Institute of Modern Russia

The very first article of the Russian Constitution specifies that Russia is a state governed by the rule of law. According to Paul Tiedemann, a judge of the Administrative Court of Frankfurt and Professor Emeritus of Justus von Liebig Hessen University, the term Rechtsstaat (“law-governed state”) originated in Germany in the nineteenth century with the aim of “safeguard[ing] and protect[ing] individual freedoms by way of positive law. Positive law was to mean written or statutory laws, published in widely circulated law publications, and therefore available to anyone who can read.” ¹

A key quality of such laws is the clarity of their wording, which makes their content comprehensible to any person. This is precisely the way that proper compliance by the population with the requirements of the law is ensured: “Those for whom legal rules are intended are able to abide by the laws only if the content of legal provisions is sufficiently clear and understandable. Only when laws clearly define the limits of freedom can citizens estimate and calculate the limits of freedom within which they can develop and implement their plans. Therefore, sufficient clarity of legislation is essential to the rule of law.” ²

Formal interpretation of the term “law-governed state” can sometimes be accompanied by dangerous pitfalls. What if a country accepts illegitimate laws that violate generally accepted legal principles and legitimize arbitrariness at the legislative level? Marx observed that the law can be used to legitimize the worst lawlessness. The most glaring example of such a misuse is the infamous Nuremberg Laws, including the “Reich Citizenship Law” and the “Law for the Protection of German Blood and German Honor.” These laws deprived Jews of German citizenship, dictated that they wear clothes in “Jewish” colors, and forbade marriage and sexual relations between Jews and members of the “Aryan” race.

Another famous German constitutionalist, Rainer Groth, believes that “the experience of the National Socialist regime, which used the legislative and administrative bodies at its sole discretion to enrobe even the most outrageous and egregious policies in the clothes of formal legality, dealt a fatal blow to the positivist concept of Rechtsstaat.” ³ The first article of the Basic Law for the Federal Republic of Germany of 1949 is the best evidence that Germans drew conclusions from that terrible lesson. This law, drawn up and passed in the wake of World War II, establishes:

• That “human dignity shall be inviolable”
• That “to respect and protect [this law] shall be the duty of all state authority”
• That “inviolable and inalienable human rights [are] the basis of every community, of peace and of justice in the world”
• That a wide range of fundamental rights “bind the legislature, the executive, and the judiciary as directly applicable law”

Russian law suffered from one of the aforementioned pitfalls in November 2012, when Article 275 of the Criminal Code was amended. In order to understand the significance of this disaster, it is sufficient to compare the text of the previous version of this article with the current version. Legal sanctions for the crime with which this article deals, high treason, have remained unchanged: imprisonment for a term of twelve to twenty years with a fine of up to 500,000 rubles or three years’ salary or other income, and imprisonment for a term of up to two years. But the disposition of the article has changed dramatically.

Prior to November 2012, Article 275 defined high treason as “espionage, transfer of a state secret or any provision of assistance to a foreign government, foreign organization or their representatives in their conduct of hostile actions to the detriment of the external security of the Russian Federation, committed by a citizen of the Russian Federation.”

As amended, however, Article 275 defines high treason as an act “that is committed by a citizen of the Russian Federation, acts of espionage, disclosure to a foreign state, an international or foreign organization, or their representatives of information constituting a state secret that has been entrusted or has become known to that person through service, work, study or in other cases determined by the legislation of the Russian Federation, or any financial, material and technical, consultative or other assistance to a foreign state, an international or foreign organization, or their representatives in activities against the security of the Russian Federation.”

Here are the most dangerous pitfalls of this provision:

1. The phrase “hostile actions to the detriment of the external security of the Russian Federation” is replaced by the ambiguous phrase “activities against the security of the Russian Federation.” The omission of the word “hostile” essentially makes this concept extremely ambiguous.
2. It is obvious that by the legislation’s design, the new definition covers not only external but also internal security. A clear and detailed definition of both concepts is absent from the Criminal Code.
3. The ambiguity of the wording “financial, material and technical, consultative or other assistance to a foreign state, an international or foreign organization, or their representatives in activities against the security of the Russian Federation” makes it applicable to almost any activity.
4. International organizations are identified as potential recipients of information constituting state secrets, as well as of the abovementioned types of assistance. Any list of such recipients must necessarily be open-ended and can include any international organization by default.
5. The vagueness of this statutory provision makes it impossible for citizens to properly abide by it, a violation of one of the fundamental conditions of the rule of law.
6. This ambiguity creates unlimited possibilities for arbitrary interpretation and selective application. Pursuant to the provisions of Article 275, a criminal case for high treason can be initiated against any citizen of the Russian Federation who provides someone almost any information or commits almost any action.

In January 2015, Svetlana Davydova encountered one of those pitfalls. She was subjected to the most radical measure prescribed by the law: being remanded in custody. According to Article 108 of the Code of Criminal Procedure, a person is taken into custody “when it is impossible to apply a different, less stringent preventive measure. When a person is remanded in custody, a judge’s ruling must detail the specific factual circumstances based on which the judge made such a decision.”

What were the factual circumstances based on which the judge decided that the use of less stringent preventive measures against the mother of seven children was not possible?

According to the text of the ruling of February 3, 2015, the decision by Investigator Mikhail Svinolup to take Davydova into custody was based on Article 110 of the Code of Criminal Procedure. According to this article, “a preventive measure is changed to a less stringent one once the basis for imposing such a measure has changed.”

It is abundantly clear that what really changed was not the basis for the preventive measure, but the team of lawyers: on February 2, 2015, Davydova dismissed her attorney, Andrew Stebenev, and since that day she has been represented by attorneys Sergei Badamshin and Igor Pavlov. The results of this shift became evident the day after the dismissal, when at the request of Badamshin and Pavlov, Davydova was released from custody on bail. The Moscow Bar Association has since initiated disciplinary proceedings for inadequate provision of legal assistance against Stebenev. According to Henry Reznik, one of the greatest Russian attorneys, who until recently chaired the Moscow Bar Association, Stebenev will be questioned by the Qualifications Commission and the Association Council and will have to provide answers to the following questions:

• Why he did not request the court to postpone the arrest in order to obtain documents confirming that the defendant had seven young children
• Why he did not appeal the arrest and missed the deadline for filing a complaint
• Why he commented on the criminal case to the media from the standpoint of the investigation, arguing that the detention and prosecution of Davydova were justified
• Why he was planning to meet with his client only ten days after the arrest “to determine her position,” while it had to be determined “before arraignment and the first interrogation”

Davydova’s case is of paramount importance for a number of reasons. On the positive side, it has demonstrated that in this country there are hundreds of thousands of people who respect themselves, each other, and the generally accepted principles of democracy. The most active of them stood up for Davydova and launched a wide-reaching campaign of support, while others simply put their signatures to a petition to change the measure of restraint against the mother of seven. Davydova’s case also demonstrated that the Russian Bar and the Moscow Bar Association are still important institutions of civil society.

On the negative side, the case has confirmed that the defensive nature of the Soviet criminal law, enshrined in the very first Soviet Criminal Codes of 1922 and 1926, is back. Under this code, the state actively defends itself against its citizens and sometimes exceeds the limits of self-defense to commit outrages against these citizens.

But what worries me even more is something else. Why is the assumption of the infallibility of the state, most recently evident during Soviet times, so firmly entrenched in some people’s minds? What is the breeding ground for these convictions? Who are those who, with the enthusiasm of Tabaqui the Jackal, jump on individuals who are declared undesirable or dangerous to the regime? It was these people who tried to tear to pieces Andrey Makarevich and Yuri Shevchuk and drew up a list of the "fifth Jewish column"—in fact, a list of the best and most worthy people in Russia today. Now, in a rush to protect their native state, they have attacked this mother of seven.

The Soviet instincts of these individuals are still sharp, but their historical memory is short. They either do not remember or do not want to remember what an authoritarian regime often does to its most loyal vassals. Here’s just one of the glorious pages of Russian history. In June 1937, a special military judicial panel of the USSR Supreme Court returned a guilty verdict in a case concerning an “anti-Soviet Trotskyite military organization” and sentenced to death nine people from the elite of the Soviet Army, including Mikhail Tukhachevsky, Ieronim Uborevich, and Iona Yakir. Four of these individuals were executed in 1938, one was tortured to death, and the last one, according to some reports, shot himself in anticipation of his arrest. Some scary statistics! But they should be remembered, because history tends to repeat itself.

Sources:

1. The Legal State and the Rule of Law Doctrines in Modern World / Collection of articles. Edited by Valery D. Zorkin and Petr D. Barenboim. Moscow, 2013.
2. Ibid.
3. Ibid.