ARTICLE 19 and the International Justice Clinic at the University of California, Irvine School of Law jointly submitted an amicus brief to the Russian Constitutional Court urging the Court to declare that prohibiting criticism of the use of the armed forces is unconstitutional and illegal, in accordance with the international legal rule that people may not be penalised for or restricted for criticising public institutions.
In March of 2022, the Russian Parliament adopted two federal laws imposing administrative and criminal liability for ‘discrediting’ the use of the Armed Forces of the Russian Federation in the name of protecting ‘[…] the interests of the Russian Federation and its citizens [and] maintaining international peace and security’. In particular, Article 20.3.3 of the Russian Federation Code of Administrative Offences prescribes a variety of administrative fines. Repeated violations entail criminal punishment, including forced labour or imprisonment. This restriction is a clear violation of the right to free expression.
The International Covenant on Civil and Political Rights (ICCPR), to which Russia is a party, requires that any restriction on expression is explicitly provided for by clear and precise legal means, protects permissible legitimate aims, and is necessary and proportionate to those aims, using the least intrusive means possible to achieve them. The restrictions in Article 20.3.3 fulfil none of these obligations.
The law’s extraordinarily vague use of the word ‘discredit’ means it can effectively be used to prosecute any anti-war sentiment expressed on social media or in other public settings, including through participation in peaceful assemblies. There are no safeguards against it being applied in a purely subjective fashion. Further, protecting the reputation of a public institution like the army is not a legitimate aim. The government does not have the same right as a private citizen to protection of reputation, and must prove how the expression it seeks to restrict causes actual harm to national security – not invoke vague claims to block criticism or calls for accountability.
Even if Article 20.3.3 fulfilled the legality and legitimacy requirements, the punishments it entails are unnecessary and disproportionate to its (illegitimate) aims. The law has been used to punish people for the smallest of actions, including liking an anti-war video on a social networking site. It is inconceivable that preventing an individual from liking an anti-war video would be necessary under any national security reasons. The Russian state is using vague national security concerns as an excuse to shield itself from criticism and accountability.
ARTICLE 19 urges the Russian Constitutional Court to declare Article 20.3.3 unconstitutional and illegal, in line with international free expression standards.