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Critical analysis of the postion of the Constitutional Court on the criteria of registering a nonprofit organisation as a foreign agent
DOI: http://dx.doi.org/10.14420/en.2015.1.2
Viktor Kamoevich Mikhailov, PhD in legal sciences, counsellor of State of the Russian Federation, 1-st Class, e-mail: mixvik77@mail.ru
You may happen not to be a spy, Still it's a must to be a foreign agent.1
Abstract. The article gives an overview of arguments of supporters and
opponents of the Law, which binds nonprofit organisations that raise finances from a foreign source and are engaged in politics to submit an application for them to be entered into the register of nonprofit organisations performing functions of a foreign agent. The article contains information on how the Constitutional Court of the Russian Federation processes complaints that concern specific provisions of the said Law. It also presents the analysis of the Constitutional Court Decree dated 8 April, 2014 № 10-n, by which the Court in fact only admits inadequacy of the administrative fines the Law specifies for avoidance of such registration. The author also draws attention to a number of ambiguous judgments and conclusions contained in the Act under analysis.
Keywords: foreign agent, nonprofit organisation, politics, political activity/
activities, foreign source, rights advocates, human rights commissioner, Constitutional Court.
An agent is not good enough beside other nonprofit organisations, is it?
The Law that binds nonprofit organisations raising finances from a foreign source and engaged in politics to submit an application in order to be registered as nonprofit organisations performing functions of a foreign agent found both supporters and opponents and caused a number of complaints against some of its provisions, which were processed in the Constitutional Court of the Russian Federation2.
The Constitutional Court issued the corresponding Decree № 10-n on 8 April, 2014, however this Decree as a matter of fact only admits inadequacy of the enacted
1 An ironical reference to the lines «You may not be a poet, but you must be a Citizen» from the poem of the famous Russian poet N.A. Nekrasov (Translator's note).
2 Mikhailov V.K.. Pravozaschitnik - agent ili net? Nepredvzyatyi vzglyad iznutri // Pravo i sovremennye gosudarstva. - 2013. - № 4. - P. 42-45. [The Rights Advocate - an Agent or not? Impartial Outward Glance // Law and Modern States.]
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by the Law administrative fines for avoidance of registration as nonprofit organisations performing functions of a foreign agent; the Decree also gave a retroactive effect to the prescriptions that oblige to pay the fine1. As for the rest, the Court detected no contradictions with the Russian Constitution.
The author does not attempt to act as a reviewer of an obligatory and conclusive act of a most authoritative High Court, and takes solely academic interest as guide in intending to turn readers' attention to some judgments and deductions contained in the said Decree that appear ambiguous to him. In the following paragraphs the author will endeavor to present detailed argumentation for his bold views.
Article 30, Part 1 of the Constitution of the Russian Federation declares that in the society and state based on rule of law and democracy, one of the intrinsic values is the right of all citizens to form associations, including the right to establish nonprofit organisations, while the Constitution secures the freedom of activities for public associations. The indicated constitutional provision obliges the state to secure freedom of nonprofit organisations in their activities aimed to achieve public benefits in various spheres of human life.
The fact that citizens can freely unite in nonprofit organisations and register them as legal entities in order to facilitate collective acting in the area of implementation and protection of their interests that are valuable to the community, whereas such entities generally perform socioeconomic functions, is one of integral and vital components of the right to make associations, without which the given right would lose its meaning. For this reason the Constitution of the Russian Federation protects not only the freedom to set up nonprofit organisations, but also their freedom to act.
Freedom of creation and activities of nonprofit organisations, whose existence is necessary to achieve socially useful purposes and advocate public interests, is one of prerequisites for democracy to function in its due course. Among other things, in the Russian Federation democracy is guaranteed by equality of nonprofit organisations before law, as well as by equality of rights and freedoms of man and citizen irrespective of what public associations they belong to (Article 13 and Article 19, Part 2 of the Constitution of the Russian Federation). The given right is normally closely related to the right to freedom of expression. The case processed by the Constitutional Court is not an exception, for the disputed prescriptions affect both rights pari passu.
Article 29 of the Constitution of the Russian Federation guarantees that all
1 Postanovlenie Konstitucionnogo Suda Rossiiskoi Federacii ot 8 aprelya 2014 goda № 10 «Po delu
0 proverke konstitucionnosti polojenii punkta 6 stat'i 2 i punkta 7 stat'i 32 Federal'nogo zakona «O nekommercheskih organizaciyah», chasti shestoi stat'i 29 Federal'nogo zakona «Ob obschestvennyh ob'edineniyah» i chasti 1 stat'i 19.34 Kodeksa Rossiiskoi Federacii ob administrativnyh pravonarush-eniyah v svyazi s zhalobami Upolnomochennogo po pravam cheloveka v Rossiiskoi Federacii, fonda «Kostromskoi centr podderzhki obschestvennyh iniciativ», grazhdan L.G. Kuz'minoi, S.M. Smirenskogo
1 V.P. Yukecheva». [The Constitutional Court of the Russian Federation Decree dd 8 April, 2014 № 10 «With regard to the case about examining the constitutionality of provisions of Article 2, Para 6 and Article 32, Para 7 of the Federal Law «About Nonprofit Organisations», parts of Article 6 of Federal Law 29 «About Public Associations» and Article 19.34, Part 1 of the Code of Laws of the Russian Federation about acts punishable under administrative law in connection with complaints of the Human Rights Commissioner in the Russian Federation, fund «Kostromskoy Centre of Supporting Public Initiatives», citizens L.G. Kuzmina, S.M. Smirensky and V.P. Yukechev».]
citizens have freedom of thought and word, which consists in a possibility to express freely their opinions and beliefs on various issues concerning public, national or other nature by means of spoken or printed word. The provision in question corresponds to norms of international legal acts, where this freedom is defined as the right to hold to own opinion, search, obtain and spread information and concepts by all appropriate means without any interference on the part of public authority and irrespective of state boundaries (Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the Convention on Protection of Rights and Fundamental Freedoms of Man).
The Constitution of the Russian Federation allows for some limitations to be enforced by federal laws, provided the resulting restrictions of the right to unite in nonprofit organisations, limitations of their activity and freedom of speech are baseline and serve purposes of protecting fundamentals of the constitutional regime, good morals, health, rights and legitimate interests of other persons, the country defense support and national safety (Article 55, Part 3). The given constitutional position is in full keeping with international rules.
Thus, on the basis of the Constitution of the Russian Federation and with due account for provisions of international legal acts, in which the Russian Federation participates, legislators do have a right to regulate the legal status of nonprofit organisations, in regard to such aspects as conditions and procedures they are established, general principles of their activities, their rights and obligations, and to place necessary limitations that concern how citizens exercise their right to associate in nonprofit organisations, as well as grounds and methods of their state registration as a legal entity. However, by virtue of Article 17, Part 1 of the Constitution of the Russian Federation, under which in the Russian Federation rights and freedoms of man and citizen are guaranteed in compliance with generally recognized principles and standards of the international law and with the Constitution of the Russian Federation, the regulation exercised by the legislator must not distort the essence of the right to unite into nonprofit organisations. Any restrictions imposed by the legislator may not pose groundless obstacles that could prevent citizens from exercising the constitutional right to unite and have freedom to set up and arrange activities of nonprofit associations as public associations; any restrictions must be necessary and proportionate to constitutionally significant purposes.
The Constitutional Court itself repeatedly pointed out that introducing any changes into legal regulation, which makes differences for right-holders, must be carried out by the legislator in compliance with requirements of the Constitution of the Russian Federation, including the requirements subsequent upon the principle of equality (Parts 1, 2 Article 19). Pursuant to these requirements, modifications are acceptable if they are objectively feasible, justified and pursue constitutionally significant purposes, while legal measures used to achieve such a purpose are proportionate to the purpose itself. In its turn the said restriction assigns the legislator the following constitutional obligation: by exercising legal regulation with regard to implementation of these rights, the legislator shall exclude inequality and disproportionate limitations, i.e. such limitations that in a democratic society are not
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called for by a necessity.
To justify the necessity to introduce new legal regulations in reference to relations under examination, the legislator pointed out in the explanatory note to the corresponding legislative proposal that the Law is aimed to «establish proper control mechanisms that will allow the Russian society to control activity of nonprofit organisations financed from foreign sources, which herewith pursue political goals, including those in interests of their financial donors».
In its Decree issued upon examining if the disputed norms comply with the constitutional principle of necessity, the Constitutional Court defined a globally similar objective of the said norms: «By assigning this obligation (that is the obligation to be included into the register of entities performing functions of a foreign agent. - Note of the author of the article), the federal legislator was governed by the necessity to ensure transparency of the financial (material) aspect of activity of the nonprofit organisations, which intend to participate in politics in the territory of the Russian Federation by aiming to affect decisions and the state policy carried out by state agencies. Such activity both in its content and consequences it is directly aimed to goes beyond own needs of a certain nonprofit organisation, just the other way around, it evidently affects both public interests in general and rights and freedoms of all citizens, whereas by the terms of Article 18 of the Constitution of the Russian Federation, it is citizens' rights and freedoms that determine the meaning, content and application of laws, the functioning of legislative and executive branches, local governments and they are provided by justice.
On this basis, binding nonprofit organisations, which receive foreign funding and participate in politics in the territory of the Russian Federation, to declare themselves in notification mode to be nonprofit organisations that perform functions of a foreign agent, by implication of Articles 2, 18, 24 (Part 2), 29 (Part 4) and 30 (Part 1) of the Constitution of the Russian Federation cannot be considered as incompatible with constitutional goals and values, inasmuch as it is directed to building awareness of all concerned parties about participation of foreign subjects (states, organisations or individuals) in providing monetary and (or) other material support for nonprofit organisations that take part in political activities intended to affect the content of the decisions public authorities make, and the state policy they conduct, as well as to influence forming respective public opinion» (Paragraph 2, Item 3.2).
Meanwhile, analysis of international acts, national legislation and existing law enforcement practice allows to draw the following conclusions.
In the first place, in the state arsenal there already existed necessary and sufficient mechanisms to control and supervise the functioning of nonprofit organisations and ensure the transparency principle concerning their activities. Even before the legal provisions under examination had been adopted, the Russian Federation legislation provided for many both general and special efficient control and supervision mechanisms that allowed to regulate activity of nonprofit organisations. For example, provisions of Article 32 of the Federal Law «About Nonprofit
Organisations»1 and Articles 42, 44 of the Federal Law «About Public Associations»2 make it possible to control all charter and financial activities of nonprofit organisations, and in case of infringements provide for proportionate measures aimed to bring law-defying entities to responsibility up to suspension of their operations and their subsequent liquidation. Similar consequences are implied by Article 17 of the Federal Law dated 26 December, 2008 № 294-FZ «About protection of rights of legal entities and individual entrepreneurs under exercising the state control (supervision) and municipal control». The referenced Article mentions cases when certain activity of the legal entity presents immediate threat of causing harm to life or health of citizens, harm to animals, plants, environment, objects of cultural heritage (historical and cultural monuments) of the peoples inhabiting the Russian Federation, national safety, provoking emergency conditions of natural and technogenic types, or when such harm was caused, i.e. for constitutionally significant purposes. Article 6 of the Federal Law dated 07 August, 2001 № 115-FZ «About countering legalisation of criminal incomes (the money laundering) and funding terrorism» additionally provides for mandatory control on the part of the Federal Agency in charge of financial monitoring such procedures that concern the cases when a nonprofit organisation receives monetary funds and (or) other property from a foreign state, international and foreign organisations, foreign citizens and (or) persons destitute of nationality, if the amount of a specific operation equals or exceeds 200,000 roubles, or is equivalent of this amount in a foreign currency.
In the second place, there is little doubt that in actual practice the imposed restrictions are aimed at quite different goals. Their main purpose is to ensure an additional financial state control over nonprofit organisations, and their use has an obvious restraining effect (in other words, they freeze activity of nonprofit organisations), since these restrictions result in laying a considerable additional burden on nonprofit organisations in the form of expensive obligatory annual audits, frequent scheduled inspections and additional grounds for unscheduled inspections.
For this very reason we are inclined to believe that the registration of nonprofit organisations that receive funding from foreign sources as entities performing functions of a foreign agent, and the consequent applying of burdensome measures towards them is nothing but a direct infringement of Article 13 of the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
Finally, in the third place, it appears that in a legal, democratic society the declared by the legislator necessity to ensure transparency of activity and public control is desirable not only for certain nonprofit organisations, but for all social institutions without distinction. Herewith, such transparency per se does not have a constitutional significance that would account for introducing additional constraints
1 Federal'nyi zakon ot 12 yanvarya 1996 goda № 7-FZ «O nekommercheskih organizaciyah». [The Federal Law dated 12 January, 1996 №. 7-FZ «About Nonprofit Organisations»]
2 Federal'nyi zakon ot 19 maya 1995 goda № 82-FZ «Ob obschestvennyh ob'edineniyah». [The Federal Law dated 19 May, 1995 № 82-FZ «About Public Associations»]
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on exercising constitutional rights and freedoms by citizens united in nonprofit organisations. This deduction is supported by the preliminary conclusion made by the European Commission for Democracy through Law, usually referred to as the Venice Commission, and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE/ODIHR) after they examined identical legal provisions of the Kirghiz Republic1.
The court declared the formulations of legislation to be precise and clear, but as it turned out, not sufficiently, and to all
Such constitutional principles of the law-governed state as the principles of equality and justice account for requirements of certainty, clarity and unambiguousness of the legal norm that the legislator must follow. According to these principles, the legal norm is also to accord with the system of the legal regulation in force. In order to implement the principle of legal equality, it is specially important to ensure obligatory compliance of the legal provisions that affect rights and freedoms of citizens with the requirements that legal norms shall be formally specific and coherent with the system of legal regulation in force. This can be achieved only under the condition that such norms are understood and interpreted consistently. In case legal provisions do not meet the requirements of uniformity, clarity and coherence, they give rise to contradictory law enforcement practices, leave room for an ambiguous interpretation and arbitrary administration, hence lead to infringement of constitutional guarantees, namely the commitment of the state to protect, also by means of judicial remedies, rights, freedoms and legitimate interests of citizens, which is declared by Article 45 and Article 46, Parts 1, 2 of the Constitution of the Russian Federation.
Being an inherent element of supremacy of law, both in lawmaking and in law enforcement practice, the principle of formal certainty of law provides a necessary guarantee of ensuring efficient protection from arbitrary prosecutions, sentences and penalties. In compliance with the position of the European Court of Human Rights, the laws that define procedures designed to secure the right to form associations, which is guaranteed by Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (usually referred to as the European Convention on Human Rights (ECHR), including the procedures that regulate registration of public organisations, must be comprehensible and predictive in the sense of the consequences they carry, they shall neither be too vague, nor grant the authorities with excessively broad discretionary powers when making the decision about registrability of an individual public organisation (Case from 3 April, 2008 «Koretskyy and Others v. Ukraine»2).
On the grounds of these fundamental ideas and cited disputed provisions of
1 Paragraph 56 of the Joint Preliminary Conclusion adopted by the European Commission for Democracy through Law and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE/ODIHR) at the 96-th plenary session (Venice, 11-12 October, 2013).
2 Refusal to register a non-governmental association based on a broad interpretation of vague legal provisions: violation (Koretskyy and Others v. Ukraine) // ECHR Case-Law Information Note. - 2008. -№ 107. - P. 7.
Victor Mikhailov Critical analysis of the position of the Constitutional Court on the criteria of registering a nonprofit organization as a foreign agent
the Federal Laws «About Nonprofit Organisations» and «About Public Associations», the Constitutional Court in its Decree draws an unexpected (in the author's opinion) conclusion that the concept of a nonprofit organisation performing functions of a foreign agent and the characteristic features, used to define the given concept, including indicating that the organisation participates in political activities, cannot be considered as not satisfying the constitutional requirements to the quality of law. In addition, this conclusion was strengthened by referring to the Decree of the European Court of Human Rights (ECHR) dated 21 June, 2007 (Case «Zhechev v. Bulgaria»1), where it is assumed that the concept "political activity" can be considered as consistent with the principle of legality, if its content is sufficiently disclosed by the national legislation.
In our opinion the abovementioned criteria do not fully apply to the provisions, against which there were made complaints to the Constitutional Court of the Russian Federation and which are examined in the present article. It concerns both concept definitions, i.e. «receiving by a nonprofit organisation funds from a foreign source», and «participation in political activity», whereas their simultaneous existence is necessary to state that some nonprofit organisation performs functions of a foreign agent.
According to provisions of these norms, a nonprofit organisation, which intends to operate as an organisation performing functions of a foreign agent after state registration, is obliged to submit to the authorized agency an application about it being included in the legally provided special register, at that it is obliged to do it before it begins to perform such an activity (Article 32, Para 7). Herewith, a nonprofit organisation performing functions of a foreign agent means a Russian nonprofit organisation, which receives monetary funds and other property from foreign states, their state agencies, international and foreign organisations, foreign citizens, persons destitute of nationality, or from persons authorised by the listed persons and (or) from such Russian legal entities that receive monetary funds and other property from the said sources (except open joint stock corporations with state participation and their associated companies), and which participates in political activities carried out in the territory of the Russian Federation, including in the interests of foreign sources.
The Law under analysis does not specify, which exactly funds received from abroad should be considered as «funds received from a foreign source», neither it specifies certain conditions of such financial receipts, like if they are nonrecurrent or recurrent receipts of funds, what is the fund to be used for, or the volume of receipts. Moreover, to recognise a nonprofit organisation as the one performing functions of an agent (which will result in imposing additional duties and limitations), the Law does not require that the monetary funds or other property received by the given organisation were spent on specific actions that could qualify as participation in political activities. Neither does the Law specify the minimum level of the foreign funding.
Because of this lack of specificity, very different kinds of receipts can be qualified
1 Refusal to register association on the ground that its aims were «political» and incompatible with the Constitution: violation (Zhechev v. Bulgaria) // ECHR Case-Law Information Note. - 2007. - № 98 -P. 37.
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as funds received from a foreign source: it can be either regular special-purpose grants from a foreign organisation, including international organisations, in which Russia is also a full participant, or getting a one-time prize for some past achievement in various fields, when the receiver is not supposed to do anything in return, or, pari passu, any insignificant amount (token money) transferred by any person with a foreign citizenship, including persons with dual citizenship, or, taking into account even more ambiguous concept «and other property», this category can include something like an office equipment article, a lapel badge or just a small souvenir.
In other words, in the absence of concise indications of the Law as of sources of finance, minimum level of such funding, use of the foreign funding in the interests of the principal, that is when to apply the Law it is not necessary to establish the cause and effect relationship between the funds received and the political activity they were or will be used for, the given norm is subject to ambiguous interpretations and arbitrary applications, examples of which we could repeatedly see in practice.
According to the forecited Joint Conclusion of the Venetian plenary session of the European Commission for Democracy through Law and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE/ODIHR), lack of such differentiation concerning the funds received makes a negative impact on assessing proportionality of the offered interference (Para 55), hence the said Conclusion detected infringement of the values protected by Article 22 of the International Covenant on Civil and Political Rights (Para 21).
Contrary to the position of the Constitutional Court, it appears that the concept of «participation in political activity» is no less vague and inaccurate. Article 2, Para 6 of the Federal Law dated 12 January, 1996 № 7-FZ interprets this concept as participation (including that by means of sponsorship) in organising and carrying out political actions or forming public opinion so that they can influence the state agencies while they are making the decisions aimed to change the state policy they conduct.
Here the wording used to define the political activity is so indistinct and vague, that it allows to include into this category practically any activity in the sphere of social life, which is characteristic of most nonprofit organisations, and practically of all organisations engaged in rights advocating activity. Consequently, nonprofit organisations face the situation, when the concept is interpreted so broadly that it includes practically any action carried out with participation of any nonprofit organisation that has ever received something from a foreign source, while the judgment is rendered from solely subjective perception of a certain law enforcement body. It is evident both from studying the complaints of those who appealed to the Constitutional Court of the Russian Federation, and from an ambiguous practice of administering the legal provisions under examination.
By the way, the cited above Conclusion of the Venetian plenary session of the European Commission for Democracy through Law and OSCE/ODIHR (Para 51) admits that including the concept of «political activity» in the Law by itself vests public authorities with unduly broad discretionary powers in classifying an activity of the nonprofit organisation as «political».
The disputed legal provisions oblige to use as a qualificatory attribute if the
Victor Mikhailov Critical analysis of the position of the Constitutional Court on the criteria of registering a nonprofit organization as a foreign agent
nonprofit organisation makes an impact on the state agencies in the process of their adopting acts aimed to change their current state policy. Meanwhile this qualificatory attribute allows to declare a foreign agent any nonprofit organisation, which expresses opinions or proposals that are critical or even partially inconsistent with the position of state agencies. Moreover, by approbation of the Constitutional Court (Paragraph 7 Item 3.3. of the Decree) it is not to be considered, where and how such an opinion will be expressed, whether it be: an official appeal or submitting a legislative proposal directly to the public authority agency, publishing an article or posting information in mass media or the Internet, shouting slogans or giving a speech at a public event, as well as voicing one's position during any open meeting (conferences, panel discussions, etc.), in which there was present a civil servant, who visited the event, possibly without being specially invited (maybe he even visited the event for provocation purposes).
Furthermore, when such an attitude is assumed, these legal provisions go against the tolerance principle developed by the European Court of Human Rights, which prescribes that public authorities should display heightened tolerance to criticisms in their address, as subsequent upon the principle of freedom of expression. At that, the freedom of expression implies that people can express not only favorable or inoffensive, insignificant information and ideas, but also information and ideas that can be considered irritating, shocking or alarming, particularly when the expressed information is of a political character. Such are the requirements of pluralism, tolerance and open-mindedness, without which no democratic society can exist.
With reference to the position of the European Commission for Democracy through Law and OSCE/ODIHR, presented in the mentioned Conclusion (Para 62), the said legal provisions, though they do not contain express prohibition against participation of nonprofit organisations acting as a foreign agent in political activity, still, without good reason or necessity in the context of a democratic society, they seriously undermine the fundamental political right of any entity to attempt to directly influence or change the state political life and politics.
At the same time, the chosen by the legislator mechanism of «the state control» over such nonprofit organisations performing function of a foreign agent1, that aim to act as rights advocates, also comes into explicit contradiction with Article 6 of the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. The said Article reads as follows:
«Everyone has the right, individually and in association with others:
(a) To know, seek, obtain, receive and hold information about all human rights
1 All Russia public movement for protection of human rights «Za prava cheloveka» [For Human Rights], St. Petersburg public rights advocates organisation «Grazhdanskii kontrol» [«Citizens Control»], Fund of advocating protection of rights and freedoms of citizens «Obschestvennyi verdikt» [«Public Verdict»], Interregional public organisation «Komitet protiv pytok» [«Committee Against Investigative Tortures»]; All Russia public organisation «Komitet soldatskih materei Rossii» [«Committee Of Soldiers' Mothers of Russia»], Rights Advocates Centre «Memorial» ["Memorial"], Regional Public Rights Advocates Organisation «Soyuz «Zhenschiny Dona» [«Union «Women of the Don»], St. Petersburg rights advocates public organisation «Liga izbiratel'nic» [«League of Electresses»] and others: the total number of registered nonprofit organisations (in Russian abbreviated as NKO) - 58 (at the moment of submitting the present article to publication) - http://unro.minjust.ru/NKOForeignAgent.aspx
and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters».
Considering such legislative ambiguity ofthe norms that specify the correspondent conditions and subsequent upon the imposed by these norms obligation of nonprofit organisations to register as organisations performing functions of a foreign agent, and also considering the imposed administrative responsibility for non-performance of the given obligation, while the said responsibility is not determined by the size of the received foreign funds and the purposes they are used for (for example, the purpose could be defined as «in political interests of the principal (donor, sponsor, donator) that conflict with interests of the Russian Federation), declaring a nonprofit organisation performing functions of a foreign agent can cause abusive practice and be subject to implementation on the basis of conjunctural judgments. Hence there was created a possibility of ambiguous interpretations and arbitrary applications of the given norm, which leads to infringements of constitutional guarantees of the state protection, including judicial protection of rights, freedoms and legitimate interests guaranteed by the Constitution of the Russian Federation.
Everything we have said does not stop being topical even when we take into account that there are alterations being prepared , which will be introduced into the Federal Law dated 12 January, 1996 № 7-FZ1.
It can be believed that any attempt to reverse the judgment about including nonprofit organisations into the register of organisations performing functions of a foreign agent, are obviously doomed to fail. Though it has nothing to do with either compleat professionalism of the law enforcement body, or, conversely, with possible incompetence of representatives of such nonprofit organisations.
In view of indisputability of the acts adopted by the Constitutional Court of the Russian Federation, it only remains to hope that law enforcement bodies will be judicious enough and in due course there will disappear the necessity to «oppress» the nonprofit organisations, which criticize activity of public authorities more actively than others, and therefore secure an objectively necessary to us proper societal (public, social) control over for their activity, even though they may not always function on the money received from domestic sources.
1 The Ministry of Justice of Russia set about preparing offers with regard to alteration the Federal Law «About nonprofit organisations», so that it will stipulate the procedure of exclusion a nonprofit organisation from the register of nonprofit organisations performing function of a foreign agent -http://ria.ru/society/20141126/1035313501.html
References:
1. Universal Declaration of Human Rights (UDHR) (Adopted by the United Nations General Assembly on 10 December, 1948).
2. The European Convention on Human Rights (ECHR) (Adopted in Rome on 4 November, 1950).
3. The International Covenant on Civil and Political Rights (ICCPR) (Adopted by the United Nations General Assembly on 16 December, 1966).
4. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Adopted by the United Nations General Assembly on 13 September, 1999).
5. The Joint Preliminary Conclusion of the European Commission for Democracy through Law and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE/ODIHR) adopted at the 96-th plenary session (Venice, 11-12 October, 2013).
6. Federal'nyi zakon ot 19 maya 1995 goda №. 82-FZ «Ob obschestvennyh ob'edineniyah». [The Federal Law dated 19 May, 1995 № 82-FZ «About Public Associations»].
7. Federal'nyi zakon ot 12 yanvarya 1996 goda № 7-FZ «O nekommercheskih organizaciyah». [The Federal Law dated 12 January, 1996 № 7-FZ «About Nonprofit Organisations»].
8. Federal'nyi zakon ot 07 avgusta 2001 goda № 115-FZ «O protivodeistvii legalizacii (otmyvaniyu) dohodov, poluchennyh prestupnym putem, i finansirovaniyu terrorizma» [Federal Law dated 07 August, 2001 № 115-FZ «About countering legalisation of criminal incomes (the money laundering) and funding terrorism»].
9. Federal'nyi zakon ot 26 dekabrya 2008 goda № 294-FZ «O zaschite prav yuridicheskih lic i individual'nyh predprinimatelei pri osuschestvlenii gosudarstvennogo kontrolya (nadzora) i municipal'nogo kontrolya» [The Federal Law dated 26 December, 2008 № 294-FZ «About protection of rights of legal entities and individual entrepreneurs under exercising the state control (supervision) and municipal control»].
10. Postanovlenie Konstitucionnogo Suda Rossiiskoi Federacii ot 8 aprelya 2014 goda № 10 «Po delu o proverke konstitucionnosti polojenii punkta 6 stat'i 2 i punkta 7 stat'i 32 Federal'nogo zakona «O nekommercheskih organizaciyah», chasti shestoi stat'i 29 Federal'nogo zakona «Ob obschestvennyh ob'edineniyah» i chasti 1 stat'i 19.34 Kodeksa Rossiiskoi Federacii ob administrativnyh pravonarusheniyah v svyazi s zhalobami Upolnomochennogo po pravam cheloveka v Rossiiskoi Federacii, fonda «Kostromskoi centr podderzhki obschestvennyh iniciativ», grazhdan L.G. Kuz'minoi, S.M. Smirenskogo i V.P. Yukecheva» [The Constitutional Court of the Russian Federation Decree dd 8 April, 2014 № 10 «With regard to the case about examining the constitutionality of provisions of Article 2, Para 6 and Article 32, Para 7 of the Federal Law «About Nonprofit Organisations», parts of Article 6 of Federal Law 29 «About Public Associations» and Article 19.34, Part 1 of the Code of Laws of the Russian
Federation about acts punishable under administrative law in connection with complaints of the Human Rights Commissioner in the Russian Federation, fund «Kostromskoy Centre of Supporting Public Initiatives», citizens L.G. Kuzmina, S.M. Smirensky and V.P. Yukechev»].
11. Mikhailov V.K. Pravozaschitnik - agent ili net? Nepredvzyatyi vzglyad iznutri // Pravo i sovremennye gosudarstva. - 2013. - № 4. [The Rights Advocate - an Agent or not? Impartial Outward Glance // Law and Modern States].
12. Refusal to register a non-governmental association based on a broad interpretation of vague legal provisions: violation (Koretskyy and Others v. Ukraine) // ECHR Case-Law Information Note. - 2008. - № 107.
13. Refusal to register association on the ground that its aims were «political» and incompatible with the Constitution: violation (Zhechev v. Bulgaria) // ECHR Case-Law Information Note. - 2007. - №. 98.
