IX. Russia’s International Legal Obligations
As a member of the Council of Europe (CoE) since 1996, a party to the European Convention on Human Rights (ECHR) since 1998, and a party to the International Covenant on Civil and Political Rights (ICCPR) since 1973, Russia has binding and clear obligations to respect freedoms of expression, association, and assembly. The Russian constitution enshrines these same freedoms.[280]
The ECHR and the ICCPR allow only those restrictions on these freedoms that are properly provided for by law and “necessary in a democratic society” for a clearly defined set of reasons (including public order and national security).[281]
Some of the laws described in this report may individually give rise to violations of both instruments. The Venice Commission, as noted below, found that the amendments to the public assemblies law “may result in infringements of the fundamental right to peaceful assembly.”[282]
The law reinstating criminal responsibility for criminal libel is inconsistent with the conditions set forth in international human rights law. As the United Nations special rapporteur on the promotion and protection of the right to freedom of opinion and expression noted in 2008, “[T]he subjective character of many defamation laws, their overly broad scope and their application within criminal law have turned them into a powerful mechanisms to stifle investigative journalism and silence criticism.”[283]
Additionally, several international authorities have determined that criminal penalties are always disproportionate punishments for defamation, which is, by definition, a nonviolent offense.[284]
The “foreign agents” law and the “Dima Yakovlev law” may each give rise to violations of article 11 of the ECHR, which protects the right to freedom of association, as they are discriminatory and unjustifiably imposes disproportionate burdens on NGOs in addition to those already imposed under Russian law. The European Court of Human Rights (ECtHR) has consistently made clear that the right “to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning.”[285] While a state has a right to regulate an association’s aim and activities, it must do so in a manner compatible with its obligations under the convention.[286] The protection of opinions and the freedom of expression under article 10 of the ECHR is also one of the objectives of the freedom of association.
The new administrative burdens and punitive dimensions of these laws threaten both the freedom of association to establish and run NGOs and the freedom of expression of NGOs. They are also clearly inconsistent with the Fundamental Principles on the Status of Non-governmental Organizations, a nonbinding standard drawn up by the CoE that sets out best practices for the regulation of NGOs, with a view to ensuring that they benefit from freedom of association and fulfill duties and obligations.[287] The new treason law’s wide berth for interpretation is inconsistent with the ECHR’s requirement that restrictions on free speech be only those that are “necessary for a democratic society.”
Taken together, the arbitrary, punitive, invasive elements of these three laws are contrary to Russia’s obligations under international and regional law to respect freedom of expression and association and have a chilling effect on the exercise of those rights.
[280] Constitution of the Russian Federation, arts. 29, 30, and 31.
[281]European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11, entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively, art. 11. Russia became a party to the ECHR on May 5, 1998. Article 22 of the ICCPR also sets out that the only restrictions permissible on freedom of association are those “which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” International Covenant on Civil and Political Rights, adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Russia ratified the ICCPR on October 16, 1973.
[282] European Commission for Democracy Through Law, “Opinion on Federal Law No. 65-FZ of 8 June 2012 of the Russian Federation,” CDL-AD(2013)003, Strasbourg, March 11, 2013, http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2013)003-e (accessed March 30, 2013).
[283] Ibid, para. 39; Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Ambeyi Ligabo.
[284] In 1994 the Human Rights Committee stated that custodial sanctions are inappropriate for defamatory statements, as well as for any peaceful expression of views. UN Commission on Human Rights, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Abid Hussain, submitted in accordance with Commission resolution 1999/36, UN Doc. E/CN.4/2000/63, January 18, 2000, para. 48. Additionally, international bodies such as the European Court of Human Rights have determined that excessive damages for defamation violate human rights law because they are likely to have a “chilling effect” on freedom of expression. Tolstoy Miloslavsky v. the United Kingdom (1995).
[285] See for example, Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, para. 40; Gorzelik and Others v. Poland [GC], judgment of February 17, 2004; and most recently, Ramazanova and Others v. Azerbaijan, judgment of February 1, 2007, para. 54, Zhechev v. Bulgaria, judgment of June 21, 2007, para. 34, and Ismayilov v. Azerbaijan, judgment of January 17, 2008.
[286] Ibid.
[287] Council of Europe, “Fundamental Principles on the Status of Non-governmental Organizations in Europe,” November 13, 2002, http://www.coe.int/t/e/legal_affairs/legal_co-operation/civil_society/basic_texts/Fundamental%20Principles%20E.asp (accessed February 1, 2008).
