Lev Levinson. State regulation of private life

As an exception, we publish from the 92nd issue of the bulletin of non-governmental organizations "Law-making process in the State Duma: human rights analysis" Lev Levinson's article "State regulation of private life", dedicated to the law on NGOs published yesterday by "Rossiyskaya Gazeta".

Federal Law (Draft N 233364-4) "On Amendments to Certain Legislative Acts of the Russian Federation" , introduced by deputies Sergey (Aleksandrovich) Popov, Vladimir Pligin, Konstantin Kosachev, Andrey Kokoshin, Valery Galchenko, Svetlana Smirnova, Andrey Makarov, Mikhail Yemelyanov ( EP), Natalia Narochnitskaya, Alexander Chuev ("Motherland" Rogozin), Anatoly Greshnevikov ("Motherland" Baburin), Yuli Kvitsinsky, Sergei Reshulsky (KPRF), Alexei Ostrovsky (LDPR), Anton Bakov (outside factions, in November 2005 joined to the United Russia faction) was adopted on November 23 in the first reading, on December 21 in the second, and on December 23 in the third reading. On December 27, the law was approved by the Federation Council.

Considered in the last issue of the bulletin in the version of the first reading, the project caused a heated public discussion that spread beyond the borders of the Fatherland.

The moment is indeed a turning point. Until now, the efforts of the authorities in the field of political legislation have been mainly aimed at building their own bastions - the suppression of federalism, the optimization of the electoral system, the weakening of parliamentarism, the nationalization of political parties and local self-government (although parties and LSG are zones, by definition, external to the state). With each of these steps, the areas of state regulation were expanded, the field of social independence, the space of civil society, was reduced. Parties are now formed from above, the so-called LSG is inscribed in the power vertical, and in the lower, supporting link - settlements and territorial public self-government - is weakened, drained of blood.

And so the government came to grips with the body of private life, the social organism - associations of citizens, in order to put them under its control.

At some point, it seemed that this line would not be crossed. In 2004, freedom of assembly, jeopardized by the Government's bill on assemblies and rallies, was protected by presidential amendments. The Russians received a liberal law on public actions. But freedom of peaceful assembly is inseparable from freedom of association. Otherwise - to whom to gather?

Secret development, hasty stuffing of the bill, an international scandal, manipulations with the expertise of the Council of Europe secretariat of the Council of Europe, indicates otherwise). Then - the presidential conclusion.

The President did not propose textual amendments, as, according to Article 120 of the Duma Rules of Procedure, should be done in the second reading procedure: "amendments to a bill adopted in the first reading are submitted to the responsible committee in the form of a change in the wording of the articles, or in the form of supplementing the bill with specific articles , or in the form of proposals for the exclusion of specific words, paragraphs, parts or articles of the bill. Instead, a half-lyrical narrative full of ambiguities came from the Kremlin, in which readers through rose-colored glasses see almost a triumph of human rights thought, and translators of meanings are instructed to resort to camouflage, to portray a tactical retreat in order to more successfully complete the assault on independent NGOs.

Special operation - introduction of a draconian bill secretly prepared and not discussed with the public, affecting fundamental rights and freedoms and democratic institutions - quickly pushing it through the first reading in the Duma without sufficient time for discussion - a superficial "improvement" by the president of the bill without changing its repressive essence and introducing into the final version of other, even tougher, but not so primitive instruments of control in response to criticism at home and abroad - once again succeeded.

What was its legislative result?

Positive (compared to the text of the first reading) changes are few. A story was removed with the obligatory notification by a public association that does not have the status of a legal entity about its creation and the beginning of its activities ("here, your excellency, Petr Ivanovich Bobchinsky lives in such and such a city"). A complete ban on the existence of branches and representative offices of foreign NGOs in the Russian Federation is excluded - most likely, this horror story of the original version was intended for subsequent demonstrative "improvement". The total re-registration of all non-profit organizations has also been canceled, although many NGOs will still have to make changes to the charter and actually undergo re-registration. Finally, the law is planned to come into force with a slight delay - after 90 days from the date of publication, and not from January 1, 2006, as it was said at the beginning.

This is where the improvements end - improvements over the text of the first reading. There are no improvements regarding the current wording of the amended laws, with the exception of one, not so significant, article 38 of the Federal Law "On Public Associations". It should still be mentioned - for the sake of objectivity. If at present, in the event that public associations detect violations of the law or commit actions that contradict the statutory goals, the Federal Registration Service can issue a written warning indicating the specific grounds for issuing a warning, now it is added that the appointed period for correcting violations cannot be less than a month . The very right of the state to control the compliance of activities with the charter raises fundamental objections from the author's analysis. But the establishment of a minimum period somewhat streamlines the procedure, as soon as one can be started. Although, in principle, the internal problems of public associations, as well as other NGOs, are a matter of self-regulation, and not departmental control.

In contrast to a single microscopic correction, the impairments resulting from the law compared to the current legislation are fundamental.

1. The freedom zone, protected to this day by the law "On Non-Commercial Organizations", is being liquidated. NCOs find themselves in the mode of permissive registration (instead of declarative) and total control over the "authorized body" (ie Rosregistration) . Unacceptable, contradicting the very meaning of the right to association, the permissive principle of registration, originally (since 1995) provided for by the current law "On Public Associations" (covering only a part of NGOs), will now be extended in an expanded format to all non-profit organizations. The equality of subjects of civil legal relations - commercial and non-commercial organizations is being lost. For the former, the former liberal conditions are preserved, while the latter are fenced off with a "thorn". The introduced special regime now covers all non-profit organizations (except for state authorities, other state bodies, local self-government bodies, state and municipal institutions) - educational, scientific, cultural, sports. All of them will go through Rosregistration and write reports to officials on their activities, on the implementation of statutory goals and objectives, on spending funds corresponding to these goals, and also receive officials as guests at their events.

2. The right of Rosregistration officials, proposed in the first reading version, to get acquainted with the financial and economic documents of NCOs without any restrictions, is slightly camouflaged in the final version, as it was prescribed in the President's conclusion. But the essence - total control - remained the same. The right of those in control to receive all information has been replaced by the duty of those under control to provide it. Non-profit organizations are forced, with an indefinite law regularity, to submit to Rosregistration or its territorial bodies reports on their activities, on the implementation of goals and objectives with confirmation of compliance with the constituent documents of spending funds (Article 32 of the Law "On Non-Profit Organizations", which is becoming one of the key articles of the new law) . The last requirement also applies to religious organizations: they will also inform the state about the achievement of their supernatural goals. At the same time, the forms and terms for reporting are not defined by law. The Government will determine them by its decisions - in a free fantasy flight. Documents were not provided twice - the question of liquidation is raised.

Rosregistration bodies are empowered not more than once a year to conduct audits of the compliance of the activities of NPOs with their statutory goals, including in terms of spending funds . Naturally, the format and duration of such checks is not limited in any way; audit "once a year" can be stretched for half a year, and even for 12 months.

In addition, Rosregistration, which is becoming a kind of super agency larger than drug control (and as senseless and harmful as it is), will have the right to request information about the financial and economic activities of NGOs from tax and other control and supervisory authorities, and even from financial and credit organizations , i.e. e. in banks.

1. The reasons for the liquidation and prohibition of the activities of NGOs are repeated violations of any legislation (even on fire safety) or one gross violation (Article 18 of the Law "On Non-Commercial Organizations"). Whether it is rude or not will be decided first by the officials of the Federal Registration Service or the prosecutor's office, and then, at their request, by the court.

2. There is a loss of the right to association. Persons held in places of deprivation of liberty by a court verdict are prohibited not only from founding, but also from membership and participation in a public association (Article 19 of the Law "On Public Associations"). The targeting of the strike on the imprisoned Khodorkovsky is obvious, as is the unconstitutional nature of such a restriction. In addition to criminal punishment, the rights of a person held in places of deprivation of liberty may be limited only in the part directly established by the Constitution, namely, the right to elect and be elected. According to article 3 of the Criminal Code, the punishability of an act is determined only by the Criminal Code. The punishment envisaged by it in the form of a prohibition to engage in certain activities is applied, following the basic principle of individualization of punishment, “if, taking into account the nature and degree of social danger of the committed crime and the personality of the perpetrator, the court finds it impossible to preserve the right <...> to engage in certain activities” (Article 47 Criminal Code of the Russian Federation).

The new law does not apply to all NGOs, but only to public associations. It falls under it, for example, "Open Russia" - an interregional public organization.

1. The same deprivation of the right to be a founder, member or participant of any NPO is extended by Article 19 of the Law "On Public Associations", Article 15 of the Law "On Non-Commercial Organizations" to a person (individual or legal entity) included in the list in accordance with paragraph 2 of Article 6 of the Federal Law "On counteracting the legalization (laundering) of funds obtained by criminal means and the financing of terrorism" . This is a list of states, registered, residing or staying in which persons, as well as persons owning an account in the banks of these states, are subject to special measures provided for by the said law. According to the Order of Rosfinmonitoring dated August 28, 2003 (as amended on March 1, 2004), these include the Cook Islands, Guatemala, Indonesia, Myanmar, Nauru, Nigeria and the Philippines. Citizens of these states, as well as Russian citizens working in these countries and, accordingly, living in them, will be completely deprived of the right to association in the Russian Federation (in particular, the existence of a Russian-Indonesian friendship society is impossible, as well as participation in the activities of Russian NGOs in which whatever the form of the Nigerian writer Chinua Achebe, who was awarded the Peace Prize in Frankfurt am Main in 2005, even if he were legally in the Russian Federation).

2. A person cannot be a founder, member or participant of an NPO if, by a valid court decision, it is established that his actions contain signs of extremist activity (Article 19 of the Law "On Public Associations", Article 15 of the Law "On Non-Commercial Organizations").

The Criminal Code includes, in particular, Article 282 of the Criminal Code of the Russian Federation (“Incitement of hatred or enmity, as well as humiliation of human dignity”), under which employees of the Museum and Public Center named after A.D. Sakharov were convicted for organizing an anti-clerical art exhibition, Yury Samodurov and Lyudmila Vasilovskaya, and according to which Nizhny Novgorod human rights activist Stanislav Dmitrievsky is being persecuted for publishing texts of Chechen resistance leaders. Those convicted under this article and a number of other articles of the Criminal Code will be deprived of the right to participate in any way in the activities of public associations and other NGOs, even without registering their participation.

1. Established increased controls on foreign receipts (whether from foreign organizations or foreign citizens). At the same time, everything related to the "transparency" of foreign funds (as well as funds of international organizations, regardless of the place of their registration), is removed from the regulation of federal law and transferred to the discretion of the Government, which will establish the forms and deadlines for submitting reports (as for recipients and for foreign donor organizations - Article 29 of the Law "On Public Associations", Article 32 of the Law "On Non-Commercial Organizations").

2. Foreign citizens and stateless persons (except legally residing in the Russian Federation) are prohibited from being founders, members and participants of Russian NGOs (Article 19 of the Law "On Public Associations", Article 15 of the Law "On Non-Commercial Organizations"). An exception is made only for international public associations, and then only for those foreign citizens representing them, in whose states there are structural subdivisions of these international associations (Article 47 of the Law "On Public Associations").

This ban is especially "remarkable" for members of public associations, since, according to Article 6 of the Law "On Public Associations", such persons are considered to be persons who have expressed support for the goals of this association and (or) its specific actions, taking part in its activities without the obligatory registration of the conditions of their participation. The ban on this kind of non-formalized participation is a clear sign of the restoration of the "Iron Curtain" as a consequence of the anti-extremist (or "anti-orange") paranoia that is overwhelming the authorities.

1. As noted above, branches and representative offices of foreign NGOs may operate in Russia. All that is required of them is to submit a notification about themselves to Rosregistration with the necessary documents attached, after which they are included in the register and acquire legal capacity. There is only one “but”: inclusion in the register is carried out not in a declarative, but in a permissive manner , despite assurances to the contrary by the authors of the law. A foreign NGO may be denied entry of information about its branch or representative office into the register for a number of both formal and evaluation grounds. Most remarkable is the possibility of refusal if the goals of creating a branch and representative office “create a threat to the sovereignty, political independence, territorial integrity, national unity and identity, cultural heritage and national interests” of the Russian Federation (Article 132 of the Law “On Non-Commercial Organizations”).

According to one of the authors of the project, deputy Sergei Popov (ER), these pearls were found "in the norms of international law" and therefore cannot be called into question. Meanwhile, the UN Declaration of December 9, 1981 "On the Inadmissibility of Intervention and Interference in the Internal Affairs of States", from which a piece of text was mechanically transferred - one of tens of thousands of non-binding UN declarations, is neither a convention, nor a pact, nor an international treaty, but only at best a recommendatory document, of which the UN General Assembly adopts hundreds every year for various political needs.

Obviously, it will not be difficult to deny legal capacity on Russian territory to any objectionable foreign NGO on the grounds of a "threat to identity".

1. A total ban is introduced for organizations (commercial and non-commercial) founded by foreign citizens, foreign organizations, including foreign NGOs, to operate on the territory of closed administrative-territorial entities (ZATOs). International organizations will also not be able to work in ZATOs , incl. registered in Russia, for example, the International Society "Memorial".

The established restrictions for commercial organizations generally go beyond the scope of the regulation of the law in question, dedicated to NGOs.

1. It is not enough to say that the activities of departments, branches, representative offices (structural subdivisions) of foreign NGOs should become "transparent" after the law comes into force. They, in fact, will be managed by officials of Rosregistration.

The additions made to Article 32 of the Law "On Non-Commercial Organizations" give Rosregistration the right to issue a reasoned decision to a structural unit of a foreign NGO to prohibit the implementation of the declared program or part of it in the territory of the Russian Federation . A structural subdivision of a foreign NGO that has received the said decision is obliged to terminate activities related to the implementation of this program to the extent specified in the decision. Failure to comply with this decision entails the exclusion of the relevant branch or representative office of the foreign NGO from the register or the liquidation of the branch of the foreign NGO. What may be the reasons, reasons, grounds for such a decision, the law does not indicate. Rosregistration will act at its own (or higher) discretion, in other words, arbitrarily and selectively.

1. in writing to the structural unit of a foreign non-profit non-governmental organization The same Article 32 provides that "in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, to ensure the country's defense capability and the security of the state, the authorized body has the right to issue a reasoned decision the direction of financial resources to certain recipients of these funds" .

The grounds for such a ban are transcribed from Part 3 of Article 55 of the Constitution. However, it provides for the possibility of restricting the rights and freedoms of man and citizen for these purposes only by federal law. In other words, the law may include proportionate restrictive provisions, establishing a reasonable balance of rights and freedoms, as well as their necessary restrictions in a democratic state. But the legislator cannot delegate to the law enforcer the authority to independently apply any restrictions on rights listed in Article 55 of the Satversme.

Thus, the freedom of activity of foreign non-governmental organizations in Russia is significantly limited, state bodies will exercise political and financial control over every movement of a foreign subdivision - as well as over Russian non-governmental organizations.

Antisocial law passed. No liberalization and bringing the draft law into line with international norms and the Constitution of the Russian Federation did not take place in the second version of the draft law. On the contrary, the amendments adopted after the first reading significantly tightened the bill.

On December 23, 2005, the President signed Decree No. 1521, according to which the number of employees of the central office of the Federal Registration Service from January 1, 2006 is increased from 143 to 277 people, excluding technical staff. The territorial bodies of Rosregistration are also ordered to grow in order to reach 29,217 employees by October 1, 2006: 332 officials per subject of the Federation.

The world experience of regulation of the non-commercial sector is heterogeneous: in many states, including those classified as "civilized" states, there are certain licensing procedures relating to certain forms of non-commercial activity, some control measures. Not everything is simple (worse, not everything is clear) and with restrictions on political activity. Problems like those that fall on Russia with the adoption of this law arise only when - as in Belarus, Turkmenistan, Uzbekistan - exceptions and reservations nullify the very right to association. And if analogues of individual restrictions and procedures adopted today in the Russian Federation can be found in the laws of more decent states, their legal systems also contain effective counterbalances that protect freedom of association from state interference and bureaucratic omnipotence.

The author of this text does not, of course, insist on the infallibility of his classification of non-state non-commercial activities as the exclusive property of private law. The approach to NGOs of "public benefit", including human rights ("political" - in international terminology) NGOs as subjects of public law and the consequences arising from such a legal definition in terms of a different level of responsibility, accountability and state regulation may be the subject of discussion , very interesting, which, perhaps, will be implemented in the space of our bulletin.