“I regret the adoption yesterday by the National Assembly of Republika Srpska of the law on the Special Registry and Transparency of the Work of Non-Profit Organisations, which provides for classification of civil society organisations that receive foreign funding as “foreign agents””, said today the Council of Europe Commissioner for Human Rights Michael O’Flaherty.
The law sets a separate legal regime for organisations and associations registered in the Republika Srpska that receive foreign funding or assistance, including international NGOs. It designates them as “non-profit organisations”, provides for their mandatory registration in a registry which will be established by the Ministry of Justice, and subjects them to inspections and burdensome reporting and labelling requirements. An organisation may be classified as “foreign agent” if it, among others, “carries out political actions or political activities” and is “financed or otherwise assisted by foreign entities”. It provides that the Ministry of Justice will initiate proceedings before the competent court for banning the work of the organisation as well as criminal proceedings against the management of the organisation in case of non-compliance.
“This is another setback for freedom of association and freedom of expression in Republika Srpska, following the re-criminalisation of defamation in 2023” added the Commissioner.
As reflected in the case-law of the European Court of Human Rights, any restriction of freedom of association should be prescribed by law and be proportionate to the legitimate aim pursued.
The law raises serious issues of compatibility with the principle of legality which includes the principle of foreseeability. One of the key criteria in the law for the use of the ‘foreign agent’ label for organisations, namely ‘political activity’ is unforeseeable. The wide discretion left to the Ministry of Justice to interpret what ‘political activity’ entails may discourage organisations from exercising their freedom of expression such as engaging in advocacy or debate to influence public policies.
I am also concerned about the human rights compatibility of the sanctions provided in the draft law. Besides heavy administrative fines, the measures that the Ministry of Justice can take in respect of an organisation classified as “foreign agent”, such as requesting its banning and initiating criminal proceedings against the management for non-compliance, are far reaching. I note with regret that the law appears to lack the appropriate procedural safeguards and fails to sufficiently meet the requirements of necessity and proportionality.
I ask the authorities in Republika Srpska to repeal the law and, if a similar law is introduced again in the National Assembly, to ensure that it takes into account the recommendations of the Venice Commission and OSCE/ODIHR provided to the authorities with regard to the version of the law prepared in 2023.