14 December 2005, 19:08
Expertise on Russia's new NGO legislation
In response to requests of some of you, I'd like to provide additional comments to a note by Natalia Bourjaily, ICNL, on update on Russian NGO draft law, distributed on December 14.
I, together with several colleagues from Russian NGOs, participated today in a meeting of a working group of the State Duma Committee on Pubic Associations and Religious Organizations to discuss amendments to the bill prepared by its authors for the second reading at the plenary meeting of the Duma on December 21. The Committee is in charge of preparing the bill to the plenary by studying all amendments submitted by different MPs and state bodies having the right to submit draft legislative acts, and making recommendations to the plenary on which amendments to accept or turn down. Typically, recommendations of the committee in charge are accepted by the plenary in 95 per cent cases. This particular situation is complicated by the presence of presidential recommendations on amending the bill. Although the president has not submitted any amendments, his recommendations are the strongest source of authority in the current political set up, and it was these recommendations that the Committee has been trying very hard to respond to by producing a text of new amendments in a matter of three working days.
Today the authors made public their new amendments for the first time; the text was ready literally just before the meeting. The Committee will be meeting formally tomorrow to go through these and other amendments submitted by independent deputies last week before the president's recommendations were released, and make its official decision on what to recommend to the plenary. Judging by today's meeting it is highly probable that the Committee will approve the authors' amendments presented today and turn down amendments by the independents (the latter had been prepared by NGOs, in fact). There is a certain procedural trap orchestrated by the Committee: officially a deadline for submitting amendments expired ten days ago but then a week ago the president announced that he will be collecting suggestions in five days on how to improve the bill considering criticism of the Council of Europe, the Public Chamber and Russian NGOs and make his suggestions. Second reading was delayed but no extension of deadline for amendments was made. Last Friday the president made his recommendations. The authors of the bill were working on their amendments in a closed fashion since then, not making any drafts available to NGOs or other MPS and not accepting any other amendments. Now they showed the text of the new amendments for the first time to NGO representatives (and strongly asked not to share them with the media), and tomorrow they will have to be approved by the Committee. No one can submit any other amendments since technically the deadline expired ten days ago. At the same time they made it clear that amendments submitted by the independents ten days ago are irrelevant because they, naturally, are not based on consideration of presidential recommendations that change the bill significantly. They have zero chances of being approved, we were told plainly. This means that we can only argue with the authors' of the bill amendments and try to convince them and the Committee to modify their own words which is extremely difficult.
While I agree with Natalia that there has been substantial progress in the position of the authors as compared with the text approved at the first reading, conceptually the bill remains a serious threat to civil society and freedom of association, giving the state powerful instruments of intrusive control and interference in the activities and (mostly) domestic and (less so) foreign NGOs. Intentionally vague provisions of the law, although softened and brought more in line with international standards and Russian Constitution, give public officials a lot of leeway for abuse and selective application of the law based on assessment of registration agency officials of whether activities of the organization are "too political" or in other ways incompatible with the stated goals. The major problem of the bill is that the goal of its adoption, clearly articulated by the president and several other high level officials as being "prevention of political activity funded from foreign sources" is not in any way identified in the law itself while state powers of controlling NGOs through registration, oversight of activities and finances and liquidation have been increased manifold. Nobody makes secret from the fact that the law will applied against those whose activity is deemed "political" but the violations incriminated to them will be actually different v administrative, financial, etc. (as anywhere in autocratic regimes). When I directly confronted Chair of the Duma Committee Sergey Popov with a question of why wouldn't they provide a clear legal definition of "political activity" he said they had "decided against it and this criteria will be applied on a case-by-case basis." This clearly demonstrates the rotten and illegitimate nature of the bill. The concept has not changed, only the instruments have been somewhat softened in response to major international and domestic pressure.
I am not in a position to comment on the actual text of the authors' amendments simply because there has been no physical opportunity to study them - it is a 62 page long table. We hope to provide everybody interested with a more detailed analysis in a day or two. However, tomorrow the text may change again since the authors of the bill will likely be making slight changes on the basis of the criticism they received today at the working group (although they deny anybody else the right to submit amendments anymore, they reserve this right to themselves).
We went through the main aspects of the amendments just by listening to Mr. Popov's explanations, asking questions and giving our feedback. My preliminary comments as compared with Natalia's notes from the morning conversation with Mr Popov are as follows:
1. The accreditation (not registration) procedure for foreign NGOs representative offices will remain under the Ministry of Foreign Affairs unchanged but they will have to notify the Registration agency about their existence in the course of 6 months since the law's coming into effect.
2. The foreign organizations will have to notify the Registration agency about their programs, goals, amounts of money they plan to spend and have spent in the previous period, and recipients. The exact order and procedure of reporting will be established not by the law but by the Government act and may be quite burdensome, including notifying about every transaction. While indeed it will be more difficult to influence a foreign NGO, the weight of actual control is moved to Russian recipients of their funds. "We will know about all of them from foreign NGOs' notification of their spending, and it is the recipients that we will be able to check thoroughly," said Mr. Popov.
3. Indeed, foreigners who want to found an organization will be required to be physically present in Russia at the time of founding the organization. (The requirement of permanent residency had been removed). In addition, foreigners whose presence in Russia was declared "non-desirable" by a special order of the FSB will not be able to be founders. The number of those denied entry or whose visa was revoked ahs been growing lately. The latest example is Bill Bowring, a law professor at London Metropolitan University, the head of Human Rights Center there and practicing lawyer who has successfully worked in Russia and the Baltics on human rights cases, including landmark Chechen cases won in Strasbourg this February (together with Memorial). After visiting Russia for many years, he was stopped in Sheremetyevo three weeks ago and sent back home with his multiple-entry visa annulled when he was traveling to Nizhny Novgorod on behalf the UK Bar Human Rights Committee to observe a trial of Russian-Chechen Friendship Society facing charges in three court processes at once - criminal, administrative and arbitration.
4. The "Honorable" membership in Russian NGOs will be introduced for the foreigners who do not permanently live in Russia. This status does not give the foreign member any rights and responsibilities of a real member, just a symbolic status.
5. Indeed, the provision requiring notification process for informal association had been removed.
6. Indeed, the Registration Agency (subordinate to the Ministry of Justice, MoJ) will not have authority to require and obtain "economic-financial documents" from NCOs and public associations. However, it will be allowed to conduct general annual audit of Russian NGOs. It will be auditing activities on their compliance with the statutory purposes AND financial documents. In addition to annual audits, it will be able to request financial documents at any moment, such as tax returns, not from NGOs but from a local tax inspection. Registration Agency will be able, such as it was in the first reading text, to request and obtain any other documents of NGOs at any moment and attend their events with the goal of checking compliance of their activities with the goals stated in the charter (and, in reality but not in the language of the bill, whether it engages in "political activity").
7. NCOs from now on will have to register with and report to the Registration Agency (unlike now when they simply go through a notification procedure with tax authorities like a business company). Therefore, the registration procedure for NCOs will NOT remain to be less complicated than for public associations. It will be changed from notification to permission. Here the Registration Agency will have a lot of leeway in denying registration. Although a major positive change has occurred in the text by introducing the requirement of a court guilty verdict (as opposed to a mere judgment by an RA official) concerning one the founders' participation in extremist activities (in addition to a court verdict, a Prosecutor's order, or persons recognition as terrorists/extremists on internationally recognized lists will apply here), money laundering, and violation of the Constitution, a major problem remains. The list of reasons for denial of registration includes any break of the Russian laws by one of the founders. This would include any violation, not a criminal record only, including a speeding ticket, participation in an unsanctioned picketing or in violation of other provisions of the legislation on public demonstrations and rallies. It is very easy to make someone whom the state wants to eliminate from public life guilty in some petty violation.
8. The reasons for liquidation remain too vague and disproportionate, including systematic incompatibility of the activity of an NGO with the stated goals and any violation of the law (not only Constitutional limitations, as we demand).
In short, the bill remains a major threat to Russian NGOs and foreign NGOs supporting Russian NGOs and should be discarded. Protests and calls for dropping it should continue in the next days. We thank all of you who have participated in efforts to stop the bill. We may have won a small victory in a one battle by having the wording of the bill softened but it is a long protracted war with many battles ahead. We should not relax and celebrate.
President of the Center for the Development of Democracy and Human Rights
Moscow, 14 December 2005