible to give a definitive definition of ‘political activity,’ the amendments that occur in most of the drafts boil down to the need to introduce into the legislation the notion of a ‘principal’ (as was done in the US law of 1938, to which proponents of the Russian ‘foreign agent’ law usually make reference) and of judicial procedures as a means to establish the causal link between financing by a principal and the actions of an ‘agent.’ It is also proposed to introduce a procedure of issuing warnings about possible designation as a ‘foreign agent,’ giving an organisation the chance to correct mistakes in its work, as well as a transparent judicial procedure for making such designations and a procedure for a ‘foreign agent’ to be removed from the register.

Mikhail Fedotov, who proposed a precise definition for ‘principal’ and ‘agent,’ the relationship between which can only be based on a contract, cited statistics he had only twice managed to obtain from the Duma while chair of the Presidential Human Rights Council. It turns out the Ministry of Justice annually submits a report to the Duma about the participation of non-profit ‘foreign agents’ in political activities and on the funds they receive and how they are spent. For example, the 2018 report shows that 46 NGOs registered by the Ministry of Justice as ‘foreign agents’ received 759 million roubles from foreign sources, while all Russian NGOs taken together, a total of 3,928 legal entities, received 85.9 billion roubles from abroad. This means the share of ‘foreign agents’ in all foreign funding was less than one percent.

The Ministry of Justice and the Duma have not provided any more recent data, although the report is not classified and does not even bear the ‘For official use only’ stamp. It only remains to guess what those NGOs are doing that, according to the cunningly drafted law, ‘may be recognised’ but have not been recognised as ‘foreign agents,’ despite the size of their foreign funding.

A presentation by Sonya Groisman, a journalist with the Dozhd media outlet recognised as a ‘foreign agent,’ who has also been recognised as an individual ‘foreign agent,’ was accompanied on Zoom with a banner that, in accordance with the law, was on screen for 15 seconds – which, it turns out, online is unbearably long and very stupid. Actual presentations about the formal and informal restrictions imposed by the ‘foreign agent’ status were concluded by Niuta Federmesser who talked about how the ‘foreign agent’ legislation, which has not affected her foundation directly, nevertheless undermines trust in all NGOs and negatively impacts charitable activities.

Elena Abrosimova, a law professor at Moscow State University, offered an unexpected solution in terms of a repeal of the whole outdated 1996 law on non-profit organizations on the grounds that existing provisions of the Civil Code are sufficient to regulate their activities. Ekaterina Shulman said that by the same logic all restrictions on ‘foreign agent’ NGOs should moved to come under the so-called ‘Dima Yakovlev Law,’ which would correctly indicate the nature of their liability that can be applied by court decision only.

Among the legal strategies for fighting the ‘foreign agent’ legislation, along with awaiting the consideration of the application by about 60 Russian NGOs to the European Court of Human Rights which was communicated back in 2017, lawyers also point to the possibility of reapplying to the Constitutional Court. The latter’s 2014 ruling, in which the Constitutional Court noted that the 2012 law does not discriminate against ‘foreign agents’ in comparison with other NGOs, has long been inconsistent with the changed reality of both legislation and law enforcement.

Elena Topoleva proposed moving the discussion to the Public Chamber, of which she is a member. Most of the members of the Human Rights Council who supported the efforts of the Moscow Helsinki Group were unable to take part in the round table on 3 February because of a parallel session at the Council devoted to implementation of the president’s instructions following the December meeting of the Council. These included instructions to the Ministry of Justice: ‘a) to analyze jointly with the Prosecutor General’s Office and the Human Rights Council the legislation regulating the activities of NGOs performing the functions of a ‘foreign agent,’ including the terms of removal from the ‘foreign agent’ register and the application of the legislation in practice; and b) to analyze jointly with Roskomnadzor and with the participation of the Human Rights Council and the Russian Union of Journalists the legislation regulating the activities of media outlets performing the functions of a ‘foreign agent’ and the application of the legislation in practice.’

Translated by Simon Cosgrove

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