Judgment of the Constitutional Court of 8 April 2014 № 10-П on the review of constitutionality of the provisions of paragraph 6 of Article 2 and paragraph 7 of Article 32 of the Federal Law “On Non-Commercial Organisations”, part 6 of Article 29 of the Federal Law “On Public Associations” and part 1 of Article 19.34 of the Administrative Offences Code of the Russian Federation in connection with complaints of the Commissioner for Human Rights in the Russian Federation, citizens Smirensky, Yukechev, Kuz’mina and the Foundation “Kostroma Centre for Public Initiatives”

Legal issue: the constitutionality of the contested provisions, so long as they enable classifying a non-commercial organization (NGO) as a “foreign agent” in extra-judicial procedure  and allow the imposition of unjust and disproportionate sanctions on NGO’s officials in case of their refusal to apply for being included into a special register of foreign agents. 
Ratio decidendi:  in the opinion of the Court, any attempts to find negative connotations in the phrase “foreign agent” are based on the stereotypes of the Soviet period which have already lost their significance in current realities and have no constitutional legal grounds. The organisation which is regarded as a foreign agent is not deprived of the possibility to participate in political activity in the territory of the Russian Federation, and therefore is not discriminated against as compared with HGOs, not having foreign financing. At the same time, any objective difficulties in estimation of the nature of the activity of an HGO which if financed from foreign sources must be resolved on the basis of the presumption that its activity is lawful and in good faith. The burden of proof as to the necessity of inclusion of an HGO into the register of foreign agents is placed upon the respective bodies of the State.  As for the sanctions for the failure to submit an application for such inclusion, their  gravity may be reduced by a court below the lowest level provided by legislation. 

Dissenting opinion:
  • The contested provisions do not conform to the Constitution. They contradict themselves: for instance, a NGO with a foreign source of financing, which forms zero tolerance to corruption behaviour in contrast to the complacency of the government with respect to the problem of corruption, may be automatically held to be an organisation performing the functions of a “foreign agent”, and, as a result, be brought to administrative liability. The definition of “political activity” contained in the Law on non-commercial organizations does not allow answering unequivocally and consistently to the question which activities may be regarded as “political” ones. The legislation treats non-commercial organisations performing functions of a foreign agent in a way which implies a negative attitude to such organisations on the part of the State. The contested provisions clearly originate in the 1939 US law called FARA, which at the moment of adoption was mainly leveled against Nazi activities in the USA before WWII.  

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Subject area:
Civil Law non-commercial entities