13.12.23 Repressions Review

Unfriendly Status: Expanding the scope of the 'foreign agent' label and its related restrictions, the Russian authorities are looking for a reliable bridge to criminalise those with this status

The publication Mediazona has recorded a significant increase in the number of fines for violations of the 'foreign agents' legislation — rising gradually since March-April 2023 this increase has been explosive since July. In October, the number of new cases against 'foreign agents' reached 26 per week. The authorities are preparing for a repressive campaign to bring criminal cases against them for repeated violations of the law. Currently, 57 'foreign agents' are being threatened by such a prospect. The 'foreign agent' status, which at first seemed like a 'friendly' method of putting pressure on NGOs, over the 10 years since it was introduced in Russia has turned into a real factory of persecution, affecting not only NGOs but also directly freedom of speech and opinion. Today, the list of 'foreign agents' and 'undesirable organisations' in Russia includes over 850 entries. And more than half of the list is made up of individuals and organisations that were added after the start of the war. The only thing this machine has lacked was a reliable bridge to criminal prosecution. The evolution of the 'foreign agent' legislation in Russia leaves no doubt that it is an effective tool for the autocratisation of the regime (the creeping consolidation of authoritarianism). It should serve as a warning to the civil society of those countries whose authorities are trying to learn from the Russian experience.

The Russian authorities are preparing for a new repressive campaign that will be directed against individuals and organisations with the 'foreign agent' status. It involves the mass initiation of criminal proceedings against them on the basis of rulings 'on evasion from performing the duties as a foreign agent' or the prejudicial mechanism that triggers criminal prosecutions following the repeated (within a year) violation of the associated legislation, as reported by Mediazona

The publication has examined the data of district courts (which confirm the procedings and issue decisions on fines) and found that since March-April 2023, there has been a gradual increase in the number of fines imposed on violators of the 'foreign agents’ law, while July-October 2023 saw a drastic jump in the number of fines. By autumn 2023, courts were receiving up to 20 cases per week, followed by fines. The peak number of cases (26) for failure to submit reports to the Ministry of Justice or errors within these reports occurred in October 2023, the month of mandatory quarterly reporting for 'foreign agents'. At this point, Mediazona believes that the authorities are close to the next step — criminal prosecution of 57 people with 'foreign agent' status based on the repeated violations of the law.

This effect could be attributed to the general increase in the number of 'foreign agents' over the past two years; however, previously, the drawing up of protocols on the absence of 'foreign agent' labelling or failure to submit a report was a relatively rare phenomenon. Now it has acquired the character of a campaign directed, in particular, against 'foreign agents' located abroad, outside the reach of Russian law enforcement agencies. And on the whole, such a turn fits logically within the evolution of the 'foreign agent’ concept — an innovative tool of repression adopted by the Russian authorities more than a decade ago.

During this time, the institution of the 'foreign agent', which first appeared in Russian legislation in 2012, has transformed into a veritable factory for the persecution of dissent. The specificity of this practice lies in the fact that it does not resemble standard repression and involves only a partial (although over the years increasingly significant) loss of rights, but it is applied extrajudicially. The Russian authorities and President Vladimir Putin like to reference the American FARA law as a model and precedent, but these references are deceptive both in terms of the legal framework and the practical application, the Russian and American 'foreign agent' laws have little in common.

Another peculiarity of the practice of prosecuting 'foreign agents' in Russia is the 'creeping' nature of its toughening, in line with the regime's evolution towards increasing repression. In 2013, when the 'foreign agency' legislative amendments first came into force, they exclusively looked like a measure of influence by a semi-authoritarian state on professional non-profit organisations. But they still became a challenge for Russian NGOs, significantly altering the structure of the civil sector. In 2013 alone, Russian NGOs collectively received fines totalling 2 million rubles under the new amendments. Some organisations were forced to restructure or shut down their activities, but most were able to adapt to the new rules. During this period, the main goal of the law was to monopolise state funding of the third sector. In parallel with its use as a restrictive measure, the Kremlin began to develop a system of grants designed to format and control the activities of non-profit organisations (for more on this, see Re:Russia's report on 'The Dictatorship of Non-Civil Society').

In addition to tightening the rules and restrictions associated with the status of 'foreign agent', the Russian authorities expanded the scope of its application several times, first extending it from non-commercial organisations to the media, and then inventing the status of 'foreign agent' for individuals. These innovations contradicted the original essence of the legislation as a tool for regulating the activities of NGOs, turning it into an instrument of extrajudicial restriction on freedom of speech. Furthermore, as a more stringent form of persecution against non-profit organisations and media outlets in the second half of the 2010s, a practice was developed and implemented—also extrajudicial—of designating NGOs, media, or even non-existent legal entities as ‘undesirable’. The difference was that the granting of such a status opened up the prospect of immediate criminal prosecution of individuals who were associated with the organisation.

While pressure on NGOs through the assignment of the ‘foreign agent’ status began in 2013, and its use to suppress freedom of speech has been practised since 2019, the Ministry of Justice turned the 'foreign agent' law into a real persecution factory with the outbreak of the war. Currently, the Ministry of Justice's list consists of 858 entries, of which 737 are various categories of ‘foreign agents’, and 121 are ‘undesirable organisations’. There are 383 individuals and 475 legal entities on the list. One third of them (31%) are media outlets, including so-called media-individuals, i.e. these are cases of suppressing freedom of expression. The second largest category is political associations (9.2%). Research, awareness-raising, educational and human rights organisations each account for 6-7% of the total.

The first major wave of persecution against non-profit organisations came in 2015, when 86 NGOs were included in the registry. Subsequently, the Ministry of Justice's activity declined, and in 2018, only 12 new organisations received the 'black mark'. But after the extension of the 'foreign agent' status to the media and individuals, i.e. turning it into an instrument of persecution of freedom of speech, the rapid expansion of the register began: in 2020, 29 'foreign agents' were identified, and in 2021, 128 were added to the list at the same time. The procedure was accelerated after the full-scale invasion of Ukraine: in 2022, the list was expanded by 211 items, and by mid-December 2023 — by another 266. Thus, today more than half (53%) of those on the list of 'foreign agents' and 'undesirable organisations' are entities added to it during the war.

Additions to the registry of 'foreign agents' and 'undesirable organisations', 2013-2023

The institution of the 'foreign agent' has indeed proved to be a successful innovation and a convenient instrument of autocratisation. It not only camouflages repression with the relative 'softness' of the requirements imposed on 'foreign agents', but also legitimises the fight against dissent and undesirable public activities as a fight against 'foreign influence'. As we can see, it allows for a gradual tightening of repression and an expansion of its scope as society ‘adjusts’ and the regime becomes more stringent.

Unsurprisingly, this experience is spreading internationally. An attempt to introduce the 'foreign agent' status was made by the Yanukovych regime in Ukraine in early 2014 during the Euromaidan. Since the beginning of 2023, thanks to amendments to the Tax Code, a similar instrument has appeared in Kazakhstan. The authorities of Kyrgyzstan and Georgia are also trying to introduce this designation, here similar draft laws caused mass protests and were postponed as a result of their pressure. 

As the Russian case shows, if autocratisation is successful, the further evolution of this instrument includes both gradual tightening of restrictions for 'foreign agents' and expansion of the scope of this status. And in the case of the consolidation of an authoritarian regime, the 'foreign agent' status becomes an instrument of criminal prosecution for 'non-criminal' offences, i.e. for those that do not exist in the Criminal Code.