The ECtHR and the Russian Foreign Agents’ Law – a devastating case of judicial passivity
By Jessica Gavron, EHRAC Legal Director
The traumatic saga of the liquidation of International Memorial and Memorial Human Rights Centre (MHRC), has been subsumed by the even more shocking events that have followed. However, the liquidation of these two renowned and revered human rights institutions was a momentous event for civil society in Russia. For many, the elimination of the organisations that documented Soviet repression and modern day atrocities in conflicts from Chechnya, South Ossetia and Eastern Ukraine, augured the brutal aggression to follow in Ukraine.
The liquidation proceedings of International Memorial and MHRC were predicated on breaches of the Foreign Agents Law, a law which both organisations had challenged along with dozens of other NGOs before the ECtHR in the case of Ecodefence and Others v Russia. Inexplicably, this case still remains pending eight years later. By the time any judgment is handed down, MHRC and International Memorial will have ceased to exist and, on 16 March 2022, Russia was expelled from the Council of Europe (although its remit over Russia will continue until 16 September 2022).
“The preeminent status of these organisations in Russia and beyond made evident that it was a symbolic political act striking at the heart of human rights and sending a clear signal that civil society in Russia was being shut down…”
The expulsion of Russia is a bitter blow for Russian citizens and those in territories controlled by Russia. Russian lawyers and individuals want and use the access to justice afforded by the Court. Russia has the most pending cases before it (18,000) and in 2018 Russian human rights defenders issued a heartfelt and persuasive memorandum on the importance of keeping Russia in the Council of Europe. Ever increasingly courageous Russians have been holding their state accountable for the abuses it commits against its own people. Now they, and those under its control, will have to seek other avenues of justice.
The liquidation proceedings that began on 8 November 2021, when complaints were filed against International Memorial and MHRC for violations of the Foreign Agents Law, ended on 28 February and 5 April 2022, when their appeals were respectively rejected.
The Foreign Agents Law, on which those proceedings were based, came into force on 21 November 2012 and requires that any non-commercial organisation performing the sweepingly interpreted ‘political activity’ and in receipt of foreign funding labels all its publications as originating from a ‘foreign agent’. Such organisations are also subject to stringent inspections and reporting requirements. MHRC was designated a ‘foreign agent’ on 21 July 2014, and International Memorial on 14 October 2016.
The Law has been amended at least ten times, each amendment ominously extending its reach. These amendments have (non-exhaustively): authorised unscheduled inspections that can last for up to 45 days; increased the financial penalties for noncompliance; extended the category of foreign agent to mass media, to individuals disseminating information, to individuals gathering information on military or security issues, to unregistered associations; extended the ban on foreign influence, in cases of individuals, beyond funding to organisational or methodological support; introduced criminal sanctions of up to five years imprisonment; and provided for the liquidation of NGOs for non-compliance.
At the end of 2021 there were 75 NGOs registered as ‘foreign agents’ and 95 individuals and media outlets listed in the Register of Foreign Agents media (62 individuals and 33 corporate entities). Four NGOs have been liquidated for breaches of the Foreign Agents Law: on the 10 February 2016, Agora International Human Rights Group was liquidated; Golos Association, an election monitoring organisation, was liquidated in July 2016; Lev Pomarov’s The Movement “For Human RIghts” was disbanded by the Supreme Court of Russia on 1 November 2019; and the Arctic-based rights group, the Center for Support of Indigenous Peoples of the North/Russian Indigenous Training Center, was dissolved 7 November 2019.
The decision to liquidate both Memorial organisations was not simply another example of the oppressive application of this law – the preeminent status of these organisations in Russia and beyond made evident that it was a symbolic political act striking at the heart of human rights and sending a clear signal that civil society in Russia was being shut down – we know now to what it was a precursor. The international community has subsequently watched the disturbingly rapid escalation of authoritarian control within Russia to enable the aggression against Ukraine.
Russia and the ECtHR
The European Court of Human Rights has not shied away from handing down robust judgments in contentious cases, including against Russia. It has given condemnatory judgments holding the state to account in Roman Zakharov v Russia, finding that the telephone surveillance laws breached the Convention; Tagayeva v Russia, finding four violations of the right to life in the Government’s handling of the Beslan terror threat and subsequent siege; Isayeva v Russia, finding that the massive use of indiscriminate weapons during the aerial bombardment of Katyr-Yurt, Chechnya, blatantly breached the right to life.
So it is surprising that there is such a notable absence concerning, arguably, the most significant case for Russian democracy, the Foreign Agents case. Ecodefence and others was lodged in 2013, on behalf of now 61 Russian NGOs challenging the Foreign Agents Law as a violation of their freedom of expression and association, and (by some) as discriminatory and politically motivated.
“It is deeply troubling that this case, so seminal to Russian democracy, has been languishing before the Court while the pernicious reach of the Foreign Agents Law has been inexorably extended to stigmatise, intimidate and silence NGOs and human rights defenders.”
MHRC, together with the European Human Rights Advocacy Centre (EHRAC), litigated all the above landmark judgments, as well as the Ecodefence case, in which both Memorial organisations were also applicants, initially as ‘potential’ victims (not yet having been directly targeted by the law). Eight years later, MHRC made a new submission to the Court with EHRAC, an Interim Measures Request pursuant to Rule 39 to halt liquidation proceedings for breaches of the same law, in which both organisations were again applicants – this time fighting for their very survival.
MHRC’s request for interim measures could rely on an array of international and regional bodies and experts but, as no judgment has been handed down, not a finding by the ECtHR itself to establish that the Foreign Agents Law is unequivocally in flagrant violation of the European Convention on Human Rights. The Venice Commission (here and here); the Council of Europe Commissioner for Human Rights; the Council of Europe Expert on NGOS (here and here) and various United Nations human rights bodies and experts have all repeatedly condemned the Law for its incompatibility with the Convention and its repressive, chilling effect on civil society, and called for its repeal or revision.
Significantly, on 29 December 2021 the Court granted the Request, on the same day the domestic decisions to liquidate the organisations had been taken but before those decisions were enforced. The grant of interim measures to save an NGO is an important and unprecedented development of the Court’s practice under Rule 39. Prior to this decision the Court had only granted interim measures in respect of an organisation once before, on behalf of the Georgian TV Channel, Rustavi 2. However, notably, on 8 March 2022 in the light of the exceptional context, it acceded to a request to order the Russian Government to abstain from blocking or terminating the activities of the independent newspaper Novaya Gazeta (ANO RID Novaya Gazeta and others v Russia, No. 11884/22)
The Court predicated its order to suspend the liquidation of MHRC and International Memorial on its examination of the Ecodefence case. However, more than three months later, with no sign of a judgment, Russia has been expelled from the Council of Europe.
The ECtHR can and should still hand down its judgment in the Foreign Agent case, as it is still seized of pending cases (and this case was communicated in 2017, meaning the Government has participated in the legal procedure). It is a judgment that will have important ramifications for similar legislation across the Council of Europe – but for Russian civil society it will be ex-post-facto and of largely symbolic significance, overtaken as it has been by events. We will never know if a timely judgment might have influenced Russia’s behaviour but certainly it would have provided support to beleaguered Russian NGOs and human rights defenders from the institution they have most relied on to validate their own and their clients’ experiences and authoritatively denounce their Government’s abusive actions.
It is deeply troubling that this case, so seminal to Russian democracy, has been languishing before the Court while the pernicious reach of the Foreign Agents Law has been inexorably extended to stigmatise, intimidate and silence NGOs and human rights defenders. While the Court’s prioritisation policy has clearly failed to expedite this case, it appears to be a perfect candidate for the new category of ‘impact’ cases announced on 17 March 2021 to strengthen the priority policy, focusing on cases of particular importance for the development of the human rights protection system. The ‘flexible guiding criteria’, with examples such as cases leading to a change of law or practice; concerning moral or social issues; or relating to an emerging or significant human rights issue, are fairly broad and would seem to encompass a large proportion of the Court’s caseload, including the Foreign Agents case. However, it is not clear to which specific cases or at what point of their processing this new category is applied, indicating a need for greater transparency.
It is hard to understand why the Court has failed to date to issue a judgment in this case that represents such fundamental and systemic violations of the Convention and difficult not to conclude that there has been an unwillingness to provoke Russia. As the Court itself has recognised in another context, ‘judicial passivity’ creates a climate conducive to impunity (Opuz v Turkey, at 198).