Post-Soviet Media Law & Policy Newsletter

Issue 33-34 Benjamin N. Cardozo School of Law November, 1996

Constitutional Protection of Media Freedoms in Russia’s Highest Courts
Despite the protections afforded free speech and free press in Article 29 of the 1993 Constitution, a paradoxical situation exists in Russia which illustrates the gap between constitutional aspirations and practical reality. On the one hand, the institutional structure established under the 1993 Constitution places primary responsibility for human rights protection on Russia’s courts: Articles 15(1) and 18 state that constitutional provisions guarantee Russian citizens enforceable rights even in the absence of implementing legislation, and that courts are to give those rights supreme effect if they are in conflict with statutes or other legal rules. To enforce these provisions, the constitutional system provides citizens the right to challenge the constitutionality of statutes before the Russian Federation Constitutional Court. In addition, the courts of general jurisdiction (“ordinary courts”) are empowered to apply constitutional and international law norms in cases where citizens challenge the constitutionality of governmental acts of “law application”—actions by courts and government agencies.

On the other hand, illustrations exist to show that citizens’ do not trust the courts sufficiently to turn to them in cases where media freedoms are threatened. For example, in September, the Club of Regional Newspaper Editors-in-Chief published a protest against actions taken in the Komi Republic against the independent newspaper Krasnoe Znamia [Red Banner].1 According to the Club’s announcement, the chief of the Republic’s department for media and law enforcement had recently ordered judicial investigations against the newspaper because of an article which criticized officials for squandering government funds. While declaring that the investigation against Krasnoe Znamia was unlawful because it conflicts with the Russian Law on Mass Media, the Criminal Code, and a presidential decree, the Club’s letter does not mention Article 29 of the Constitution. But what is particularly noteworthy is the last paragraph:

    The purpose of making this observation is not to criticize the Club, but rather to note that its statement reflects the absence of confidence in the courts to protect the exercise of Article 29 freedoms. Certainly, there are many possible explanations for this, but I wish to focus on one: the absence of leadership and direction from Russia’s highest courts in the area of free expression.

    For example, on at least three occasions, the Constitutional Court has declined to exercise jurisdiction over citizens’ petitions based on Article 29 which challenged the constitutionality of governmental acts taken or about to be taken on statutory grounds.2 The grounds for the Constitutional Court’s decisions were the same in each case: that the Court’s jurisdiction over individual complaints extends only to review of the constitu-tionality of zakony [statutes], and that challenges to governmental acts based on legislation belong to the jurisdiction of the ordinary courts.

    The Constitutional Court’s ambivalence about declining an opportunity to consider Article 29 is illustrated by its opinion regarding the Kozyrev petition.3 Kozyrev entailed a constitutional complaint filed then-Russian Foreign Minister Andrei Kozyrev, who sought a determination that certain provisions of the Civil Code4 governing defamation are unconstitutional. Kozyrev, a defendant in a civil defamation action brought by State Duma Deputy Vladimir Zhirinovskii against him and the television station NTV on the basis of Kozyrev’s broadcast remarks that Zhirinovskii’s views are “Fascist-like,”5 petitioned the CC to rule that the applicable Civil Code provision was a violation of free expression rights guaranteed under Article 29 of the Constitution because it did not make a distinction between statements of fact and those of critical opinion. Therefore, he argued, Article 29 should shield him from bearing the burden of proving the truthfulness of his statement.

    While dismissing Kozyrev’s complaint, however, the Court discussed the merits of his argument, acknowledging that it posed “an important and topical question”: how in a specific case to reconcile the protection of an individual’s reputation with “the interest of free discussion of political issues in democratic society”? Concluding that civil defamation actions implicate the exercise of free expression, the Court issued a set of recommen-dations to the ordinary courts, particularly the Russian Federation Supreme Court which stands at the apex of the ordinary court system, that they undertake the task of identifying means of distinguishing in defamation cases between factual assertions and statements of critical opinion, so as to consider it is possible to make an objective evaluation of the truth or falsity of the latter. So that the ordinary courts will correctly carry out their duty to “insure the requisite equilibrium between the constitutional rights to protection of one’s honor and dignity and the freedom of speech,” the Court suggested strongly to the Supreme Court that it issue Guiding Instructions to the lower courts for resolution of the difficult questions posed by Kozyrev’s complaint.

    It is noteworthy that the Constitutional Court has been more assertive in certain other cases outside the context of Article 29. For example, a decision in which the Court upheld a challenge to the 1993 Law on State Secrets demonstrates the ease with which the Court can subject law application practices to its review by formally labelling the review as one of legislation. In the March 27, 1996 State Secrets decision,6 the Court reviewed judicial and government agency interpretation and application of Article 21 of the Law which had resulted in restriction of a criminal defendant’s right to counsel of his/her choosing. The Court found that Article 21 is silent on this question, but that the judicial and administrative acts were in violation of certain constitutional provisions, as well as Article 14 of the International Covenant on Civil and Political Rights, which guarantee a right to qualified counsel at all stages of a criminal proceeding.

    State Secrets therefore entailed review of law application by an ordinary court and administrative agencies.7 Thus, although the question of jurisdiction closely paralleled that in Kozyrev, the Court came out in the former with a very different result.

    The Russian Federation Supreme Court, meanwhile, despite its assertive position that Russia’s ordinary courts have the power on their own to find a statute unconstitutional and therefore unenforceable in a concrete case without referring the question of constitutionality to the Constitutional Court,8 has not in the past year demonstrated an interest in considering the Constitutional Court’s suggestions in Kozyrev. This is despite the continuing prevalence of defamation law actions, both civil and criminal, in the ordinary courts.

    As a result, interpretation and application of Article 29 has fallen between the cracks. Article 29, like most fundamental protections of free speech and free press, is indeterminate—in other words, its broad wording is subject to differing interpretations, and courts must supply the concrete contours of rights and duties addressed in those provisions. Without direction from the highest courts, the broad protections of Art. 29 will doubtless not receive practical application in concrete cases, and this threatens the overall significance of Article 29 for protection of media freedoms. This is a matter of concern not only for application of Article 29 itself, but of the protections of Article 10 of the European Convention on Human Rights, which will soon go into effect at the time of Russia’s accession to that Convention.

Peter Krug
Associate Professor
University of Oklahoma College of Law
October 10, 1996

Notes:

1. The Club’s protest letter was published in the FSUMedia e-mail mailing list on September 10, 1996.
2. The three petitions are described in an article by Moscow attorney Andrei Rakhmilovich, The Constitutional Court of the Russian Federation: Recent Cases on Protecting the Freedom of Thought and Speech and Related Matters, in 22 REVIEW OF CENTRAL AND EAST EUROPEAN LAW 129 (1996). The petitions were filed on behalf of Andrei Kozyrev (discussed below), persons associated with the journal Eshche (More), and the editor and journalists of the journal Sobesednik (The Interlocutor).
3. Reported in VESTNIK KONSTITUTSIONNOGO SUDA, 1995, #6, p. 2. The decision was dated September 27, 1995.
4. Article 7 of the 1964 RSFSR Civil Code, as amended, which was in effect at the time Zhirinovskii’s lawsuit against Kozyrev was filed. On January 1, 1995, after Zhirinovksii’s action was commenced, the 1964 Civil Code was replaced by the 1995 Russian Federation Civil Code. Article 152 of the 1995 Civil Code is similar to Article 7 in all material respects.
5. Kozyrev’s statement was broadcast in February, 1994. The court action began in May, 1994, but a hearing was not held until May, 1995, and the proceedings were not concluded at the time of Kozyrev’s complaint to the CC.
6. Published in SOBRANIE ZAKONODATEL’SVTA ROSSISKOI FEDERATSII, Issue 15, 1996, Item #1768. The Court consolidated two separate cases in making its decision.
7. The opinion even states that one of the complainants argued that his rights were violated “as a result of the court’s application” of Article [one] and 21. (opinion, at 3915).
8. The Supreme Court declared this doctrine of “discretionary referral” in guiding instructions to the courts dated October 31, 1995. In 1996, the Supreme Court has in at least two cases ruled that the lower courts should have found legislation unenforceable on constitutional grounds. The cases concerned a City of Moscow housing fee and provisions in the Labor Code.