A War By Any Other Name

Why should anyone care about Russian law? Few areas of study seem as futile now as Russian constitutional law. If someone needed definite proof that Russia is governed at whim of a single person, one could look no further than the televised session of the country’s Security Council in the ill-fated days of February 2022. The pathetic shivering and mumbling of the top officials revealed that Russia has lost any semblance of its constitutional structure. Any suggestion that formal Russian law warrants serious research would thus seem laughable.

And yet I would argue that it does. Formal law is a key interface of the regime. Therefore, studying it can help us better understand its nature. That includes avoiding the temptation of consigning Putin’s regime to the world of the past. Timothy Snyder made a potent argument that today’s Russia is a fascist state. Indeed, there are many similarities between the right-wing authoritarian regimes of the past and Putin’s one. However, it is set apart by distinct features, which are a product of the current era. Precisely these features are especially dangerous as they could prove enticing to many populists and would-be authoritarians. One particular feature I will discuss in this editorial is the use of formal law to denigrate regime critics and to instill fear. This topic seems relatively neglected in comparison to the study of Russian propaganda. Yet, in my opinion, it is no less important for the functioning of the regime.

The name-calling laws

The language of today’s Russia seems like a variation of Orwellian newspeak. Even in everyday conversations most people prefer not to call war by its name, but rather use the artificial term ‘special military operation’. Yet, this was not achieved by creating and forcefully imposing an obligatory narrative. The government’s approach was much simpler: Instead of turning all media into propaganda machinery, the state simply discriminated against or outrightly criminalized those who deviated from government positions. This has led the (remaining) non-state media and members of the public to proactively censor themselves.

The first discriminatory measure against opposition narratives was adopted back in 2007. Media were obliged to spell out that a particular entity was designated ‘terrorist’ or ‘extremist’ each time it was mentioned. Over time, the lists of ‘terrorist’ and ‘extremist’ entities grew to over 100 names, including Jehovah’s Witnesses and supporters of Alexey Navalny. In 2012, the Russian legislature mandated NGOs receiving funding from abroad (unless belonging to an exempted category) to designate themselves as ‘foreign agents’. The Council of Europe’s Commissioner for Human Rights in her submission to the European Court of Human Rights noted that this measure helped create ‘an atmosphere of mistrust, fear and hostility’. Eventually, the authorities themselves started giving out ‘foreign agent’ designations to entities and individuals. Currently the lists include several hundred names. While a ‘foreign agent’ label can only be placed on a Russian organization or private citizen, foreign entities are labeled ‘undesirable’. From 2015 onwards, the authorities have named 55 ‘undesirables’. Starting from late 2020, media are obliged to mention a ‘foreign agent’ or ‘undesirable’ designation.

Failure to participate in this state-sanctioned name-calling will cost a media outlet dearly. Two violations within a year can lead to a license being withdrawn. Designated individuals and organizations likewise have to place a ‘foreign agent’ label everywhere (including posts and comments on social media), on the pain of fines and potential criminal prosecution. The laws created a perverse atmosphere, where even the opposition-leaning outlets would put denigrating labels on themselves or the protagonists of their stories.

The key purpose of the name-calling laws is to denigrate their targets, to distinguish them as an alien element in the society. That purpose is achieved at relatively low cost. Instead of completely obliterating the opposition-leaning media, the state ensures compliant use of language across the media sector. A more niche use of such practices includes the ban on ‘LGBT propaganda’ among children and a prohibition on comparing the Soviet Union with the Nazi Germany.

From name-calling to silencing

After the Government needed to drastically increase the scope of compliance in the wake of the Ukraine war, it had the option to introduce a priori censorship and to limit media space to a few state-controlled outlets. Such steps would have been in line with the martial law regulations. Yet, this route was not taken. Several major opposition-leaning media outlets were taken off air. Others (mostly foreign-based) were blocked. However, an ordinary Russian with Internet access (which a vast majority has) can easily access all kinds of information through Youtube or the Telegram messaging app. Sharing this information, though, is another story. People have reasons to believe that doing so can expose them to danger. This is precisely the chilling effect that most restrictions on the freedom of speech seek to achieve.

A slate of repressive laws, adopted in early March, doubles down on earlier practices of ensuring language compliance. The laws target not only media or select individuals, but everyone in the Russian jurisdiction. Now they could be liable for ‘Denigrating the Armed Forces’ or ‘Spreading misinformation on the use of the Armed Forces abroad’. Possible legal consequences range from hefty fines to long prison terms. Since their adoption, the new laws are in daily use by law enforcement. However, it is doubtful that persecutions alone would have been sufficient to ensure compliance. I argue that the intended chilling effect was achieved due to the earlier success of the name-calling laws. The media was already primed to watch its language. With the advent of the new repressive legislation, it either avoided ‘controversial’ topics in the first place or merely reproduced government releases. Private individuals followed suit by consciously censoring themselves.

The compliance achieved in Putin’s Russia is thus distinct from one in totalitarian regimes of the 20th century. Instead of actively reproducing state narratives and participating in state-sanctioned practices, an individual is expected to do nothing. Rather than a storm-trooper, a model citizen is a cynical couch potato, who avoids anything remotely political.

Today, this model of compliance might be more dangerous than a resurrection of fascism. It might be both easier to achieve and stabilize over time. Establishing and maintaining totalitarian structures is, after all, a costly enterprise. It requires significant organizational effort and administrative skill. It is no coincidence that very few totalitarian regimes survived beyond their mid-20th century heyday. In contrast, a combination of propaganda with formal regulations targeting opposition narratives can be achieved through the existing state apparatus. Thus, it is relatively cheap and feasible for the many authoritarian regimes around the world. What is thus the lesson Russia’s recent history might teach us? It is as simple as the strategy of Russia’s repression itself: If governments start policing language, we need to be on high alert – it may be a step towards something much worse.

Dmitry Kurnosov, University of Helsinki

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The week on Verfassungsblog

… summarized by PAULINE SPATZ:

Russia’s war on Ukraine has spawned a plurality of transformative developments across the whole realm of international criminal law. Last week, on 26th June 2022, these developments were further amplified by a statement issued by the Ukrainian Government, which called for bringing war crimes charges against leaders and chairpersons of major international banks. RAPHAEL OIDTMANN comments on the Ukrainian statement, “international justice lawfare” as a strategy, and Corporate Criminal Responsibility.

With the introduction of a gas levy, gas importers will be able to pass on the increased energy prices to consumers from October at the latest. Neither preventive measures by landlords nor personal savings will then suffice to create affordable energy prices. In order to cushion social hardship, the legislature must take preventive action, demands PIA LANGE.

The plans of the “traffic light” coalition to replace “Hartz IV” with a citizen’s income and the debates on social relief measures confirm that poverty in Germany has reached a level that requires structural corrections to the welfare state. However, effectively countering poverty also requires rethinking at the constitutional level. NAZLI AGHAZADEH-WEGENER proposes a combination of the welfare state principle and equality guarantees as protection against classist-intersectional discrimination.

The admissibility of ex-post triage, which was expressly provided for in the first draft of the new Infection Protection Act, has been deleted from the current draft – after some fierce criticism. TIM REIß responds to the latest initiative in the FAZ newspaper, in which four experts in criminal and constitutional law argue in favor of allowing ex-post triage in the Infection Protection Act, and pleads for openness and transparency in the debate.

The European Arrest Warrant mechanism has been one of the fiercest manifestations of the rule of law crisis in Poland. Four years have passed since the European Court of Justice devised a 2-step test to decide on the execution of European Arrest Warrants issued by a Member State with a lack of judicial independence. LEANDRO MANCANO writes about the Courts recent rulings, with which it has significantly broadened the criteria and factors on which the executing courts can rely.

The European Central Bank has a powerful new tool at hand: the “Transmission Protection Instrument,” which is intended to lower the interest rates that euro states have to pay on their bonds under certain circumstances. German voices in particular see it as a violation of market principles, the Basic Law and European law. PHILIPP ORPHAL counters: Market logic is not a legal imperative – neither of the Economic and Monetary Union nor of the constitutional principle of democracy.

This December marks the 70th anniversary of the founding of the European Court of Justice. The ECJ is already celebrating with the hashtag #CJEUin70days on the social network Twitter. For TRISTAN RADTKE, however, the ECJ is counteracting its own data protection jurisprudence both with this campaign and with its other public relations work.

Tech billionaire Elon Musk’s surprise bid to buy Twitter questions the wisdom of the current EU efforts to combat the spread of disinformation, which has relied to a large extend on platforms’ voluntary cooperation. Whether successful or not, it raises serious questions on EU disinformation policy’s reliance on platforms’ self- and co-regulatory measures. RONAN FAHY, NAOMI APPELMAN & NATALI HELBERGER on the consequences, should a platform decide to not intervene on disinformation.

The European online space has been subjected to intensive legal reforms in recent years, and the policy and regulatory debates regarding the role and obligations of tech companies in Europe are far from over. With the rumoured Connectivity Infrastructure Act, the European Commission risks opening the pandora’s box of net neutrality, and potentially endangers the democratic principles of freedom of expression and pluralism. JOAN BARATA gives an overview on legal issues around debates on net neutrality.

Accidents with Tesla’s “Autopilot” are becoming more frequent. The suspicion arises that autonomous vehicles are not at all as safe as is often claimed. In fact, they are safer than when humans are driving. However, they make mistakes that human drivers would have easily avoided. To avoid these mistakes in the future, manufacturers should be held liable for their assistance programs instead of drivers, argues GERHARD WAGNER.

India’s online censorship procedures are completely opaque, and have consequently shielded the Indian government from accountability. TANMAY SINGH & AMALA DASARATHI on how a writ petition by Twitter in an Indian High Court hopes to change that. Depending on which way the Courts rule, the fundamental rights of free expression, due process, and access to the internet of millions of Indians are going to be decided by the end of this case.

In May 2022 the Pakistani Supreme Court drastically reconfigured Pakistan’s political regime with a judgement that completely eliminates legislators’ ability to vote against the party line in confidence matters. On 22 July, the Provincial Assembly of the Punjab, convened to elect a new Chief Minister resulting in a political turmoil due to this party-centric parliamentarism. ANDRAS CSONTOS sees this as a danger for democratic consolidation and a need for the Court to reconsider its position.