Leonid Nikitinsky: A “Lepers’ Constitution”

3 December 2020

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

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

Why bother to change anything in Chapter 2 of the Russian Constitution if you can simply ignore it?

The hail of legislative initiatives “for the development of a revised Constitution” also provides an answer to the question of why amendments were made to it (and then legislatively built on) that substantially limit the Constitutional Court’s scope and the implementation in Russia of the decisions of international courts. Under constitutional oversight, even if only potential, many of the proposed initiatives could not be submitted to the Duma because they clearly contradict Chapter 2 of the RF Constitution (on fundamental human and citizen rights), which the guarantor and initiator of the revision has solemnly promised not to touch.

Under the pretext of countering foreign interference in Russian politics–which in itself looks more like a persecution complex than anything else–the deputies are proposing extending “foreign agent” status to physical persons and their unregistered associations if they receive not only money but, for instance, procedural assistance from abroad. Everyone affected by the foreign “leprosy” will be subject to such a procedure of accounting and verification that they might as well go hang themselves (self-eliminate, in NGO-speak). 

The “foreign agent” concept appeared in Russian legislation in 2012 in the form of an amendment to the law “On Non-profit Organizations.” These included NGOs that receive foreign financing and “engage in political activity.” Inasmuch as the latter was immediately interpreted as broadly as possible and organizations ended up in the “foreign agents” registry that apparently had not exhibited such activity, these provisions were appealed in the Constitutional Court with the support of Vladimir Lukin, at that time Russia’s Human Rights Ombudsman.

In an 8 April 2014 resolution, the Russian Constitutional Court wisely reasoned “for both ours and yours”: they saw nothing offensive in the term “foreign agent,” which had barely entered linguistic territory; on the other hand, it recognized that this status should not entail for its bearers, other than the necessity of submitting appropriate declarations and reports, any infringements whatsoever on their rights, that is, should not discriminate between them and those working for honest Russian roubles.

This Constitutional Court’s resolution is “in effect,” but the entire practice of the Justice Ministry, which keeps the “foreign agents” registry, along with the subsequent laws passed on this topic, which number approximately 35, simply ignore the Constitutional Court’s position. Thus, “foreign agent” NGOs are already forbidden to nominate candidates for the Public Oversight Commissions, send observers to elections, claim benefits for “socially oriented” NGOs, participate in anticorruption expert analyses, and so on. In fact, all state employees have stopped talking to them, especially law enforcement and judges, and this has killed off a number of useful programmes.

The deputies’ initiatives extend “foreign agent” status not only to everything that moves but also to the kinds of activity simply any human association, even groups of friends, usually engages in.  They propose substantially tightening the procedure for organizing mass actions, which will now require opening a separate account and reporting through it. The bill on regulating educational activity, submitted in the form of amendments to the law “On Education,” proposes obtaining in one form or another permission to educate, that is, in essence, to make any public statement. The draft was presented in a somewhat generalized form, saying that executive branch agencies would be given carte-blanche to compile appropriate proscriptive lists for all types of organizations and physical persons.

The initiatives, which are inexorably becoming laws right before our eyes, are introducing an inequality of rights for “good” and “bad” citizens, in fact introducing censorship and a ban on public associations, infringing on the right to receive and disseminate information, on the expression of one’s own opinion, and even on the opportunity to have one. After all, only authorized agencies will be educating citizens. All this directly contradicts Chapter 2 of the Constitution, but where can one go with this now? There is no court, and the guarantor is not keeping his promises.

Translated by Marian Schwartz

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