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CONSTITUTIONAL DEFENCE AGAINST THE "ENEMIES" OF DEMOCRACY: THEORETICAL CONSIDERATIONS AND THE RUSSIAN EXPERIENCE
TATIANA KHRAMOVA, National Research University Higher School of Economics (Moscow, Russia)
ALEXANDRA TROITSKAYA,
Lomonosov Moscow State University (Moscow, Russia)
https://doi.org/10.17589/2309-8678-2020-8-2-28-48
Democratic constitutional order is occasionally threatened by anti-democratic forces, and thus, requires special protection. The concept of militant democracy has been developed to provide adequate defensive mechanisms. In this article, we discuss positive aspects of their application, but also highlight the risks of abusing these defensive mechanisms. Essentially, the problems are associated with narrowing the political space and favouring the dominant political force. Fragile democracies, including Russia, are particularly vulnerable to such exposure. A targeted study of Russian legislation and the caselaw of the Constitutional Court of the Russian Federation has allowed us to identify the prerequisites for effective implementation of the doctrine of self-defence in line with the principles of constitutionalism.
Keywords: militant democracy; constitutional self-defence; political competition; Constitutional Court of the Russian Federation;proportionality.
Recommended citation: Tatiana Khramova & Alexandra Troitskaya, Constitutional Defence Against the "Enemies" of Democracy: Theoretical Considerations and the Russian Experience, 8(2) Russian Law Journal 28-48 (2019).
Table of Contents
Introduction
1. Theoretical Framework: The Doctrine of Constitutional Self-Defence
1.1. Contouring Political Space
1.2. Emergence and Justification of Militant Democracy
2. Real and Fictitious "Enemies" of the Russian Constitutional Order
2.1. Constitutional and Legislative Measures That Defend the Democratic Order
2.2. Caselaw of the Russian Constitutional Court
2.3. Understanding the Risks
3. Making Use of the Self-Defence Doctrine in Russia: Preconditions Conclusion
Introduction
Constitutions are meant to perform two contradictory functions: establish and protect a solid democratic structure of the state and at the same time provide a framework for democratic politics. Striving at a high level of legal stability, they simultaneously encourage a certain degree of vibrancy and unpredictability in the political sphere as a manifestation of freedom, pluralism and inevitability of change. There may be periods in the history of a constitutional state when it is swamped with structural reforms or fierce political competition, and it is a function of a constitution to ensure that the cornerstones of democracy and rule of law survive through any internal transformation. Therefore, constitutional systems necessarily include mechanisms of self-defence.
The dilemma is quite evident and has revealed itself in many countries over the past century. As a rule, a democratic system is capable of protecting itself through various democratic mechanisms (free elections, free speech, a right to protest, etc.). However, when "enemies" of democracy gain power, they can use democratic instruments to destroy the constitutional order from within. The main concern is to strike a fair balance between offsetting anti-democratic forces (usually through restrictions of fundamental political rights) and preserving the democratic nature of the state. Overcoming this complexity runs into obvious risks of favouring one good cause to the detriment of the other.
Application of the doctrines of "self-defence" and "militancy" is troublesome for several reasons. First of all, the image of an "enemy" is country-specific, and invokes different responses in different jurisdictions. This factor makes the creation of a single normative theory of constitutional self-defence extremely challenging.'
' Jan-Werner Müller, Militant Democracy in The Oxford Handbook of Comparative Constitutional Law 1253, 1254 (M. Rosenfeld & A. Sajo (eds.), Oxford: Oxford University Press, 2012).
Secondly, there is a possibility of abusing the militant rhetoric and turning it into an instrument of rights repression. The concept of constitutional self-defence must confine itself to the framework of constitutionalism and rule of law which serve the highest purpose of securing individual freedom.
Finally, judicial institutions may be tempted to use militant rhetoric to justify excessive restrictions of political rights instead of applying a proper proportionality test and establishing the seriousness of a threat and the appropriateness of a restrictive measure. To avoid this risk, courts are not to trust the government that automatically prioritizes preservation of democracy (here defined as state interests) over fundamental rights. Conversely, they bear an increased burden of questioning every case of an intrusion.
This modest contribution aims at uncovering the risks of using defensive mechanisms as a justification for restricting political rights. We specifically focus on challenges that countries with fragile democratic institutions, such as Russia, face when they employ militant rhetoric. To this end, we analyse the Russian approach to restricting rights for the purpose of fighting the"enemies" of the democratic state. The article is comprised of three parts. Part 1 introduces the doctrines of constitutional self-defence and militant democracy and discusses the notion of an"enemy" of democracy. Part 2 gives a brief overview of the use of the doctrine in Russian legislation and the caselaw of the Russian Constitutional Court (hereinafter the RCC). The necessary conditions for effective self-defence of the constitutional order are discussed in Part 3. in the end, we present preliminary conclusions regarding concerns and possibilities of incorporating militant rhetoric into the constitutional court's reasoning in countries where political rights remain vulnerable.
1. Theoretical Framework: The Doctrine of Constitutional Self-Defence
1.1. Contouring Political Space
The ideas of constitutionalism that had spread during the Enlightenment in the Euro-Atlantic region, and later in a wide range of countries around the world, were associated with the adoption of a constitution that restricted state power and, thus, ensured the protection of human rights. Under constitutionalism, fundamental principles, such as the rule of law (supremacy of prescriptive constitution and police governed by law and independent judicial control), democracy, individual rights, and separation of powers, prevail over political interests.2
Constitutionalism is essentially a humanistic idea. Not every document called a "constitution" actually performs its main function, which is to restrict state power in
2 See Louis Henkin, A New Birth of Constitutionalism: Genetic Influences and Genetic Defects in Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives 39, 40-42 (M. Rosenfeld (ed.), Durham: Duke University Press, 1994).
order to preserve individual freedom. Constitutions that "legitimize" authoritarian or totalitarian regimes (nominal constitutions), or constitutions that contain advanced provisions but remain nothing more than a beautiful façade (facade or sham constitutions), cannot be recognized as being in line with constitutionalism.3
Accordingly, ever since the rise of constitutionalism, the task of protecting democratic constitutional values through regulation of political participation remains acute. The relevant guarantees include provisions that prevent both the paralysis of power and its usurpation, mechanisms of constitutional political and legal responsibility, resistance to oppression, rules of operation in the state of emergency, special procedures for changing the constitution, constitutional review, etc.
The fundamental challenge is safeguarding the constitutional system as a whole. However, abuse of particular elements of constitutional order may threaten the entire system. Democratic procedures and instruments that protect human rights, especially political rights, are occasionally misused to endanger the entire constitutional system. But restrictions of democratic procedures and political rights of citizens may also harm democracy and constitutional design. Hence, there is a demand for an additional workable normative concept of self-defence, which simultaneously sets forth the limits of such self-defence.
A key concept aimed at establishing the limits of political participation in order to maintain the strategic prospects for political competition is militant democracy. This concept has been used under different names; its content has turned out to be broad-ranging and flexible, and thus, suitable for different jurisdictions and different historical periods and settings.
We use the concept of militant democracy as a starting point in the analysis of mechanisms of protection of constitutional order, because it opens up the discussion about the dialectically contradictory idea of "self-defence" in constitutional law.
Further, we analyse the idea of militant democracy, its justification and limits, in order to understand whether this concept and, more broadly, the idea of self-defence of the constitutional system, amount to a consistent normative concept that may be effectively used to preserve the democratic constitutional order.
1.2. Emergence and Justification of Militant Democracy
The principle of ideological pluralism, which lies in the foundation of almost every modern constitutional state, presupposes full participation of various actors in political life, and therefore, requires a set of political rights. it includes voting rights, freedom of speech, assembly, and freedom to create associations, including political parties, which are of particular significance due to their role as "mediators" in the formation of the will of the people or particular social groups, as well as organization and functioning of public authorities.
3 See Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56(4) American Political Science Review 853 (1962); Richard Sakwa, Russian Politics and Society (3rd ed., London: Routledge, 2002).
The significance of the normative and behavioural structure of the political system was "crystallized" in most states in the 20th century. At the same time, the tragic events of that century led to an understanding that democratic mechanisms may be utilized by forces that strive to destroy the democratic and constitutional foundations of the state and gain power.
The consistent form of the legal concept of militant democracy that clearly articulated the risks of underestimating the destructive effect of such forces was created by Karl Loewenstein,4 a German scientist who moved to the USA after Hitler had come to power, in the 1930s.
Loewenstein observed the extensive empirical material associated with the political map of Europe after the First World War and singled out specific features of anti-democratic pattern of political organization which he called fascism. in particular, according to him,
expressed in an empirical formula, such government is a supersession of constitutional government by emotional government[;]5
fascism is not an ideology and not even a realistic constructive program but a political technique and
this technique could be victorious only under the extraordinary conditions offered by democratic institutions ... Democracy and democratic tolerance have been used for their own destruction.6
in this situation, the logical conclusion is that democracy must protect itself; K. Loewenstein wrote about the need to combine political and legislative measures for that task of self-protection.7
The idea of self-defence looks intuitively attractive, at least when it refers to an individual. Ability to react to danger is a matter of justice. However, the situation is by no means straightforward when we apply it to the society as a whole. There are many ways to understand democracy, but basically it's the government by the people. The concept of militant democracy puts the emphasis on the problem of the content of democracy as such. Does democracy mean complete neutrality with respect to the substance of political views and is it guided by the will of the majority, whatever this will may be? Or do we perceive democracy in absolute terms as a value and therefore
4 Karl Loewenstein, Militant Democracy and Fundamental Rights, I, 31(3) American Political Science Review 417 (1937).
5 Id. at 418.
6 Id. at 423.
7 Id. at 428.
accept only the will that is aimed at preservation of democracy? Should all political players enjoy democratic freedoms on equal terms, or are filters permissible?
in essence, this is the problem of "political relativism versus political choice."8 Prioritizing some political agendas over others requires proving that the chosen program is good, and the rest are bad from an academic or ethical point of view. The program that destroys democracy is definitely bad for democracy, but this is not an answer to the question of why democracy should be understood as a concept that certainly requires protection at the cost of refusing full equality in the enjoyment of political freedoms which are essential for democracy. There are authors who defend the political relativism of democracy9 as well as authors who do not question the need to protect democracy and regard such protection as a public and political matter which must be secured by special mechanisms.10 One way or another, as J.-W. Müller rightly points out,
whether democracy should ever become militant will of course depend
significantly on what one thinks democracy actually is at the first place.11
in fact, the design of militant democracy brings us back to a long-lasting debate about the advantages of democracy compared to other political regimes (with a whole list of arguments developed by political and legal scholars) and the meaning of its content. As we do not have a chance to go into the details of this discussion, we only note that democracy supports development in the sense that it gives losers an opportunity to win in the future and maintains the value of minorities. Quite the opposite, the "enemies" of democracy may change the situation to keep the losers completely out of the game;12 not only the minority, but also the majority risks to lose its leverage. Besides, the 20th century advocates of democracy received strong empirical evidence of the need to combat undemocratic regimes that bring incalculable, quite tangible disasters to people.13 According to one of the scholars whose work was published in 1943,
8 In a different version, it is regarded as a distinction between procedural and substantive democracy. See Paul Harvey, Militant Democracy and the European Court of Human Rights, 29(3) European Law Review 407, 408 (2004).
9 See, e.g., Hans Kelsen, Absolutism and Relativism in Philosophy and Politics, 42(5) American Political Science Review 906 (1948).
10 See Andras Sajö, The Self-Protecting Constitutional State, 12(2/3) East European Constitutional Review 78 (2003).
11 Jan-Werner Müller, Protecting Popular Self-Government from the People? New Normative Perspectives on Militant Democracy, 19(1) Annual Review of Political Science 249 (2016).
12 Id.
13 About the significance of empiricism regarding democracy, see Felix Oppenheim, Relativism, Absolutism, and Democracy, 44(4) American Political Science Review 951 (1950).
What we have learned from the bitter experience of the last decades is that the meaning of democratic tolerance is not to tolerate the intolerant, but that the citizen of our commonwealth has a perfect right to hate and to exclude those who wish to misuse the methods of freedom for abolishing freedom.14
it is not surprising that under these circumstances, the concept of militant democracy became very popular, particularly among some of the founders of postwar constitutions. in the end, its supporters followed a pragmatic idea, according to which freedom should not be an ax that chops down democracy which has insured this freedom. Both in the literature and in court decisions, the idea articulated that a constitution is not a suicidal pact.15
Another wave of militant democracy justifications emerged after the collapse of anti-democratic regimes in the end of the 20th century (for example, those of the Soviet bloc) in the context of adopting new constitutions that enshrine the principles of rule of law and democratic state. Many of these constitutions emphasized the aspiration to transition away from authoritarian practices and recognized the value of adequate party building. Some authors directly link the transition period with militant democracy.16
The concept of militant democracy was not justified as a single normative instrument. in fact, the effectiveness and adequacy of this doctrine depends on the definition and list of enemies of democracy and the state reaction to the actions of these enemies.
The answer to the question about the specific enemies of democracy is far from obvious. Suggested definitions of militant democracy tend to focus on the meaning of the word "militant." Some authors focus on the essence of the strategy. P. Macklem with reference to K. Loewenstein writes about
a form of constitutional democracy authorized to protect civil and political freedom by preemptively restricting the exercise of such freedoms.17
14 See Karl Mannheim, Diagnosis of Our Time: Wartime Essays of Sociologist. Vol. III 49 (London: Kegan Paul, Trench, Trubner & Co., 1943).
15 See Terminiello v. Chicago, 337 U.S. 1 (1949) (Mr. Justice Jackson, dissenting); Richard A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (New York: Oxford University Press, 2006).
16 See Ruti Teitel, Militant Democracy: Comparative Constitutional Perspectives, 29(1) Michigan Journal of International Law 49 (2007).
17 Patrick Macklem, Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination, 4(3) International Journal of Constitutional Law 488 (2006).
However, some authors also mention "targets" of the strategy - anti-democratic parties,'8 or anti-democratic forces'9 running for elections. A. Sajo and R. Uitz describe militant democracy as
extraordinary preventive action against those enemies of democracy who seek to destroy it through using fundamental rights and political representation to gain access to political power to the exclusion of all others.20
According to S. Tyulkina
[f]irst, militant democracy is about pre-emption, which means that states are not expected to wait until those who aim to destroy or overturn the system have real opportunity to do so; secondly, such pre-emptive measures are aimed against a specific "enemy": individuals or groups of individuals aiming to harm the democratic structures of the state; thirdly, such "enemies" aim to harm democratic structures by abusing rights and privileges afforded to them by democracy and an open society.2'
Apparently, this is the most comprehensive definition indicating the enemies of democracy.
But practice requires more specific answers to the question who falls under these theoretical descriptions. initially, Loewenstein discussed the need to counteract "fascism in the guise of a legally recognized political party." To clarify, the notion of an "enemy" was tied to forces that replace the rule of law by emotionalism. The author pointed out the danger of anti-democratic use of various freedoms (including freedom of speech and assembly), however, special emphasis was placed on the use of these freedoms by political associations capable of participating in parliamentary process and exercising state power directly.22
Later, the notion of "enemies" of democracy was clarified. Loewenstein used the term fascism in a fairly broad sense, but empirically his research related to interwar Europe and right-wing nationalist parties. Obviously, not only fascist forces, but also other totalitarian ideologies may threaten democracies. Moreover, parties embracing
18 See Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36(1) Harvard International Law Journal 1, 6 (1995).
19 Samuel Issacharoff, Fragile Democracies, 120(6) Harvard Law Review 1405, 1409 (2007).
20 András Sajó & Rénata Uitz, The Constitution of Freedom: An Introduction of Legal Constitutionalism 433 (New York: Oxford University Press, 2017).
21 Svetlana Tyulkina, Militant Democracy: An Alien Concept for Australian Constitutional Law?, 36(2) Adelaide Law Review 517, 520 (2015).
22 See Loewenstein 1937.
any ideology attacking the democratic constitutional order, may constitute a real danger.
Today, militant democracy is most commonly understood as the fight against radical movements, especially political parties, and their activities.23
Risks may be associated not only with the peculiarities of the socio-political philosophy embodied in the activities of parties. Among undemocratic forces that actualize the problem of militant democracy, separatism,24 religious fundamentalism, terrorism25 and political violence26 are usually mentioned. These risks are not necessarily isolated from each other.
Thus, understanding of the enemies of democracy may vary.27 Moreover, each community struggles with its own problematic antidemocratic agenda, and the severity of every particular risk changes over time. For this reason, the doctrine of self-defence does not contain a universal recipe for risk evaluation. The solution is to turn on the defence mechanism only when risk for democratic order is real, clear and imminent. But how can we identify if a specific enemy has grown into a «monster» that creates real, clear and inevitable danger? On the one hand, if the risk is underestimated, the doctrine does not fulfil its purpose. On the other hand, if the risk is overrated, then the doctrine can be misused, and can lead to an unjustified restriction of political rights. in both scenarios, the doctrine does not defend democracy, as Loewenstein conceived it, but rather undermines democracy.
Militant democracy has become "a transplant" for many jurisdictions. its attractiveness to the so-called new democratic states can be explained by their desire to defend immature institutions from various forces that may strive to undermine them and restore an anti-democratic regime. The paradox, however, is that the concept of militant democracy for new democracies may become a tool to weaken the institutions rather than protect them from actual "enemies." Recent constitutional developments in Russia indicate the seriousness of this paradox. The phenomenon of misinterpretation of risks and defensive mechanisms in Russia will be analyzed in more details to show how the weak spots of the doctrine can make it a more serious "enemy" than the ones it is intended to fight.
23 Andras Sajö, Militant Democracy and Transition Towards Democracy in Militant Democracy 209, 210 (A. Sajo (ed.). Amsterdam: Eleven International Publishing, 2004).
24 See Issacharoff 2007, at 1430.
25 See Tyulkina 2015, at 523, 528.
26 See Rory O'Connell, Militant Democracy and Human Rights Principles, 1 Constitutional Law Review 84 (2009).
27 The idea that current risks differ from those described by Loewenstein, and that militant democracy might exacerbate, rather than mitigate present risks, is expressed in Tom Ginsburg & Aziz Z. Huq, How to Save a Constitutional Democracy (Chicago: University of Chicago Press, 2019).
2. Real and Fictitious "Enemies" of the Russian Constitutional Order
2.1. Constitutional and Legislative Measures That Defend the Democratic Order
The Constitution of the Russian Federation of '993 proclaims political diversity and multi-party system (Art. ' 3), as well as a right to association (Art. 30), freedom of speech and press (Art. 29), and freedom of assembly (Art. 3'). The Constitution sets forth a number of defensive mechanisms which are aimed to ensure that political rights and freedoms are not abused to the detriment of the democratic regime. Article 55 sec. 3 of the Constitution allows the state to restrict rights by federal laws to the extent necessary for the protection of the fundamental principles of the constitutional system. Article '3 sec. 5 establishes a ban on the creation and activities of associations (including political parties)
whose aims and actions are targeted at a forced change of the fundamental principles of the constitutional system and at violating the integrity of the Russian Federation, undermining its security, setting up armed units, and instigating social, racial, national and religious hatred.
Article 29 sec. 2 states that the propaganda and incitement to social, racial, national or religious hatred and strife shall not be allowed. Article 3' allows only peaceful unarmed assemblies.
Constitutional provisions are specified in numerous legislative measures protecting the constitutional order from "enemies" of democracy. We observe that the list of enemies tends to expand over time and stretches from terrorists and extremists to organizations that are funded from abroad. Protective measures also vary from criminal and administrative liability to preventive limitations on free exercise of certain rights. While some restrictions are obvious and universal, others raise reasonable questions and, thus, become subject to constitutional review.
in 2002, Russia adopted a Federal Law on counteracting the extremist activity which sets forth the legal and organizational framework for fighting extremism and establishes liability for extremist actions. Article 9 of this Law states that an association may be dissolved if it engages in extremist activity which has caused violation human rights, personal injury, injury of health, the environment, public order, public safety, property, legitimate economic interests of individuals and/or legal entities, society and the state or has created a real threat of causing such harm.28
28 For example, the political party "Volya" ("the Will") was banned due to the fact that the content of the leaflet it distributed had signs of extremism. Решение Верховного Суда Российской Федерации от 9 августа 2016 г. № АКПИ16-735 [Decision of the Supreme Court of the Russian Federation of 9 August 2016 No. AKPI16-735] (May 15, 2020), available at https://legalacts.ru/sud/reshenie-verkhovnogo-suda-rf-ot-09082016-n-akpi16-735/.
This measure is a typical solution prescribed by the doctrine of militant democracy to eliminate internal "enemies."
if an organization is not extremist but undermines the stability of a democratic regime by spreading the information that vigorously disrespects the government and the Constitution, Russian legislation also considers it an "enemy" that deserves to be held liable under the Code of Administrative Offences (Art. 20.1 secs. 3-5 of the Code).
in recent years, Russian authorities have shifted their regulatory focus to a new group of "enemies" and adopted extensive protective measures to fight foreign influence on Russian democratic order. To this end, they have introduced a new status of a "foreign agent" for non-governmental organizations that engage in political activity and receive foreign funding. These organizations are subject to additional control and liability. The status of a "foreign agent" has been extended to media organizations and even individuals who distribute information and receive foreign funding.29
The Russian legislation is intolerant to the mere existence of potential "enemies" of a democratic regime. it introduces preventive measures that aim at limiting the number of such "enemies" and/or keeping them under strict state supervision that does not allow them to gain public support. in 2020, some of the fears penetrated the constitutional text in a bundle of constitutional amendments aimed at strengthening the sovereignty of the Russian state.30
A fair number of protective measures (including prohibition of the creation of political parties on the grounds of professional, racial, national or religious affiliation, prohibition of regional parties, imposition of a "foreign agent" status on NGOs, restrictions of the right to hold peaceful assemblies, restrictions on foreign ownership in media corporations, etc.) have been questioned by the legal community and
29 Федеральный закон от 25 ноября 2017 г. № 327-Ф3 «О внесении изменений в статьи 10.4 и 15.3 Федерального закона «Об информации, информационных технологиях и о защите информации» и статью 6 Закона Российской Федерации «О средствах массовой информации»» // Собрание законодательства РФ. 2017. № 48. Ст. 7051 [Federal Law No. 327-FZ of 25 November 2017. On Amendments to Articles 10.4 and 15.3 of the Federal Law "On Information, Information Technologies and the Protection of Information" and Article 6 of the Law of the Russian Federation "On Mass Media," Legislation Bulletin of the Russian Federation, 2017, No. 48, Art. 7051]; Федеральный закон от 2 декабря 2019 г. № 426-ФЗ «О внесении изменений в Закон Российской Федерации «О средствах массовой информации» и Федеральный закон «Об информации, информационных технологиях и о защите информации»» // Собрание законодательства РФ. 2019 (ч. 5). № 49. Ст. 6985 [Federal Law No. 426-FZ of 2 December 2019. On Amendments to the Law of the Russian Federation "On Mass Media" and the Federal Law "On Information, Information Technologies and the Protection of Information," Legislation Bulletin of the Russian Federation, 2019 (Part 5), No. 49, Art. 6985].
30 Пояснительная записка к проекту закона Российской Федерации о поправке к Конституции Российской Федерации № 885214-7, внесенному в Государственную Думу 20 января 2010 г. [Bill No. 885214-7 on Amendments to the Constitution of the Russian Federation (introduced to the State Duma on 20 January 2020) and Supporting Documents] (May 15, 2020), available at https:// sozd.duma.gov.ru/bill/885214-7.
challenged before the RCC. Each time the RCC reviewed these restrictions, it referred to the logic of constitutional self-defence.
2.2. Caselaw of the Russian Constitutional Court
in this article, we only have an opportunity to briefly discuss some of the Judgments of the RCC that review the constitutionality of restrictions of political rights and present the Court's attitude to the doctrine of constitutional self-defence. The general standpoint of the RCC is that the Russian society has not yet gained solid experience of democratic existence,3' and therefore, demands that special defensive mechanisms be adopted to stop the internal and external "enemies" from distorting the fragile constitutional order.
When the RCC reviews restrictions of a right to form a political party,32 or a right to hold a public assembly,33 or a right to freely distribute information,34 it always refers to the notions of risks and threats to democratic order. The gravity of such risks, however, is rarely evaluated by the RCC. For example, regarding the right to hold public assemblies, the Court
takes into account the fact that realization of this right is accompanied by obvious risks that become distinctly much more evident when the organizers fail to perform their obligations.35
31 Постановление Конституционного Суда Российской Федерации от 15 декабря 2004 г. № 18-П // Собрание законодательства РФ. 2004. № 51. Ст. 5260 [Resolution of the Constitutional Court of the Russian Federation of 15 December 2004 No. 18-P, Legislation Bulletin of the Russian Federation, 2004, No. 51, Art. 5260].
32 Id.; Постановление Конституционного Суда Российской Федерации от 1 февраля 2005 г. № 1-П // Собрание законодательства РФ. 2005. № 6. Ст. 491 [Resolution of the Constitutional Court of the Russian Federation of 1 February 2005 No. 1-P, Legislation Bulletin of the Russian Federation, 2005, No. 6, Art. 491]; Постановление Конституционного Суда Российской Федерации от 16 июля 2007 г. № 11-П // Собрание законодательства РФ. 2007. № 30. Ст. 3989 [Resolution of the Constitutional Court of the Russian Federation of 16 July 2007, Legislation Bulletin of the Russian Federation, 2007, No. 30, Art. 3989].
33 Постановление Конституционного Суда Российской Федерации от 14 февраля 2013 г. № 4-П // Собрание законодательства РФ. 2013. № 8. Ст. 868 [Resolution of the Constitutional Court of the Russian Federation of 14 February 2013 No. 4-P, Legislation Bulletin of the Russian Federation, 2013, No. 8, Art. 868]; Постановление Конституционного Суда Российской Федерации от 10 февраля 2017 г. № 2-П // Собрание законодательства РФ. 2017. № 9. Ст. 1422 [Resolution of the Constitutional Court of the Russian Federation of 10 February 2017 No. 2-P, Legislation Bulletin of the Russian Federation, 2017, No. 9, Art. 1422].
34 Постановление Конституционного Суда Российской Федерации от 17 января 2019 г. № 4-П // Собрание законодательства РФ. 2019. № 4. Ст. 359 [Resolution of the Constitutional Court of the Russian Federation of 17 January 2019 No. 4-P, Legislation Bulletin of the Russian Federation, 2019, No. 4, Art. 359].
35 Resolution of the Constitutional Court of the Russian Federation of 14 February 2013 No. 4-P, supra note 33, para. 2.4 (emphasis added).
As for the creation of regional parties, the RCC assumes that
they would strive for advocating purely their own, regional and local, interests, which may lead to violation of the integrity of state and the unity of the system of government which are the foundations of Russian federalism.36
The main consequence of such an acknowledgment of risk from small, religious or regional parties, public manifestations or foreign investments into Russian civil society is that the legislator is entrusted with wide discretionary powers to regulate access to the political arena and restrict forms of expression of dissent. The lack of actual risk assessment creates a vicious circle, when a society's lack of democratic experience leads to a system of constraints, which in its turn does not allow the public to experience the democratic existence.
it would be unjust to say that the judges empower the legislator with a carte blanche to eliminate political freedoms if it wishes to do so. The RCC has struck down or reinterpreted the most outrageous restrictions (for example, it did not approve of automatic criminal liability for consequent violations of the rules on public assemblies,37 or demanded clarification of the status of a shareholder of a Russian media or a broadcasting organization who has a foreign citizenship38). But it would be fair to say that when a restriction of a political right is imposed in order "to defend the constitutional order," the RCC usually finds no need to challenge the existence or the gravity of a threat.
This approach has been questioned by the RCC Justice Konstantin Aranovsky in his Opinion to the Judgment of the RCC of 17 January 2019 No. 4-P. The Justice asserted that restrictions of fundamental rights may only be justified when there is an actual threat and a real danger to constitutional values, and it is the task of the RCC to challenge the gravity of such risks. He mentioned that there is no room for emotional arguments based on "panic and phobia" in the legitimate justification of intrusion with fundamental constitutional rights, that foreign nationality of a media shareholder does not automatically make him an "enemy" of the Russian constitutional order which is an integral part of international community, and that basic rights should have priority over a vague public interest of risk prevention.
Unfortunately, this critical approach does not penetrate the majority reasoning of the RCC. Moreover, the indisputability of constitutional self-defence doctrine prevents the Court from applying the proportionality test to the restrictions in
36 Resolution of the Constitutional Court of the Russian Federation of 1 February 2005 No. 1-P, supra note 32, para. 3.2 (emphasis added).
37 Resolution of the Constitutional Court of the Russian Federation of 10 February 2017 No. 2-P, supra note 33.
38 Resolution of the Constitutional Court of the Russian Federation of 17 January 2019 No. 4-P, supra note 34.
question, although Article 55 sec. 3 of the Constitution calls for such application. in the end, the doctrine of constitutional self-defence is used to harm the democratic system rather than to rescue it.
2.3. Understanding the Risks
Due to the fact that democracy can destroy itself from within, the lack of militancy may be disastrous for the state. At the same time, militancy means a significant modification of the very concept of democracy, therefore, it is obvious that too much militancy is also a threat. There are at least two categories of arising risks.
The first concern is that the emphasis on substantive, rather than purely procedural, understanding of democracy limits access to the political sphere "even in the face of popular support for the political actors which are about to be excluded."39 This situation detects a certain degree of distrust towards the citizens' ability to make the "right" decisions and partially rejects "self-training" of the people who are supposed to gradually learn to distinguish between "good" and "bad" parties, words and activities. The RCC explicitly mentions that the legislator (not civil society) is responsible for "structuring the political space" and avoiding the "fragmentation of political forces" or "creation of numerous artificial (especially during election campaign) small parties that would not last for a long time and thus are incapable of fulfilling their purpose as non-governmental organizations within the political system."40 This line of reasoning shifts the responsibility from the civil society to the state, leaving the citizens with very few chances to learn from their own mistakes, even when these mistakes are not fatal or even considerable.
The severity of risk depends on the context of application of defensive mechanisms. if the situation involves the reaction to actual "enemies" of democracy (whose hostility is not disputed), insuring the society against a serious threat does not amount to a misuse or act of paternalism. A sovereign that is open to learning from mistakes is "forced to taking the necessary precautions so that the horizon remains open for new information."4' Democracy should be preserved not because it represents the final knowledge, but because it recognizes that there is no final knowledge, and (as opposed to undemocratic regimes) leaves room for new learning processes. However, excessive "sterilization" of political space not linked to any serious threat, only harms the political competition.
Here we run into the second kind of risk. Militant democracy requires that protective measures are preventive, mainly because a subsequent reaction may arrive too late to cope with the danger. A state may try to act bona fide and defend
39 Sajó & Uitz 2017, at 433.
40 Resolution of the Constitutional Court of the Russian Federation of 1 February 2005 No. 1-P, supra note 32, para. 3.1.
41 See Günter Frankenberg, The Learning Sovereign in Constitutionalism: New Challenges: European Law from a Nordic Perspective 17, 19 (J. Nergelius (ed.) Leiden, Boston: Martinus Nijhoff Publishers, 2008).
itself from what it considers a true threat to democracy. However, democracy by no means assumes the sterility of political arena or the absence of discontent, or renunciation of diversity. Accordingly, protecting and at the same time preserving freedom and plurality of ideas is an important task which raises questions rather than gives answers. At what point should measures be taken against a threat that is real, but not yet realized? What is meant by "harm" to democratic structures? How can we differentiate abuse of rights from proper exercise of rights? Hence, it becomes clear that even in a situation of bona fide threat, the use of self-defence doctrine must be supplemented by additional mechanisms of constraining state power.
What makes the problem of threat assessment even more urgent is the temptation to use militant democracy improperly (abuse of protection instead of protection against abuse). S. issacharoff is right to point out the need to protect democracy against antidemocratic majoritarian parties;42 however, an even more serious problem arises when an anti-democratic majoritarian party resorts to the concept of militant democracy and political self-defence to satisfy its private interests. if political elites want to retain power and understand that rejection of the procedural elements of democracy immediately throws them into the rank of non-democratic forces, then appealing to the need of getting rid of "enemies" becomes a very predictable strategy.43 The question, however, is whether the identified"enemies" threaten democracy and constitutionalism, or only the party in power. in practice, the answer to the question what militant democrats really care about - preserving democracy or eliminating competitors - is not obvious. Some authors rightly bring up the alarming concern:
provisions of militant democracy may have the effect opposite to the one intended: instead of protecting democracy against its supposed enemies, they may provide a means for those empowered to make the relevant decisions to arbitrarily exclude an indeterminately expansive range of political competitors from the democratic game, thereby restricting the democratic nature of the regime.44
Russian experience vividly shows that if the doctrine claims to serve the democratic order, the above-mentioned risks are to be taken seriously and chances for abusing the doctrine must be severely limited.
42 See Issacharoff 2007, at 1442.
43 It is therefore proposed not to leave militant democracy measures at the discretion of political actors but build them as much as possible into the constitution. See Müller 2016. However, it is hardly possible to completely exclude discretion in such matters.
44 See Carlo Invernizzi Accetti & Ian Zuckerman, What's Wrong with Militant Democracy, 65(1) Political Studies 182, 183-184 (2017). This article highlights "an irreducible element of arbitrariness in whichever way the decision is taken as to what constitutes an 'enemy' of democracy." See also Miles Maftean, The Abuse of Militant Democracy: Safeguarding Democratic Institutions in Central Europe, Visegrad Insight, 5 March 2019 (May 15, 2020), available at https://visegradinsight.eu/the-abuse-of-militant-democracy/.
3. Making Use of the Self-Defence Doctrine in Russia: Preconditions
When it comes to misuses (or abuses) on the part of political branches of government, the obvious solution is to invoke the power of the judiciary. in order to prevent defensive rhetoric from becoming a toolkit to fight competitors, implementation of appropriate measures must be supervised by competent judicial review.
However, the Russian experience indicates that this solution only holds under a number of important conditions. First of all, the judiciary must be independent, strong, knowledgeable and immune to political influence. if a court is vulnerable (for example, the leading party (coalition) has a majority sufficient to change the status of the court or even to abolish it), it is unlikely to challenge the restrictive measures adopted by the government.
in Russia, institutional independence of the Constitutional Court is highly questionable. The legal mechanisms that protect the high status and independence of the judges and ensure the existence of the Court itself only work for as long as the legislative majority demonstrates the good will to abide by them. However, the concentration of political power is so high that it does not take too much effort to change the location of the Court, its composition or powers.45 There is a recent precedent of"successful" elimination of one of the highest courts in Russia (Supreme Arbitration Court of the RF)46 by a constitutional amendment that did not trigger any considerable protest even in the professional community. There is no certainty that the same thing would not happen to the Constitutional Court itself. in any case, it would be extremely difficult for the RCC to interrupt the process of its own
45 Федеральный конституционный закон от 5 февраля 2007 г. № 2-ФКЗ «О внесении изменений в Федеральный конституционный закон «О Конституционном Суде Российской Федерации»» // Собрание законодательства РФ. 2007. № 7. Ст. 829 [Federal Constitutional Law No. 2-FKZ of 5 February 2007. On Amendments to the Federal Constitutional Law "On the Constitutional Court of the Russian Federation," Legislation Bulletin of the Russian Federation, 2007, No. 7, Art. 829] (led to relocation on the RCC from Moscow to Saint Petersburg); Федеральный конституционный закон от 4 июня 2014 г. № 9-ФКЗ «О внесении изменений в Федеральный конституционный закон «О Конституционном Суде Российской Федерации»» // Собрание законодательства РФ. 2014. № 23. Ст. 2922 [Federal Constitutional Law No. 9-FKZ of 4 June 2014. On Amendments to the Federal Constitutional Law "On the Constitutional Court of the Russian Federation," Legislation Bulletin of the Russian Federation, 2014, No. 23, Art. 2922] (allowed the Court to operate with as few as 13 justices instead of 19). The proposed amendment to Article 125 of the Russian Constitution, if adopted in 2020, will further reduce the total number of justices from 19 to 11 and introduce a priori review as a new power of the RCC.
46 Закон Российской Федерации о поправке к Конституции Российской Федерации от 5 февраля 2014 г. № 2-ФКЗ «О Верховном Суде Российской Федерации и прокуратуре Российской Федерации» // Собрание законодательства РФ. 2014. № 6. Ст. 548 [Law of the Russian Federation on Amendment to the Constitution of the Russian Federation No. 2-FKZ of 5 February 2014. On the Supreme Court of the Russian Federation and the Prosecutor Office of the Russian Federation, Legislation Bulletin of the Russian Federation, 2014, No. 6, Art. 548].
weakening or elimination unless the Court turns to substantive constitutional review and extends its power to constitutional amendments.47
Secondly, the court must have a working methodology to resolve cases that invoke the concept of self-defence. The answer to the general question of the necessity and appropriateness of militant measures is country-specific, and depends on numerous factors: the values of democratic constitutional order that are under threat; the nature and meaning of these values in a given society; the seriousness and imminence the threat; the effectiveness of adopted protective measures; the importance of threat prevention and the possibility to leave the right unrestricted.
All these questions are usually considered within the framework of proportionality. The court's task is to apply the test consistently and transparently, and to give answers to all the questions (regarding the legitimate aim of the restriction, the suitability and severity of restriction, proportionality stricto sensu) without skipping any step or arriving at conclusions e without convincing argumentation.
The experience of other jurisdictions shows that it is possible to develop an effective step-by-step methodology for strict judicial scrutiny of defensive measures. For example, the German Federal Constitutional Court (hereinafter the FCC) has adopted a well-structured test of the necessity of a political party ban. in the National Democratic Party case,48 the FCC suggested that in order to dissolve a political party, the Court should be convinced that the party 1) pursues anti-constitutional aims; 2) "seeks" to undermine constitutional order through active behaviour; and 3) has a chance of success. Understanding the importance of respecting the citizens' right to equal participation in the process of forming the political will, on the one hand, and the obligation of the state to preserve free democratic order, on the other hand, the FCC created a very high threshold for interfering with free political competition.49 The approach of the German FCC suggests that a mature democratic constitutional system is capable of sorting out elements that put it in real danger, and that the state should be called upon to intervene with preventive measures only in exceptional cases of systemic failure.
As for the Russian Constitutional Court, its jurisprudence demonstrates that in general terms it embraces the logic of proportionality and applies certain elements of the test. Nevertheless, the application of this test is mainly sporadic, inconsistent
47 The proposed constitutional amendments of 2020 require that the RCC review these amendments and rule on their compatibility with Chapters 1, 2 and 9 of the Russian Constitution. However, it is unclear whether this review will give rise to a permanent power of the RCC or remain a one-time ad hoc measure.
48 Judgment of the Second Senate of 17 January 2017, 2 BvB 1/13 (English translation) (May 15, 2020), available at http://www.bverfg.de/e/bs20170117_2bvb000113en.html.
49 Gelijn Molier & Bastiaan Rijpkema, Germany's New Militant Democracy Regime: National Democratic Party II and the German Federal Constitutional Court's "Potentiality" Criterion for Party Bans, 14(2) European Constitutional Law Review 394, 397 (2018).
and selective. in a sense, we are faced with a paradoxical situation. The RCC has never denied the idea of proportionality, and never cited with the criticism that is attributed to this test. At the same time, as far as the RCC's caselaw is concerned, the principle of proportionality remains essentially undeveloped and underutilized.50
This problem also reveals itself in cases where the state introduces measures prescribed by the doctrine of constitutional self-defence. The lack of methodological coherence creates a risk of arbitrary application of militant measures. To protect political rights from unnecessary interference and enactment of inadequate measures the Court needs to follow a clear verification scheme which allows the state to respond to threats related to the destruction of democracy, but only to them.
Conclusion
Our brief analysis has shown that the doctrines of militant democracy and constitutional self-defence add a new substance to our understanding of democracy. This observation has both positive and negative consequences.
What makes the concepts intuitively and rationally attractive is that they concentrate on the substance of democracy and equip the constitutional system with mechanisms of self-purification. The political competition goes hand in hand with procedural democracy as long as anti-democratic forces are not allowed to dominate the political agenda. The risk that "enemies of democracy" seize the power by making use of democratic procedures is quite serious and typical for every constitutional system. The doctrines under review that focus on substantive rather than procedural aspects of democracy reduce this risk by eliminating the malignant players capable of destroying the entire system from within before they have realized their vicious plans.
Nevertheless, the doctrinal justification of militant democracy and constitutional self-defence has not resulted in an agreement among legal scholars on a preferable theoretical framework for this concept. Neither has it harmonized judicial approaches or developed specific criteria for legitimate ways of applying preventive measures. Moreover, the very idea embodied in the concept of militant democracy raises certain epistemological doubts about the possibility (not to mention the necessity) of creating such a coherent theory and practice.
50 See Постановление Конституционного Суда Российской Федерации от 14 мая 2012 г. № 11-П // Собрание законодательства РФ. 2012. № 21. Ст. 2697 [Resolution of the Constitutional Court of the Russian Federation of 14 May 2012 No. 11-P, Legislation Bulletin of the Russian Federation, 2012, No. 21, Art. 2697]; Постановление Конституционного Суда Российской Федерации от 21 марта 2014 г. № 7-П // Собрание законодательства РФ. 2014. № 13. Ст. 1528 [Resolution of the Constitutional Court of the Russian Federation of 21 March 2014 No. 7-P, Legislation Bulletin of the Russian Federation, 2014, No. 13, Art. 1528]; Постановление Конституционного Суда Российской Федерации от 19 июля 2017 г. № 22-П // Собрание законодательства РФ. 2017. № 31 (ч. 2). Ст. 4984 [Resolution of the Constitutional Court of the Russian Federation of 19 July 2017 No. 22-P, Legislation Bulletin of the Russian Federation, 2017, No. 31 (Part 2), Art. 4984]; and others.
Bearing these complications in mind, it is not clear whether there is room for a general regulatory framework that goes beyond the most basic ideas regarding the concept, or there only exist different forms of militant democracy in different societies without any hope for the development of a profound theory explaining the diverse practice.51
As prescriptive doctrines, militant democracy and constitutional self-defence are quite elusive. Although there are situations that seem obvious (prosecution of terrorists; non-prosecution of dissent that carries no actual threat), most conflicts occur in the dusk zone where evidence is ambiguous, and the line between use and abuse of militancy is incredibly thin.
One of the strategies to prevent the abuse of defensive mechanisms involves treatment of militant democracy measures as potential violations of basic rights and thus subjects to proportionality test. The principle of proportionality provides criteria for interpretation, disciplines political actors, minimizes subjectivism and eliminates obvious cases of abuse. However, conjunction with a traditional test, the value of the concept of militant democracy becomes questionable. If protection of democratic constitutional order is regarded as one of the legitimate aims of restrictions, then the concepts of militant democracy and constitutional self-defence, supposedly, do not add much to the standard analysis of proportionality of aims and means. They only serve as an additional emotional argument that strengthens the state's commitment to democratic values.
Adherence to preventive measures that distort political competition in countries with fragile democratic institutions (particularly courts) raises a number of additional concerns. Firstly, the effectiveness of mechanisms of constitutional self-defence is seriously limited. Defensive measures may be used only as "short-range missiles" to combat anti-democratic forces. If the society does not value democracy and rule of law, militant means become ineffective. Anti-democratic forces are a part of society. The support for such forces is an indicator of problems in society itself, and in the long run, militant measures are not enough to cure these diseases.
Secondly, measures of constitutional self-defence are unlikely to prevent the deterioration of democratic order if authoritarian political forces are already in power. When political power has been monopolized, any strategy aimed at restricting political rights runs into danger of actually helping authoritarian forces. A fair point of scepticism towards militant democracy, expressed by Müller, suggests that
countries which can have militant democracy probably don't need it; whereas those that need it, cannot have it.52
51 Müller 2012, at 1254.
52 See Müller 2016.
This is only half of the trouble. The whole puzzle is that for the states that need militant democracy, available militant measures have nothing to do with democracy. Militant democracy and militant preservation of one's power are not the same things.
in young democracies, such as Russia, the above-mentioned problems are exacerbated by the lack of strong independent judiciary willing to stand up against the abuse of restrictive measures by a dominant force that tries to preserve its share in the political market. That is why we are moderately skeptical about the use of militant rhetoric as a justification for restricting political rights in Russia. The doctrine of constitutional self-defence will favour democratic development and not serve as a carte blanche for narrowing down political competition only if the RCC applies it in combination with thorough substantive checks, such as proportionality test and risk assessment.
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Information about the authors
Tatiana Khramova (Moscow, Russia) - Associated Professor, Law Faculty, National Research University Higher School of Economics (3 Bolshoy Tryokhsvyatitelsky Pereulok, Moscow, 109028, Russia; e-mail: [email protected]).
Alexandra Troitskaya (Moscow, Russia) - Associated Professor, Law Faculty, Lomonosov Moscow State University (1 Leninskie Gory, Moscow, 119991, Russia; e-mail: [email protected]).
