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How countries and institutions in the former Soviet Union help create legal tools of repression

Article by Eka Iakobishvili

May 24, 2016

The recent history of law making in Eastern Europe and Central Asia has been characterised by a significant number of countries adopting laws that suffocate civil society and limit human rights activism. The governments of Russia, Belarus, Azerbaijan, Kyrgyzstan, Kazakhstan and Tajikistan have adopted laws to promote their world views on suppressing civil society, sharing bad ideas and putting pressure on dissidents abroad. Considering the common characteristics of these countries and the common enemy their regimes all face (in the form of Non-Governmental Organisations (NGOs)), it is by no means a coincidence that after Russia adopted a so-called ‘foreign agents law’, former Soviet countries with totalitarian tendencies started to look at ways in which similar repressive laws could be developed.

 

The political context of former Soviet countries varies, from totalitarian regimes trying to maintain their political power and economic advantages that only benefit certain political elites, to countries that have undergone numerous revolutions in the struggle to find an identity and form a modern state. While countries such as Kazakhstan and Azerbaijan have enjoyed economic freedom of action due to their energy reserves, widespread social and economic hardship in Kyrgyzstan and Tajikistan have made these countries fundamentally dependent on Russia. Belarus, on the other hand, has always maintained the closest partnership with the Russian Federation. Other countries of the former Soviet Union (except the Baltic States that are now part of the European Union), Moldova, Ukraine and Georgia have paid a heavy price in recent years for turning their backs on the Kremlin but have nonetheless enjoyed relative freedom from external political pressure.

 

This article aims to look into the available legal tools shared for the purposes of repression in the former Soviet countries. Soviet law-making in many ways still underpins the legal culture of the region. Hence, in order to establish the origins of collaboration between countries that aim to promote laws that curb the existence of NGOs, it is important to draw analysis from the historical understanding of the shared history of law-making in the post-Soviet countries. This article aims to help the reader understand the post-Soviet legal culture and also the ways in which friendly experience-sharing takes place with the aim of fighting a common enemy – NGOs.

 

For this reason, I will focus on countries that have already adopted laws to limit civil society space (the so-called NGO laws). These include the Central Asian countries, Azerbaijan, Belarus and Russia. For the purposes of this article, I will refer to these countries as former Soviet countries, unless otherwise indicated. Where other former Soviet countries are mentioned I will use individual country names.

 

The crafting of socialist law

The Russian Federation has had a historical role in law-making in all of the former Soviet countries. This is particularly true in the context of Central Asia, where only after Russian conquest, and later Soviet rule, were modern type administrative institutions introduced.[1] This also meant that the Soviet regime isolated all five Central Asian countries (as all other Soviet states) from worldwide movements towards national independence and the development of new national identities and institutions. Indeed, popularisation of Soviet consciousness, and intensified attempts at the ‘Russification’ of ethnic minorities in Central Asia also distanced these five Soviet countries from the rest of the world.[2]
Following the October revolution in 1917, the Bolsheviks created the system of socialist law that, despite having roots in the civil law tradition, is recognised as being distinct from it.[3] This permutation of European law only took place in the Soviet context and largely ignored local customs, including in countries occupied by the Soviet Union in the wake of World War Two.[4]

 

Soviet law acted to maintain the existing political system and to prevent social unrest, and was used as a blatant instrument to these ends in the hands of the Soviet political establishment. At the same time, Leninism was giving rise to a legal system under which the powerful were able to manipulate the laws to serve their own institutional and individual interests. In this context, Soviet law was generally viewed as a coercive and effective instrument for imposing its policy goals on an often reluctant but, out of necessity, politically passive citizenry. It also meant that law had become a flexible tool for repression and for establishing a strict authoritarian regime, by manipulating legal institutions and incapacitating courts and legal systems.[5] Furthermore, this meant that for ordinary citizens, law represented a symbol of repression and terror, and only contributed to the estrangement of Soviet citizenry from participating in public life.

 

Current political affairs in former Soviet countries

The countries discussed in this article are diverse, however they all share Soviet history. These countries never had statehood before the Soviet Union was created and therefore after the fall of the Union they faced the crisis of seeking an identity, as nationalism was on the rise. All of these countries are largely governed by the same political elite that ruled during the Soviet era. The exception is Kyrgyzstan, which underwent a number of revolutions. Elections in these countries are compromised by falsification of results, harassment of political opponents, and most of all by ‘overwhelming support’ for the ruling parties.[6]

 

Rulers in post-Soviet countries have hardly changed. In Uzbekistan, Islam Karimov, former Communist Party leader, has ruled the country since before its independence.[7] In the same vein, Kazakhstan has been ruled by Nursultan Nazarbayev – former chief of the Communist Party since the independence of the country.[8] Azerbaijan is governed by Ilham Aliyev – who took over from his father Heydar Aliyev’s presidency.[9] After a referendum in 2009, the Constitution was amended to remove the two-term limit on the presidency. Aliyev was elected for a third five-year term in 2013. In Tajikistan, Emomali Rakhmon, former cotton farm boss, has been in charge since 1994.[10] The country is expected to have a referendum in May 2016 to make Emomali Rakhmon the president for life. In Belarus, President Lukashenko has been in charge since 1994.[11] In Russia, Vladimir Putin has been a dominant political figure since 2000. A former FSB chief of the Russian Federation, he served two terms as president between 2000 and 2008 and resumed the presidency again in 2012. The country that remains the most isolated from the outside world in Central Asia is Turkmenistan, considered an authoritarian state. Neither independent political activity nor opposition candidates are allowed in Turkmenistan, and political gatherings are illegal.

 

Kyrgyzstan has been the black sheep of the neighbourhood, undergoing a number of political changes and revolutions. Despite all the human rights problems that have harmed the country’s good reputation,[12] the country stands out in Central Asia for its parliamentary democracy. Almazbek Atambayev, a businessman and former prime minister, was elected president in October 2011. His election represents the country’s first peaceful transfer of presidential powers since the collapse of the Soviet Union.[13] Despite this, recent changes discussed below will show that the Kyrgyzstan political elite also developed ways of suppressing civil society and curbing NGO activism in the country.

 

Modern governance of civil society and the legacy of socialist law

Hangover from socialist law

Despite the fact that the Soviet Union collapsed 29 years ago, socialist law still continues to have a profound influence on what is and what will be. The spirit of the law that Leninism created is strongly held by current political establishments in former Soviet countries and nihilism towards the rule of law is deeply rooted in the fibre of these societies. As such, a hangover from the Socialist laws is manifested in multiple ways, including a vagueness in the law, the poor quality of many statutes, and laws that have only compounded the problems of instability. Laws often are riddled with vague language and internal inconsistencies, often intentionally crafted to be used for political repression.

 

Even in cases where good intentions are evident, the relative inexperience of the legislators, who have gone without any training in how to draft a workable statute or how to manoeuvre it through a faction-ridden legislative body, still affects the quality of laws made in former Soviet countries. If one compares current law-making practices in the former Soviet countries to the experiences of the earlier days of the Soviet Union, it is clear that the nature of this political use of law has been deeply cemented into the socio-political culture of these societies.

 

To sum up, writing in 1986, a group of academics from the University of Illinois stated: ‘it is impossible to develop a satisfying logical structure for Soviet legislation. The difficulty is that the legislative bodies sometimes pass laws codifying one part of the system of Soviet law; while at other times they pass legislation dealing with a particular social problem by applying the methods of a number of different branches of law.[14]

 

The modern function of civil society in former Soviet countries

The resistance towards NGOs and attempts to undermine dissident opinion in former Soviet countries should not be surprising. It is widely understood that the establishment of international norms, by which the conduct of states can be measured or judged, is the primary preoccupation of NGOs.[15] This means that there is a constant tension between socialist law – that allows existing political establishments in former Soviet states to subordinate the law to politics and use it as a repressive mechanism – and international norms that oblige states to create an environment for the realisation of human rights and fundamental freedoms.

 

One of the many threats that NGOs pose to existing political regimes in the region is the possibility of political opponents using human rights NGOs for their own purposes. This would mean that NGOs are working alongside opposition parties to undermine political stability in the country in question. This tension is evident in all former Soviet states, where NGOs leaders are charged with politically motivated charges.[16] In an environment where the only independent information on human rights abuses is provided by NGOs, it comes as no surprise that the dictatorial regimes of the former Soviet Union blame NGOs, accusing them of being enemies and agents of Western countries that use human rights to attack more vulnerable and non-Western countries. In almost all of these countries poverty is widespread (often due to corruption, as social welfare is not available for the community) and institutions are either incapacitated or unable to perform their state function. Therefore, NGOs increasingly perform roles to fill these gaps, including seeking redress and access to justice on behalf of citizens. Increasingly, NGOs have provided legal aid in all the former Soviet countries, in addition to providing healthcare, education and welfare in some cases. The legal aid system is almost non-functioning in all of the former Soviet countries and NGOs are the only bodies providing free legal aid. Extreme levels of corruption within government institutions have also dissuaded international aid agencies and institutions from working closely with state institutions, and hence an increased shift has been observed in donor policies.

 

This, on the one hand, demonstrates the state’s failure to protect human rights and sends a message to society about its inability to properly fulfil its functions and obligations under human rights law. On the other hand, it indicates that NGOs are and can be important players in providing social services and influencing social processes in society. In circumstances where states are weak and corrupt, the only way to help them maintain their position is to curb dissident viewpoints. This not only undermines state sovereignty but also political stability in these countries (where political stability = existing political regimes).

 

Russia, civil society and an affair of law making

The current President of the Russian Federation came from a Soviet KGB background, and shows a rather ambivalent approach to civil society. He has been suspicious of its independence, and particularly of its often foreign sources of funding, and therefore its goals. [17] Putin’s attitude towards civil society and NGOs in particular was challenged by the cascade of colour revolutions that took place in the neighbouring countries of Georgia (2003), Ukraine (2004) and Kyrgyzstan (2005).[18] At this point, the head of the FSB, Nikolai Patrushev, started to complain that foreign NGOs were damaging the national security of Russia and requested a legal basis to enable him to deal with them.[19] Patrushev’s appearance in the State Duma marked the start of the war on civil society in Russia. Numerous vague changes in legislation put an ‘onerous bureaucratic burden on the operation of non-commercial and non-governmental organisations’ [20] to specifically affect their ability to receive foreign funding. The government of Russia from this point onwards began to promote the establishment of Government Organised Non-Governmental Organisations (GONGOs), which continuously engaged in smear campaigns against individual NGOs by accusing them of being covers for espionage or otherwise serving foreign interests. Considering the history of the Soviet Union and the concept of espionage, it is no surprise that the citizens of Russia started to fall under the trap of the state and believed the fabricated news produced by the state media.

 

In parallel, a ‘demand’ was created in Russian society and from the law-makers to ‘protect the national security’ of the Russian Federation, which seemed under attack from foreign-funded NGOs. By adopting the ‘foreign agents’ law, Russian legislators and society increasingly believed that if NGOs are funded by foreign donors, they must have ‘foreign orders’, and if they have ‘foreign orders’ this means they are against Russian ‘national security’. This is indeed a notion widely held within the FSB[21], and by President Putin himself, who sees groups which make up civil society serving as a front for international espionage and attempts from abroad to undermine the Russian state and way of life. Hundreds of NGOs are now forced to enlist themselves as ‘foreign agents’ further discrediting them in the eyes of the public.[22] Whilst this law was aimed at suppressing civil society in-house, Russia has gone a step further by adopting the law on ‘undesirable NGOs’ which targets international NGOs operating in Russia. When an international NGO is listed as undesirable, any cooperation with them is pronounced illegal, meaning that prosecution will be sought of individuals. Amnesty International has reported that such a list mostly includes US-based donors.[23]

 

Sharing worst practices

The countries of the former Soviet Union have different reasons for adopting the same viewpoints as the Russian Federation. Whilst the role of NGOs may be different in these countries, depending on their economy and social acceptance, there is a shared interest in maintaining political power and eradicating a space for freedom. For example, all former Soviet countries have been under some influence from Russia, some more then others. This can be explained by a number of reasons, though the main reason remains its heavy political and legal reliance on Soviet, now Russian, governance. A longing for the certainties of Soviet rule is still strong in all five Central Asian nations, making it important to remain close to the Russian Federation with its political, legal and social culture. Even more, in the Caucasus, the culture of Socialist law and a dictatorial political regime has allowed the government of Azerbaijan to share worst practices with Russia without ‘direct consultations’. This includes restrictions on foreign funding for NGOs. Such support can only be made in pursuant to the Ministry of Justice of Azerbaijan. Furthermore, both sides will have to be registered with the government to obtain a right to give and receive a grant. NGOs have been made to adhere to numerous reporting obligations to the government, either before receiving or after implementing the grant, making it difficult for civil society to operate.[24] Similar changes have been proposed and adopted in Central Asian countries. In Kazakhstan, new amendments to the Law on Non-Profit Organisations were adopted, creating a central ‘operator’ to raise funding and administer state and non-state funds to NGOs, including foreign funding, for projects and activities that comply with a limited list of issues approved by the government. [25] Similar laws were adopted in Tajikistan in August in 2015, when NGOs had been facing significant fines from multiple state institutions.[26] Belarus, Uzbekistan and Turkmenistan have traditionally restricted NGO operations that has largely included access by foreign donors.

 

Kyrgyzstan remains the only country so far in the region to have not adopted restrictions on civil society. Though it was discussed in a first plenary hearing in the parliament, the law was withdrawn in June 2015. A political rhetoric exists, however, that states the need for closer ties with Russian politics and cohesion with its socio-legal and political systems. Therefore, there is a belief that the adoption of such a law is only is a matter of time. This is particularly true when considering how Russia has maintained and reinforced its economic ties with Central Asia. It has established a number of institutions that oversee political, economic and other major aspects of policies in the region. The Eurasian Economic Union (EEU), initiated by Russia, which now counts Armenia, Belarus, Kazakhstan, Kyrgyzstan and the Russian Federation as member states[27], began as a body that dealt with the economy, but has grown to have political ambitions. [28] The Shanghai Cooperation Organisation (SCO)[29] – a political body established by China, Russia, Kazakhstan, Kyrgyzstan, Tajikistan – members of the Shanghai five mechanism[30] – and Uzbekistan[31] – has declared protecting human rights as a main objective. Yet the SCO has been widely criticised for being a vehicle for enabling states to commit human rights abuses.[32]

 

These two institutions, as well as individual political and economic ties with the countries, allow Russia to not stop at the borders of the Russian Federation when ‘protecting national security’. Fear of civil society-fuelled revolutions means that the government has to engage with neighbouring countries to stop ‘attacks from civil society’. For this reason, regional institutions such as the EEU, SCO and other, wider bodies such as the Commonwealth of Independent States[33] allow Russian leadership in the region, and actively promote its legal and political systems alongside formalising Chinese influence in the case of the SCO. Similarities in political leadership, governance and government institutions make it easy for these countries to adopt similar laws, but it also makes it easy for them to subordinate such laws to their political tastes and views.

 

Conclusion

The governments of Russia, Belarus, Azerbaijan, Kyrgyzstan, Kazakhstan and Tajikistan have abused the power given to them by their constituencies to act as gatekeepers for the protection of rights and freedoms. While practicing different methods of suppressing civil society, the foundation upon which these countries have based methods of operation lies within the Soviet legal and political culture. This not only acts as a source of political inspiration for bad law-making, but also heightens societal nihilism towards government institutions, which feeds back into creating a breeding ground for the usurpation of power by political elites.

 

Sharing practices will continue to play a significant role in legal professionals’ lives in the region. Trapped in remote geographical locations, law-making can often be a difficult task and can only be determined by taking into account existing political and economic pressures. In societies where the political viewpoints of the leaderships have a higher value than the constitution, and where rule of law is a neglected concept, it becomes important to call for wider reforms, not only at the national level, but internationally. Reforms should continue to pressure former Soviet states to respect the rule of law, good governance and the accountability of government.

 

There needs to be a shift from sharing bad practices to sharing best practices, making the law superior to politics. Only the rectification of historical error will allow former Soviet nations to free themselves from the legacy of Socialist law and develop a system that is based on modern legal culture; a culture that respects rule of law and civil society.

[1] Waugh, Daniel Clarke, Ruffin, M. Holt and Center for Civil Society International. 1999. Civil society in Central Asia. Seattle: University of Washington Press.

[2] H. Seton-Watson
Source. 1956. Soviet Nationality Policy. The Russian Review, Vol. 15, No. 1 pp. 3-13
. Published by: Wiley on behalf of The Editors and Board of Trustees of the Russian Review Stable.

[3] Kathryn Hendley Kathryn Hendley. 1996. Trying to Make Law Matter: Legal Reform and Soviet Labour Law in the Soviet Union Ann Arbor: University of Michigan Press.

[4] Waters, Christopher P. M. 2004. Counsel in the Caucasus: Professionalization and Law in Georgia. Leiden, NLD: Brill Academic Publishers.

[5] Supra, note 2.

[6] For more information on elections in the Former Soviet Countries see: http://www.osce.org/what/elections

[7] In April 2015, he won another five-year term, with 90.39% of the vote amid little competition. OSCE/ODIHR, Limited Election Observation Mission – Final Report, Republic of Uzbekistan: Presidential Election, 29 March 2015, p 25. Available at: http://www.osce.org/odihr/elections/uzbekistan/126818. EurasiaNet, News, Uzbekistan: Karimov Heads for Landslide in Competition-Free Vote, 26 March 2015, http://www.eurasianet.org/node/72721; The Guardian, 30 March 2015: http://www.theguardian.com/world/2015/mar/30/islam-karimov-re-elected-uzbekistans-president-in-predicted-landslide. Karimov has undertaken his fourth term of office, even though article 90 of the constitution stipulates a clear limit of two consecutive presidential terms. Transparency International has put Uzbekistan under one of the world’s 10 most corrupt countries. See: http://www.transparency.org/country/#UZB.

[8] The constitutional limit of two consecutive terms for the presidency was abolished in 2010, allowing President Nazarbayev to stay in the power until 2020 without facing election. OSCE/ODIHR Election Observation Mission – Final Report, Republic of Kazakhstan: Early Presidential Election, 26 April 2015, http://www.osce.org/odihr/elections/kazakhstan/153566?download=true.

[9] Heydar Aliyev was previously the Soviet leader of Azerbaijan from 19691982.

[10] President Emomali Rahmon has been in charge for 23-years.

[11] Lukashenko re-elected in September 2001. After the 2004 change to the Constitution, allowing a president to run for more than two terms, President Lukashenko was re-elected in March 2006, again in December 2010 and most recently on 11 October 2015. More information on elections in Belarus: http://www.osce.org/odihr/elections/belarus.

[12] Human Rights Watch, Briefing Memorandum on Human Rights Concerns in Central Asia, October 2015, https://www.hrw.org/news/2015/10/21/briefing-memorandum-human-rights-concerns-central-asia.

[13] BBC News, Kyrgyzstan country profile, January 2016, http://www.bbc.com/news/world-asia-16186907

[14] Olimpiad S. Ioffe, Peter B. Maggs. 1986. The Soviet Economic System: A Legal Analysis, University of Illinois with the support from National Council for Soviet and East European Research.

[15] Marcinkutė, Lina. 2012. The Role of Human Rights NGO’s: Human Rights Defenders or State Sovereignty Destroyers?. Baltic  Journal of Law & Politics. Volume 4, Issue 2.

[16] Amnesty International. Amnesty International Report 2015/16 – Europe and Central Asia Regional Overview, https://www.amnesty.org/en/documents/pol10/2552/2016/en/. For Central Asia’s politically motivated imprisonment see HRW world report, Central Asia: Worsening Rights Record,

https://www.hrw.org/news/2015/01/29/central-asia-worsening-rights-record

[17] Greene, Samuel. 2014. Moscow in Movement: Power and Opposition in Putin’s Russia. Palo Alto, CA, USA: Stanford University Press.

[18] Georgia underwent the so-called ‘Rose Revolution’ in 2003 – a peaceful transition of power after widespread falsification of the election results in November 2003; Ukraine followed in 2004 with the ‘Orange Revolution’ – also spurred by falsified elections and this largely forced a transfer of power in Ukraine; Kyrgyzstan also underwent number of changes and its first change of power via revolution took place in 2005. The 2005 (First) Kyrgyz Revolution became known as the Tulip Revolution however, arguably, it saw some violence in the beginning. These revolutions should be considered milestones in freeing up these states from Soviet style governance and stepping into a new era of statehood.

[19] News release: ‘Шеф ФСБ нашел виновников ‘’бархатных революций“’. 12 May 2005. http://www.dw.com/ru/шеф-фсб-нашел-виновников-бархатных-революций/a-1581944.

[20] Supra, note 17.

[21] Putin was the head of the FSB and secretary of the Security Council in July 1999, shortly before he became prime minister and then a president in 2000. In 1999 President Putin – then a prime minister – gave an interview stating that ‘foreign security services, under diplomatic cover, very actively use in their work various ecological and social organisations, commercial firms, and charitable foundations. This is why these structures … will always be under our fixed attention. The interests of the state demand this from us.’

[22] Supra, note 16.

[23] Ibid. This includes the Open Society Foundations who are supporting this publication.

[24] International Centre for Not for Profit Law (ICNL), NGO Law Monitor: Azerbaijan, http://www.icnl.org/research/monitor/azerbaijan.html. Also. Venice Commission, Opinion 787/2014 Azerbaijan, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)043-e

[25] Supra, note 16.

[26] Ibid.

[27] For more information on the Eurasian Economic Union, see: http://www.eaeunion.org/?lang=en#

[28] Eurasian Economic Union, What’s the EEU and What Are Its Chances?, 2 January 2015, http://www.eurasianet.org/node/71511

[29] Charter of the Shanghai Cooperation Organization, http://www.hrichina.org/sites/default/files/PDFs/Reports/SCO/2011-HRIC-SCO-Whitepaper-AppendixA-SCO-Docs.pdf

[30] The ‘Shanghai five’ mechanism was established between 1996 and 2001 in order to facilitate multilateral negotiations on border issues among its members. It also handled the demilitarisation of border areas. European Parliament, Briefing, June 2015: The Shanghai Cooperation Organization, p 2, http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/564368/EPRS_BRI(2015)564368_EN.pdf

[31] Shanghai Cooperation Organization website: http://www.sectsco.org/EN123/

[32] FIDH, Publication of a report: “Shanghai Cooperation Organisation: a vehicle for human rights violations”, 3 September 2012: https://www.fidh.org/en/region/europe-central-asia/Publication-of-a-report-Shanghai-12031

[33] For more on the Commonwealth of Independent States: http://www.cisstat.com/eng/cis.htm

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