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Mikhail Sergeyevich Gorbachev

Mikhail Sergeyevich GorbachevGorbachev

Legal pitfalls and ways out

A new law libels Russian non-profit organizations receiving foreign funding as "foreign agents". Declining Western money, going to court, or emphasizing the distinction between political and civic engagement are possible strategies against it. A background report by Sabine Jenni

"The Russian government sends conflicting signals to civil society," says Anna Orlova, chairman of the Centre for the development of non-commercial organizations (CRNO) in Saint Petersburg. On the one hand, state funding allocated to non-profit organizations (NPO) has been increased in 2010. On the other hand, in the summer of 2012, just six years after the introduction of stricter accountability for NPOs, followed a further tightening of the NPO law. The latest law is assessed primarily as an effective and useful instrument for arbitrary state control of civil society. On November 21, 2012, it enters into force and stipulates that non-profit organizations, who receive funds from abroad, must be registered in a registry at the Ministry of Justice. Registered organizations must provide henceforth all their materials with the label "On behalf of a foreign agent." This is reflected in the eyes of the concerned organizations a commitment to selfsame libel and would damage the reputation of civil society organizations in society, fears Orlova.

Political right

Legally, the law is characterized above all by the detailed description of the control and enforcement powers of the state authorities with respect to such non-profit organizations. The rest is formulated vaguely. The law aims at NPOs that are "politically active" and work towards a "change in public opinion," both "in the interests of a foreign agent." This interest is due to the financial support established by foreign organizations, irrespective of the proportion of or the concrete arrangements between donors and NPOs. In September, a group of lawyers asked the Ministry of Justice to clarify the ambiguous terms, but is still waiting for an answer. As in 2006, the law does not prohibit any unwanted organizations, but has legal and bureaucratic traps. The lack of legal clarity, which is also observed with other new laws, nourishes the suspicion that the agent-law was created as a selectively applicable and politically useable instrument. It is supposed to discourage NPOs to make political statements that are uncomfortable for those in power.

Western media assume that the law aims primarily at organizations working for political rights. An example is the NPO Golos which made a name for itself with the detailed coverage of electoral fraud, and which played an important role in the December 2011 protests. Golos as well as the Moscow Helsinki Group, the oldest Russian human rights organization, said that they would rather turn down foreign financing than register as a foreign agent. For organizations that do not work on elections or human rights, it is unclear whether their activities are now classified as political by law. In the Russian society, politics designate generally the activities of the Kremlin and perhaps the governor or the city council. Those who do not want power, designate their own commitment mostly as grazhdanskij – civil society. However, many civil society representatives are striving to a change in society or even the legislation in a particular area.

Apolitical civil society?


The self-classification as "non-political" does not mean that the non-profit organizations see the current developments passively. "When the law was passed over the summer, there seemed to be only two possibilities: Not to register as an agent and committing a criminal offense or to register and to commit libel against yourself. Meanwhile, many other strategies are discussed," Orlova realized gladly. The CRNO is financed among others by foreign sources, but has not yet decided on a strategy. Once the Ministry of Justice has published the regulations on implementation, the employees of the CRNO will jointly decide how to proceed.

Like many human rights organizations, the gay and lesbian film festival Side by Side belongs to those organizations that have already decided on an opposition course. Side by Side is not going to register as an agent even though 100 percent of the festival funding comes from abroad. Dealing with issues of rights for sexual minorities makes one vulnerable enough: Since in Saint Petersburg providing "propaganda of homosexuality" to minors is illegal, homophobia is socially acceptable in the city. Therefore, the new government control options due to the agent-law would probably be used to the detriment of Side by Side, which is what the organizers want to avoid. In addition, information is part of the work of this NPO. "When we write on each flyer that we inform on behalf of a foreign agent, then we immediately lose our credibility," fears the festival organizer Gulya Sultanova.

Ingenuity in the non-commercial sector

Sultanova sees other strategies in order to avoid coming in conflict with the law: One could argue that a film festival is a cultural and not a political matter and amends its own statutes accordingly, or foreign funds run through a commercial organization. Since taxes for non-commercial organizations are almost as high as for companies in Russia, that would be financially viable. The problem here might be the reaction of the Western donors. They want to transfer to non-profit organizations, or are obliged to do so in accordance to their statutes. If both options are not working and it should come to a conviction, then a lawsuit cannot be avoided. Side by Side is counting in this case on the support of human rights organizations who are already preparing for lawsuits.

Masha Ostrovskaya, director of the organization Perspektivy, who has been working for twenty years in working with disabled people, wants to avoid a violation of the law. She prefers to register the organization as agent, because even on the suspicion of violating the new law, an organization could be closed for up to six months. Blocked bank accounts would mean in the case of Perspektivy that 130 employees would not receive wages for half a year. This responsibility weighs heavily. But the director was not able to convince the majority of her team of this pragmatic strategy. For them, the insult of being a foreign agent weighs heavier than the still unpredictable consequences. However, in one thing Ostrovskaya and her team agree: Their work with disabled people includes taking responsibility for the rights of disadvantaged people. They see no way to hide this lobbying to avoid falling into the scope of the law. "That's exactly what they want, that we continue our social work, but silent about the social conditions. We won't do them this favor," said Ostrovskaya.

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1st picture: Sabine Jenni / all rights reserved

2nd picture (source): Bogomolov.PL / Creative Commons License