Russia: Amicus brief to the Russian Constitutional Court: The law on discrediting the armed forces violates international human rights law | Joint amicus brief

Full Amicus Curiae brief to the Constitutional Court of the Russian Federation on 21 cases registered in the Constitutional Court regarding Article 20.3.3. of the Code of Administrative Offences (CAO) [.pdf]

Заключение по 21 делу, зарегистрированных в Конституционном Суде Российскойпо статье 20.3.3. Кодекса об Административных Правонарушениях (КоАП) [.pdf]

On 5 June 2023, Lawyers’ Rights Watch Canada (LRWC) issued  an amicus brief to the Constitutional Court of the Russian Federation on 21 cases registered in the Constitutional Court regarding Article 20.3.3. of the Code of Administrative Offences (CAO). The amicus curiae brief was joined by the International Bar Association’s Human Rights Institute (IBAHRI) and Dr. Angelika Nußberger, a professor of law and the Director of the Academy for European Human Rights Protection, University of Cologne, Germany. Prof. Nußberger was a judge of the European Court of Human Rights from 2011 to 2019 and from 2017 to 2019 she was Vice-President of the Court.

The cases in the Constitutional Court are challenging Article 20.3.3 of Russia’s Code of Administrative Offences, which was passed on 4 March 2022, eight days after Russia launched its “special military operation” in Ukraine. Along with other laws Article 20.3.3 suppresses all forms of dissent by meting out heavy fines for “discrediting” the use of the Russian armed forces. Prosecutions for “discrediting” under Article 20.3.3 are less well-known internationally than the shutdowns of independent news media, or the “fake news” and “treason” charges resulting in lengthy prison sentences for dissenters However, Article 20.3.3. has become Russia’s chief instrument for suppressing anti-war expressions. This law has been used to charge more than 6,800 persons for peaceful anti-war expressions and protests.

Among those charged under the discrediting law is Oleg Orlov, co-chair of the well-known Russian human rights organization, Memorial. Targeted and shut down by Russian authorities in late 2021, Memorial was among three organizations awarded the 2022 Nobel Peace Prize. In 2022, Mr. Orlov was twice convicted of discrediting for displaying anti-war posters in the center of Moscow. The administrative offence under Article 20.3.3. results in heavy fines, but it is not a criminal offence per se. However, a companion criminal code offence provides for possible criminal prosecution and prison sentences for “similar acts” of discrediting within a year.

In April 2023, Mr. Orlov was charged a third time for a November 2022 social media post of an article criticizing the “bloody war unleashed by the Putin regime.” This time Orlov was indicted under Russia’s Criminal Code for repeated discrediting and may be subject to prison for up to three years. A March 2023 Criminal Code amendment means that, in future, people criminally charged for “similar acts” of discrediting could be imprisoned for up to five years.

The joint amicus brief argues that the discrediting law illegitimately limits fundamental rights to freedoms of expression, assembly and other basic rights guaranteed by international human rights treaties and Russia’s Constitution.

Lawyers’ Rights Watch Canada (LRWC), founded in 2000, is a Canadian organization of lawyers and other human rights defenders who promote the implementation and enforcement of international law and standards designed to protect the independence and security of lawyers and other human rights defenders around the world. LRWC produces legal analyses of national and international laws and standards relevant to human rights violations against human rights lawyers and defenders. LRWC has held special consultative status at the United Nations (UN) ECOSOC since 2005. The joint amicus brief was prepared by Catherine Morris, BA, JD, LLM, on behalf of LRWC. Ms. Morris is the past executive director and UN Representative of LRWC. and a former adjunct professor, Faculty of Law, University of Victoria, Canada.

Among the cases filed in the Russian Constitutional Court is the case of Mr. Oleg Orlov, Another brief has been filed by Article 19. Several American legal scholars are also preparing legal briefs on Russian constitutional law pertaining to the cases. See the full brief in English and Русский язык (Russian).