The Legal Death of Free Speech in Russia

‘[W]hat made me particularly happy was to see that the Committee’s decision [to award him the Nobel Peace Prize] stressed the link between defense of peace and defense of human rights, emphasising that the defense of human rights guarantees a solid ground for genuine long-term international cooperation. … Granting the award to a person who defends political and civil rights against illegal and arbitrary actions means an affirmation of principles which play such an important role in determining the future of mankind. For hundreds of people, known or unknown to me, many of whom pay a high price for the defense of these same principles (the price being loss of freedom, unemployment, poverty, persecution, exile from one’s country) your decision was a great personal joy and a gift. I am aware of all this, but I am also aware of another fact: in the present situation, it is an act of intellectual courage and great equity to grant the award to a man whose ideas do not coincide with official concepts of the leadership of a big and powerful state.’

Andrei Sakharov

Acceptance Speech by the Nobel Peace Prize laureate 1975,

Read by his wife in his absence in Oslo, December 10, 1975, while Sakharov stood on the steps of a Soviet courtroom, awaiting for a sentence to be pronounced against Sergei Kovalyov, his closest friend, for committing the speech crime of anti-Soviet agitation and propaganda (he served 7 years in a labour camp)

‘I want journalists to die old.’

Antidote against tyranny, Nobel Lecture given by Nobel Peace Prize laureate 2021

Dmitry Muratov, Oslo, 10 December 2021.

The freedoms of speech and protest have been dying a long, slow death in Vladimir Putin’s Russia. What little remained has last week been dealt a mortal blow. After the EU’s decision to suspend the broadcasting licenses of RT and Sputnik within the Union, the Russian regulator Roskomnadzor blocked access to Facebook, Twitter, YouTube and other foreign outlets in Russia, partly on the basis that they were spreading false information about the war in Ukraine. While there is (today) no Great Russian Firewall akin to the Chinese one, and tech-savvy Russians can presumably use VPNs to evade a lot of the blocking, millions of ordinary citizens will now be cut off from large swathes of the Internet. One of the last independent media outlets, Ekho Moskvy, had to shut down after more than thirty years of operation; the TV station Dozhd (Rain) was also taken off the air:

Many thousands of individuals protesting against the war have been arrested all over Russia. And in a culmination of legal repression of speech, on Friday President Putin signed into law bills passed by the Duma amending the Russian Criminal Code and the Code on Administrative Offences (links at the bottom of the text). The amendments create new offences that punish discrediting the Russian armed forces, calling for sanctions against Russia, and disseminating false information about the armed forces. The Novaya Gazeta newspaper, seven of whose journalists were murdered over the past twenty years as a consequence of their work and whose editor-in-chief Dmitry Muratov was co-awarded the Nobel Peace Prize last year, suspended its coverage of the conflict due to (well-founded) fears of the new laws being applied to it and its journalists. Foreign journalists also ceased their reporting within Russia.

In this essay I will examine the new Russian offences, and show how they impermissibly infringe on free expression on matters of public interest, as protected by Article 10(1) ECHR and Article 19(2) ICCPR, a freedom ‘to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’ To call these criminal offences infringements on free speech is actually a colossal understatement – in their context, they are a negation of the whole idea that people should be able to express themselves freely.

The new offences

Offences under the Code on Administrative Offences (CAO, КоАП) are essentially misdemeanours subject to summary judgment. Under new Article 20.3.3 CAO, it is an administrative offence to commit ‘[p]ublic actions aimed at discrediting the use of the Armed Forces of the Russian Federation for the purpose of protecting the interests of the Russian Federation and its citizens, maintaining international peace and security, including public calls to prevent the use of the Armed Forces of the Russian Federation for these purposes.’ The offence is subject to a fine of up to 50,000 rubles for ordinary citizens (about 370 euros as of the time of writing, and a bit lower than the average monthly salary in Russia), but the fine is doubled (para. 2) if ‘accompanied by calls for holding unauthorized public events.’

Under new Article 20.3.4 CAO it is an offence for a Russian citizen to call for the imposition of sanctions by a foreign state (and its various emanations) against the Russian Federation, Russian nationals, or Russian legal entities (such as companies). No defence whatsoever is provided to this offence – no matter what the Russian state or legal or natural person has done, it is always prohibited to call for the imposition of restrictive measures on them. The prescribed fines are the same as in Art. 20.3.3(1) above.

These two administrative offences will be applied en masse to the thousands of anti-war protesters now being arrested across Russia each day. But then come the amendments to the Criminal Code (CC, УК). Two new crimes replicate and supplement the administrative offences examined above. First, the criminal offence in Article 280.3 CC follows Art. 20.3.3 CAO in prohibiting ‘public actions aimed at discrediting the use of the Armed Forces … including public calls to prevent their use.’ It can only be applied, however, if a person has already been convicted once of the administrative offence in Art. 20.3.3 CAO in the past year. Criminal liability comes with greatly increased penalties – up to 300,000 rubles in fines, or by forced labour or imprisonment of up to 3 years. A stricter form of the offence (under Art. 280.3(2) CC) applies if the ‘public actions’ led to several prohibited consequences, including mass disruptions of public order or disruptions of infrastructure, and is punishable by a fine of up to a million rubles and 5 years of imprisonment. In other words – if mass protests result from prohibited ‘public actions’, including any kind of attempt at civil disobedience (e.g. trying to stop military convoys etc), the punishment can be very grave indeed.

Second, similarly, the criminal offence in Article 284.2 CC traces the administrative offence in Article 20.3.4 CAO (calling for the imposition of sanctions), and can only be applied to a person if they have already been convicted for that administrative offence in the past year. It also comes with elevated punishments – up to 500,000 rubles in fines, or up to 3 years of imprisonment. Again the basic idea of these two criminal offences is that they will be applied to repeat offenders who are not deterred from speaking out against the war by fines meted out under CAO.

Then we come to the new ‘fake news’ offence in Article 207.3 CC, which follows on two similar mis/disinformation offences (Arts. 207.1 and 207.2) introduced during the Covid-19 pandemic. The new crime punishes the ‘public dissemination, under the guise of a truthful message, of knowingly false information including facts on the use of the Armed Forces of the Russian Federation for the purpose of protecting the interests of the Russian Federation and its citizens, maintaining international peace and security.’ The ordinary form of the offence (para. 1) is punishable by a 500,000 ruble fine and up to 3 years of imprisonment. A stricter form of the offence (para. 2) applies if it is committed in various circumstances, including by a group of persons or out of profit motives, and is punishable by a fine of up to 5 million rubles and from 5 to 10 years of imprisonment. And a third, strictest form of the offence applies (para. 3) if the dissemination of false information causes (entirely undefined) ‘grave consequences’ (тяжкие последствия), with the only penalty being 10 to 15 years of incarceration.

Wholly unjustifiable restrictions on freedom of expression

The freedom of expression is not an absolute right. Expression can justifiably be restricted if (1) the restriction on expression is provided for by law; (2) pursues a legitimate aim; (3) and is necessary and proportionate to achieve that aim (see generally Human Rights Committee, General Comment No. 34). All of the new administrative and criminal offences in Russian law are undoubtedly restrictions on speech; the constituent elements of each offence can also be met through speech alone. And it is simply manifest that the new Russian legislation fails all three parts of the justifiability test.

First, while the restrictions on speech are provided for by domestic law, the laws in question do not satisfy the qualitative criterion of foreseeability, i.e. they are in many respects impermissibly vague. The best example of such vagueness is the entirely nebulous reference to ‘grave consequences’ in Art. 207.3(3) CC, potentially leading to 15 years of imprisonment. Literally nobody, including the authors of this law, can know what consequences exactly can lead to so severe a punishment. But the other offences are similarly vague (viz. the idea of ‘aimed at discrediting’ (направленные на дискредитацию) the Russian Armed Forces, which can be interpreted as including any form of criticism).

Second, it is crystal clear from the overall context that these laws are motivated by an ulterior purpose, that of suppressing any form of political pluralism and dissent. While protecting national security can be a legitimate aim for restricting speech, this is not what these laws are really about. They are simply meant to stifle any form of public protect or critical journalism, which is exactly what their effect has been so far. It should be noted in that regard that the European Court has already found in prior cases that Russian authorities acted with such ulterior purposes (Navalnyy v. Russia (No. 2), App. no. 43734/14, 9 April 2019, §§ 96-98 (the Court relying on ‘converging contextual evidence’ to establish that the restrictions on the applicant’s liberty were implemented with the ulterior purpose of ‘suppress[ing] political pluralism’)).

Third, even if we accepted arguendo that Russia pursued a legitimate aim in enacting the new laws, there is simply no way of reasonably arguing that these laws are necessary and proportionate. In particular, they are almost entirely divorced from addressing specific harms caused by speech, and they are so overbroad that they generate a veritable storm of chilling effects on speech in the public interest (indeed, that’s their whole point). Thus, under the new laws, it would potentially be criminal for a Russian citizen to

1. Call for foreign sanctions against the Russian state or an odious oligarch regardless of what they have done, and regardless of the fact that the imposition of the sanctions by foreign states has literally nothing to do with any such public calls within Russia.
2. Say that the Russian armed forces committed war crimes in Syria.
3. Say that the Russian armed forces are indiscriminately bombing cities in Ukraine.
4. Say that the Russian armed forces should not be used in Ukraine.
5. Say that the Russian armed forces have suffered defeats in Ukraine.
6. Say that the Russian armed forces are unprofessional or incompetent in some respects.
7. Sing ‘Imagine’ or ‘Give Peace a Chance.’
8. Wear or carry a peace sign, depending on the context.

Moreover, journalists could routinely be subjected to an even more severe punishment than ordinary citizens, because they are normally working as part of a ‘group’ and are paid to do so (cf. Art. 207.3(2) CC, with up to 10 years of imprisonment). Note how the ‘fake news’ offence does not require prior convictions for any administrative offence.

Criminal punishments on speech are only appropriate if less restrictive means are unavailable or ineffective (General Comment 34, para. 34). There is simply no evidence that any alleged social harms caused by public criticism of the Russian state or the armed forces could not be mitigated through more (supposedly) good, truthful speech by Russian officials (who of course control an enormous apparatus capable of disseminating such speech), and that criminal punishment is genuinely necessary. It is nothing short of perverse to criminalize anti-war messages and protests. And what, exactly, can be the ‘pressing social need’ to send someone to prison for 3 years simply for saying that Roman Abramovich’s foreign assets should be seized? Even a civil penalty would be hard to justify in this case, let alone a criminal one (cf. the Israeli Anti-Boycott Law, which controversially allows for a civil suit in tort against boycott advocates – see Human Rights Committee 2014 Concluding Observations on Israel, para. 22: ‘The Committee is concerned at the chilling effect that the Boycott Law (5771-2011), which provides that a call for economic, cultural, or academic boycott of people or institutions in the State party or the OPT for political reasons is a civil offence, and the so-called “Foreign Funding Law” (5771-2001),which imposes mandatory disclosure of foreign funds received by any association or company, may have on the freedom of opinion and expression and freedom of association (arts.19 and 22).’)

The one redeeming quality of the definition of the ‘fake news’ offence in Art. 207.3 CC is that it applies only to knowingly false information (заведомо ложной информации), which is coupled with the default culpability requirement of intention in Russian law (Art. 24 CC). That is, under the text of the law, a person who genuinely believed in the information he disseminated about the Russian armed forces could not be criminally liable, even if the information was objectively false (no such escape valve exists for the other offences). But there is little room for confidence that, in the current climate, Russian criminal courts would apply this definition and its high culpability requirement with sufficient rigour, nor is there a similar culpability requirement with regard to any harm that the false speech supposedly causes. On the contrary, the mere fact that the fake news law is on the books, and with such severe, life-changing penalties to be administered by a long-subservient judiciary, is sufficient to generate unacceptable chilling effects on speech on matters of public interest.

Shelling free speech

The new administrative and criminal offences in Russian law are nothing less than a concerted attempt by state authorities to eradicate what’s left of the free press and free speech in Russia. They are not only an indiscriminate assault on the right of journalists and ordinary citizens to speak critically of the government, but also on the right of their listeners to ‘seek and receive’ information and ideas of all kinds. They are nothing less than a cynical attempt by the systematic purveyors of ‘fake news’ to use ‘fake news’ legislation to hide their own lies.

And they are also nothing new under the sun. We, in Russia and elsewhere in Eastern Europe, have been here before, and so have many other peoples. Criminal laws punishing ‘fake news’ have long existed in autocracies, and are now proliferating worldwide. What is happening now in Russia certainly can happen and has happened elsewhere. As Sergei Kovalyov, who spent seven years in a Soviet penal colony without losing his belief ‘that sooner or later lies punish themselves’, presciently told us in 2015:

Another common and dangerous idea is that Russia’s immorality and political barbarism are solely Russia’s internal affair. That isn’t true. In our present interdependent world, serious problems become global and affect everyone. Russian (and not only Russian) totalitarian tendencies are fraught with catastrophic global consequences. No one knows how to deal with this challenge, but many people realize that not to face it is shameful and dangerous.

Even in the worst times of Soviet repression, courageous dissidents like Sakharov and Kovalyov spoke out, often at great risk to themselves, because they could not stand the shame of staying silent. Their successors are speaking out today, and will do so tomorrow, equal in their dignity and bravery to Ukrainian citizens fighting for their country’s survival. Because this is exactly what the thousands of Russians who will be prosecuted under the new repressive laws are really doing; they are fighting not only for peace, but for the survival of a different Russia.

Notes:

1. The photograph of is of Andrei Sakharov’s grave in Moscow, January 1990; image credit.
2. My colleague Philippa Webb and I have co-authored a report on criminal laws dealing with false speech for the High Level Panel on Media Freedom; the analysis in the post draws from that report, which will be available publicly in a few months.
3. Because the websites of the Duma and the Kremlin are under continuing cyber attack by pro-Ukrainian hacktivists, the official texts are inaccessible there, but I managed to find them here. Direct links to the amendments:

Федеральный закон от 4 марта 2022 г. N 32-ФЗ “О внесении изменений в Уголовный кодекс Российской Федерации и статьи 31 и 151 Уголовно-процессуального кодекса Российской Федерации”

Федеральный закон от 4 марта 2022 г. N 31-ФЗ “О внесении изменений в Кодекс Российской Федерации об административных правонарушениях”

For versions of the two Codes previously in force, see here.

All translations mine, with a bit of help from Google Translate and friends who are native Russian speakers.