First Anniversary of the “Foreign Agents” Law – an update and two statements by Memorial

15 December 2013

by Jens Siegert

Source: Boell Foundation Russia Blog

Just over a year has passed since the so-called „foreign agents NGO law“ came into force at the end of November 2012 (for links to all my previous articles on the subject click here). Since the Ministry of Justice, which was supposed to be in charge of implementing the new law, failed to act fast enough the State Prosecutors’ Office launched a sweeping campaign of inspections at the beginning of March 2013. An estimated 700 to 1000 NGOs were inspected. Over 60 subsequently received official notices. State prosecutors claimed that about one-third of the 60 NGOs had broken the law and sent them an ultimatum to register as foreign agents, sometimes under threat of hefty fines of up to 10,000 Euros. The other two-thirds of the NGOs were “warned” that they could be liable to prosecution unless they registered as agents.

With a few exceptions, all the NGOs affected (that we know of) chose to challenge the notices in courts. Some NGOs, for example Memorial, went as far as to challenge the very legality of the inspections. Others, such as Golos, chose to disband to avoid their boards being prosecuted and because they didn’t believe they stood a chance in court.

As of today, most of the NGOs have been successful in their cases against the state prosecutors at least to some degree – some have won in the courts of the first instance, others in courts of the second instance. The public prosecutors’ key argument – that is, trying to qualify virtually any kind of public activity as “political” under the law – often did not withstand court scrutiny (for example, in the case of some branches of Memorial as well as the St. Petersburg Side-by-Side” LGBTI Festival). Less frequently (e.g. in the case of the verdict against the St. Petersburg Memorial Anti-Discrimination Centre documented in a statement by Memorial) the court accepted the state prosecutors’ arguments. A continuously updated record of the current state of all the proceedings can be found on the website.

All the verdicts are pending, since the state prosecutors or the NGOs have appealed against them. Appeals have also been lodged and accepted by the Russian Constitutional Court and the European Court of Human Rights. The dates of the hearings have not yet been set.

Since last summer a number of individuals and bodies (e.g. the Chairman of the Council for Civil Society and Human Rights, Mikhail Fedotov) have been negotiating with the Kremlin about reforming the law. The primary focus has been on defining the key term “political activity” and extending the list of issues that should be a priori excluded from the list of alleged “agent activities”. However, some NGOs, including Memorial, believe that the law is beyond reform and actually contravenes the constitution (see the Memorial statement issued on the first anniversary of the law coming into force).

There is a lack of consensus as to what the various court decisions and Putin’s willingness to negotiate mean. From the Kremlin’s point of view, the law has undoubtedly served two purposes: in the public perception the link between “NGOs” and “foreign agents” (or, rather, “spies” or “traitors”) has become much more strongly pronounced than it was in the spring of 2012, before the campaign began. Besides, many independent NGOs have since then been preoccupied with defending themselves. This has diverted much of their energy and resources from pursuing their mission. Thus the Kremlin can now afford to slightly loosen the screws – until the next time.

In this context the word “Sochi” has often come up. It’s been said that in the run-up to the Winter Olympics Putin could do without a bad foreign press and that he will play softball until the games are over. However, people are concerned about what will happen afterwards.

I’m not really sure what is behind the (preliminary) victories in the courts. There is probably more than one reason. The resistance put up by NGOs has – as usual – been firmer, cleverer and more skilful than the authorities had anticipated. The State Prosecutors, expecting a certain victory (and because of a lack of qualified “cadres”) have certainly done a sloppier job than might have been expected of such a legalist-minded regime. The fact that the eyes of the world are on Sochi (what a poetic phrase!) may also have helped a little. Basically, however, nothing has changed. The NGOs won’t be able to withstand these pressures unless they gain wider support from society.

Attached to this post are two statements by Memorial, one on the first anniversary of the foreign agents’ law coming into force and another on the court verdict against the Anti-Discrimination Centre of St. Petersburg Memorial.