High Commissioner’s commentary on written comments of Council of Europe Human Rights Commissioner

11 December 2017

I carefully read the written comments of the Council of Europe Commissioner for Human Rights, submitted to the European Court of Human Rights and published on a group of cases in which the so-called «law on foreign agents» is disputed. Similar laws are being adopted in other countries, as evidenced in the analytical review «Regulation of political activities of non-governmental organizations (NGOs)», sent to me by President of the Conference of International Non-Governmental Organizations of the Council of Europe Anna Rurka. Despite the fact that one of the areas of his mandate the Commissioner calls identifying possible shortcomings in legislation and in practice in the field of human rights, his comments do not reflect the objective situation.

Realizing the Commissioner’s desire to understand the existing problems of the application of the legislation on NGOs performing the functions of a «foreign agent», it should be noted that not all the provisions of his comments are based on a thorough study of international documents. So, from my point of view, the Commissioner’s statement that the law on NGOs does not comply with international and European standards in the field of human rights has not been confirmed. For example, the Preamble of the Fundamental Principles on the Status of Non-Governmental Organizations in Europe as of November 13, 2002, adopted by the Committee of Ministers of the Council of Europe on April 16, 2003, referred to by the Council of Europe Commissioner in his opinion, inter alia, stated that work in a NGO entails not only rights, but responsibilities as well, and in Paragraph 5 it is expressly established that «they may enjoy different statuses under national law in order to reflect differences in the financial or other benefits which they are accorded in addition to legal personality.»

The positive innovations of the Russian legislation on NGOs performing the functions of a «foreign agent», the introduction of the procedure for the exclusion of these organizations from the register of the Ministry of Justice of the Russian Federation (to date 88 NGOs are in the register, and not 148 as indicated in the comments), the legislative definition of political activity and etc. haven’t been taken into account. Upon instructions from the President of the Russian Federation, the practice of NGOs performing the functions of a «foreign agent» was analysed, which showed not only a reduction in the number of such organizations, but also the fact that many NGOs went out of this registry, thanks to the favourable economic conditions (including by means of presidential grants), when finances to engage in political activities can be found in the state. The annual volume of such financing has grown 7 times over the past 5 years and reached the level of 22 billion rubles.

In many positions, the Commissioner’s value judgments are given, which are not supported by factual data. Moreover, there is no evidence that members of NGOs performing the functions of a «foreign agent» are being harassed or physically assaulted. Similarly, the comments do not mention that on June 19, 2017, the criminal case instituted against v. Cherevatenko under Article 330.1 of the Criminal Code of the Russian Federation (systematic evasion of duties imposed by the law on non-profit organisations performing the functions of a foreign agent) was terminated on rehabilitating grounds (due to absence of the event of a crime).

Unfortunately, such information submitted to the European Court of Human Rights is unlikely to help establish the truth, since it does not rely on a legal analysis of the provisions of existing international documents, including those adopted by the Council of Europe, or on confirmed facts. It was to be hoped that the European Court of Human Rights, as an independent international body, would be able to work out the decision on the case of Environmental Defence with objectivity and without prejudice.

High Commissioner for Human Rights in the Russian Federaration

Tatiana Moskalkova

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