Russia: 'Common Attitude Of Suspicion' Behind NGO Struggles

Radio Free Europe/Radio Liberty
Prague - In January, Manana Aslamazyan was detained at Moscow's Sheremetyevo Airport for failing to declare nearly 10,000 euros she was carrying from Paris. Aslamazyan, who heads the Educated Media Foundation (formerly Internews), a Russian nongovernmental agency focused on journalist training, now faces smuggling charges. She has resigned from her post, and the future of her U.S.-funded NGO is unclear. Aslamazyan, who is currently in Paris, spoke to RFE/RL Russian Service correspondent Andrei Shary about her case, which comes amid a continued crackdown on NGOs and media groups in Russia.

RFE/RL: A source in the Interior Ministry has been cited as saying the investigation is essentially completed and that charges of contraband will be brought against you. It also says you are located on U.S. territory and have failed to appear for questioning despite numerous summons. Is this true?

Manana Aslamazyan: I haven't received any summons. I know that my attorney spoke with the investigator once. He was told that I was required to appear for questioning, and reasonably replied that I'm not in Russia. I'm not in the United States; I'm currently in Paris. I sent a letter to the investigative committee that says where I am and how to contact me.

RFE/RL: Smuggling contraband sounds like a serious charge.

Aslamazyan: According to Part 1 of Article 188 of the Penal Code, the charges are punishable by a fine, the confiscation of all funds transported, probation, or a prison sentence of one to five years. I know all of this now, having familiarized myself with it. I'm absolutely certain that my guilt is negligible.

Recently there was a Supreme Court decree -- if I understand it correctly -- defining contraband as the discrepancy between funds authorized but not declared, and the actual amount of transported funds. By this standard, my entire contraband consists of about $2,000. It's clear that I will have to accept some punishment, but it should be minimal. I assume that it will be a fine.

RFE/RL: Your letter of resignation from the Educated Media Foundation was quite heartfelt. Are you sad to leave a position you've held for 10 years?

Aslamazyan: I think that there will be some kind of a happy ending. But I have to keep going and make a living. I suspect that it will be difficult for me to find work in Russia if the foundation shuts down, given my current public image. So I decided to take advantage of an offer to work at an international organization. If we manage to preserve the foundation, I'll be happy to return to it.

RFE/RL: Where will you be working?

Aslamazyan: It's an international social organization called Internews Network. It has representatives in different parts of the world. I'll be a consultant for different projects in different countries.

RFE/RL: Can you explain how what appears to be a relatively minor offense escalated into a campaign that brought about the closure of Educated Media?

Aslamazyan: It seems that there's a common attitude of suspicion toward nonprofit organizations financed abroad. We fell victim to this attitude. But we clearly worked within the legal structure of the Russian Federation, and we were extremely careful and accurate with all our documents and the registration of our funding.

All the international resources we received and spent were received with the authorization of the Russian government, and went through special government commissions that exempt these resources from taxation. They certainly knew the nature of our work. We kept regular records. All of them have been filed with these commissions. It seems to me that they're simply mistaken. I want to think that some groundless suspicion arose. It's a mistake, and it will soon be resolved.

RFE/RL: Do you ever suspect that the steps taken against your foundation are meant to frighten people working in the civil-society sector?

Aslamazyan: I don't think that this would be useful for us. Civil society is a society with different points of view, in which citizens trust their government and the government trusts its citizens. Civil society is a society in which there has to be a strong media that both the government and the people trust. This is what we were working on. So from this point of view, I don't think that what is happening around us is sensible or effective for the country.

Concerning what frightens me, when you read endless reports in newspapers about a man jailed for giving a mechanic a 100-ruble bribe just because he happened to fall into the middle of a campaign to clean up the ranks of the Government Automobile Inspection, then you start to wonder if they're making an example of you. So I'm scared. I've been working for a long time, and I've always had a flawless reputation. I don't want to become an example.

RFE/RL: What is stronger in Russia, the government or the people?
Aslamazyan: The governmental apparatus is certainly getting stronger; everyone is talking about it. Unfortunately, I'd say the citizens are undermotivated. They take offense, they feel bad, but they never do anything to help one another. This failure to take initiative is a very sad feature of our contemporary society. It touches everything: homeless children as well as homeless dogs, trees collapsed around houses, everything in the world. I’m not taking about political things, I’m talking about failure to take initiative in the most ordinary sense of the word. The government is obviously stronger. But I think it would be wiser if it trusted its citizens more

© Russia Profile.org 2007

Update

During the past year, restrictions on the legal environment for civic engagement in Russia came into effect. Effective April 16, 2006, four Russian laws [The 1992 Law #3297-1 “On Closed Administrative Territories,” the 1995 Law #82-FZ “On Public Associations,” the 1996 Law#7-FZ “On Noncommercial Organizations,” and the 1994 Civil Code. In addition, several laws were nullified by the new law] were amended under a law that was enacted by the Parliament and signed by President Putin in January. The new legislation sets forth onerous and highly vague and subjective registration and reporting requirements for foreign NPOs operating in Russia (through legal entities known as “representative offices” or “branches”), including the requirement to register with the newly-created Federal Registration Service of the Ministry of Justice (the “FRS”) by October 17, 2006. All foreign NPOs not registered by this deadline were required to stop all activity until registration was accomplished (some are still under suspension while awaiting decisions on their registration applications). While registration in and of itself is not unusual by international standards, the Russian legislation is highly vague and ambiguous, and in practice has been subject to varying interpretations by the FRS functionaries who review and approve or deny applications for registration, leading to confusion among NPOs trying to comply and corruption among some FRS functionaries, who are taking the opportunity to demand bribes from NPOs in order to approve their applications. While most foreign NPOs have managed (some at great expense) to be registered, a conspicuous few have been rejected repeatedly by the FRS for dubious reasons – virtually all of these rejected NPOs operate in the human rights sector in Chechnya, raising the concern that they are being rejected for political reasons. Further, the new annual reporting requirements for foreign NPOs operating in Russia (and Russian domestic NPOs as well) mandate that highly detailed information be provided to the FRS, including all sources of the NPO’s income (including individual donors’ names and addresses, which raises fears of retribution among those who donate to causes that the government does not favor, such as religious minorities or democratization movements), how each contribution was spent (with a prohibition on using foreign income for anything “political”, although that term is not defined and is assumed to be given very wide swath), and an exact schedule of all of the upcoming year’s meetings, events, or other activities, to which the government is entitled to send a representative (presumably without prior notice). The requirement for prior notice of all events effectively prohibits organizations from responding quickly to current events, such as by holding press conferences in response to human rights violations, since such an event will not have been included on the annual report.. . It is highly noteworthy that while the new law sets forth various grounds on which the FRS may deny a foreign NPO’s registration, one such ground is so vague as to provide virtually unfettered discretion to deny registration: registration may be denied if the “goals and objectives of the foreign [NPO]’s branch or representative office may create a threat to the sovereignty, political independence, territorial integrity, national unity, unique character, cultural heritage and national interests of the Russian Federation.” Absolutely no definitions or guidelines whatsoever are provided with respect to this part of the statute. As of December 31, the Federal Registration Service had granted re-registration to about 200 of the estimated 350-400 foreign NPOs currently operating in Russia. The latest controversy is similar to an earlier one that arose in response to the re-registration provision of the 1995 Law on Non-commercial Organizations. In March 2006, the European Court of Human Rights delivered a judgment of admissibility in the case Sutyajnik v.Russia. The NPO “Sutyajnik” had sought re-registration under the 1995 law, which was eventually denied, and this case results from an appeal with regard to decisions of Russian courts denying the registration. [Sutyajnik v. Russia, Eur. Ct. H.R. http://www.sutyajnik.ru/rus/cases/sutyajnik_v_russia/decision.html ]

Non-Governmental & Not-For-Profit Organizations

Non-Governmental & Not-For-Profit Organizations

Human Rights Organization Denied Reregistration

FYI, on the heels of the below message, on Nov. 15, my client, an active human rights organization funded in part by the UN
HCR), was denied registration by the Federal Registration Service. The stated grounds were that there were three technical problems with their paperwork (e.g., that the executive director of the foreign NGO had filed the papers instead of the local executive director (which does not
violate any existing rule or guideline)). There are two problems with the given reasons for rejection: first, two of the three stated reasons for rejection had been thoroughly discussed during a meeting between that organization and the FRS, and the FRS had agreed that the submitted corrections
were sufficient to fix the problems; the third stated reason was never brought up during the meeting (all problems with the filing are supposed to be addressed during such a meeting) and as I noted above, is not a requirement anyway. The second major problem here is that the rejection took place just a few days after that organization had been recognized in the foreign media for its activities in Russia. Interesting timing.

For the time being, the organization is maintaining that this rejection is due purely to bureaucracy, not political motives, and they are re-applying. In the meantime, their organization is effectively shut down -- it can continue to pay rent and pay employees, but is not allowed to do any outside activities (i.e., their human rights work in Chechnya).

I note that I am aware of other organizations who submitted papers to the FRS with the same alleged "problems" in the paperwork that ostensibly caused this organization's rejection, and those organizations (which do non-controversial work) were granted registration.

We do not wish at this point to make a big deal out of this, since the organization is re-applying and hopes to be registered based on the new application. However, this rejection an active human rights group in Russia is causing considerable worry among the NGO community.

Best regards,

Decisions of European Court of Human Rights

Here is a link to the decision of the European Court of Human Rights last March and a short description of their decision involving a Russian human rights organization that was denied re-registration, followed by excerpts from the Salvation Army decision handed down by the ECHR last month.


Note: In March 2006 the European Court found admissible on the merits the case of Sutyajnik v. Russia, which involves the refusal of the Ministry of Justice to re-register a human rights not-for-profit association under a 1995 law requiring all such organizations to re-register or be dissolved. A decision in this case may be imminent. The decision on admissibility is available at www.sutyajnik.ru/rus/cases/sutyajnik_v_russia/decision.html




THE MOSCOW BRANCH OF THE SALVATION ARMY v. RUSSIA
JUDGMENT, STRASBOURG, 5 October 2006

PROCEDURE . . . .
19. The applicant complained, in particular, about the domestic authorities' refusal of its application for re-registration as a legal entity. . . .
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
20. The Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee, doc. 9396, 26 March 2002) on the honouring of obligations and commitments by the Russian Federation stated in its relevant part as follows:
"95. The Russian Constitution safeguards freedom of conscience and of religion (article 28); the equality of religious associations before the law and the separation of church and state (article 14), and offers protection against discrimination based on religion (article 19). The law on freedom of religion of December 1990 has led to a considerable renewal of religious activities in Russia. . . . It was replaced on 26 September 1997 by a new federal law on freedom of conscience and religious associations. This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions.
96. . . . In February 2001, the Ombudsman on Human Rights, Oleg Mironov, also acknowledged that many articles of the 1997 law 'On Freedom of Conscience and Religious Associations' do not meet Russia's international obligations on human rights. According to him, some of its clauses have led to discrimination against different religious faiths and should therefore be amended. . . .
99. The registration process was finally completed on 1 January 2001 as the State Duma decided to extend the deadline twice. About 12 000 religious organisations and groups have been registered, and only 200 were refused their registration, most of them because they failed to produce a complete file. Many others have, for a variety of reasons, failed to register. The Minister of Justice, Mr Chaika strongly rejected allegations that the Orthodox Church had exerted pressure on the Ministry to prevent some religious organisations from obtaining their registration. Mr Chaika also indicated that experts of the Ministry had 'closely examined' the status of the Salvation Army and the Jehovah's Witnesses, and had come to the conclusion that nothing prevented [their] registration at the federal level.
100. The Salvation Army, which feeds around 6,000 Russians every month in the winter, has had to waste tens of thousands of dollars in legal fights over registration, and the Catholic church (as well as the Jewish community) has had trouble getting visas for its foreign clergy. Some other religious organisations have also been prevented from being registered at the local level: the Adventist Church, the Pentecostal Church, the Baptists, the Evangelist Church and other churches in particular in Tatarstan, in the region of Rostov and in Vladimir oblast. These religious organisations also voiced complaints that they had serious difficulties to settle, to build or buy their places of worship, or to recover confiscated properties. Some among them – e.g. the True Orthodox Church, the Union of Evangelists Pentecotists – have claimed that they suffered from repeated harassment by the authorities.
101. Indeed, there have been cases where, even if a religious organisation had re-registered nationally, local authorities created obstacles...
103. Although on 22 February 2001, the Russian Justice Ministry finally re-registered the Salvation Army in Russia, at federal level, registration had been constantly denied to the Moscow chapter of this religious organisation by the Chief Directorate of the Ministry of Justice in Moscow, and appeals to the various courts in Moscow failed. Moreover, in April 2001, dissolution procedures were put in place to close down Salvation Army Corps and social programs within Moscow, and on 11 September 2001 the Tagansk[iy] intermunicipal court ruled that the Moscow chapter was subject to dissolution on the basis of article 27 of the 1997 federal law. (It provides for the dissolution of the legal entity that did not reregister by the 31 December 2000 deadline.)
104. The co-rapporteurs are very surprised and puzzled by the decision to ban the operations of the Salvation Army in Moscow, and they would highly appreciate the clarification of this matter by the Russian authorities. In this respect, they refer to the Monitoring Committee's call on Russia of 6 September 2001 to ensure that the Salvation Army enjoys the same rights as it has in other member states of the Council of Europe, including the right to be registered in Moscow. During their fact-finding visit in November 2001, the co-rapporteurs used every opportunity to stress the need for a solution, and the potential embarrassment this problem may cause for Russia."
21. Resolution 1277 (2002) on the honouring of obligations and commitments by the Russian Federation adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted as follows:
"8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities: . . . .
xiv. the Assembly regrets the problems of the Salvation Army and Jehovah's Witnesses in Moscow, but welcomes the decision of the Russian authorities to ensure that the problem of local discrimination and harassment of these religious communities be brought to an end; ..."
22. Resolution 1278 (2002) on Russia's law on religion, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted, in particular, the following:
"[ T]he Assembly recommends to the Russian authorities that:
i. the law on religion be more uniformly applied throughout the Russian Federation, . . . and in particular their insisting in certain districts that religious organisations obtain prior agreement for their activities from the Russian Orthodox Church;
ii. the federal Ministry of Justice become more proactive in resolving disputes between its local/regional officials and religious organisations before disputes are brought before the courts . . . .

THE LAW
I. ALLEGED VIOLATION OF ARTICLES 9 AND 11 OF THE CONVENTION
23. . . . . Article 9 provides as follows:
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
Article 11 provides as follows:
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others . . . ."
B. The Court's assessment
1. General principles
24. . . . Article 9 . . . is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it . . . .
25. . . . . Since religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. . . . Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. The State's duty of neutrality and impartiality, as defined in the Court's case-law, is incompatible with any power on the State's part to assess the legitimacy of religious beliefs . . . .
26. The Court further reiterates that the right to form an association is an inherent part of the right set forth in Article 11. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. . . . Certainly States have a right to satisfy themselves that an association's aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions (see Sidiropoulos and Others v. Greece . . . .
27. . . . . By virtue of the wording of the second paragraph of Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only necessity capable of justifying an interference with any of the rights enshrined in those Articles is one that may claim to spring from "democratic society" (see United Communist Party of Turkey and Others v. Turkey . . . and Refah Partisi (the Welfare Party) and Others v. Turkey . . . .)
28. While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes, including those proclaiming or teaching religion, are also important to the proper functioning of democracy. . . . .
29. The State's power to protect its institutions and citizens from associations that might jeopardise them must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a "pressing social need"; thus, the notion "necessary" does not have the flexibility of such expressions as "useful" or "desirable" (see Gorzelik, cited above, §§ 94-95, with further references). . . .
3. Existence of interference with the applicant's rights
30. . . . The Court has consistently held the view that a refusal by the domestic authorities to grant legal-entity status to an association of individuals amounts to an interference with the applicants' exercise of their right to freedom of association (see Gorzelik, cited above, § 52 et passim, and Sidiropoulos, cited above, § 31 et passim). Where the organisation of the religious community is at issue, a refusal to recognise it also constitutes interference with the applicants' right to freedom of religion under Article 9 of the Convention . . . .
31. . . . . After 6 December 2001 when it exhausted ordinary domestic remedies against the judicial decision ordering its dissolution and until that decision was quashed by way of supervisory review on 1 August 2002, the applicant branch continuously ran the risk of having its accounts frozen and its assets seized . . . . The Court accepts that that situation had an appreciably detrimental effect on its functioning and religious activities . . . . [Its] legal capacity is not identical to that of other religious organisations that obtained re-registration certificates. The Court observes that in other cases the absence of re-registration was invoked by the Russian authorities as a ground for refusing registration of amendments to the articles of association or for staying the registration of a religious newspaper (see Church of Scientology Moscow and Others v. Russia (dec.), no. 18147/02, 28 October 2004).
32. . . . .[W]here registration of such amendments was refused by the State authorities, with the result that it lost its legal-entity status, there has been an interference with the organisation's right to freedom of association . . . [and its] right to freedom of religion. . . .
4. Justification for the interference . . . .
(b) Arguments put forward in justification of the interference
33. The Court observes that the grounds for refusing re-registration of the applicant branch were not consistent throughout the domestic proceedings. While the Moscow Justice Department initially referred to an insufficient number of founding members and the absence of documents showing their lawful residence in Russia, these purported defects found no mention in the subsequent judicial decisions . . . . The allegedly paramilitary nature of the applicant's structure did not form part of the initial decision refusing re-registration and the Department put that argument forward for the first time in its comments on the applicant's claim to a court . . . . That reason was accepted by the District Court but the City Court did not consider its separate examination . . . . Finally, the argument about inconsistent indication of the applicant's religious affiliation had not been relied upon by the Justice Department and appeared for the first time in judicial decisions (ibid.) . . . .
34. In these circumstances, the Court will examine in turn two groups of arguments that were put forward for refusing the applicant's re-registration: those relating to the "foreign origin" of the applicant branch and those relating to its internal structure and its religious activities.
(i) "Foreign origin" of the applicant branch
35. The Russian authorities held that since the applicant's founders were foreign nationals, since it was subordinate to the central office in London and since it had the word "branch" in its name, it must have been a representative office of a foreign religious organisation ineligible for "re-registration" as a religious organisation under Russian law.
36. The Court observes, firstly, that the Religions Act indeed prohibited foreign nationals from being founders of Russian religious organisations. It finds, however, no reasonable and objective justification for a difference in treatment of Russian and foreign nationals as regards their ability to exercise the right to freedom of religion through participation in the life of organised religious communities.
37. Secondly, it does not appear that the presence of The Salvation Army's headquarters abroad prevented registration of the applicant as a Russian religious organisation. Section 11 § 6 of the Religions Act concerned precisely the situation where a Russian religious organisation was subordinate to the central governing body located abroad . . . . The only additional requirement in that case was the production of the certified articles of association of the foreign governing body; that circumstance was not a legal ground for refusing registration or re-registration.
38. Thirdly, under the Religions Act, the only instance in which a religious organisation's name could preclude its registration was where it was identical to the name of another registered organisation. It has not been claimed that this was the case of the applicant branch. By law, the mere presence of the word "branch" in its name was not a circumstance precluding its registration.
39. Finally, the Court notes that by the time of the events the applicant branch had existed for seven years as an independent legal entity exercising a broad range of religious rights. The Moscow Justice Department and domestic courts insisted that it should be registered as a representative office of a foreign religious organisation with the consequence that under Russian law it would not be able to have legal-entity status or to carry on its religious activities . . . . As noted above, that claim by the domestic authorities had no legal foundation. Accordingly, in the Court's assessment, it amounted to a refusal for motives of inexpediency of establishment, which had been expressly prohibited by section 12.2 of the Religions Act . . . .
40. It follows that the arguments pertaining to the applicant's alleged "foreign origin" were neither "relevant and sufficient" for refusing its re-registration, nor "prescribed by law".
(ii) Religious structure of the applicant branch
41. The District and City Courts held that the applicant branch did not set out its religious affiliation and practices in a precise manner but confusingly referred to the Evangelical faith, the faith of The Salvation Army and the Christian faith and omitted to describe all of its decisions, regulations and traditions. . . .
42. The Religions Act did not lay down any guidelines as to the manner in which the religious affiliation or denomination of an organisation should be described in its founding documents. Section 10 § 2 of the Religions Act, to which the City Court referred, merely required the indication of the organisation's faith (veroispovedanie). There was no apparent legal basis for the requirement to describe all "decisions, regulations and traditions".
43. If the applicant's description of its religious affiliation was not deemed complete, it was the national courts' task to elucidate the applicable legal requirements and thus give the applicant clear notice how to prepare the documents in order to be able to obtain re-registration (see Tsonev v. Bulgaria, no. 45963/99, § 55, 13 April 2006). This had not, however, been done. Accordingly, the Court considers that this ground for refusing registration has not been made out.
44. Further, the Moscow Justice Department alleged that the applicant branch should be denied registration as a "paramilitary organisation" because its members wore uniform and performed service and because the use of the word "army" in its name was not legitimate. The District Court endorsed that argument.
45. The Court points out that, according to its constant case-law, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate . . . . It is undisputable that for the members of the applicant branch, using ranks similar to those used in the military and wearing uniforms were particular ways of organising the internal life of their religious community and manifesting The Salvation Army's religious beliefs. It could not seriously be maintained that the applicant branch advocated a violent change of constitutional foundations or thereby undermined the integrity or security of the State. No evidence to that effect had been produced before the domestic authorities or by the Government in the Convention proceedings. It follows that the domestic findings on this point were devoid of factual basis.
46. The District Court also inferred from the applicant's articles of association that the members of the applicant branch would "inevitably break Russian law in the process of executing The Salvation Army's Orders and Regulations and the instructions of the Officer Commanding".
47. The Court reiterates that an association's programme may in certain cases conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the association's leaders and the positions they embrace (see Refah Partisi, § 101, and Partidul Comunistilor, § 56, both cited above).
48. There was no evidence before the domestic courts that in seven years of its existence the applicant branch, its members or founders had contravened any Russian law or pursued objectives other than those listed in its articles of associations, notably the advancement of the Christian faith and acts of charity. It follows that this finding by the District Court also lacked evidentiary basis and was therefore arbitrary.
(iii) Further considerations relevant for the Court's assessment
49. As noted above, by the time the re-registration requirement was introduced, the applicant branch had lawfully existed and operated in Russia as an independent religious community for more than seven years. It has not been submitted that the community as a whole or its individual members had been in breach of any domestic law or regulation governing their associative life and religious activities. In these circumstances, the Court considers that the reasons for refusing re-registration should have been particularly weighty and compelling . . . . In the present case no such reasons have been put forward by the domestic authorities.
50. It is also relevant for the Court's assessment that, unlike the applicant branch, other religious associations professing the faith of The Salvation Army have successfully obtained re-registration in Russian regions and at federal level . . . . In view of the Court's finding above that the reasons invoked by the Moscow Justice Department and endorsed by the Moscow courts to deny re-registration of the applicant branch had no legal or factual basis, it can be inferred that, in denying registration to the Moscow branch of The Salvation Army, the Moscow authorities did not act in good faith and neglected their duty of neutrality and impartiality vis-à-vis the applicant's religious community (see Metropolitan Church of Bessarabia, § 123, Hasan and Chaush, § 62, both cited above).
(c) Conclusion
51. In the light of the foregoing, the Court considers that the interference with the applicant's right to freedom of religion and association was not justified. There has therefore been a violation of Article 11 of the Convention read in the light of Article 9. . . .
A. Damage . . . .
52. The Court considers that the violation it has found must have caused the applicant non-pecuniary damage for which it awards, on an equitable basis, EUR 10,000, plus any tax that may be chargeable.

Non-Governmental & Not-For-Profit Organizations

Non-Governmental & Not-For-Profit Organizations
The final version of the Russian Legislation on Non-Governmental Organizations has been modified to limit activities of foreign NGOs (while the earlier version spoke of them only obliquely). The amendment added manjy provisions that apply only to foreign NGOs, including requiring reporting of funds brought into Russia, and special registration provisions.

The bill has been improved since its original draft, which mandated that foreign NGO's operating as just "representative offices" had to re-register as Russian NGO's (effectively meaning that no foreign NGO's could operate in Russia). The Committee is now focusing on how to contribute to the drafting of the regulations that would be used to implement the law, which is extremely general and needs a lot of fleshing out in the so-called "normative acts". These are like the U.S. Treasury Regulations that expand on the actual implementation of the IRS Code section 501(c)(3) and other statutes ruling tax-exempt nonprofits in the US. We are forming a sub-committee that can follow this issue closely.

Comments on the Russian NGO Legislation

This is a rather long piece that I am working on with Karla Simon on the NGO legislation. If you want to comment directly, I can be contacted at homer@intlawgroup.com.

Observations[*] on RF Federal Law
“On Amendment of Selected Legislative Acts of the Russian Federation”
Adopted on First Reading by RF Duma on November 23, 2005

Lauren B. Homer, Attorney at Law
International Law Group, LLC
December 1, 2005 (updated December 20)

The new NGO legislation appears to be a clumsy combination of technical improvements to existing legislation with an overlay of pointed restrictions on “foreigner” participation in Russian NGOs and on use of NGOs for purposes of political manipulation, terrorism, money laundering, and other unsavory activities. The official Explanatory Note makes clear that the primary purpose of the legislation was technical: to articulate and clarify registration procedures and related rules. However, the legislation goes well beyond this and adds a great number of new bureaucratic filing and oversight activities applicable to all Russian NGOs as well as provisions directly aimed at foreign NGO’s and individuals without Russian citizenship or permanent residence status.

The immediate political background for the restrictions on foreign influence on activities of Russian NGOs is well known: accusations that foreign NGO’s supported the recent Orange Revolution in Ukraine and unrest in Central Asian republics and may be seeking to foment political changes within Russia. These concerns are deepened by growing hostility to foreigners living in Russia, fears about domestic and international terrorism, and a desire to ensure stability by stifling political and ideological opposition to the ruling elite. However, Russian legislation already addresses foreign intervention in the political process by banning foreign contributions to political parties. It already addresses use of NGOs for “extremist” activities in the 2002 law “On Counteracting Extremist Activity” and in existing NGO legislation which provides ample grounds for refusing registration to or deregistering NGOs that engage in various types of undesirable activities. Thus, many provisions in the new legislation affecting foreigners and undesirable activities of NGOs appear unnecessary and duplicative of current legislation.

The main negatives in the legislation are as follows. (1) All associational activity in Russia must now be reported to the government, where previously filings were required only by those seeking to form a legal entity; (2) Additional burdensome bureaucratic filing requirements have been added, affecting all registered NGO’s, that give government registration bodies the right to reconsider their right to exist on an annual basis; (3) Individuals who lack Russian citizenship and permanent legal residence in Russia may not serve as founders of NGO’s, potentially disenfranchising persons who live overseas and also millions of persons who emigrated to live in Russia from other former Soviet republics but lack permanent residence papers; and (4) Foreign NGOs have numerous new restrictions, including prohibitions on operations in certain geographic regions of Russia and special grounds for denial of registration or dissolution of offices they set up in Russia.

The restrictions on rights of non-Russians clearly violate the RF Constitution and treaty obligations that give equal rights to “everyone” to engage in associational activity. Similarly, the requirement of reporting all unregistered associational activity also violates Russian laws and treaty obligations, and is incomprehensible as written. The main questions are whether these provisions will be removed before the legislation is adopted or whether they will have to be resolved through litigation.

It is unclear to this writer that some of most serious negative claims about this legislation are correct. For example, I do not think that it bars foreign NGO’s from establishing branch or representative offices in Russia or from founding Russian non-commercial organizations, as some have concluded. Indeed, I believe that they still have such rights and thus can maintain control of organizations that they establish in Russia. However, this should be clarified before the law is adopted. Also, the new legislation does not appear to prohibit foreign contributions to Russian NGO’s and does not require re-registration of all existing NGO’s, as some have asserted.

On the positive side, the legislation expands the RF Noncommercial Organizations Law by adding sections on how to register organizations under that law and clarifies its relationship to the Public Associations Law and the relationship of both laws to the Law on State Registration of Legal Entities. It creates a series of deadlines for rulings on registration that will make public officials more accountable and adds other clarifying provisions. It makes a number of other technical improvements and clarifications. Since clarification and harmonization of NGO legislation is the main stated purpose of the new law, it must be recognized that it does accomplish this to some extent. Thus the legislation is not all bad. It does appear to have been hastily thrown together, and even in these sections, there are some examples of poor drafting that should be fixed before the law is adopted. The worst part about the legislation is that its rapid approval and lack of opposition appears to signal a growing acceptance in the Duma of increasing executive power to control all aspects of Russian civil life and to stifle NGO activity.

My personal recommendations are that the main problems with the legislation could be remedied by making the following changes: (1) remove the requirement of mandatory notification of the fact of foundation and start up of public associations that will operate without state registration or require notification only if such organizations have significant membership and activities and a formal organizational structure; (2) remove the provision that foreigners and stateless persons must have legal and permanent residence status in Russia in order to serve as founders of NGOs and provisions subjecting organizations with non-Russian founders to special scrutiny in the registration process; (3) clarify that the intent of the legislation is that subsidiaries of foreign, membership-based NGO’s can be registered as “offices” of the parent organization under the Public Associations Law and that foreign NGO’s also may register branches, representative offices, or found other types of Russian noncommercial organizations (institutions, partnerships, etc.) under the Noncommercial Organizations Law; (4) omit the new requirement of filings and supervisory activities by federal registration authorities for all organizations and require them only if there are specific concerns or complaints about a particular organization.

The following is a more detailed assessment of the legislation:

The legislation amends three Russian laws: the 1992 Law “On Closed Administrative Territories,” the 1995 Law “On Public Associations,” and the 1996 Law “On Noncommercial Organizations.”

Role of Foreigners and Foreign Organizations:

Foreign NGO’s are Forbidden to Operate in Certain Parts of Russia: Foreign nonprofit organizations are flatly barred from founding or opening offices in the parts of Russia that are designated “closed administrative territories” under the 1992 law “On Closed Administrative Territories.” These are the former secret cities that contain facilities that produce nuclear and other hazardous weapons and materials. Access to them has been limited throughout the post-Soviet period due to national (and international) concerns about security for these facilities, and they receive special budget allocations and services. Russian NGOs can apparently still have offices in these areas. I am not familiar with the activities foreign NGOs have been undertaking directly in these areas, but future work in these areas would have to be through Russian public associations or noncommercial organizations. These provisions can probably be justified on national security grounds, but I do wonder what has provoked these new restrictions at this time.

Non-Russians Cannot Serve As Founders of Russian NGOs Unless They Are Permanent and Legal Residents of Russia: Currently, foreigners and stateless persons have equal rights with Russian citizens serve as founders of public associations (voluntary membership associations) and noncommercial organizations (funds, institutions, noncommercial partnerships, unions of legal entities) under the RF Constitution and both the Public Associations and Noncommercial Organizations Laws. There is no requirement that founders reside in Russia and even temporary visitors can serve as founders. The new legislation changes Article 19, Part 2, of the Public Association Law and Article 15 of the Noncommercial Organizations Law to permit only foreigners and stateless persons with “legal and permanent” residence status to serve as founders. Papers demonstrating this status must be filed as part of the registration process.

The term “permanent residence” derives, among other places, from the 2002 RF Law “On The Legal Position Of Foreign Citizens In The Russian Federation.” To attain legal permanent residence status, non-Russians must apply for and receive a residence permit, which is good for five years. In order to apply, they must have temporary legal residence status based on a visa and have already lived in Russia for five years and satisfy other criteria. It is not easy for non-Russians to become legal permanent residents. Millions of refugees from surrounding former Soviet republics live in Russia without this status as do many overseas visitors. Thus many persons who have served in the past as founders of Russian NGO’s will now be denied that right. (It is unclear in the new legislation, but possible, that currently registered NGOs that had foreign founders might have to re-register or replace them with qualified founders.) As an example, Armenians or Ukrainians living and working in Russia could not found a public association to meet the needs of their communities. Similarly, members of the Russian diaspora who live in France or the United States could not found Russian charities. The change will render dubious the standing of the many NGO’s with foreign citizens serving as founders.

Another new section added to the Noncommercial Organizations Law (Article 23, Part 5) permits regulators to refuse to register an NGO if the presence in Russia of a non-Russian founder is “undesirable.” This presumably means that, if there is a finding by immigration authorities that a single non-Russian founder should lose his or her permanent resident status during the registration process, the entire NGO registration must be denied. This is somewhat offensive but is consistent with other new restrictions in the same part of the law that look at the activities of founders, as opposed to the organization itself, as grounds for denial of registration, such as if their goals run counter to the RF Constitution or are extremist or encourage money laundering. (See also new Article 131.5 of the Commercial Organizations Law, which has similar provisions.)

The provisions denying the right to found organizations of persons without Russian citizenship or legal residence are clearly violative of Russia’s Constitution and treaty obligations that require giving the right to freedom of association to “all persons” regardless of citizenship.

These provisions also are inconsistent with other sections of the laws they amend. For example, even if this legislation is adopted, Article 1 of the Public Associations Law will still proclaim that foreigners and stateless persons “shall have equal rights with Russian citizens in the sphere or relations regulated by the present Federal Act.” Articles 46 and 47 will still permit international activity by Russian public associations but bar international participation in their formation.

Provisions on Founding of Russian NGOs by Foreign NGOs Are Changed, But Options for Establishing Organizations Controlled by Foreign NGOs Continue to be Broad Ranging. The new legislation deletes from the Public Associations Law the registration of “organizations,” “branches,” and “representative offices” of foreign NGOs. Foreign NGOs may still register “structural units—offices” (sometimes translated as “departments”) under the Public Associations Law. (Article 2, sections (1), (2), and (4)). Many U.S. based NGOs believe that this means that registration of a structural unit—office is the only form of registration permitted for a foreign NGO and that such registrations must have Russian citizens to serve as founders, causing foreign NGOs to lose control of such organizations. However, this conclusion is not necessarily correct in my opinion.

First, the amendments to Article 2 of the Public Association Law go to the trouble of explaining that a foreign NGO is an organization “established outside the Russian Federation in accordance with a foreign law.” Thus, it makes clear that when it refers to foreign NGOs it is talking about a legal entity established under foreign law. The amendments add provisions into Article 21 of the Public Associations law that registration of structural units of foreign NGOs will occur at the federal level and require submission of copies of the constituent documents of the foreign organization, a decision by its management body to register, etc. This is essentially the same information that is currently required to register a representative or branch office and the documents imply that the foreign organization is being registered, not a local Russian public association. Nothing is said in this section about having to have a list of founders. Thus, it seems to me that the changes could be interpreted merely as saying that the sole legal form under which foreign NGO’s may register under the Public Associations Law is by forming a “structural unit—office” and not a branch or representative office or a Russian organization. To me, this implies that the office is controlled by the foreign headquarters, not a board of Russian founders. This is supported by the fact that changes to Article 44 state that, if the parent foreign NGO is liquidated, the structural unit-office in Russia can be liquidated. Clearly, this anticipates that these registrations are of entities whose legal existence is dependent on that of the foreign entity and that they are not Russian membership organizations. My interpretation is that individual founders would be required only if a foreign NGO wants to help set up a Russian public association as an organization, which is by definition a membership organization.

Second, Article 47 of the Public Associations Law remains unchanged and states that “organizations, departments, branches or representative offices of foreign noncommercial nongovernmental organizations shall be created and shall operate in conformity with the present Federal Act and other Federal laws.” Therefore, I also conclude that foreign NGOs can still set up branches and representative offices under other Russian laws, but not the Public Associations Law. There is other legislation on registration of branches with the RF Registration Chamber, for example.

Third, the new legislation does not make any amendments to the Noncommercial Organization Law with respect to participation by foreign NGOs. Indeed, the new Article 131, which lays out procedures for registration, mentions submission of documents by foreign organizations in new Article 131.6. The Noncommercial Organization Law currently permits foreign NGOs to serve as founders of a range of Russian noncommercial organizations, including nonprofit partnerships, institutions, autonomous non-profit organizations, foundations, and unions of founders. They can serve as sole founders of institutions and foundations (which gives them complete control over the organization) and can join with other foreign NGOs to form nonprofit partnerships, etc. Nothing in the new legislation changes this. As indicated, Article 47 of the Public Associations Law allows creation of organizations by foreign NGOs under other RF laws. Therefore, it is my conclusion that foreign NGOs can continue to form new organizations under the Noncommercial Organizations Law.

Finally, the new legislation does not bar non-Russians from serving on boards or as officers or employees of public associations or noncommercial organizations that are founded by Russian citizens or permanent residents.

In sum, I believe that foreign NGOs can set up offices under the Public Associations Law, branches and representative offices under laws allowing such offices, and can found noncommercial institutions, etc. Also, people without Russian citizenship or permanent residence status can serve as members, officers, directors, and in other offices of various types of Russian NGOs but not as individual founders.

Funding and Support of Russian NGO Activities from Abroad is Unchanged. There is nothing in the new legislation that would to stop Russian public associations from receiving funding from abroad or from forming contractual alliances with foreign NGOs.

Provisions Requiring Mandatory Notice to the Government of Unregistered Associational Activity Are Highly Questionable: Unlike the situation in Soviet times, since 1992, there has been no requirement of state registration of organizations before citizens and non-citizens may engage in various types of associational activity. Of course, groups wanting legal entity status in order to own property or have employees must register. A new provision in Article 3 of the Public Association Law changes this. It says that “public associations formed by citizens may … operate without state registration and acquisition of legal personality but subject to mandatory notification of the fact of its foundation and start up.” (Article 2 (2) of the new legislation, emphasis added). Failure to give notice within 6 months of the enactment of the new legislation can bring about closing down of the association’s activities. There are absolutely no other provisions explaining what types of activity would fall under this requirement. For example, does it apply only to groups of people operating for a common purpose using some sort of formal document, such as a constitution or bylaws or ones that have formal membership criteria or procedures, or does it apply to any collection of people that meet regularly such as a book discussion club or a neighborhood protection committee? This provision raises many questions. The Public Associations Law regulates the area of voluntary associational activity for protection of common interests and for attainment of common objectives. In the United States and in many other countries, unincorporated or unregistered associations may exist for charitable, sports, and other types of community activities. Moreover, special laws were enacted to protect them, for example from lawsuits that made all liable personally for the activities of the unregistered association. This provision is far too vague to be enforceable or comprehensible and seems like a very bad idea.

Increased Regulatory Requirements Are Burdensome: Amendments to Articles 29 and 38 of the Public Associations Law require registered public associations to give financial information to the registration body (Ministry of Justice or other body) as well as the tax authorities and give them expanded oversight authority. Similar provisions were added to the Noncommercial Organizations Law. (Article 32, Part 4). “Repeated” failure to file is grounds to terminate the organization’s existence. The laws used to require failure to file much more limited reports over a three year period before action could be taken and also required a court procedure to take away registration. It is already burdensome enough for Russian NGOs to have to report this type of information to the tax inspection and to file frequent reports with numerous other government bodies. Now the registration bodies will also receive this information and will have the right to engage in review and comparison of this data with charter objectives. They also will be able to issue warnings, attend events held by the NGOs (meetings?), and otherwise make sure that their activities conform to their charters. Most optimistically, these provisions could be based on the assumption that the tax inspection is not capable of discerning that a noncommercial organization that derives all its income from sales of liquor is not really helping handicapped children, as promised in its charter. However, these provisions seem overly burdensome and clearly designed to permit the government to shut down organizations that it does not like. There are existing requirements that NGOs tell Russian regulators about changes to their governance documents, their location, and their officers and directors. There is also nothing per se wrong with requiring somewhat more complete periodic reports to the registration authority such as the names and addresses of officers. However, it is quite unusual to require this level of information and oversight—except in cases where the organization has done something to cause concern. These oversight provisions should not apply to all Russian NGO’s but only to those who have engaged in activity triggering closer scrutiny.

Most of The Changes Are Technical and Clarifying but More Clarification is Needed: As stated in the Explanatory Note following the legislation, the primary purpose of the law was to clarify or conform provisions in the Public Associations and Noncommercial Organizations Laws to one another and to the statute On State Registration of Legal Entities. These include provisions on documents to be filed, the process of registration, grounds for denial of registration, grounds for loss of registered status, the time table for deciding on registration, and the (very short) time table for registration bodies to notify the State Registry of Legal Entities and the new organization of the fact of registration.

Most of these provisions make sense. For example, the Noncommercial Organizations Law currently does not have its own registration provisions, and these procedures have to be inferred from other legislation. The new legislation includes in a new Article 131 procedures similar to those in the Public Association Law. The Public Associations Law, in amended Article 21, would now require the state registration body (Ministry of Justice or its branches) to send data and documents on approved organizations to the state register of legal entities and the state register of legal entities would have to list the new organization within 5 days after it gets the data and notify the registration body one day after it makes the entry. The original registration body would have to give a certificate of registration to the organization only 3 days after it receives that notice. By Russian standards, these time tables are incredibly quick and thus are good for registering organizations that have had to wait for long periods of time to learn about their registration status. Other technical changes are made in Article 17 of the Noncommercial Organizations Law stating that noncommercial partnerships can become funds or autonomous noncommercial organizations and that autonomous noncommercial organizations can become funds, but that they cannot be re-registered as public associations.

It might have been easier to create a single law on registration of the various types of NGOs. It would certainly be better to correct errors in drafting before the new legislation is adopted. For example, the proposed amendment to Article 27 of the Noncommercial Organizations Law, which lists the legal rights of such organizations, inserts a reference to unregistered noncommercial organizations, which would makes the list of legal rights applicable only to unregistered and not to registered noncommercial organizations. Clearly, the opposite was intended. This error probably crept in when provisions on oversight of unregistered organizations were hastily tacked on to the original draft.

There Will Not Be Wholesale Re-registration: Some commentators have stated that they think that the legislation requires re-registration of all existing NGO’s. However, it is expressly stated in an Explanatory Note that this is not intended. Instead, Article 4, Part 3, of the legislation places most of the transition burden for transferring registrations on the government. Charters will need to be amended to conform to the new legislation, however, under Article 4, Part 4. This continues a long Russian tradition of requiring re-registration every time the NGO laws are amended. There will be a need to clarify what sorts of organizations need to re-register. For example, do organizations with individual non-Russian founders have to re-register or just supply a new list of “founders,” do branches of foreign NGO’s registered under the Public Associations Law have to re-register or will their documents be transferred to a different registration body? There is clearly a need for administrative regulations on implementation of the law.

Conclusion

President Putin has reportedly ordered the draftsmen to take another look at this law. As indicated above, much could be improved simply by taking out the limitations on rights of individual founders who are not Russian citizens or legal residents and the provisions requiring mandatory notice of unregistered associational activity. From the perspective of foreign NGO’s, clarification of the intent of the changes confirming that foreign NGO’s may still register and control structural units—offices, branches, representative offices, and found Russian noncommercial organizations, all without individual founders who are Russian citizens or permanent residents, will go far to removing objections to the legislation. Finally, reconsideration of the new bureaucratic oversight and fixing of various errors and inconsistencies in the legislation is needed prior to passage.

[*] Please note that these are preliminary conclusions based on a fairly rough translation of the draft dated October 28, 2005. I cannot confirm whether this is the exact version as adopted by the Duma on its first reading on November 23, 2005.

European Parliament