Recommendations
International laws treat the right for establishing non-profit organizations for the purposes of pursuing common goals as the universally protected right to freedom of association. The exercise of this right should not be subject to any restrictions except for those stipulated by the law and those that may be deemed necessary in a democratic society for the purposes of defending national security and public order, protecting health and morals, and ensuring rights and freedoms of other people. Only “persuasive and serious” reasons may serve as grounds for restricting the right of association, and these grounds must be formulated in a very precise manner, thus ruling out any broad interpretations. Russian NGOs are worried by the fact that the Russian NGO legislation is not compatible with the international laws on many accounts. The authors of this report and a number of supporting NGOs and experts believe that the legislation regarding NGOs needs substantial amendment; moreover, a number of amendments to the most problematic provisions of the law should be adopted without a delay.
President Putin stated several times that if he is provided with sufficient evidence that the law impedes development of civil society, he will personally introduce amendments to the State Duma. Russian NGO experts believe that among the most immediate tasks are adoption of amendments simplifying registration procedures, eliminating burdensome reporting of NGOs and excessive powers of the Rosregistration in conducting audits and the overall control, amounting to intervention in the work of NGOs, eliminating unconstitutional restrictions on founding and participation in NGOs, and changing the vague wording of several other key restrictive provisions. Parallel to this there is an urgent necessity of public discussion of the notion of “political activity.” It is crucially important to clarify this key issue and confirm full legitimacy of NGO work in the field of human rights, freedom of speech, anti-corruption, environment, democracy promotion, etc., and their funding from any legal sources at home and from abroad while at the same time confirming and strengthening an already existing ban in Russia on foreign funding for election campaigns and activity aimed at acquiring political power.
Below we provide a more detailed description of the proposed urgent amendments to be introduced in the law on NGO.
Registration of NGO<?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />
#
#
In the past, an NGO could only be denied registration in the event of a failure to provide a complete package of necessary documentation, or in the event of submitting the said documents to a wrong body of the state registration. Currently, an NGO may be denied registration in the event when the NGO’s constituent documents run counter to the Constitution or the legislation of the Russian Federation; or in the event when there is an NGO bearing the same name that was registered earlier, or in the event when the name of the NGO offends morality, ethnic or religious feelings of citizens.
The grounds for denial, although broader that the ones that existed before, are generally compatible with the grounds for denial in other countries. Nevertheless, the provision stipulating denial of registration in the event when the name of the NGO “offends morality, ethnic or religious feelings of citizens” are far too broad and vague, thus granting representatives of registering agencies too much discretion in regard to denying the registration. It would be fair to introduce clarification into Section 1, Article 23 of the Law on Non-Commercial Organizations and specify the exact list of grounds for denial without leaving any discretionary powers to arbitrarily interpret the said grounds
New Reporting Requirements
#
One of the biggest causes of worries in regard to the application of the law lies in the fact that the law authorizes government agencies to collect information without any reference to any specific purpose or any provision contained either in this law or other legal acts, and without even trying to substantiate or elucidate how the authorized bodies of power will interpret or use the acquired information. For instance, it would seem logical if an organization, which enjoys tax benefits, say, a tax-exempt entity, would provide the state with accounts of how the said benefits have been used. Similarly, in the event of a government funding of an NGO, or in the event of an NGO being awarded a government grant or a procurement contract, the reporting requirement would serve the purpose of transparency and accountability regarding the use of the earmarked resources and its consistency with the purpose of the allocation. In this connection, it deems expedient to amend the wording of Section 3, Article 32 of the Law on Non-Commercial Organizations and narrow the circle of organizations mandated to submit reporting in compliance with the form established by the Government of the Russian Federation.
Sanctions for failure to submit information #
Sanctions for repeated failure to submit the required information within the set time frame on the part of a public association or an NGO may include initiation by a body of registration of court proceedings seeking liquidation of the NGO and its subsequent exclusion from the Unified State Register of Legal Entities (Section 10, Article 32 of the Law on NGOs, and also Parts 3-5 of Article 29 of the Law on Public Associations). This is a very harsh sanction. Just two instances of failure to submit the required reports may lead to a motion to dissolve the organization by the way of a court ruling. It should also be noted that for public associations this provision is even harsher: the motion to dissolve may follow a one-time failure to submit financial report in accordance with the new forms. For the sake of comparison, a repeated failure by a business company to submit tax returns is punishable by a fine which may be levied on the organization or its management. This provision is but a vivid manifestation of the discriminatory nature of the way the law treats non-profits vs. commercial entities. It would seem fair to grant equal rights to all legal entities registered on the territory of the Russian Federation and substitute the sanction of initiating court proceedings seeking liquidation of an organization with the one that would seek levying an administrative fine.
Authority to exercise control and oversight by the registration body #
Another cause for worries is the authority to exercise control and oversight that was granted to the registration body. The law stipulates rather aggressive mechanisms of auditing the activities of public associations and NGOs without providing for any procedural means of protection. The very fact that the European Convention recognizes freedom of association as a universally protected right should inevitably entail certain restrictions on the accepted level of regulation. The essence of freedom of association is ensuring the right of participants in an association to decide how the association’s activities should be structured, consequently, any outside regulation should be brought to the very minimum, and should exclude any interference into the association’s and its participants’ decision-making in regard to the way their activities should be organized. The level of interference of the state into internal affairs of NGOs, provided for by the Russian legislation, by far exceeds the limited capabilities of the state to regulate the right of association stipulated by Article 11 of the European Convention on Human Rights and Fundamental Freedoms.
The body of the state registration possesses three broad powers that allow it to interfere into internal affairs of public associations and NGOs (section 5 of Article 32 of the Law on NGOs):
· The right to request administrative documentation of an NGO’s governing body . The body of registration is thus entitled to summon documentation related to details of the NGO’s management, running the organization on the day-to-day basis, and also those related to controlling the management and exercising oversight over the obtained financial resources and the way the said resources are spent. All of these issues should remain the internal affair of the organization and should not be controlled by the state unless there is a substantiated need to do so.
· The power to send its representatives to attend any event carried out by an NGO. The Law authorizes the state body of registration to send its representatives to attend any (no exceptions) event held by organizations. Thus, government representatives may attend meetings of organizations devoted, for instance, to such issues as financing organizations engaged in monitoring corruption in government agencies. As a result of the participation of a government representative, both the donor and the grantee may become targets of pressure on the part of the state aimed at precluding from the implementation of their mission. Government representatives may attend internal strategic meetings of a network of ecological NGOs planning protest actions against the government’s policy in the field of environment, which would result in the inability of the organizations to implement their campaign. Granting government agencies with such powers may block the capacity of organizations to carry out events and paralyze the desire of their members, stakeholders and other people to participate in these events. Meanwhile, Article 8 of the European Convention protects the right to privacy and can be applied to protect professional and economic activities, as well as protecting the premises where the said activities are being carried out from arbitrary interference of public authorities. Proceeding from this, we may conclude that NGO offices, including premises occupied by public associations, should be protected by the international law in a similar way. This should not preclude the government agencies from inspecting the premises or obtaining, under special circumstances, the internal documentation of an organization, but only within certain scope precisely formulated by the legislation and compatible with the international standards of the right of association.
· The power to verify the consistency of an organization’s activities with its declared purposes . The bodies of registration check on the consistency of the organizations’ activities with their constituent goals, although the registration agency by itself may not possess enough knowledge and experience to judge whether this or other activity is aimed at attaining the goals of the organization. It should remain the domain of the management of this particular organization to decide whether any specific activity is consistent with the organization’s declared mission. Any state interference into exercising this function deems inappropriate and inexpedient.
Thus, it is necessary to introduce amendments into Section 5, Article 32 bringing the provision in compliance with the acceptable level of state interference into internal affairs of an organization stipulated by Article 11 of the European Convention on Human Rights and Fundamental Freedoms.
The authors of this paper would like to hereby assert that introducing the aforementioned amendments into the Russian NGO legislation would allow for bringing it into compliance with the international standards in this field, promote the development of civil society institutions in the country, and would also meet the recommendations of international human rights bodies concerning NGO-related legislation.
