Administrative liability for “disrespect” to the authorities in Russia: Gross defects in legislative regulation and enforcement

Abstract

The article analyzes the new composition of an administrative offense introduced in Art. 20.1 of the Code of Administrative Offenses of the Russian Federation in 2019 on the initiative of several well-known senators and deputies, which received the name in public discourse — “liability for disrespect to the authorities”. The author, using the practice of the Supreme Court of the Russian Federation and the ECHR, proves the legal inconsistency of the introduced measure of liability, both from the point of view of its inconsistency with constitutional principles, and from the standpoint of contradiction with international standards for the implementation of freedom of speech, developed by the ECHR and binding on Russia. Moreover, the article notes that in democratic European countries there is a tendency to exclude or not apply criminal liability for insulting the head of state, at the same time in nondemocratic countries there is an opposite trend: the expansion of the list of sanctions and their tightening in relation to citizens insulting the highest official of the respective state. The article analyzes that the evaluative formulations chosen by the legislator: “an indecent form that offends human dignity and public morality” and “a clear disrespect for society, the state, official state symbols of the Russian Federation, the Constitution of the Russian Federation or bodies exercising state power”, during a short judicial application (several months), have already led to the emergence of controversial situations in the application of this norm and the issuance of not entirely substantiated judicial acts against Russian citizens. The author proposed to the legislator to exclude from the Code of Administrative Offenses of the Russian Federation parts 3–5 of Art. 20.1 and also consider the exclusion of Art. 148, 297, 319, 336 of the Criminal Code of the Russian Federation since they violate the provisions of Articles 19 and 29 of the Constitution of the Russian Federation. These two articles of the Constitutions establish excessive, disproportionate and discriminatory guarantees for the legal protection of certain categories of Russian citizens (civil servants, law enforcement officials, judges, military personnel), to the detriment of the general legal constitutional principle of equality of all before the law and court.

Keywords:

insulting the head of state, petty hooliganism, insulting state symbols, freedom of speech, indecent form, obvious disrespect