Russia’s Other War: The Fight over Freedom of Expression

Stephen H. Marcus and Marissa Kardon Weber, legal advisers to OVD-Info, a Russian human rights group, discuss the Russian government’s recent efforts to suppress opposition to the war in Ukraine…

The world’s attention has been rightly focused on Russia’s unprovoked war against Ukraine. But Russia is also fighting a war against Russian citizens who oppose the Ukraine war. In Russia’s war against its citizens, it is not using rockets as weapons but rather law and the legal system to suppress opposition to the war. By actively persecuting peaceful anti-war protestors and denying their right to freedom of expression, the Russian government ensures there is no domestic opposition that might otherwise constrain Russia’s aggression.

Immediately after Russia launched its full-scale invasion of Ukraine on February 24, 2022, peaceful anti-war protests erupted across the country. The Russian government responded by intensifying its war against dissent.

On March 4, 2022, eight days after the invasion, the Russian government outlawed anti-war protests by enacting Article 20.3.3 of Russia’s Administrative Code. While the government has repeatedly adopted and enforced repressive legislation over the past decade, Article 20.3.3 was introduced specifically to target anti-war speech, as it prohibits “public actions directed at discrediting the use of the Armed Forces of the Russian Federation.” Article 20.3.3 has been amended and expanded twice to include the discrediting of any Russian state entities abroad and volunteers assisting the armed forces and, in practice, has outlawed private actions in addition to public actions.

From March 4 onward, the Russian government has aggressively used the legal system to suppress anti-war protests by invoking Article 20.3.3 to impose fines on protestors. It has used Article 280.3—a criminal provision also enacted on March 4—to charge and imprison anyone who violates Article 20.3.3 within one year of being fined under the article or whose act of discrediting has led to “severe consequences.” The Russian government has brought 7,182 cases against Russians under Article 20.3.3 and 89 under Article 280.3.

Russian human rights defenders from OVD-Info, Memorial, and Russia Behind Bars are using an existing legal mechanism in an attempt to persuade the Russian Constitutional Court to follow the text and spirit of the Russian Constitution and end the government’s war against dissent and freedom of expression, despite formidable obstacles. The Russian Constitution, adopted in 1993 after the fall of the Soviet Union, states that every Russian has “human rights and freedoms” and explicitly protects “freedom of conscience,” “freedom of ideas and speech,” and the right to “assemble peacefully.”

The Russian legal system provides a mechanism for enforcing constitutional rights. The constitution vests the Constitutional Court with authority to declare unconstitutional any law that violates Russians’ constitutional rights. The court has the power to end the Russian government’s use of Article 20.3.3.

The Russian Constitutional Court is at a pivotal moment in history. Since April 25, 2023, Russian human rights lawyers have filed 23 complaints with the court requesting that it strike down Article 20.3.3 as an unconstitutional violation of the human rights of Russians. International human rights groups, including Lawyers’ Rights Watch Canada, the International Bar Association’s Human Rights Institute, Article 19 and the International Justice Clinic at the University of California, Irvine School of Law, and respected academic experts in Russian constitutional law have joined the litigation by filing amicus briefs challenging the constitutionality of Article 20.3.3.

The Russian Constitutional Court has been called on to exercise its authority and fulfill its duty to stop the Russian government’s use of Article 20.3.3 and the Russian judicial system to impose fines and suppress peaceful opposition to the war. Russian lower courts persist in applying Article 20.3.3 to suppress any anti-war speech that “discredits” the Russian armed forces, despite the courageous defense efforts of Russian human rights lawyers who face the risk of persecution for their efforts.

In one case, a lone protester who held a poster with the words “Give Peace a Chance” and a crossed-out picture of a bomb at the Moscow monument of Alexander Pushkin—a famous nineteenth-century Russian poet, playwright, and novelist—was found guilty under Article 20.3.3 and fined 50,000 rubles, approximately 642 USD. In the court’s reading of Article 20.3.3, the protester “discredited” the Russian forces because his sign expressed “a negative attitude” to its ongoing military operation, despite the fact that the sign was silent about both the war in Ukraine and the Russian army. In another case, a solo protester was convicted for holding a poster that said, “Freedom to Russia, peace to Ukraine.”

Both of these cases are among the 23 brought by Russian human rights lawyers before the Constitutional Court. They represent only a few examples of the thousands of cases brought by the Russian government against protesters for voicing their opposition to the war, publicly and privately.

Russian human rights lawyers, international human rights groups, and experts in Russian constitutional law have provided the Constitutional Court with unassailable legal arguments for invalidating Article 20.3.3. The article violates Russia’s constitutionally guaranteed rights, including free speech and peaceful assembly.

International human rights groups argue that Article 20.3.3 also violates Russia’s international treaty obligations under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which guarantee fundamental human rights. Russia’s constitution incorporates its international obligations into its legal system and gives them precedence if they conflict with Russian law. Together, these challenges lead to one conclusion: Article 20.3.3 must be declared an unconstitutional violation of Russians’ fundamental rights.

OVD-Info and the amici face formidable obstacles in persuading the Constitutional Court to reach the result that the constitution requires. Since the adoption of the Russian Constitution, the court has moved away from upholding individual rights to upholding and deferring to the exercise of governmental power.

The court’s judicial impartiality and independence was further eroded in 2020, when Russia amended its constitution to give Russian president Vladimir Putin the power to direct the Federal Council (Russia’s upper legislative chamber) to appoint judges and to remove them without having to satisfy any defensible standard that might justify removal.

In June and July 2023, this erosion was on full display as the Constitutional Court published decisions rejecting 22 of the 23 complaints. The decision on the remaining complaint has not yet been published. Each of the 22 rulings contain identical justifications for rejecting the complainants’ and amici’s challenges to the constitutionality of Article 20.3.3. The court ruled that the human rights provisions in the Russian Constitution cannot “be used with an aim to deny the constitutional order of the Russian Federation” and that the “defense of the Fatherland…is a duty of a citizen of the Russian Federation.” While these concepts are incorporated into the Russian Constitution in Articles 55(3) and 59, the court makes no attempt to demonstrate that complainants’ expressions violated either of these provisions.

Lacking any evidentiary support and in stunning denial of Russia’s war of aggression against Ukraine, the court held that anti-war expressions “could undermine the determination and effectiveness” of the Russian armed forces and “provide assistance” to opposing forces, “thereby obstructing the maintenance of international peace and security.” The court found that the only permitted expression of opinion is one that “does not entail arbitrary denial of the constitutionally determined nature and goals of this activity [special military operation in Ukraine] and is based on reliable information taken from an open source.” In other words, the court ruled that it remains unconstitutional to refer to the “special operation” in Ukraine as a “war,” “aggression,” or “occupation.” The court’s narrow interpretation of free speech sets an impracticable standard where one can criticize only specific actions of the Russian armed forces and their “special operation” in Ukraine if supported by information deemed reliable by the Russian government itself, essentially requiring critics to simultaneously support what they are criticizing.

Despite the daunting odds they anticipated, and that are evident given the court’s latest rulings, Russian human rights lawyers, international human rights groups, and Russian constitutional experts are still fighting the legal battle against Russia’s suppression of free expression. Their legal arguments are strong, their cause is just, and their efforts are creating a legal record of the court’s partiality and non-independence, which will hopefully aid the development of Russia’s legal system.

In advocating for human rights before Russia’s Constitutional Court, they assure Russians—who are overwhelmed with propaganda and censorship—of the unlawfulness under Russian and international law of persecuting peaceful anti-war protestors, demonstrate solidarity, and give hope that one day the human rights embedded in the Russian Constitution and international law will enable them to freely express their political views without the risk of fines or imprisonment.

The dedicated human rights advocates knew long before the court published its latest rulings that it would take more than a case in the Russian Constitutional Court to achieve that outcome, including current international efforts toward accountability for international crimes and rights violations through efforts in international organizations, courts, and tribunals. Ultimately, however, freedom may have to await sweeping democratic change within Russia. But one way or another, human rights advocates believe that day will come.

Stephen H. Marcus and Marissa Kardon Weber are legal advisers to OVD-Info, a Russian human rights group.

Suggested citation: Stephen H. Marcus and Marissa Kardon Weber, Russia’s Other War: The Fight over Freedom of Expression, JURIST – Professional Commentary, August 1, 2023, https://www.jurist.org/commentary/2023/08/marcus-kardon-weber-russia-freedom-of-expression/.

This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at commentary@jurist.org