Strasbourg Observers

Kobaliya and others v. Russia: Perverted transparency or when legislation on ‘Foreign Agents’ bears the hallmarks of a totalitarian regime?

January 17, 2025

Maxim Krupskiy

Kobaliya and others v Russia concerns ‘foreign agent’ legislation in Russia and the way it developed since 2012. Russian legislation on ‘foreign agents’ had first come before the European Court of Human Rights (ECtHR, the Court) in Ecodefence and Others v. Russia, where the Court found substantial violations of Article 11 (read in light of Article 10) of the European Convention on Human Rights (ECHR) in relation to the application of the ‘foreign agent’ label to non-governmental organizations (NGOs). In Kobaliya and Others v. Russia the Court analyzed the more draconian version of the legislation which had been developed since 2012 and which applied not only to NGOs, but also to media and individuals. Advancing on its reasoning in Ecodefence, the Court concluded that Russia had violated Articles 10, 11 and 8 of the ECHR. In doing so, the Court assessed the forced, under threat of administrative and criminal sanctions, stigmatizing and misleading ‘foreign agent’ labeling from the perspective of a violation of applicants’ negative right to freedom of expression. The Court also explicitly stated that the new version of the Russian legislation on ‘foreign agents’ bears the hallmarks of a totalitarian regime.

Facts

In 2012 Russia introduced amendments to its legislation on NGOs, which imposed an obligation on NGOs deemed by the Russian authorities to engage in ‘political activities’ and receive ‘foreign funding’, to register as ‘foreign agents’ under threat of administrative and criminal sanctions. Such NGOs were required to label their information products with a notice indicating that it originated from a ‘foreign agent’ organization, to publish information regarding their activities online and to comply with more extensive accounting and reporting obligations.

Between 2017 and 2019, the scope of the ‘foreign agent’ designation was broadened to encompass media organizations and subsequently to individual journalists, bloggers, content creators, and public figures. In 2020, it was extended to include anyone involved in broadly defined ‘political activities.’ Under the Foreign Agents Act of 2022 an even broader definition of foreign agents was introduced, covering any entity or individual who had received ‘support’ or was otherwise ‘under foreign influence’. Pursuant to this legislation, the term ‘foreign influence’ now encompassed not only financial support but also ‘organizational assistance’ and ‘methodological guidance’ and the definition of ‘foreign sources’ was extended to cover Russian entities and individuals receiving funds from abroad, as well as any person ‘under the influence’ of foreign entities or individuals. Over time, foreign agent labelling requirements were expanded to include social media accounts, websites and eventually all communications, including court submissions and each individual post on social media.

Repeat breaches of the labelling requirements resulting in larger fines. The highest fine was imposed on Radio Free Europe/Radio Liberty and its director general, who were fined a total of approximately EUR 16 million in 1,044 cases for violations of labelling requirements. The domestic authorities also invoked alleged violations of labelling requirements to seek and obtain the dissolution of the applicant NGOs. This led, inter alia, to the liquidation of several of the applicant organizations, such as the International Memorial and the Memorial Human Rights Centre, along with their field offices in December 2021 on the grounds of their ‘gross and repetitive breaches’ of the labelling requirements.

Automatic limitations were placed on ‘foreign agents’ concerning their ability to participate in various aspects of public, professional and economic life. In particular, they were prohibited from holding public office, supporting any candidates or campaigns and financing or organizing any public events, obtaining State support or grants, accessing jobs involving State secrets, teaching in State and municipal educational institutions or providing any instruction to minors. For example, books and publications by ‘foreign agents’ were subjected to the same regulations as pornographic or violent content, requiring them to be sold in opaque packaging with an ‘18+’ age restriction label. There was also a ban on advertising in media products created by ‘foreign agents.’

In Kobaliya, the applicants – 107 NGOs, media outlets and individuals – complained that the ‘foreign agent’ legislation and the practice of its implementation violated Articles 10, 11 and 8. They also argued that they were discriminated against and subjected to restrictions for purposes other than those prescribed in the Convention, in breach of Articles 14 and 18 of the Convention.

Judgment

Russian ‘foreign agent’ legislative framework is arbitrary and undermines the very foundations of a democracy (Articles 10 and 11)

Regarding the very designation of the applicants as ‘foreign agents’, the Court reiterated its position from Ecodefence (§ 117, §§ 134-135), stating that ‘the term “foreign agent” under Russian legislation reflected an extremely broad and unprecedented interpretation of the concept of agency, where the purported agent did not need to act in the interests of the principal to be labeled as such’ (Kobaliya, § 70). Thus, the Court noted that such legislation was not only stigmatizing but also misleading and underlined that ‘Russian “foreign agents” legislation has stood alone in its misrepresentation of the agency relationship’ (§ 76). The Court considered that labeling those who are not in fact foreign agents ‘undermines, rather than enhances, transparency’ (ibid.)

Analyzing the 2022 version of the law, the Court concluded that ‘instead of mitigating the shortcomings of the original legislation, these amendments have moved the ‘foreign agent’ framework even further from the Convention standards’ (§ 74). The new version ‘introduced an even broader definition of ‘foreign agents’, covering any entity or individual who had received ‘support’ or was otherwise ‘under foreign influence’, while the concept of ‘foreign influence’ was expanded to include not only financial support but also ‘organisational assistance’ and ‘methodological guidance’ (§ 73). The Court also noted that statutory prohibitions excluding ‘foreign agents’ from various aspects of public life, ‘have reinforced the perception that ‘foreign agent’ organisations and individuals pose a threat to society and should be viewed with suspicion and kept away from sensitive areas’ (§ 75).

Recalling that the additional auditing and reporting requirements, as well as other burdens imposed on ‘foreign agents’, ‘undermine their ability to engage in their core activities’ (Ecodefence and Others v. Russia, § 159), the Court made an independent assessment of the public disclosure requirement in terms of whether it pursued a ‘pressing social need’ for the first time (Kobaliya, § 81-86). The Court assumed that the compulsory ‘foreign agent’ labeling was applied ‘without regard to the actual content or context of the publications’, which is contrary to the standards of freedom of expression under Article 10 of the Convention, which requires a context-based assessment (§ 82). Moreover, in the Court’s view, such forced stigmatizing labelling violated applicants’ negative right to freedom of expression (§ 84). The Court emphasized, inter alia, that ‘by forcing the applicants to attach the ‘foreign agent’ label to all their public communications, the authorities infringed upon this negative right, compelling them to express a message with which they disagreed’ (ibid.) According to the Court, public stigmatizing and misleading ‘foreign agent’ labelling has nothing to do with transparency, is aimed at coercive self-stigmatization of applicants and has a ‘chilling effect on public discourse and civic engagement, [that] does not correspond to a ‘pressing social need’ (§ 86)

Bans automatically imposed on ‘foreign agents’, including the prohibitions on holding public office, participating in election commissions, engaging in educational activities with minors and receiving State support or grants, exclusion from public procurement and a ban on advertising in media, and severe penalties for alleged non-compliance with legal requirements, including substantial fines and the liquidation of several applicant organizations, the Court found ‘manifestly disproportionate to the declared aim of ensuring transparency’ (§§ 88-97).

Overall, the Court found that the legislation ‘has contributed to shrinking democratic space by creating an environment of suspicion and mistrust towards civil society actors and independent voices, thereby undermining the very foundations of a democracy’ (§ 98). Accordingly, there has been a violation of Articles 10 and 11 of the Convention.

Labelling individuals as ‘foreign agents’ under Russian law violates their right to private and professional life (Article 8)

Assessing the listing of individuals as ‘foreign agents’, the Court found that both the labeling as such and the requirements and restrictions imposed on them under the legislation constituted an interference with the right to respect for private life protected by Article 8 of the Convention (§§ 106-109). The Court found that this interference could not be justified as ‘necessary in a democratic society’ (§ 115).

The Court noted in particular that the stigmatizing ‘foreign agent’ label ‘affects more than the applicants’ reputation; it also impacts the enjoyment of their private life’ (§ 111), and that it’s misleading nature – insofar as it does not require evidence of any actions undertaken in the interests of foreign entities shows that designation as a ‘foreign agent’ – ‘cannot be considered necessary for achieving the declared aim of enhancing national security or increasing transparency’ (§ 112). The misleading nature of the legislation ‘undermines any possible justification for the various forms of interference with the applicants’ private lives’ (§ 113).

Regarding the obligation that the applications submit reports on their personal expenses to the Ministry of Justice, irrespective of their amount and sources of origin, and thus to disclose detailed information about their ‘day-to-day activities, financial affairs and transactions with friends and family’, the Court found such a requirement ‘far exceeded what could, even in theory, be considered necessary to ensure transparency, and appeared to serve no purpose other than to burden and intimidate the applicants’ (§ 114).

Finally, the Court emphasized that the automatic prohibition for those on the ‘foreign agents’ register ‘to participate in entire professions, cutting them off from the entirety of the youth population, and depriving them of revenue from private advertisers – on the basis of their unwarranted designation as ‘foreign agents’, cannot be justified as being ‘necessary in a democratic society’ (§ 115).

The Court therefore concluded that there had been a violation of Article 8 of the Convention in respect of the individual applicants who had been designated as ‘foreign agents’.

Analysis

Perverted transparency, the misleading nature of the ‘foreign agent’ label and the hallmarks of a totalitarian regime

In Ecodefence and Others v. Russia, the ECtHR questioned the effectiveness and necessity of the Russian legislation on ‘foreign agents’ as a legal mechanism for ensuring transparency (see, for example, §§ 139, 146, 153, 155, 159, 166). In Kobaliya, the Court built on this reasoning and, for the first time, explicitly stated that such legislation not only fails to ensure transparency regarding foreign influence but actually undermines it. This is because individuals are labeled as “foreign agents” without any evidence that they are genuinely acting in the interests of foreign entities. Deeming the ‘foreign agent’ label itself extremely stigmatizing, the whole range of legal restrictions as manifestly disproportionate, and the severe administrative sanctions imposed for alleged formal violations of the requirements of the ‘foreign agent’ law as a means of excluding ‘foreign agents’ from public and civil life, the Court was left with no doubt that the Russian authorities had completely perverted the very meaning of the law itself. The Court made it clear that the Russian ‘foreign agents’ law is nothing more than an example of autocratic legalism and the result of a manipulation of the legal terminology, deliberately misleading Russian society as to the true repressive aims of the authorities.

The crucial novelty of the Kobaliya judgment, is the Court’s detailed assessment of the misleading nature of ‘foreign agent’ labeling in Russia. The ECtHR explained viciousness of the labeling in detail, in terms of the very essence of agency relations: conscious, mutually agreed upon activities of an agent in the interests of the principal and under the principal’s direction or control. In this way, it clearly and unambiguously demonstrated the differences between the misleading Russian law and its democratic counterparts in the United States and the United Kingdom (§§ 41, 45, 76). The Court’s reasoning helps to elucidate why the Russian legislation on ‘foreign agents’ should be perceived as “fake” insofar as it does not in fact describe an ‘agency’ relationship and, accordingly, does not ensure transparency with regard to activities conducted in pursuit of foreign interests. The fact that the ECtHR repeatedly emphasized the need for the national authorities to provide evidence of the applicants’ being under foreign control or direction and that their activities pursued foreign interests will no doubt have significant implications for assessing the legality and necessity in a democratic society of other Russian-style initiatives that are now actively developing in various countries, including those under the jurisdiction of the ECtHR.

The Court’s position, for example, render the Georgian Dream party’s attempts to justify the scandalous law ‘On Transparency of Foreign Influence’ adopted in Georgia this year, manifestly groundless. The Georgian law allows NGOs and media outlets to be labeled as ‘organizations pursuing the interests of a foreign influence’ without any evidence of their real activities in foreign interests, merely on the basis of their receipt of foreign funding. It seems that the Court’s ruling in  Kobaliya will be crucial in case the relevant complaint of the Georgian applicants to the ECtHR is accepted for consideration. Similarly, the Bulgarian draft lawOn the Registration of Foreign Agents’, introduced in the country’s parliament this autumn and largely copying the spirit and letter of the Russian law, also cannot be considered as meeting the requirements of ‘quality of law’ and ‘necessary in a democratic society’ in following the legal position set out by the Court in Kobaliya.

Finally, compared to Ecodefence and Others v. Russia, the rhetoric used by the Court in its assessment of Russian law has changed significantly in the present judgment. It has become much sharper. In particular, in Kobaliya, the Court, for the first time, explicitly stated that the Russian practice of compulsorily labeling ‘foreign agents’ both by themselves and by anyone writing or mentioning them ‘bears an ominous resemblance to the discriminatory and segregationist labelling practices imposed on certain groups by authoritarian regimes of the past’ (§ 85). The Court went even further and found that the current version of the ‘foreign agents’ law had become even less compliant with democratic principles than the one analyzed in Ecodefence and now ‘bears the hallmarks of a totalitarian regime’ (§ 86). This unequivocal demonstration by the ECtHR of zero tolerance towards the Kremlin’s blatantly discriminatory legalistic practices helps to dispel the fog surrounding public disinformation campaigns, promoting Russian-style ‘foreign agent’ initiatives by Russian-friendly autocratic actors in Bulgaria, Georgia, Kyrgyzstan, Slovakia and elsewhere, who claim to be merely copying democratic analogues of foreign influence transparency legislation.

Forced dissemination of a stigmatizing label against oneself as a violation of the negative right to freedom of expression

An important aspect of the Russian ‘foreign agents’ legislation and the practice of its implementation, assessed by the Court for the first time, is the violation of the applicants’ negative right to freedom of expression. The Court’s finding that the applicants’ forced, under threat of administrative and criminal sanctions, dissemination of a stigmatizing label against themselves violated this negative right – an integral part of Article 10 of the Convention – gives new insight into the generally abusive and discriminatory nature of the Russian ‘foreign agents’ law. Moreover, by taking this position, the Court rejects the official narrative that the legislation on ‘foreign agents’ is fundamentally harmless, requiring those so labeled to ‘merely’ place the relevant label on all their information materials.

This judgment makes an important contribution to the development of the principle of effectiveness in relation to the right to freedom of expression. The Court rightly states that a holistic protection of that right ‘necessarily encompasses both the right to express ideas and the right to remain silent; otherwise, the right cannot be practical or effective’ (§ 84). In his concurring opinion in this case, Judge Serghides explained why this approach is crucial for the protection of human rights: ‘Violating the negative aspect of a right, like violating its positive aspect, is not merely a partial infringement, but a violation of the individual’s choice to exercise his or her freedom – whether to act or to refrain from acting’ (See Concurring opinion of Judge Serghides, § 9). In his conclusion, Judge Serghides also emphasized the importance of the judgment in the present case for the ECtHR’s jurisprudence: ‘It significantly contributes both conceptually and practically towards the effective protection of freedom of expression and freedom of association in aspects which have hitherto been under-developed’ (§ 17).

Conclusion

The judgment in Kobaliya and Others v. Russia significantly complements the Court’s position in Ecodefence and Others v. Russia, and makes a major contribution to exposing the disinformation campaigns that have intensified over the past two years to promote autocratic legalistic initiatives speculating on the themes of transparency of foreign influence and protection of national security. The Court’s in-depth legal analysis of Russia’s ‘foreign agents’ legislation, which serves as a tempting blueprint for autocrats around the world who wish to stigmatize civil society and silence independent voices, makes the ruling in this case an effective tool to combat the development of similar initiatives, especially in states within the jurisdiction of the ECtHR.

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