Created and (or) distributed: Discriminatory aspects of the application of legislation on ‘foreign agents’

Following the adoption of new amendments to the legislation on ‘foreign agents’ in November 2020 — March 2021, which significantly expanded the scope of application of legislation, tightened penalties, and increased the regulatory burden on affected entities, 127 entities and individuals have been included in various ‘foreign agent’ lists, a total of 175 at the moment.¹ As a consequence, 98 NGOs were forced to cease their activities, various media outlets have being closed, yet other NGOs faced the risk of forced liquidation (i.e., the human rights defender organization ‘Memorial’, whose case is viewed by the civil society as an unambiguous warning for all ‘foreign agents’).

The society has reacted rather negatively, with 40% of respondents of the ‘Levada-centre’ poll finding the law repressive, and 250 thousand people, media, and leading civil society organizations signing a petition for the complete abolition of the ‘foreign agents’ law.

However, while the society and the professional community of NGOs and media calls for the complete abolition of the legislation, the authorities, parliamentary parties, and a number of other actors insist that it should not be cancelled but improved.

In order to contribute to the discussion, OVD-Info has conducted analysis trying to find answers to the following two questions: To what extent do the laws themselves and the established law enforcement practice generally comply with the Russian Constitution and international law? Is there anything to improve there, and is it possible to change this legislation in such a way that the law becomes not just a document approved by officials, but also an indisputable part of the law? Since both sides appeal to discrimination to argue their positions, the ensuing report focuses specifically on identifying and analyzing discriminatory aspects of the legislation and law enforcement practice itself.

Below, we offer conclusions from the English version of the report. The full text is available here.

Conclusions

The authors of the report analysed the legislation on foreign agents, law enforcement practice from 2013 to 2021 and regulations of various departments. Based on the data and conclusions of studies conducted by other authors and institutions (including the Venice Commission, the Public Verdict Foundation and the NPO Lawyers Club), the authors present a preliminary legal, statistical and empirical analysis (the text of the report is abundantly supplied with quotations of «foreign agents» of various types) with a focus on discriminatory aspects of both legislation and regulations and law enforcement practice.

Based on the collected and analysed material, we have identified a number of discriminatory norms that contradict both Russian legislation and international law. It is important to understand that discrimination is not a subjective concept, but a legal term clearly defined as unequal treatment without objective and reasonable justification, legitimate purpose, necessity and proportionality.

The main discriminatory norms and practices can be divided into several major categories:

Direct bans on certain activities
Restrictions on access to public financing and other forms of state support
Restrictions on the interaction of «foreign agents» and government officials and budget organisations
Enhanced control by government bodies
Increased expenses related to additional reporting, court costs and payment of fines
Restriction of the spread of information by «foreign agents»
Informal obstacles to professional activity
Collection of personal data of donors and participants of events

At the level of legislation and individual regulations, there are a number of direct prohibitions for organisations and people who have been put on the lists of «foreign agents». The rights to participate in electoral processes are significantly restricted — both in the political part itself (support of candidates and political parties is prohibited), and in the civil one (the rights of observers from foreign organisations are limited) and information (the rights to cover elections are limited). «Foreign agents» are prohibited from holding positions in state bodies and local self-government bodies. Unregistered associations, NPOs (NGOs - here and further in the text - REM) and individuals «performing the functions of a foreign agent» are prohibited from transferring or receiving money or other property for the purpose of organising or holding a public event.

Access to state funding and support for foreign agents organisations is limited both at the legislative level (priority support measures are provided exclusively for the so-called «NPOs-performers of socially useful services», and the assignment of this status to foreign agents is prohibited), and at the level of individual departments, regions and municipalities. ‘Foreign agents» NPOs were excluded from urgent measures to support NPOs in the context of COVID-19, bank deposits of NPOs from the list of «foreign agents» are not subject to insurance.

Communication and cooperation of foreign agents with government bodies and employees is limited. Thus, servicemen and civilian personnel of the FSB bodies are allowed to apply to NPOs «performing the functions of a foreign agent» only under the conditions established by the FSB. The Ministry of Health has banned non-governmental organisations from nominating candidates to the «Council of Public Organisations for the Protection of Patients' Rights» operating under the Ministry. At the municipal level, in a number of regions, there are prohibitions for ‘foreign agents» NPOs to nominate candidates for local Public Chambers and Public Councils. ‘Foreign agents» NPOs are prohibited from nominating candidates to Public supervisory Commissions, conducting anti-corruption analysis of regulatory legal acts.

All types of foreign agents are required to report to the Ministry of Justice on their activities, income and expenses with many details and more often than all other subjects of law. In addition, the authorities have the right to conduct scheduled inspections of foreign agents NPOs every year. Since 2021, such NPOs are also required to provide the Ministry of Justice with a long-term plan of their programs and activities, and the body has the right not to coordinate it. These discriminatory norms put «foreign agents» in an unequal position compared to other subjects of law, and also involve the expenditure of significant financial and time resources.

Labeling requirements and sanctions for their violations — both for the «foreign agents» themselves and for the media writing about their activities — impose significant restrictions on the right to spread information, leading to self-censorship and isolation. Individuals have to use labelling even in personal communication formats — for example, in dating apps or in parent chats. ‘Foreign agents» media lose advertisers due to the need to label the placed advertising. All media outlets are required to label mentions of «foreign agents», which, together with the vagueness of the legislative regulation of this labelling, substantial fines for non-compliance with these requirements and possible ban of web resources, creates prerequisites for reducing information coverage of the «foreign agents» activities.

Informal practices impose significant restrictions on the activities of «foreign agents». From a legal point of view, such practices relate to indirect discrimination, which also contradicts Russian legislation and international law. Among such practices, it is possible to distinguish the refusal of officials and budget organisations from communication and cooperation with «foreign agents», which is critical for most NPOs and the media for full functioning; restrictions on professional activity for «foreign agents» journalists who, due to the need for labelling, are practically unable to find work in their field; refusal of partners, venues, organisers of public events to cooperate with «foreign agents» and defamation campaigns in the media and social networks.

In addition, for individuals included in the lists, both legislation and law enforcement practice violate the right to privacy — the volume and detail of reporting are such that they put the objects of the relevant regulation in a discriminatory position in relation to all other objects of regulation in Russia, including entrepreneurs, officials, deputies. In turn, the reporting requirements of «foreign agents» NPOs presuppose the transfer of a large volume of personal data of donors-individuals to the regulator, violating current federal legislation.

Taken together, legislation on «foreign agents», regulations, law enforcement practice and informal restrictions, supplemented by defamation campaigns in state media, lead to an endless expansion of the influence of legislation on society and the state as a whole. The broad interpretation of the concept of «political activity» and the ability of the law enforcement officer to label almost any resources as «foreign financing», regardless of the jurisdiction of their source, together with the constantly updated lists of «foreign agents» creates an atmosphere of fear and uncertainty in the non-commercial and media spheres. As a result, many people and organisations are forced to refrain from public activity, which leads to degradation of civil society and a simultaneous decrease in the control of state bodies, the loss of their feedback channels with society and a decrease in the quality of decisions made by the state.

Based on the conducted research, an unambiguous conclusion can be drawn: the legislation on foreign agents is discriminatory in its essence, since it significantly restricts the rights and threatens the professional activities of only a certain group of legal entities. At the same time, the corresponding restriction of rights is unjustified neither by extreme necessity nor by any specific threat to national security.

The situation is aggravated by arbitrary and prohibitive law enforcement, which is due to the vagueness of the wording in the legislation and its free interpretation by various subjects of law enforcement. Individual departments, regional and municipal authorities are increasing the scale of discriminatory consequences by introducing their own regulations.

Under these conditions, attempts to bring the legislation on «foreign agents» and law enforcement practice in accordance with Russian legislation and international law are not possible. This will require the adjustment of dozens of laws and regulations, as well as a detailed analysis of decisions of courts and executive authorities. The only legal way out of this situation may be the complete abolition of the legislation on «foreign agents», and until the relevant law comes into force — the complete suspension of law enforcement until a comprehensive analysis of law enforcement practice involving both representatives of the legislative and executive authorities, as well as regulatory entities and independent experts is conducted.

Corrections

05.12.2021. In the sections “Electoral restrictions” and “Fines for the media for disseminating information about“ foreign agents ”without labeling”, an error in the cost of developing a monitoring system for “foreign agents” ordered by the Central Election Commission has been corrected. Initially, the text erroneously indicated the amount of 13 billion, not 13 million rubles. We apologize to readers!