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31.07.2017 Institute for Law and Public Policy Submits Third-Party Written Comments to the European Court of Human Rights Regarding Russia’s Foreign Agents Act

On July 19, 2017, the Institute for Law and Public Policy submitted to the European Court of Human Rights (ECtHR) its written comments in the proceedings brought by 61 Russian non-governmental organizations (NGOs) regarding Russia’s Foreign Agents Act (Application No. 9988/13, Ecodefence and others v. Russia and 48 other applications). Earlier on May 31, 2017, the Institute was granted leave to intervene in the case as a third party. The Institute’s written comments were submitted in accordance with Article 36.2 of the European Convention and Rule 44.3 of the Rules of Court.

The full text of the Institute’s written comments, which were prepared in English, can be found here.

The purpose of a third party in the ECtHR is to analyze general principles relevant to a case and present these to the Court. The case of Ecodefence and others v. Russia concerns the application of the Foreign Agents Act to Russian NGOs receiving funding from foreign sources. This case touches upon principal questions related to the acceptable level of state interference in civil society.

In its written comments, the Institute notes that international law guarantees access to resources for NGOs as an inherent part of their right to freedom of association, as confirmed by relevant universal and regional authorities. As such, the United Nations Human Rights Council has specifically called upon states to ensure that “no law should criminalize or delegitimize activities in defence of human rights on account of the origin of funding thereto.” According to a recommendation of the Committee of Ministers of the Council of Europe from 2007, “NGOs should be free to solicit and receive funding – cash or in-kind donations – not only from public bodies in their own state but also from institutional or individual donors, another state or multilateral agencies, subject only to the laws generally applicable to customs, foreign exchange and money laundering and those on the funding of elections and political parties.”

The Institute concludes that the Russian Foreign Agents Act interferes with the right to freedom of association because (1) it discourages reliance of NGOs on foreign financial support, (2) it puts additional financial and administrative burdens on those NGOs which receive and use foreign funding, and (3) it provides for separate offences with higher penalties for failure to comply. Moreover, the interference does not pursue any legitimate aim. The Institute analyzes internationally recognized aims for limiting non-commercial organization’s access to funding and concludes that none of these are applicable to the Russian Foreign Agents Act. Firstly, traditional restrictions related to national security or public safety (enforcement of laws on customs, foreign exchange, prevention of terrorism financing and money laundering, and those on the funding of elections and political parties) have not been relied upon by the Russian authorities as justification for the Foreign Agents Act and are in any event inapplicable in this case. Secondly, disclosure and reporting requirements for lobbyists controlled by foreign principals, provided for by the United States Foreign Agents Registration Act, are fundamentally different from the restrictions introduced by the Foreign Agents Act in Russia. Therefore, to the extent the Russian authorities refer to FARA as a model for the Foreign Agents Act, such references are erroneous and misleading. The declared aim of the Russian Foreign Agents Act is to ensure the transparency of Russian NGOs. However, “transparency” is hardly a legitimate aim per se, but is a means towards the fulfilment of other aims (as, for example, disclosure of financial information by NGOs might contribute to the prevention of money laundering and terrorism financing, thus protecting national security and public safety). The Institute demonstrates that the true aim of Russia’s Foreign Agents Act is the protection of national sovereignty and the prevention of foreign influence on Russian society. Moreover, the indicated aims cannot be considered legitimate for limiting the activities of civil society organizations. The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in 2013 came to a similar conclusion, as do the OSCE Guidelines on the Protection of Human Rights Defenders.

The Institute also notes the practice of several other countries who, after Russia passed its Foreign Agents Act, either began discussing or introduced similar limitations on foreign financing of NGOs with reference to perceived protection from “foreign influence”. Such countries include Hungary, Israel, Kazakhstan, Kyrgyzstan, Ukraine, Armenia, and Slovakia. By finding that restrictions introduced by the Russian Foreign Agents Act do not serve a legitimate aim, the ECtHR has a chance to halt this alarming tendency.

Earlier, in 2014, the Institute presented its amicus curiae brief on Russia’s Foreign Agents Act when the Russian Constitutional Court considered the constitutionality of this law. The Institute’s brief was accepted by the Court and is available here (in Russian).

See Anna Pushkarskaya's article in Kommersant Foreign Agents Act is Suspected of Influence (in Russian).

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