The ruling of the Constitutional Court on the legality of the repressive article “on discrediting the army” contains so many anti-constitutional statements that, in fact, the judges completed the constitutional coup that began in 2020. Elena Lukyanova , Doctor of Law, Professor at the Free University, spoke about this in a conversation with The Insider.
“The court has not made any decision. He simply refused to consider complaints. That is, once again he withdrew himself from fulfilling his constitutional duties. Therefore, the grounds for refusal have no legal significance. But in themselves these grounds are monstrously unconstitutional.
- The highest constitutional value – a person, his rights and freedoms – has been replaced by another – the state.
- A new constitutional principle has been introduced – "support for military operations in Ukraine."
- For some reason, this support has been declared a new constitutional duty of citizens of the Russian Federation.
- This justification actually allows war propaganda and, conversely, prohibits anti-war propaganda, which is contrary to Russia's international obligations (International Covenant on Civil and Political Rights).
Thus, the Constitutional Court turned the Constitution upside down and completed the constitutional coup that began in 2020. By the way, "activity to maintain international peace and security" is not a function of Russia. Including from the point of view of the Constitution. This is a function of the UN, according to which Russia, like other countries, can participate in this process.
In case of war, the FKZ "On martial law" applies. It does not have many restrictions of constitutional norms. But the fact is that the Constitution, even without officially introduced martial law, is canceled by the Constitutional Court itself, which, in accordance with the Constitution, is the body for its protection. Now we can safely call it an unconstitutional court.”
According to Ilya Shablinsky, Doctor of Law, a member of the Moscow Helsinki Group, 13 applicants were not actually even given the floor, because otherwise the court would have to explain exactly how the posters with the phrases “No to war” or “No to fascism” threaten the security of the state or its defense capability.
“They refused to consider 13 complaints, not a court decision. You need to pay attention to the denial of consideration. It must be said that it is quite difficult to get to the Constitutional Court now – you have to go through four instances and, as a result, get a reply. This means that there is almost no legal argument. Basically, it all looks like a training manual from the Office of the President. This is not an act of the court, but an act of propaganda prepared by an administrative body. All lawyers will agree with this.
Still, you can try to fish out a legal argument. I expected that they would somehow justify the need to limit freedom of speech. We have Article 55 of the Constitution, which allows federal law to restrict freedom of speech in order to protect, for example, the defense of the country and the security of the state. Freedom of speech may be restricted if it requires the protection of the country and the state. That is why 13 applicants were not given a word in court – the judges would have to answer questions about how the phrase “No to war, no to fascism” or even “No to … e” threaten the security of the state and the country's defense capability.
“It turns out that it is possible to somehow criticize the state, but at the same time, it is impossible to criticize the state in this area. Why? And why not"
The Constitutional Court determined that this article <on discrimination of the Armed Forces of the Russian Federation> does not prevent <criticism of the army> if it “is not associated with an arbitrary denial of the constitutionally predetermined nature of the goals and objectives of this activity of the state and is based on open and reliable information.” It turns out that it is possible to somehow criticize the state, but at the same time, it is impossible to criticize the state in this area. Why? And not why. The Constitutional Court does not substantiate this in any way. The Constitution expressly provides for our right to criticize the state, while the Constitutional Court says: “In this area, no.”
This is at odds with the principle of constitutionality, according to which citizens may doubt the legitimacy of the actions of the authorities. It presupposes the need to limit power, and especially in the field of war and peace, the actions of the authorities should be especially severely limited. It turns out that the Constitutional Court calls the actions of the authorities constitutional without any arguments.
“The court says that the state is a constitutional value, but this is not in the Constitution”
Then they have remarks that criticism is possible, but with the use of open and reliable information. What is this? On YouTube, any information is open, and its reliability or inaccuracy is being challenged in court. And what is the unreliability of the information of the poster "No to war"? Where is the misinformation here?
It is clear to me that they left a serious discussion, because they would have to prove that these posters really pose a threat to the country's defense, and it is useless to prove this. They also have a casual argument that the state is a constitutional value, but this is not in the Constitution. The State is a possible value, but it must be separated from the Constitution. Constitutional values are principles that allow one to protect oneself from the abuses of the state, and the highest value according to the Constitution is human rights and freedoms, which the Constitutional Court does not even mention. That's all, there are no other arguments similar to the law for these typical failures.