JURIST Guest Columnist Shubin Nikita, Russian State University for the Humanities, Law Faculty, explores a new amendment to Russian law affecting non-commercial organizations…

On November 21, 2012, Federal Law 121-FL came into force in Russia. This law works to amend various legislative acts, such as those regarding public associations, non-profit organizations and the laundering of crime proceeds to finance terrorism. They also amend the Code of Administrative Offences and the Criminal Code.

This need for various amendments came about with the act’s creation of the concept of a “non-commercial organization (NCO) carrying functions of a foreign agent.” This is elusively defined by the act as an NCO that both carries out political activities and receives foreign funding. The funding can be in the form of money or other property, and may be received from foreign countries, state agencies, international and foreign organizations — among others.

Many experts view the broad definition and interpretation of “political activities” by government authorities as a big disadvantage to NCOs. An NCO is deemed to be carrying out political activities if “it participates (including through financing) in organizing and implementing political actions aimed at influencing the decision-making by state bodies intended for the change of state policy pursued by them, as well as in the shaping of public opinion for the aforementioned purposes.” The actual goals and intentions of the organization are not considered when determining if the NCO is carrying out political activities, nor is the determination of whether or not the NCO is conducting activities to the benefit of the foreign funding source.

These considerations make it possible for virtually any organization that is working to change public policy or focusing on implementing and executing state and constitutional guarantees to be deemed as taking part in “political activities”.

Alexei Kudrin, a member of the Committee of Civil Initiatives, which was formed in 2012, stated that the Russian government must give its civilians a clear strategy of, among other things, the social development in the country. This is truly necessary, because under Federal Law 121-FL, almost any attempt to participate in the development of public-political practice or even an organization’s formation of public opinion on a public issue may be considered “political activity.”

NCOs labeled as “carrying functions of a foreign agent” must report to the Russian government any and all cash and/or property received by a foreign source. Furthermore, any foreign entity wishing to make a tax-exempt grant to a Russian NCO must be on the list of approved entities, before they can provide such a donation.

In addition to extensive regulations placed upon these particular NCOs, the organizations are also subject to annual government inspections. Additionally, the law provides for a list of circumstances by which the government can conduct more frequent inspections. The Commissioner is also obligated to submit a report on the activities of the NCO carrying functions of a foreign agent, including information about the organization’s involvement in political activities, expenditure of funds and other observations noted during inspections.

Any NCO carrying functions of a foreign agent is subject to potentially harsh penalties for failing to provide information, or for providing information that is considered incomplete or distorted to the Russian government. Penalties may be in the form of a monetary fine or, in the case of a “willful evasion” of duties, criminal charges may be applied. Violations may also lead to suspension of the NCO’s activities for up to 6 months.

Furthermore, Article 61 of the Civil Code of the Russian Federation, as well as Part 10 of Article 32 of the Federal Law. On NCOs give judicial authorities the right to apply to the court for the liquidation of a NCO found to have violated the law.

It should be noted that when the bill was sent for evaluation to the Supreme Court, concerns were voiced about aspects of the legislation. One concern was that the absence of a statutory definition of “malice” might cause difficulties in objectively enforcing the act. It was also noted that the act might cause a degree of social danger. However, despite these various concerns, the act was ultimately passed.

Recently, the Russian Ministry of Justice has accused the GOLOS Association of failing to register as a “foreign agent.” Although the ministry has requested the closure and suspension of various NCOs since the act’s passage, this case represents the first potential litigation for the ministry regarding the act.

The law has been enacted in different ways throughout the country, and has mostly received a negative assessment.
The head of the Moscow-Helsinki Group, Ludmilla Alexeeva, has referred to the act as “sneaky”. She intends to pursue placing its authors on a “Magnitsky list”. The Presidential Council on Human Rights also called upon the State Duma to withdraw the bill and officially put it up for public discussion, “to avoid rooting unconstitutional policies and practices.”

In turn, political analyst Sergei Markov, a member of the Public Chamber said that if political leaders of foreign countries decided to instigate “orange” revolutions in Russia, these NCOs would play a key role. He said the bill’s goal is to protect the sovereignty and integrity of Russia. However, the Public Chamber itself has also refused to support the bill in its current form. In conclusion, the experts said that the term “foreign agent” is perceived negatively and seems to refer to “a spy.”

Some proponents of this legislation have tried to draw similarities between the act and the US Foreign Agents Registration Act. In essence, however, it is significantly easier to note the differences between the two pieces of legislation than it is to find their common ground.

Shubin Nikita is a student at the Russian State University for the Humanities, Law Faculty. Currently, Nikita works at Legal Consulting. Nikita’s professional interests include corporate disputes, consumer rights, bankruptcy and other legal issues in civil and arbitration law.

Suggested citation: Shubin Nikita, The Law of Non-Commercial Organizations: “Foreign Agents”, JURIST – Dateline, May 10, 2013, http://jurist.org/dateline/2013/05/shubin-nikita-russian-law.php.