Memorial conquered a juridical lawlessness
In Moscow actions devoted to the Day of political prisoners and the Day of Remembrance of the Victims of Political Repressions were carried out. Members of the human rights organization Memorial, politicians and representatives of the Public Chamber of the Russian Federation took part in these actions. The day before within the action “Return of names” the Memorial organized the reading of “firing lists” near the so-called Solovetsky stone monument in Lubyanka Square.
Recently the international historical and enlightened, charitable and human rights society Memorial gained a suit at law concerning claims of the Federal Registration Service (FRS) against human rights activists. After the adoption of a new statute concerning non-commercial organisations, all that were thoroughly examined by different state bodies. The activity of Memorial was checked by the Moscow Tax Inspection, the Federal Service for Labour and Employment, by the FRS of the Russian Federation. In autumn 2006 after nine court sessions the organisation was relieved of all claims of the Tax Inspection. According the judgement awarded on October 26, 2006 all claims of the FRS against Memorial are considered unfounded.
As the executive director of the society Elena Zhemkova explained in her comments to polit.ru main claims had concerned the word “charitable” in the name of the society. From the point of view of the FRS, Memorial conducts historical, enlightened and remedial activity, but such organisation cannot be also charitable. “This is certainly a substitution of notions, because historical, enlightened and remedial are direction of the activity, but “charitable” characterizes the form of the organizations, whether it is paid or free of charge. In this sense any direction in the area of history, culture, and human rights can be charitable. This is the main difference of our opinions and we are glad that we have managed to prove our point of view”, told Zhemkova. “The international organization Memorial not only issues and distributes gratis books, but conducts many programs and projects recognized on the All-Russian level. For example, there is a school competition where pupils study how to take interviews, how to speak to old people and to help them. Another example of our charitable work is a free lawyer, who gives consultations concerning the rehabilitation of the victims of political repressions. 2006 we won four cases, altogether over 300 people got consultations”.
According to the executive director of the society all the activity of the organization is carried out in full conformity with the law, which says that “charitable organization” is not only an organization which renders some material or humanitarian assistance, but also that renders services free of charge.
Another argument of the FRS was a sponsorship of one project of Memorial. “We published a book in memory of Muscovites having been shot to death and buried in the Donskoe Cemetery. Some names we read today. We received a donation from some Moscow organization on typographical expenses; our people performed all the rest of work free. Thus, the FRS took an agreement on the donation and indicated at the point according to which we must mention this sponsor. In the opinion of the prosecutors this was not an agreement on the donation but already an advertising of this sponsor. But it’s totally ludicrous because reference to a sponsor is generally accepted. Then any social support is an advertising. Memorial has many different sources of financing; there are also private donations. Unfortunately, Russian people, especially those who support Memorial are not so rich. There is a pensioner who transfers 100 rubles monthly”.
“Strict examination from the direction of control authorities is costs for the Russian practice of control of non-commercial organizations. After the amendments in the law on the non-commercial organizations all that feel that the sword of Damocles is hanging over them”, told to polit.ru Yuri Dzhibladze, President of the Centre for the Development of Democracy and Human Rights in Moscow. “They all receive notifications for things that recently considered to be small technical defects. If earlier the authorities just connived at these small violations or helped to improve them, now after audit such omissions can become ground for notifications. That means that if this organisation commits even a minor violation, the FRS can solicit the court for its shutdown. This is probably the most powerful and effective method, not mass shutdown of organizations but self-censorship, when an organisation understands that even one more violation and it will be closed. Memorial, like hundreds other organisations, could find itself in a very vulnerable position. Each their actions, statement or book could attract a negative attention of the state and that could cause an additional unscheduled inspection and shutdown.”
Such effect is caused by vagueness of statements in the law. Regulatory enactments can be interpreted so that the FRS gets almost plenary powers concerning inspections; it assumes functions of other agencies, for example, of the tax service. It finds some violations of labour and tax codes which in opinion of experts are now violations at all. According to the law the purpose of such inspections is an ascertainment of correspondence of the activity and expenses to goals registered in the organisation charter.
“The minimal term of an inspection is 30 days; and during that time the activity of the non-commercial organisation is practically paralyzed, since it must gather innumerable documents, record them by a notary and imprint every page”, states Yuri Dzhibladze. In his opinion, the cause of such harshness of controlling authorities is an abnormal tradition of non-commercial organisations. “The state must create favourable conditions for development of non-commercial organisations; and all inspections must optimize their work. In out country the legislation works against non-commercial organisations; the FRS is oriented at the struggle against them”.
“The fact that the verdict of the court has passed for the defendant later on will help human rights advocates to argue their position”, said Yuri Dzhibladze. “The decision for Memorial as well as happy outcome of the case of Svetlana Gannushkina (chair of the Committee "Civil Assistance", which helps to refugees and forced migrants) are valuable precedents. Probably they will help to overcome the general situation with non-commercial organisations.
Alexander Auzan, member of Civil Society Institutions and Human Rights Council under the President of the Russian Federation shares this opinion. “Our court system works worse than ten years ago. In this case it worked against a state structure just like the juridical system. The degradation of the court system was obvious just in cases against state structures; they could be hardly won. And here, especially on such a hot case concerning the new law on non-commercial organisations, not final but quite a convincing court victory was gained.”
The FRS will probably challenge this decision, but, in the opinion of Alexander Auzan, Memorial has every prospect of success. “The point is not only that from juridical point of view everything has been very well prepared and that Memorial is extremely disciplined in conducting its affairs, but the public attention attracted to this case gives good chances that it won’t be failed”.
One of the most dangerous claims of the FRS concerned the fact that Memorial cannot be named a charitable organisation. The expert reminded that the Ministry of Economic Development and Trade of Russia considered that a charitable status should not be given to a concrete organisation but should be used by any subject, which meets certain requirements. “The decision of the court in fact supports this strategy of the Ministry”.
Although the Russian juridical system is not judge-made, according to Auzan, the victory of Memorial can influence on the situation with other organisations. “Nothing ventured, nothing gained, or Jura scripta vigilantibus sunt, as ancient Romans told. Such juridical resistance to an ignorant application of a bad law is a worthy of notice fact. This is signal to those who are ready to follow the path of application of law against a dubious practice of state organs”
The other question is the very law on non-commercial organisations. Auzan says: “There is a strange situation now. A sustainability index for non-commercial sector was counted again and it found out that in 2006-2007 it did not change. But why? Not because the previous conditions are kept, but because on the one hand new progressive ideas concerning the feedback with the administration and monitoring are introduced. And on the other hand the legislation on non-commercial organisations gets worse. Both trends are real; they annihilate each other and give this stability, which is as a matter of fact not a stability but an interaction of two opposite streams. Initiatives of the Ministry of Economic Development and Trade, its new reforms are not able to override the effect of this sycophantic law on non-commercial organizations.”
“The quantity of organisations having been judicially liquidized in the result of this law is known. It is hardly to estimate problems and difficulties caused by these inspections, by absolutely mad method of registration and re-registration of documents. All this demands additional examinations and we are now busy with it”, told Auzan.
The expert reminded that “this law has been discussing both in the administration of the president and in the government since the January 2006. We carried out an examination and put it on the president’s table. It proved that this law had even not political but just economic unfavorable consequences. It causes unjustified expenses, damages to subjects, which must keep it. It simply deceives, that it doesn’t demand additional budgetary funds; it does demand them. And this question is just put off. The cabinet of Fradkov did not execute the commission of the president to observe this investigation and to decide what to do with this law. As far as I know, the term of the execution of the order was prolonged. The situation must be settled into shape till the end of December and on January 14 the government must expound to the president its considerations. That’s why the fight for this law is yet to come”.