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53LAW MAKiNG AND COURT PRACTiCE
IS A RIGHTS ACTIVIST AN AGENT OR NOT?
IMPARTIAL GLANCE FROM WiTHiN
DOI: http://dx.doi.org/10.14420/en.2013.4J web-site: http://bar-association.ru/
Viktor Mikhailov, LLD, Deputy Head of Analytic Directorate of Administration of Human Rights Commissioner for the Russian Federation, the First Class State Councillor of the Russian Federation
summary. The article attempts to examine the situation formed in Russian
society after acceptance of Amendments to a Federal Law, On NonCommercial Organizations, providing for additional requirements to non-commercial organisations performing the functions of foreign agents. Special attention is paid to illustrating the positions of the parties to the conflict, whose justifiability of arguments, it appears, must play a decisive role in the consideration of debatable provisions with respect to their constitutionalism.
Keywords: NCO, foreign agent, non-commercial organisation, political activities,
foreign source, rights activist, Human Rights Commissioner, constitutional court.
In summer of 2012 the Federal Law of the Russian Federation 12.01.96 № 7-FZ On Non-Commercial Organisations (hereinafter - Law on NCO) was substantially amended (with amendments coming into force on November 21, 2012), and separated Russian society in two parts.
The apple of discord was the introduction of special legal regulation of the activities of some non-commercial organisations, and their designation as «organisations performing the functions of foreign agents».
According to Clause 6 of Article 2 of the new version of the Law on NCO, a non-commercial organisation performing the functions of a foreign agent, is understood to be a Russian non-commercial organisation receiving monetary funds and other property from foreign states, their state bodies, international and foreign organisations, foreign citizens, persons without citizenship or persons authorised by them and/or from Russian legal persons receiving monetary funds and other property from the indicated sources (with the exclusion of open joint-stock societies with foreign participation and their subsidiary companies) (hereinafter foreign sources), and taking part, including in the interests of foreign sources, in political activities executed in the territory of the Russian Federation.
Non-commercial organisations, except for political parties, are acknowledged as taking part in political activities performed in the territory of the Russian
Federation if independently of purposes and tasks indicated in its constituent documents, it takes part (including by way of financing) in the organisation and hosting of political actions with the aim of influencing decisions taken by state bodies directed at a change of the policy pursued by them, as well as in forming public opinion for the indicated purposes.
Position of legislators and their adherents
The Russian authorities claim that the amendments introduced in no way prohibit the activities or impinge on the rights of a non-commercial organisation being directed at organisation of proper control, they are designed to provide for publicity for their activity connected with politics and to make that information generally accessible1. An organisation acting within a legal framework has no need to conceal information about itself. The law is designed to provide Russian society with adequate elements of control over the activities of non-commercial organisations financed from foreign sources and pursue those with political aims, including those with aims in the interests of their financial donors.
It is even more so because the notion of “agent” is not new in modern Russia. Civil legislation has used that term very successfully for many years now, without generating a negative attitude (Chapter 52 of CC RF).
In addition, the norm of the law accepted in 2012, defining some noncommercial organisations as “foreign agents”, is just an analogue of the American norm of the FARA2. n the USA a similar norm on foreign agents was adopted long ago, in a 1938. The law requires that foreign agents representing foreign governments in American politics, as well as foreign physical and legal persons, disclose their occupations and sources of financing.
Position of opponents of the “agent” law
Special discontent about NCO representatives is caused by the term used to refer to them as an «organisation performing functions of foreign agent» due to its negative acceptance by society. In justification of their assertions they refer to the semantic aspect as well as to the definition of the term in civil legislation.
In the applicable Russian legislation the term “agent” is used to designate a person who has accepted an obligation to perform, for remuneration and on the instructions of another person (principal), legal and other activities, that are in the interests of the principal. NCOs, by their status, cannot act at the discretion of other persons and cannot pursue their aims towards public benefit (Part 2 of Article 2 of the Law on NCOs).
In addition, the organisations accused of “agentship” and their supporters think that the major difficulties of law enforcement practice are caused by a definition of the notion “political activities”, as well as of types of financing that can be associated with receiving monetary funds and other property from foreign sources.
A very eloquent confirmation of this resulted in the conclusions of the Istra town prosecutor's office of Moscow region made following the results of check of activities of Regional Public Organisation of the Moscow region Help to Diseased with Cystic Fibrosis directed at protection of rights and legal interests of the
1 Sidyakin A.G. The only source of civil society in Russia is its multinational people // Official site of the fraction «United Russia» at The State Duma of the Federal Assembly of Russian Federation. URL: http://www.er-duma.ru/press/54726.
2 Foreign relations and intercourse // Foreign Agent Registration Act - 2013. URL: http://www.gpo.gov/fdsys/pkg/USCODE-2009-title22/pdf/USCODE-2009-title22-chap11-subchapII.pdf.
invalids diseased with cystic fibrosis and members of their families. Their activities in the part of direction by them of appropriate offers to the bodies of state authority and upholding of interests was recognized as political.
For the reason of absence of particularities, in the affair of attribution of money from abroad to being funded from a foreign source, any foreign financial receipts to banking account of an organisation can be recognized as such, including receipt of single premium for some old services, not presupposing anything in exchange, as well as transfer of negligible sum (1 US dollar) by any person with a foreign connection including bipatrides. This in turn produces fertile ground for all kinds of provocations on the side of roguish competitors and ill-wishers.
Under circumstances of legislative uncertainty no non-commercial organisation can, with a sufficient degree of rationality and caution, foresee the consequences of its activities in order to avoid administrative proceedings with serious sanctions (from 300 thousand to 500 thousand roubles1), which would be enough to potentially bankrupt it.
As to the American practice of using the FARA law, according to expert opinion, a foreign agent in America is considered to be a person (physical or legal) who acts «on the order, at request, under command or under control of a foreign principal» and pursues «political activities in the interests of a foreign principal». The law was introduced, primarily, as part of the struggle against propagandist activities of pro-Nazi organisations on the eve of the Second World War. Some post-war amendments, especially those of 1966 and later, changed the understanding of FARA, converting it from an instrument of struggle against propagandist activities to an instrument of struggle against the lobbying of foreign economic and properly political (state) interests in Congress. It was achieved, primarily, owing to the fact that the law concentrated on agents working «in the interests or on behalf» of a concrete «foreign principal» - i.e. for conviction under law it had to be proven that the organisation was protecting the concrete interests of a concrete subject. After adoption of the Law on Lobbyism of 1995, the law was narrowed and now concerns lobbyists who advocate the political interests of foreign governments, whereas economic lobbyists are registered under the Law on Lobbyism2.
It should be noted that when adopting changes under consideration the legislator made provision, excluding from its scope of action activities in the sphere of science, culture, art, public health service, prophylaxis and health protection of the citizens, social support and protection of the citizens, protection of motherhood and childhood, social support of disabled persons, healthy lifestyle promotion, physical training and sports, protection of plant and animal life, charitable activity as well as activities in the sphere of assistance to charity and voluntary work. Either consciously or accidentally, human rights work was not included, which, together with a lateral understanding of political activities, has practically made human rights organisations the main candidates for the role of «foreign agents»,
1 At the time of putting this article to bed it is equivalent to about 9.5 thousand. - 15.5 thousand US dollars, accordingly.
2 Foreign agent // Wikipedia: free encyclopedia. URL: http://ru.wikipedia.org/.
arousing strong indignation in the public.
Solution to the problem
The unrest and adversarial positions have somewhat reposed in connection with the interference of the Human Rights Commissioner for the Russian Federation, who after several complaining NCOs turned to the Constitutional Court of the Russian Federation in the beginning of September.
There is hope that the Constitutional Court will solve this conflicting and very complex situation. We shall await, with impatience, the decision of the Russian High Court.
References
1. Sidyakin A.G. The only source of civil society in Russia is its multinational people // Official site of the fraction «United Russia» in The State Duma of the Federal Assembly of Russian Federation. URL: http://www.er-duma.ru/press/54726.
2. Foreign agent // Wikipedia; free encyclopedia. URL: http://ru.wikipedia.org/.
3. Foreign relations and intercourse // Foreign Agent Registration Act - 2013. URL: http://www.gpo.gov/fdsys/pkg/USCODE-2009-title22/pdf/USCODE-2009-title22-chap11-subchapII.pdf.
