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Ref. DC 110(2016)

Venice Commission says Russian law on undesirable activities of foreign NGOs should be modified, and adopts final opinion on the Constitutional Court Law

Venice 10.06.2016 The Russian Federal Law on undesirable activities of foreign and international non-governmental organisations interferes with freedoms of association, assembly and expression, as well as with the right to effective remedy and other rights, and should be amended, said the Council of Europe body of constitutional experts, the Venice Commission, in its opinion adopted today. The final opinion about the Russian law on the Constitutional Court empowering it to declare decisions of international courts “unenforceable” was also adopted.

In the opinion on the NGOs law, the Venice Commission, while fully recognising the rights of states to monitor the activities of non-governmental organisations on their territory, stressed that any restrictions or sanctions introduced against associations should respect international human rights standards and meet the conditions of legality, legitimacy and necessity.

The Venice Commission criticised the vague definition of certain key concepts and of the grounds on the basis of which the activities of a foreign or international NGO may be considered undesirable, the wide discretion granted to the Public Prosecutor and the lack of specific judicial guarantees, as well as the blanket prohibitions imposed upon the NGOs (prohibition to conduct events and distribute information) that might contradict the principle of proportionality.

The Venice Commission experts recommended amending the Federal Law: the notion of “NGO” should be clarified and defined, or alternatively the term “non-governmental organisations” should be replaced with “non-commercial organisations”, it should also be clarified what constitutes “directing of” and “participating in” the activities of a listed NGO. Concrete criteria for the inclusion of organisations in the undesirable NGOs list should be introduced. The decision on the inclusion of a foreign or international NGO in the list should be taken by a judge, and not by the Office of the Prosecutor General. The NGOs concerned should be notified of the detailed reasons for such a decision.  The possibility of a judicial appeal having suspensive effect should be indicated, the Venice Commission recommended.

Only if all these changes are made, and if the decision to include an NGO in the list is proportionate to the threat the concerned NGO constitutes, may the prohibitions imposed on listed NGOs by the Federal Law be considered acceptable, says the Venice Commission.

The Venice Commission has also adopted today the final opinion on the Russian law on the Constitutional Court. This follows a visit of the Venice Commission delegation to Moscow and the first judgment by the Constitutional Court under the amended law on the possibility to execute the European Court of Human Rights’ decision in the case of “Anchugov and Gladkov v. Russia” delivered in April 2016.

“It seems clear that the Constitutional Court has not spared its efforts to avoid a conflict with Strasbourg, which is to be welcomed,” the Venice Commission said. It noted that in this first judgment the Constitutional Court has indicated a possible legislative reform which the federal legislator has the power to initiate and which would have represented a fuller enforcement of the judgment of the European Court.

The Venice Commission, however, maintained its recommendation to delete the articles according to which no measures will be taken whatsoever to enforce an international decision declared by the Constitutional Court unconstitutional. Besides, the Constitutional Court should not be tasked with the whole question of identifying how to execute an international judgment; it may only be asked to assess whether a specific, already identified measure of execution may raise issues of constitutionality. Should the Constitutional Court decide that the modality of execution is not constitutionally acceptable, the question must be referred back to other state institutions to find alternative ways to execute the international decision.

The Venice Commission also reiterated that this should be admissible only for measures of general character, and those which are not indicated specifically by the European Court in its judgments, and not for individual measures, such as payment of just satisfaction.

The texts of both opinions will be available on the website of the Venice Commission on Monday, 13 June 2016.

Contact: Contact: Tatiana Baeva, Spokesperson/Media Officer, tel. +33 3 88 41 21 41