6 April 2020
Tatiana Glushkova, lawyer at Memorial Human Rights Centre
With every passing day, state organs’ emergency coronavirus rule-making brings the nation’s legal community more powerfully close to what could be called “sensory overload”- the condition that ensues in moments when the nervous system receives a quantity of stimuli so large that it can’t absorb and process the incoming information.
By presidential decree, a week of “paid time off” (a concept unknown to the Russian Labor Code) has been instituted, while the Labour Ministry has issued recommendations first expanding the list of organizations to which the decree does not apply and then simply allowing the continuation of work performed at a distance.
Regional heads en masse have established mandatory rules of behaviour for citizens and organizations during a state of heightened readiness, without having the authority to do so, and when the federal legislator did finally present them with those powers it forgot to include their right to themselves declare a state of heightened readiness for citizens and organizations (right now the Federal Law “On the protection of the population and territories from emergency situations of a natural and technogenic nature” allows governors to declare such a state only “for the relevant administrative organs and the forces of the unified state system for warning and eliminating emergency situations”).
The Moscow mayor’s decree “On declaring a state of heightened readiness” was formulated in such a way that it is now a violation of the law to fail to observe social distancing not only in public places but also in residential buildings (including by spouses, as well as parents and children), to say nothing of leaving the building in order to bring groceries to an elderly relative or to donate blood.
The newly introduced Article 3.18.1 of the Moscow Administrative Law Code makes it a punishable offence to fail to carry out the requirements of Moscow regulatory acts “aimed at instituting and ensuring a state of heightened readiness in the city of Moscow, unless these actions (inaction) comprise a criminally punishable act or entail administrative responsibility under the Russian Federation Code on Administrative Violations.” At the same time, according to the federal Administrative Law Code, people can be prosecuted for “violating legislation with regard to ensuring the population’s sanitary-epidemiological well-being, acts committed upon the appearance of a threat of the spread of a disease representing a danger to those around them,” while such a threat is reason for the declaration of a state of heightened readiness. That is, it is not possible to predict whether they will fine you 4,000 or “from 15,000 to 40,000” roubles.
Against this background, there is nothing unusual about the introduction into the Russian Federation Criminal Code of Article 207.1, which criminalizes the dissemination of fake news about the coronavirus and permits at the slightest desire the punishing of publicly expressed doubts about the number of people infected, the accuracy of tests, the effectiveness of treatment in a given hospital, the grounds for quarantine measures, etc. We have already been through all this with laws that ban “insulting the feelings of believers,” “justifying terrorism,” and so on and so forth.
We could spend a long time arguing over whether this level of legal technique is the consequence of the poor training of the lawyers working in the presidential administration, the State Duma, and Moscow City Hall, or of the habit now become automatic of including in every regulatory act the possibility of selective application of the law. But whatever the reason, Russian lawyers answering their clients’ questions today have to refer to the Moscow mayor’s blog, among other things, or an interview with the president’s press secretary.
The coronavirus pandemic – or rather, the fact that the federal government until very recently shut its eyes to the inevitability that it would come to Russia and then did not want to take responsibility for action against it – has definitively destroyed in our country the law as a system of norms (law as a body of knowledge was destroyed before this), and, unlike the pandemic, this situation will not be resolved by the inevitable development of collective immunity (whether as a result of mass vaccination or by reaching the necessary percentage of survivors).
The word “post-law” has no chance of competing with “self-isolation” or “covidiot” for the title of the Oxford Dictionary’s 2020 Word of the Year, but there is every chance of it becoming the word of the next 16 years for the Russian legal community. We have to have some way to refer to a system in which no hierarchy of legal sources exists and the interpretation of regulations in no way depends on their content.
Translated by Marian Schwartz