Political expertise of legal case against ADC “Memorial”

by Yelena Belokurova

Yelena Belokurova is a political scientist, she was an expert for the defense in the most recent administrative court case against ADC “Memorial”. This article, written in January 2014, elaborates on her analysis of supposed “political activities” by NGOs charged with being “foreign agents”.

A lot of discussion was devoted already to the law on “foreign agents” and its implementation. Although the law didn’t produce the results that were expected, it nevertheless had negative impact on NGOs and cost them a lot of energy. One of the dramatic moments of implementation of this law was the ruling of the Admiralty district court of Saint Petersburg, which declared Anti-discrimination center “Memorial” a “foreign agent”. This civil court ruling responded to the claim made by the procurator’s office in the interests of an unspecified group of persons. As a result of this, the NGO had to legally liquidate itself in order to avoid being listed under the title of a “foreign agent”.

However, although this case was lost in the court of first instance, this experience still may be of interest to other NGOs that may face similar charges, as well as for political scientists and sociologists, who are involved in discussions over the current situation of Russian NGOs. For me, involvement in court procedures as an expert in political science was a very important experience and I would like to share and discuss it with my colleagues. That is why I decided to present in this article the arguments, which had been expressed earlier in our “battle of experts”, which had taken place in court on November 11, 2013.

During the course of the court procedures the defense provided substantial number of arguments and proofs, courageously defending the position of ADC “Memorial”, its representatives Stephania Kulayeva and lawyer Olga Tseytlina, especially pointing out that the NGO operated not in the interests of foreign states, and therefore was not essentially a “foreign agent”. But this was not enough. It was also necessary to prove that the organization did not legally qualify as a “foreign agent”. Because of this a special expertise by a political scientist was required, which I provided, although with mixed feelings.

Question for political scientists

Courts rarely require expertise by political scientists, especially compared to how frequently they use expertise by psychologists, linguists, sociologists, etc. However, for more than a year now a question is posed to political scientists, which was and is discussed now not only in universities, scientific publications or at conferences, but is also debated in court rooms. It is a question of what the concept of “political activity” really is. This notion was introduced into the Russian legislation following the adoption in 2012 of the federal law “On Amendments to Certain Legislative Acts of the Russian Federation in the regulation of the activities of NGOs acting as a foreign agent”.

Since this law requires registration of NGOs as “foreign agents” in case they use foreign funding and are involved in political activities, the question often arises of what political activity actually is. More specifically, it is whether human rights defense, charity, sociological studies, public statements and various public activities, interaction with authorities and all sorts of other activities, in which NGOs are involved, all fall under the category “political activities”.

Many NGOs in their defense tried to persuade the courts and the public that their activities were not political, and that, in general, the above mentioned activities did not fall under the category of “political activities”. Personally, I did not like this. I partly understood the need for such a strategic line of defense on the part of NGOs and their lawyers. However, in the end it turned out that this type of discourse resulted in admitting the impossibility for NGOs to be politically active subjects, which were present in political sphere. This found its expression in many cases of not only de facto abstention from public activity, but also in the discursive turn, in their readiness to admit that NGOs in principle were not involved in political activities.

This type of argumentation was increasingly vocal and confident, becoming ever more recognized. This was frightening, especially because I, as a political scientist, got used to read in textbooks and scientific publications, and then to teach it myself to my students that it was a basic notion, that NGOs were active participants in the political process, political decision-making at various levels of government, regardless of the source of their funding.

As public associations representing various social groups or working in close contact with the latter, NGOs contribute to political debates, represent views of their respective social groups, provide their expertise on the real situation and problems in various fields. But over the last year there were more and more statements made in Russia, including those of many active and professional NGOs, which insisted that NGOs were not participating in political activities. In such a situation one could start rewriting textbooks on political science and giving up all political activity to the mercy of professional politicians and bureaucrats. This dangerous process has already begun. Now we are beginning to reap the fruits of this failure to perform a whole set of functions by NGOs.

What can a political scientist say?

The fact is that for political scientists there may be two legitimate definitions of “political activity”.  The first one was already present in the Russian legislation until 2012 and is a “narrow” concept of politics as electoral process, in which “political activities” are those of political parties. This is the definition to which NGOs in Russia refer today: they claim that they do not participate in elections and thus are not involved in political activities as defined above.

However, a different, broader definition of politics and political activities exists in political science, which also was outlined in the new laws and which carries features describing NGOs, which are considered foreign agents. This definition involves participation of NGOs “in the organization and conduct of political campaigns in order to influence decision-making by state authorities aimed at changing state policy pursued by them, as well as in shaping of public opinion for these purposes”.  This is a clear definition of participation in debates concerning “state policy” in a particular area or in relation to a particular political course. While in English the is a separate notion of “policy”, as opposed to the narrower definition of “politics”, in Russian the difference between the two disappears. Both the former and the latter can be called “politics” in Russian.

And it is precisely because this second definition now appeared in Russian legislation, it is incorrect to insist that NGOs are not involved in political activities whatsoever. NGOs are involved in political activities, they participate in political decision-making, they should do so in future in the interests of particular social groups, which they represent, and the society as a whole. Denying this is rather dangerous. Many NGOs in Russia and the public in general have fallen into this discursive trap, which I could see beforehand and which I disliked so much.

Escaping the trap: arguments of experts

Finally I had an opportunity to try to get out of this peculiar discursive trap in some practical way, for example, by preparing a political expertise and presenting it to the court on November 11, 2013. Later some observers described these court hearings as a “battle of experts”. Besides myself, Dmitry Dubrovsky, senior lecturer of the faculty of Liberal Arts and Sciences of the Saint Petersburg state university was also an expert for the defense, while the side of the prosecution was represented by professor and vice-rector of the Russian State Pedagogical University named after A. Herzen Vladimir Rukinov, who later presented expertise prepared by the experts of the department of civil law.

The charges presented by the prosecution and consequently all the court proceedings against ADC “Memorial” concerned the publication of the human rights report “Roma people, migrants, activists – victims of police arbitrariness”, which had been prepared and sent to the UN Committee against Torture, and later had been distributed by its office and posted on the website of the organization. Experts analyzed this particular text in attempts to see how its preparation and publication related to the definition of the prerequisites for registration of a particular organization as a “foreign agent”.

Thus, the main question for expertise by political scientists was whether the publication and distribution of the report “Roma people, migrants, activists – victims of police arbitrariness” had been a political action or political activity aiming to influence decision-making by state authorities in order to change the state policies pursued by the latter and to influence public opinion for these purposes.

If one looks closely at this question, which follows the exact wording of the new law, one can understand that here we are dealing not with political activities whatsoever, but only with those activities aimed to influence state authorities in order to change the state policies they carry out. Thus, we should not completely reject political activities by NGOs, but should analyze whether they seek to influence the change of state policy. It is appropriate to use applied political analysis in order to identify the role of this or that particular activity in political decision-making process and shaping the state policy. This is very popular department of political science, which was described in Russian, for example, by Andrey Degtyarev, professor of the Moscow state institute of international relations (MGIMO).

Political analysis of the process of political decision-making or state policies in different areas of politics is aimed at understanding how the process works, what role is played by different actors, such as government agencies, politicians, bureaucrats, as well as non-governmental interest groups. Various stages of decision-making and formulation of state policies are defined and analyzed, while for each stage we also look at the roles of individual actors and groups involved. Also, as part of this approach, hierarchy of decisions is established, which determines state policies or simply implements decisions already taken concerning various policies. This type of analysis and overall theoretical approach meets the needs of analyzing the impact of various activities of NGOs aimed at changing state policies. In order to perform such an analysis, one needs to understand at what stages, with what resources available and with what status the NGOs act in this process of political decision-making.

As a result of applying this methodology, in my expertise I was able to draw some conclusions, which were included in the statement and which I summarize here. I argued that the human rights report of ADC “Memorial” had only indicated some problematic areas in the implementation of state policies, but had not been obligatory for consideration by the authorities and moreover had not been obligatory for taking into account when making their decisions. This was due to the very status of ADC “Memorial” as an NGO, a charitable private institution, which is not and can not be in any sort of hierarchical or other dependant relation with the state authorities.

Moreover, ADC “Memorial” had no chance to influence any of the actors even in an informal way, because it was not in a position to create some immediate threat to persons involved in decision-making, and only if the contrary was possible that we could talk of some obligatory subordination. Thus, from the point of view of applied political analysis, the report itself was only a presentation of the results of some systematized experience and research carried out by a “weak” actor – the one that has neither formal, nor informal power or connections with officials and decision-makers, who were able to adopt or amend state policies. Therefore, publication and distribution of this report was not in itself able to change state policy and shape public opinion for this purpose, because ADC found itself in a weak position and lacked any involvement into political decision-making.

Theoretically, such a report could be part of a public debate only at the initial stage – the stage of “formulation of public agenda and defining priority social problems”. However, it could not influence formulation of state policy neither at the second (preparation and selection of projects for state decision-making), the third (coordination and approval of state decision) or the fourth stages (legislative implementation of government decisions). The first stage is usually considered preparatory and generally concerns public debates on various issues, which may or may not proceed to the second stage based on the actions of the authorities. This first stage is not strictly speaking a part of the state decision-making process, and can not by itself, in isolation from the other stages, be considered changing state policy or even leading to it.

This particularly applies to the kind of public statements, which do not affect the second stage, as in the case of report under consideration. It was published and circulated only among people visiting the office and website of ADC “Memorial”, which meant that there was not a chance for it to influence the second and third stages of decision-making. The conclusions, which were made in the report, were too complex and required a complex set of conditions, prerequisites and factors, the presence of interested actors among politicians and state representatives, formation of coalitions and the process of required approvals. Initiating, let alone making the transition to the second stage were not possible due to the simple fact of publishing the report. Therefore, publication of a report on the first stage cannot in itself be considered as something aimed at changing state policy.

The same goes for to the mechanism of shaping of public opinion in order to change state policy: it is so complex and depends on so many factors that the publication of a report doesn’t have the capacity to principally “shape public opinion”.

To some extent, the report could affect the change in law enforcement practices, however, the latter is considered completely separate from the political cycle of political decision making, a separate step of “implementation” of the policy. In most models, it stands apart from the main “state policy” due to its special principles. The role of non-governmental actors and non-profit organizations is limited to being executors of state policy or monitors of its implementation by the executive authorities. This role does not imply changes in state policy, but only identification of flaws in its implementation, which should contribute to the improvement of law enforcement in order to fulfill the government-adopted policies.

This is exactly what was the aim of the report: it examined the practice of implementation of international law and national legislation in the Russian Federation. Thus it only aimed to influence this particular stage of implementation of state policy, rather than its adoption or amendment.

As a result, the main conclusion, which I formulated, was a negative response to the main question, which reads as follows:

Recommendations of the NGO published in its report, which was distributed, cannot be considered political activities aimed to influence decision-making by state authorities or shaping of public opinion for this purpose due to the complex nature of political decision-making, in which this report can only be an element of the preliminary public discussion and was not intended to change state policy of the Russian Federation. Since a whole set of various factors is required in order to start the main stages of political decision-making, which were absent in that situation, it can be concluded that the publication of the report was not aimed at this, but rather intended to draw attention to the problems of law and legal implementation practices, which is fully consistent with the policy of the state.

Moreover, the report aimed not to change, but to draw attention to violations of international and Russian laws, that is, aimed at improving the law enforcement mechanisms.

Finally, the conclusions of the report included recommendations for improving tolerance of police officers to various categories of citizens, including vulnerable groups of population, which is fully consistent with the state policy of the Russian Federation”.

This means that in my expertise I demonstrated not that this particular NGOs had not been involved in political activities, but that publication of a report alone was not able to change state policy, and that it was working to improve the mechanisms for the implementation of state policy.

Expertise of socio-humanitarian research, which was made at the request of the lawyer by Dmitry Dubrovsky, a much more experienced expert in the field of analysis of incitement of interethnic and interdenominational hatred, as well as expertise by the Federal Service for supervision of mass media, communications and preservation of cultural heritage (Rossvyazokhrankultura) regarding the law “On Counteraction to Extremism”, related primarily to the presence or absence of “statements, inciting to violence or justifying ideology and practice of violence to overthrow the constitutional order of the Russian Federation, calls for hatred or enmity” in the report. On the basis of socio-humanitarian expertise, a method elaborated by Nikolay Girenko, which helps to study the presence of racial, religious or ethnic hatred as a motive in criminal activities, Dmitry Dubrovsky concluded absence of such appeals and incitements in the report.

On the contrary, the report “featured recommendations for strengthening constitutional order, protection of the rights and freedoms of citizens of the Russian Federation”. The expert also concluded that the report gave a generally positive assessment of the Russian legislation. For example, prohibition of torture and derogatory treatment of detainees was considered an undoubtedly positive feature. Meanwhile, “the report also expressed opinions of influential European and international organizations such as the Council of Europe, the UN, the OSCE and others concerning significant problems associated with civil rights violations by some law enforcement officers in the Russian Federation; activities of some police officers were recognized as ones not meeting the goals and objectives of law enforcement agencies, in particular that of protection of the rights and freedoms of citizens of the Russian Federation”.

Thus, the arguments of the defense concluded that activities of NGOs such as preparation, publication and distribution of human rights reports in itself cannot change state policies, and that the report in question was primarily aimed not at changing these policies, but towards improving implementation of Russian state policies as they had been formulated in the Constitution and a number of laws.

Arguments for the prosecution

For its part, the prosecutor’s office also asked for an expertise, but its experts came to the opposite conclusions and argued that ADC “Memorial” and its human rights report could “be characterized as political activities carried out through shaping of public opinion, as well as expression of opinion of citizens on issues of public life, bringing these views to the attention of the general public and state authorities”. This conclusion was a result of the legal expertise conducted by I.S. Kokorin and A.L. Sachenko, assistant professors of civil law of the Russian State Pedagogical University named after A. Herzen. These lawyers stated that a legal definition of “political activity” was lacking in the recently adopted law on “foreign agents”, and thus they referred to the earlier law on political parties. The latter describes goals and objectives of political parties, such as shaping of public opinion and bringing the views of citizens to the attention of the public and of state authorities, among others. On the basis of ignorance of the new law, these lawyers attempted to relate ADC “Memorial” to political parties, and its activities – to the objectives of the political parties. As a result, these experts for prosecution concluded that the report in question was the sought “political activity”.

In addition to its obvious illiteracy, this conclusion implicitly assumed that “expression of citizens’ opnions on issues of public life, bringing those views to the attention of the general public and public authorities” could be done only by political parties.

Another peculiar argument was presented by professor and vice-rector of the same university Vladimir Rukin, who spoke in court, but failed to provide written text of his expertise.  His expertise was based on “simple scientific analysis” of the Constitution and the law on political parties. He claimed that the human rights report contained calls for a “change of structures”, although there were no incitements to hatred and hostility, and that the methods of organization were political. In this case, with reference to Freud and Fromm he justified this statement by the fact that the impact of the report on state policy was through persons and through “the masses, who unconsciously adjust themselves to everything”. He stated that any person could turn materials of this report into “ways of appropriation of objective reality” and after reading the report “to take part in politics and be part of the political life”. These were some really strange arguments for political scientists, who are used to more accurate and precise methods of analysis of facts, factors, agents and actors of political processes. This argument was even more strange in terms of legal analysis, which this expert referred to.

Outcome of the court

Outcome of the “battle of experts” was, however, more disappointing than the “battle” itself. All arguments of the expertise for the defense were rejected by the court, which stated that in a civil suit against ADC “Memorial” it had been “necessary to tackle only the problem of a legal nature (legal issues), which didn’t require special knowledge in various fields of science”. Besides that, according to the court, “the conclusions were contradictory and thus could not serve as the basis for the court’s decision”.

As a result, the court has not spoken directly against the expertise which was provided, but simply upheld the claim of the prosecutor and ruled “to recognize the activities of the charitable private association for the defense of rights of people subjected to discrimination ADC “Memorial” “as activities of a non-profit organization, which executes the functions of a foreign agent”. While the whole court proceedings were devoted only to the single report, the conclusion was unexpectedly made regarding all activities of the organization in general.

This court ruling will be challenged. The law and its legal implementation are likely to soon change. However, the arguments presented in this article may be of interest and importance for both practical reasons and as part of a broader scientific debate. Although right now an ad nauseam debate about “political activities” may seem already irrelevant, it does not lose its importance. In many ways today it still defines the discourse about the limits of the political, which the Russian authorities are trying to narrow down to simply activities of political parties and their representatives. And while this continues to happen, it is necessary to discuss this and resist this.