Since its introduction in November last year, much has been made, especially in the foreign press, about the so-called ‘foreign agents’ law in Russia. The law demands that any NGO receiving foreign funding and engaging in what it defines very loosely as ‘political activity,’ must register as an ‘organisation performing the functions of a foreign agent.’ At the time of its introduction, experts warned that this could seriously chill civil society in Russia: scaring away all international donors and bringing the non-governmental organisations (NGOs) they support to the brink of closure, even without the state directly intervening.
Since the introduction of the law in November 2012, Amnesty International reports that ‘at least ten NGOs have been taken to court by the Russian authorities for failing to register; at least five other NGOs across Russia have been taken to court following “inspections,” for purported administrative violations such as the failure to present requested documents; at least ten Russian NGO leaders have been ordered to comply with the “foreign agents law”; and at least 37 NGOs have been officially warned that they will be in violation of the law if they continue to receive foreign funding and engage in arbitrarily defined “political activities”. This includes publishing online, materials on human rights in Russia, and not registering as ‘foreign agents.”’
But the foreign agents law is the least of Russian NGOs woes.
Eleven NGO laws
The NGO legal expert leading a panel at Salzburg Global Seminar’s Russian Civil Society Symposium last week [all participants of the Salzburg Global Seminar speak anonymously as is conventional under Chatham House Rules], stated that there are some eleven laws on the books in Russia that directly concern NGOs, and a further 35 that reference NGOs somewhere in their clauses—yet not a single law defines what an NGO actually is.
Building of the NGO 'Memorial' was covered with graffiti reading 'foreign agent.' Photo via memo.ru
Not a single law defines what an NGO actually is.
The various laws make reference to non-governmental organisations, non-commercial organisations, public associations, and charitable foundations, but there is little or no detailed wording in them that might clarify what legally defines each of these different types of organisation.
This confusion over definitions means that there are many civically minded organisations, which register as the wrong entity. ‘We have organisations that try to register as an NGO, and we tell them “No, you’re actually a public association,” but they say, “No, we are an NGO”. It’s hard to explain to them the difference when even the law is confused,’ explains the NGO legal expert present at Salzburg.
So if no one really knows what exactly is an NGO, should NGOs even bother registering? Or should they favour the legal protection of registering as something else?
Should NGOs even bother registering?
‘Yes, register,’ comes the reply from the legal expert. ‘But don’t rush to do it – find out first what sort of organisation you are, and what sort of organisation you want to be. ‘Wait and understand what you are,’ is the advice.
Even if you do take the time to ‘understand what you are,’ the registration process varies massively from region to region. Despite all NGO matters being handled by the Ministry of Justice, different regions require different documents and apply different definitions and expectations. This is due in part to differing attitudes across Russia towards civil society, but it is also due in some cases to bureaucratic ignorance of what is required.
The bureaucrats are not the only people ignorant of NGO legislation. Besides the obvious glaring omission of a clear definition of what an NGO is, the laws that do exist are confusingly written, occasionally contradictory and full of loopholes. But few NGOs can take advantage of any such loopholes – or indeed can be sure to adhere to every stipulation outlined – as so few lawyers, let alone the NGO workers themselves, truly understand the majority of the vague legislation.
The bureaucrats are not the only people ignorant of legislation.
The Russian office of the International Centre for Not-for-Profit Law, has offered some 30,000 legal consultations to civil society organisations. Their most common questions: how to (legally) get money, how to avoid paying taxes and, unsurprisingly, how to register. They estimate the number of consultations conducted, to account for as high as a third of all Russian civil society organisations currently in operation. However, at least this number has sought out expert legal advice; many NGOs seek advice from commercial lawyers who are poorly instructed in such non-commercial matters.
Even the judges themselves, who decide on the possible violations by NGOs of any of these myriad of laws, are little aware of all the idiosyncrasies, leaving them reliant upon previous rulings or the prevailing political mood. But NGOs should not rely on this lack of knowledge: ‘Try to follow the law, try to use the law, try to understand the law. If we only criticise the law and don’t follow it, our position is weak,’ is the warning from legal experts.
So, if an NGO is fully ‘legally literate’, what then? Many of these laws and additional municipal regulations are so specific and granular that it’s nigh on impossible to follow all of them.
The specificity of the regulations is bordering on the ludicrous.
In St Petersburg, for example, paperwork is required to prove: the lack of raids committed on NGO property by the authorities; the sufficient provision of fresh air outlets for office workers; the compliance of all light fixtures, desks and other office furniture with regulations; the provision of foot rests for all staff; measures taken to reduce noise pollution from outside, disturbing the working conditions of NGO employees; contracts with suitable refuse and recycling collection services; and fire and emergency evacuation plans—to name but a few.
Russian NGOs such as Memorial have to contend with a bloated and complicated legislation landscape. Photo Facebook
The specificity of the regulations is bordering on the ludicrous: fire evacuation plans, for example, must be printed on A3 paper not A4, a replacement for which can cost $7000 per item – the same pricey sum is also arbitrarily applied to the replacement of fire extinguishers and smoke detectors. Heads of NGOs can even find themselves responsible for the power voltage in their office, regardless of whether or not they’re the owner of the building.
The temptation is to run the risk that one will not be inspected, a calculated risk – even if an NGO manages to comply with all this regulatory minutiae, there is often little need to do so, for many laws are applied half-heartedly at best, and selectively at worst.
‘Doesn’t want to, doesn’t know how to…’
The foreign agents law was introduced in November 2012, but it wasn’t until the following February, when Putin started to complain about its lack of implementation, that the Ministry of Justice began enforcing it. Whereupon, most of Russia’s NGOs acted in solidarity and simply refused to file the paperwork needed to comply with the regulation, and declare themselves foreign agents or otherwise. And for all its scaremongering, the generally held view is that even the Ministry of Justice, the state body responsible for ensuring compliance with the legislation, ‘doesn’t want to, doesn’t know how to and doesn’t want to know how to’ enforce the law.
To date, despite all the cases and warnings filed , only three NGOs have been legally declared as foreign agents: the GOLOS Association, which monitors elections (and was the impetus for the introduction of the law in the first place); the Kostroma Centre for Support of Public Initiatives; and the Centre for Social Policy and Gender Studies.
Only three NGOs have been ruled against and declared as foreign agents.
The LGBT rights organisation Coming Out, and the Side-by-Side Film Festival both won the cases filed against them, which accused them of being foreign agents. But despite these successes, the Side-by-Side Film Festival has decided to close down its not-for-profit operation and take the ‘safer’ option of moving all its activities under the protective wing of its commercial entity. Coming Out is still being pursued through the civil courts, despite having had the case thrown out of the administrative courts.
The uncertain future
However, just because the foreign agents law isn’t being applied as forcefully as first feared doesn’t mean that this will remain the case. The current geopolitical situation means the Ministry of Justice is starting to pay more and more attention to internationally supported Russian NGOs. More pressure from Putin, especially as nationalistic, anti-foreign fervour is rising following the spat with Ukraine over Crimea, could convince the Ministry of Justice to pursue cases against NGOs even more eagerly.
To date only three NGOs have been legally declared as foreign agents - GOLOS is one. Photo via Kasparov
There is, however, some cause for optimism. For the immediate future, NGOs are on a new legislation reprieve; rather than drafting new (or strenuously implementing existing) NGO laws, the Ministry of Justice is busy conducting an international survey of NGO laws in the US, Europe, Israel and Central Asia. The International Centre for Not-for-Profit Law is assisting in this process in the hope that this will eventually lead to reform – and much needed clarity – of NGO-related legislation.
If Putin really wants to hurt civil society he doesn’t need to declare them as foreign agents.
Yet one could equally take a bleaker and somewhat more paranoid outlook: perhaps the Ministry of Justice is undertaking this survey to tighten up NGO laws even further, and is, in fact, looking for new ways to further thwart civil society?
But, for all this, it is not the Ministry of Justice, nor the law on foreign agents or any possible future legislation that NGOs should most fear; their biggest concern should be Russian tax law. The reason so many civil society organisations seek registration as NGOs is the favourable tax regime. But much like other legislation regarding NGOs, the relevant tax laws are also confusing. Many NGOs (mistakenly) believe they don’t need to pay any taxes at all. In a sector that is often woefully undertrained, many NGOs lack sufficient accounting skills or staffing to manage their books properly.
If Putin really wants to hurt civil society he doesn’t need to declare NGOs as foreign agents – he needs to call a mass tax audit.