Vladimir Novitski, President of the ISHR-Section Russia: "People have rights and the right to defend them"

Interview and opinion on Russia's new NGO law

December 2012




Vladimir Novitski, President of the Russian Section of the International Society for Human Rights

On 21 November 2012, after Foreign Agent Laws were coming into effect, all politically engaged non-profit organisations - NGOs - with sponsors from abroad, must now include the term "Foreign Agent" in their official documents.

They need to introduce an additional duty to report, and they need to undergo obligatory audits, regardless of their budget.

Public authorities are bound to introduce special records for such organisations.

It does not matter whether the organisation has received one Dollar or one Cent, or whether the sponsor or contributor is a foreign State, an international organisation (even if Russia is its member), a foreigner or a stateless person.

According to Law, political activity is defined as participation (including financing) in the organisation as well as political actions trying to influence State decisions, trying to alter such decisions or trying to shape public opinion.

This law has added fundamental changes to the laws "of non-profit organisations" and "of social organisations" and shall provide: "Material published by non-profit organisations, functioning as Foreign Agents, and / or material, distributed by them via media or internet, must be labelled as follows: Material distributed by non profit organisations, hold the function of an "Foreign Agent".

Failure to comply with these demands will have severe consequences for NGOs and for their chairmen, including shutdown of such NGOs.

Mr Vladimir Novitski, President of the Russian Section of the International Society for Human Rights (ISHR) and Lawyer, explains if this law is consistent with generally recognised rules and what impact it will have on NGOs.

- Mr. Novitski, the law has not yet come into effect, but the media has already written about checking on activities by Foreign Agents, e. g. the Moscow Helsinki Group, the human rights group "Memorial", Transparency International et cetera. To what extent is this legal?

V. N.: If we are talking about the introduction of such an un-judicial term such as Foreign Agent, I want to point out the clear political character of this passed law.  It did not arise out of inner necessity.  Obviously, this law aims to restrict independent civic interest groups as well as political explanations and speeches by non profit organisations.

As an abstract concept, "Foreign Agent" sounds neutral; however, Russia's traditions make this term appear negatively. A foreign agent is a spy, an executor of foreign will.  Among the nation, this term has always caused a negative reaction, during the reign of tsars or in today's post soviet Russia, as "Foreign Masters' Servants"

- Were such servants non profit organisations, who received or still receive money by international or foreign aid founds?

I do not think so. No single foreign aid found has ever imposed its will of its political lobbyists or the sponsor's national interest to any organisation, e. g. the Moscow Helsinki Group, the movement "For Human Rights".

Neither International organisations nor private foundations that supported independent civil liberty organisations as well as human rights organisations have pursued such an objective.  I do not know of any grants that were positioned to undermine the Russian State, to bring about an illegal change of power, to criticize wrongfully acts of national institutions or civil servants.

On the contrary - all furthering activities by the EU, OSCE, or other private or international funds in Russia position themselves on development of a civil society, legal protection of minority rights (religious, ethnic, etc.), support of independent media, performing different non profit social tasks.

This means that all human rights organisations have, without a doubt, contributed to the creation of civic structures, to the formation of factual opinion of processes taking place in Russia.  They contributed to the rights of the poor, needy, senior citizens, families with many children, orphans, prisoners, and minorities.  This means, they have contributed to strengthening civil society.

All levels of NGOs stayed out of the organisation for public election supervision, they professionally evaluated, e. g. the association "Protection of Voter's Rights - Golos" (The Voice).

Now we look at the term "political activity".  According to the law of Foreign Agents, every action group of NGOs could fall into it, as every public action always has a direct or indirect influence on public opinion.  Therefore, it can influence, directly or indirectly, decision making processes by the authorities, provided the government listens to its citizens.

This is why all kind of non profit activity is by now politically motivated, as the task of any civil liberty organisation or human rights organisation is the independent evaluation of government's handling of civic and human rights dealings, no matter the level.  Organisations try to influence judgements of these structures or on decision making of the average citizen as well as on the structures themselves.

That is why there was no real necessity for introducing the term "Foreign Agent".

- What do you think - is this a demonstration of power, or vice versa, a sign of weakness of the authorities, the failure of supervising activities of NGOs?

VN:  As for now, this law will have a demonstrative preventive character.  But under certain constellations on government's side, in combination with absolute vague phrasing in this new Treason Act, the independent democratic process could be blocked, civil society could be destroyed, and political lawsuit against civil rights activists could be initiated.

This is why, these laws conflict with the Constitution of the Russian Federation.  They diminish the sense in regards of citizens' rights and freedom.  Consequently, NGOs as well as other interested people have all reason to address the Constitutional Court of the Russian Federation as well as international courts.

- In which countries do similar restrictions apply?

VN: In the 1930s, there were similar dealings in the USA against Nazi Germany. After fascists in the USA established a broad base of action, appropriate laws were passed.  Accordingly, such organisations that were financially sponsored from Nazi Germany had to be registered additionally. However, the law was in effect only for a short period of time, it was an effort during the McCarthy period in post World War II.  Since then, 70 years have passed and it is simply unacceptable to refer to it to the passage of laws in today's democratic Russia.

- But it is hard to believe that NGOs would stand a chance against the State in court.

VN: You would still have to contest concrete incidences of violated rights of NGOs.  And if the local justice would not react accordingly, one would have to address the European Court of Human Rights.  This would be; by the way, absolutely appropriate as Russia is a member state of Council of Europe.

Obviously, Russia does not always comply with rulings by the European Court of Justice, which is not a good sign, especially now being confronted with passing a Treason Act.

Then, the persecution of foreign NGOs follows a logical sequence.  Its first step is the foreign agent; the second step is passing on information that could harm the State's security.

It would be essentially important that the Criminal Law uses concrete wording instead of vague phrasing and widely interpretable generalisations. It needs judicial concrete phrasing. That is why, I hope in my position as lawyer that the Constitutional Court of the Russian Federation is going to commit the law makers, to abandon these anti-civil laws or to revise them dramatically.

- "A law to fight extremism, foreign agents, treason..." - it feels like something of the Stalinist Era, a circle of saboteurs, spies and agitators.

VN: Regrettably, this analogy is very accurate.

Article 58 of the Criminal Code of the RSFSR, as amended in 1938:
"all actions ... aiming to weaken the government ... or aiming to weaken the inner security of the USSR are considered as counter revolutionary. All actions committed by citizens of the USSR having a negative impact on the military power of the USSR or on the national independence or the integrity of its territory, such as espionage, giving away military or national secrets to the enemies, an escape or a defecting abroad, are considered as treason."

Today, Article 275 of the Criminal Code of the Russian Federation says:
"Espionage by citizens of the Russian Federation, giving away national secrets to foreign governments, international or foreign organisations or to their representatives or to acquaintances from duty, work or training as well as other support, such as financial, material, technical or advising support received from a foreign state, an international or foreign organisations or their representatives in a way that works against Russia's security, are considered as treason."

Obviously, this new law does not yet consider "defecting abroad", but the term "other support" was not a part in the law during the time of mass repressions.

- So, this means, that our meeting could be interpreted as contacting each other with the motivation to...

VN: I do not hope so. We are no "foreign agents"; we do not receive financial aid from abroad, et cetera. But this vague phrasing causes a wide scope for interpretation and use. Under certain circumstances even our harmless conversation could be interpreted accordingly.

- Would a suspicious fact be enough to observe or to wiretap an organisation?

VN: I do not want to be a prophet in my own country, and I hope, that this will never happen, but the potential conditions have been set.

- If one would seek advice from you as a lawyer regarding such a political case - what would be your defence strategy?

VN: of course, I would take on the case. Furthermore, I would seize all legal options and methods to convince the Court that political persecution is not lawful, the same said for broad interpretation of Criminal Law. I would refer to freedom of speech, the right to one's own opinion and own judgement.

- In case of massive governmental violation of human rights, can you imagine some sort of external intervention?

VN: As long as Russia produces oil and gas and owns nuclear weapons, it is an independent player in the world market. Russia takes the liberty to not to correspond to representatives of the Western world when it comes to questions of human rights, e. g. "Magnitski List" (1) Russia; however, would never be attacked from abroad, there will no be real intervention.

The Russian citizens have rights that are fixed in international human rights treaties and in the Russian constitution. The Russians themselves must protect these rights legally. And this is just right; they must want to obtain and protect freedom. But actions, done externally are counterproductive.

Naturally, other countries may have their own opinion, and they have the right to objectively assess Russia's situation, and this is ok, too. Russia also has the right to criticize other countries objectively. And such facts must be dealt with calmly and realistically. They may not become the base for defiant patriotism, but should lead to balanced judgement and improvement to current negative appearances or tendencies.

Russian society appreciates such kind of criticism. Well balanced - criticism against the government that was expressed by the Russian model Natalia Perewersewa (2) - "Miss Moscow 2010" and "Russia's Beauty 2011" - during a well meant speech at an international beauty contest.  It did not hurt Russia's nor patriots' dignity, and 97% of internet users and a number of blogs expressed solidarity with her speech.

This is one of the reasons I am convinced that democratic processes will not be reversed and I do believe in Russia's democratic future. I also believe in a social state, where rights of single parents, senior citizens, handicapped citizens, and minorities are truly protected.

It must be the goal of NGOs to protect rights of all citizens, to ignore the discussed anti civil laws and to help society achieve abolition.




ISHR notes:

(1) The "Magnitsky List"

The "Magnitsky list" is named after Sergei Magnitsky, who died on 16.11.2009 at the age of 37 years after less than a year of detention due to torture-like prison conditions.

Magnitsky was working as an accountant and lawyer for the Moscow branch of the British investment fund Hermitage Capital Management and consulting firm Firestone Duncan, Russia's largest foreign investor. Both attracted foreign investors to Russia, invested huge capital into the Russian economy, accurately paid taxes to the Russian state, but also demanded vehemently and strongly transparency in economic relations in the Russian companies, the Hermitage Capital had invested in.

In June 2007 the office of Hermitage was raided by police and tax officials who confiscated all the documentation and stamps - allegedly on tax avoidance charges. Before Hermitage was forced to finish his work and leave in Russia it called its lawyer Sergei Magnitsky to look into it.

Magnitsky's investigations uncovered a web of alleged corruption involving high-ranking officials of the police, judges, lawyers and the Russian mafia - possibly the greatest corporate tax fraud Russia has ever known: after the raid the involved officials up to higher levels had falsified the Hermitage documentation and had diverted the capital of the Hermitage Fund in the amount of 5.4 billion rubles ($ 230 million) to private accounts.

Despite death threats, Magnitsky refused to leave Russia, instead deciding to probe deeper into the apparent fraud - uncovering two other suspected cases. He complained and listed in his claim the corrupt officials namely. As result he was arrested on 24.11.2008 for alleged "tax avoidance" by the same police he claimed were involved in the alleged fraud. One of the police officials he had testified at the heart of the crime was appointed to investigate him.

Magnitsky was detained while awaiting trial for a whole year. In that time, it is claimed he was denied visits from his family, was forced into increasingly squalid cells and maltreated. He apparently contracted pancreatitis and despite being in pain was allegedly repeatedly refused medical help.

His diary, which came after his death in public, contains not only reports about the cruel prison conditions and ill-treatment to which he was exposed, but also a list of names of all persons responsible for the demise of the Hermitage Fund, his arrest and possible death.

This list of names that includes 60 state officials of the Interior, the state tax office, of the FSB intelligence agency, of the Prosecutor General office and the Ministry of Justice of Russia, is internationally known since the "Magnitsky List".

In December 2010 the European Union passed a law allowing member states to ban 60 Russian officials implicated in the crime from entry, and to seize their assets. In January 2011 the UN's Special Rapporteur on Torture, Juan Mendez, began procedures to investigate Mr Magnitsky's death in jail. At the beginning of September 2012 Great Britain imposed a visa ban against those 60 Russian state officials, on 23 October the European Parliament voted for the introduction of sanctions against these persons, on 6 December the U.S. Congress followed with the adoption of the so-called "Magnitsky Act", known in die USA as "Sergei Magnitsky Rule of Law Accountability Act of 2012".

Russian President Vladimir Putin and Prime Minister Medvedev reacted with harsh criticism and the threat to "reply". Already in 2010 officials of the Interior and the Prosecutor General office, who were actively engaged in the Hermitage case and Magnitsky's prosecution, were awarded and given a higher post.



(2) Natalia Pereverseva

Born on 10th of November 1988 in Kurks, "Miss Russia", Profession: Civil Service Financier

Answer to the question of the jury of the MISS EARTH 2012 on November 16, 2012 on the Philippines "What makes you proud of your country and what can you promote about it?":

" ... I have always been proud of the country in which I live. I can't imagine myself without it. My country - that's all I have, all people that I love, are all that is dear to me. My Russia - it is a beautiful stately girl, full-blooded, rosy, in embroidered Sarafan, with long and thick plait, in which multicoloured fillets are twisted, a beautiful fairytale girl.

But my Russia - it is also my poor long, suffering country, mercilessly torn to pieces by greedy, dishonest, unbelieving people. My Russia - it is a great artery, from which the "chosen" few people draining away its wealth. My Russia is a beggar. My Russia cannot help her elderly and orphans. From it, bleeding, like from sinking ship, engineers, doctors, teachers are fleeing, because they have nothing to live on.

My Russia - it is an endless Caucasian war. These are the embittered brother nations who formerly spoke in the same language, and who now prohibit teaching of it in their schools. My Russia - it is a winner which has overthrown fascism but bought the victory at the expense of lives of millions of people. How, tell me, how and why does the nationalism prosper in this country?

My dear, poor Russia. And you still live, breathe, and you gave to the world your beautiful and talented children Esenin, Pushkin, Plisetskaya. The list could be continued on several pages, and each is gold, a gift, a miracle. I am happy to be your citizen! In spite of all tears, sorrows, wars, invasions, no matter who rules Russia, I am still proud to be born in this great and beautiful country that has given so much to the world over the years of its existence. I am proud of my motherland for mercy, for heroism, for courage, for diligence, for heritage that she leaves to the world, for people who can live for others. I believe that each person living in Russia should identify himself with it. Feel the participation and take a proactive stance whatever it concerns.

There are moments to which we close eyes and reject as spoiling a look. Everyday we meet the facts that are unpleasant to us, that are unworthy of our homeland. Only we can improve the situation. We must learn to express ourselves and to show our best quality traits. ... When we seriously begin to take care of our country, it will blossom and shine brightly. ..."