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05/02/2023

Perspectivas / Perspectives

Denuncias / Reports

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The European Court of Human Rights rules about the Russian Agents Act 2012

It finds the law undemocratic in violation of Articles 10 (freedom of expression) & 11 (freedom of assembly & association) of the European Convention on Human Rights.

The Russian Federation denounced and ceased to be a party to the European Convention on Human Rights on 16 September 2022. However, it is still bound to the ECHR ruling considering that the judgment on 14 June 2022 precedes Russia's withdrawal from the Convention.

Here are some pertinent segments of the case:

ECHRThe applicants are 73 Russian non-Governmental organisations (NGOs) and, in some cases, their directors, in a total of 61 applications (the details are set out in the judgment). They are involved in the areas of civil-society issues, human rights, protection of the environment and cultural heritage, education, social security, and migration. They include some of the oldest and most established Russian organisations such as the Memorial Human Rights Centre, the Moscow Helsinki Group, LGBT organisation Coming Out, the Agora Association and the Committee against Torture.

In 2012 the new Foreign Agents Act came into force. Until that time the applicant organisations had been under the same legal regime as other NGOs; following that they had to register as “foreign agents” owing to their alleged “political activity” and receipt of “foreign funding”; they also, among other things, had to visibly label this status in their publications and had more strenuous audit requirements. The law contained both administrative and criminal sanctions for non-compliance.

All the applicant organisations challenged the decisions to register them as “foreign agents” before the prosecutorial service and before the courts, with no success. Many fines have been issued as a result of the law; some of the applicants have been forced into voluntary liquidation because of the fines; in other cases liquidation of the organisation was ordered by the authorities.

The Court accepted in principle that greater transparency in funding of civil society could serve the legitimate aim of protection of public order.

As regards the term “foreign agent”, the Court noted that the term “agent”, in its generally accepted meaning, designates someone who carries out certain work on the orders or instructions of another individual or entity (the “principal”) in return for remuneration. Adding the adjective “foreign” implied that the principal is a foreign entity on behalf of which the agent is acting. By contrast, Russia’s Foreign Agents Act introduced a concept of agency in which the control of the donor over the recipient of funds was effectively presumed rather than established on a case-by-case basis, even in a situation where the recipient organisation retained full managerial and operational independence in terms of defining its programmes, policies and priorities. This presumption was moreover unrebuttable because any evidence of operational independence of the grantee from the donor was legally irrelevant for the designation of the targeted organisation as a “foreign agent”, the mere fact of receiving any amount of money from “foreign sources” sufficed.

The Court held that Russia was to pay the applicants individually the various amounts set out in the judgment, totaling 292,090 euros (EUR) in respect of pecuniary damage, EUR 730,000 in respect of non-pecuniary damage and EUR 118,854 in respect of costs and expenses.

For further details, look in Ecodefence and Others v. Russia (nos. 9988/13 and 60 others), judgment of 14 June 2022

La democracia auténtica es el culto al respeto de la dignidad humana,la libertad, la justicia y la paz