Boris Vishnevsky: Is it possible to reach an agreement with the authors of the bill on ‘foreign agents’?

6 February 2022

by Boris Vishnevsky, deputy of the Legislative Assembly of St. Petersburg, laureate of the Moscow Helsinki Group

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

A response to Leonid Nikitinsky, my comrade, member of the Human Rights Council

My Novaya gazeta colleague Leonid Nikitinsky talks in his column about the round table of the Moscow Helsinki Group, where those who support the abolition of the ‘foreign agents’ legislation came face to face with those who ‘propose an adjustment to it’.

He comes to the conclusion that ‘wide public discussion creates a certain pressure, which can be taken into account by the presidential administration.’

Moreover, President Vladimir Putin, following the results of a December meeting with members of the Human Rights Council, ordered analysis of the legislation on regulating the activities of NGOs and so-called ‘foreign agents’, and submitted proposals to improve it.

But I would not hurry to celebrate the Kremlin’s liberalism or assume that they finally understand that it’s necessary to end the shameful saga of journalists and NGOs constantly being recognised as ‘foreign agents’ (even those that are engaged in protecting the rights of minority peoples of Siberia).

Firstly, it is the repressive agencies will be responsible for the analysis of legislation and law enforcement:

The Ministry of Justice (which adds foreign agents to the register) and the Prosecutor General’s Office (which adds so-called ‘undesirable organisations’ – which is another label applied to anything that the authorities do not like – to another register).

By the way, the President did not indicate in which direction these improvements would be made – ​​they may well propose a tightening of the rules. Moreover, Putin never seems to tire of repeating (including at meetings with members of the Human Rights Council) that the Russian law on ‘foreign agents’ is allegedly ‘much more liberal than the similar one in the United States.’ Although, for anyone who gets their information from sources other than Channel One, Vesti and Russia Today, it is not difficult to find out that, according to the American FARA law, only those who directly represent the interests of foreign governments, parties, organisations, companies or private persons (‘foreign principals’) and act on their orders are registered as ‘foreign agents’. It should not include those who, as seems to be the case in Russia, simply receive a single penny from a foreigner or at least a cent from a foreigner for some trivial reason…

Secondly, after previous meetings with members of the Human Rights Council, the President also gave many instructions. For example, he ordered proposals for the creation of an archaeological museum on the Okhtinsky Cape in St. Petersburg. How did this play out? In order to please the interests of Gazprom, which wants to develop the area, in place of a full-fledged archaeological reserve, a proposal to create a museum in the Menshikov bastion of the Peter and Paul Fortress was put forward. And almost all the unique archaeological sites discovered in the area would fall to the bulldozers.

But there is an even more striking example: following the meeting of the President with the members of the Human Rights Council in 2019, the president issued instructions that the creation of a unified database of victims of political repressions should be considered and corresponding proposals be submitted. But no one has heard of the creation of such a database. Instead, as my colleague from the Yabloko faction in the Legislative Assembly, and previously the Commissioner for Human Rights in St. Petersburg, Aleksandr Shishlov, recalled at the Moscow Helsinki Group roundtable, Memorial*, which collected this data, was destroyed with the use of the legislation on ‘foreign agents.’

And now – the essence of the dispute at the roundtable – what to do.

There are two points of view, the proponents of each of which have their own arguments which are worthy of attention.

According to one – represented at the roundtable by Just Russia and New People deputies – we must try to liberalize the legislation on ‘foreign agents.’ To eliminate the most egregious of its faults, which lead most notably to infringement of the rights of media and journalists. 

For example, by introducing a judicial (rather than the current extrajudicial) procedure for assigning the status of ‘foreign agent.’ By introducing a preliminary (pre-trial) notification of those be named ‘foreign agents,’ and to give them the opportunity to file an objection. To oblige the Ministry of Justice to provide evidence in court that the ‘agent’ not only receives money from abroad, but fulfills the direct orders of a foreign ‘principal.’ To exclude an organisation from the register of ‘foreign agents’ if it has not received foreign funding for a certain period of time.

But there is also another point of view – that of Yabloko (voiced at the roundtable by Aleksandr Shishlov) and OVD-Info**: we should completely remove the concept of ‘foreign agents’ from the legislation. The law was created with only one goal: discrimination against those with whom the authorities are displeased. And therefore assigning the title of ‘foreign agent’ to well-known media and NGOs, which are absolutely no one’s ‘agents,’ and certainly not foreign ones, is not a mistake of law enforcement, but an entirely intentional action, which implements the true goals of the authors of the law.

‘This is good, but not realistic,’ object the proponents of ‘liberalization’ of the law. They say that politics is the art of the possible and that the law will not be completely abolished, but it is possible to achieve certain improvements and these must be the focus. In particular, trying to ease the plight of those who wind up in the register of ‘foreign agents,’ such as, for example, the well-known and respected expert in the field of electoral rights (designated a ‘foreign agent’), Arkady Liubarev***. He, acknowledging that ‘the best option is the complete abolition of legislation on “foreign agents”,’ also believes it is ‘not realistic,’ and that ‘in this moment, when the President is giving instructions to prepare amendments, it is unconstructive to raise the demand for complete abolition.’

We have already mentioned the president’s instructions above, but as for improvements, let’s assume that a judicial procedure for assigning the status of a ‘foreign agent’ is successfully introduced.

What will essentially change if there is a political order ‘from above’ to recognize yet another media outlet, or journalist, or politician, or public figure the authorities don’t like as a ‘foreign agent’? The answer is nothing.

Or does anyone believe that Russian courts which today refuse to require the Ministry of Justice to inform the ‘foreign agents’ who contest this status on what grounds they are so recognized, declaring it ‘proprietary information’ will tomorrow refuse to grant the Ministry of Justice the ‘foreign agent’ status at the authorities’ whim? And if there is no political order ‘from above’, there will be no need for a court…

Yes, it is important to alleviate the plight of the currently labelled ‘foreign agents’: unfortunately, the process of cancelling the designation will not be quick.

However, Aleksander Shishlov was right when he pointed out at the round table that arguments about the ‘realism’ of amendments and ‘unrealism’ of abolishing the legislation on ‘foreign agents’ lead away from the essence of the problem. They shift the conversation from the basic position that this legislation must be repealed to a willingness to discuss minor amendments. Which, let us note, are introduced by parties that, in principle, do not consider this legislation flawed, but on the contrary believe it is necessary, if in need of correction.

Time will judge the dispute between ‘realists’ and ‘idealists,’ but if we are to talk about the ‘unrealism’ of the proposal to completely repeal the ‘foreign agent’ legislation, it is useful to recall the history of the struggle to repeal Article 6 of the USSR Constitution, which referred to the ‘leading and guiding role of the Communist Party of the Soviet Union [CPSU].’

The author of this article (along with Aleksander Shishlov) was among those who in the late 1980s at the Perestroika Club and the Leningrad People’s Front insisted that the ‘guiding role of the CPSU’ be abolished. And it was the repeal, not the ‘improvement’ of this norm that we demanded! At that time, many people also believed that this demand was absolutely ‘unrealistic’ but it was achieved at the beginning of 1990 when the meaning of Article 6 was reversed and the CPSU was referred to as only one of the parties participating in government.

Of course, there is no complete analogy between those times and today. Nor are there any illusions that today’s Duma would support a complete repeal of the ‘foreign agents’ legislation (although, it should be noted, even the improvement of that legislation – if the Duma agrees to it, with the Kremlin’s consent – may turn out to be cosmetic or turn out to be worthless).

But then almost no one believed that the ‘leading role of the CPSU’ could disappear, even a year before it happened. However, the old principle was in action: ‘Be realistic – demand the impossible.’

* The organization was included by the Russian Ministry of Justice in the register of foreign agent NGOs.

** was included by the Russian Ministry of Justice in the registry of unregistered NGOs recognized in Russia as foreign agents.

*** has been included by the Russian Ministry of Justice in the register of individuals recognized as media foreign agents.

Translated by James Lofthouse, Alyssa Rider and Simon Cosgrove

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