On 19 December 2011, the Chair of the Monitoring Committee of the Council of Europe Parliamentary Assembly requested the opinion of the Venice Commission on five Federal Laws of the Russian Federation, including the law on the Federal Security Service (CDL-REF(2012)011) and the law on combating extremist activity (CDL-REF(2012)012).
1. Opinion on the Federal Law on FSB
The present Opinion is based on the comments by Messrs Cameron, Haenel and Sorensen and those provided by Mr Fogelklou, expert, as well as on the information made available to the delegation of the Venice Commission during its visit to Moscow, on 9-10 February 2012 and at a meeting in Paris on 27 April 2012. The Commission wishes to express its appreciation to the Russian authorities for the information provided during the meeting in Paris.
The present Opinion is limited in scope and should not be seen as a comprehensive and detailed review of all the provisions of the FSB Law. As suggested by the Monitoring Committee in its request, its purpose was to provide an assessment of the most recent amendments to the Law, in particular those having extended the powers of FSB organs and officers through new instruments - the preventive measures - and to highlight any related issues of concern.
The Venice Commission stresses at the outset that it is commonly accepted that the development of more efficient means and measures to safeguard the state’s security and ensure its citizens’ protection against the dangers of extremism, terrorism or organised crime represents in itself a legitimate aim. However, the protection and respect of fundamental rights represents an essential condition for the operation of security services as part of a democratic society and requires solid and specific guarantees.
The Venice Commission has examined the text of the Law on the Federal Security Service (FSB). It finds that it calls for the following remarks:
a) As regards the legal basis governing the activities of FSB organs, it is defined in the Law with reference to the Constitution and several other legal texts, including the code of criminal procedure. It would be useful if the Law contained an explicit requirement to duly respect the principles of necessity and proportionality and to provide for effective remedies.
b) As regards the monitoring and supervision of the FSB activities, the Venice Commission has previously indicated as a general rule that firstly it is necessary to establish mechanisms to prevent political abuse while providing for effective governance of the agencies. Overall, the objective is that security and intelligence agencies should be insulated from political abuse without being isolated from executive governance. Secondly the rule of law must be respected. Agencies must be subject to legal control. As in other areas of public administration, one key task of the parliament is, by means of statute, to delegate authority to the executive but also to structure and confine discretionary powers in law. The challenge for oversight and accountability is to adapt or devise processes that command democratic respect at the same time as protecting national security. At the level of review, it is absolutely necessary to have external mechanisms to bridge the barrier of secrecy and provide assurance for the executive, legislators and the public that operations are being carried out effectively, lawfully and in accordance with policy.
In Russia, oversight of the FSB is exercised by the President of the Russian Federation, the Federal Assembly, the government and the judicial bodies. The President and the government are not “external” controls. The Duma Committee on security and anti-corruption, besides adopting the budget or part of the budget of the FSB, seems to be empowered merely to request information. A “Public Council” with an advisory role in order to ensure the compliance of FSB with the constitutional rights and freedoms of the citizens, may be a useful channel of communication but, in the Venice Commission’s view, it cannot be described as an oversight body, notably because it does not have access to confidential information. Judicial control, both preventive and subsequent, of individual measures may instead represent a safeguard for human rights, provided that the judges possess an appropriate level of expertise and experience. As concerns the control of the gathering of intelligence and the use of operative and search activities, it is carried out by specialised, security-screened prosecutors. While prosecutors may indeed represent a useful control over the security agency to the extent that its work involves gathering evidence for the prosecution, the Venice Commission has previously stated that prosecutors may only be seen as an “external” control if they are formally and in practice a part of the independent judicial branch. The Venice Commission has previously found that the Russian prosecutors are strongly subjected to the hierarchical control of their superiors and of the Prosecutor-General. Against this background, the Venice Commission has serious doubts that they represent a mechanism of “external” control.
c) As regards the prevention measures, official warnings addressed to individuals do not carry sanctions and may be appealed also in court. Nevertheless, they intervene in a “grey zone” situated between what is legal and what is illegal, and may be used in an arbitrary manner, thus risking having an undue chilling effect on the exercise of fundamental rights and freedoms. Requests addressed to organisations instead do carry sanctions and, although they may be appealed, their potential chilling effect is even greater. In the Venice Commission’s view, therefore, the preventive measures set out in the Law have the potential to impinge on fundamental rights, depending on how they are applied in practice.
2. Opinion on the Federal Law on combatting extremist activity
The present Opinion is based on the comments by Mr Dimitrijevic, Ms Flanagan and Mr Grabenwarter who acted as rapporteurs and the very limited information provided to the delegation of the Venice Commission during its visit to Moscow on 9 -10 February 2012. The Institute for Legislation and Comparative Law under the Government of the Russian Federation provided comments on the law under consideration (CDL(2012)024), which were duly taken into account in the preparation of the Opinion. Some additional clarifications were provided by the representatives of the Russian authorities during a meeting held in Paris on 27 April 2012.
The Venice Commission is aware of the challenges faced by the Russian authorities in their legitimate efforts to counter extremism and related threats. It recalls that, in its recent recommendation devoted to the fight against extremism, the Parliamentary Assembly of the Council of Europe expressed its concern over the challenge of fighting extremism and its most recent forms and encouraged the member States of the Council of Europe to take resolute action in this field, “while ensuring the strictest respect for human rights and the rule of law”.
However, the manner in which this aim is pursued in the Extremism Law is problematic. In the Commission’s view, the Extremism Law, on account of its broad and imprecise wording, particularly insofar as the “basic notions” defined by the Law - such as the definition of “extremism”, “extremist actions”, “extremist organisations” or “extremist materials” - are concerned, gives too wide discretion in its interpretation and application, thus leading to arbitrariness.
In the view of the Venice Commission, the activities defined by the Law as extremist and enabling the authorities to issue preventive and corrective measures do not all contain an element of violence and are not all defined with sufficient precision to allow an individual to regulate his or her conduct or the activities of an organisation so as to avoid the application of such measures. Where definitions are lacking the necessary precision, a law such as the Extremism Law dealing with very sensitive rights and carrying potential dangers to individuals and NGOs can be interpreted in harmful ways. The assurances of the authorities that the negative effects would be avoided thanks to the guidelines of the Supreme Court, the interpretation of the Russian Institute for Legislation and Comparative Law or good faith are not sufficient to satisfy the relevant international requirements.
The specific instruments that the Law provides for in order to counter extremism - the written warnings and notices - and the related punitive measures (liquidation and/or ban on the activities of public religious or other organisations, closure of media outlets) raise problems in the light of the freedom of association and the freedom of expression as protected by the ECHR and need to be adequately amended.
The Venice Commission recalls that it is of crucial importance that, in a law such as the Extremism Law, which has the capacity of imposing severe restrictions on fundamental freedoms, a consistent and proportionate approach that avoids all arbitrariness be taken. As such, the Extremism Law has the capacity of imposing disproportionate restrictions of fundamental rights and freedoms as enshrined in the European Convention on Human Rights (in particular Articles 6, 9, 10 and 11) and infringe the principles of legality, necessity and proportionality. In the light of the above comments, the Venice Commission recommends that this fundamental shortcoming be addressed in relation to each of the definitions and instruments provided by the Law in order to bring them in line with the European Convention on Human Rights.
The Venice Commission remains at the disposal of the Russian authorities should they require assistance.