14 December 2016

Source: HRO.org

The Supreme Court of the Russian Federation has reviewed court practice in cases related to application of the law on non-profit organizations functioning as “foreign agents.” Cases on administrative violations under the article “violation of the order of the activity of non-profit organizations functioning as foreign agents” also came under review.

The Supreme Court has sent its summary of these issues to the Presidential Council on Civil Society and Human Rights, as reported on the site of the Council.

Thus, according to the official data, in 2014-2015, the number of general jurisdiction cases examined by courts was just 73.

In 2014-2015, 70 cases were examined by the courts under Article 19.34 of the Administrative Offences Code of the Russian Federation (“violation of order of the activity of non-profit organizations functioning as foreign agents”).

The article distinguishes two types of administrative violation: 1) the operation of non-profit organizations functioning as foreign agents not included in the register is punishable by an administrative fine on officials of between 100,000 roubles and 300,000 roubles; and on legal entities between 300,000 roubles and 500,000 roubles (Part 1); 2) the publication by non-profit organizations functioning as foreign agents of materials and/or their distribution, including through mass communication means and/or with the use of Internet sites, without stating that these materials are published and/or distributed by the non-profit organization functioning as a foreign agent, is punishable by an administrative fine on officials of between 100,000 roubles and 300,000 roubles; and on legal entities of between 300,000 roubles and 500,000 roubles (Part 2).

Seventy people were subjected to penalties as a result of cases concerning administrative violations under Article 19.34 of the Administrative Offences Code of the Russian Federation.

Cases based on administrative violations under Article 19.34, Part 1, of the Administrative Offences Code were brought by officials of the Ministry of Justice (its regional office); cases based on violations of Part 2 of the Article were brought by officials of the Federal Service for Supervision in the Sphere of Communications, Information Technology, and Mass Communication (its regional office).

In the majority of instances, cases of this category were only brought against legal entities, but instances did take place of cases being initiated with regard to administrative violations under Article 19.34 of the Administrative Offences Code, both against a legal entity and against employees of this legal entity.

Naturally, the Supreme Court stated that, “Generally, the courts correctly apply the law regulating the activity of non-profit organizations acting as foreign agents,” and that “the violations of substantive or procedural law that took place in certain cases were eliminated as a result of the review of lower court rulings by the higher courts, including by the Supreme Court.”

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The period 2015-16 has seen a tightening of (often arbitrary) state control over NGOs in Russia and the creation of new legal problems threatening their existence. As pointed out in a study entitled “Contrary to the Development of Civil Activism: Russian NGOs Following the Adoption of the ‘Foreign Agents’ Law,” this has put in jeopardy both the legal existence of NGOs and their activities as an essential element of an independent civil society.

By the end of 2015, 109 Russian NGOs had been registered as “foreign agents." Organisations named by Justice Ministry officials as “agents” have been ordered to pay disproportionately large fines. They have faced reputational and financial costs, and some have been forced into liquidation.

The NGOs most likely to be targeted and persecuted are those working on environmental and human rights issues. At its 70th session in 2015, the United Nations General Assembly adopted a resolution recognising the important role played by human rights defenders and their need for protection. The resolution was supported by 117 UN member-states.

In a special report published in 2015, the Council of Europe’s Human Rights Commissioner, Nils Muiznieks, noted that “the new regulations have led to the closure of a whole number of human rights organisations, while other NGOs are now engaging in self-censorship, protecting themselves by refusing to take part in actions that might be defined as political.”

The international human rights organisation Memorial underlined in a special report that “…the conception of the Law on ‘Foreign Agents’ is not based on the principle of the rule of law. There is no problem that this law would resolve. It is clear that the intentions of those who initiated this law were purely political and that the law’s wording is deliberately ambiguous. The Law effectively introduces the presumption of guilt for an artificially selected group of organisations...”.

The world’s largest human rights organisation, Amnesty International, has argued that “the ‘so-called’ Law on Foreign Agents is one of a series of measures aimed at suppressing civil society and freedom of expression [in Russia].”

Russian NGOs have repeatedly expressed their opposition to the law and appealed against it, including to the European Court of Human Rights.

Human rights defenders argue that the law is clearly discriminatory and has an extremely negative historical context. Ninety members of the Russian PEN Centre, together with historians, members of the Free Historical Society and other Russian academics have appealed to the Ministry of Justice demanding an end to the arbitrary treatment of NGOs listed as "foreign agents."