In December of 1825, a group of roughly 3,000 men assembled in Senate Square in Saint Petersburg to protest the coronation of Nicholas I, who stepped forward to claim Alexander I’s throne when his older brother, Constantine, removed himself from the line of succession. It’s rumored that the demonstrators, who were led by a group of military officers, began a chant proclaiming their loyalty “to Constantine and [the] Constitution.” After the uprising was quelled, the story goes, it was revealed through questioning the participants that many of the men involved had believed that “Constitution” was the name of Constantine’s wife.
There are many morals to this story, whether or not there’s any truth to it. The Russian masses can be counted on to cling to paternalism and conservatism. The revolutionary avant garde, in turn, will reliably either misunderstand or knowingly manipulate the population into serving its own unpopular aims. When the demonstrators are dispersed and the guilty persons are in police custody, the glue holding together ‘the opposition’ will inevitably prove farcically weak.
Once again in Russia, crowds today are gathering in public squares as a part of a movement that makes a battle cry of the Constitution. The organizers of ‘Strategy 31,’ a series of liberal protests, have used nearly every opportunity to declare that they’re fighting the anti-constitutional activities of the government. Yesterday in a 45-minute debate with United Russia representative Vladimir Medinskii, liberal oppositionist Vladimir Milov used the word “Constitution” every three minutes on average, repeating the reference a total of 15 times. Also yesterday in a blog post, Vladimir Kara-Murza, another figure in the opposition, accused the Russian state of “violating the freedom of assembly,” and betraying both the Constitution’s 31st Article and the federal law that addresses rallies, which Putin signed six years ago.
The mantra is clear: the liberals pledge their allegiance to the Constitution and to the law. Their 3,000 or so demonstrators are out on the streets at least once a month to hold their banners high and force a showdown that, they seem to believe, will prove the lawlessness of the Russian police state. In other words, “long live the Constitution!”
It was precisely the question of Constitutional law that Mikhail Barshchevsky sought to address when he went on Ekho Moskvy’s radio show ‘Minority Report’ yesterday. Barshchevsky is a decorated attorney and the plenipotentiary representative of the Russian Federation in the Constitutional Court, the Supreme Court, and the Higher Arbitration Court of the Russian Federation. He came to Ekho prepared to explain the Constitutional Court’s understanding of freedom of assembly.
There is a fascinating moment early in the show when Barshchevsky asks to read from a piece of paper that he’s brought with him to the studio. On the paper are excerpts from a Constitutional Court verdict on a case in April 2009, when it ruled on a complaint made against the city of Samara for violating demonstration rights. (Read the full text of the ruling here in Russian.) Here is what Barshchevsky said (my emphasis in bold)
“The government should refrain from unreasonable, circumstantial restrictions on the right to free assembly, and must have convincing and compelling reasons to warrant interfering with this right.” Later the Constitutional Court says that, “in the federal law on gatherings, protests and demonstrations, marches, and picketing, the use of concepts like reasonable requests and negotiation does not imply that bodies of public authority can ban or not allow the staging of public events; [the authorities] may only propose to change the place and/or time of the event, it being understood that such a proposal must be reasonable and justified by either  the need to preserve the normal and smooth functioning of important communal objects or the infrastructure of transportation, or  the need to maintain social order and provide safety to citizens participating in the public event, and to anyone who might for their own reasons be at the place of the event at its scheduled time.” The Constitutional Court writes further that “the concept of ‘reasonable [alternate] proposals’ means that there should be solid reasons that the public event [as planned] is not just undesirable but impossible because of the need to protect public interests. Regarding the concept of ‘negotiation,’ the constitutional-legal meaning presumes that bodies of public authority are obligated to discuss with the organizer[s] of a public event the option that would best allow [the organizers] to realize their aims. The applicant parties [(the organizers)], in putting their rights into effect in the determination of the event’s time and place, must in turn make an effort to reach an agreement [with the authorities] on the basis of a balance of interests.’ And the Court writes further, “in the event that no agreement is reached, the question will be decided in court.” And that’s what the Constitutional Court said.
Barshchevsky was also asked to comment on the legality of Putin’s much publicized threat to beat unsanctioned demonstrators in the head with clubs. (Note: Ekho Moskvy chief editor, Aleksei Venediktov, stated on air earlier today that he recorded no use of police truncheons in the dispersal of yesterday’s Triumfal’naia rally.) Here is what Barshchevsky said about dubinki po bashke:
The police’s goal here begins with dispersing those gathered in the Square. It doesn’t matter whether it’s Triumfal’naia or any other place. Those people refuse to disperse. So we formally have a case of resisting the police. Formally in this situation, according to [article 14 of current police code], the police are allowed to beat [people] with clubs.
At this point, you may be thinking that Barshchevsky is some kind of bloodthirsty bureaucrat hungry for the blood of liberal protesters. Before you decide to believe this, however, consider what advice he gave to Moscow city authorities:
On the other hand, to be honest, I don’t understand the Moscow authorities. I mean, in Petersburg out on Dvortsovaia Square, they have rallies without any problems. Between 200 and 300 people show up, and they stand around for about an hour. [...] If I were in the position of the Moscow authorities, I would permit the Strategy 31ers to have their rally in Triumfal’naia Square. Just like that without all the problems. And there wouldn’t be any problems. I always cite the example of the second Марш несогласных. They banned the first one and broke it up, but they allowed the second one. And people came. So what?
Constitutions anywhere, particularly bills of rights, have the potential to spark very heated disagreements. Usually amounting to a small collection of pithy declarations, constitutions are living documents that evolve under the changing interpretations of courts and the public at large. As understood by most individuals at any one time, most freedoms seem self-evident and total. Consider the freedom of speech. Americans have it, right? Of course! Except, you cannot yell ‘Fire!’ in a crowded theater. You’re also not allowed to use “fighting words” that could be considered assault. Insulting a police officer is a punishable offense, as well.
And what about the freedom of assembly? Here is what the 1st Amendment of the American Constitution says about it:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
And here is what Article 31 of the Russian Constitution says:
Citizens of the Russian Federation shall have the right to gather peacefully, without weapons, and to hold meetings, rallies, demonstrations, marches and pickets.
Both constitutions clearly employ very absolute terms. The citizens “shall have the right” and the state “shall make no law abridging.” We’re well aware of the restrictions Russian state authorities (and Russian courts) have added to assembly rights. The unspoken assumption underpinning the liberal opposition’s whole campaign is that the same restrictions don’t exist in a country like America. And, in this assumption, it turns out that they are actually quite wrong.
In order to test the unrestrictedness of Americans’ freedom of assembly, I went looking through the permit codes of one of the USA’s most leftist cities: San Francisco. I even limited my search to San Francisco’s Park Code, so as to avoid the inevitable marching restrictions associated with blocking street traffic. As it turns out, Section 7.07 of the SF Park Code (“Permits — Basis for Denial”) is so long that it contains 14 subsections laying out various justifications for denying someone the right to hold a public demonstration. Among the reasons:
- “A prior application for a permit to use the same location at the same time has been received and such application has been or will be approved authorizing an activity which does not reasonably permit multiple occupancy of the area”
- “The proposed activity would conflict with a previously planned program sponsored by the Recreation and Park Department or Commission and scheduled for the same location as that requested by the applicant”
- “The proposed activity is inconsistent with the purpose for which the facility or area has been established or designated”
- “The location selected is inappropriate”
Applicants are even sometimes required “to provide insurance”! This in the ‘land of the free’ — in the country Russian oppositionists tirelessly hold up as a model for freedom of assembly!
185 years have passed since the Decembrists chanted on Senate Square for the adoption of constitutional law. Or perhaps the crowd thought it was rooting for an oddly-named Tsarina? Misunderstandings and doublespeak persist today in the Constitution-obsessed ‘Strategy 31′ movement. Its leadership perpetrates the notion that the group is illegally persecuted, though legal precedent in Russia and abroad seems to suggest that this is an exaggeration at best. The next calendar month with 31 days isn’t until October, which means the opposition has another two months before it has to march back to Triumfal’naia for another ritualistic demonstration of Russian police brutality. One imagines what the various protesters brought into custody must say to the police. Have they ever heard of the Constitutional Court’s April 2009 ruling, which states that the government must agree to the time and place of any public event? Is this the modern-day ‘Constantine and Constitution’?