Interviews‎ > ‎

An Interview with Kirill Koroteev on the application to the ECtHR by Russian NGOs regarding the "foreign agent" law [Idel.Realii]

posted 26 Mar 2018, 06:35 by Rights in Russia   [ updated 26 Mar 2018, 10:18 ]

9 March 2018

An interview with Kirill Koroteev, legal director at Memorial Human Rights Centre

Source: Moscow Helsinki Group [original source: Idel.Realii]

Lawyers representing non-governmental organizations (NGOs) recognized in Russia as foreign agents are completing the final stage in a process in the European Court of Human Rights and are preparing responses to the position of the Russian government. For the first time, the European Court has combined the appeals of more than 60 NGOs, requiring that representatives from the organisations prepare one document. Twenty lawyers prepared the document, among them the Agora lawyer Irina Khrunova; Kirill Koroteev, Memorial's legal director; Karina Moskalenko, Moscow Helsinki Group member and founder of the International Protection Centre; as well as Galina Arapova, Maksim Olenichev, Dmitry Bartenev, and others. In an interview with Idel.Realii, Kirill Koroteev discussed the main objective of the application to Strasbourg, what has happened to the organisations who have filed applications over the past five years, and what is so frightening about the term "foreign agent."

— What was the main objective of the appeal to the ECtHR: compensation, returned fines, or acknowledgment that the Convention was violated?

— The competency of the European Court is, first and foremost, to determine violations of the European Convention. This, above all, is what we ask of the Court. And actually, this is very important. The Court cannot overturn or modify Russian laws. The ECtHR can only establish in which part of the Russian law there are problems. We are confirming the violation of the convention inherent in the existence of a law that calls professional non-governmental organisations enemies and spies. We expect that the Court will establish a violation of the Convention in this case and that the authorities will repeal this law in accordance with the decision. It cannot be fixed.

— A question for readers who aren't particularly familiar with the topic. According to the law, a foreign agent is an organisation that receives international financing and is politically active. Why does this status scare non-governmental organizations so much?

— Those who are familiar with it have been used to it for a while. Their skin has become thicker, their sensitivity lowered. But those who aren't familiar can perhaps see with a fresher eye that, as a matter of fact, "foreign agent" is a term from the lexicon of our past, from the 1930s. In many Russian-language dictionaries, the first definition of this word is "spy." One particularly subtle and cunning aspect of this law, which is openly laid out in it, is that it demands that organisations call themselves foreign agents, which, when translated from bureaucratic language means the following: organisations must declare that they are enemies and spies.

— Is it just a matter of the phrase "foreign agent"?

— In many respects, it's that precisely. It's also about the delineation of the absurdly-defined concept of "political activity." I think that it was deliberately defined absurdly, because according to a 2012 law, the whole wordy definition of the concept of "political activity" meant one simple thing: political activity is any text on the organisation’s site. It's not participation in elections, it's not supporting candidates—it's any text of the website! When the Russian authorities say that it's also oversight of international financing of political activity, that's also wrong.

The law is obviously not compliant with ECtHR practice. We are not the first organisations to complain to the European Court. The restrictions many organisations face, going as far as dissolution, are forbidden by the European Convention, if there are no calls to violence. Consequently, you can explain at great length why this or that restriction is permissible, but fundamentally, the ECtHR primarily examines the reasons for which the authorities imposed a given restriction.

— Not long ago, news of an NGO’s inclusion in the registry of foreign agents was quite a regular occurrence. Now there is practically silence. Why? Are all those who the authorities wanted to have recognised as foreign agents, now recognised?

— We’re not going to prompt the Ministry of Justice and name more organisations that could be added to the register (laughter). Firstly, the register contains many organisations. Secondly, the job of the department has apparently changed. It would make no sense to annihilate all those groups on the register, because it is necessary to report back on inspections carried out, and so to retain personnel to check documents. Of course, the intensity has decreased. We don’t know if it would have decreased if the ECtHR had communicated the applications at the close of 2014, for example. But I think that the communication of the application in 2017 contributed to the reduction in intensity, because the Ministry of Justice realises that taking further measures would strengthen the applicants’ position.

— At this stage, you inform the ECtHR which changes organisations have undergone. It’s been five years since the first complaint. Tell us, how has the fate of organisations changed in that time?

—They’ve all developed in different ways. Their histories are completely different. The Moscow Helsinki Group was not included in the register of foreign agents, but only because it refused foreign financing. As we recall, Golos’ [Voice]’s rejection of foreign funding did not help it escape inclusion on the register. Many of the organisations that ended up on the register of foreign agents were liquidated – these are not isolated cases. The first that comes to mind is the Memorial Antidiscrimination Centre in St Petersburg, and the LGBT organisation Vykhod [Coming Out]. In addition, the Committee Against Torture was liquidated, but people are carrying on its work anyway. That seems to me the most important thing. What form the organisation takes according to the register of legal entities is less important than what it can do. For the most part their work is continuing.

But there are exceptions – in Moscow the organisation YURIKS [Lawyers for Constitutional Rights and Freedom] was completely liquidated. That happened even before the authorities tried to enter them on the register – at the stage of the prosecutors’ checks in 2013. That organisation no longer exists, and its people aren’t doing their work – this is all the sadder because YURIKS united specialists in administrative justice.

— Many organisations were unhappy that the ECtHR took so long to start reviewing their applications. As I understand it, combining all the applications into one and preparing a single document to respond to the position of the Russian authorities helps speed up the process. Is that right?

— There is a certain procedural economy, the court organises its work as is convenient – that is its right. On the one hand, the trouble is that four years passed between the filing of the first application (before there were as yet any real repressive measures, so the applicants described themselves as potential victims) and the communication. During this time, everything that NGOs wrote about in their applications in 2013 happened. If the decision is in our favour, it will have less effect than if the process had started after 2014. The organisations that were liquidated won’t be restored. Even the communication of applications very often stops the authorities from worsening the situation for the applicants. Not always, but in many cases.

— A team of lawyers has lodged compensation claims with the ECtHR on behalf of NGOs subject to fines on account of their “foreign agent” status. How much money are we talking about?

— The amounts are different for all of the organisations involved, and it is impossible to generalise since the damages are calculated separately in each case. Not all of the organisations which were fined have made applications, and not all of the applications which were granted were communicated. In my opinion, the exact amount of money awarded is known only to the Ministry of Justice or the Federal Treasury, and naming a total would in any case be meaningless.

These fines are of course significant sums. There are organisations that managed to escape them only to be hit by audit-related expenses which proved the final straw. It has been small organisations that have been most affected by this law – if their annual budget is EUR 10,000, they might be forced to spend one quarter or one half of this or perhaps more on measures to ensure that they are legally compliant.

— Your application contains a request for the compensation of non-pecuniary damages. As I understand it, Russian legislation states that damages of this kind cannot be claimed by legal entities. What is the ECtHR’s position on this matter?

— That’s an imprecise way of framing the question. Firstly, the Convention forms part of Russian legislation, and secondly, even legal entities can be awarded compensation for damage to their business reputation...

— Of course, their business reputation.

— Past decisions by Russian courts indicate that awards can be made on grounds of damage to the business reputation of a military unit. The latter may not appear to have much in common with a business as we would normally understand the term, but one of the applicants in this case – the Soldiers’ Mothers of St Petersburg – is all too familiar with the courts’ interpretation of this point. Even Russian legislation provides a certain amount of room for manoeuvre, and the ECtHR does not in any way object in principle to compensation for non-pecuniary damages being awarded to legal entities.

— And this is the subject of your application?

— Yes, that’s correct.

— As I understand it, the clock is ticking on the deadline for you to respond to the Russian authorities' position, according to which the Law on Foreign Agents does not infringe the Convention in any way. It is highly likely that the ECtHR will find in your favour in 2019. What will happen then? Will the NGOs assigned the status of foreign agents be awarded their compensation, and then everyone will simply go home?

— We should not underestimate the importance of declaratory judgments by international courts. The very fact that such a judgment has been handed down – and I am under no illusion as to the likelihood of ECtHR decisions being executed rapidly and in full by the Russian authorities – and the fact that the ECtHR has analysed the case and drawn conclusions will be of great immediate consequence. Maybe our children and our children’s children, looking back at the events of the second half of the 2010s, will be able to identify the lessons to be learned from the problems we are facing, and find ways of solving them. This issue goes beyond the field of NGO activity, since the ECtHR is also taking stock of many other areas of the Russian legal system which can be described as problematic. In all probability, it is only the next generation that will be able to benefit in full from the analytical work currently being carried out in Strasbourg.

— That’s all well and good for our future descendants, but for the time being NGOs need to continue their work – and the Supreme Court of Russia may decide not to set aside the Russian courts’ rulings that impose fines, and the Constitutional Court may block the ECtHR’s decision full stop.

— I think that we need to keep things in perspective. In 1965, on the occasion of the Sinyavsky-Daniel trial, Aleksandr Esenin-Volpin wrote his famous proclamation of civil rights: “Respect the Soviet constitution”. Make no mistake; in 1965 there were no realistic opportunities for ensuring compliance with the standards of constitutional and international law. Nevertheless, just 20 years later, a great deal had changed. I think that now change will happen even more rapidly, regardless of everything. For this reason we should not over focus on the legal form of NGOs, the registration of NGOs in the Unified State Register of Legal Entities, for example. We should focus on the living people who have good ideas and do valuable work. They come together in very different organisational forms in order to do this work, and modern technologies are making it possible to focus ever more on the content of their work and pay ever less attention to the registration of legal entities. You can’t unscramble eggs, but, as Konstantin Arbenin said, "The tsars are lost in the mists of time, but we are still here.”

Translated by Anna Bowles, Joanne Reynolds and Nina de Palma