Freedom of Expression in Russia as it Relates to Criticism of the Government

• Citation: Vol. 27 No. 2
• Publication year: 2013

Freedom of Expression in Russia as it Relates to Criticism of the Government

Tatyana Beschastna

FREEDOM OF EXPRESSION IN RUSSIA AS IT RELATES TO CRITICISM OF THE GOVERNMENT

Our lives begin to end the day we become silent about things that matter.

—Martin Luther King Jr.

Introduction

Freedom of expression in Russia appears to be slowly eroding, Russian Government promising to protect human rights, including the right to freedom of expression.

The collapse of the Soviet Union in 1991 and the transition from "Old" Russia to "New" Russia were associated with many new hopes and promises.¹ one such promise was the establishment of new human rights standards, including the fundamental right to freedom of expression. This promise was made by the ratification of the European Convention on Human Rights (Convention) in May of 1998.²

Previously under the oppressive governments of Stalin and his successors, Soviet Russia enjoyed no freedom of expression.³ Under Mikhail Gorbachev, Russia began a new movement commonly known as "Perestroika," a Russian word that literally translates to "restructuring."⁴ Perestroika ushered in a new era of hope and freedom and was heralded both domestically and internationally as an opportunity to change the oppressive policies of the past and establish new respects for the rights of the individual.⁵ The collapse of the

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Soviet Union was accompanied by the people's desire to get rid of the old policies that disregarded the value of individual human rights, such as the freedoms of religion and freedom of expression.⁶

In any political system, there is always a natural tension between the interests of the state and the interests of the individual. In the old Soviet Russia, the interests of the state prevailed over any other rights.⁷ The early transition period was associated with the transition to a New Russia, which was to be a symbol of the new rights, freedoms, and policies, with the rights of the individual prevailing.⁸ The ratification of the Convention was a big step in this transition. It was a significant promise on the part of the new government, the promise of a commitment to the values of human rights and individual freedoms, including freedom of expression.

The Convention expressly protects many fundamental human rights, such as the right to life;⁹ prohibition of torture;¹⁰ the right to a fair trial;¹¹ respect for private and family life;¹² freedoms of thought, conscience, and religion;¹³ freedom of assembly;¹⁴ and the right to freedom of expression,¹⁵ which is the focus of this Comment.

Freedom of expression is a fundamental part of every democracy. To be a truly democratic society, the government has to establish its serious commitment to the values that are at the foundation of every democratic system. Ratification of the Convention was the first big step to such a commitment.

This Comment analyzes whether the new Russian government adhered to its commitment and whether it performed upon its promise made fifteen years ago. It was a promise of democracy that the new government of Russia gave to its people in 1991, when thousands came out on the streets demanding a new

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system of fundamental freedoms, the system where everyone would be free to express their opinion as to the work of the government and its officials without fear of prosecution.

Additionally, this Comment analyzes the current status of political speech in Russia and proposes certain practical solutions for further development of the rule of law, given the importance and sensitive nature of the subject matter. Political speech—"speech that participates in the processes of representative democracy"¹⁶ and serves the function of "discovery and spread of political truth"¹⁷ —is an essential component of every democratic society. The ability to freely express political criticism is an important component of freedom of expression. Freedom of expression, an essential human right and an important component of any developing democratic system, is protected under Article 10 of the European Convention.¹⁸ This Comment analyzes the protections afforded to freedom of expression under Article 10 of the Convention and whether Russia provides such protections in its domestic legal system.

It has been fifteen years since Russia ratified the Convention and began the adjustment and reformation of its legal system, bringing it into compliance with the Convention provisions. Nevertheless, after many years of legal reforms, Russian citizens bring one of the highest amount of claims to the European Court of Human Rights (ECHR).¹⁹

This Comment argues that today's threat to political speech is a result of the indirect actions taken by the government to suppress freedom of expression when it involves criticism of the government. This threat is also a direct result of the dependent judiciary inherited from the Soviet era and influenced by Putin's government. Tracing the history of political speech in Russia and analyzing the current problems faced by the Russian legal system help form an understanding of freedom of speech in Russia. This Comment also examines

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the actual and potential reasons for the declining freedom to criticize the government and the often-inadequate measures taken by the Russian legal system, which frequently serve to escalate the problem.

Because understanding the prior history and mentality of the Russian people is an important part of the development of freedom of expression in Russia, Part I of this Comment traces the history of the freedom of expression in Russia from the Soviet times to its transition under the new Russian Government. Subpart A analyzes the historical development of freedom of expression in Russia as it relates to criticism of the government, its status during the Soviet Era, and the rapid changes during the early post-Soviet period. Subpart B examines the promise of a commitment to democracy made during this transition by the ratification of the Convention.

Part II examines protection of freedom of expression under Article 10 of the Convention. It also analyses the implementation of the Convention in Russia since its ratification, the changes made to the existing laws, as well as the existing problems and violations of the Russian Constitution, Russian federal law, and the European Convention. This analysis is performed based on the examination of cases brought before the European Court of Human Rights against Russia.

Part III analyzes the most recent and current matters brought before the Russian domestic courts, the most recent administrative legal "innovations" of Putin's Government, and the limitations imposed on freedom of expression based on the cases recently decided by the domestic courts.

Part IV.A analyzes the reasons for limitation on political speech. Part IV.B analyzes the practical solutions and suggestions as to the improvement of freedom of expression in Russia. In conclusion, this Comment finds that the Russian government poorly performed on its promise of democracy and the freedom to criticize the government, which is under threat in the Russian Federation today.

I. Background on Freedom of Expression in Russia Prior to the Ratification of the European Convention

A. A Brief History of the Restrictions on Political Speech in Russia

Political speech and criticism of the government were restricted during the entire soviet Era. stalin and his Prokuratura undertook particularly gruesome

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measures of restricting and prosecuting political speech.²⁰ In the early 1930s, political speech and criticism of the government were controlled, first, through artificial famine and starvation created by the Soviet government,²¹ then by placing its citizens in labor camps²² and by deporting citizens into remote and undeveloped areas of the country.²³ After this, the period of mass repressions began with hundreds of thousands of people executed without trial.²⁴ Any government criticism was reported to the Prokuratura and was immediately prosecuted by the government without a hearing.²⁵ These mass prosecutions, in complete absence of any human rights, erased any thoughts of freedom of expression and changed the mentality of the people for years to come. It took decades before individuals would attempt to criticize the government again.²⁶

The late 1980s were accompanied by the period of Perestroika, when the Soviet government decided to change its approach to the socio-political development of the country. While still under Soviet influence, Russia experienced some change in freedom of expression during this period when the first limited criticism of the government was published.²⁷ In 1991, the situation in the country culminated with the collapse of the Soviet Union. This began the first stormy years of transition to the new political system with previously unknown freedoms.

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B. Early Changes to the Rule of Law in the Post-Soviet Era, up to the 1998 Ratification of the Convention

Between the collapse and the first election of Putin,²⁸ Russia experienced the first true years of democracy and the development of human rights. This transition from "Old" Russia to "New" Russia was accompanied by changes in the law, the legal structure, and most importantly, by changes in the policies that were at the foundation of its legal system. A part of this transition was to establish the legal protections to human rights and fundamental freedoms.

Following the Soviet collapse, Russia began implementing substantial changes to the law, including on freedom of expression. These significant reformations took place during the early 1990s, such as an amendment to the Constitution, and the adoptions of a new criminal code and international law provisions in its federal legal system.²⁹

In 1993, Russia declared the establishment of freedom of expression and made several amendments to its Constitution.³⁰ For example, Article 29 of the Constitution of the Russian Federation...