The importance of judicial diction in the face of autocratisation: Reflections following Anti-Corruption Foundation (FBK) and Others v. Russia

by Joseph Finnerty

States are increasingly adopting laws which place additional restrictions on civil society and media actors when they receive foreign assistance—financial or otherwise—for their advocacy or reporting activities. So-called ‘foreign agent’ laws are quickly becoming ubiquitous in autocratising contexts (see, most recently, the proposals emerging in Czechia). They vary in scope and in the obligations and sanctions they impose, but generally require the aforementioned actors to register as ‘foreign agents’. Once labelled as such, these actors tend to have any public communications identified as originating from a ‘foreign agent’ and are further subject to heavy administrative reporting duties and enhanced state monitoring. Failure to comply often triggers civil and/or criminal sanctions. This post follows the most recent response from the European Court of Human Rights (ECtHR, the Court) to such laws, as articulated in its judgment of 16 December 2025 in Anti-Corruption Foundation (FBK) and Others v. Russia.  

Taking this judgment and its engagement with ‘foreign agent’ legislation as its starting point, the post reflects on a broader question that has garnered an increasing amount of scholarly and judicial attention: what can be learned by the ECtHR from the Russian case in light of its failures? This question should not be taken to imply that we should have any doubts as to the importance of the Russian ECtHR judgments post-expulsion. They have rightly been identified as serving a critical role in keeping a ‘historical record’ of the ‘egregious human rights breaches being perpetrated by the Russian authorities’, albeit with limited hopes of implementation. This line of inquiry is rather motivated by the critical reflections on the ECtHR’s response to the process of autocratisation in Putin’s Russia and what can and should be learnt from that experience. The post briefly recalls the facts and complaints in the FBK case before summarising the judgment. It then turns to the lessons to be learned, emphasising the role of judicial diction in addition to institutional, procedural, doctrinal, and remedial lessons.

Facts

The FBK case joined 139 applications from hundreds of applicants, many of whom were subject to Russia’s ‘foreign agents’ law as well as its ‘Suppression of Extremism Act’. A considerable number of the applicants were linked to the late anti-corruption and political activist, Alexei Navalnyy, and his opposition activities. The former legislation is outlined above; its evolution has already been summarised in previous Strasbourg Observers’ posts (see here and here) and in the reports of international NGOs. The latter legislation is, as the name suggests, even more draconian and allows for dissolution of the organisations which attract the ‘extremist’ label. The remaining applicants faced searches of their homes or offices, and in some cases had their bank accounts frozen, because they were designated as ‘foreign agents’ or connected to such organisations.

Complaints and procedure

The applicants raised different complaints but, collectively, they made seven main allegations. They argued that: (1) searches of their residences and offices violated Article 8 ECHR; (2) the freezing of bank accounts and electronic devices violated Article 1 of Protocol No. 1 to the ECHR; (3) the searches and bank account freezes violated Articles 10 and 11 ECHR; (4) there were no effective remedies, contrary to Article 13 ECHR; (5) labelling organisations as ‘foreign agents’ undermined Articles 10 and 11; (6) labelling organisations as ‘extremist’ and dissolving them violated Articles 10 and 11 as well as Article 3 of Protocol No. 1 to the ECHR; and (7) the searches (and bank account freezes) pursued improper purposes, in breach of Article 18 ECHR in conjunction with Articles 8, 10, and 11, and Articles 1 and 3 of Protocol No. 1. In keeping with its established practice before the ECtHR following its illegal invasion of Ukraine and expulsion from the Council of Europe, the Russian government did not participate in the proceedings.

Judgment

A handful of Article 1 of Protocol No. 1 complaints were declared inadmissible in respect of some applicants due to a failure to comply with the six-month time limit (paras 80–83). The ECtHR further held that no separate ruling was required regarding Articles 10, 11 or 13 in relation to the searches and bank account freezes, as these complaints were already addressed in its assessment of Article 8 and Article 1 of Protocol No. 1 (paras 149–150). The Court applied the same reasoning in respect of the complaint under Article 3 of Protocol No. 1, concerning the ‘extremist’ labelling, finding it had been materially dealt with under the connected Article 11 complaint (para 132).

Examining the Article 8 complaints, the ECtHR promptly concluded that the searches constituted an infringement (para 69). Assessing the justification for the infringement, the Court focussed on the ‘in accordance with the law’ criterion and reasoned that the ‘central question (…) is (…) not the quality of the relevant domestic provisions, but whether their application and interpretation by the domestic authorities afforded the applicants adequate protection against arbitrariness’ (para 70). The Court noted, in particular, the copy-and-paste nature of prosecutors’ search requests (para 71), which failed to refer to any concrete evidence of the alleged offences (para 72); the lack of any material scrutiny of the prosecutors’ requests by the domestic courts (para 73); and the repeated use of the ‘urgent search’ procedure that dispenses with all judicial scrutiny of the prosecutors’ requests (para 74). The ECtHR concluded that the infringement was not ‘in accordance with the law’ and, therefore, violated Article 8.

The Court’s reasoning under Article 1 of Protocol No. 1 followed along the same lines, quickly recognising an interference in the instances where bank accounts had been frozen (para 87) and focussing on the safeguards against arbitrariness in the relevant domestic law (para 90). Highlighting that the prosecutors’ requests and subsequent court orders were ‘standardised’ (para 92), ‘formulaic’ (para 93), and ‘purely formalistic’ (para 94), the ECtHR concluded that the infringement did not meet the legality criterion and thus violated Article 1 of Protocol No. 1.

Turning to the complaint under Articles 10 and 11 concerning the use of the ‘foreign agent’ label, the ECtHR decided to assess this issue under Article 11 in light of Article 10 (para 110). It emphasised that foreign funding alone does not mean foreign influence, and that imposing punitive sanctions for failing to register as a ‘foreign agent’ for receiving any such funding was wholly disproportionate and produced a chilling effect (para 114). The Court therefore found a violation of Article 11.

The Court moved on to examine the complaint under Articles 10 and 11 concerning the labelling of selected applicants as ‘extremist’ organisations and their subsequent dissolution. It focussed on Article 11, read in light of Article 10 (para 122), and quickly recognised dissolution as an infringement (para 123). The ECtHR affirmed that the notions of ‘extremism’ and ‘extremist activity’ were ‘vague and overly broad’ and compromised the foreseeability of the respective Russian ‘extremist’ legislation (para 128), going on to conclude that there had been a violation of Article 11.

Addressing the remaining complaints concerning the alleged ulterior motive behind the restrictions imposed under the ‘foreign agent’ legislation, the ECtHR limited its examination to Article 18 in conjunction with Articles 8 and 11, and Article 1 of Protocol No. 1 (para 134). It identified an ulterior purpose—namely, ‘to strike at the heart of and eliminate the organised democratic opposition centred around Mr Navalnyy’ (para 147)—and found a violation of Article 18. In reaching this conclusion, the Court emphasised the widespread crackdown on Navalnyy and individuals and organisations associated with him (para 142), the massive scale of searches and asset seizures against the relevant applicants (para 143), and the increasing restrictions on ‘the functioning of democratic institutions and political opposition’ in Russia (para 145).

Comment

FBK is the third judgment directly concerning ‘foreign agent’ laws, following Ecodefence and Others v. Russia (14 June 2022) and Kobaliya and Others v. Russia (22 October 2024). The ECtHR had previously dealt with Russia’s ‘extremist’ law in Taganrog LRO and Others v. Russia (7 June 2022), a case concerning the dissolution of a Jehovah’s Witnesses’ local organisation in Russia.

FBK does not add much to the ECtHR’s previous rebukes of these legislative frameworks. In Kobaliya, the Court held that the Russian ‘foreign agent’ law ‘cannot be considered necessary for achieving the declared aim of enhancing national security or increasing transparency’ (para 112), while in Taganrog LRO, it found that the Russian ‘extremist’ law was ‘extremely broad’ and capable of leading to – and, indeed, having led to – arbitrary prosecutions (para 158). The FBK judgment largely recalls and affirms the Court’s findings in Kobaliya and Taganrog LRO when addressing the two legislative models (see paras 113–114 and 126–128, respectively).

The further development in this context comes with the finding of an Article 18 violation in FBK. Article 18 complaints were not raised by the applicants in Taganrog LRO and not examined by the Court in Ecodefence and Kobaliya, notwithstanding some complaints under the provision by applicants in these two latter cases. In FBK, the ECtHR declared that the labelling of selected applicants as ‘foreign agents’ or as ‘extremist organisations’ and their subsequent dissolution, as well as the illegal searches and bank account freezes, pursued the ulterior purpose of eliminating the organised democratic opposition. FBK, therefore, reinforced the condemnation of Russia for its systemic and nefarious disregard for Convention standards.

The Russian judgments post-expulsion have become increasingly scathing in their criticism of Russia’s authoritarian practices. Leaving the Article 18 violation in FBK aside, the Court’s response arguably already culminated in its 2024 Kobaliya judgment when the ECtHR declared that the Russian ‘foreign agent’ legislation ‘bears the hallmarks of a totalitarian regime’ (para 86). The Court is yet to use such stern wording against other respondent states. However, other Council of Europe states do continue to adopt authoritarian practices that are not dissimilar to those employed by Putin’s Russia, including various ‘foreign agent’ laws. Indeed, applications challenging such laws have been lodged against and communicated to both Georgia and Hungary (although, in Hungary’s case, the legislation was amended after the Court of Justice of the European Union found it to be in violation of EU law).

So, what should be taken away from FBK and the related judgments when responding to authoritarian practices adopted elsewhere within the Council of Europe? Recent commentary on the lessons to be learned from the broader Russian story in the Council of Europe have emphasised four avenues for improvement: institutional, procedural, doctrinal, and remedial. Focussing on institutions, commentators have underscored the role of other Council of Europe organs, with the starkest critiques (see, for example, here and here) targeting the passivity of the Committee of Ministers. Appraising procedures, commentators have focussed on a more effective case prioritisation strategy for the ECtHR, the role of interim measures, and the pilot-judgment mechanism (see, generally, here and here). Examining doctrines, commentators have emphasised the (further) potential of various doctrines in strengthening the ECtHR’s response to autocratisation, not least proportionality under multiple ECHR provisions and ulterior purpose analysis under Article 18 ECHR (see here and here, respectively). Addressing remedies, commentators have advocated for a more proactive approach from the ECtHR (see, for example, here).

Beyond debating and trying to implement these lessons, it is important to remember that the wording of judgments—as well as that of Committee of Ministers decisions and the texts of the Parliamentary Assembly—matters. Judicial diction serves to convey the severity of violations under the Convention and the concern, frustration, and indignation of the ECtHR. It is telling that when expanding upon his concurring opinion annexed to the 6 February 2025 judgment of Novaya Gazeta and Others v. Russia, which has fuelled much of the debate on the lessons to be learned from the Russian experience, Judge Pavli concluded that the Court should identify any state practices aimed at undermining the rule of law or ECHR rights and freedoms ‘in no unclear terms’. Indeed, the Court must not shy away from using the same stern words seen in FBK and the related Russian judgments as it confronts similar patterns in other autocratising states. The wording and tone of ECtHR judgments moderate the sound of the Convention’s alarm bell function, which must start sounding louder and earlier in many states across the Council of Europe.