Column

Giving Peace a Chance: Pushing Back on a Chilling Russian Censorship Law

Russia is using the law as a weapon against its own citizens to silence all criticism of its unlawful war of aggression against Ukraine. International attention has been focused on Russia’s high-profile criminal prosecutions of independent journalists and opposition politicians. Comparatively little attention is being paid to thousands of dissenters punished with hefty fines under a new censorship law that forbids the “discrediting” of Russia’s armed forces.

One Russian human rights organization, OVD-Info, is pushing back against the law by facilitating the submission of a battery of complaints to the Russian Constitutional Court. The complainants argue that the law against “discrediting” violates Russia’s Constitution. International human rights organizations and legal scholars from Canada, the United States, Australia, and Europe, have also examined the discrediting law and its application, finding that it violates Russia’s international law obligations as well. They are preparing several amicus curiae briefs to submit to the Russian Constitutional Court.

Hastily passed laws to vilify and criminalize anti-war dissent

Why are international advocates singling out Russia’s discrediting law for special attention?

On 4 March 2022, just a few days after Russia launched what it calls its “special military operation” in Ukraine, the Russian State Duma (parliament) simultaneously passed new criminal and administrative laws to silence opposition at home. Most frequently covered in the international media are Criminal Code offences against spreading “knowingly false information” about the Russian armed forces and their actions outside Russia. These charges have resulted in significant prison time for dozens of opponents of the war, and large numbers of people are fleeing Russia under threat of criminal prosecution.

Also created on 4 March was an insidious new regulatory offence of “discrediting” the armed forces – Code of Administrative Offences, Article 20.3.3. This law was tacked on to an existing legislative proposal, rushed through both chambers of the Duma, and signed into force by President Putin in the space of a single day.

The administrative offence of discrediting (CAO 20.3.3) was swiftly deployed and has been widely used against people protesting the war in all regions of Russia. Amendments to the new law two weeks later also made it an offence to “discredit” State agencies operating beyond Russia’s borders, and on 23 March 2023, those assisting the armed forces, which would include private military contractors such as the Wagner Group.

Even though “discrediting” under CAO 20.3.3 is not a criminal offence per se, conviction results in heavy fines of 30,000 to 50,000 rubles (around US $375 to $600). The fines are greater if the individual holds an official position (including editors in chief of newspapers, heads of NGOs, or state-sector employees)—100,000 to 200,000 rubles (around US $1,250 to $3,755). These amounts are significantly more than the monthly wage of many Russians. Most of those charged under CAO 20.3.3. are convicted — over 92 percent of cases recorded in the first four months of the war.

Human rights defender Oleg Orlov criminally charged for repeated discrediting

[Oleg Orlov prior to arrest for a protest in Moscow on 6 March 2022. Photo used by permission of Memorial. Translated, the poster says “Peace for Ukraine/Liberty for Russia”]

Persons found liable for a “similar act” of discrediting within a year face charges under Criminal Code 280.3, which may result in prison sentences of up to three, and as of March 2023, five years. The meaning of the term “similar act” is not clear from the text of the law, but the recent criminal indictment of well-known human rights defender Oleg Orlov provides insights into how this vague term is being applied.

Oleg Orlov, a human rights defender, is the co-chair of Memorial, the renowned human rights organization. Memorial was shut down by Russian authorities in December 2021 under Russia’s much-criticized “foreign agents” law, a decision upheld by the courts. In November 2022, Memorial was one of three organizations awarded the Nobel Peace Prize.

On 21 March 2023, authorities searched the homes and offices of several Memorial advocates and researchers, including Mr. Orlov’s apartment. Later that day, authorities launched a criminal case for repeat discrediting against Mr. Orlov (Criminal Code 280.3). A day earlier, the Russian state news agency, Tass, had quoted President Putin as saying that “…any attempts of adversaries and their agents on the territory of our country aimed at rocking our society must be harshly suppressed.”

On 29 April 2023, the Russian Prosecutor’s office indicted Mr. Orlov. He had two previous discrediting convictions under CAO 20.3.3. The first conviction, on 17 May 2022, was the result of a protest on 30 March 2022 where Mr. Orlov displayed a poster saying, “Crazy Putin pushes the world into a nuclear war.” The second conviction, on 28 June 2022, was for a poster displayed on 12 May 2022, saying, “USSR 1945 – a country that combated fascism. Russia 2022 – a country where fascism won.”

The current criminal code indictment results from a November 2022 social media post of an article entitled “They Wanted Fascism – They Got It.” The article referred to the “bloody war unleashed by the Putin regime” and refers to the armed forces in one sentence that says, “… sur les fronts en Ukraine, les choses ne sont pas du tout brillantes pour les troupes russes […on the fronts in Ukraine, things are not at all bright for Russian troops].”

Reports of these incidents reveal no clearly identifiable defamation of the armed forces. Rather, the common denominator is Mr. Orlov’s criticism of authorities, which is neither unlawful nor prohibited by CAO 20.3.3. Not to be overlooked in this case, is Mr. Orlov’s stature as an internationally renowned human rights defender, particularly his longstanding association with Memorial.

A climate of fear, suspicion, and uncertainty for ordinary people

Most of the people being fined under CAO 20.3.3. for discrediting the military are not high-profile human rights defenders or political opponents of the regime, however. They are ordinary people — doctors, teachers, railway workers, college students.

Some have been convicted for participating in peaceful demonstrations or speaking out with anti-war messages, leaflets and petitions, or by flying Ukrainian flags. This broad and vague law also encompasses the most mundane and ordinary expression of dissent, such as posting on social media, holding posters in solo demonstrations with peace signs, flowers, asterisks in place of words, blank pages, or wearing blue and yellow clothing, the colors of the Ukrainian flag.

[Photo by Natalia B. taken in Moscow 24 February 2022 used by permission. Translated, the poster says “No to War! Ukrainians we are with you.”]

The application of the law thus creates a chilling climate of fear and suspicion by vilifying lawful dissent and creating a threat of either administrative or criminal prosecution. Social mistrust is heightened as people inform on others about statements that might be perceived as criticism of the war in Ukraine, direct or indirect. People have been reported for discrediting by friends, neighbours, passersby, and even children.

As is common in authoritarian regimes, the vagueness of the laws and their application is a key strategy used by Russian authorities to create uncertainty for those who may consider expressing their anti-war position. Not all anti-war expression results in charges and fines, but they could. Not all people who have two discrediting violations in a year are criminally charged, but they could be. And most disturbingly, activities that have been called discrediting in some parts of the country are being prosecuted criminally for spreading “knowingly false” information in other regions.

While the law is vague, uncertain, and unevenly applied, the message is clear. Russian authorities are telling citizens that voices at odds with official propaganda are not to be trusted or tolerated.

“This law was passed with only one goal — to suppress antiwar activism… Such restrictions cannot exist in a democratic society,” said Violetta Fitsner, a lawyer with OVD-Info and one of the authors of the complaints to the Constitutional Court. It is important to note that Russia’s Constitution provides that the Russian Federation is a democratic country governed by the rule of law. The Constitution also upholds international human rights law, including the right to freedom of thought, expression, and assembly.

Punishment of legal defence: A lawyer is convicted for statements made in court

The discrediting law has had a chilling effect not only on peaceful dissent but also on the right to an effective legal defence. Research on the application of Article 20.3.3. during the four months between March and June 2022 shows that a defendant having legal representation was correlated with higher fines and a greater likelihood of being fined.

While the reasons for this correlation are unclear, it is important to note that a number of Russian human rights lawyers have also been subjected to judicial harassment as a result of their legal defence of dissenters or political opposition leaders. In hundreds of cases in during 2022 anti-war protests, lawyers’ access to their arrested clients was restricted, and several lawyers were themselves arbitrarily detained or subjected to police violence.

CAO Article 20.3.3 can also be used as another weapon to intimidate lawyers and to limit the scope of legal defence. A case in point is the conviction of Russian human rights lawyer Mariya Bontsler under CAO 20.3.3.

Ms. Bontsler is well known for defending dozens of people charged with criminal and administrative offences for anti-war expressions. She was fined twice as a result of statements she made in court while defending two young women charged with engaging in a peaceful protest in Kaliningrad on 6 March 2022.

According to the court record, in the hearing Ms. Bontsler was asked by the judge “Are you sure Russia invaded Ukraine?” to which she answered, “Yes, Russia invaded Ukraine and started a war.” She was then warned by the judge that the hearing was being recorded. In response she replied, “You can denounce me for God’s sake, but everyone should have their own conscience.” For this statement and one other, she was charged with two counts under Part 1 of CAO Article 20.3.3. The court convicted her on the grounds that “she expressed her subjective opinion directed towards an unlimited number of people… thereby misrepresenting the goals for using the Armed Forces of the Russian Federation outside the territory of the Russian Federation.”

After being convicted, Ms. Bontsler was quoted saying, “…now I can’t even say a word in court… [or] express my position.” She added, “I don’t know how the minutes of the hearings ended up in Center E: either the police keep track of all such meetings [court hearings], or the judges did it themselves. I fear, of course, that history will repeat itself in other meetings…” Centre E is Russia’s Anti-Extremism Center, set up in 2008 to combat terrorism, but it also monitors social networks in search of content promoting extremism, ethnic, or religious hatred. Centre E is noted for surveillance of government critics.

Ms. Bontsler’s case is still in the appeal courts and is not among the complaints currently filed at the Constitutional Court.

The discrediting law violates Russia’s international and constitutional legal obligations

A number of people fined for discrediting have exhausted their appeals, allowing them to make complaints to Russia’s Constitutional Court to challenge the constitutionality of Part 1 of Article 20.3.3. International human rights organizations are also preparing to weigh in with amicus curiae briefs as are several international experts in Russian constitutional law.

The amici curiae on international law are making several arguments. First, the vague language of CAO Article 20.3.3. violates the principle of legality, which provides that no one can be convicted except by laws framed in sufficiently clear and precise terms that enable everyone to understand and foresee when they are breaking the law.

There is no definition of “discrediting” in CAO Article 20.3.3. This makes it impossible for people to guess with any reliability when they might be discrediting the armed forces until after they have been charged. For example, on its face, it seems difficult to imagine ahead of time that a sign saying, “no war,” or “give peace a chance,” or containing only asterisks, held by a solo demonstrator, could result in conviction for defaming the military. It is important to acknowledge, however, that most Russian citizens who protest are aware that their actions will potentially be punished. However, local knowledge of how laws are being applied does not replace the legal requirement of clear laws with precise definitions.

Second, the law is an unwarranted limitation on rights guaranteed by the International Covenant on Civil and Political Rights (ICCPR) to which Russia has been a State Party since 1973. The ICCPR protects rights to freedoms of expression and peaceful assembly as well as the right to participate in political dialogue and debate. At international law those rights cannot be limited except by a valid law created for a legitimate purpose.

The rights to freedoms of expression and peaceful assembly are also found in the European Convention on Human Rights (ECHR) to which Russia was a party until 16 September 2022, when the Russian Federation was excluded (but pre-emptively withdrew) from the Council of Europe. Russia passed a law cancelling the enforcement of any judgements of the European Court of Human Rights (ECtHR) after 15 March 2022. This means that while the ECHR remains binding with regard to all incidents prior to 16 September 2022, the ECtHR is now closed off as a court of last resource for Russian applicants.

At international law, the only legitimate purposes for limiting rights are the protection of the rights of others, national security, public order, or public health or morals. The limitations must also be only what is necessary and proportional to that legitimate purpose. In particular, international jurisprudence holds that laws should not prohibit criticism of official bodies such as the army or the executive branch of government.

The amici curiae argue that the purposes set out in CAO Article 20.3.3 do not fulfil the allowable criteria for limitations of rights and freedoms. Instead, the law sets out the broad and vague purposes of “protect[ing] the interests of the Russian Federation and its citizens, [and] maintaining international peace and security.” While an officially proclaimed state of emergency that “threatens the life of the nation” would allow more latitude at international law for time-limited government restrictions on freedoms of expression and assembly, Russia has not declared any such state of emergency. CAO 20.3.3 is not set out as an emergency law and has no time limitations as are required for emergency measures to be valid.

Why is it important to challenge the discrediting law?

The discrediting law is the most convenient tool for Russian authorities to silence dissent about its war of aggression in Ukraine. The chilling effect of the law in Russia, together with other repressive laws adopted before and after the full-scale invasion that began on 24 February 2022, has paralyzed Russian civil society and taken away citizen’s opportunities to exercise their internationally protected right to freely express their opinions and participate in public affairs in hopes of influencing decision-making processes in relation to the war in Ukraine. The right to effective legal defence is also being unlawfully restricted.

The Russian authorities are utilizing CAO 20.3.3. in concert with censorship of independent media as part of its war propaganda and to eliminate all domestic dissemination of information that counters the government’s official narratives. For example, the government’s official line on the April 2022 atrocities in Bucha is that photographs of the war crimes were faked by crisis actors planted by Ukraine and that the Russian army does not kill civilians. Thus, saying anything to the contrary is “false information” or discrediting.

The stated goal of the complaints to the Constitutional Court and the amicus briefs is to have the discrediting law declared unconstitutional. Beyond that, human rights and peace advocates in Russia need the moral support of the international legal community. They need to know that lawyers around the world are supportive of their efforts to counteract official propaganda and lies with the clear, factual and legal truths presented in their complaints to the Constitutional Court.

The efforts of the international law analysts are also aimed at informing the international community, pointing out that Russia remains an official State Party to binding, universal human rights norms and principles, and that, at least on paper, its Constitution upholds. In addition, these analyses can assist the UN Human Rights Council’s newly appointed Special Rapporteur on the situation of human rights in Russia by providing her with information suitable for incorporation into her official report to the Council in September 2023.

Finally, the international interventions will make sure that Russian authorities, including Russian courts, know that experts in the international legal community are not only watching but speaking out through documents filed in the Constitutional Court where they will become part of the official court docket. The complaints and the amicus briefs will form part of the archival records and will show clearly to future generations that both Russian human rights defenders and the international legal community stood up for the rights of ordinary Russians during Putin’s repressive regime.

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Catherine Morris is an independent researcher and consultant on international human rights law. She is the former Executive Director and UN Representative for Lawyers’ Rights Watch Canada. She is a confirmed participant in a recorded 29 May 2023 free webinar sponsored by the International Bar Association.

Lauren A. McCarthy is an Associate Professor of Legal Studies and Political Science at the University of Massachusetts, Amherst, who specializes in the Russian legal system. Her article, “Four Months of “Discrediting the Military”: Repressive Law in Wartime Russia,” was recently published in Demokratizatsiya: The Journal of Post-Soviet Democratization.

Comments

  1. Catherine Morris

    UPDATE: The amicus curiae briefs referred to in the article have been filed with the Constitutional Court of Russia.

    1. The amicus brief filed by Lawyers’ Rights Watch Canada and joined by the International Bar Association’s Human Rights Institute and former judge of the European Court of Human Rights, Dr. Angelika Nussberger, argues that the discrediting law illegitimately limits fundamental rights to freedoms of expression, assembly and other basic rights guaranteed by international human rights treaties and Russia’s Constitution. The full amicus brief can be viewed (in English and Russian) at https://www.lrwc.org/russia-amicus-brief-to-the-russian-constitutional-court-the-law-on-discrediting-the-armed-forces-violates-international-human-rights-law-joint-amicus-brief/.

    2. The amicus brief of ARTICLE 19: Global Campaign for Free Expression
    and the International Justice Clinic at the University of California, Irvine School
    of Law can be viewed at https://www.article19.org/wp-content/uploads/2023/05/ENG_Russian-Constitutional-Court-AmicusA19.pdf.

    3. See the amicus brief of Alexander Blankenagel (Emeritus Professor, Humboldt University of Berlin) and William Partlett (Associate Professor, University of Melbourne Law School) on the unconstitutionality of the law forbidding discrediting the armed forces at SSRN: https://ssrn.com/abstract= at https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID4488016_code1074395.pdf?abstractid=4488016&mirid=1.

    4. See the amicus brief drafted by US legal scholar Jeffrey Kahn, which challenges Russian officials defences of the law against discrediting by falsely claiming that United States law also silence dissenting voices: https://www.smu.edu/News/Featured/Kremlin-Misrepresentation. This amicus brief was endorsed by 27 US legal scholars.