Background

By a letter dated 5 February 2013, the Chairperson of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, Mr Christopher Chope, requested the opinions of the Venice Commission on the “ Law on Non-Commercial Organisations”, as amended on 13 July 2012, requiring collaborators of NGOs receiving funding from abroad to register as “foreign agents” (hereafter referred to as Law N° 121-FZ  or “Law on Foreign Agents”) and the Federal Law on “Treason and Espionage” of 23 October 2012, on making amendments to the Criminal Code of the Russian Federation and widening the scope of the criminal provisions on “treason” (hereafter referred to as Law N. 190-FZ or “Law on Treason”).

The Ombudsman of the Russian Federation, the Kostroma Center for Support of Public Initiatives and three citizens referred certain provisions of the Law on Non-Commercial Organisations as well as of the Code of Administrative Offences to the Constitutional Court of the Russian Federation. The Commission decided to await the judgment of this Court before adopting its Opinion. The Constitutional Court, after holding a hearing on 6 March 2014, rendered its decision on 8 April 2014; it found that the relevant provisions of the Law on Foreign Agents were in conformity with the Constitution of the Russian Federation, while Article 19.34 of the Code of the Russian Federation on Administrative Offenses that establishes minimum amounts of the administrative penalty both for officers and for legal persons does not conform to the Constitution of the Russian Federation, in so far as it does not allow the law enforcer to properly consider, in all cases, the nature of the offense, the degree of guilt of the person held responsible, his/her property and financial status, as well as other circumstances of significance for the individualisation of administrative responsibility, and thus ensure fair and proportionate administrative punishment.

Further amendments to the legislation on NCOs were introduced on 21 February 2014 (Federal Law N. 18-FZ) and on 4 June 2014 (Federal Law N. 147-FZ) (CDL-REF (2014)026). 

This Opinion analyses Federal Law N.121-FZ of 13 July 2012 introducing amendments to certain legislative acts of the Russian Federation regarding the regulation of activities of non-commercial organisations performing the function of “Foreign Agents”. This Law, which is referred to as the “Foreign Agent Law”, was enacted in November 2012. Further amendments were introduced in February and June 2014 This Opinion will pay special attention to the changes brought in by these laws and will focus mainly on specific issues related to Law N. 121-FZ; it does not constitute a full and comprehensive review of the legislation on NGOs.

This opinion examines jointly Federal Law N. 190-FZ, which introduces amendments to the Criminal Code of the Russian Federation and to Article 151 of the Code of Criminal Procedure of the Russian Federation, referred to as “Law on Treason”, which entered into force on 14 November 2012. The Venice Commission decided to join both opinions in the present one, not least due to the possible cumulative effects of the laws. This analysis, however, does not constitute a full review of the legal framework and regulations on treason and espionage in the Russian Federation.

CONCLUSIONS

The “Law on Foreign Agents” (Law N. 121-FZ) of 13 July 2012, as well as Laws N. 18-FZ of 21 February 2014 and N. 147-FZ of 4 June 2014 raise several serious issues. The use of the term “foreign agent” is highly controversial. By bringing back the rhetoric used during the communist period, this term stigmatises the NCOs to which it is applied, tarnishing their reputation and seriously hampering their activities. The Venice Commission therefore recommends that the term be abandoned.

The Venice Commission further considers that the legitimate aim of ensuring transparency of NCOs receiving funding from abroad cannot justify measures which hamper the activities of NCOs operating in the field of human rights, democracy and the rule of law. It therefore recommends reconsidering the creation of a special regime with autonomous registration, special register and a host of additional legal obligations. 

If this specific legal regime is maintained, the power of the authorities to proceed with the registration of a NCO as “foreign agent” (or other term) without that NCO’s consent should be removed. The extent and content of the obligations linked with the special status need to be carefully scrutinized to avoid that they be disproportionally more cumbersome than those to which other NCOs are subject. Finally, legal sanctions should only be applied to NCOs in case of serious wrongdoing on their side and, as ruled by the Constitutional Court of the Russian Federation, shall be always proportional to this wrongdoing. The liquidation of a NCO and the imposition of criminal sanctions may only be resorted to in exceptional cases of extreme misconduct on the part of a NCO and should always be proportional to this wrongdoing. Enforced dissolution of a NGO may only be pronounced by an impartial and independent tribunal in a procedure offering all guarantees of due process, openness and a fair trial. The effects of the decision on dissolution should be suspended pending the outcome of judicial review.

Pursuant to the law under examination, the legal status of a “foreign agent” presupposes not only that a NCO receives foreign funding but also that it participates in “political activities”. This expression is however quite broad and vague and the practice of its interpretation by public authorities has been so far rather disparate, adding to the uncertainties surrounding the meaning of the term. The Venice Commission therefore calls upon the Russian authorities to work towards a clear definition of “political activities”. It also urges the Russian Federation to ensure that the term is not used to specifically target human rights defenders or that it applies to NCOs based on their political opinions.

In addition to its text, the practical implementation of the Law on Non-Commercial Organizations also gives rise to concerns. Reports indicate that NCOs have been subject to numerous extraordinary inspections, with the legal ground of these inspections remaining unclear and the extent of documents required during them differing quite substantively. The Venice Commission calls upon the Russian authorities to ensure that no inaccuracies or excesses take place in the implementation of the Law.

The Venice Commission calls upon the Russian authorities to revise the “Law on Foreign Agents” in light of these principles.

The new provisions brought in by the “Law on Treason” (Law No 190-FZ) are overly broad and vague and may confer unfettered discretion for limiting freedom of expression on those charged with its execution. While the prosecution of high treason and disclosure of state secrets is legitimate, the Venice Commission considers as imperative that the relevant criminal provisions should be formulated as exactly as possible. It therefore calls upon the Russian authorities to revise the “Law on Treason” accordingly.

The Venice Commission finds that Federal Laws N.121-FZ of 13 July 2012, N.18-FZ of 21 February 2014 and N. 147-FZ of 4 June 2014 and Federal Law N. 190-FZ seen in context mutually reinforce the chilling effect on the exercise on freedom of expression along with freedom of association – crucial rights for the viability of an effective political democracy.

The Venice Commission remains at the disposal of the Russian authorities for any assistance that they may need.