The outbreak of war was accompanied by an escalation of criminal repression and new violations of the constitutional rights and freedoms of Russian citizens
By Ekaterina Mishina April 13, 2023
2022 was marked primarily by Russia’s invasion of Ukraine, the year when almost all the nightmare scenarios of the recent years have come true. The outbreak of war, which, until recently, the Russian authorities stubbornly referred to as a “special military operation,” was accompanied by an escalation of criminal repression and new violations of the constitutional rights and freedoms of Russian citizens.
On March 4, 2022, less than two weeks after Russia began its aggression against Ukraine, several new articles simultaneously appeared in the Criminal Code of the Russian Federation, establishing criminal liability for:
Four months later, on July 14, 2022, criminal liability was established for several new crimes committed against Russia’s interests and security (as they are understood by the current Russian regime),[3] including:
Amendments to Article 276 of the Criminal Code of the Russian Federation (“Espionage”) were made to include in this criminal offense “transfer, collection, abduction or storage of information, for the purpose of transferring to the enemy, that can be used against the Armed Forces of the Russian Federation, other troops, military formations and bodies of the Russian Federation, committed in the context of an armed conflict, hostilities or other actions with the use of weapons and military equipment with the participation of the Russian Federation. In addition, a note offering the definition of the enemy was added to Article 276: it is “a foreign state, international or foreign organization that opposes the Russian Federation in an armed conflict, military operations or other actions involving the use of weapons and military equipment.”
High treason (Article 275 of the Criminal Code) now includes defecting to the enemy’s side — joining the forces (troops) of a foreign state, an international or foreign organization directly confronting the Russian Federation in an armed conflict, military operations or other actions involving the use of weapons and military equipment.[4]
New changes in criminal law followed in the fall of 2022.[5] The list of aggravating circumstances has been expanded to include the commission of a crime during the period of mobilization or martial law, in wartime or in conditions of armed conflict or combat operations.[6]
A number of new criminal offenses related to state contracts or agreements on state defense orders were introduced: violation of the terms of such contracts or agreements (Article 201.2 of the Criminal Code; up to 10 years in prison), refusal or evasion of a person already held administratively liable from carrying out such a contract or agreement (Article 201.3; up to 8 years in prison), violation by an official of the terms of such a contract or agreement (Article 285.5; up to 10 years in prison), refusal or evasion of an official already held administratively liable from carrying out such a contract or agreement (Article 285.6; up to 8 years in prison with a fine of up to 1 million rubles, or $12,740). Sanctions have also been tightened for a number of crimes committed during the period of mobilization or martial law, in wartime or in conditions of armed conflict or combat operations.
A clear product of the “special military operation” was the criminalization of such acts as voluntary surrender (Article 352.1; up to 10 years in prison) and looting (Article 356.1; up to 15 years in prison).
The Federal Law “On control over the activities of persons under foreign influence”[7] of July 14, 2022, expanded the concept of “foreign agent” and determined which bodies, organizations and persons cannot be recognized as foreign agents. A Russian or foreign legal entity, a public or other association of persons, a foreign structure without a legal entity, as well as an individual with or without any citizenship may be recognized as a foreign agent. The law introduced the concept of “foreign influence”—offering support by a foreign source to a person and (or) impacting a person, including through coercion, persuasion and (or) other means.[8]
A foreign agent under this law is a person who has received support and (or) is under foreign influence in other forms and carries out the following activities: political activity, targeted collection of information in the field of military and military-technical activities of the Russian Federation, dissemination of messages and materials intended for an unlimited number of persons and (or) participation in the creation of such messages and materials, etc. Unlike the previous regulation, the 2022 federal law provides a detailed and clear definition of political activity (Part 2, Article 4), which, unfortunately, is leveled by a traditionally vague formulation of the concept of “foreign agent,” which allows to add countless new types of activities to the list of activities carried out by a foreign agent.
The new law replicated the legal position of the Constitutional Court of the Russian Federation[9] on activities that are not related to political activity and added protection of traditional values to the list. More importantly, the 2022 law contains a clause according to which the types of activity specified in Article 4, Part 4, do not relate to political activity, “if the relevant activity does not contradict the national interests of the Russian Federation, the fundamentals of the public legal order of the Russian Federation, and other values protected by the Constitution of the Russian Federation.”[10] Thus, the conditional implementation of this norm is established, and the state reserves the right to recognize almost any type of activity as political activity.
The 2022 Federal Law “On control over the activities of persons under foreign influence” provides for the maintenance of a register of foreign agents (Article 5), as well as a unified register of individuals affiliated with foreign agents (Article 6). The latter include the following persons:
Apart from the obvious conclusion that this category of individuals makes up candidates for internal enemies, it is impossible not to mention a very active use of the past tense in this article, which suggests that this rule can be possibly retroactive.
On November 30, 2022, the Federation Council approved amendments to the current legislation in terms of improving the regulation of the status of a foreign agent. This was done in order to “preventively protect the sovereignty of the Russian Federation from attempts to interfere in the internal affairs of Russia from the outside.”[12] These amendments, according to Andrei Klimov, deputy chairman of the Federation Council’s Committee on International Affairs, introduced “corresponding changes to sectoral laws, including those envisaging restrictions on persons recognized as foreign agents, as well as establishing specifics for exercising control over their activities.”[13]
Translated from the language of Russian legislators, this means the restriction of a number of constitutional rights. In particular, it is prohibited to disseminate information contained in “information products produced by a foreign agent” among minors. Such printed materials must be marked “18+.” In bookstores, kiosks, and retail outlets, they can only be distributed in opaque wrappers, and they will be banned in children organizations. Foreign agents will not be able to be organizers of public events, voting members of election commissions, conduct teaching activities, as well as educational activities for minors.[14] Citizens recognized as foreign agents will not be able to work in the state and municipal service and in the internal affairs bodies. The status of a foreign agent will be the basis for dismissal from the Federal Security Service, the Investigative Committee, the Foreign Intelligence Service, the Federal Penitentiary Service, as well as customs, internal affairs, and the fire service. Parliamentarians who traditionally refrain from reading the country’s Basic Law, of course, forgot about the existence of a constitutional norm establishing that “the rights and freedoms of a person and citizen can be limited by federal law only to the extent necessary to protect the foundations of the constitutional order, morality health, rights, and legitimate interests of other persons, ensuring the defense of the country and the security of the state.[15]
On October 20, 2022, the “best people of the city,” namely the members of the State Duma Vyacheslav Volodin, Alexander Khinshtein, Irina Yarovaya, Leonid Slutsky, Gennady Zyuganov, Pyotr Tolstoy, and some others, submitted to the lower house of the Federal Assembly a draft federal law “On amendments to Federal Law ‘On information, information technologies and information protection’ and separate legislative acts of the Russian Federation.” The bill proposed to tighten restrictions and prohibitions regarding “materials that promote non-traditional sexual relations and (or) preferences.” During the consideration in the lower house, the scope of the bill has expanded significantly and now covers not only the propaganda of non-traditional sexual relations and preferences, but also pedophilia and gender reassignment. The bill was considered and adopted with enviable speed, and already on December 5, 2022, it was signed by the president and entered into force after official publication.[16]
The amendments made to the current legislation became known as the law on the LGBTI propaganda ban and confirmed many long-standing fears of further tightening of regulation in this area. Administrative responsibility for the promotion of non-traditional sexual relations among minors was established in Russia in June 2013 (Article 6.21 of the Code of Administrative Offenses of the RF). Already in 2014, the Constitutional Court of the Russian Federation ruled that this norm is in compliance with the Constitution of the Russian Federation, emphasizing that the task of this norm is “to protect the child from the influence of information that can lead to non-traditional sexual relations, adherence to which prevents the building of family relations, as they are traditionally understood in Russia and expressed in the Constitution of the Russian Federation.”[17] The Constitutional Court also noted that “for many, adherence to non-traditional sexual attitudes may look offensive in terms of moral norms accepted in Russian society or otherwise infringe on public morality and the related rights, freedoms and legitimate interests of others.”[18] It is worth recalling that in 2020, “protection of marriage as a union of a man and a woman” was enshrined at the constitutional level.[19] The wording of this norm left no doubt that one cannot count on the formation of a positive attitude of the Russian state towards same-sex unions. In this context, the adoption of a law banning LGBTI propaganda, unfortunately, looks like a logical continuation of an already established trend.
It is noteworthy that the Russian state, paternalistic in nature, believes that its citizens are small children who, without a state ban, are not able to resist the propaganda of non-traditional attitudes and preferences, pedophilia, and gender reassignment. It is even more remarkable that the law on the ban on LGBTI propaganda puts pedophilia on the same level as non-traditional relationships and gender reassignment (actions, although not approved by a part of the country’s population, but not criminalized) without specifying whether it refers to an act envisaged by Article 134 of the Criminal Code “Sexual intercourse and other acts of a sexual nature with a person under the age of 16,”[20] or pedophilic disorder as a mental pathology. This is far from the only vague wording in this law; there are also no criteria to clearly define what constitutes propaganda.
In addition to these prohibitions, the new law introduces a ban on information that can “make children want to change their sex.”[21] The owners of websites and Internet pages must now monitor for information that promotes non-traditional sexual relations and preferences, pedophilia, and gender reassignment. The ban applies to media activities, advertising, films, printed materials, etc.
Against the backdrop of the events of the last months of 2022, the approval by Presidential Decree No. 809 of November 9, 2022 “Fundamentals of state policy for the preservation and strengthening of traditional Russian spiritual and moral values”[22] remained practically unnoticed. A draft of this document was posted on the regulation.gov.ru portal for public discussion at the beginning of 2022 and received a lot of criticism and complaints, which, judging by the content of the final text, were not taken into account.
The “Fundamentals” are positioned as a “document of strategic planning in the field of ensuring the national security of the Russian Federation, defining a system of goals, objectives, and tools for implementing the strategic national priority ‘Protection of traditional Russian spiritual and moral values, culture, and historical memory’.” The list of traditional values is large: life, dignity, human rights and freedoms, patriotism, citizenship, service to the Fatherland and responsibility for its destiny, high moral ideals, a strong family, creative work, the priority of the spiritual over the material, humanism, mercy, justice, collectivism, mutual assistance and mutual respect, historical memory and continuity of generations, the unity of the peoples of Russia.[23] A state policy is being formed in order to preserve and strengthen traditional values—a set of measures carried out by the Russian president and other public authorities with the participation of civil society institutions to counter socio-cultural threats to the national security of the Russian Federation.[24] This state policy is being implemented in a variety of areas—from work with youth, science, and culture to international cooperation with the participation of federal executive authorities in charge of defense, state security, internal affairs, public security, and others.
Part two of the “Fundamentals,” under the heading “Assessment of the situation, main threats and risks to traditional values, scenarios for the development of the situation,” could have been called “Soviet Russia in the circle of enemies” a hundred years ago because of the picture it paints. There is the Russian Federation, which has made efforts to develop its spiritual potential, as a result of which the cohesion of the Russian people has increased, and citizens have realized the need to preserve and strengthen traditional values in the face of a global civilizational and value crisis leading to the loss of traditional spiritual and moral guidelines and moral principles by mankind (Article 11). But the situation in the country and in the world is such that urgent measures are required to protect traditional values. Article 13 clearly instructs what poses a threat to traditional values—the activities of extremist and terrorist organizations, certain mass media and mass communications, the actions of the United States and other unfriendly foreign states, a number of transnational corporations and foreign non-profit organizations, as well as the activities of certain organizations and individuals in the territory Russia.
Further, the word “ideology” and its derivatives are often mentioned; in particular, the term “destructive ideology” appears—a system of ideas and values that are alien to the Russian people and destructive to Russian society, which is implanted by exerting an ideological and psychological influence on Russian citizens. This destructive ideology includes “the cult of selfishness, permissiveness, immorality, the denial of the ideals of patriotism, service to the Fatherland, the natural continuation of life, the value of a strong family, marriage, large families, creative work, Russia’s positive contribution to world history and culture, the destruction of the traditional family with the help of promotion of non-traditional sexual relations” (Article 14).
It is noted that the activity of public legal entities, organizations, and individuals, contributing to the spread of destructive ideology, not only contradicts, but poses an objective threat to the national interests of the Russian Federation. The risks of the spread of destructive ideology are listed in detail, including the distortion of historical truth, the destruction of historical memory, and the undermining of trust in state institutions (Article 17). An important role in preserving and strengthening traditional values and preventing the spread of destructive ideology is given to reforms in the field of education and upbringing, culture, science, mass media and mass communications, which should be carried out accounting for historical traditions and the experience accumulated by Russian society, subject to a broad public discussion.
After listing the main directions for solving the problems of preserving and strengthening traditional values, positive and negative scenarios are indicated. A negative scenario is possible in the absence of counteraction to the spread of destructive ideology, and a positive scenario will be realized under the condition of a systematic and consistent implementation of the state policy for the preservation and strengthening of traditional values (Articles 21-22). The goals and objectives of the state policy for the preservation and strengthening of traditional values listed in the third part of the “Fundamentals” (which include the preservation of historical memory, countering attempts to falsify history, preserving the historical experience of the formation of traditional values and their influence on Russian history, including life and the work of outstanding personalities of Russia) leave no doubt: this state policy is a new state ideology incognito, established in violation of one of the foundations of the country’s constitutional order—Part 2, Article 13 of the Constitution of the Russian Federation. For committing such actions, foreign or international non-governmental organizations are included into the list of “undesirable organizations.” But, as it is now trendy to say, “this is different,” and in this case, the establishment of a state ideology bypassing a direct constitutional ban will be considered not as a violation of a constitutional norm, but, on the contrary, as an implementation of the president’s constitutional duty to determine the guidelines of domestic and foreign policy (Article 80, Part 3), the binding force of which was confirmed by the Constitutional Court of the Russian Federation.
The 2022 rule-making novelties unequivocally demonstrate the growing trend of enemy-seeking both inside and outside Russia against the backdrop of an aggressive promotion of a new Russian ideology—the defense of “traditional values” and “historical truth.” Military censorship and further escalation of criminal repression against those who do not support the official version of the Russian invasion of Ukraine clearly indicate that Russia is becoming a countermotion state. When it gets more and more difficult for the leadership of the country to offer its citizens a wonderful future, it offers them in return an inviolable and aggressively defended heroic historical past.
[1] The provision on state bodies of the Russian Federation was included in Art. 207.3 March 25, 2022, and came into force on April 5, 2022.
[2] The provision on state bodies of the Russian Federation was included in Art. 207.3 March 25, 2022, and came into force on April 5, 2022.
[3] Federal Law No. 260-FZ of July 14, 2022 (in Russian). URL: http://www.consultant.ru/document/cons_doc_LAW_421797/3d0cac60971a511280cbba229d9b6329c07731f7/#dst100032
[4] New edition of Article 275 available here (in Russian): http://www.consultant.ru/document/cons_doc_LAW_10699/2ca391674eeaa02069722fa3f13cbb41cce0a95d/
[5] Federal Law No. 365 of September 24, 2022 (in Russian). URL: http://www.consultant.ru/document/cons_doc_LAW_427325/3d0cac60971a511280cbba229d9b6329c07731f7/#dst100111
[6] Article 63 of the Criminal Code of the Russian Federation.
[7] The text of the law is available here (in Russian): http://www.consultant.ru/document/cons_doc_LAW_421788/10920037006ce70db877e13009b34a2a360b1f19/
[8] Article 2, part 1 of the Federal Law “On control over the activities of persons under foreign influence” of July 14, 2022.
[9] Resolution of the Constitutional Court of the Russian Federation No. 10-P of April 8, 2014.
[10] For details see: http://www.consultant.ru/document/cons_doc_LAW_421788/7088397aede2cef0d1587f1b614fef2b5ebf30c5/#dst100034
[11] Article 6 of the Federal Law “On control over the activities of persons under foreign influence” of July 14, 2022.
[12] For more details see: http://www.council.gov.ru/events/news/140337/
[13] Ibid.
[14] For more details see: http://duma.gov.ru/news/55841/
[15] Article 55, part 3 of the Constitution of the Russian Federation (in Russian). URL: http://www.consultant.ru/document/cons_doc_LAW_28399/1a17ce42ccf66a8cdc73524a84798f90e9f7b63a/
[16] The text of the law is available here (in Russian): http://www.consultant.ru/document/cons_doc_LAW_433218/
[17] The Resolution of the Constitutional Court of the Russian Federation No. 24-P of September 23, 2014 (in Russian). URL: https://www.garant.ru/products/ipo/prime/doc/70647124/
[18] Clause 2.2. of the Resolution of the Constitutional Court No. 24-P, 2014.
[19] Article 72 of the Constitution of the Russian Federation. URL: http://www.consultant.ru/document/cons_doc_LAW_28399/c6e42f15d1b028b04b556f3f9ca32433ae2cc969/
[20] Article 134 of the Criminal Code of the Russian Federation. URL: http://www.consultant.ru/document/cons_doc_LAW_10699/4007b95becb2a24b80106ceaf11863216fd67f63/
[21] Article 5 of this federal law.
[22] Decree of the President of the Russian Federation No. 809 of November 9, 2022. URL: http://www.kremlin.ru/acts/bank/48502
[23] Article 5 of the “Fundamentals.”
[24] Article 9 of the “Fundamentals.”
