Hold Russia accountable for its sweeping law which penalizes war criticism

May 12, 2023

The International Justice Clinic and ARTICLE 19 jointly submitted an amicus curiae brief to the Russian Constitutional Court. The case concerns the Administrative Code of Russia (“Article 20.3.3”), which prohibits and sanctions any form of expression discrediting the Russian Army. 

On top of the overly broad and vague language and heavy statutory penalties, Russia’s aggressive enforcement of Article 20.3.3. has effectively silenced any antiwar dissent in Russia, so broad that it could even cover pro war dissent. Under Article 20.3.3, people have been penalized even for small actions, such as holding a poster that read “Fascism Won’t Do” and liking an anti-war video on a social networking site. The law also undermines the ability of journalists to report on matters of public interest, such as military operations of the Russian Armed Forces abroad. As a result, the public is deprived of pluralistic reporting on the use of armed forces and is unable to exercise their right to receive information, creating an environment where war propaganda becomes pervasive.

To support OVD-Info, an independent human rights defense and media group in Russia, in their complaint to the Russian Constitutional Court to repeal this stifling law, the amicus brief demonstrates that Article 20.3.3 severely restricts the rights to freedom of expression of journalists, activists, and the general public in Russia. Freedom of expression is explicitly protected by Article 19(2) of the International Covenant of Civil and Political Rights (ICCPR), to which the Russian Federation is a party, and any restrictions on freedom of expression must pass the stringent test of legality, legitimacy, and necessity and proportionality under Article 19(3) of the ICCPR (so-called three-part test). Article 20.3.3 fails to meet any prong of the three-part test. We drew our conclusions through a  comparative analysis noting a number of precedents at international and domestic courts and UN bodies, which affirm that public institutions should be subject to a high level of criticism, including an institution like the Russian army. 

• Due to its extraordinary vagueness, Article 20.3.3 does not meet the standards of legality. The provision offers no safeguard against abusive or arbitrary enforcement of the law. In practice, the application of this law has resulted in individuals being prosecuted for even minor acts, from  being tagged on a social media post critical of the Russian army to placing anti-war slogans on their private vehicles, as OHCHR reported. Human rights courts around the world, such as the Inter-American Court of Human Rights and the Community Court of Justice of the Economic Community of West African States, have uniformly condemned laws like Article 20.3.3 because of vagueness and overbreadth. (see Federation of African Journalists (FAJ) and others v. The Gambia and Usón Ramírez v. Venezuela)

• Article 20.3.3 does not pursue a legitimate aim. Article 19(3) of the ICCPR limits restriction of freedom of expression to a handful of legitimate interests such as the rights or reputations of others, or the protection of national security or of public order, or of public health or morals. Protecting the reputation of a government entity does not fall under any of these enlisted aims. This position is underscored by the Human Rights Committee, which noted that when it comes to public debate concerning public figures in the political domain and public institutions, the value placed by the ICCPR upon uninhibited expression is particularly high. The Committee outrightly states that State parties should not prohibit criticism of institutions, such as the army or the administration. Russia might also claim that Article 20.3.3 is necessary to protect a national security concern. However, Russia has not demonstrated a concrete national security threat or reason. The Human Rights Committee has denounced states that invoke pretextual or vague claims of national security to restrict freedom of expression. (see Incal v. Turkey, OOO Memo v. Russia, Kim v. Republic of Korea)

• ARTICLE 20.3.3 is an unnecessary and disproportionate restriction on the freedom of expression. The substance of the charge and the severity of the potential penalty under Article 20.3.3 are punitive in nature, which creates a chilling effect on freedom of expression, in particular in relation to Russia’s aggression against Ukraine. Human rights courts have repeatedly affirmed that given the importance of cultivating democratic debate, state institutions should be expected to display a high degree of tolerance. Article 20.3.3 criminalizes criticism of a state institution and prohibits democratic debate with regard to the army. (see Case of Grigoriades v. Greece, Case of Margulev, v. Russia, Cumpana and Mazare v. Romania, Case of Sürek and Ôzdemir v. Turkey, Dilipak v. Turkey, Dmitriyevskiy v. Russia, GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland, Morice v. France, Tatár and Fáber v. Hungary,  Lombardo and Others v. Malta) 

Public institutions such as the Russian army should not be immune from criticism by the public, an essential feature of public life meant to prevent or reveal corruption or other abuses of power. International human rights law thus demands a particularly strict scrutiny of laws which prohibit or limit criticisms against public institutions. We hope that the Russian Constitutional Court will take international human rights courts’ precedents into careful consideration when they assess the legal and constitutional validity of Article 20.3.3 to ensure Russia’s compliance with its obligations under the ICCPR.

The Clinic’s students, Celine Gruaz (2L) and Robia Amjad (2L), led the drafting work under the direction of Professor David Kaye and Digital Rights Fellow Hinako Sugiyama.