Leonid Nikitinsky: The Swan Song of the European Court of Human Rights – the Strasbourg Court’s decision on the complaints from ‘foreign agent’ NGOs was both an encyclopedia of state tyranny and a collection of amusing stories from Russian ‘legal life’

16 June 2022

by Leonid Nikitinsky, journalist, doctor of jurisprudence, and laureate of the MKhG [Moscow Helsinki Group] human rights prize, special to Novaya Gazeta. Europe

Source: Moscow Helsinki Group [original source: Novaya Gazeta. Europe]

No sooner did the decision on the complaint from Russian NGO-”foreign agents” appear on the ECtHR [European Court of Human Rights] website on 14 June than the Kremlin in the person of Dmitry Peskov stated that the state would not implement it. True, he is not the person empowered to decide these issues. On the other hand, he wasn’t born yesterday: we aren’t going to implement them. Period.

The 73 living and killed-off NGOs or their leaders have yet to receive the 730,000 euros in compensation that the ECtHR divided equally among them. As for implementing their substance—by means of changes in Russian legislation and law enforcement practice—that would be an “import of revolution”: an end to Russian statehood as we now know it.

Even if Peskov knows English well, he could not have read the huge and highly detailed ECtHR decision that quickly. Meanwhile, it’s worth reading closely. It’s an anatomical atlas of the regime and simultaneously, thanks to the abundance of examples concerning the fates of the 73 declarants, a collection of amusing stories straight from Russia’s anti-legal activity.

The decision has been maturing in Strasbourg since 2014, when the first ‘foreign agents’ appealed to the ECtHR, and in the time since then has accumulated new details.

It is unusual not only for its size but also because it lays the main guilt—and this is required for any kind of responsibility—not on law enforcement agencies at the national level, as happens most often, but in essence on the legislature—the Russian Federal Assembly, the Constitutional Court (CC), and the Kremlin that stands behind them.

By tracing in detail the development of legislation about NGO-‘foreign agents’ since 2012, when it first appeared, its interpretation by the Russian Constitutional Court in 2014, and the subsequent development of practice by general courts and organs of justice, the ECtHR exposes the Russian regime’s hypocrisy. In the desire to appear ‘legitimate’ that the Kremlin demonstrated up until February 2022, Russia, including in its communications with the ECtHR, pursued the tactic of a schoolboy who hasn’t done his homework and when exposed immediately substitutes one lie for another.

Constantly referring to the presence of supposedly analogous legislation in the United States, the Kremlin distorted reality. In the United States, registration is required to work for a ‘foreign principal’ and lobby for their interests within the framework of an agent agreement, whereas the Russian ‘analog’ does not provide for any ‘principal’ at all. Any receipt of any funds from any foreign or international source can be grounds for conferring ‘agent’ status.

In the wake of the Russian Constitutional Court, Russian propaganda confirmed this, while the Justice Ministry and the Russian General Prosecutor’s Office that replaced it in this capacity attempted to convince the ECtHR of this, that in Russia the word ‘agent’ does not hold any negative connotations, but as the Levada Centre, one of the applicants in the case, showed very persuasively, this is not true. The Constitutional Court, and the Justice Ministry after it, tried to prove that ‘agent’ status supposedly does not entail any particular restrictions other than requirements for financial reporting. However, an analysis of the development of the legislation and practice shows that discrimination against ‘agents,’ de jure and de facto, is taking place in many spheres of public activity.

While declaring its goal to be improving financial transparency in the NGO sphere, which, as the ECtHR decision points out, the state has a right to do, the Russian legislature, on the contrary, created and consistently altered this regulatory base so that a future ‘agent’ had no way to know which donation might prove toxic for them.

At the same time, the inappropriate amounts of the fines levied for the fact that the ‘agent’ had not come ahead of time to confess to the organs of justice most often led to the NGO’s bankruptcy and self-destruction.

The concept of ‘political activity,’ which is fraught, along with foreign financing, with bringing the label of ‘agent,’ developed in the laws and in practice in such a way that it gradually came to cover any public activity. It is on this theme in the ECtHR decision that there are the most amusing stories. For example, a roundtable organization on the work of groups working for a full kindergarten day was brought down for political activity, as was criticism of the ban on using drinking water to irrigate gardens (in Samara), and so on.

The ECtHR recognized as ‘victims’ of repressive legislation not only those NGOs that had been deemed ‘agents’ and in this regard had, in many instances, been forced to disband but also those which due to the risk of acquiring this status were forced to reject their former financing and curtail their programs and staff (for example, the Moscow Helsinki Group).

Among the most famous NGOs whose names will undoubtedly enter future history textbooks: Memorial; Lev Ponomarev’s (who was also deemed a ‘foreign agent’ personally) For Human Rights; Nizhny Novgorod’s Committee against Torture; a few Golos organisations [Golos meaning ‘voice’ or ‘vote’ – ed.] for monitoring elections; Voronezh’s Center for the Protection of Media Rights; Aleksei Simonov’s Foundation for the Defense of Glasnost; the Levada Centre; Sova; Soldiers’ Mothers; Lena Nemirovskaya’s Moscow School of Political Studies; environmental NGOs; the Gagarin Park website of Sergei Kurt-Adzhiev, the former editor-in-chief of Novaya Gazeta in Samara; organizations for the protection of LGBT rights, and others.

Not all the applicants were fully satisfied with the ECtHR decision, specifically with the fact that in the operative part the judges referred to the Russian Federation’s violations of Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms—on the freedom of expression and the freedom of assembly and organization, respectively—but declined to apply Article 14 banning discrimination. One of the applicants told me: ‘There’s the impression that the decision was written when Russia was still a member of the Council of Europe, and after its expulsion they forgot to rewrite it.’

The judges considered an instruction on discrimination superfluous, although in the descriptive part of the decision such facts are enumerated in nearly every paragraph. And this is the main thing: there is no longer any doubt in Europe and the world as to what the Russian ‘legal system’ consists of, not just on the level not only of possible mistakes in law enforcement but also in painstakingly contemplated legislation.

A Potemkin village like that cannot be a member of the Council of Europe, though this does not rule out some other Russia returning to Europe. We’re not somewhere on the Moon, are we? It will have to be reformatted to comply with this ECtHR decision, which in this sense will not be its last swan song. I think some of the ‘agents’ will even live long enough to receive their 10,000 euros.

Translated by Marian Schwartz

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