Application submitted by ADC "Memorial"to theEuropean Court ofHuman Rights
Establishment of facts

1. The Applicant-Charitableprivate institutiondefending the rights ofpersons subjected to discrimination, Anti-DiscriminationCenter "Memorial" (hereinafter - the"Applicant")isa charitablenon-profit organization. The purpose of theApplicant’sactivities is implementation ofcharitable and otherprograms aimed atprotecting the rights ofpersons subjected to discrimination(Article 3.1of the Charterof the Applicant). The applicantmonitorsobservance of human rightsin Russia, publishes reportson human rights, provides free legal, social and psychological assistanceto victims ofhuman rights’ violations,works to improve legalculture and consciousnessof the population, promotesthe valueof individual rights,distributesfree pamphletson human rights’ issues.

2. According tostrategic development plan of the Applicantfor the period of 2011-2013,the target groups for its activities were identifiedas children,who are discriminated against,Romapeople, ethnic minorities, migrant workers, civil society activists, people from vulnerable groups, sexual minorities (LGBTI).

3. On 9 November 2012the Applicantpublished its report"Roma people, migrants,activists: victimsof police arbitrariness" (hereinafter - the"Report"). The Reportwas submitted to theUN Committee against Torturefor consideration atthe 49th Sessionin thecontext of the analysisof the 5thperiodic reportmade by the Russian Federation.

4.The Reportprovidedexamples ofarbitrary actions andsystematic violenceby the police.At the same time it described vulnerable position ofpeople belonging to various"risk groups", including those which required special protection, such asethnicminoritiesand visible minorities, political activists anddefenders of the rightsof LGBT persons.The Reportcontainedrecommendationsto the government(in particular,abolition oflaws thatviolate the rights ofLGBT persons, ensuring safetyof LGBTactivists), as well as to various international organizations. The reportwas based onanalysisconductedby the Applicantconcerning legislation and law enforcement practices, human rights monitoring, surveys,written testimoniesof witnesses, appeals and petitionscollectedby the Applicant, informationfrom the websites of governmentagencies and international organizations, including various United NationsCommittees.

5. On 30 April 2013prosecutor of theAdmiralty districtof Saint Petersburg initiated administrative court procedurein order to chargethe Applicantfor failure to meet its obligations concerning filing an application for inclusioninto the Register ofnon-profit organizationsfulfilling the functions offoreignagents.Legal procedures on this case were earlierdismissedby the Judge of Peacebecause ofproceduralirregularitiesmade by the prosecutor.Theorder for terminationof the legal case was later appealedby the prosecutor,but on 7 October 2013this decision ofthe Judge of Peace wasupheld, and the prosecutor’s appeal wasdismissedby ruling of the Leninsky district courtof Saint Petersburg

6. On 12 July 2013prosecutor ofAdmiralty districtof Saint Petersburgappealed tothe Leninsky district courtwith a lawsuitin defense ofan undefinedgroup ofpersonsrequestingto oblige theApplicant to filean application forinclusion into the Registerof non-profitorganizationsfulfilling the functionsof foreignagents, and also made an appeal to the General Directorate ofthe Ministry of JusticeRussiain Saint Petersburg.

7. In this legal appeal (p.3)the prosecutorexpressed hisdisagreementwith the conclusions ofthe Report, noting that they are based"onthe so-callednarrativesandoral testimonies bymembers of the Romaminority" and "are not reasonablejustificationto givelegalassessment of the actionsof law enforcement officers." The prosecutor specifically pointed out that the Applicant insisted in the Report that Russia should sign andratify international agreements, including those related to juvenile justice and broadening the rights of LGBT community, as well as abolition ofdiscriminatorylawsagainstLGBTI persons.

8. On 12 December 2013the Leninsky district court of Saint Petersburgupheld the claimof the prosecutor,recognizingthe Applicant's activitiesas those of a non-profitorganizationfulfilling the functions of aforeign agent, andordered the Applicant tosubmit an application tothe Ministry of Justiceconcerninginclusion into the Registerof non-profitorganizationsfulfilling functions of foreignagentswithin a period of two weeksafter the court decision comesinto force.

9.The district courtpointed out thatthe Report"featured negative assessmentof state authorities, including law enforcement agenciesof the Russian Federation, the Federal Migration Serviceandthe Federal Bailiff Service during their exercise ofpowers, alleged the use oftortureandinhuman and degrading treatmentof people from vulnerablegroups (Roma people, migrants, membersof the LGBTcommunity, variousactivists andanti-fascists), anunjustifiedcampaignagainst these personsbased on theirethnic originor beliefs, inefficiencyof state authoritiesandreforms they carried out, corruptionof the police andthe Federal MigrationService of Russia, systematicarbitrary actionsand abuseofofficial authority, otherserious crimes, carrying out ofpolitical persecutionof groups of persons, who were profiled on political and ideologicalgrounds"(p.6 of the text of the ruling).

10. The Applicantfileda legalappeal against the decisionof the district court, pointing to violation ofthe Applicant's rightto express its opinion(Article10 of the ConventionandArticle19 of the InternationalCovenant on Civiland Political Rights), as well as discriminationon the basis ofthe Applicant’sconvictions(Article14 of the Convention).

11.On 23 December 2013Chairpersonof the UN Committeeagainst Torture (CAT),Claudio Grossmanstated that: "CAT is concerned with any measure that undermines the independence and activities of non-governmental organizations. The actions by the Russian prosecutors against Memorial reflect a worrying shift in the legislative environment governing the enjoyment of the freedoms of assembly, association, speech and information"(seep.8of the Applicant’s appeal to the Leninsky district courtof Saint Petersburg).

12. On 8 April 2014the SaintPetersburg city courtdismissed theApplicant'sappealagainst the earlier ruling of the districtcourt.Inthe ruling concerning the appeal thecourtstated the following:"Based on the content of the Report, its conclusions about legitimacy ofpolitically motivatedactsof persons who participatedin the riotsduring political protest, recommendations concerning a number ofpolitical actions, changesor abolitionof the current legislation, ratification of internationalregulations, taking effective measuresto protectforeign nationals, migrant workersfrom the arbitrariness ofthe state authorities,including theRussian Federal Migration Service, the Federal Bailiff Service, the Interior Ministry, recommendations forchanges inlegislation, the Court of First Instancecame togroundedconclusionthat preparationand publication bythe Defendantof thesaid Report, the views of its authors contained thereinonissues of public life, government,government policyadopted bystate authoritiesanddecisionsabouttheir implementation, which wereavailable toundefined group of persons, aimed at formationof public opinion concerning political life ofsociety and the state, which allows to recognizeCharitableprivate institutionADC "Memorial"as the one participatingin political activitiesandgiven thereceipt of fundsfrom foreign sources–as a non-profitorganizationacting as aforeign agent" (p.5 of the Appellate ruling).Moreover,the city courttook into accountnotonly the specificReport, but the Applicant's activitiesas a whole, in particular, the development strategy ofthe Applicant.The courtof second instanceseparatelypointed out thatthe argumentsof the Defendant concerning discriminationof this institution based on obligation tomeet these requirementswere inconsistent.

In thiscase, thecourtconsidered expression ofopinions by the authorsof the Reportconcerningpublic life, decisions of thegovernmentauthorities and their implementation, recommendationsfor theadopted lawsand bringingthese opinionsto the general publicand state authorities to be political activities of theApplicant.

13.On 8 October 2013, duringthe court procedures in the court of first instance, a session ofthe Council ofthe Applicant was held (protocol №16), during which it wasdecided to launchthe procedure of liquidationof the Applicantinconnection with the factthat registrationin the Register ofnon-profit organizationsfulfilling functions of foreignagentsis incompatiblewith the principles, goals and objectives ofthe Applicantgiventhe discriminatory natureof the term "foreign agent". Atthe same session,the Councilformed liquidation committee headed by S.B.Kulaeva.

14.The decision onlaunchingthe procedure for liquidationof the Applicantduring the periodwhen the lawsuitwas still considered, wasbased on the factthat the liquidation procedure ofa non-profitorganizationtakes a long time(at least six months). It was therefore decidedto start preparing fora possibleliquidationin advancein order tobe able toimmediatelystop the activities ofthe organization if the legal claimbythe prosecutoris upheld in courts of two instances and this decision comesinto force.Otherwise,ifat the time ofthe court rulingon recognizingthe organization a "foreign agent",the organization would continue to legallyexistandif it was not includedin the corresponding Register, the board of organizationwould face criminal liabilityof up to twoyears in prison(Article 330.1 of the Russian Criminal Code).

15.On 11 April 2014, afterthe court decision cameinto force, the procedure for liquidation of the organizationwas completedby the Applicantanda note on elimination ofthe Applicant was introduced into the Unitary state register of juridical persons.

Alleged violations of thisConvention for the Protectionof Human Rights andFundamental Freedoms
Article 10(in conjunction with Article11) of the Convention

Russian courtsimposed obligation onto the Applicanttoget listed in the Register ofnon-profit organizationsfulfilling the functions ofa foreignagentbased on theexpression of theApplicant'scriticalviews on theactivities of the Russianauthorities (police and Migration Service) as well as based on the publicationof proposals to amendexisting legislation.Imposition ofthis obligationrepresentsinterference with theApplicants' rightto freedom of expressionandthe right of association, because as a result of theinclusion intothe specifiedRegister theApplicantwill be identified byits target groups, as well as other persons, including state authorities, as a "foreign agent ".This status, given the history ofthe struggle against "foreign" ideasin the Soviet Unionand thenegative connotationof the term"agent", will inevitably lead to consideringthe Applicant's activitiesasaimed atdefending interestsalien toRussia using foreign funds, which is incompatible with theobjectives of theApplicant.Since13 December 2013,the very next dayafter the ruling ofthe district courtrecognizing ADC "Memorial"a "foreign agent", Novgorodregionalauthoritiescanceledscheduledroundtable discussion onschool educationof Roma children, whichwere to be heldin the city ofChudovo. In addition, theApplicant mustindicateon allits publicationsthatthey arepublished by an organization, which is a"foreign agent".

Inclusion ofthe Applicantinto the Register ofnon-profit organizationsfulfilling the functions ofa foreignagentisnot just alegal formality, it alsoimposesadditionalobligations onto the organization, including financial ones:the dutyto auditthe annualfinancial (accounting) statements(Article 32Section 1 Paragraph 1 of the law "On Non-profit organizations")with further provisionof the audit reporttothe Ministry of Justice(Article 32 Section 3 Paragraph 1 of the law "On non-profit organizations"),which is more frequent compared to othernon-profit organizations, andthreat of sanctions(Article19.7.5-2of the Administrative Code)for non-provision ofstatementsto the authorized body(Article32 Section 3 of the law"Onnon-profit organizations"), as well as publicationof thefinancial statements(Article32 Section 3.2 of the law"Onnon-profit organizations"). In addition to that,the list of grounds forunscheduled inspectionsofnon-profit organizationsfulfilling the functions ofa foreignagent is wider(Article32 Section 4.6 of the law"Onnon-profit organizations"). Failure to comply withobligationfornon-profit organizationto get listed in the Register ofnon-profit organizationsfulfilling the functions ofa foreignagent, as well as failure to mark its publications respectively, may result inadministrative liabilityforthe organizationand a fineof up to Rb500,000 (Article19.34of the Code of Administrative Violationsof the Russian Federation), andadministrative or criminal liabilityforitsmanagement (Article330.1of the CriminalCode).

The Applicantconcedes thatthe interferencewith its rightto freedom of expressionandfreedom of associationmight have pursued a legitimate aimof public and state monitoring ofthe expenditure of fundsreceived bynon-governmental organizationsfrom foreign sources.However, such interference is notnecessary in a democraticsociety in the lights of Articles 10 and11 of the Convention, because the lawon non-profit organizationsbefore the introduction ofthe status of "foreign agent" contained amechanism that allowsthe state and societyto exercise control overthe receipt andexpenditure offundsby non-profit organizations, including the funds received from foreignsources,in particular, it provided for the obligationof non-profitorganizationsto submitto theMinistry of Justiceand publishon a publicly accessibleInternet websitereports on their activities, including the sources of fundingand implementation of their programs(Article32 Paragraphs 3and 3.2of the law"Onnon-profit organizations" before theregulations in question were introduced). In this respect,introduction ofthe status oforganization fulfillingthe functionsof a foreignagentis not a necessarymeans to achievethe specifiedgoal of control, and in effect it seeks tostigmatizenon-profit organizationsthat receiveforeign fundingbytheir separationintoa special category of "foreign agents."

Likewise,thiscontested interference is not proportionate tothe aim it pursues, since it de factocompelsnon-governmental organizationseither to refuse toexpress their viewsunder threat ofadministrative chargesagainst themoradministrative or criminal liabilityof their heads, or to accept stigmatizingterm "foreign agent" and thereby losethe ability to effectivelycarry out theircharitableand other activities. In the situation ofthe Applicant, interference with itsfreedom of speechled to theforcedliquidation of the Applicantas a legal entity, because the Applicant, based on a study oftheir target groups, government agencies,as well associety as a whole, consideredthat implementation ofits activitiesin the status ofa "foreign agent" will be inefficient andinconsistentwith its Charterandthe values thatitstands for.

Violation of Article14 (in conjunction with Articles 10 and 11) of the Convention

The Applicantbelieves that ADC "Memorial"has been the victimof discriminationin respect tothe rightstofreedom of speech andfreedom of association, which are protected by the Convention(Article 10 and 11 of the Convention). In the present casethe difference intreatment of the Applicantcompared to othernon-profit organizationsthat receiveforeign funding is due to the factthat, firstly, theApplicanthad criticized, not endorsed the policiesof the Russian authoritiesand, secondly, due tothe fact thatApplicantpublishedreport, which containedspecificcriticismconcerning the definition ofvulnerable groups(Roma, migrants and LGBTI).Thus,the difference in treatmentis due tothe nature oftheApplicant’s beliefsand defense ofcertainparticularly vulnerablegroups, which are discriminatedby theauthorities, whose rights the Applicant defendsand protects, whichisa prohibited ground fordiscrimination in lightof Article14 of the Convention.

Different treatmentis discriminatory ifit has noobjective and reasonable justification; in other words,whenit does not pursuea legitimate aimorif there is noreasonable proportionalitybetweenthe means employedand the aim pursued(judgmentof the Grand Chamberof the Courton7 November 2013incases № 29381/09and№32684/09 "Vallianatos and others v. Greece", §76).

According tothe definition ofa non-profitorganization involved inpolitical activities, this isan organization, which regardless ofthe goals and objectivesoutlined in itsfounding documents, is involved(including through providing funding)in organizing and conductingpolitical activitiesin orderto influence decision-making by state authoritiesaimed at changingpublic policypursuedby them, as well as in formation ofpublic opinionfor this purpose (Article2 Section 6 Paragraph 2 of the federallaw "Onnon-profit organizations"). According tothis legal norm,the lawmakes a distinction betweennon-profit organizations basedonwhat the purpose oftheir activities are: an organization is recognizedas one participatingin political activities(regardless of theirspecific forms) onlyif thepurpose ofsuch activitiesis influencinggovernment authoritieswith the aimto changepublic policiespursuedby them. Consequently, thosenon-profit organizationsthat receiveforeign fundingand participatein political process, including throughpolitical actionsorformation ofpublic opinion, with no intention ofchangingpoliciespursued bystate authoritiesare thus not consideredto be organizationsfulfilling the functions of a foreignagent.

Meanwhile, it follows from the circumstancesof the present case, that the Applicanthas been recognizedas an organizationfulfilling the functions of aforeign agentsolelyfor the reasonthat itmadenegative judgmentsabout the state policyof the RussianFederation concerningdiscriminatedsocial groupswhose interests aredefendedby the Applicant.Thus,the claimmade by theprosecutordirectlysupposes thatit wasthe negative assessment by the Applicant ofthe Russian legislation andthe activities of Russianlaw enforcement agenciesagainst Roma people,minorities andLGBTIpersons that was the ground forthe recognition ofpoliticalactivities of the Applicant(pp. 2-3 of the legal claim).

Thus,the national authoritiesdistinguishbetween organizationsloyalin their statementsrelated to theactions of the state, andthose who criticizesuch actions. Such adifference in treatmenthas noreasonable and objectivejustification,because it concernsthe veryessence of the rightto freedom of expressionand thereforethis constitutes discriminationofthe Applicantbased onhis convictionsand based on the fact that the Applicant defends social groups-Roma, migrants and LGBTI persons – which are viewed negatively by the state.

In the case of "Alekseyev v.Russia"(judgment darted21 October 2010, applications№4916/07, 25924/08and14599/09 «Alekseyev v.Russia»)it was established thatthe main reason forthe decisionto ban theeventorganizedby this applicantwas theopposition ofthe authoritiesto demonstrations, whichthey viewedto be propagandaof homosexuality(§77 -78 and82of thejudgment). Thusthe fact ofdiscriminationof LGBT people inthe Russian Federation was proven.In thepresent case, theApplicanthas been discriminated againstbecause, by publishingits human rightsreport, the Applicant stood upto protectdiscriminated groups(Roma people, migrants, activists, LGBTI). In this Reportthe Applicant called upon theauthoritiesto change their attitudeto thesevulnerable groups,to change thelegislation and practicein relation to thesevulnerablegroups, including changing the laws and legal practices concerning these discriminated groups, in particular the Applicant soughtto abolish the law prohibiting"propaganda of homosexuality". It isthe Applicant's positionto recognizeequal rightsof these groupsand to avoid infringingon the rights of minorities, as well as position of the authorities concerning the Applicant’s anti-homophobicbeliefs, that were the basisfordiscriminatory treatment ofthe Applicant, which hadexpressed itself inobliging the Applicantto register as a"foreign agent", which in turn resulted in liquidation of the organization.Thus, theApplicanthas suffereddue to its anti-discriminatorybeliefs.

Based on this, the Applicant believes that discrimination against it has taken place based onits beliefs in relation to the protection of discriminated groups, because by defending the idea of equality in its Report concerning LGBTI and heterosexuals, by stating discriminatory attitude of the authorities towards the Roma minority and distrust of their testimonies, by reporting the persecution of political activists by the authorities, the Applicant found itself in a high risk group of human rights activists, who faced reprisals due to their beliefs.

Exhaustionat the national level

8 April 2014-appellation decision of the judicial collegium for civil casesof the Saint Petersburgcity court.

The Applicant has notsubmittedappeals against thejudicial acts because thismeans of legal defense is ineffective based onthe established practiceof the court.In addition, theApplicant could notlodge an appeal, as it had togo through the procedure of liquidation. Moreover,on 8 April 2014, the Constitutional Court of the RussianFederationadopted resolutionthat recognized provisions of the law on "foreign agents" to be relevant and in line with the Constitution of the Russian Federation, pointing out that the term"foreignagent"does not carrynegativeconnotations.