Emory International Law Review Volume 27 Issue 2 2013 Freedom of Expression in Russia as it Relates to Criticism of the Government Tatyana Beschastna Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr Recommended Citation Tatyana Beschastna, Freedom of Expression in Russia as it Relates to Criticism of the Government, 27 Emory Int'l L. Rev. 1105 (2013). Available at: https://scholarlycommons.law.emory.edu/eilr/vol27/iss2/10 This Comment is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. BESCHASTNA GALLEYSPROOFS2 5/1/2014 9:09 AM FREEDOM OF EXPRESSION IN RUSSIA AS IT RELATES TO CRITICISM OF THE GOVERNMENT Our lives begin to end the day we become silent about things that matter. —Martin Luther King Jr. INTRODUCTION Freedom of expression in Russia appears to be slowly eroding, Russian Government promising to protect human rights, including the right to freedom of expression. The collapse of the Soviet Union in 1991 and the transition from “Old” Russia to “New” Russia were associated with many new hopes and promises.1 One such promise was the establishment of new human rights standards, including the fundamental right to freedom of expression. This promise was made by the ratification of the European Convention on Human Rights (Convention) in May of 1998.2 Previously under the oppressive governments of Stalin and his successors, Soviet Russia enjoyed no freedom of expression.3 Under Mikhail Gorbachev, Russia began a new movement commonly known as “Perestroika,” a Russian word that literally translates to “restructuring.”4 Perestroika ushered in a new era of hope and freedom and was heralded both domestically and internationally as an opportunity to change the oppressive policies of the past and establish new respects for the rights of the individual.5 The collapse of the 1 Mikhail S. Gorbachev, Essay, The Laws of Life and Political Responsibility, 6 EMORY INT'L L. REV. 321 (1992). 2 The Convention for the Protection of Human Rights and Fundamental Freedoms, popularly known as the “European Convention on Human Rights,” was opened for signature in Rome on November 4, 1950. See Council of Eur., Chart of Signatures and Ratifications: Convention for the Protection of Human Rights and Fundamental Freedoms, COUNCIL EUR., http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005 &CM=8&DF=07/01/2013&CL=ENG (last visited Oct. 31, 2013), for a list of all “High Contracting Parties.” It entered into force on September 3, 1953. Id. Russia deposited its instrument of ratification on May 5, 1998. Id. 3 See Lynne Viola, Stalinism and the 1930s, in A COMPANION TO RUSSIAN HISTORY 368, 368–73 (Abbott Gleason ed., 2009). 4 Id. at 317; Russia: The Gorbachev Era: Perestroika and Glasnost, ENCYCLOPEDIA BRITANNICA, http:// www.britannica.com/EBchecked/topic/513251/Russia/38564/The-Gorbachev-era-perestroika-and-glasnost (last visited Aug. 31, 2013). 5 See Archie Brown, The Gorbachev Era, in THE CAMBRIDGE HISTORY OF RUSSIA: THE TWENTIETH CENTURY 316, 323–25 (Ronald Grigor Suny ed., 2006), for a background discussion of Perestroika. BESCHASTNA GALLEYSPROOFS2 5/1/2014 9:09 AM 1106 EMORY INTERNATIONAL LAW REVIEW [Vol. 27 Soviet Union was accompanied by the people’s desire to get rid of the old policies that disregarded the value of individual human rights, such as the freedoms of religion and freedom of expression.6 In any political system, there is always a natural tension between the interests of the state and the interests of the individual. In the old Soviet Russia, the interests of the state prevailed over any other rights.7 The early transition period was associated with the transition to a New Russia, which was to be a symbol of the new rights, freedoms, and policies, with the rights of the individual prevailing.8 The ratification of the Convention was a big step in this transition. It was a significant promise on the part of the new government, the promise of a commitment to the values of human rights and individual freedoms, including freedom of expression. The Convention expressly protects many fundamental human rights, such as the right to life;9 prohibition of torture;10 the right to a fair trial;11 respect for private and family life;12 freedoms of thought, conscience, and religion;13 freedom of assembly;14 and the right to freedom of expression,15 which is the focus of this Comment. Freedom of expression is a fundamental part of every democracy. To be a truly democratic society, the government has to establish its serious commitment to the values that are at the foundation of every democratic system. Ratification of the Convention was the first big step to such a commitment. This Comment analyzes whether the new Russian government adhered to its commitment and whether it performed upon its promise made fifteen years ago. It was a promise of democracy that the new government of Russia gave to its people in 1991, when thousands came out on the streets demanding a new 6 See generally id. at 323–31. 7 See generally David R. Shearer, Stalinism, 1928‒1940, in THE CAMBRIDGE HISTORY OF RUSSIA, supra note 5, at 192, 193. 8 See Brown, supra note 5, at 323–25. 9 Convention for the Protection of Human Rights and Fundamental Freedoms art. 2, Nov. 4, 1950, E.T.S. No. 5 [hereinafter Convention]. 10 Id. art. 3. 11 Id. art. 6. 12 Id. art. 8. 13 Id. art. 9. 14 Id. art. 11. 15 Id. art. 10. BESCHASTNA GALLEYSPROOFS2 5/1/2014 9:09 AM 2013] FREEDOM OF EXPRESSION IN RUSSIA 1107 system of fundamental freedoms, the system where everyone would be free to express their opinion as to the work of the government and its officials without fear of prosecution. Additionally, this Comment analyzes the current status of political speech in Russia and proposes certain practical solutions for further development of the rule of law, given the importance and sensitive nature of the subject matter. Political speech—“speech that participates in the processes of representative democracy”16 and serves the function of “discovery and spread of political truth”17—is an essential component of every democratic society. The ability to freely express political criticism is an important component of freedom of expression. Freedom of expression, an essential human right and an important component of any developing democratic system, is protected under Article 10 of the European Convention.18 This Comment analyzes the protections afforded to freedom of expression under Article 10 of the Convention and whether Russia provides such protections in its domestic legal system. It has been fifteen years since Russia ratified the Convention and began the adjustment and reformation of its legal system, bringing it into compliance with the Convention provisions. Nevertheless, after many years of legal reforms, Russian citizens bring one of the highest amount of claims to the European Court of Human Rights (ECHR).19 This Comment argues that today’s threat to political speech is a result of the indirect actions taken by the government to suppress freedom of expression when it involves criticism of the government. This threat is also a direct result of the dependent judiciary inherited from the Soviet era and influenced by Putin’s government. Tracing the history of political speech in Russia and analyzing the current problems faced by the Russian legal system help form an understanding of freedom of speech in Russia. This Comment also examines 16 Lillian R. BeVier, The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle, 30 STAN. L. REV. 299, 300 (1978). 17 Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis & Holmes, JJ., concurring); Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971). 18 Convention, supra note 9, art. 10. 19 EUR. CT. OF HUMAN RIGHTS, STATISTICAL INFORMATION: VIOLATIONS BY ARTICLE AND BY RESPONDENT STATE (1959–2012), http://echr.coe.int/Documents/Stats_violation_1959_2012_ENG.pdf; Aslan Khuseinovich Abashidze & Ekaterina Sergeevna Alisievich, 10 Let Uchastia Rossii v Konventsii Soveta Evropy po Pravam Cheloveka: Znachenie dlia Rossiiskogo Zakonodatel’stva i Pravopriminitel’noi Praktiki [10 Years of Russia’s Participation in the Council of Europe Convention on Human Rights: Implications for the Russian Legislation and Legal Practice], 12 ZAKONY ROSSII: OPYT, ANALIZ, PRAKTIKA 6, 7 (2008), http:// elibrary.ru/item.asp?id=12879692. BESCHASTNA GALLEYSPROOFS2 5/1/2014 9:09 AM 1108 EMORY INTERNATIONAL LAW REVIEW [Vol. 27 the actual and potential reasons for the declining freedom to criticize the government and the often-inadequate measures taken by the Russian legal system, which frequently serve to escalate the problem. Because understanding the prior history and mentality of the Russian people is an important part of the development of freedom of expression in Russia, Part I of this Comment traces the history of the freedom of expression in Russia from the Soviet times to its transition under the new Russian Government. Subpart A analyzes the historical development of freedom of expression in Russia as it relates to criticism of the government, its status during the Soviet Era, and the rapid changes during the early post-Soviet period. Subpart B examines the promise of a commitment to democracy made during this transition by the ratification of the Convention. Part II examines protection of freedom of expression under Article 10 of the Convention. It also analyses the implementation of the Convention in Russia since its ratification, the changes made to the existing laws, as well as the existing problems and violations of the Russian Constitution, Russian federal law, and the European Convention.