The Constitutional Court refused to review the law on foreign agents

The Constitutional Court (CC) of the Russian Federation refused to assess the legislation on NPOs and foreign influence in relation to scientists. Previously, the authority received a complaint that the current regulations do not allow for the distinction between scientific and political activities, and the rights of scientists are diminished because they are recognized as foreign agents for their professional research. In its ruling, the Constitutional Court repeated that engaging in science cannot serve as a basis for recognition as a foreign agent. However, the court, the Ministry of Justice and the applicant from the Institute of Law and Public Policy (included in the register of foreign agents) clearly differed in their views on scientific activity.

ANO “Institute of Law and Public Policy” (IPPP) complained to the Constitutional Court “about violation of rights and freedoms” in November 2023. The organization demanded to check the constitutionality of the laws on NPOs and “On the control of persons under foreign influence” and challenged the decision of the Ministry of Justice to include it in the register of foreign agents, seeing it as a violation of Art. 44 of the Constitution of the Russian Federation on freedom of scientific activity and Art. 29 on the right to freedom of speech and dissemination of information. The applicant also referred to Part 2 of Art. 55 of the Constitution of the Russian Federation, which prohibits the issuance of laws “abolishing or derogating the rights and freedoms of man and citizen.” According to representatives of the STI, the legislator gave such a definition of political activity and its forms that politics and science became “impossible to differentiate in practice.”

In Art. 4 of the Law “On the Control of Persons Under Foreign Influence” states that “political activities do not include activities in the field of science.” The same article lists forms of political activity such as “public debates, discussions and speeches,” appeals to authorities and “the formation of socio-political views and beliefs.” The applicant insisted that debates and discussions can also be a form of scientific activity, appeals to authorities are an “integral part of the work” of scientists, and “any science inevitably influences the formation of views and beliefs” (see “Kommersant” dated November 14, 2023 ).

The Constitutional Court refused to consider the complaint. The definition lists STI claims that were not accepted by the courts in which the Institute challenged inclusion in the register, including the uncertainty of the concept of political activity and the amount of funds from foreign sources sufficient to be recognized as a foreign agent. The Constitutional Court, however, did not find “arbitrary application” of the legislation on foreign agents to STIs. The court indicated, in particular, that the requirement for an NPO to independently register as a foreign agent “before engaging in political activities” is “aimed at ensuring transparency,” “is based on the presumption of innocence and good faith,” and does not deprive the NPO of the right to judicial protection. “The implementation of NPO activities in such areas as science, culture, art, health care… does not relate to political activity, the engagement of which may serve as a basis for recognizing the organization as performing the functions of a foreign agent,” the Constitutional Court repeated the resolution of April 2014 No. 10-P. It follows from this that scientific activity cannot be recognized as political even with foreign funding.

“Almost 80% of the text of the definition is a citation of the 2014 resolution on foreign agents without an attempt to correlate it with our case,” says STI lawyer Ivan Brikulsky. – In 2014, the Constitutional Court clearly said that science is not politics, even if it has foreign sources. But for nine years this position has not been implemented, and the situation of independent scientific organizations has worsened.” In his opinion, “teachers, experts and specialists in the field of law” remain at risk, since “any of their activities – scientific articles, round tables, expert opinions” – can be interpreted as political.

Let us note that the view of the STI on the parameters of scientific and educational activities in the field of constitutional justice did not coincide with the assessments of the Ministry of Justice. There, the inclusion of STIs in the register of foreign agents (2021) was justified by the fact that the NPO, as its name suggests, was engaged in public policy: it submitted scientific expert opinions (amicus curiae) to the Constitutional Court, published analytical and expert reports, held public debates, signed petitions for the Venice Commission’s examination of amendments to the Constitution of the Russian Federation and developed amendments to the law on the rehabilitation of victims of political repression.

Alexander Voronov