Discrediting connections: why will the Ministry of Justice look for assistants to foreign agents

The Ministry of Justice submitted for discussion draft amendments to the government decree, which will give it the right to come with unscheduled inspections not only to foreign agents themselves, but also to those who help them violate Russian law. Lawyer Maxim Krupsky draws attention to the fact that there are no clear criteria for potential violations of the amendments, so the question of who should prepare for such inspections remains open.

By Maxim Krupskiy, Visiting Scholar of the Russia and Eurasia Program at The Fletcher School of Law and Diplomacy

Since the adoption of the first version of the Russian law on “foreign agents” in 2012, it has become one of the main tools for suppressing civil society. In 2022-2023, against the background of the “special operation”*, the fight against foreign “contagion” was expected to intensify, and the “foreign agent” legislation was extended to a wider range of persons. Thus, the latest amendments to the Law “On Control over the Activities of Persons under Foreign Influence” concern not only those branded as a foreign agent, but also any public authorities, organizations and persons who interact in any way with foreign agents.

Part 5 of Article 1 of this Law, in particular, obliges the listed persons in the exercise of their activities to “take into account the restrictions related to the status of a foreign agent”, and also prohibits them from “providing to the violation by a foreign agent of the legislation of the Russian Federation on foreign agents”. In case of violation of these requirements, the perpetrators should expect an official written warning indicating the time frame for eliminating the violation. Provided that the warning is ignored, they may already face administrative liability in the form of a fine in the amount of 30,000 to 50,000 rubles, for officials – from 70,000 to 100,000, for legal entities – from 200,000 to 300,000 rubles.

Arbitrary interpretation

Traditionally, the Russian legislator has tried to avoid clarity and certainty of the content of the adopted legal norms, so it is only to guess how to “take into account the restrictions” concerning foreign agents, as well as what is meant by “prolonging” to the violation of Russian legislation by a foreign agent. It can be assumed that these are cases where the public school continues to cooperate with a teacher recognized as a foreign agent, despite the legislative prohibition for foreign agents to teach minors. Or, for example, about someone receiving money from a foreign agent for the purpose of organizing and holding a public event, since foreign agents are prohibited from financing such activities. The mentioned amendments may also affect state bodies that have allocated money for the creative project of a foreign agent – state financial and other property support for foreign agents is prohibited.

Despite the apparent transparency of the above examples, the content of the concepts of “consider restrictions” and “contribute to violation” can be interpreted as widely as possible, and the technical feasibility of complying with the proposed norms in a number of cases is quite doubtful.

Nothing prevents the law enforcement agent from extending the above norms, for example, to the bank through which the money transfer takes place within the framework of the contract between the foreign author and the children’s book publishing house for the publication of the book. According to the law, foreign agents are prohibited from producing information products for minors – writing and subsequent publication of a children’s book by a foreign agent in this case will be a violation of the law. However, the publication of the book cannot be carried out without the participation of the bank, thanks to the services of which financial settlements between the parties to the transaction are possible. According to the logic of the legislator, the bank in this situation contributes to the violation of the law by a foreign agent with all the ensuing consequences. Does this mean that banks will now have to check the current version of the register of foreign agents before approving a particular transaction?

There are quite a few such controversial examples.

Wait for the check

The situation is even more complicated with the identification of the described violations of the law provided for by the amendments. On August 28, the Ministry of Justice published a draft amendments to the Government Resolution №1996 of November 5, 2022 regarding the notification of the prosecutor’s office about unscheduled inspections of foreign agents and other persons. The proposed changes are based on the same amendments that give the Ministry of Justice the right, including to conduct unscheduled inspections of persons who “by their actions (inaction) contributed to the violation by foreign agents of the legislation of the Russian Federation on foreign agents”.

The question of who should prepare for such inspections remains open – as already noted, the amendments do not contain clear criteria for potential violations. According to the law, the basis for an unscheduled inspection in this case is the receipt of information to the Ministry of Justice about violations of the law from public authorities, organizations and individuals. That is, another field is being opened for the activities of various activists who are now seeking recognition of certain public figures by foreign agents.

The obvious consequence of the application of the amendments in practice will be an increase in fear and mistrust in Russian society, primarily to independent civil initiatives. No one wants to get on a pencil and even more so does not want to be the object of inspections. This means that people will even more actively refuse to interact with those whom the Russian authorities considered unreliable, so as not to get hit themselves. This is a tactic of stigmatization of foreign agents, in which the state seeks to make the entire Russian society an active accomplice in this process. On the other hand, such initiatives inevitably lead to people’s desire to demonstrate their loyalty to the authorities – which means that the practices of actual denunciation of those who contribute to the violation of the law by foreign agents will only develop in the near future.

* According to the requirement of Roskomnadzor, when preparing materials on the special operation in eastern Ukraine, all Russian media are obliged to use information only from official sources of the Russian Federation. We cannot publish materials in which the operation is called “attack”, “invasion” or “declaration of war” unless it is a direct quote (Article 57 of the Federal Law on the media). In case of violation of the requirement, a fine of 5 million rubles may be collected from the media, and the publication may also be blocked.

The opinion of the editorial board may not coincide with the opinion of the author.

(This post is republished from Forbes Russia.)