Hunting foreign witches

18.10.2013
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Some people interpret the principle of the supremacy of law in a completely wrong fashion: they think that witch hunt is the supremacy of law and justice. But this is not so. Supremacy of law and justice means fundamental freedoms and their implementation in people’s lives.

Asma Jahangir, human rights defender (Pakistan)

A year ago amendments to the Russian law on non-commercial organizations were adopted as part of a series of legal changes, which were extremely brutal, absurd and inadequate in relation to the state of affairs in both our country and the world. It makes sense to also recall other legal “masterpieces” of summer 2012: Russian State Duma has adopted, among other things, a new law on public assemblies, which introduced penalties for even slightest violations or the very fact that the number of participants in a rally is greater than was expected. Previous penalties were increased by hundreds of times in some cases and much greater criminal punishments were introduced for various violations of the law. Then followed the laws on state secrecy, blasphemy, restrictions on diffusion of information in the media, Internet, etc. A little later odious federal laws limiting the rights of LGBT people were adopted, as well as laws banning critique of religion.

Isn’t it the XXI century we live in? Isn’t Russia a member state of the Council of Europe and various other progressive international organizations? This all seems unbelievable, unreal, impossible to implement. That was a foolish, absurd, inadequate reaction of authorities to emancipation of various social groups, free expression of their opinions, claims to the necessity of defending human dignity, which expressed itself in various protest movements in 2010-2012 in Russia. Fear and anger, which deprived the authorities of the remnants of reason, were the basis of these laws, as well as the widespread suspicion that there was something (or somebody) hiding behind these new developments – most likely the underhand plotting of the West.

Authorities ruled out the possibility that people in Russia could stand up for their own dignity, demand freedom and implement their rights on their own account. It’s better to look for the hand of the West and the “agents of foreign bourgeoisie”, as was the custom in the not so ancient times.

It was the intention of the anonymous authors of the amendments to the law on non-commercial organizations that those organizations which receive financial means from foreign donors and “are involved in political activities” should name themselves as such “foreign agents” and list themselves in some special register. This idea was doomed to fail and its authors were warned about it in advance. We do not live in the times when people are expected to name themselves “foreign agents” by themselves or confess that they have destroyed the crops, put an evil eye on somebody’s children or were paid by some foreign department of state for information on all that.

This law, which couldn’t be implemented and observed in the first place, shouldn’t have been adopted to begin with. Even some wiser people in the corridors of power, including the minister of justice, had understood this – they realized that the law was doomed to fail and the above mentioned “register may stay empty”, as the minister forewarned. When a human rights organization “Shield and sword” tried to get listed in the register as part of an experiment, clever bureaucrats from the Ministry of justice didn’t let it, stating that foreign financing and protection of people against torture were not enough to get listed as a “foreign agent”. But do fools ever value clever decisions and acts? The idea that human rights organizations will not be forced onto their knees, or to pick up a metaphor from a different world, forced to stay under the prison bunk, simply didn’t occur to the authorities. After that the authorities resorted to the easiest of possible measures – appealed to the law enforcement agencies, firstly the procurator’s office. It looks like we have a lot of procurators in this country who have nothing much to do, i.e. to fight crime.

Checks, interrogations, administrative charges, court procedures – throughout the whole of the spring this year human rights organizations were on the defence against various claims and charges from the procurators’ offices, the strongest of which was the charge of violating the new article of the Code on administrative violations (article 19, section 34). Saint Petersburg became the only city in Russia where the cases against three NGOs were transferred to courts as early as April 2013. ADC “Memorial” was the first to have received resolution of the procurator’s office claiming violations were discovered in the human rights report provided by ADC “Memorial” to the UN Committee against torture already back in October 2012. Procurator’s resolution also featured strong words of “calling to stand up against the existing authorities and state structures” although in fact there were only recommendations for observe human rights and the norms of Russian and international laws. UN Committee against torture was fast and determined to react against the charges put against ADC “Memorial” and wrote a letter to the Russian ambassador to the UNO Mr. Borodavkin. It has called on the Russian government to immediately stop prosecution of human rights defenders for their professional activities, i.e. gathering information about human rights abuses, cooperation with international human rights organizations and assistance to the victims of arbitrariness.

The case of ADC “Memorial” should have been considered in the 8th court department of Saint Petersburg, but the judge Olga Glushanok ruled to return the materials of the case against ADC “Memorial” back to the procurator’s office, stating that “the provided documents do not prove the circumstances described in the decision No.35-78-2013 on administrative violation dated April 30, 2013”. The judge not only noted numerous serious procedural violations (such as improper drawing up of protocols, lack of proof of formal relation of the prosecuted to the mentioned violations, lack of proof of the authority of the procurator to carry out the checks), but also pointed out numerous contradictions in the charges against the human rights defenders.

Thus, the judge reasonably protested against an attempt to present charges simultaneously on two different sections of the same article concerning “foreign agents” – for section 1 for not being registered as foreign agents and section 2 for not publishing information on the status of a “foreign agent”. The judge noted that “considering a juridical person the subject of one section of article 19.34 of the Code on administrative violations means that the same juridical person cannot be considered subject to another section of the same article”.

Moreover the court failed to find explanations in the presented case as to why the check of ADC “Memorial” had been carried out and noted that the materials of the case lacked indications of the time and place of the violation. All these arguments were serious enough and it was completely unclear how the procurator’s office expected to argue in favour of its position in court in the light of a professional legal analysis of the materials of the case by the judge. At the end of June 2013 it was reported that the procurator’s office sent a protest to the court even without trying to correct the deficiencies of the materials of the case. On June 27, 2013 Leninsky district court judge N.G.Malinina left the protest of the procurator of Admiralty district on the resolution of the court concerning the return of the materials of the case against ADC “Memorial” (and a similar case against director of ADC “Memorial” Olga Abramenko) without consideration. Thus the court of second appeal ruled that the actions of the procurator were in violation of the existing legal norms. This became an important victory over disrespect for the law, legal procedures and common sense as such: district courts of Admiralty district of first and second appeal demonstrated that independence, respect for the spirit and the letter of the law and what’s more important – the very sense of justice – could triumph over arbitrariness and erroneous omnipotence of procurator’s checks.

Unfortunately in other cases the courts ignored the need to observe the laws and failed to see the lack of legal grounds for procurators’ checks of other NGOs, the absence of time and place of the supposed violations or the prescription of the new law. Following the orders of the authorities the courts have ruled that “Golos” association in Moscow, Centre for support of public initiatives in Kostroma and two of the most respected LGBT organizations in Saint Petersburg were guilty of “violating the law on organizations serving as a foreign agent”. These NGOs became the foreign witches for exemplary punishment. They were sentenced to enormous penalties and de facto forced to stop their operations. But the authorities were unable to publicly humiliate them and make them wilfully agree to the status of a “foreign agent”.

Over the period of last year that the shameful law on “foreign agents” existed, not a single NGO was forced “under the prison bunk”. And it’s not possible, indeed. Listing of some earlier unknown NGO “For competition in the CIS countries” in this empty register cannot be considered serious – these people not only were not “involved in political activities”, but they lacked foreign donations as well – they are still thinking about getting some money from physical persons in the Ukraine, but even that it doubtful – who will give it to “foreign agents” and what for?

The Ministry of justice, which earlier had refused to list a real operating human rights NGO in the new register, has wilfully greeted these impostors. But that’s funny, not sad. And more than that, it turned out that the Ministry of justice even lacks authority to refuse to register anybody! Deputy general procurator Mr. Zhafyarov openly accused Ministry of justice of “exceeding its authority by refusing human rights organization “Shield and sword” to be registered as a “foreign agent” because the law doesn’t specify any legal grounds for refusing anybody to be registered as a foreign agent if he wishes so. Thus, it turned out that it’s not even necessary to carry out political activities or receive foreign financing in order to be registered as a foreign agent!

What a free range for imagination does this open! One can ask to register an NGO by the name of “Let’s support the acts of the State Duma” or “Russian government – world’s best government” as foreign agents. If the Ministry of justice is not in a position to refuse this, maybe the Duma and the government will be better off and able to attract some foreign financing for themselves?

By Stefania Kulayeva