The new law on “undesirable” foreign organizations is set to turn Russia into a besieged fortress. Severing Russian citizens’ and organizations’ ties with the outside world is now easier than ever.
Head of the Memorial human rights center Oleg Orlov outside the building housing the organization on Maly Karetny Pereyulok in Moscow where someone painted the inscription "Foreign agent. Love USA" on the facade. Photo: RIA Novosti
The law on undesirable organizations, signed a few days ago by Russian President Vladimir Putin, can be seen as a landmark on the journey towards the end of the rule of law in modern-day Russia.
The first two terms of Putin’s rule were a time of transition from electoral democracy to personal authoritarianism. This personal authoritarianism was touched up slightly during the years of former Russian President Dmitry Medvedev (2008-2012), but Putin’s return to the presidency not only unmasked the true nature of the regime, but aided its evolution towards dictatorship, under which the law is not viewed as a set of rules governing the life of society, but as a tool with which to achieve short-term political goals.
The 2012 law on foreign agent non-commercial organizations was highly revealing in this respect. A prerequisite for its adoption was Putin’s belief that the protest movement in Russia was not homegrown, but inspired by the West. The Russian law copied a similar U.S. law in force since the 1930s. However, on being transported to a different legal environment, it clashed with the constitutional basis of the country’s political structure.
The U.S. law applies primarily to lobbying organization; in Russia lobbying activity is not regulated at all, so the grounds for applying it look all the more dubious. In Russia the label “foreign agent organization” is assigned to any non-commercial organizations (NCO) engaged in political activity in receipt of overseas financing, including from international foundations.
For a very different take read "What's behind the Kremlin's phobia of foreign NGOs?"
The very use of the term “foreign agent” in this context is incorrect. An agent cannot be wholly “foreign,” it must have a principal, i.e. a party whose interests it serves. By fingering non-domestic funding as a mark of foreign agent activity, the state has freed itself from the burden of proof.
Moreover, the law very broadly interprets the concept of political activity as including any role whatsoever in shaping public opinion. If desired, it can pertain to the holding of any public event.
Nevertheless, the law was barely enforced to begin with, since it proposed a rather arcane procedure of admission of “guilt.” By law, an organization itself had to apply to the Russian Ministry of Justice to be included in the list of foreign agents. Failure to do so could result in the Prosecutor General’s Office seeking a court order to charge the organization with non-compliance with the law, and only a court could compel NCOs to make appropriate changes to their names.
For a long period of time, therefore, neither the Ministry of Justice nor the Prosecutor General’s Office knew how to proceed in respect of the law. Verification of “suspect” organizations began only after Putin issued a direct order in April 2013. Little progress was made, however, and in the subsequent year, the only organization fined for failure to comply with the law was the movement of election observers Voice, which opted to forgo state registration, but did not recognize itself as a foreign agent.
The process accelerated when, at the Kremlin’s behest, the procedure for adding NCOs to the register of foreign agents was modified. As of 2014, the right to do so was assigned to the Ministry of Justice itself, whereupon a non-commercial organization could only challenge the decision of the latter in court.
As a result, starting June 2014, 64 organizations were included in the register of foreign agents (previously it contained only the non-commercial partnership Supporting Competition in the CIS Countries), none of which managed to remove itself from the list through court action. The only way an organization could do that was through self-annihilation.
The Kremlin took the law on foreign agent NGOs as the basis to remove “undesirables” from the legal framework. It learned through experience that instead of relying on the law and the courts, it was simpler to hand the initiative over to the Ministry of Justice and the Prosecutor General’s Office (under the Russian Constitution the latter is de jure independent of executive power, but de facto subordinate to the president and his administration). This procedure further reduced the already atrophied rule of law in Russian society, putting legal regulation in the hands of officials appointed from above.
The same scheme was used to amend the law on combating extremist activity. Whereas in 2012-2013 Roskomnadzor [the Federal Service for Supervision in the Sphere of Telecoms, Information Technologies and Mass Communications] had to seek a court injunction on “extremist” websites, as of February 2014, it had only to apply to a public prosecutor’s office, which blocked such resources without delay, whereupon the owners of the site had to seek a court order to bring it back online.
As soon as the relevant amendments came into force, Roskomnadzor immediately blocked the Kremlin’s least favorite opposition resources — Kasparov.ru, Grani.ru and Ej.ru (Daily Journal). None was able to get unblocked or even receive an intelligible explanation as to why it had been blacklisted.
The law on undesirable non-governmental organizations brought the whole process to its logical (i.e. absurd) conclusion. Start with the fact that in Russian law there is no concept of “non-governmental organization” (non-commercial, yes, but not non-governmental), which means that the law can be applied to any non-governmental organizations, including commercial ones.
Nor is there any concept of “undesirable organization” in Russian law; in other words, it is not a legal, but a political category. Hence, there can be no legal procedure by which organizations are classified as “undesirable,” as evidenced by the transfer of the relevant powers not to the courts, but to the Prosecutor General’s Office.
In contrast to the law on foreign agent NCOs, the law on undesirable NGOs concerns only foreign organizations, but it covers any Russian NCO too, since the Prosecutor General’s Office need only declare that its foreign partner organization is “undesirable."
The adoption of the law on undesirable organizations automatically removes Russia from the list of countries that claim to follow the rule of law and places it in the category of so-called police states, where guilt and innocence are established by law enforcement agencies — regardless of what the law actually states, guided by subjective and biased “political instinct.”
At the same time, the new law is set to turn Russia into a besieged fortress. Severing Russian citizens’ and organizations’ ties with the outside world will require no extra effort — simply adding their foreign counterparts to the list of “undesirables” will suffice.
Perhaps the envelope has been pushed too far, and the law will prove unworkable. But judging by how the laws on foreign agent NCOs and on combating extremism operate, such a scenario is unlikely. According to Chekhov’s law, if a rifle is seen hanging on the wall in the first scene, it must be fired in the second or third. All’s well that ends well if the curtain falls shortly after. Regrettably, politics and theater abide by different rules.
The opinion of the author may not necessarily reflect the position of Russia Direct or its staff.