The Constitutional Court recognized the article of the Code of Administrative Offenses on discrediting the Armed Forces of the Russian Federation as constitutional

The Constitutional Court (CC) of the Russian Federation published refusal rulings on complaints from 13 people who challenged the legality of Art. 20.3.3 of the Code of Administrative Offenses of the Russian Federation on discrediting the armed forces. All of them were fined after publicly criticizing the decision to send Russian troops into Ukraine and considered that the punishment violated their constitutional rights to freedom of speech and assembly. The Constitutional Court decided that citizens can express their opinion about the actions of the RF Armed Forces, “pointing to the presence of shortcomings”, but in general “it is impossible to question” the decisions and measures taken by the authorities on the basis of a subjective assessment. The court called the state a constitutional value and, according to the expert, finally “cemented” the controversial article.

The applicants, fined at various times for discrediting the army, turned at the CC in April 2023. Thus, in April last year, the applicant Maxim Filippov went to the monument to Alexander Pushkin for a solo picket “in order to express his critical opinion about the use of the Russian armed forces in Ukraine.” In his hands he held a homemade poster “with a quote from John Lennon’s song ‘Give Peace a Chance’ and a crossed-out image of a bomb.” The Tverskoy District Court of Moscow fined him 50,000 rubles. according to part 1 of Art. 20.3.3 of the Code of Administrative Offenses of the Russian Federation. In the complaint, Mr. Filippov called the article unconstitutional because, in his opinion, it violates the rights of citizens to freedom of conscience, thought and speech, freedom of assembly, and also contradicts the principle of equality and the prohibition of discrimination. Now the Constitutional Court has published refusals to accept for consideration the complaints of Maxim Filippov and 12 other applicants.

The judges stated that the Basic Law “not only does not exclude, but directly allows” the adoption by the authorities of measures related to the use of the RF Armed Forces to protect the interests of the Russian Federation and its citizens.

The state in the definition of the CC (.pdf) is called “constitutional value”. The Constitution, the court noted, does not allow citizens to use constitutional rights and freedoms to deny the constitutional order. It should be noted that in the text of the Basic Law the word “values” is mentioned 14 times, and “armed forces” – 3 times. In particular, it states that the leadership of the RF Armed Forces is appointed by the president of the country, who is also the supreme commander in chief, and the decision to use the RF Armed Forces must be sanctioned by the Federation Council of the Russian Federation. As for values, Art. 2 of the Constitution emphasizes: “a person, his rights and freedoms are the highest value”, and “recognition, observance and protection of the rights and freedoms of a person and a citizen is the duty of the state”. The state as a value does not appear in the Basic Law.

Article 20.3.3 of the Code of Administrative Offenses of the Russian Federation on public actions aimed at discrediting the Armed Forces of the Russian Federation, appeared in the code almost immediately after the start of the special operation – March 4, 2022. In March 2023, the article was supplemented with punishment for discrediting “volunteer formations”. Citizens face up to 100 thousand rubles. a fine, to officials – up to 300 thousand rubles, to legal entities – up to 1 million rubles. According to the statistics of the Judicial Department under the Supreme Court, in 2022, the courts considered 5442 protocols under Art. 20.3.3 of the Code of Administrative Offenses of the Russian Federation, having issued one warning and fined 4,440 people for 151.3 million rubles. If any of the parts of Art. 20.3.3 of the Code of Administrative Offenses to violate again within a year, a person faces Art. 280.3 of the Criminal Code (public actions aimed at discrediting the use of the aircraft) with a maximum penalty of up to seven years in prison.

It is noteworthy that Mr. Filippov’s complaint cites the position of the Constitutional Court itself, which previously allowed the restriction of the rights of citizens by federal laws only “in order to protect constitutionally significant values ​​with the obligatory observance of the principles of necessity, proportionality and proportionality.”

Art. 20.3.3 of the Code of Administrative Offenses of the Russian Federation “introduces a restriction on freedom of conscience, thought, speech and assembly, which does not pursue a constitutionally permissible goal,” the applicant believes.

But the definition of the Constitutional Court states that the contested article cannot be considered “as discriminatory towards persons depending on their beliefs”, does not introduce a “mandatory ideology” and is not aimed at propaganda of war. At the same time, citizens, the Constitutional Court believes, in principle cannot “arbitrarily on the basis of a subjective assessment” question the “decisions and measures” taken by the authorities – “this would mean denying the legal nature of the Russian Federation, the supremacy of the Constitution and the obligation to comply with its instructions.” As for the criticism of the armed forces and the Northern Military District, as well as the targeted “negative assessment of the activities to protect the interests of the Russian Federation”, such, according to the Constitutional Court, may reduce the “efficiency in fulfilling the assigned tasks” and “the motivation of the military.”

However, you can still express your opinion about the activities of the army: the Constitutional Court believes that Art. 20.3.3 of the Code of Administrative Offenses allows “pointing out the presence of shortcomings”, but only if this “is not associated with an arbitrary denial of the constitutionally predetermined nature, goals and objectives of this activity”.

The lawyer of Mr. Filippov from OVD-Info (the project is included in the register of foreign agents) Violetta Fitzner believes that Art. 20.3.3 of the Code of Administrative Offenses of the Russian Federation violates “the right to freedom of speech and other basic rights.”

“The Constitutional Court wrote that in our country, people have no right to doubt the goals pursued by the Russian armed forces” within the framework of the SVO, Ms. Fitzner notes. “The Constitutional Court has not done worse,” lawyer Olga Podoplelova, co-author of the complaint, wrote on the Telegram channel. “It would have been worse in one case: if the applicants had not chosen the principled position that the norm was completely unconstitutional, but would have tried to go between the streams and propose to the Constitutional Court a compromise solution is to interpret the concept of “discredit” or oblige the legislator to clarify it. Lawyer in the field of constitutional law Ivan Brikulsky says that the Constitutional Court “actually “cemented” the norm of the Code of Administrative Offenses”: “The absence of a decision was better than its presence. If earlier there were hopes in the courts to challenge decisions at the level of cassation or appeal, now there is a “sanctioning” text of the Constitutional Court.” Mr. Brikulsky is afraid of the extension of the formulations from the definition of the Constitutional Court to other areas related to freedom of speech.

Alexander Voronov