Constitutional Review Series: Russia

Russia is an apt subject for constitutional study. This massive, ethnically and culturally diverse nation of 145 million people spans continents and continually influences world politics.

Authoritarian rule is a long thread running throughout Russia's rich historical tapestry. After centuries of totalitarian monarchy, Russia upended the world order by becoming the first communist state, but the new Soviet regime quickly achieved dictatorial power through horrific political violence and brutal repression. Then, the nation emerged dramatically from the tatters of the Iron Curtain by ostensibly adopting republican constitutionalism and initially flirting with Western-style democracy, but it ultimately regressed to a de facto--and even de jure in crucial ways--single-party authoritarian state. Nevertheless, this iteration of Russia’s government operates within a constitutional framework that many in the West will find familiar.

In this article, we’ll explore the history, substance, and current state of Russia’s current fundamental law, the Constitution of the Russian Federation.[i] This document is fascinating: It’s an attempt to move Russia into an era of human rights and freedoms while also preserving statist ideals deeply ingrained in the nation’s psyche. The result is a document in tension, and sometimes in direct conflict, with itself.

Filling the Void

Russia is no stranger to written legal charters. During the Soviet era, the Russian government was organized under a series of country-level and USSR-wide constitutions. (Russia, formally titled the Russian Soviet Federative Socialist Republic, was one of the Soviet Union's 15 constituent republics. Even though the USSR was nominally a federated association of these nations, it was ruled by a centralized regime in practice.). Before that, the short-lived Russian Republic adopted a constitution in 1918 after Tsar Nicholas II abdicated the throne. Still earlier, in the face of political pressure and in an attempt to save the monarchy, Nicholas II adopted a constitution in 1906 that transformed the Russian Empire from an absolutist nation under the total control of the Tsar to a parliamentary monarchy with limitations on the Tsar’s powers.

Nicholas II, the last Tsar, opening the first State Duma in 1906 after adoption of a constitution that established Russia's first parliamentary assembly. Photo credit: Russian State Duma, www.duma.gov.ru

The current Russian Constitution is less than three decades old. On December 26, 1991, the highest body of the government of the Soviet Union announced that “the USSR as a state and subject of international law ceases to exist.”[ii] This extraordinary moment in history marked the official end of the Soviet era, but the national government of Russia continued to observe its country-level Constitution of 1978, which it amended multiple times during the period of radical political changes that ultimately led to the downfall of the Soviet Union.

1950s propaganda poster showing the Constitution of the U.S.S.R. Photo credit: Reddit user Cael_Gaexara

In its earliest days, the new Russian Federation experienced economic distress and power struggles between the president (Boris Yeltsin) and the Russian parliament. This tension culminated in a constitutional crisis in 1993 after Yeltsin went forward with plans to dissolve the Russian parliament, which the 1978 Soviet Constitution did not give him authority to do. Members of the parliament responded by locking themselves into the legislative building and voting to impeach Yeltsin. This led to Yeltsin using military force to preserve his power, conflict in the streets of Moscow, and the submission by Yeltsin and the parliament of competing constitutional drafts with different allocations of power to the president and the parliament.[iii]

The Russian parliamentary building in 1993. The upper floors were burned by tank shelling and gunfire during the constitutional crisis.

Photo credit: Wikipedia user Chrislatondresse

Amid this crisis, Yeltsin convened an assembly of more than 800 government representatives, local officials, trade unions, and lawyers to draw up a new charter. This constitutional conference went to work in June 1993 and soon produced a draft. Yeltsin then submitted the draft directly to the public in a referendum. On December 12, 1993, the voters approved the new constitution by a 58 percent majority. The Constitution of the Russian Federation became the law of the land just two weeks later, on December 25, 1993.[iv] The Constitution has been amended several times since, most recently in 2020, with these amendments resulting in consolidation of power in the presidency.[v]

Rights Recognized

Russia is formally a federal republic organized according to a constitution that has many features and rights familiar to Western readers. As of this writing, the Constitution of the Russian Federation contains nine chapters and 137 articles. It is divided by subject, beginning with its provisions on individual rights and freedoms, then laying out the structure of Russia’s federal government system, next describing the powers of each branch within the federal system, and later discussing the rights of local government bodies. It then concludes with procedures for amending or replacing the Constitution.

The Preamble begins with a brief statement of purpose that immediately reveals some of the ideological tensions that resurface throughout the Constitution. It declares that the people of Russia adopted the Constitution to, among other things, “establish[] human rights and freedoms” and “preserv[e] the historically established state unity” of Russia.[vi] The Preamble also codifies the people’s reverence for “the memory of ancestors who have conveyed to us the love for the Fatherland” and their desire to “ensure the well-being and prosperity of Russia, proceeding from the responsibility for our Fatherland before the present and future generations.”[vii] This is more than just lofty rhetoric—it sets up a recurring theme of balancing individual liberty with the good of the Fatherland.

A woman at a Victory Day celebration wearing numerous medals she earned during the Great Patriotic War (World War II). Photo credit: Shutterstock

Chapter 1 launches the Constitution’s substantive provisions with certain fundamentals. It first provides that “Russia is a democratic federal law-bound State with a republican form of government.”[viii] It establishes that the “rights and freedoms” of man are “the supreme value” and that the State has the obligation to recognize, observe, and protect those freedoms.[ix] It then vests sole sovereign power in the “multinational people” of the Russian Federation and proclaims that referenda and free elections are the “supreme direct expression of the power of the people.”[x]

As to individual citizens, Chapter One provides that every citizen is equal in all the 85 federal constituents of the Russian Federation (republics, krais, oblasts, cities of federal importance, an autonomous oblast, and autonomous okrugs), and every citizen must equally enjoy the Constitution’s rights and freedoms and also must equally bear the Constitution’s duties. Finally, it provides that no citizen may be deprived of their citizenship or of the right to change it. The Constitution then declares that the policy of the State must be “creating conditions for a worthy life and a free development of man.”[xi]

Consistent with this stated policy goal, the Constitution next turns to the protection of various individual rights. Chapter 2 provides that “human and civil rights and freedoms”—including both the basic rights provided for in the Constitution and those acknowledged under “the universally recognized principles and norms of international law”—are “inalienable” and attach at birth, so long as they don’t “violate the rights and freedoms of other people.”[xii]

The basic rights and freedoms recognized in the Russian Constitution can be grouped loosely as follows:

Personal Dignity and Autonomy

• State support for the family, including maternity, paternity, and childhood, the disabled, the elderly, and pensioners?
• Limitation of the death penalty “until its complete abolition” to “particularly grave crimes against life”[xiii] and prohibition on torture, violence, unconsented medical or scientific experiments, or other severe or humiliating treatment or punishment
• The right to free travel, choice of place of stay or residence, and to freely leave and return to the Russian Federation
• Prohibition on forced labor and the rights to choose a profession, safe and hygienic working conditions, a minimum wage, unemployment protections, and rest in the form of guaranteed time off, holidays, and annual paid leave
• The right to a home and prohibition on arbitrary deprivation of one’s home
• The right to health protection and medical aid
• The right to a “favourable environment” and restitution for harm caused by violations of environmental laws[xiv]
• The right to free education and access to state-provided schooling through high school and the right to free higher education at state universities on a competitive basis
• Freedom of literary, artistic, scientific, technical and other types of creative activity, and legal protections of intellectual property

Economic Freedom

• Guarantees of the integrity of economic space, a free flow of goods, services and financial resources, competition, and free economic activity
• Equal recognition and protection of private, state, municipal, and other forms of property ownership in land and personal property and the right to inherit property
• The right to freely use one's abilities and property for lawful entrepreneurial and economic activities
• Prohibition on monopolistic conduct and unfair competition
• Prohibition on government takings without prior and complete compensation

Expressive and Ideological Freedom

• Requirement that “ideological diversity shall be recognized” and prohibition on recognition of any state or obligatory ideology[xv] or forcing a person to express or reject any views or convictions
• Protection of “[p]olitical diversity and the multi-party system”[xvi]
• Guaranteed equality under the law of public associations, but public associations are prohibited if they are aimed at violating the integrity of the Russian Federation, undermining its security, setting up armed units, or at “instigating social, racial, national and religious strife”[xvii]
• Prohibition on establishment of a state or obligatory religion, a guarantee that the Russian Federation is a secular state, separation of church and state, and equality of religious associations before the law
• The right to freely choose one’s preferred language
• Guaranteed freedom of conscience, freedom of religion, freedom to choose no religion at all, and freedom to possess and disseminate religious and other views
• Guaranteed freedom of “thought and speech,” but “[p]ropaganda or agitation” that “arouses social, racial, national or religious hatred and hostility” are prohibited, and “[p]ropaganda of social, racial, national, religious or linguistic supremacy” is forbidden[xviii]
• The right to “freely to seek, receive, transmit, produce and disseminate information by any legal means,” freedom of mass media, and a ban on censorship[xix]
• The right to free association, including creating and participating in trade unions and public associations, and prohibition on compelled membership
• The right to assemble peacefully without weapons, hold rallies, meetings and demonstrations, marches and pickets, and strikes

Equality

• Equality of all individuals before the law and court
• The duty of the State to guarantee equality based on sex, race, nationality, language, origin, property and official status, place of residence, religion, convictions, membership of public associations, and other circumstances
• Prohibition on all forms of “limitations of human rights on social, racial, national, language or religious grounds”[xx]
• Equality of rights, freedoms, and opportunities among men and women

Protections for the Criminally Accused

• Prohibition on arrest, detention, or remand to custody for more than 48 hours without a court decision
• The right to a jury trial “in cases envisaged by federal law”[xxi]
• The right to legal assistance, free legal assistance where established by law, and the right to counsel from the moment of detention or indictment
• Presumption of innocence until proven guilty and resolution of “[i]rremovable doubts about the guilt of a person” in favor of the accused[xxii]
• Prohibition on double jeopardy
• Exclusion of evidence obtained in violation of law
• The right to appeal a conviction and seek a pardon or mitigation of punishment
• Prohibition against self-incrimination or incriminating a spouse or close relatives
• The right to a jury trial for anyone accused of a crime punishable by death
• Laws must be published, and retroactive application of laws that reduce or remove liability of the convicted is forbidden
• Prohibition on deporting or extraditing Russian citizens to another country, or on extraditing any person persecuted for political convictions or to face charges for conduct not recognized as a crime in the Russian Federation

Privacy

• The right to personal and family privacy, protection of one’s honor and good name, and privacy of private correspondence unless limited by court decision
• Prohibition on government collection, retention, or dissemination of personal information without consent and the right to access government documents “directly affecting” a person’s “rights and freedoms, unless otherwise envisaged by law”[xxiii]
• Prohibition on entering a home without consent unless pursuant to federal law or court decision

Court Access

• The right to seek judicial protection of rights and freedoms and appeal the decisions of state authorities, local officials, and public associations
• The right to appeal to international tribunals (as established by treaty) for the protection of human rights and freedoms if all internal state means of legal protection have been exhausted

The Russian Constitution also contains a provision similar to the Ninth Amendment of the United States Constitution. Article 55 states that “enumeration in the Constitution of the Russian Federation of the basic rights and freedoms should not be interpreted as a denial or diminution of other universally recognized human and civil rights and freedoms.” This leaves the door open to recognition of unenumerated rights.

Rights Limited

Despite recognizing all these individual rights, the Constitution also gives the State plenty of leeway to limit them. Article 55 states: “Human and civil rights and freedoms may be limited by federal law only to the extent necessary for the protection of the basis of the constitutional order, morality, health, rights and lawful interests of other people, and for ensuring the defence of the country and the security of the State.” This provision begs the question: what limitations are in fact necessary to protect, for example, “the constitutional order” or “morality” or “security of the State”? One can almost feel the tension between individual rights and state unity boiling beneath the surface of this provision.

In addition, the Constitution permits the government, pursuant to federal law, to limit most of the enumerated rights and freedoms of citizens in “conditions of a state of emergency, in order to ensure the safety of citizens and the protection of the constitutional order.”[xxiv] Of all the Constitution’s guarantees, only a handful may not be limited in times of emergency. These are (1) the provisions guaranteeing a jury trial in death penalty cases, (2) the prohibition on torture or humiliating treatment or punishment, (3) certain provisions on protecting a person’s private life, the freedom of religion and religious expression, (4) the right to use property for economic activity, (5) the right to a home, and (6) certain criminal procedure provisions (such as the right to counsel, presumption of innocence, and the right to appeal a conviction).

Finally, despite its proclamations of equality, the Constitution specifically imposes unequal treatment on same-sex partners by vesting joint jurisdiction in the federal and constituent governments to take actions for “protection of marriage as a union of a male and a female.”[xxv]

Duties to the Fatherland

The Russian Constitution is uncommon in that it also imposes obligations on individuals within the Russian Federation. While every country imposes obligations on its citizens, those duties are rarely enshrined in constitutions, which typically focus on limiting government power and thus leave obligation-making within the bounds of those limits to subsequent lawmaking. But Russia’s choice to include obligations of its citizens in its charter is consistent with its twin focus on individual rights and state primacy. The duties of individuals in the Russian Constitution include:

• The duty to care for, raise, and provide at least a basic general education to children
• The duty of able-bodied children over 18 to care for disabled parents
• The obligation to pay taxes and dues
• The “duty to preserve nature and the environment and to treat natural resources with care”[xxvi]
• The duty and obligation to defend the Fatherland
• The requirement to carry out military service according to law (but alternative civilian service must be provided for religious or moral objectors)

Structure of Government and Separation of Powers

The Russian Constitution also establishes a familiar three-part government framework that divides up the federal government’s powers among the executive, legislative, and judicial branches. It also recognizes and purports to guarantee the independence of nonfederal and local self-government in a wide range of subject matters, but it gives the federal government concurrent jurisdiction over many areas and provides that federal law controls in the event of a conflict between local and federal law.

The president. The structure established by the Russian Constitution is a hybrid parliamentary-presidential model. The president, who serves as the head of state, is elected directed by the citizenry to a six-year term, and may not serve more than two terms. (Vladimir Putin, who has already served four terms, is exempted from this requirement because it does not apply until the first election after 2020 amendments to the Constitution went into effect, which will occur in 2024.). The president may be impeached only upon a two-thirds vote of both houses of Russia’s parliament.

Entrance to the Kremlin, the official seat of the Russian president. Photo taken by the author in September 2019.

The parliament. Russia’s parliament consists of an upper house (the Federation Council) and a lower house (the State Duma). Members of the State Duma are elected to five-year terms (“snap” elections may also be held, but only if the State Duma refuses the president’s appointment of a prime minister three times in a row or passes a vote of no confidence in the cabinet). There are currently 450 members of the Duma. Half (225) are appointed based on the percentage of votes won by each political party during elections. For these legislators, each party appoints the members to fill the seats they were awarded. The other half are directly elected by district—the voters in each district vote by candidate, and the candidate with the majority of votes wins.

State Duma Building, Moscow. Photo credit: Russian State Duma, www.duma.gov.ru

The upper house, the Federation Council, consists of two senators from each of the 85 Federation constituencies, making a total of 170 seats. Members of the Federation Council are not directly elected by the people—they are appointed by political leaders in the constituencies based on the constituencies’ local laws, which vary across the country. As such, the lengths of their terms vary across the country as well. Members of the State Duma and the Federation Council are generally immune from prosecution during their terms in office.

A 2018 meeting of the Federation Council. Council.gov.ru, CC BY 4.0 <https://creativecommons.org/licenses/by/4.0>, via Wikimedia Commons

To become law, all legislation must first be passed by the State Duma by a majority vote and then approved by the Federation Council. To approve legislation, members of the Federation Council can either vote in favor of it by a simple majority or may take no action on it for 14 days. In addition, the Council can’t modify legislation passed by the State Duma, and the Duma can override a Council veto if it can muster a two-thirds majority in support of the legislation. However, senators from the Council may submit legislation just as members of the Duma, but the Duma must vote on it first. Once legislation receives parliamentary approval, it goes to the president, who can either sign or veto it. The parliament can override a presidential veto, but only with two-thirds approval by both the State Duma and the Federation Council.

The State Duma is responsible for forming the cabinet (officially titled the "government"), which oversees the day-to-day operations of the government and the administrative state. The head of the cabinet is the chairman (also commonly known as the prime minister). The prime minister oversees all the other deputies that form the cabinet. The prime minister is nominated by the president and then voted on by the Duma, while the prime minister nominates the rest and the Duma approves them. However, the president may remove any cabinet member at will. If a new president is elected, the previous government automatically dissolves and a new cabinet must be formed. Further, the Duma may dissolve the cabinet by passing a vote of no confidence.

The Russian White House, the official seat of the cabinet. Photo credit: Shutterstock

The courts. Russia’s judiciary consists of two high courts—the Constitutional Court and the Supreme Court—and lower courts of general jurisdiction, commercial courts, and justices of the peace. The Constitution provides that all judges “shall be independent,” shall be “subordinate only to the Constitution of the Russian Federation and federal law,”[xxvii] and are irremovable from office. However, the Constitution also gives the other branches the opportunity to influence the judiciary through formal channels by stating that judges are immune from criminal liability during their time in office and their powers may not be terminated or suspended except as provided by federal law. This means the parliament can alter the powers of judges or prosecute them, as long as it is done through the legislative process. Similarly, the Constitution gives the parliament authority to enact legislation closing court sessions from the public, allowing for examination of criminal cases by default in the courts, or eliminating the right to a jury trial in cases where it's not guaranteed by the Constitution (the Constitution only guarantees a jury trial in death penalty cases).

Oral argument in the Constitutional Court in 2008. Photo credit: Shutterstock

Judicial Review and Constitutional Enforcement

???????????As mentioned, the Constitution of the Russian Federation establishes two high courts in the land. While the Supreme Court acts as the highest appellate court overseeing criminal, civil, administrative, and all other types of cases in the federal system, authoritative interpretation of the Constitution is vested in the Constitutional Court.

???????????The Constitutional Court consists of 11 judges (recently reduced from 19), and the President of the Constitutional Court chairs its proceedings. Under the Constitution, the president of the Russian Federation nominates the Constitutional Court’s president, vice president, and judges, and the Federation Council confirms them. The Constitution does not specify a term of office for judges on the Constitutional Court—that is determined by federal law, and it is currently set at a single 12-year term for each judge. In 2020, the parliament adopted an amendment to the federal law governing the Constitutional Court to include a ban on publication of dissenting opinions (a judge may still write a dissent, but it is only kept in the case file and not published).[xxviii]

The Court decides whether laws, treaties, or government actions comply with the Constitution when the president, the Federation Council, the State Duma, one-fifth of the members of either house of parliament, or the executive or legislative branches of the Federation’s constituencies request such a review. In addition, the Constitutional Court reviews claims of constitutional violations by citizens if the challenged government action has been “implemented in a concrete case” and the citizen has exhausted all other judicial remedies.[xxix]. The Constitutional Court also hears constitutional questions when requested by the other courts in the country, but, again, only if the challenged action has been “implemented in a concrete case.”[xxx] Finally, if the president requests it, the Constitutional Court reviews draft laws and constitutional amendments sent by the parliament to the president for signing or laws passed by Federation constituencies before their promulgation.

Russian Constitutional Court building, Saint Petersburg. Photo credit: Shutterstock

The Russian Constitution provides that any government action held unconstitutional by the Constitutional Court “shall lose force.”[xxxi]

A Mighty Executive

The Russian Constitution establishes an executive branch with unusually broad powers. The president is the head of state, presides over the executive branch, issues edicts and administrative regulations, decides policy issues concerning citizenship and political asylum, has the power to grant pardons, has immunity from prosecution, appoints numerous officials to leadership positions in the executive branch and nominates still more for parliamentary confirmation, serves as commander-in-chief of Russia’s military forces, directs the country’s foreign policy, and may declare martial law or a state of emergency without parliamentary approval.

Presidents hold some or all of the above authorities in many of the world’s constitutions, but the Russian Constitution is distinctive in the many ways in which it also allows the president to influence the other branches of government. As to the parliament, this begins with the power to nominate the prime minister for confirmation by the State Duma. Perhaps more importantly, the president may fire the prime minister at will or refuse to accept the prime minister’s resignation and order them to stay on. The president also presides over cabinet meetings, directs the overall function of the cabinet, and may fire them at will. The president also may submit legislation to the Duma. Further, because half the members of the State Duma are appointed to seats by political parties based on the percentage of votes won by each party (rather than being directly elected), the president has ample ability to fill many seats with legislators who are loyal and will support the president’s agenda. Additionally, the president has robust veto power that may only be overridden by two-thirds majorities in both houses. Finally, the president may use the right to seek Constitutional Court review to delay implementation of new laws—new legislation is put on hold while the Court reviews it.

As to the judiciary, the president nominates judges and chairpersons of the Constitutional Court and the Supreme Court for parliamentary approval and simply appoints judges and chairpersons of the other federal courts without a parliamentary vote. Further, the Constitution gives the president authority to propose removing any judge of the Constitutional Court, the Supreme Court, or lower appeals court judges to the Federation Council. The president may do so “in the event of them committing a violation tarnishing the honour and dignity of a judge, as well as in other situations established by federal constitutional law demonstrating impossibility for a judge to continue discharging of its powers.”[xxxii] These ambiguous criteria (like “tarnishing the honour and dignity of a judge”) gives the president lots of wiggle room to shape and pressure the judiciary. The president also nominates the Prosecutor General of the Russian Federation (the nation’s lead prosecutor), deputies of the Prosecutor General, and regional prosecutors for confirmation by the Federation Council and may remove them from office at will.

The Russian Constitution carried by a procession participant during the 2018 presidential inauguration. Photo credit: The Kremlin, www.kremlin.ru

Additionally, Article 85 gives the president the authority to unilaterally suspend actions by executive bodies of Russia’s constituent territories pending judicial review if the president deems such actions in violation of the Constitution, federal laws, treaties, or human rights and civil liberties.

The Amendment Process

The president, the Federation Council, the State Duma, the cabinet, or legislative bodies of the 85 Federation constituents may submit constitutional amendments for consideration. So can groups of federal legislators, if one-fifth of the members of the State Duma or the Federation Council jointly submit the proposed amendment.

Most parts of the Constitution may be amended according to a two-step process. First, a proposed amendment must pass in the Federation Council with a three-fourths majority and the State Duma with a two-thirds majority. Then the amendment is submitted to a vote by the legislatures of the Federation's constituents. The proposed amendment becomes law if two-thirds of those legislatures approve it.

Three parts of the Constitution require a different amendment process. These are (1) the first chapter, which sets out the basic constitutional framework and the fundamental values of the Constitution; (2) the second chapter, which establishes the fundamental rights and freedoms of individuals; and (3) the ninth chapter, which establishes the process for amending the Constitution. If a change to any of these parts is submitted, a multi-part process must be followed:

• First, both the Federation Council and the State Duma must approve it with three-fifths majorities.
• Second, a constitutional assembly is convened. The assembly must draft a “new” constitution incorporating the proposed changes. If the constitutional assembly approves the new constitution by a two-thirds majority, it then moves to the next step.
• Finally, a public referendum is held. The proposed changes pass if more than one-half of voters approve of them and at least half the electorate participates in the referendum.

The State of Russian Constitutionalism

Russia’s Constitution is filled with aspirational language about individual rights and freedoms and lines of division between branches of government. But rights on paper don’t always equal rights in practice, and formal separation of powers doesn’t always equal actual separation of powers in practice. In Russia, citizens have not realized many of the rights in their Constitution, and the president dominates the functioning of all the branches of government.

Expressive freedom is under siege in Russia. In the last decade alone, headlines about the murder, poisoning, or selective prosecution of journalists, politicians, and others opposed to the current regime and violent State crackdowns on protestors have reverberated around the world.[xxxiii] Moreover, the attacks on expression are not limited to individual dissidents—the laws are hostile to free speech across the board.

Examples abound, but a couple illustrate the repression. In 2019, Russia passed a law introducing administrative liability (essentially the same as misdemeanor liability in the U.S.) for “the dissemination of fake news and information in the media and the Internet that expresses disrespect for state power in an indecent form.”[xxxiv] In addition to imposing fines in the tens of thousands of dollars and potential incarceration for repeat offenders, the law authorizes the government to block publication (on the internet and elsewhere) of information it deems “unreliable” or that it finds to evince “clear disrespect for society, government, state symbols, the constitution and government institutions.”[xxxv] And in 2022 after Russia invaded Ukraine, the government hastily passed a law that imposes punishment of up to 15 years in prison for “promot[ing] what authorities deem as ‘fake news’ about the Russian military.”[xxxvi] This law drove international media outlets like CNN and Bloomberg out of the country, while at the same time, Russian regulators moved to block social media outlets like Facebook, Twitter, and Instagram in the country to close off information about the war.[xxxvii] For these and many other reasons too lengthy to discuss here, freedom watchdogs gave Russia the lowest ratings in the areas of expressive, media, and assembly freedoms, even before the more severe post-2020 crackdowns.[xxxviii]

Protestors and riot police during opposition demonstration in advance of Putin inauguration in 2018. Photo credit: Shutterstock

Freedom of conscience also falls short in Russia. Freedom House, an independent international rights-monitoring organization, reports that “vague laws on extremism grant the authorities great discretion to crack down on any speech, organization, or activity that lacks official support,” including religious organization or speech, and a “1997 law on religion gives the state extensive control and makes it difficult for new or independent groups to operate.”[xxxix] Further, 2016 legislation “grants authorities the power to suppress religious groups that are deemed extremist,” and authorities extensively persecuted peaceful members of the Jehovah’s Witnesses after deeming them “extremist” in 2017 and have banned Muslims from joining a number of Islamist groups.[xl] The government also discriminates against LGBT persons. While the law does not ban same-sex relationships, the Constitution expressly permits non-recognition of same-sex marriage. Further, in 2013, Russia passed a law that forbids public dissemination of so-called gay “propaganda,” thereby effectively banning public discussion of information about what the government calls “non-traditional sexual relationships.”[xli]

The rule of law is tenuous in Russia as well. Experts agree that the judiciary lacks independence from the executive branch, and the accused often don’t enjoy due process safeguards or protection from arbitrary arrest or persecution by law enforcement, especially when high-ranking government officials meddle in political cases.[xlii] Scholars of the Constitutional Court report that the Court—under pressure from the president and parliament—is limited to protecting constitutional guaranties in politically neutral cases but routinely sides with the government in cases involving issues that the Kremlin cares about.[xliii] Maria Popova, a scholar of constitutionalism in Russia, reports that the outcomes of high-profile cases that the Kremlin cares about are “entirely predictable” because “the Kremlin always wins,” the law is less clear in somewhat-political cases where the courts are trying to guess the Kremlin’s preferences, and “the Russian judiciary functions reasonably well” in “politically inconsequential” or uncontroversial cases.[xliv] Further, the federal ban on publication of dissenting opinions by Constitutional Court judges only further works to restrict public debate over important constitutional issues.

So much more could be covered. Similar issues with clampdowns on expressive assemblies, unfair elections, interference with economic and business freedom and private property, disregard of the rights of minority and indigenous peoples, and theft of public wealth by government officials could each be (and have been) the subject of their own dedicated scholarship. But space and reader attention are limited, and the theme should be clear by now: Across subject matters, where individual and other constitutional rights clash with the president’s preferences, the president wins.

Author’s Reflections: An Authoritarian Constitutional Blueprint

It’s tempting to attribute the weak state of constitutionalism in Russia entirely to a president who is just too powerful to face consequences for his actions. But this is an over-simplification. Without question, Putin and his subjugated parliament and cabinet are responsible for plenty of illegal and facially unconstitutional actions, but it's also true that many of Russia's repressive laws and practices don’t clearly violate the Russian Constitution.

To the contrary, Putin has accomplished many of his decades-long power-consolidating actions within the constitutional framework. That has been possible because the Constitution of the Russian Federation is an authoritarian constitution in many ways. It details many rights and freedoms, but its dual reverence for statism (or what it calls “state Unity”[xlv]) and its indefinite, subjective exceptions appear purposefully engineered to give the State cover for repressing those rights. Putin, the parliament, and the cabinet have all exploited constitutional ambiguities like exceptions for protection of state security, public health, morality, and “the constitutional order” to justify the quashing of dissent and the concentration of presidential power. And these broad, indefinite terms give courts, including a weak Constitutional Court, plausible cover to uphold these actions with government-friendly constructions of the Constitution.

? Thus, in my view, a big but under-studied part of the problem is the structural and substantive weaknesses of the Russian Constitution itself. This is not the only problem, because the State fails to revere and respect constitutional rights at all levels. Further, it’s impossible to deny that Putin’s consolidation of power has been backed by massive political support from the Russian people. Putin has been re-elected by large margins time and time again, and his self-serving amendments to the Constitution in 2020 passed with overwhelming support. Questions remain about the fairness of the vote in these elections and referenda, but few have suggested that the government perpetrated fraud on a scale massive enough to overturn the results completely. Simply put, there’s little question that Putin—and his authoritarian turn—are popular in Russia.[xlvi]

A perfect authoritarian storm thus exists in Russia. The first ingredient is an unclear, structurally weak, and mixed-purpose Constitution. Another ingredient is a weak judiciary. Another is a popular president with a stranglehold on the parliament, which gives him nearly free rein to legislate as he pleases. And this is made possible by still another ingredient: consistent popular support, which is perhaps attributable to generations of acclimatization to authoritarian rulers. And yet another ingredient is the State’s constriction of the flow of information that could change popular opinions or enable politically powerful dissenting voices. These undercurrents all combine to drive a formidable tide against democratic constitutionalism in Russia.

In spite of all this, I still don’t believe the situation is hopeless. If history has taught us anything, it has made clear that public perceptions and values can change rapidly, even in the face of steady propaganda and repression. We don’t need to look any further than Russia itself, a country that had for centuries been ruled by all-powerful tsars yet saw a rapid transformation into the world’s first Marxist state. Then, that state quickly collapsed into a federal system that more closely resembled Western democracies. Those who say with certainty that a similar transformation in favor of constitutionalism, democracy, and individual rights can’t happen in Russia are simply too confident in their fortunetelling abilities. But I’ll admit that today, such a change appears a long way off.

In sum, Russia’s Constitution isn’t particularly conducive to protecting the rights and values it claims to venerate. And even a much stronger constitution couldn’t do the job unless it were backed by popular pressure to follow it. Such demands can only come from the population at large. Perhaps one day, Russia’s resilient people will overcome the powerful forces that have long enriched Russia’s ruling class as the expense of everyone else.

The Motherland Calls, Volgograd. This statue commemorates the momentous sacrifice and triumph of the Russian people at the Battle of Stalingrad, which helped save Russia from the Nazi invasion in the Great Patriotic War. Photo credit: Alexxx Malev, CC BY-SA 2.0, https://creativecommons.org/licenses/by-sa/2.0/legalcode

Footnotes

[i] An English translation of the up-to-date Constitution of the Russian Federation is available from the European Commission for Democracy Through Law (Venice Commission) at https://rm.coe.int/constitution-of-the-russian-federation-en/1680a1a237. Quotations of the Constitution in this article are taken from this translation.

[ii] Declaration of the Council of the Republics of the Supreme Soviet of the USSR in Connection with the Creation of the Commonwealth of Independent States (Dec. 26, 1991), https://vedomosti.sssr.su/1991/52/#1561.

[iii] Mikhail Sokolov & Anastasia Kirilenko, 20 Years Ago, Russia Had Its Biggest Political Crisis Since the Bolshevik Revolution, The Atlantic (Oct. 4, 2013), https://www.theatlantic.com/international/archive/2013/10/20-years-ago-russia-had-its-biggest-political-crisis-since-the-bolshevik-revolution/280237/.

[iv] See generally Commission on Security and Cooperation in Europe, Russia’s Parliamentary Election and Constitutional Referendum (1994), https://www.csce.gov/sites/helsinkicommission.house.gov/files/Russia%2527s%2520Parliamentary%2520Election%2520and%2520Constitutional%2520Referendum.pdf.

[v] See William E. Pomeranz, The Putin Constitution, Wilson Center (Mar. 30, 2020), https://www.wilsoncenter.org/blog-post/putin-constitution.

[vi] Konstitutsiia Rossi?sko? Federatsii [Konst. RF] [Constitution] Preamble (Russ.).

[vii] Id.

[viii] Id. art. 1.

[ix] Id. art. 2.

[x] Id. art. 3.

[xi] Id. art. 7.

[xii] Id. art. 17.

[xiii] Id. art. 20.

[xiv] Id. art. 42.

[xv] Id. art. 13.

[xvi] Id.

[xvii] Id.

[xviii] Id. art. 29.

[xix] Id.

[xx] Id. art. 19.

[xxi] Id. art. 47.

[xxii] Id. art. 49.

[xxiii] Id. art. 24.

[xxiv] Id. art. 56.

[xxv] Id. art. 72.

[xxvi] Id. art. 58.

[xxvii] Id. art. 120.

[xxviii] Bill No. 1024643-7, On Amendments to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” (law signed and published Nov. 9, 2020), https://sozd.duma.gov.ru/bill/1024643-7 (see Article 76).

[xxix] Id. art. 125.

[xxx] Id.

[xxxi] Id.

[xxxii] Id. art. 83.

[xxxiii] See, e.g., Freedom House, Freedom in the World 2022: Russia, freedomhouse.org, https://freedomhouse.org/country/russia/freedom-world/2022 (last visited Apr. 2, 2022) (discussing many such instances).

[xxxiv] Putin signed laws on fake news and disrespect for authorities, Vedomosti (Mar. 18, 2019), https://www.vedomosti.ru/politics/news/2019/03/18/796652-putin-feiknyus-neuvazhenii.

[xxxv] Shannon Van Sant, Russia Criminalizes The Spread Of Online News Which 'Disrespects' The Government, NPR (Mar. 18, 2019), https://www.npr.org/2019/03/18/704600310/russia-criminalizes-the-spread-of-online-news-which-disrespects-the-government.

[xxxvi] David Knowles, Russia passes law targeting free speech and pulls plug on Twitter and Facebook, Yahoo! News (Mar. 4, 2022), https://news.yahoo.com/russia-blocks-twitter-and-facebook-as-war-in-ukraine-rages-on-204206358.html.

[xxxvii] Id.

[xxxviii] See, e.g., Cato Inst. & Fraser Inst., The Human Freedom Index 2020 at 300 (2020), https://www.cato.org/sites/cato.org/files/2021-03/human-freedom-index-2020.pdf (giving the Russian Federation a 4.3 out of 10 score in association, assembly, and civil society freedoms in 2020).

[xxxix] Freedom House, Freedom in the World 2022: Russia, freedomhouse.org, https://freedomhouse.org/country/russia/freedom-world/2022 (last visited Apr. 2, 2022).

[xl] Id.

[xli] Russian ‘Anti-Gay’ Bill Passes With Overwhelming Majority, Sputnik International (June 11, 2013), https://sputniknews.com/20130611/Russian-Anti-Gay-Bill-Passes-With-Overwhelming-Majority-181618460.html.?

[xlii] See, e.g., Cato Inst. & Fraser Inst., The Human Freedom Index 2020 at 300 (2020), https://www.cato.org/sites/cato.org/files/2021-03/human-freedom-index-2020.pdf (giving the Russian Federation a 4.0 out of 10 score in the rule of law in 2020); Freedom House, Freedom in the World 2022: Russia, freedomhouse.org, https://freedomhouse.org/country/russia/freedom-world/2022 (last visited Apr. 2, 2022) (giving Russia a ? score on the rule of law and finding that “[s]afeguards against arbitrary arrest and other due process guarantees are regularly violated, particularly for individuals who oppose or are perceived as threatening to the interests of the political leadership and its allies”).

[xliii] See generally, e.g., Alexei Trochev & Peter H. Solomon Jr., Authoritarian constitutionalism in Putin’s Russia: A pragmatic constitutional court in a dual state, 51 Communist and Post-Communist Studies 201 (2018); Maria Popova, Putin-Style “Rule of Law” & the Prospects for Change, Daedalus (Spring 2017), https://www.amacad.org/publication/putin-style-rule-law-prospects-change#toNote11.

[xliv] Popova, supra.

[xlv] Konstitutsiia Rossi?sko? Federatsii [Konst. RF] [Constitution] Preamble (Russ.).

[xlvi] See, e.g., Noah Buckley, Putin’s approval has stayed strong over the years – war in Ukraine could change that, The Conversation (Mar. 2, 2022), https://theconversation.com/putins-approval-has-stayed-strong-over-the-years-war-in-ukraine-could-change-that-178179 (“Since his ascension to power in 2000, Russia’s president, Vladimir Putin, has maintained levels of approval among the Russian public that would be the envy of most world leaders.”); Timothy Frye et al., Is Putin’s popularity real?, 33 Post-Soviet Affairs 1,1 (2017) (concluding based on a series of experiments that “Putin’s approval ratings largely reflect the attitudes of Russian citizens”); Jana Bakunina, Why do Russians still support Vladimir Putin?, New Statesman (Mar. 4, 2015), https://www.newstatesman.com/politics/2015/03/why-do-russians-support-still-support-vladimir-putin (discussing Putin’s enduring popularity in Russia and encouraging readers to “put aside the possibility of rigged polls because there is little to suggest Putin’s popularity is fake”).