The legal claim of the Prosecutor General’s Office, submitted to the Supreme Court on November 8, 2021, with a demand to liquidate International Memorial, is a document truly phenomenal in its cynicism and juridical incompetence. Memorial’s listed “violations” are absurd and outlandish to such a degree that it is simply pointless to discuss the presence of any legal foundations. The “eye of the Czar” obviously does not see the outrageous absurdity of its own legal claim. It does, however, see a target: International Memorial. And it does everything in its power to strike that target down.

Excerpt from the legal claim:

“...Memorial, despite the demands of Article 15, Part 2 of the Constitution of the Russian Federation, systematically concealed information on the performance of functions of a foreign agent during its activities, which violates the norms of the Constitution of the Russian Federation (Articles 29, 67.1); international legal acts: the Convention of the Defense of Human Rights and Fundamental Freedoms (Article 10), Convention on the Rights of the Child (Articles 13,17,27), the International Pact on Civic and Political Rights (Article 19), the Universal Declaration of Human Rights (Article 19); federal laws: Law 82-FZ (Article 29), Law 7-FZ (Articles 24, 32) aimed at the provision of legality in the course of performing activities of organizations performing the functions of a foreign agent, as well as the defense of citizens’ rights to freedom to receive information, defense of children from information that negatively impacts their moral and spiritual development.”

This is not merely the latest demonstration of the ulterior goals of the foreign agent law and its enforcement. There are several tragic diagnoses comorbid in Memorial’s case, and each of them attests that “something is rotten in the state of Russia.” Taken together, they form a grave and complex trauma, recovery from which will most likely come with unavoidable consequences. 

IMR fact sheet: International Memorial is a coalition of 74 non-commercial human rights, scientific, and educational organizations, ten of which operate abroad. The initial mission of Memorial, which was established in 1989, was to conduct research into political repression in the USSR. The Memorial Human Rights Center was created in 1991. In 2013, on the request of the Prosecutor General’s Office, the Center was added to the registry of organizations “performing the functions of a foreign agent,” and in October 2016 International Memorial made it into the registry as well. Over the past few years, both organizations were repeatedly subjected to fines for failing to put the foreign agent label on their materials published on social media. As of October 2021, the total sum of the fines had reached 6 million rubles ($82,000).

Rule-making and law enforcement practice of the past few years have polarized Russian society and resurrected the practices of the Iron Curtain and Cold War period—searching for enemies, witch hunts, and xenophobia. If there is no obvious enemy, one has to be invented by stretching out the elastic norms designed for this very purpose (which is an open violation of principles of a legal state, or Rechtsstaat, which remains one of the fundamentals of the Russian Federation’s constitutional order). Over the past few years, phrases such as “foreign agent,” “falsification of history,” “undesirable organization,” and “defense of historical truth” have rooted themselves in our life to a degree that they seem to have existed forever. But only recently Russia had no witch hunts, no political prisoners, no xenophobia, no ceaseless search for enemies internal and external, while reconciling Russian legislation with international standards and recognizing the priority of international law was not interpreted as an attempt to undermine sovereignty. That, however, as we are now being constantly reminded, was in the dreadful, “wild” 1990s. Today, we are living in the “good” years, and, to make them even better, we should secure the state from pestilential foreign influence. In order to do that, we have to unmask foreign agents and put them on the persona non grata list, but also regularly explain that it was not Russia that came up with this idea. After all, the Americans have their own 1938 Foreign Agents Registration Act (FARA). Why should we let the Americans have a monopoly? We can have a foreign agent law of our own! 

These inspiring parallels should not be trusted, however, since in the Russian foreign agent law the emphasis is made on NGOs’ receiving money or property from foreign sources, directly or through a mediator, as well as on their participation in political activity, including in the interests of foreign sources. “Including” is the operative word: if an NGO receives foreign money and participates in political activities that are not in the interests of foreign sources, it is still classified as a foreign agent. Here “agent” is used in the sense of mole or spy, and not according to Article 1005 of the Civil Code of the Russian Federation, which defines an agent as one who acts on behalf of a principal. Unfortunately, the authors of the Russian NGO legislation never made it through this article of the Civil Code. Therefore,  there is no principal in Russia’s foreign agent law, despite it supposedly being modeled after FARA. In FARA, the principal is key, and an agent in this case acts specifically on behalf of a foreign principal, who, either directly or through another person, does any of the following:

• Engages within the United States in political activities, such as intending to influence any U.S. Government official or the American public regarding U.S. domestic or foreign policy or the political or public interests of a foreign government or foreign political party.
• Acts within the United States as a public relations counsel, publicity agent, information service employee, or political consultant.
• Solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value within the United States.
• Represents within the United States the interests of a foreign principal before U.S. Government officials or agencies.

There is a famous Russian aphorism: “There is no officer without an aglet.” Well, according to FARA, there is no agent without a foreign principal; without one, the entire scene falls apart, and there is no one to register as an agent. Russia, apparently, does not need a foreign principal, and a foreign agent does not have to act in the interests of a foreign source. All that counts is foreign funding, or something else of value, as long as it comes “from abroad.” 

Having checked the constitutionality of the foreign agent law, the Constitutional Court presses upon us that “any attempts to find negative contexts in the phrase ‘foreign agent’ based on stereotypes that were formed during the Soviet period and have lost virtually all their significance in modern-day reality are devoid of any constitutional or legal basis,” as well as “the fact that Russian non-commercial organizations that partake in political activity receive foreign funding… in itself cannot make us doubt that those organizations are loyal to their state.” However, as the great Russian satirist Mikhail Zhvanetsky once said, this kind of “face twitch” is not enough to convince anyone, and law enforcement practice attests to something completely different. Moreover, that same Constitutional Court has granted the law enforcer nearly boundless opportunities to acknowledge Russian NGOs as foreign agents, having added the term “intention to participate in political activity on the territory of the Russian Federation” to the definition of “political activity”:

“An NGO’s charter documents, policy papers, and other official documents or public speeches made by its leadership [officials]—containing calls for making, changing, or canceling any government decisions; notifications about upcoming events, meetings, rallies, marches, or pickets sent by the NGO to the executive authorities of a subject of the Russian Federation or to an organ of local self-government; drafting and introducing legislative initiatives; as well as other examples of social activity clearly demonstrating the NGO’s intent to engage in organizing and carrying out political actions directed at influencing the decision-making processes of government bodies and current government policies—can serve as confirmation of its intention to participate in political activity on the territory of the Russian Federation.”    

The Court’s legal reasoning clearly indicates that basically anything can be classified as “confirmation of intention to participate in political activity” on Russian territory. However, the law enforcer chooses to interpret the phrasing “other examples of social activity” as anything it pleases. And these kinds of elastic norms hail back to the Soviet past, even as the Court tries hard to distance itself from it in that very same ruling.

And here we come to the past, which, in Russia, by now has somehow become more important than the future. When did we turn from a country with a great future into a country with a glorious past? When the glorious past became sacred, International Memorial became the perfect victim, since its research findings did not fit into the picture of this glorious past. The term “falsification of history” that suddenly emerged in the public discourse began to flicker more often and sound louder and louder. In 2014, Article 354. 1 “Rehabilitation of Nazism” was added to Russia’s Criminal Code, which, among other things, criminalized the “distribution of knowingly false information on the activity of the USSR during World War II”. In 2020, the necessity to defend the historical truth was secured at the constitutional level. The new Article 67.1 stated: “The Russian Federation honors the memory of the Defenders of the Fatherland, and provides for the defense of historical truth. Diminishment of the significance of the people’s heroic deed during the defense of the Fatherland is impermissible.” And, so that no one would doubt the sincerity of the authorities’ intent to defend what is now proudly called “the historical truth,” by September 2020 Russia’s Investigative Committee had created a special department to combat the falsification of history.

Yet another diagnosis that has surfaced in the NCO situation—the designation of foreign agents in general and the crisis with International Memorial and Memorial Human Rights Center in particular—is the spread of the Russian tradition of selective application of the law in regard to rulings of the Constitutional Court, which are universally binding as prescribed by Article 6 of the Federal Constitutional Law on the Constitutional Court. The ruling of the Constitutional Court on “the verification of the constitutionality of the foreign agent law” cited above has both bad and good parts. For example, the Court ruled on which specific kinds of activities are not classified as political activity: “Activities in the areas of science, culture, art, health care, preventive and public health, social support and protection of citizens, protection of motherhood and childhood, social support of people with disabilities, promotion of healthy lifestyles, physical culture and sport, protection of flora and fauna, charity, as well as activities for the promotion of philanthropy and volunteerism.” They are not considered political activities, as prescribed in Article 6, Part 3 of the second Federal Law “On Non-Commercial Organizations,” and “participation in political activities” is one of the conditions for an NGO to be recognized as a foreign agent. Correspondingly, whatever the origins of monetary or other material sources of NGOs are, if their activities do not go beyond the indicated fields, they cannot be viewed as performing the functions of a foreign agent. 

Lastly, let’s take a look at the list of non-commercial organizations that have been acknowledged as foreign agents and stand back in awe at how many of them are involved in science, culture, preventive and public health, and protection of motherhood and childhood. And, having stood back in awe, let us ask a very obvious question: why were these organizations recognized as foreign agents, even though the Constitutional Court has clearly ruled that such activities are not classified as political? Where, we ask, is the “limit [of the Court’s] compliance”? For how long will it tolerate the disregard of its universally binding legal stances? “The limits of compliance,” on which Chairman of the Constitutional Court Valery Zorkin so passionately wrote back in 2010, seem to exist only for situations wherein the European Court of Human Rights “subjects the rulings of the Constitutional Court of the Russian Federation to doubt in a harsh legal form.” In situations wherein the Russian law enforcer ignores the universally binding legal stances of the Constitutional Court, however, its compliance certainly seems limitless.

Text translation: Elizaveta Agarkova.