Ecodefence v Russia: The ECtHR’s stance on Foreign Funding of Civil Society

On June 14^th, the European Court of Human Rights (ECtHR) added its voice to the critics of the Russian Foreign Agents Act with its judgment the Case of Ecodefence and Others v. Russia. Ever since the Act was passed in 2012, it was severely criticized by both Russian civil society and international institutions, including the Venice Commission, the Human Rights Committee, the Committee on Economic Social and Cultural Rights, the Committee against Torture, and the Commissioner for Human Rights of the Council of Europe. In this line, the ECtHR found a violation of Art. 11 of the European Convention on Human Rights (ECHR). The Court argues that the law was not foreseeable and that, moreover, the restrictions set on non-governmental organizations (NGOs) were not “necessary in a democratic society”.

The judgment comes at a distraught time. After the Russian aggression against Ukraine and the ensuing violations of International Human Rights Law and International Humanitarian Law, the Council of Europe (CoE) excluded Russia in accordance with Art. 8 of its Statute. Accordingly, Russia will seize to be a member of the ECHR in September 2022 and the ECtHR will not accept new cases against Russia. Against this backdrop, it is highly unlikely that Russia will comply with the ECtHR’s judgment.

However, the judgment has a high precedential value as it weighs in on multiple questions concerning the foreign funding of civil society, particularly with a view to similar laws in other ECHR member states. This blogpost outlines the case and the background of the Russian Foreign Agents Act. It then highlights the Court’s contributions to the legal regulation of foreign support to civil society organizations. To conclude, some thoughts on the path ahead for Russian (and other) civil society organizations are presented.

The Foreign Agents Act and its context

The Court grouped 61 applications by 73 applicants in this judgment. The applicants were either NGOs that had been listed as “foreign agents” under the Foreign Agents Acts or their directors that had received administrative or criminal sanctions in connection with the act. The Russian Parliament (Duma) passed the first version of the Russian Foreign Agents Act in 2012, but went on to amend and restrict the law throughout the subsequent years. In order to increase transparency, the law mandates NGOs which receive “foreign funding” and engage in “political activity” to register as a “foreign agents”. As of 2014, the Russian Ministry of Justice acquired the right to place NGOs on this list, if they had not registered themselves prior. The Foreign Agent Act defines a “foreign agent” as:

“a Russian non-commercial organisation receiving funds and other property from foreign States, their governmental bodies, international and foreign organisations, foreign nationals, stateless persons or persons authorised by [any of the above], or Russian legal entities receiving funds and other property from the above-mentioned sources … and which engages in political activity, including political activity carried out in the interests of foreign providers of funds, in the territory of the Russian Federation.” (para. 15).

The “foreign agent” status, first, entails an increase in administrative burdens. In comparison to other NGOs, “foreign agents” are audited more frequently (up to four times a year) and have to incur higher costs for these audits. Second, the registered “foreign agents” are required to label themselves publicly as such. This includes any publication by the NGO, including on social media. If an NGO fails to comply with these regulations it will be subject to administrative sanctions and its directors could face criminal sanctions.

Ever since the law was passed, critics had predicted and warned that the Foreign Agents Act was a measure to crack-down on civil society and create dependencies of the civil society on the Russian state. The official reasoning presented by the Russian government and the Duma to increase transparency among civil society organisations was considered a fig leaf for the actual intentions. The Foreign Agents Act is considered one of the first steps in the Russian government’s fight against so-called “color revolutions”. The four “color revolutions” in Yugoslavia (2000), Georgia (2003), Ukraine (2004), and Kirgizstan (2005) toppled authoritarians through peaceful protests. Some of the groups involved in the organization of the peaceful protests had received funding and training in nonviolent resistance methods from foreign governments. After such protests reemerged in the “Arab Spring” of 2011, the Russian government under Vladimir Putin began to fear for its own survival. Alongside the measures directed against the Russian civil society, the Russian government implemented an aggressive foreign policy to inhibit “color revolutions”. It started labelling any form of support to protest movements or other civil society groups as violations of the principle of non-intervention and assisted other states in crafting their own “foreign agents laws”. It is thus unsurprising that the fight against “color revolutions” has a central role in the recent Sino-Russian Declaration on International Relations of February 4^th, 2022.

Interferences and the Right to receive foreign funding?

Turning back to the case, the Court found five interferences with the Right to Freedom of Association paras. 81-86). First, the dissolution of several of the applicant organizations based on the law interferes with their right to freely associate. Second, the burdensome administrative obligations including the entailing financial burdens inhibited the NGOs’ activities amounting to an interference. Moreover, the “voluntary” dissolution of several NGOs against the backdrop of this distress was considered not be free, thus constituting an interference with Art. 11. Fourth, the stigma levied on the NGOs through their labelling as a “foreign agent” impaired their ability to seek funding through the Russian public and private sector and engage in in societal activities (para. 126). Fifth, and perhaps most controversially, the Court determines that restrictions on seeking funding from foreign sources interferes with the freedom of association (para. 84). Although the Court does not say so explicitly, this finding entails the assumption that associations have a right to seek foreign funding (see also para. 116).

The last question has been subject to severe controversies in recent years. Whereas it is widely recognized that associations, as they are non-profit by nature, must have the ability to seek funds from donors (see e.g. the Declaration on Human Rights Defenders, UNGA/Res/53/144), it has been contested whether this includes foreign sources. When a former UN Human Rights Council Special Rapporteur on the Freedom of Association argued in favor of a right to seek foreign funding in 2013, controversial debates followed in the Human Rights Council (see the analysis by Wolff and Poppe). Several states, held the opinion that they had the right to restrict foreign funding to NGOs as an element of their sovereignty. Foreign funding, so their argument goes, distorts the internal political processes and infringes their sovereign right to decide upon their own political system. The ECtHR wholly rejects this argument for member states of the ECHR (para. 139):

“In essence, the regulation appears to be based on a notion that matters such as respect for human rights and the rule of law are “internal affairs” of the State and that any external scrutiny of such matters is suspect and a potential threat to national interests. This notion is not compatible with the drafting history and underlying values of the Convention as an instrument of European public order and collective security: that the rights of all persons within the legal space of the Convention are a matter of concern to all member States of the Council of Europe.”

Accordingly, the Court rejects the assumption that foreign funding from other ECHR members states distorts the internal political processes (para. 165). This clear stance on this question echoes a recent judgment by the Court of Justice of the European Union on the Hungarian Transparency Law for NGOs. Similarly to the CJEU, the Court highlights that the civil societies of the member states are interconnected. An outright restriction on foreign funding is incompatible with this idea.

The first important contribution of this judgment is thus the affirmation that NGOs generally have a right to seek funding from foreign sources which is interfered with, if foreign funding is restricted through administrative or other burdens.

Not necessary in a democratic society

After determining the various interferences by the Foreign Agents Act with Art. 11, the Court examines whether these are justified in terms of Art. 11 para. 2. After noting the importance of NGOs for pluralism and democracy (para. 88 ff.), the Court examines whether the restrictions were “prescribed by law”. In line with the Courts longstanding jurisprudence, the restrictions must not only be based on a law, but this law must also indicate sufficiently clear and foreseeable how and when the law will apply. To this end, the Court scrutinizes the two key terms employed by the Foreign Agents Act.

Concerning the first criterion of “foreign funding”, the Court rightly notes that in the practice of Russian authorities and courts, foreign funding could amount to any minimal financial transaction from foreign institutions that were in no way connected to the activities of an NGO or determined their operations. This led to  “absurd situations” (para. 107) in which NGOs were placed on the foreign agents list by the Russian Ministry of Justice for receiving a refund from a hotel in Norway where the NGO had organized a workshop (para. 259), or for receiving a computer or software license from an international company (para. 166). Moreover, the criterion “political activity”, which the Court finds to be “inherently vague” (para. 104) was applied arbitrarily to the NGOs in question. In particular, the NGOs engaging in activities that were generally considered not to be political by the Foreign Agents Act, such as environmental and social activities, were frequently added to the list of “foreign agents” (paras. 96 ff.). Therefore, the Court arrives at the conclusion that the Foreign Agents Act does not meet the requirements of foreseeability. Accordingly, the interferences were not “prescribed by law” (para. 118).

However, the Court goes on to assess whether the restrictions placed upon the Russian NGOs were “necessary in a democratic society”. The Court accepts that the Foreign Agents Act pursued a legitimate aim by seeking to increase the transparency in the funding of civil society (para. 119-122). However, the law was not necessary to pursue this legitimate aim.

First, the administrative and criminal burdens levied on NGOs receiving foreign funding did not serve the purpose of increasing transparency. The additional auditing requirements only changed in frequency and not in substance. The additional burdens therefore did not reveal any additional information that could be beneficial in terms of transparency. In any event, the high frequency of audits (up to four times per year) where disproportionate towards this aim (para. 159).

Moreover, the Court observes that the law was used to quash dissenting opinions in Russian civil society. The Court notes that one the most important forms of expressing one’s opinion is through collective mechanisms. The ability to join an association and voice concerns and opinions collectively is therefore an essential aspect of the right to freedom of expression and of democratic life as a whole. By arbitrarily branding NGOs as “foreign agents” – which carries a severe stigma in Russia – the Russian government cut off NGOs from the public discourse and public funding opportunities. The law thus served as a “tool” (para. 158) to undermine independent NGOs and exercise control over Russian civil society.

Third, the Court argues that generally speaking restrictions on foreign funding of NGOs are not required to ensure the integrity of public discourse or state sovereignty a s a whole (165 ff.). As outlined above, the Court implicitly assumes that Art. 11 entails for NGOs to receive foreign funding. This right may only be restricted for certain reasons, which include the prevention of terrorism and extremism (para. 165). The Court writes:

“The Court concurs with the CJEU in that the objective of increasing the transparency of the financing of associations, although legitimate, 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. A regulatory framework needs to correspond with the scenario of a sufficiently serious threat to a fundamental interest of society, which those obligations are supposed to prevent Russia did not bring sufficient evidence why it was necessary in this case.“ (para. 166)

Accordingly, Russia did not put sufficient arguments forward why the increased transparency for NGOs receiving foreign funding was necessary to avert specific risks. In the 2007 Parti Nationaliste Basque case, the Court held that the French law banning financial contributions from foreign governments to political parties was in line with the convention. The Court accepted France’s argument that the (financial) independence of political parties from foreign states was a requirement for them to serve solely the interests of the electorate. In difference thereto, the Russian law prohibited foreign funding too broadly and too indiscriminately.

After thoroughly assessing the Russian Foreign Acts the Court thus finds a violation of Art. 11.

Outlook

The ECtHR’s judgment comes too late for Russian civil society. The space for civil society had already been shrinking continuously throughout the last years. Its deathblow came with the Russian invasion against Ukraine on February 24^th. The majority of independent Russian NGOs and media outlets has dissolved or gone into exile.

However, I want to highlight three possible contributions. First and foremost, this judgment adds a strong voice to the ongoing discussions on foreign funding of NGOs. It clarifies that the societies of the ECHR member states are interconnected and cannot be shielded from one another on the grounds of protecting sovereignty. Particularly in times of backlash against democracy (promotion), this judgment provides strong arguments for those supporting open and plural societies.

Secondly, the judgment is a clear signal to other ECHR member states that have taken interest in the Russian clampdown on civil society. The many third-party interveners from Hungary and Poland illustrate this.

Third, the judgment could also shape the EU’s and its member states interactions with Russia and its civil society. Some state-run democracy promotion agencies have shied away from activities in Russia due to the severe legal restrictions. However, it has been a longstanding policy of the United States that it will disregard restrictive laws on civil society funding, if they restrict human rights and democracy to severely (see here at 52). Now, a judgment by the ECtHR confirms that the Russian limitations on foreign funding for NGOs is incompatible with the ECHR. Accordingly, the EU and its member states could adopt the US position and proceed to fund Russian civil society despite of the Foreign Agents Act.

The judgment will therefore have a central role in the regulation of foreign funding to civil societies and the ensuing implications.