— What is the main difference between the 1936 Soviet Constitution

and the 1787 U.S. Constitution?

— The Soviet Constitution provided for freedom of assembly, including 

meetings, marches, and rallies, 

whereas the U.S. Constitution guaranteed freedom AFTER meetings, 

marches, and rallies.

A question frequently asked during lectures on

comparative constitutional law.

In the summer of 2014, a new article, Article 212.1 on “repeated violations of the established rules of organizing or holding public gatherings, meetings, rallies, marches, and pickets,” was added to the Russian Criminal Code. In December 2015, opposition and civic activist Ildar Dadin had the misfortune of becoming the first person prosecuted and convicted under this article, which has been strongly criticized both by members of the Russian Presidential Human Rights Council and by most prominent Russian lawyers as contradictory to the country’s fundamental law and the European Convention on Human Rights. The great Russian lawyer Henri Reznik has pointed out the anti-constitutional nature of this article and emphasized that multiple and repetitive administrative offenses do not constitute a crime, as criminal acts are associated with a higher level of danger to the public. Reznik also noted another blatant violation: when a criminal case against Ildar Danin was initiated, some court decisions on Dadin’s administrative offenses had not yet come into legal force and therefore charges under Article 212.1 of the Russian Criminal Code were filed against him illegally. 

As a law professor, I immediately added Dadin’s case to my list of cases pertaining to comparative constitutional law. Unsurprisingly, I failed to explain to my American students why a criminal case had been initiated against a man who had held a few stand-along protests with a banner in the streets, as well as what exactly he had been found guilty of and sentenced to three years in prison for. In fact, instead of trying to explain this, in response to their barrage of questions, I suggested that my students embrace the greatness of the statement “The Marxist doctrine is omnipotent because it is true.” My students refused to recognize the depth of Lenin’s idea and demanded a well-reasoned answer, which I then tried to supply. In doing so, I talked about the things that had shocked me most in the case of Ildar Dadin. 

First of all, Article 212.1 itself and Dadin’s criminal case initiated under this article will eventually become textbook examples of the restoration of Bolshevik-style criminal law in post-Soviet Russia. The connection between Lenin’s statement and the criminalization of “repeated violations of the established rules of organizing or holding public gatherings, meetings, rallies, marches, and pickets” lies in the fact that both the statement and the criminalization are “lawful successors of the best.” The Marxist doctrine is the “lawful successor of the best that mankind created in the 19th century as represented by German philosophy, English political economy, and French socialism,” [1] while Article 212.1 is the “lawful successor of the best” supplied by the first Soviet criminal codes.

Those who suggested introducing criminal liability for repeated violations of the rules of organizing and holding meetings, rallies, and other forms of public gatherings were not motivated by fear of the danger such assemblies pose to the public, because there is simply no such danger. Following the best traditions of Article 5 of the 1922 Criminal Code of the RSFSR, the authors of this legislative innovation found that such gatherings posed a threat to the current political system. Article 212.1 stipulates a maximum penalty of five years, which qualifies such offenses as medium-gravity crimes. [2]

For comparison, the same maximum penalty is provided for the murder of two or more people committed under the influence of extreme emotional disturbance (Article 107 Part 2 of the Criminal Code of the Russian Federation) and for incitement to suicide (Article 110 of the Criminal Code of the Russian Federation). Also for comparison, Article 117 Part 1 stipulates a maximum penalty of three years for torture without aggravation, thus making it a minor crime. In other words, from the point of view of 21^st-century Russian legislators, torture is less dangerous for society than repeated violations of the rules of holding meetings, marches, and rallies. This represents yet another similarity between this article and early statutes of Soviet criminal legislation, according to which crimes against the state posed a bigger public threat than crimes against persons.  

Second, as in the Pussy Riot case, law-enforcement bodies were more interested in Ildar Dadin himself as a “socially dangerous element” than they were in his actions. The situation evolved along the lines of the first Soviet Criminal Code, which instructed judges, when deciding on a sentence, to take into account the level and nature of the threat posed by both the criminal and his act and to “establish the personality of the criminal, since it revealed itself in the crime he committed as well as in his motives, and since it can be established based on his way of life and past.” [3] Judicial authorities determined the punishment according to their “socialist legal conscience”: although the prosecutor was asking for only two years of imprisonment, the judge decided such a punishment would be insufficient. As a result, Dadin was sentenced to three years in a penal colony.

Third, although Article 51 of the Russian Constitution guarantees the right not to give incriminating evidence against one’s relatives, Ildar Dadin’s father testified against his own son. Even Article 205.6, which joined the Russian Criminal Code last July, contains an annotation stipulating that a person cannot be held criminally liable for failure to report a crime prepared or committed by his or her spouse or close relative, and in 2015 this article did not even exist. Genetic memory dating back to Stalin’s 1930s, when legislative innovations encouraged whistleblowing and denunciations, must have kicked in. If not fear, then the wish to ingratiate himself with the post-Soviet state machine proved to be stronger than parental love for Ildus Dadin. 

Fourth, the punishment stipulated by Article 212.1 openly violates the principle of proportionality, which is one of the fundamental principles of criminal law. According to Article 43, punishment is used to restore social justice as well as to correct convicted criminals and to prevent crimes in the future. Actions criminalized by Article 212.1 of the Criminal Code do not infringe upon social justice. From the point of view of criminal law, being an accumulation of administrative offenses, such actions do not represent any social danger, and thus, they do not entail the task of correcting the convicted individual. The introduction of this article to the Criminal Code was motivated solely by political expediency and the urge to fight dissent. As for punishment, just like in feudal times, it serves as intimidation to teach others not to dissent.

Besides destroying the fundamentals of criminal law in post-Soviet Russia, Article 212.2 and its application with regard to Ildar Dadin serve as an official recognition of the fact that lawmakers treat the freedom of expression provided by the Constitution as a threat to the current political system. [4] 

References: 

[1] V.I. Lenin. Three Sources And Three Component Parts of Marxism. PSS. 23.

[2] Art. 15 of the 1996 Criminal Code of the Russian Federation.

[3] Art. 24 of the 1922 Criminal Code of the RSFSR.

[4] Art. 28 and 29 of the 1993 Constitution of the Russian Federation.