December 9, 2005
Russian NGO legislation is a step in the right direction
Comment by Nicolai N. Petro
Nicolai N. Petro is professor of political science at the University of Rhode Island (USA). He served as State Department policy adviser on the Soviet Union under George H. W. Bush, and as civic affairs adviser in the Russian city of Novgorod from 2001 to 2002. His latest book is Crafting Democracy (Cornell University Press, 2004). He contributed this comment to Russia Profile.
It was supposed to be a routine bit of legislation a series of amendments that would bring the outdated legislation on nongovernmental and noncommercial organizations into conformity with legislation in similar areas.
The Duma’s Committee on Public Associations and Religious Organizations, headed by noted liberal Sergei Popov, had collected testimony from fifteen experts, held away meetings with NGOs in Tambov and Novosibirsk, and vetted the proposed amendments with all the appropriate parliamentary and governmental actors. All the obvious hurdles had been dealt with, so the first parliamentary reading for the amendments was scheduled just sixteen days after the committee phase.
Alas, it was not to be.
Editorialists and pundits (once again) rallied to prevent President Vladimir Putin from smothering Russian democracy. The Washington Post on November 18 wrote that the new legislation would bar foreign NGOS “from operating offices in Russia and require all 450,000 of them to re-register with the state.” On December 1, the Boston Globe claimed it would “ban foreign funding and the hiring of foreigners in those organizations. This means international outfits such as Greenpeace or Amnesty International would be required to shut their doors.”
After the bill easily passed its first parliamentary reading, the pressure has been stepped up on the eve of its second reading. Writing in the New York Times on December 7, senior statesmen Jack Kemp and Jonathan Edwards have called for an international campaign to stop the proposed changes. “This legislation,” they warn ominously, “would, among other things, keep foreign nonprofit organizations from having offices in Russia and deny foreign funds to Russian organizations that are suspected of engaging in undefined ‘political’ activities.”
Few people seem to have taken the time to actually read the proposed amendments, which are only 18 pages long and readily available on the internet at http://www.grani.ru/Society/p.98512.html. If they had, they would quickly have realized that none of these charges are true.
Under Russian law, public activity does not require any registration. For specific types of activities, such as trade unions, political parties, religious organizations and civic organizations, registration exists as an option that provides certain tax benefits, as well as allows a measure of legal protection. The only prominent category of public organizations for which these benefits are not available are noncommercial organizations, or NCOs.
Russian law distinguishes between NCOs and nongovernmental civic organizations, or NGOs. The proposed amendments scarcely affect NGOs. It aims, rather, to bring noncommercial organizations into conformity with legislation that has been on the books for the past seven years. It does so by clearly stating the state’s obligation toward noncommercial organizations.
Under these proposals, while domestic organizations may decide whether or not to register, all foreign NCOs must register within three months. In a move that clearly favors registrants, the draft specifies that registration can be denied only if an organization’s statutes contradict the
constitution or laws of the Russian Federation, if there is reason to suspect the organization is engaged in fraudulent or deceptive behavior, or is suspected of money laundering. Registration can also be denied if documentation is missing or false, or if another organization also claims the same name. Absent one of these specific reasons, registration must be granted within 30 days. The reasons for any denial must be presented in writing to the applicant. Moreover, in contrast to the article by Kemp and Edwards, the proposed legislation explicitly prohibits denial of registration for any other reason that local authorities might deem “convenient,” and highlights that such motivations must be explicit and can be challenged in the courts.
Under the proposed rules it also becomes much more difficult to revoke registration. This process can be initiated only if, upon review, the “goals, tasks, and activities” of the organization are found to contradict the constitution or laws of the Russian Federation, if its actions “aim at the realization of extremist activities,” or again at money laundering. Such a review of NCO activities may take place no more than once a year.
If the registering agency believes that one of these violations is occurring, it must submit a written warning to the organization and provide it with no less than one month to amend its behavior. If this does not occur, the agency may then petition the courts to revoke an organization’s registration. It cannot do so on its own.
According to its authors, Duma deputies Sergei Popov and Andrei Makarov, these elaborate safeguards were put in place precisely to deprive local bureaucrats of any pretext for denying registration. Over the past eight years the number of citizens turning to the courts for redress of grievances has gone from one million to six million, with 71 percent winning favorable judgments in cases they bring against the government. Experience thus suggests that requiring bureaucrats to provide a written justification for a decision is a powerful tool for challenging administrative arbitrariness.
What do these proposals say about foreign funding? Very little. Foreigners who reside legally in Russia already have the same rights that Russian citizens do to organize, fund, and participate in any type of civic or non-commercial organization. New rules, however, have been introduced to track direct foreign funding received from foreign principals.
Presently, Russia is in the unique position of having foreign agents acting on its territory that are not regulated in any way. In the United States, such agents are regulated by FARA, the Foreign Agents Registration Act (22 U.S.C. 611, et seq. ), whose purpose, according to the Department of Justice, “is to insure that the American public and its law makers know the source of information intended to sway public opinion, policy, and laws.” Enacted in 1938 to counter the spread of Nazi propaganda in the United States, it has since been amended to shift the focus away from squelching subversive political activity to controlling the activities of foreign lobbyists.
In its present form, FARA is quite a bit more restrictive than the proposed new Russian legislation. It defines foreign agents as “any individual or organization which acts at the order, request, or under the direction or control of a foreign principal.” A foreign principal as any person or organization outside the United States, organized under the laws of a foreign country or having its principal place of business in a foreign country. In addition, it specifically mentions engagement in “political activities” (http://www.usdoj.gov/criminal/fara/q_A.htm).
Foreign agents are obliged to file all agreements, including income and expenditures twice a year, rather than just once. It requires that informational materials provided by foreign agents “be labeled with a conspicuous statement that the information is provided by the agents on behalf of the foreign principal,” and it provides for penalties up to ten years in jail for whoever acts as a foreign agent without prior notification to the Attorney General. Russian legislation, in contrast, envisions no criminal penalties. At the heart of FARA, however, is the mandate to maintain a national registry of foreign agents precisely the sort of national database that Russia is proposing to create.
No one doubts that there are unresolved issues in the current draft of the Russian law, many of which have to do with defining the tax status of commercial activities of NCOs. The legislative process, however, is designed to address these in the second and third readings of the legislation, and none raise serious concerns over the fate of Russian democracy.
The issue of the closing of foreign organizations is also clearly a red herring, since there is absolutely nothing in the proposed legislation that gives bureaucrats the right to do this.
On the contrary, it ties the hands of local bureaucrats by holding them more accountable for their decisions, it specifically limits their ability to interfere in the work of NGOs, and it expands important legal safeguards into new areas. In addition, if FARA is any measure, the proposed legislation certainly falls within international norms.
In sum, these amendments ought to be hailed as a step in the right direction. The Russian legislative process is doing exactly what is expected of it, and should be applauded for the thoroughness of its efforts. The media, on the other hand, should make a greater effort to refrain from ill-informed, hysterical commentary that generates political friction, but sheds no light on the actual state of Russian democracy.