Natalia Taubina, Public Verdict Foundation, former Board member of the EU-Russia Civil Society Forum

On 14 June 2022, the European Court of Human Rights (ECtHR) ruled on the complaint “Ecodefense and Others v. Russia”. It concerns 73 Russian non-profit organisations that have applied to the ECtHR with complaints about “foreign agents” legislation. The Court found a violation of the right to freedom of association and freedom of expression, noting that there can be no freedom of association without freedom of expression. The ECtHR paid special attention to the issue of the status of a victim, recognising unequivocally that a person who is faced with the need to choose either to change their behavior in order not to fall under the restrictions of the law, or to agree to the restriction of their rights, is a victim, even if he has not been applied “foreign agents” legislation. In other words, the violation of the right to freedom of association and expression is inherent in the very concept of “foreign agent” legislation.

The decision had to wait more than nine years. During this time, the legislation on “foreign agents” has significantly expanded, first to the mass media, then to unregistered public associations and individuals. And the draft law “On Control over the Activities of Persons Under Foreign Influence” submitted to the State Duma this April became the apotheosis. The document combines and significantly expands the various “foreign agents” laws adopted so far. Criteria that previously applied only to one type of “foreign agents” now apply to all of them, on an all-for-all basis. Almost any legal entity and any individual can become a “foreign agent”, with the exception of public authorities of the Russian Federation and persons and companies controlled by them, religious organisations and political parties. According to the draft law, the key criterion is the criterion of being under foreign influence. At the same time, foreign financing becomes only one of the options for “foreign influence”, and in general, the term “foreign influence” is defined as broadly as possible, including any form of assistance. The second criterion is the conduct of political activities, the purposeful collection of information in the field of military or military-technical activities of the Russian Federation or the dissemination of information to an unlimited circle of people. In other words, if you keep an open blog about embroidery and at the same time take an English course from a native speaker, according to the wording of the law, you can be recognised as a “foreign agent”.

“Foreign agents” will be entered into a unified register. It also includes a place for persons affiliated with a “foreign agent”, that is, who had or currently have connections with a “foreign agent” like participation in their activities or receiving support from them. The good news is that getting into the unified register of “foreign agents” does not impose on affiliates the requirements and restrictions established for “foreign agents”.

It is important to note that the bill significantly expands the prohibitions for “foreign agents”. If earlier the main bans concerned non-profit organisations – “foreign agents”, which were prohibited from participating in election monitoring and nominating candidates for public monitoring commissions, now the bans not only apply to all types of “foreign agents”, but are also significantly expanded. In particular, “foreign agents” will be prohibited from holding positions in public authorities, participating in commissions, councils, committees, etc. organised by public authorities, having access to national security information, conducting anti-corruption examinations of normative legal acts, carrying out teaching or educational activities in relation to minors, as well as producing information products for them.

Unfortunately, the ECtHR in its ruling indicated that it sees no reason to separately consider the issue of violation of Article 14 of the European Convention on Human Rights, which establishes a prohibition on discrimination in the enjoyment of the rights and freedoms enshrined in it. Russian realities show the opposite. Even now, NGOs – “foreign agents” cannot engage in certain types of activities. And if the bill described above is adopted, then in a number of cases it will be possible to talk about a ban on the profession, for example, if a secondary school teacher is recognised as a “foreign agent”.

Most likely, the decision of the ECtHR will not have a positive impact on the current conditions in Russia. It remains to be hoped that it will become a serious deterrent to attempts to pass similar legislation in other member states of the Council of Europe.