Memorial's Senior Lawyer, Kirill Koroteyev, on the 'Foreign Agents Law'

Speech before the European Parliament's Committee on Human Rights

Madam Chair, Deputies,

I am a Senior Lawyer with the Moscow-based Human Rights Centre “Memorial” and I represent my own and a number of other non-governmental organisations before Russian courts in the cases concerning the application of the so called “Foreign Agents’ Law”. The law is insulting, vague, it strikes randomly, disproportionately and at the pleasure of the executive.

The law requires any NGO which receives foreign funding and engages in what the law defines as “political activity” to register as a “foreign agent” with the Ministry of Justice. This entails more frequent reporting than for other NGOs, frequent inspections by the Ministry of Justice, mandatory audit, possibility of random inspections and wide grounds for suspension of the organisation’s activities and for its mandatory dissolution. More importantly, in the Russian context, primarily after the Great Terror of 1930s, “foreign agent” means “spy” in Russian. And you don’t have to conduct complicated research to establish this. The meaning can now be found in a dictionary.

The courts, even in the cases decided in favour of NGOs, do not require the Ministry of Justice or the prosecutors to prove that there are links between foreign funders and NGOs’ alleged “political activity”. In fact, the judges do not require to establish any beneficiaries of such activities at all. This means that there need not be “principals”, which only confirms that the word “agent” used in the law does not mean “a person acting in other person’s interests”. The only other option is using the label “foreign agent” in its meaning of “spy”. When I pressed the prosecutors in the Moscow GOLOS case on the meaning of “foreign agent”, they replied that the Prosecutor’s office does not interpret the law. This only means that they never made an attempt to understand it before going after a capriciously selected bunch of NGOs.

In turn, you may be tempted to think that “political activity” means running for a political office, whether local, regional or national. This is, however, neither the letter of the law, nor the approach of the Russian judiciary. The law defines “political activity” as conducting or financing a “political action” aimed at changing State policy or at influencing public opinion towards a change in State policy. Not only this definition mistakes “policy” with “politics”, it is so vague that every legitimate NGO activity is now political, according to the courts.

Indeed, the courts held that “political activity” is, for example, drafting alternative reports to UN human rights bodies. Saint-Petersburg-based Anti-Discrimination Centre “Memorial” was found to engage in “political activity” because it prepared a report to the UN Committee against Torture on the situation of Roma and Gypsies in Russia. Moscow organisation of GOLOS and Association GOLOS were both fined EUR7,500 for making proposals to reform Russian electoral legislation – proposals that had been made before the entry into force of the “Foreign Agents Law”. But after the leader of GOLOS mentioned those in a televised interview in December 2013, two court cases followed and were decided in favour of the Ministry of Justice. Proposals to reform police are also at the heart of prosecutor’s accusations against Moscow-based “Public Verdict”, a group specialized in combating torture.

In general, the courts sided with prosecutors when the latter submitted that any comment by an NGO employee made in mass media constituted political activity, as it was in the case of the Russian chapter of Transparency International. In the same vein, Moscow-based Human Rights Centre “Memorial” was accused of reporting on arrests in the course of public demonstrations in Moscow on its partner web-site “OVD-info” (OVD is an abbreviation for “police station” Russian).

Bringing judicial review cases to Russian courts is also “political activity” under Russian law. Prosecutors currently accuse JURIX, a Moscow-based association of lawyers, that one of its members represented the applicants who challenged the Saint-Petersburg regional law banning ‘homosexual propaganda’ before the Saint-Petersburg City Court and the Russian Supreme Court. Even not holding a planned event – a capacity-building seminar for local councilors – means engaging in “political activity”, Moscow courts held in the Moscow GOLOS case, for “the Foreign Agents’ Law” becomes applicable when you decide to organise an event, not when you hold it. If this resembles something, it's Orwell's “crimethink”.

Probably, the most surprising of all is the case brought by prosecutors against Women of Don, a group based in Novocherkassk in Rostov region. The court heard that the group engaged in “political activity” when it published its annual activity report to the Ministry of Justice on its web-site. The trouble here is that publication of annual activity reports that are submitted to the Ministry of Justice on the organisation’s web-site is an obligation of every NGO under Russian law. Complying with one law thus means breaching another one.

The law strikes randomly and that is one of its main dangers. It essentially allows the officials at the Ministry of Justice or at the Prosecutor’s Office to target any NGO at their wish. Only the two entities of GOLOS, Association and its Moscow branch, were prosecuted by the federal Ministry of Justice, while all other NGOs faced actions of the prosecutor’s office. Even though the order to inspect NGOs en masse came in early 2013 from the President of the Russian Federation and the Office of the Prosecutor General, those were the regional prosecutor’s offices who decided whether and to what extent pursue this or that NGO.

One of the major uncertainties about the law is its complete obscurity as to when the criminal responsibility of NGO leaders for ‘malicious non-compliance with the obligations of a foreign agent’ may be triggered. The relevant section of the Criminal Code contains no guidance whatsoever as to what ‘malicious non-compliance’ means. This Damocles’ sword of facing up to two years in prison before the judges who never acquit forced the NGOs who were fined or lost cases brought against them to close down. This happened to Association GOLOS, Kostroma Centre for Civic Initiatives, Side-by-Side LGBT film festival which is now only a commercial enterprise, and, most recently, to the Saint-Petersburg-based Anti-Discrimination Centre “Memorial”.

There are a number of NGOs who won their cases in courts, mostly in Perm, Yekaterinburg and Ryazan. The fines of EUR12,500 against two LGBT groups were quashed on technical grounds by the Saint-Petersburg City Court following extraordinary appeals. But this did not help. One of the groups, Side-by-Side had already been liquidated before the fine was quashed. The other, LGBT Organisation Coming Out, which also won the appeal, is now facing new charges. It took the prosecutors three attempts to have their case against Anti-Discrimination Centre “Memorial” heard. Twice it was dismissed by one judge, but another judge eventually granted the action.

So even if NGOs win their cases, they are not immune from new, repetitive prosecutions. Whether they win or lose, they have to invest a lot of resources in court cases, distracting them from their substantive work. Time and again, we have to defend ourselves in the first place. The only remedy is to abolish this law, completely and unconditionally, otherwise, there always will be a threat of persecution of this or that group.