Author’s note: June-July 2012 saw a change in relations between the Russian government and society previously unknown in the post-Soviet period. This is first and foremost a radical change in the law governing civil and political rights i.e. relating to the very essence of the organisation of the state and the principles laid down in the Constitution. In no more than a few weeks the laws determining the relationship between the state and society were changed so quickly, systematically and massively that it could effectively be considered…. a legislative constitutional coup

The denial of democracy

In a very short space of time indeed three fundamental freedoms – of assembly, association and speech – were subjected to ferocious legal restriction. Parliamentary procedures and the many protests were completely ignored; many experts consider, not without justification, that the new laws governing demonstrations, NGOs, defamation and the legal regulation of the internet are proof that these three rights have not only been restricted, but effectively abolished. This ‘bouquet’ could also be said to include the medieval (in spirit) laws passed in several regions banning the so-called ‘promotion of homosexuality’, which openly introduce legal discrimination based on sexual identity. There is a considerable danger that a similar homophobic law, which has already been introduced in the State Duma, will be passed at federal level.

New Russian laws against the 'promotion of homosexuality' are criticised for being open to different interpretations. For example, Madonna is currently being sued by Russian activists for her support of gay rights during her recent concert in St. Petersburg. (Photo: U2005.com)

These three fundamental rights – speech, assembly and association – are defined in international law as ‘vital freedoms’, serving as the basis for a democratic society. The principle informing them is fairly clear. If people are not able to express their opinions freely, to associate in groups in defence of their interests, to make their views known publicly at a demonstration without fear of being beaten up by the police, fined enormous sums or finding themselves behind bars for a long period of time, then the state cannot be considered democratic. Even the existence of such democratic institutions as regular elections, the separation of powers and an independent judiciary etc does not alter that fact.

'Those who initiated these changes, introduced the draft laws in parliament, voted for them and publicly supported them have in effect signed up to the diagnosis formulated by the protesters in scores of towns and cities: the authoritarian nature of the current political system is acknowledged to be a denial of democracy as well.'

The last ten years have seen these democratic institutions eroded in Russia. The supremacy of the law does not exist, laws are applied arbitrarily and most citizens are convinced there is no justice to be had in the courts. However, the existence in Russian law until recently of laws guaranteeing, albeit only on paper, these three fundamental rights and constitutional freedoms, allowed the political regime to be classified as ‘hybrid’, to be called an ‘imitation of democracy.’

In June-July 2012 an important line was crossed. The new laws passed by the Russian government were an abnegation of what it had emphasized for many years. Russia is no longer a democratic state – not only in essence, but formally. Those who initiated these changes, introduced the draft laws in parliament, voted for them and publicly supported them have in effect signed up to the diagnosis formulated by the protesters in scores of towns and cities: the authoritarian nature of the current political system is acknowledged to be a denial of democracy as well.

A ‘bouquet’ of unlawful laws

These new laws are anti-constitutional in spirit and fail to comply with Russia’s international legal obligations (though the government cunningly assert that these laws are based on the laws of democratic countries). There is another feature they have in common: their vague drafting is typical of the ‘ideological’ legislation that we have seen throughout Vladimir Putin’s rule. The ‘political activities’ in the NGO law on ‘foreign agents’, or the ‘promotion of homosexuality’, for example. It is not by chance that the laws are drawn up in this way: the catch-all, woolly wording makes it possible to apply the law selectively, including for political or ideological reasons. It is the denial of the supremacy of the law and the equality of all before the law, and the selective application of the law that are at the heart of the authoritarian system.

'There is another feature [new laws] have in common: their vague drafting is typical of the ‘ideological’ legislation that we have seen throughout Vladimir Putin’s rule... [T]he catch-all, woolly wording makes it possible to apply the law selectively, including for political or ideological reasons.'

Almost all the new laws entail the introduction of fines, the severity of which is unequalled in Russian law. This effectively serves as a brake on the exercise of rights and freedoms. Criminal liability has also been extended to cover defamation, and the 'gross violation' of the law on 'foreign agents' by NGO managers is likely to attract a maximum sentence of two years in prison. What is meant by gross violation is not, of course, clarified.

There is more than one example of legal discrimination as a principle in this repressive set of laws. The NGO law, for example, is aimed at certain kinds of NGO activity, landing them with an intolerable burden of financial reporting and inspections, and demanding of organisations involved in the defence of human rights and in education that they describe themselves as 'foreign agents', which in Russian means 'spies.'

In the case of the homophobic laws, the government's motives are clear: to mobilise the support of the most conservative section of Russian society. Putin's obsession with the supposedly important part played by human rights NGOs in organising the protests (using foreign money), their mythical 'unacceptable meddling in politics' remain on the whole a mystery. The analogy with the 'coloured revolutions' could have something to do with it. Whatever the case, NGOs were actually not involved at all in organising the protests of winter 2011 and spring 2012, just as there was no 'orange threat' some years ago, with NGOs or without them. Times have changed and the civil society leaders – or at least that part of civil society which protests loudly against the existing order – are no longer the traditional NGOs, but the informal public movements and the 'disgruntled citizens' united by social networks.

The new laws are often described as unconstitutional in nature because they limit vital freedoms. It is unclear, however, if the Russian Constitutional Court has enough power to protect basic constitutional rights. (Photo: Savinsasha)

The vague drafting of the laws gives rise to another important problem: it is very difficult to elicit from the text of the law which activities it is that will mean you are breaking it so it is impossible to predict the legal consequences of one's behaviour. In jurisprudence this is known as the 'violation of the principle of legal clarity'. This, together with the amorphous definitions not grounded in law, gives good reason for these laws to be described as unlawful.

Characteristically, the government soothed the anxieties of the civil society by assuring them that the law on 'foreign agents' would not be applied to all NGOs. Just to this organisation, and to that one too, because they are harmful to the state. The government does not want, after all, to put the whole of the opposition behind bars or to close down all independent organisations. Their aim is somewhat different – to scare the discontented with severe penalties by organising some widely-publicised reprisals.

Relying on fear

It is interesting that the ruling class is trying to scare society, because it itself has taken fright. The new laws were clearly passed in haste to quell the waves of protest, which were on the increase from December to June. Provoked by the mass rigging of the elections, no fewer than 250,000 took part in unprecedented protests all over the country and the government obviously took this very seriously.

'The ruling class is not prepared to embark on the path of real democratic change, because it realises that the chances of being able to hang on to its positions of power, not inconsiderable property and, for some, liberty itself, are extremely dubious.'

The change in the relations between the state and society dates from Putin's very first day as president. One has only to remember the police aggression on 6 May during the demonstration on Bolotnaya Square, the arrests of the demonstrators, the investigation of the opposition leaders, the pressure on human rights organisations, such as 'Golos' [Rn. Voice] and the Committee Against Torture and, finally, the inquisition and trial of the girls from the punk-rock group Pussy Riot. The three young women have just been sentenced to two years in prison for their flamboyant, non-violent political protest in the Cathedral of Christ the Saviour. A more obvious signal that the government cannot stomach criticism and will come down heavily on it is difficult to imagine.

The tone of utterances by the political leadership has changed too: both the form and the content have become much harsher and more scornful. They have effectively declared 'cold war' on the civil society. Many have noticed that the atmosphere in Russia changed within the space of a few weeks: calls for the restitution of the death penalty, a new surge of Stalinist apologetics, and medieval bigotry disguised as religious principles have suddenly all become possible.

But the Russian government no longer has at its disposal the functioning social contract of Putin's first two terms: people have lost interest in politics and are more concerned with improving their standard of living, backed up by foreign loans and high hydrocarbon prices. They are fed up with the same old faces in the government and President Putin's popularity ratings are the lowest they have been since 2001.

Nadezhda Tolokonnikova (Pussy Riot) at the Moscow Tagansky District Court. After the start of Putin's 3rd term, Russia saw an unprecedented wave of screw tightening by the government. The latest illustration is the 2-year Pussy Riot sentence. (Photo: Denis Bochkarev)

As levels of dissatisfaction with rampant corruption and the lack of social justice increase, the government has to turn to its last weapon – fear. The ruling class is not prepared to embark on the path of real democratic change, because it realises that the chances of being able to hang on to its positions of power, not inconsiderable property and, for some, liberty itself, are extremely dubious. It is, however, also not prepared to take a decisive step towards dictatorship because it forms part of, and is dependent on, the global economy.

What's the good of tightening the screws?

What might be the consequences of these extraordinary measures to 'tighten the screws'?

Well, a section of society has indeed taken fright. The emigration option has become more popular. According to Levada Center data, by the middle of August 2012 people were significantly less willing to take part in demonstrations. Some NGOs have announced that they feel compelled to refuse funds from abroad.

'In the event of ... a leap forward in civil self-organisation, the government will find it very hard to apply the new laws as they had planned – selectively and for the purpose of instilling fear.'

There is, however, also the opposite reaction. Active participants in protest rallies on the one hand, and human rights organisations on the other, have for the last month been engaged in discussing reaction strategies. They make no secret of the fact that they consider the new laws anti-constitutional and unlawful and, in the case of the 'foreign agents' law, also absurd. Various activities are planned: from the legal, material and moral defence of certain activists and organisations (a strategy for preservation and survival) to campaigning for an open boycott of the unlawful laws (a strategy for defending the supremacy of the law).

For these actions to be successful, a greater degree of self-organisation and social solidarity than currently obtains will, of course, be essential. 100 or 500, rather than 5, NGOs must announce that they will not comply with an anti-constitutional law, and several thousands more must support them publicly. Hundreds, rather than scores, of courageous people will be needed to turn out without preliminary permission in defence of their constitutional right to peaceful assembly. Many passionate supporters of LGBT [Lesbian, Gay, Bisexual and Transgender] activists will be needed to contribute their own money to a fund for the defence of activists and organisations being prosecuted, and barristers prepared to defend them on a pro bono basis. In the event of such a leap forward in civil self-organisation, the government will find it very hard to apply the new laws as they had planned – selectively and for the purpose of instilling fear.

The 'constitutional coup' of the summer of 2012 could, unexpectedly for its initiators, awake powerful forces of resistance. The scenario is by no means as hopeless as it might seem today.