European Court: Russia has case to answer on ‘Law on Foreign Agents’

On 22 March 2017, the European Court of Human Rights decided to refer a series of cases to the Russian Government on the Foreign Agents Act, legislation which places administrative and financial sanctions on NGOs receiving funding from abroad. The cases are brought by 61 Russian NGOs (listed below), who argue that the Act interferes with their rights to freedom of expression, assembly and association. 18 of the NGOs are represented by the European Human Rights Advocacy Centre (EHRAC), based at Middlesex University, and Memorial Human Rights Centre in Moscow (also an applicant in one of the cases).

In July 2012, the Russian parliament adopted a series of legislative amendments concerning NGOs, which are collectively known as the ‘Foreign Agents Act’. Russian organisations receiving funding from any foreign donors, or from other Russian organisations receiving foreign funding,  and which engage in ‘political activity’ are required to register on a list of so-called ‘foreign agents’. Any NGO carrying that label is subject to stricter accounting requirements than other NGOs, and must report to the Ministry of Justice more frequently on how they spend their funds. Publications by ‘foreign agents’ must be labelled as such; failure to comply with this provision, leads to the risk of substantial fines. According to data from the Ministry of Justice, there are currently 98 NGOs on the ‘foreign agents’ register. A total of 158 groups have been designated as ‘foreign agents’ to date, including 30 which have shut down rather than bear the label, and over 20 which have stopped accepting foreign funding. Criminal proceedings have also been initiated against Valentina Cherevatenko, Chair of Women of the Don: she faces up to two years in prison for “malicious evasion of the duty to file the documents required for inclusion in the register of non-profit organizations performing the functions of a foreign agent.” She is the first and, to date, only leader of an NGO facing criminal charges in an individual capacity under the Foreign Agents Act.

The Foreign Agents Act has been widely condemned, including by Amnesty International, the Venice Commission and the Commissioner for Human Rights of the Council of Europe. Amnesty noted that

“the Foreign Agents Act had been used to undermine and discredit effective NGOs”, and had led to “an atmosphere of suspicion and intolerance […] the end result is that many organizations that have made a significant contribution to promotion of human rights, civil society and to the wellbeing of citizens have been forced to close down.”

The law effectively acts as a smear campaign: the term ‘foreign agent’ is inextricably linked with spies and illicit activity as a result of the term’s usage during the Soviet era. NGOs are faced with a difficult choice: either receive foreign funding and accept the repercussions of the label; or rely exclusively on Russian sources, including presidential or governmental grants, which may result in a loss of independence and self-censorship.

All of the NGOs argue that their designation as ‘foreign agents’ contravenes their rights to freedom of expression, assembly and association (Articles 10 and 11 of the European Convention on Human Rights (ECHR)). Several of the applicants, including 13 NGOs represented by EHRAC and Memorial HRC, further complain that they are subjected to restrictions and excessive reporting obligations while other NGOs are exempt from such duties, in violation of the prohibition of discrimination (Article 14 ECHR), and that their rights have been limited for politically-motivated reasons (Article 18 ECHR).

The Court’s communication raises fundamental issues with the way the law is constructed, and whether this interferes with NGOs’ human rights, including:

• are the terms ‘foreign agent’ and ‘political activity’ sufficiently clearly defined;
• has the Government considered the negative connotations of the term ‘foreign agent’ when choosing it for the Act;
• what are the consequences of restricting access to foreign funding, in terms of the availability of alternative funding; and
• do the additional reporting and administrative requirements placed on the applicant NGOs impose an excessive burden on them?

The Government must reply to these, and other, questions by 19 July 2017, following which the applicants will be invited to submit their comments on the Government’s response.

List of applicants