The ICJ today expressed its concern at the judgment of the Novocherkassk City Court of Rostov Region of 14 May 2014, ordering the NGO “Women of Don”, to register as a foreign agent.
The order was made at the conclusion of civil proceedings, brought by the city prosecutor in his role in defence of the rights of the general public. The ICJ observed the proceedings.
The decision makes “Women of Don” the third NGO in Russia to be ordered by the courts to register as a “foreign agent”, under 2012 amendments to the NGO laws which require all Russian NGOs that receive foreign funds and engage in “political activity” to register in this way.
The ICJ is concerned that the Court’s finding that Women of Don engaged in political activity, is based on unclear philosophical and sociological constructs and un-authoritative dictionary definitions and draws extensively and uncritically from an expert report, to justify limitation of rights to freedom of association and expression through designation of the organization as a foreign agent.
Moreover, while the Court relied on one expert opinion, it refused, without sufficient reasons, to consider the expert opinion submitted by the NGO.
“The decision in this case significantly impacts on the freedom of association and expression of members of this NGO, and does so on the basis of very vague and unclear reasoning, applying a legislative definition of “political activity” that is extremely broad and uncertain in scope”, the ICJ said today.
“The poor reasoning of this judgment leaves Women of Don – and other NGOs – in a position where it is almost impossible for them to understand what steps they could take to avoid designation as a foreign agent, or on what grounds they could appeal the decision. This runs contrary to the principle of legal certainty, and amounts to an unlawful restriction on freedom of association and expression, contrary to the obligations of the Russian Federation under international human rights law,” it added.
In its judgment, the Court accepted the claim of the prosecutor that seminars and media events organised by “Women of Don” were political actions aimed at “influencing the decision-making by state bodies intended to change state policy pursued by them”.
According to the Court, any type of action “aimed at influencing the society, including critical articles calling for far-reaching public reaction, and problematic comments on legislative drafts” can be considered as political activity.
In particular, the Court considered that a roundtable seminar organized by an NGO amounts to political activity inter alia where it “reflects the necessary conclusions not in laconic final resolutions, but in a systematic indoctrination of the participants involved, who develop the acquired ideas in their routine vital activities”.
The Court also accepted the contention of the prosecutor that reports, published online, which the NGO submitted to the Ministry of Justice and to donor organisations, containing information about roundtable seminars, were evidence of the NGO’s engagement in political activity.
Moreover, contrary to the position of the Constitutional Court of the Russian Federation in its decision of the 8th of April, the Court in “Women of Don” appeared to consider that an act of the head of the NGO, undertaken in her personal capacity – in this case a visit to a prisoner – could be admitted as evidence of engagement of the NGO in political activity.
Designation as a foreign agent amounts to a significant interference with the freedom of association and freedom of expression of an NGO and its members, and is likely to prevent the NGO from functioning effectively, as analysed in the ICJ’s opinion on the law.
The ICJ recalls that to be permissible under international human rights law, that is binding on the Russian Federation, limitations on the rights freedom of association and expression mustbe adequately prescribed by law, and must be both necessary in pursuit of a legitimate aim and proportionate to that aim. Limitations on these rights that are imposed on the basis of vague laws or jurisprudence, the effect of which is not reasonably foreseeable to those concerned, fail to meet the ‘prescription by law” requirement and are likely to be disproportionate and arbitrary.
Furthermore, the right to a fair hearing requires that a court provide sufficient and clear reasons for a decision; this is necessary, among other things so as to allow an aggrieved party to mount an appeal.
As provided in the Opinion 11 of the Consultation Council of European Judges (CCJE) “Clear reasoning and analysis are basic requirements in judicial decisions and an important aspect of the right to fair trial.”
The Opinion further states that: “While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system”.
Róisin Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
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