Freedom of Association and Assembly / Protests, National Security, Political Expression
The Case of Leopoldo Lopez
Venezuela, Bolivarian Republic of
Closed Expands Expression
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The European Court of Human Rights held that Russia had violated the right of freedom of association of various Russian non-governmental organizations by imposing strict conditions on their operations. Russia had introduced the Foreign Agents Act which mandated any non-commercial organizations conducting political activities to register as foreign agents if they were funded, directly or indirectly, from persons abroad. The Court held that the terms “political activities” and “foreign funding” were not clear and foreseeable and the term “foreign agent” was prejudicial. It held that none of the conditions imposed on the NGOs were necessary in a democratic society and seriously impacted on the ability of NGOs to receive funding and continue operations.
In 2012, Russia enacted the Foreign Agents Act (FAA) which applied to non-governmental organizations (NGOs) engaged in “political activities” and receiving “foreign funding”. These NGOs were obliged to register as “foreign agents” and to label their publication “as originating from a ‘foreign-agent’ organisation, post information on their activities on the Internet and submit to more extensive accounting and reporting requirements” [para. 5]. After an amendment in 2014 the Justice Ministry was vested with the authority to label an organization as a foreign agent at its own discretion.
In 2014, the Russian Constitutional Court confirmed that the FAA was constitutional.
On December 28 and 29, 2021, the Supreme Court of the Russian Federation and the Moscow City Court, respectively, granted the prosecutor’s applications for the liquidation of two NGOs – International Memorial and the Memorial Human Rights Centre – and their field offices. The NGOs had been put on a register of “foreign agents” by the Ministry of Justice and the courts found that they had “committed ‘gross and repetitive’ violations of ‘foreign-agent’ legislation” by not indicating that their social media and online publications originated from a “foreign-agent” NGO [para. 10]. The Courts held that the NGOs were not being transparent by “concealing [their] foreign-agent status” which prevented scrutiny and violated “the rights of citizens to receive reliable information” about the NGOs’ activities [para. 10].
On December 29, 2021, the European Court of Human Rights ordered an interim measure suspending the enforcement of the domestic judgments on the closure of the organizations, and consequently International Memorial applied to the Supreme Court for a stay. The Supreme Court refused, “ruling that the enforcement of the liquidation decision did not ‘prevent the organisation from exercising its rights under Article 34 of the Convention’, did not ‘create a risk of loss of life, health or irreparable harm to the organisation or its members’ and did not ‘violate the constitutional right to freedom of association’.” [para. 13].
On April 22, 2022, International Memorial was removed from the State Register of Legal Entities when the liquidation decision was enforced.
Seventy-three NGOs (some of which had ceased to exist at the time of the hearing) had approached the European Court of Human Rights on the grounds that the FAA violated their freedoms of expression and association, protected by Articles 10 and 11 of the European Convention on Human Rights. The Court heard all the matters together. Various international organizations and institutions were admitted as third-party interveners.
Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11 states: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
The Court delivered a unanimous judgment. The central issue for the Court’s determination was whether the FAA infringed NGOs’ freedoms of expression and association.
The NGOs argued “foreign agent” was a “stigmatising label” as the term “agent” had a negative connotation as it was used to refer to spies, saboteurs or traitors. They submitted that their rights to freedom of association would be impaired due to the FAA’s “excessive accounting requirements”, “numerous inspections and fines” and the restriction of their access to foreign funding [para. 78]. They argued that the term “political activities” in the FAA for which NGOs were required to register was vague and overly broad and so did not allow them to adequately understand what conduct was regulated by the law and that the term “foreign funding” did not provide any guidance as to what or what amount would fall under this concept.
The Russian government argued that there was no interference in the Article 10 and Article 11 rights as the obligation to register as a “foreign agent” “did not prohibit or restrict the [NGOs’] ability to engage in free debate and political activities in Russia and to express their ideas” [para. 79]. The government submitted that the term “political activities” covered activities under the dictionary definition and that activities such as “science, culture, the arts, healthcare, charity work and so on were excluded” from the FAA’s scope [para. 92]. It also submitted that all that was relevant in the understanding of “foreign funding” was that the funding came from a “foreign source” [para. 106]. The Government maintained that the term “agent” was neutral, and referred to those involved in political activities.
The Court examined whether there had been an interference with the NGOs’ freedom of association. It referred to the experience of the NGOs which had been subjected to new inspections under the FAA and noted that this interfered with the NGOs’ functioning. With reference to its cases of Cumhuriyet Halk Partisi v. Turkey and Jehovah’s Witnesses of Moscow v. Russia, the Court stressed that “burdensome requirements which have the effect of inhibiting an organisation’s activities may, in themselves, amount to an interference with the right to freedom of association” [para. 83]. It also noted that some of the NGOs had been forced to close or had experienced a dramatic decrease in their funding, and that the dissolution of an organization constitutes an infringement of the Article 11 right. Accordingly, the Court found that the organizations and their directors had “been directly affected by a combination of inspections, new registration requirements, sanctions and restrictions on sources of funding and the nature of the activities which were imposed by the Foreign Agents Act,” and that there had been an interference with their rights under Article 11, read with Article 10 [para. 87].
The Court then examined whether there was a legal basis for the interference, and emphasized the importance of civil society in a democracy. In examining the nature of the term “political activities” in the FAA, the Court noted that “cultural and social activities” had been deemed to constitute political activities, and so the exemptions in the FAA – which the government had relied on – “have been rendered meaningless by the unforeseeable practice of the Act which has been endorsed by the Russian courts” [para. 100]. The Court also noted that the activities of individuals within the organizations had been attributed to the organizations themselves. The Court found that “Russian authorities applied an extensive and unforeseeable interpretation to the term ‘political activities’ which was used in the Foreign Agents Act” which “produced incoherent results and engendered uncertainty among NGOs wishing to engage in civil society activities relating to, in particular, human rights or the protection of the environment or charity work, especially since the domestic courts failed to provide consistent guidance as to what actions did or did not constitute ‘political activity’” [para. 104]. In examining the nature of “foreign funding” the Court recognized that the term had “been used indiscriminately by the authorities to include any disbursements – not just those paid to the applicant organisations, but also those paid to its members or directors, even where they acted in a personal capacity without involving an organisation” [para. 108]. It also noted that the FAA did not require a link between funding and the political activities and that some organizations which had not themselves received foreign funding but had directors which also sat on boards of an organization that had received foreign funding were considered to meet the criteria by Russian authorities. It held that “[t]he absence of clear and foreseeable criteria has given the authorities unfettered discretion to assert that the applicant organisations were in receipt of ‘foreign funding’, no matter how remote or tenuous their association with a purported ‘foreign source’ was” [para. 110].
The Court held that the terms “political activity” and “foreign funding” were too vague and did not meet the requirement of legality. However, the Court held that the term “foreign agent” was sufficiently clear and so the Court was still obliged to determine whether the FAA responded to a “pressing social need” and was proportionate.
The Court held that the FAA’s objective of creating transparent civil society and its financing pursued a legitimate aim of maintaining public order.
The Court reiterated that “citizens’ ability to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association” [para. 123]. With reference to Magyar Helsinki Bizottság v. Hungary, the Court stressed that the role of creating platforms for debate was one which civil society, and not only the press, played. It described NGOs’ activities as an “essential element of informed public debate” and emphasized their role as watchdogs in democracy [para. 124]
The Court then examined whether it was necessary to use the term “foreign agents” and noted that in an opinion poll 60% of Russians believed it had “negative associations” [para. 126]. It held that to label any organization as a foreign agent “was unjustified and prejudicial” with “a strong deterrent and stigmatising effect” on operations of the organizations and that this “label coloured them as being under foreign control in disregard of the fact that they saw themselves as members of national civil society working to uphold respect for human rights, the rule of law, and human development for the benefit of Russian society and democratic system” [para. 136]. The Court held that the use of the term had an adverse effect on the organizations’ functions and that the “Government have not been able to adduce ‘relevant and sufficient’ reasons for creating that new category [of NGOs], or show that those measures furthered the declared goal of increasing transparency” [para. 146]. Accordingly, the Court held that the creation of the status of “foreign agent” was therefore “not necessary in a democratic society” [para. 146].
The Court also held that the additional auditing and reporting requirements the FAA placed on “foreign-agent organizations” were not necessary. With reference to Ramazanova v. Azerbaijan the Court held “the ability of an association to solicit, receive and use funding in order to be able to promote and defend its cause constitute[d] an integral part of the right to freedom of association” [para. 165]. The Court acknowledged the benefits of transparency in organizations’ financial affairs, but found that this “cannot justify legislation which is based on a presumption, made on principle and applied indiscriminately, that any financial support by a non-national entity and any civil society organisation receiving such financial support are intrinsically liable to jeopardise the State’s political and economic interests and the ability of its institutions to operate free from interference” [para. 166]. The Court noted that the FAA’s lack of clear guidance for NGOs to receive foreign funding meant that they would be forced to refuse all funding, and that these restrictions were not necessary.
In examining the nature and severity of the FAA’s penalties on non-complying NGOs, the Court emphasized that a penalty must not “amount to a form of censorship intended to discourage the applicants from expressing criticism or undermine civil society’s important contribution to the administration of public affairs” or hamper NGOs ability to act as a watchdog [para. 179]. It held that the financial penalties were not proportionate to the offence as the FAA’s sanctions were equivalent to up to three years’ of the average Russian income and that the domestic courts did not consider fines’ proportionality against the standard of whether the NGO would be able to continue operations. The Court also noted that the domestic jurisprudence indicated that the sanctions imposed were “unpredictable” and the FAA’s provisions allowed for arbitrary imposition of sanctions [para. 184].
Accordingly, the Court held that the Government had not shown reasons for the contested provisions in the FAA and that “the cumulative effect of these restrictions – whether by design or effect – [was] a legal regime that place[d] a significant ‘chilling effect’ on the choice to seek or accept any amount of foreign funding” [para. 186]. It held that the FAA provisions were not necessary in a democratic society and so violated Article 11 of the Convention, read with Article 10. The Court awarded different sums of money to each of the NGOs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment confirms that interference with NGOs’ operations constitutes a violation of their freedom of association, and stipulates the type of interference that is impermissible.
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