Aleksandr Podrabinek on the making of bad laws: ‘The ineradicable USSR’

19 July 2022

By Aleksandr Podrabinek

Source: Radio Svoboda

This month in one week, in three republics that were once part of the USSR, three people were convicted for expression of opinion and dissemination of information. In Russia, on 8 July the Meshchansky district court in Moscow sentenced Aleksei Gorinov, a district council member, to seven years in prison for spreading ‘information known to be false about the use of the armed forces.’ Gorinov called the war a war, and urged people not to hold celebrations during this time. On 13 July Gomel Regional Court in Belarus sentenced Katerina Andreeva, a journalist with Belsat TV channel, to eight years in prison. For her journalistic work she was found guilty of ‘treason against the state.’ The trial was held in camera. On 12 July a Ukrainian court sentenced an internet user to five years in prison for posting communist symbols and propaganda of the Soviet totalitarian regime on the VKontakte social media site. According to the prosecutor’s office in Ivano-Frankivsk, the defendant, whose name was not given, ‘popularized the ideas of a revival and restoration of the Soviet Union and justified the criminal regime, exalting Lenin and Stalin.’

While the ideologies of the defendants are different, the three cases have one thing in common: the refusal by the state to respect the right of citizens to their own opinion and their right to express it publicly. If one can agree with the ban on the Communist Party in some former Soviet republics (in the Ukrainian case of Russian military aggression, all the more so), because this party organized crimes against humanity, one cannot agree with restricting the rights of citizens to publicly express their political views, whatever they may be. This is a violation of a fundamental human right, perhaps the most important one for democracy.

The danger of the communist legacy is not that exotic enthusiasts of totalitarianism sing praises to the Soviet system and its executioners, but that the new post-Soviet states absorb the ideological intolerance inherent in the Soviet regime and transfer it into their legislation and judicial practices. Even in some Baltic republics, which would seem to be firmly set on the path of democracy, freedom of speech is restricted for ideological reasons.

The Lithuanian Criminal Code (Article 170) criminalises the approval, denial or belittling of the crimes of Nazi Germany and the Soviet Union. That is, for expressing opinions on the subject of history. Punishment is up to two years’ imprisonment. The Criminal Code of Latvia (Article 74-1) criminalises the justification of the war crimes of the USSR and Nazi Germany, the denial of genocide and belittling the crimes against the Republic of Latvia and its residents. Punishment is up to five years’ imprisonment. The Armenian Criminal Code criminalists ‘acts aimed at justification, approval, mitigation or denial of genocide’ as well as ‘crimes against peace and the security of humanity.’ Punishment is up to four years’ imprisonment. The Criminal Code and the Law on freedom of expression in Moldova criminalises Holocaust denial and the propaganda of xenophobia, racism and fascism. It is not even worth talking about the dictatorial regimes of Azerbaijan, Belarus, Russia, and Turkmenistan. In these countries there are both a plenitude of laws restricting freedom of speech as well as an arbitrariness in law enforcement practice that takes no laws into account.

In introducing such norms into national law, legislators of the former Soviet republics refer, among other things, to the European experience of outlawing Holocaust denial. Of course, in criminalising wilful and arbitrary interpretations of historical events, European law departs from the principles of freedom of speech. This is not good and sets a bad example for others, but in a stable democracy it is difficult for judicial or police arbitrariness to gain the upper hand when they face numerous civil society and public institutions that ensure the well-known system of checks and balances.

What this practice leads to in weak democracies or authoritarian regimes can be seen in the example of Russia. Here anyone who disagrees with state policy can be labelled a fascist, a Nazi, a foreign agent or a national traitor. There is no one to restrain the appetites of the oppressors in such a system and the sentences handed down to the ‘enemies of the state’ are no laughing matter. According to the well-known American proverb, you can take the person out of the village, but you cannot take the village out of the person. Alas, this is also fully applicable to the post-Soviet states: they managed to get out of the USSR, but it has not proved so easy to eradicate the Soviet experience from themselves.

Translated by Simon Cosgrove

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