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In a conversation with The Insider, lawyer Elena Lukyanova noted that a recent ruling by Russia’s Constitutional Court supporting the legality of a law on “discrediting the army” is in fact a constitutional coup d'etat. The ruling has no legal force, but it nevertheless shows the principles the Constitutional Court is guided by in its decisions. The judges have proclaimed that the supreme value of the Constitution is no longer the individual, and his or her rights and freedoms, but the state. The approval of the invasion of Ukraine is now a Russian citizen's constitutional duty, lawyers Elena Lukyanova and Ilya Shablinsky explained to The Insider.
The Constitutional Court's June 21 ruling on the legality of Administrative Code article 20.3.3 – a repressive law “on discrediting [Russia’s] army” — contains so many anti-constitutional statements that the judges actually completed the constitutional coup that began in 2022, Dr. Elena Lukyanova, a professor at Free Moscow University, told The Insider.
“The court didn't make any decision. It simply refused to consider the complaints [made by the plaintiffs].That is, once again, it withdrew itself from its constitutional duties. That's why the reasons for the refusal have no legal meaning. But these grounds themselves are monstrously anti-constitutional.
The highest constitutional value – the individual, and his or her rights and freedoms – has been replaced by another – the state.
A new constitutional principle – “support of the Russian military’s actions in Ukraine” has been derived.
For some reason, this support is declared a new constitutional obligation of Russian citizens.
This justification actually permits war propaganda and, conversely, prohibits anti-war propaganda, which contradicts Russia's international obligations (such as the International Covenant on Civil and Political Rights).
This means that the Constitutional Court has turned the Constitution upside down, and completed the constitutional coup that began in 2020. By the way, ‘activities to maintain international peace and security’ is not one of Russia’s functions. Including in terms of the Constitution. It is a function of the UN, by whose decision Russia, as well as other countries, can participate in this process.
In the event of war, the federal law ‘On Martial Law’ is in effect. It does not have many restrictions on constitutional norms. But the point is that the Constitution, even without martial law being officially introduced, has been repealed by the Court itself — which is the body protecting it, according to the Constitution. Now we can safely call it an anti-constitutional court.”
According to Ilya Shablinsky, a doctor of legal sciences and member of the Moscow Helsinki Group, the 13 petitioners were actually not even allowed to speak, as the court would have otherwise have had to explain how exactly posters reading “No to War” or “No to Fascism” threaten state security or its defensive capacity.
“They refused to consider 13 complaints. It wasn’t even a judicial decision. We should pay attention to the refusal. I must say that it’s quite difficult to reach the Constitutional Court these days – you have to go through four jurisdictions. And [after going through all that] you get a formal refusal.
That means that there’s almost no legal reasoning. Basically, it all looks like instructions from the Presidential Administration. It is not an act of the court, but an act of propaganda prepared by an administrative body. All lawyers would agree with that.
Still, you can try to get a legal argument out of it. I would expect them to somehow justify the need to limit freedom of speech. The Constitution has Article 55, which allows for restrictions on freedom of speech by federal law in order to protect, for example, national defense and national security. Freedom of speech can be restricted if the defense of the country and the state requires it. That's why the 13 petitioners were not allowed to speak in court – the judges would have to answer questions about how the phrases ‘No to War, No to Fascism’ or even ‘Net v***e’ threatened the security of the state and the defense of the country.
“Somehow you can criticize the state, but at the same time you can't criticize the state in this area. Why? No reason”
The Constitutional Court determined that this article [on the discrimination of the Russian Armed Forces] does not prevent [criticism of the army] if it “does not involve an arbitrary denial of the constitutionally determined nature, goals and tasks of this activity and is based on open and reliable information.” It turns out that it is somehow possible to criticize the state, but at the same time you can’t criticize the state in this area. Why? No reason. The Constitutional Court doesn’t justify that in any way. The Constitution expressly provides for our right to criticize the state, but the Court says: ‘Not in this area.’
This is at odds with the principle of constitutionality, which indicates that citizens may question the legitimacy of the authorities’ actions. It implies the necessity of restricting power, and especially in the field of war and peace the actions of the authorities should be strictly limited. It turns out that the [Constituional Court] calls the actions of the authorities constitutional without any argument.
“The Court says that the state is a constitutional value in itself, but that’s not in the Constitution.”
Next, they comment that criticism is possible, but with ‘open and reliable information.’ Which is? Any information is open on YouTube, and its credibility or lack thereof can be challenged in court. Why isn’t a ‘No to War’ poster credible? Where’s the unreliability of information here?
It’s clear to me that they avoided a serious discussion, because they would have to prove that these posters are a real threat to the country’s defenses, and it’s useless to prove that. They also have a casual argument about the state being a constitutional value in itself, but that's not in the Constitution. The state is a possible value, but it must be separated from the Constitution. Constitutional values are principles to protect against abuses of the state, and the highest value under the Constitution is human rights and freedoms, which the Constitutional Court didn’t even bring up. That's it, there are no other right-like arguments for these typical denials.”