In early May, a group of Russian deputies submitted to the State Duma a new package of repressive amendments, including a bill that would limit the right to be elected for individuals connected to extremist or terrorist organizations. This initiative has already caused a great stir among legal scholars. Elena Lukyanova, doctor of law and professor of the Free University, explains why the bill contradicts the Russian Constitution and other legislative acts.
The new package of repressive bills was introduced to the State Duma by a group of deputies led by Vassily Piskaryov (United Russia party), head of the Commission on Investigation of Foreign Interference. Photo: duma.gov.ru.
What happened?
On May 4, 2021, at 19:36, several prominent members of the United Russia party and other Duma fractions registered and submitted to the chairman of the State Duma Bill No. 1165649-7: “On Making Amendments to Article 4 of the Federal Law ‘On Electing Deputies to the State Duma of the Federal Assembly’ (as it pertains to limiting the right to be elected for individuals involved in the activity of extremist or terrorist organizations)”. The authors of this bill, which is bound to end up on the list of major “don’ts” of Russian legal history, are united either by their security service background (the Soviet KGB, the Prosecutor’s Office, the Investigative Committee) or by their membership in either the Committee on Security and Corruption Control or the Commission on Investigation of Foreign Interference of the Russian parliament.
However, in spite of the authors belonging to coalitions with such intimidating names, the explanatory note to the bill does not contain a single word on security or counteraction to foreign states’ interference in Russian domestic politics. It contains only a laconic, humble, almost flirty text denoting that this innovative bill is aimed at “polishing the electoral laws of the Russian Federation.” Why? What for? What does it intend to prevent? How exactly will it polish things? No answers are given… The absence of any goal-setting for the suggested amendments in the explanatory note indicates that a goal does exist, but the deputies do not want to make it public. And, to be honest, I would not want to publicize it either. This entire initiative looks too crooked and shameful from the legal point of view.
What’s wrong?
First. Let’s begin at the surface level. The bill aims to limit the right to be elected (as a deputy of the State Duma) of Russian citizens who are involved in the activity of organizations recognized as extremist or terrorist in court. “How is that supposed to make sense?” you may ask. And you would be right to do so.
Article 32, Part 3 of the Russian Constitution states that “citizens who were deemed incapacitated by a court or who are currently residing in correctional facilities in accordance with a court verdict cannot elect or be elected.” Nothing is said about terrorist or extremist organizations. The contradiction with the Constitution is clear; and not just with the Constitution.
The bill contradicts another law—“On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum.” This law, which has priority over all other electoral laws, contains an exhaustive list of events wherein Russian citizens are prohibited from being elected into federal or local government bodies. This list is larger than its constitutional counterpart (the legislator was acting under the permission of the Constitutional Court), but it does not mention supporters of prohibited organizations. Besides, no one has struck down the rule in accordance with which all federal laws, constitutions (statutes), laws of the Russian Federation’s subjects, and other legal acts regarding elections and referendums are not allowed to contradict this law. If a federal law, a constitution (statute), a law of a constituent entity of the Russian Federation, or another legal act regarding elections and (or) referendums contradicts this law, the latter’s norms trump all the former (Article 1, part 6). Thus, if the amendments are accepted in the same format as they were submitted to the State Duma, they would not work anyway. In order for the amendments to work, the law that governs them should have been amended as well, but the deputies did not do that. Moreover, they specifically stated in the text of the bill that they do not plan to make amendments to any other laws.
Second. Another huge mistake in the bill is assigning retroactive force to the new limitations. It is suggested that the amendments should retroactively limit the right to be elected for members of organizations recognized as terrorist or extremist—one year prior to such designation for “supporters and low-ranking members” of such organizations and three years prior for their leaders. Now we have the deprivation of the right to be elected as a retroactive penalty, which is twice unconstitutional. The notion that a law that creates or aggravates a penalty cannot have a retroactive effect is an immutable axiom of constitutional law that does not require proof and is an unshakeable principle surely familiar to every lawyer (former Soviet, post-Soviet, or international)—it is indestructible. These are the ABCs of law, which you simply cannot argue with. Furthermore, here we are dealing with the non-derogable Article 54 of the Constitution (see Article 56, Part 3). This is not allowed, period. But, apparently, not—a group of deputies decided to wrestle with this axiom, too.
Knowing our Constitutional Court well, I can only imagine how the poor thing will have to wriggle around and wince if the proposed bill ever reaches its serene chambers. The court is obviously already trying—as it has done before—to signal that the newly introduced limitation is not quite a penalty, that it is simply a “a special constitutional obstacle that disqualifies an individual from occupying an elected public office” (see its Ruling No. 20-P, dated 10.10.2013, paragraph 2.3 of the motivation part). However, it would be extremely difficult for the Court to handle the retroactive effect of this “limitation” without a special, breathtaking legal somersault.
Third. The proposed amendments are what we call “rubber.” This is a professional legal jargonism that denotes a contradiction between a law and a principle of legal certainty that governs it. In other words, it describes a law that does not clearly define the bounds of legally permissible behavior, making one liable for overstepping them. In the absence of clear definitions, behavior may be interpreted and evaluated arbitrarily. This is impermissible both by Russian and international standards. The Constitutional Court itself repeatedly stipulates this principle in its judgements. Any “rubber” law does not have the right to exist, especially the one currently under consideration by the State Duma, because its “rubberiness” is multi-layered.
First, it remains unclear who the individuals “involved” in the activities of extremist and terrorist organizations are, and whose right to elected office the bill is supposed to limit. The bill only describes them as “supporters and low-ranking members.” Well, if I am standing not far from the organization’s headquarters, minding my own business, am I its supporter? As for “low-ranking members,” does that term mean that the designated organization must have a membership system structured similarly to a political party? Second, it remains unclear what is meant by “consulted, provided organizational/methodical support or helped in any other way.” You can consult people on how to wash windows in their office, and support people by bringing them donuts and coffee when it is cold outside. Who are these “supporters” and “low-ranking organization members”? And if there is no definition, how should one proceed? That is why experts who are evaluating this legal “masterpiece” raise rightful suspicions that it may affect tens or even hundreds of thousands of Russian citizens who have gotten in the way of those in power and law enforcement agencies for some vague, subjective reasons.
Fourth and so on. It has been suggested that the proposed amendments should take effect as soon as they are officially published—not ten days afterwards, as required by law. Also, the bill and the explanatory note have been submitted to the Duma in the wrong format… The list can go on. But should it? It is already clear: this is a piece of straight-up legal refuse material, unacceptable in a normal country.
No matter how hard its authors try to hide behind vagueness, everyone understands everything: what these amendments are for, who are they aimed against, and why they are being passed in such a rush. The key goal is to prevent any real competitors from running in elections and to hold on to power by any means, labeling everyone extremists and terrorists in the process.
This is not allowed, but those in power really want it. So, it seems, if they really want it, it must be allowed. Clearly, to them, the existence of actual fighters against corruption, of political opponents and other types of liberal-minded groups, who may question the legitimacy of the regime upheld by the bill’s authors and their likes, is absolutely impermissible on Russia’s political arena.
Translation: Elizaveta Agarkova.
