9 April 2021
by Leonid Nikitinsky, Novaya Gazeta columnist, member of the Presidential Council of the Russian Federation on Human Rights, and recipient of the Moscow Helsinki Group prize for human rights
On 8 April the Constitutional Court, as has been reported in the news, ‘passed an important ruling on the issue of domestic violence’, requiring the legislative branch to make changes to Article 166-1 of the Criminal Code of the Russian Federation. In fact, the story which was presented to the Court is a rather private one, and this ruling would only be limited to the news if it were not for the current heated debate on ‘domestic violence’, which is in fact not defined in the law.
In July 2016, legislators decriminalised not ‘domestic violence’ but, alongside a number of other low-level crimes, beating not resulting in damage to one’s health. If such actions are not committed ‘out of hooliganism’ and are not ‘motivated by political, ideological, racial, national or religious hate or enmity’, then from 1 January 2017 they are punishable under administrative law with a fine of up to 30,000 roubles or detention of up to 15 days (Aart. 6.1-1 of the Code of the Russian Code of Administrative Offences). Only if acts of the same nature are repeated within a year from the day of sentencing does the offence become punishable under Article 166-1 of the Criminal Code – this is how the mechanism of administrative res judicata, which is described in the Criminal Code, works for a number of other such cases.
This decriminalisation would cause more good than bad if no-one was aware that this pattern of behaviour fits the majority of cases of violence towards relatives. This is why the debate has become so heated: traditionalists, including the Russian Orthodox Church, supported the changes to the law, while feminists and supporters of ‘new ethics’ continue to demand the return of the proviso (which was included in the first draft of the bill) that violence towards relatives should immediately be punishable under the Criminal Code, without ‘prejudice’ (or ‘out of hooliganism’).
Of course, the problem lies not in the difference between punishments under the Criminal Code and the Administrative Code, but in the fact that administrative cases are much easier for police to put on ice or simply not investigate at all. This is apparently what happened in the case of citizen S., who brought her case to the Constitutional Court in Orenburg. S. was beaten constantly by her brother, who she lived with. The defence argued in court that he had beaten his sister so discretely that his previous administrative convictions had been spent, despite the fact he even had a criminal record for similar offences.
Having detected an obvious issue, the Constitutional Court concluded that ‘Article 116-1 of the Criminal Code of the Russian Federation does not comply with the Constitution of the Russian Federation…insofar as it does not provide commensurate protection of the right to the security of person or the right to protect personal dignity from violence in the event that the beatings are carried out…by a person who has a conviction for an offence provided for in this article or a similar crime…and places persons with a criminal record in a privileged position…’
It seems that this wasn’t an ‘important decision’ — in any event, it’s not what the advocates of the ‘new ethics’ are insisting upon. At the same time, what’s being discussed here — and this is why it’s so heated — is likely broader and more important than merely ‘domestic violence’: this is about violence in general, about its permissibility and its role in modern society.
The relationship between the domestic sphere and the political system is not such a loose one: in both of these spheres, different people uphold the same values, although these values are very different for traditionalists and progressives.
From this point of view, the Constitutional Court’s resolution isn’t ‘non-political’; it’s actually maybe even bold, if you understand, as the Constitutional Court does, who takes which side in the discussion about domestic violence.
The problem is that the Constitutional Court issued a similar decision previously (also related to prejudice) on 10 February 2017, in the well-known Dadin case and confirmed it on 27 January 2020, in the Kotov case: the Constitutional Court demanded that legislators partially decriminalize Article 212.1 of the Russian Criminal Code, which shouldn’t be applied without considering the real consequences solely on the grounds of repeated violations of the rules for conducting large-scale events.
And what happened? The legislators (that is, both chambers of the Federal Assembly and the president) did more than just fail to comply with the Constitutional Court’s requirement, which is not subject to challenge: Kotov served his term until the very end, and in March 2021 the Moscow City Court did what it had to do to get the same sentence (fortunately a suspended one) for Yulia Galyamina. Even if the Constitutional Court’s determination from 8 April were to be accepted as a particular and ‘non-political,’ application of its requirements would have returned the legislators to the question as to why similar requirements were not met with regard to the ‘Dadin’ Article 212.1, of the Criminal Code. Let’s wait and see how the situation develops.