Report: Application of Foreign Agents Act by Russian Courts

The Foreign Agents Act introduces excessive and unnecessary requirements for NGOs and provides for overly harsh penalties for non-compliance, a new report says.

The report was produced by the Civic Solidarity Platform, whose experts observed over 30 court hearings that affected some of Russia’s leading human rights organizations. All trials were related to the application of the notorious Federal Law No 121 FZ dubbed Foreign Agents Act, introduced in November 2012.

The Foreign Agents Act is presented in terms that are vague and allow broad interpretations. The result is inconsistent application of the law by the Russian courts. Moreover, the report adduces that requiring NGOs to register as "organizations performing the functions of a foreign agent", as it was done in some of the cases followed by CSP observers, is an infringement on their fundamental right to hold opinions.

According to the trial monitoring reports and the case-files, no issues as regards the independence and impartiality of the tribunals were raised in any of the cases. The proceedings were generally open to the public and the equality of arms and the principles of proceedings were generally respected.

Nevertheless, in none of the cases monitored by the CSP observers, have the courts examined if and to what extent the restrictions imposed by this law were substantiated and proportionate to the legitimate aim pursued, or whether the prosecutors’ justifications were relevant and sufficient. Thereby, the courts failed to fulfill their function of providing scrutiny to guarantee the unhindered exercise of the right to freedom of association, choosing instead to rubber-stamp the prosecutor’s charges.

The right to a reasoned decision was an issue in some of the proceedings. For example, in case of ADC Memorial the courts failed to properly examine the evidence adduced by the defense and provide explicit replies to their key arguments.

In the cases under review, the domestic courts' findings that the activities of ADC Memorial, Kostroma Civic Initiatives Support Centre, Transparency International–R and Women of the Don amounted to those of "organizations performing functions of foreign agents" interfered with their right to hold opinion. The same is true in respect of the court's judgment in the case of HRC Memorial whereby the NGO's complaint against the prosecutorial order to register as an "organization performing functions of a foreign agent" was dismissed.

The Foreign Agents Act, both prior and following the judgment of the Constitutional Court may be regarded as creating a basis for unwarranted interferences with the freedom of expression and freedom of association, in breach of the relevant ECHR provisions.

The full text of the report can be found below: