Chapter 2

The subject of consideration in the Constitutional Court was the complaint of V.I. Maslov to the violation of his constitutional right to be protected by Art. 47 and 51 of the Code of Criminal Procedure of the RSFSR.

As follows from the complaint, on October 2, 1997, during the investigation of a criminal case on extortion, Maslov's house was searched. After him, the citizen was forcibly taken to the regional department for combating organized crime, where he was held for more than 16 hours. During this time, he was identified, interrogated as a witness and confronted.

In response to Maslov's request to provide him with a lawyer, the investigator explained that in accordance with Part 1 of Art. 47 of the Code of Criminal Procedure of the RSFSR, the assistance of a defense counsel is provided only to the accused (from the moment the charge is brought) and the suspect (from the moment the protocol of detention is announced to him or the decision to apply a measure of restraint to him in the form of detention). And since Maslov was formally a witness at that time, they could not satisfy his request. The report on the detention as a suspect V. I. Maslov was presented only after the investigative actions.

After Maslov was charged, his lawyer petitioned to get acquainted with the protocols of investigative actions, but he was refused. According to the investigator, the provisions of Part 2 of Art. 51 of the Code of Criminal Procedure of the RSFSR (on the rights and obligations of a defense counsel) do not provide for the right of a defense counsel to familiarize himself with the protocols of investigative actions carried out with his principal until the moment he is recognized as a suspect until the end of the investigation. The lawyer was able to see these documents only after the end of the investigation.

Maslov repeatedly tried to appeal against the actions of the investigator through the prosecutor's office and the court, but law enforcement agencies did not see any violations in them. Only after consideration by the court of cassation were their demands partially satisfied - the refusal to provide the defense counsel with the protocols of investigative actions and the opportunity to make extracts from the procedural documents was recognized as illegal.

Maslov considered that irreparable damage had been caused to his constitutional rights, since they were not implemented in a timely manner at an important stage of the criminal process for the defense. He asked the Constitutional Court to check the provisions of the Criminal Procedure Code applied in his case for compliance with Art. 45 (on the right to defend one's rights in any way not prohibited by law), 48 (on the right to qualified legal assistance) and 55 (on the inadmissibility of restrictions on rights and freedoms) of the Constitution.

Referring to the Constitution and the norms of international law, the Constitutional Court pointed out that the right to the assistance of a lawyer cannot be limited by federal law, therefore, in relation to its provision, the concepts of "detained", "accused", "charged" should be interpreted in their constitutional and legal, and not in the narrower sense given to them by the criminal procedure law.

The court explained that in order to exercise the constitutional right to defense, it is necessary to take into account not only the formal procedural, but also the actual situation of the person against whom the criminal prosecution is carried out.

Suspicion in a criminal case is not equivalent to the formalist concept of "suspect" enshrined in the Code of Criminal Procedure, it should be interpreted much broader. The Constitutional Court identified three categories of "suspect" - in everyday, procedural and factual senses. The latter means that the suspect is the one in relation to whom there is an objective suspicion, the one against whom the accusatory activity of the investigation is carried out, expressed in certain actions.

In the opinion of the Constitutional Court, in cases of such "suspicion", a citizen - regardless of his formal procedural status - should be immediately given the opportunity to seek help from a lawyer. This will allow him to get a proper idea of his rights and obligations, of the accusation brought against him and, consequently, to effectively defend himself, and to the investigation - to guarantee the admissibility of the evidence received.

Thus, the Constitutional Court declared the provisions of Art. 47 of the Code of Criminal Procedure of the RSFSR inconsistent with the Constitution, since they restrict the right of every citizen to use the assistance of a lawyer in all cases where his rights and freedoms are significantly affected by actions related to criminal prosecution.

The provisions of Part 2 of Art. 51 of the Code of Criminal Procedure of the RSFSR were recognized as not contradicting the Constitution, since they do not restrict the right of the defense counsel to get acquainted with the protocols of investigative actions taken before the recognition of his client as a suspect (that is, during the investigation, and not only after its completion). The same applied to the right of the defense counsel to get acquainted with the procedural documents that were presented or should be presented to the suspect and the accused, as well as to write out from the materials with which the defense counsel was familiarized, any information and in any volume. Restrictions on these rights "have no reasonable grounds" and "cannot be justified by the interests of the investigation or other constitutionally significant goals that allow proportionate restrictions on rights and freedoms."

After this Judgment, any person in respect of whom actions are being taken to identify the facts and circumstances incriminating him, received the right to demand the participation of his lawyer, regardless of his procedural status and the moment of investigation. If the Code of Criminal Procedure of the RSFSR recognized as suspects only those against whom a preventive measure was applied or detention was carried out, then the later introduced Criminal Procedure Code of the Russian Federation significantly changed the concept of a suspect and expanded the circle of persons entitled to protection.

"In 2000, the Constitutional Court of the Russian Federation formulated the "Maslov rule": a person against whom actions are carried out under the Code of Criminal Procedure has the right to a lawyer," says lawyer Maxim Olenichev. "And this right does not depend on the formal decisions of the bodies of preliminary investigation and the issuance of decisions by them, for example, on the involvement as a suspect and an accused. The right to use the legal assistance of a lawyer arises for a person from the moment of a real, and not a formal (documentary) restriction of a person's freedom by the criminal prosecution authorities. In practice in Russia, in any case of collision with the actions of the criminal authorities, this rule guarantees everyone - from the moment any procedural actions are carried out against him and with his participation - the opportunity to seek help from a lawyer.

A year after this decision of the Constitutional Court, the "Maslov rule", otherwise called "lawyer for a witness", was fully reproduced in the new Code of Criminal Procedure of the Russian Federation. It is no longer possible to imagine that anyone would question the authority of a lawyer to assist a detainee, a witness, a person who is being interrogated or searched, from the moment these measures are applied. This activity of a lawyer, both legislatively and practically, forms the foundation of defense in the course of a criminal investigation.

Violations of the "Maslov rule", which we still often observe - when lawyers are not allowed to be searched or to the police department for far-fetched reasons - already cause not only understandable indignation among lawyers, but also the same assessment in the public mind, where ideas about proper fair justice standards. And the courts often recognize just such actions of law enforcement agencies as illegal. "Maslov's rule" has strengthened the guarantees of protection against arbitrariness - it works."

The lawyers of the "Yustina" law firm appealed to the Constitutional Court because of the search that took place at their law firm on December 29, 2004. The basis for the investigative actions was the decision of the investigator, who believed that the law office was engaged in the production and storage of forged documents. Some papers were seized.

The lawyers considered the incident to be lawlessness and appealed to the Dorogomilovsky District Court of Moscow with a complaint in which they referred to Art. 8 of the Law "On Advocacy and the Bar in the Russian Federation", which states that it is possible to search their office premises only on the basis of a court decision. On the second attempt, the Dorogomilovsky District Court determined that since the investigative actions were not carried out in the case against the lawyers, they were lawful.

In a complaint to the Constitutional Court, the applicants insisted that a search in their office could only be carried out on the basis of a court decision, and the disputed articles allow for a different interpretation and do not contain a requirement to obtain a court decision to search and seize premises used for advocacy .

Such an approach, the lawyers insisted, violates their rights to privacy, the rights of a lawyer to engage in their chosen activity and the right of everyone to receive qualified legal assistance. Art. 7 of the Code of Criminal Procedure has become the basis for non-application of the norms of the Law on Advocacy – the second paragraph of the Code of Criminal Procedure states that if a federal law or other legal act does not comply with it, the court makes a decision in accordance with the Code of Criminal Procedure.

The Constitutional Court agreed with the lawyers' position, recalling that the priority of the Code of Criminal Procedure over other laws is not unconditional.

For example, this priority does not apply when other laws are adopted later or are specialized. At the same time, in the event of a conflict between various legislative acts, it is necessary to apply the law that provides for a greater scope of guarantees of human and civil rights and freedoms, the Constitutional Court pointed out. The Constitutional Court confirmed that the contested articles do not provide for the possibility of conducting a search in the office of a lawyer or a lawyer's education without a special court decision to that effect.

By this decision, the Constitutional Court confirmed the special status of the relationship between the client and the defense counsel, noting the importance of respecting the attorney-client privilege. The decision of the Constitutional Court has become one of the fundamental ones for protecting the interests of lawyers in the future. "The court definitely confirmed the importance of ensuring attorney-client privilege by all participants in legal proceedings and law enforcement activities," said Evgeny Semenyako, president of the Federal Chamber of Advocates of the Russian Federation.

"With this decision, it seems to me, we to some extent prevented the rampant illegal actions of law enforcement officers in terms of attorney-client privilege," Viktor Burobin, president of the "Yustina" law firm, later said.

10 years after the judgment was made, the Constitutional Court, on the complaint of lawyers from the Novosibirsk Bar Association, recognized the conduct of investigative actions against defense lawyers, in particular, the seizure of their correspondence with clients, as consistent with the Constitution. At the same time, the Constitutional Court reiterated the obligation of a court decision to conduct a search, and also established a number of rules for conducting investigative actions and limited the amount of lawyer information that can be studied, seized and recorded using technical means.

At the same time, the Constitutional Court pointed to the need to formulate a more precise definition of attorney-client privilege. The Constitutional Court considered that, in exceptional cases, interference in it by the authorities is allowed. Such cases include reasonable suspicions of abuse by a lawyer or a principal, as well as, if necessary, protecting the foundations of the constitutional order, morality, health, rights and legitimate interests of others. Because of this, not all information that a lawyer and his principal would like to make confidential is privileged.

As a result, in 2017, legislators introduced provisions into the Code of Criminal Procedure establishing a special procedure for conducting searches, inspections and seizures of lawyers. Now, in addition to an initiated criminal case or a court decision, a member of the council of the region's bar association must be present during the search - he is entrusted with the duty to ensure the inviolability of objects and information constituting attorney-client privilege.

A year later, the Constitutional Court again returned to the issue of search activities at lawyers' premises - after all, from the moment the decision was made in 2005 to this day, the problem of protecting the rights of lawyers in the face of interference by the investigating authorities remains quite acute. Then the Constitutional Court issued a refusal ruling on a complaint about a search of a lawyer's house under the guise of examining the premises, saying that the problem was not in the law - which allows the replacement of an investigative action with an operational measure - but in law enforcement on the ground.

The Constitutional Court did not agree with the applicants, stating that the legislative requirement to conduct operational-search measures and investigative actions against a lawyer is aimed at "ensuring the implementation of the constitutional right of citizens to receive qualified legal assistance."

Lawyers noted that not in all cases it is possible to distinguish between a search as an investigative action and an inspection of premises as an ORM. And this problem has not yet been resolved either in the law or in the jurisprudence of the Constitutional Court and the Supreme Court. Sometimes the nature and degree of restriction of the protected constitutional rights and freedoms of citizens are too similar in them, and there is actually no border that makes it possible to distinguish a search from an examination or examination. This gives rise to abuses that make it possible to replace a search, which requires an initiated case and a court order, with an inspection or examination - formally it is much easier to conduct them, but there is no real difference between them.

The Plenum of the Supreme Court turned to the Constitutional Court with a request to clarify the decision of the Constitutional Court, issued in 1999. That document forbade the imposition of death sentences before the widespread trial of such cases by a jury. In the ten years that have passed since then, jury trials have begun to work in all constituent entities of the Russian Federation, with the exception of the Chechen Republic (they appeared there after 2010). Due to the fact that the issue of the possibility of imposing the death penalty in Russia has again become relevant, the Supreme Court asked the Constitutional Court to provide additional clarifications.

The Plenum of the Supreme Court pointed to the inconsistency between Russian and international law. On April 16, 1997, Russia signed Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms regarding the abolition of the death penalty in peacetime and, although the State Duma never ratified it, the use of the death penalty in Russia from that moment was prohibited due to the action of the Vienna convention, which presupposes the fulfillment of the terms of the treaty until its ratification.

The Constitutional Court found it impossible to use the death penalty despite the creation of jury trials throughout the country. The definition states that within the framework of the "constitutional and legal regime" that has developed as a result of a long moratorium, an "irreversible process" is taking place aimed at the abolition of the death penalty, and the introduction of a jury trial does not open the possibility of returning to it.

"In the Russian Federation, there is a comprehensive moratorium on the use of the death penalty, which specifies the guarantees of the right to life enshrined in the Constitution of the Russian Federation, which, in the sense of its constituent legal acts, was originally intended to be short-term. At the same time, this legal regulation has been in force for more than 10 years," the document says. "As a result of such a long moratorium on the use of the death penalty… stable guarantees of the right not to be subjected to the death penalty have been formed and a legitimate constitutional legal regime has been formed, within which, taking into account the international legal trend and the obligations undertaken by the Russian Federation, – an irreversible process is underway aimed at the abolition of the death penalty as an exceptional measure of punishment, which is of a temporary nature."

Yuri Rudkin did not agree with most of the judges. In a dissenting opinion, he pointed out that now the Constitutional Court, according to the law on the Constitutional Court, could explain the 1999 decision only "within the scope of the subject of this decision and only on those issues requiring additional interpretation that were the subject of consideration in the court session." 10 years ago, according to the judge, the subject of consideration by the Constitutional Court was not the question of the abolition of the death penalty in general. The judgment concerned only "ensuring citizens an equal right to have their cases examined by a jury throughout the territory of the Russian Federation." Because of this, in 2009, the Constitutional Court, according to Yuri Rudkin, had to recognize that a ten-year-old ruling provided for the possibility of imposing the death penalty in Russia from the moment jury trials were introduced in all regions. The issue of Russia's international obligations also should not have been discussed, since in 1999 there was no talk of it.

Some time later, the Supreme Court filed a new petition with the Constitutional Court, in which it asked to clarify another ambiguous point. In the motivational part of the ruling of the Constitutional Court, it was stated that "in Russia, since April 16, 1997, the death penalty cannot be applied, that is, the death penalty should neither be imposed nor executed." After that, the courts of general jurisdiction began to receive petitions from convicts to review the death sentences imposed after April 16, 1997 and replaced by life imprisonment, because of which the Supreme Court again asked to clarify the controversial provision. The Constitutional Court wrote that the legal position formulated by him a year ago "is turned to the future" and does not give rise to any legal consequences in relation to convicts whose death penalty has been replaced by life imprisonment.

These legal provisions continue to operate, although calls for the return of the death penalty have firmly entered the political and informational agenda - however, the official position insists on the absolute impossibility of returning the heaviest criminal punishment, including due to the positions repeatedly expressed by the Constitutional Court.

Faniya Gumerova, a resident of Ufa, and Yury Shikunov, a resident of Moscow, filed a complaint with the Constitutional Court. They found themselves in a similar situation due to the fact that they could not recover money from debtors - owners of expensive real estate.

Faniya Gumerova for three years could not get 3 million rubles from a pensioner - 2 thousand rubles were withheld from his pension as a debt, despite the fact that he was the owner of a house with an area of 332 square meters and cost about 10 million rubles. Yuri Shikunov could not take away from the debtor a quarter of an apartment of 20 square meters belonging to her on account of a debt of 70 thousand dollars.

The applicants argued that foreclosure on part of the debtor's living quarters did not threaten his rights and legitimate interests, the protection of which required restriction of the rights and freedoms of other persons.

The Constitutional Court recognized the norm as corresponding to the Constitution, but agreed with the position of the applicants: "The extension of property immunity to residential premises, the size of which exceeds the average, and their value is sufficient to satisfy the requirements of the creditor, violates the balance of legitimate interests of participants in enforcement proceedings," the Constitutional Court decided. According to the judges, immunity to such property unreasonably and disproportionately restricts the creditor's rights.

The Constitutional Court demanded that the legislators provide for a procedure for foreclosing a dwelling or part of it by the court if it establishes that the property clearly exceeds legal standards, and the income of the debtor citizen is disproportionate to his obligations. At the same time, the State Duma had to maintain housing guarantees for the debtor and his family members.

Dissenting opinions on the case were expressed by judges Gennady Zhilin and Nikolai Bondar.

Nikolai Bondar did not agree with the recognition of the controversial article of the relevant Constitution. He considered this illogical, since the Constitutional Court "definitely pointed out the existing defects in legal regulation" and turned to the legislators to improve the norm. "The key issue – the protection of the rights of creditors (collectors) who claim to receive the amount of debt at the expense of residential premises belonging to citizens-debtors, which, by their characteristics, significantly exceed the minimum dimensions necessary to meet housing needs, is postponed indefinitely, until the payment corresponding changes in the civil procedural legislation," Nikolai Bondar wrote, noting the "prolonged inaction of the legislators to solve the problem," which the Constitutional Court pointed out to the legislator back in 2003.

Gennady Zhilin agreed with Nikolai Bondar. In his opinion, the Constitutional Court should not have recognized the norm as constitutional, only to provide the debtor and his family members with normal living conditions and guarantees of their socio-economic rights. Nikolai Bondar considered that by refraining "from recognizing the challenged legal provision in the relevant part as unconstitutional, the Constitutional Court of the Russian Federation did not ensure the restoration of the violated rights of the applicants."

For nine years, the legislators have not established the criteria for the luxury of housing, which the Constitutional Court wrote about in its judgment. Moreover, during this time, the judicial practice that takes the side of the debtors has not changed. Thus, in 2020, the Supreme Court of the Russian Federation denied creditors the right to forcibly replace a bankrupt citizen's only apartment with a smaller apartment, citing the fact that the law does not allow this.

Such inaction forced the Constitutional Court to take more drastic measures - in the spring of 2021, when considering the complaint of Ivan Revkov, the judges directly allowed the restriction of executive immunity, which protects the only housing of the debtor citizen from recovery.

"In addition to many years of unacceptable legislative inaction, this ongoing risk of harm to constitutionally significant values is aggravated by the non-execution of an act of constitutional justice," the Constitutional Court noted. In the decision, the Court independently determined the criteria for luxury housing and instructed the courts of general jurisdiction to be guided by these rules until changes are made to the law.

The removal of protection from the only housing is possible if the courts establish that it was acquired with abuse. The time of awarding the debt, initiating enforcement proceedings and notifying the debtor of these events, the terms of transactions for the alienation of other property for the acquisition of housing protected by immunity may also be taken into account.

A group of opposition deputies and the leader of the unregistered "Other Russia" party, Eduard Limonov, appealed to the Constitutional Court with a request to check for compliance with the Constitution of the law "On meetings, rallies, demonstrations, processions and picketing", which was amended before the "March of Millions".

Among the innovations are an increase in maximum fines, the ability of the authorities to determine places for holding public actions. For a two-time violation of the law, citizens were subject to a one-year ban on organizing rallies.

The Constitutional Court recognized the norms as partially inconsistent with the Constitution and recommended that they be revised: to reduce the minimum amount of fines, increase the number of so to call "hyde parks" and mitigate liability for organizers. In addition, the Constitutional Court decided to cancel the punishment in the form of compulsory labor in the case when, as a result of a violation of administrative law, no harm was caused to someone's health and no damage was caused to property.

The court also established that the amendments to the challenged law were adopted with deviations from the requirements of the State Duma regulations. However, the identified violations, according to the Constitutional Court, did not affect the constitutionality of the adopted law.

At the same time, most of the applicants' claims were still rejected by the Constitutional Court. For example, the Court did not examine the constitutionality of filing notices of meetings: the applicants were convinced that the notices led to the permissive nature of a public event, and that it was contrary to the Constitution. In addition, the Constitutional Court did not satisfy Eduard Limonov's complaint about the norm of the law, according to which citizens who twice violated the rules for holding rallies are subject to a one-year ban on organizing rallies.

Dissenting opinions on the case were expressed by judges Vladimir Yaroslavtsev and Yuri Danilov.

Yaroslavtsev, unlike the majority of judges, wrote that the law cannot be considered constitutional on account of its adoption procedure.

It should be recalled that the contested act was adopted in the State Duma in record time - 26 days. At the same time, the deputies did not receive feedback from the regional parliaments. "Bringing the constitutional right of citizens to freedom of assembly on the sacrificial altar of the State Duma of the Russian Federation for the sake of momentary desires to adopt the law in the "fast" manner, of course, does not speak well of the State Duma of the Russian Federation and does not add to its authority, because, by definition, it should be a model of compliance all norms of the legislative process," the judge reminded.

Judge Danilov also agreed with him.

"Violations during the adoption of the contested law were (taking into account the number of amendments) massive: during the discussion of the amendments in the second reading, the provisions of the Rules, which imperatively establish the right for their authors to a three-minute speech, changed twice, limiting the time for the speech of the authors of the amendments, first to one minute, and then up to 30 seconds. Truly, when you can't win by the rules, gentlemen change the rules. Democracy is above all a procedure," the judge wrote. "It is only striking that the noted large-scale violations of the legislative procedure were recognized by the Court as established, but considered insufficient for applying measures of constitutional responsibility to the State Duma in the form of disqualification of the Law adopted by it."

The history of tightening protest legislation in Russia in the early 2010s was just beginning. Since the time that has passed since the decision of the Constitutional Court on Limonov's complaint, the increase in administrative penalties, the introduction of new criminal offenses and the growth of the text of the law prohibiting or regulating the holding of mass events have become one of the main agendas of legislative work.

At the end of 2021, "Mediazona" calculated that the Code of Administrative Offenses of the Russian Federation has almost quadrupled in 20 years since its adoption, and Art. 20.2 alone, which has been changing on a regular basis since 2012, has increased 8 times. At the same time, the terms for adopting laws that introduce tougher sanctions changes are significantly reduced. The duration of arrests and the amount of fines imposed for protest violations continue to grow.

An ex-official from Surgut, Yevgeny Krylov, turned to the Constitutional Court with a request to check the norms of the Civil Code of the Russian Federation for compliance with the provisions of the Constitution, which guarantee his right to protect the dignity of the individual.

On one of the Internet resources, materials were published depicting Yevgeny Krylov, on which, while relaxing in a restaurant, he turned out to be a participant in a conflict with security and police officers. Anonymous Internet forum users discussed these materials using negative and offensive comments.

Yevgeny Krylov tried to get the "defamatory information and offensive comments" removed from the courts. He also demanded that the administrators of the resource compensate him for moral damage. The Surgut District Court recognized the comments as defamatory, but ruled that the authors of the reviews, not the forum administration, should be held responsible for the insults. Higher instances, up to the Supreme Court, upheld the original decision.

Evgeny Krylov considered that the disputed provisions of the Civil Code of the Russian Federation - in their practical interpretation and application by the courts - do not allow him to restore his violated rights. Thus, in his opinion, the constitutional provisions on the protection of the dignity of the individual and its protection become ineffective.

The Сourt recalled that the Constitution of the Russian Federation proclaims human dignity as a universally recognized and absolute value. Based on this, according to the court, the implementation of the right to freedom of speech imposes appropriate duties and responsibilities, including for the purpose of respecting the rights and reputation of others. The Court emphasized that these fundamental principles also apply to online relationships. Moreover, the Constitution, the Constitutional Court drew the attention of, guarantees every person the right to judicial protection and the possibility of restoring violated rights and freedoms.

The Constitutional Court established that the contested acts do not directly require the deletion of discrediting and untrue information recognized by the court from sites that are not registered as mass media. They also do not provide for liability for failure to comply with the requirements for the removal of such information. As a result, the practice of applying these norms does not provide sufficient guarantees for the protection of the constitutional rights of a person in respect of whom defamatory information is widespread, and, accordingly, conflicts with the Constitution.

In its decision, the Constitutional Court ruled that the owners of sites that are not mass media should be responsible for user comments and remove them by court order.

"Finding a balance between freedom of expression, the right to freedom of information and the right to a good name and reputation is not so easy if you approach the search for a balance formally or do not try to do it at all, as, unfortunately, often happens in practice," comments this decision of the Constitutional Court Director of the Center for the Protection of Media Rights Galina Arapova of the Constitutional Court. "These fundamental rights come into conflict every time defamatory information is publicly disseminated, the authenticity of which is called into question.

It is then that the court must, within the framework of defamation cases, resolve this conflict and establish a proper balance between these two equivalent constitutional rights. The European Court of Human Rights constantly speaks about the need to find a balance in its practice, this was expressed in 2005 by the Plenum of the Supreme Court of the Russian Federation in its Judgment on cases of protection of honor, dignity and business reputation. A qualitative example of the search for such a balance and proper motivation was shown to us in this decision by the Constitutional Court of Russia.

The case concerning the removal of defamatory information from a website on the Internet shows how precise any restriction of the right to freedom of dissemination of information must be and how exactly one should look for the right tool to restore the violated right to reputation in situations where the author is unknown and the distributor is not registered media, playing only a technical role in providing a platform for online discussion.

The Constitutional Court rightly pointed out that an online intermediary cannot be held responsible for the content distributed on its site, of which it is not the author, but at the same time it will be fair if it executes a court decision to remove defamatory information, if it is recognized as such and established the fact that it is unreliable. This is an important balance between the inadmissibility of unreasonably restricting the right to disseminate information and the importance of ensuring that the right to a person's reputation is adequately protected when the right to freedom of speech and the right to disseminate information is clearly abused.

Conflicts related to freedom of speech and freedom of dissemination of information in the modern world - where the Internet has become one of the main channels for the exchange of information, and the platforms of registered media have already lost their monopoly position in the information space - require new approaches and understanding on the part of the judiciary of those mechanisms that used to disseminate information on the Internet.

The online world is very diverse and the players play different roles in it. On the one hand, there are registered online media, private authors who speak anonymously on forums and social networks. On the other hand, Internet service providers and domain name administrators, which provide only technical Internet services (such as providing access or searching, transmitting or caching information). The latter should not be held responsible for content created by others that has been distributed through these services. Obviously, the degree of responsibility of all these players for the distributed content, even if it violates someone's right to reputation and good name, should be different.

The Constitutional Court managed to demonstrate to law enforcers the logic of finding a balance between rights and choosing the right legal instrument to restore a violated right. The matter remains small: that in numerous litigations on the removal of information from Internet sites, the courts of the Russian Federation apply this logic, as well as international standards, which are referred to by the Constitutional Court in its Judgment.

But, unfortunately, in practice, this is still very sad. One can only hope that in cases where the Constitutional Court manages to offer law enforcers high-quality legal tools for applying national legislation and international principles, when the right words are found and a wise approach to finding a legal balance is demonstrated, this will not remain dead weight in legal databases, but will be a practical tool for the protection of human rights".

In 2014, Sergey Anikeev, a resident of the Arkhangelsk region, applied to the Constitutional Court. In 2009, a criminal case was initiated against the man for intentionally causing moderate bodily harm, but later the case was dismissed due to the reconciliation of the parties. On this basis, in 2012, the courts refused Anikeev to adopt a two-year-old stepson, whom he and his wife raised together. The couple also already had a child together. At the same time, the boy's biological father agreed to the adoption, stating that he did not want to be involved in his upbringing.

The version of the Family Code that was in force at that time forbade people convicted of intentional acts against life and health of any severity to adopt or take care of children. The same restrictions applied to those who were or are being prosecuted. Such rules were adopted in 2010 as part of a child protection project, and many lawyers then did not approve of the innovation.

"Judicial practice knows many cases of failed attempts to adopt a child by a person with a criminal record, when the interests of the family were violated. For example, if a husband was a suspect in a criminal case for causing damage to health of moderate severity, the case was closed with the consent of the victim, but then he could not legally become the father of his wife's child by remarrying," wrote the "Yuridicheskiy Vestnik". "Sometimes the uncle was not given orphaned nephews due to the fact that many years ago he was involved in a fight. As a result, kids who could have grown up in a comfortable family environment were placed in a boarding school."

It was this norm that the Investigative Committee of the Russian Federation Anikeev wanted to be reviewed. The applicant believed that the norm has established an indefinite and unconditional ban on adoption, "while excluding the possibility of taking into account the identity of the potential adopter and the factual circumstances that are essential to the case".

In 2014, Sergey Anikeev, a resident of the Arkhangelsk region, applied to the Constitutional Court. In 2009, a criminal case was initiated against the man for intentionally causing moderate bodily harm, but later the case was dismissed due to the reconciliation of the parties. On this basis, in 2012, the courts refused Anikeev to adopt a two-year-old stepson, whom he and his wife raised together. The couple also already had a child together. At the same time, the boy's biological father agreed to the adoption, stating that he did not want to be involved in his upbringing.

The version of the Family Code that was in force at that time forbade people convicted of intentional acts against life and health of any severity to adopt or take care of children. The same restrictions applied to those who were or are being prosecuted. Such rules were adopted in 2010 as part of a child protection project, and many lawyers then did not approve of the innovation.

"Judicial practice knows many cases of failed attempts to adopt a child by a person with a criminal record, when the interests of the family were violated. For example, if a husband was a suspect in a criminal case for causing damage to health of moderate severity, the case was closed with the consent of the victim, but then he could not legally become the father of his wife's child by remarrying," wrote the "Yuridicheskiy Vestnik". "Sometimes the uncle was not given orphaned nephews due to the fact that many years ago he was involved in a fight. As a result, kids who could have grown up in a comfortable family environment were placed in a boarding school."

It was this norm that the Investigative Committee of the Russian Federation Anikeev wanted to be reviewed. The applicant believed that the norm has established an indefinite and unconditional ban on adoption, "while excluding the possibility of taking into account the identity of the potential adopter and the factual circumstances that are essential to the case".

Six months after the decision of the Constitutional Court, the Government Commission on Legislative Activities approved the draft law submitted by the Ministry of Education and Science on clarifying the categories of persons in respect of which the prohibition is established to be adoptive parents or guardians.

In March 2015, the State Duma adopted this bill. And a month later, President Vladimir Putin signed the amendments, thereby officially allowing the adoption of children by former prisoners convicted of minor or moderate crimes.

In 2018, the Constitutional Court will rely on the theses of this judgment already when considering the complaint of a married couple from the Moscow region, who decided to adopt a three-year-old nephew who lived with them from birth. However, the court refused them, explaining that the potential adoptive mother suffers from a "disease that prevents adoption." While hospitalized due to a miscarriage in 2012, she was infected with HIV infection and hepatitis C. In May 2017, the court of appeal upheld this decision.

The spouses asked the Constitutional Court to check the constitutionality of subparagraph 6 of paragraph 1 of Art. 127 of the Family Code of the Russian Federation and paragraph 2 of the List of diseases in the presence of which a person cannot adopt (adopt) a child.

"The complaint stated that HIV infection was not transmitted by household means, and that neither the husband had contracted HIV infection for five years, nor the child for two and a half years. The spouses also drew attention to the high effectiveness of modern therapy prescribed for HIV-infected people, from which they conclude that the restrictions on adoption for this narrow group of people are based on an imaginary threat," "Interfax" wrote.

The CC noted that "the legislators have the right to exercise some caution" when regulating such issues: the established restriction on adoption for persons with HIV infection or hepatitis C is aimed at not exposing the health of children to excessive risk, and therefore is not a violation.

At the same time, the possibility of adoption, especially if the child is already brought up in this family, is consistent with the general legal principle of humanism and constitutional guarantees. The contested acts are considered in judicial practice as implying refusal to adopt a child with formal confirmation of only the fact that a potential parent has HIV infection or hepatitis C. This excludes the possibility of taking into account all circumstances worthy of attention: for example, as in the case of the applicants that adoption allows only legal registration of the existing relationship between the parent and the child, without increasing the risks to the health of the latter.

As a result, this time too the Constitutional Court recognized the contested norms as inconsistent with the Constitution of the Russian Federation, to the extent that these provisions serve in judicial practice as grounds for refusing to adopt a child, if the person infected with HIV or hepatitis C virus, if they, due to already established family relations live with this person. The Constitutional Court decided to reconsider the case of the family. A case similar to this happened at the same time in Krasnoyarsk - then an HIV-positive grandmother was not allowed to take custody of her grandson, but the current decision of the Constitutional Court resolved this injustice.

Pavel Chikov, a lawyer who represented the family, called the ruling "a major step towards reducing discrimination." "The Constitutional Court decided to make a small concession, essentially allowing adoption only for children who actually live in families of people living with HIV and / or HCV for a long time, if this is in the interests of the child. The Constitutional Court did not have enough courage to allow such people to adopt children from orphanages," Chikov said in a conversation with "RBC".

Despite the fact that the possibility of adoption by HIV-infected Russians of children was discussed in the Ministry of Health for a long time, the matter moved forward only after the decision of the Constitutional Court - in the fall of 2018 it became known that the government had begun developing a bill amending Art. 127 of the Family Code of the Russian Federation.

In February 2019, the State Duma Committee on Health Protection recommended the adoption in the first reading of a bill allowing people with HIV, hepatitis C and other diseases to officially adopt children who already live with them.

On May 30, 2019, President Vladimir Putin signed this law.

The reason for the consideration of the case was the complaints of the Russian Ombudsman Vladimir Lukin, the "Kostroma Center for Support of Public Initiatives" fund, as well as citizens Lyudmila Kuzmina (head of the "Voice - Volga Region" fund), Sergei Smirensky (director of the NGO "Muravyovsky Park for Sustainable Environmental Management") and Viktor Yukechev (Director of the non-profit partnership "Press Development Institute - Siberia"). They considered it inconsistent with the Constitution to require the law for non-profit organizations to register as a "foreign agent" with the Ministry of Justice and to indicate their status in all media and Internet publications. According to the law adopted by the deputies of the State Duma, since 2012, non-profit organizations that perform the functions of a foreign agent should be considered NPOs that receive funds from foreign sources and conduct political activities in Russia.

The main arguments in the complaint, the applicants indicated discrimination against NGOs by the source of funding and the lack of a clear formulation of the concept of "political activity". The latter, in their opinion, makes it possible to attribute to "foreign agents" a completely indefinite wide range of NGOs working, including in the areas of human rights protection or election monitoring.

The initiators of the proceedings stated that the law on foreign agents violates five constitutional rights and principles at once: the equality of all before the law and the courts, the right to freedom of speech, the right to freedom of membership in organizations, the right to participate in the management of state affairs and the right not to testify against oneself.

Since all the complaints concerned the same subject matter, the Constitutional Court joined the applicants' cases into one proceeding.

The Constitutional Court found no signs of unconstitutionality in the norms of the Law on Foreign Agents.

The ruling stated that the contested requirements for NGOs receiving foreign funding and engaging in political activities (to register as foreign agents) "do not imply state interference" in their activities and do not mean its "negative legislative assessment". At the same time, the Constitutional Court considered that the "stereotypes that formed in the Soviet era and lost their meaning in modern realities" underlying such an interpretation are devoid of constitutional and legal grounds.

As regards the definition of "political" activity, as the Court pointed out, it is activity "for the purpose of exerting influence", including by forming public opinion, "on the decisions and policies of public authorities". "Political", as specified by the Court, cannot be considered activities in the field of science, culture, art, as well as the social sphere, ecology and charity. However, it is impossible in principle to clearly define the concept of "political activity", according to the Constitutional Court.

The Constitutional Court also stressed that the constitutionality of the measures introduced is also ensured by the "notification procedure" for the formation of the register of NCOs - foreign agents. The only violation of the Constitution, which the Constitutional Court found in the contested norms, is that the law on foreign agents excludes the application of fines below the lowest limit to "guilty" NPOs - foreign agents (they are defined in the law in the amount of 100 thousand rubles for officials and 300 - for legal entities).

Judge Vladimir Yaroslavtsev expressed disagreement with the decision of the Constitutional Court. In his opinion, the legislative structure of the "NGO-foreign agent" implies a negative assessment by the state, is designed to form a negative attitude towards its political activities and can be perceived as a manifestation of distrust or a desire to discredit such an NGO and the goals of its activities. He believes that the introduction of the concept of "foreign agent" is arbitrary, has no objective and reasonable justification and is contrary to the Constitution.

Vladimir Yaroslavtsev stressed that freedom of association "cannot be fully realized without the possibility to freely raise funds from sources not prohibited by law." The judge also noted that even recipients of grants recognized by Russia (for example, those provided by the UN) should be recognized as a "foreign agent".

In his opinion, the types of socially oriented activities defined by the Constitutional Court (culture, ecology, charity, etc.) that are not related to politics are also unreasonably limited. If, in defense of such activities, an NPO is required to hold a political action, for example, a rally against decisions taken by state bodies, the organization automatically becomes a "foreign agent".

A vivid example of the unconstitutional application of the term "political activity" to NGOs, Judge Yaroslavtsev called the fight against corruption by NGOs, emphasizing that the formation of "intolerance to corrupt behavior" is impossible "without constructive criticism of the authorities", including through political actions; moreover, "this political activity is carried out precisely in the interests of the state." But in contrast to the "complacency" of the authorities, an NPO intolerant of corruption can be recognized as a foreign agent. According to the judge, they should not include NGOs whose political actions "objectively were associated with criticism of the decisions of state bodies."

Vladimir Yaroslavtsev concluded that "the challenged legal provisions, given their vagueness, combined with a clearly expressed discriminatory nature, do not comply with the Constitution." He recalled that the Constitution and international norms oblige the state - regardless of political or other conditions - to protect the dignity of the individual "from any form of humiliation by anyone, including the state itself." This requirement, the judge believes, "is not a legal abstraction or an unattainable ideal."

Human rights activists called the decision of the Constitutional Court "the worst in its history", accusing the Court of subordination to the executive branch, but hoped that it would still block "punitive prosecutorial practice" against NGOs. The Venice Commission at the Council of Europe did not agree with the decision of the Constitutional Court. After that, the legislation on "foreign agents" continued to "improve" in the direction of its tightening.

Now the term "foreign agent" is applied not only to non-profit organizations, but also to the media and individuals. Thus, the legislation provides for five varieties of foreign agency status: non-profit organizations, unregistered public associations; Media organizations, media - individuals and just individuals.

As of February 2022, hundred organizations, associations, media and individuals have received "foreign agency status". Some received multimillion-dollar fines, others were forced to cease to exist, and some of the "individuals - foreign agents" left Russia.

"The Constitutional Court of the Russian Federation had an excellent chance to save Russian civil society from stigmatization and imposing an unbearable burden on non-profit organizations associated with a huge amount of workload, both administrative (reporting) and financial (fines)," says lawyer Alexander Peredruk. "However, the Court did not take advantage of this opportunity. At the same time, the phrase "foreign agent" is clearly a stigmatizing and not a neutral term – one can hardly believe in good faith that it is not associated with such a historical concept as "enemy of the people."

A resident of the Chelyabinsk region Alena Lymar, who was accused of killing her daughter, filed a complaint with the Constitutional Court. The punishment under this article provided for life imprisonment. The applicant applied to the court of general jurisdiction for a trial by jury, but was refused. The court was motivated by the fact that the Code of Criminal Procedure does not allow jury trials in cases in which women are charged - after all, they are already protected from life imprisonment.

In the complaint, Alena Lymar pointed out that the Constitution guarantees the equality of all before the law, and men and women in Russia, according to the basic law, have equal rights and equal opportunities for their implementation.

Alena Lymar was not the first to complain about the restrictions on jury trials. In 2014, Vadim Filimonov, a minor accused of murder, turned to the Constitutional Court. He challenged the inability of persons under 18 years of age to appear before a jury, although minors, on the contrary, need increased guarantees of their rights. The Constitutional Court, however, did not agree with this approach and did not recognize the right to jurors for persons under 18 years of age. Among the arguments was the fact that it is possible to challenge the verdicts of the collegium only on procedural grounds, and given the psychological immaturity, a minor defendant may not realize the full seriousness of the consequences of his decision.

In the case of Alena Lymar, the Constitutional Court found the provisions of the Code of Criminal Procedure, which deprived women of the right to have their case heard by a jury, inconsistent with the basic law of the country. The judges considered the rules of jurisdiction to be inconsistent with the principles of legal equality and discriminatory, which did not give women the opportunity to appear before a panel of assessors due to the ban on imposing (in fact) the most severe punishment on them.

Women accused of murder under Part 2 of Art. 105 of the Criminal Code of the Russian Federation, were able to petition for consideration of their cases by a jury if hearings on their cases had not been scheduled by the time this decision was made by the Constitutional Court.

The decision noted that any differentiation of legal regulation introduced by the legislator must maintain a balance of constitutional values and ensure the rights guaranteed by the Constitution, and depriving women of a jury trial, provided by law for men aged 18 to 65, does not meet the principle of legal equality, leads to discrimination and limits their right to judicial protection.

This decision was the first in a gradual series of lifting restrictions on the right of the accused to independently determine the form of legal proceedings. In fact, this is one of the elements of the expansion of the jury - not only in terms of the number of compositions and courts to which "jury" cases have become jurisdictional, but also in terms of the number of those categories of persons who have received the right to choose.

Since 2018, the possibility of trial by jury has been officially assigned to both men and women. The legal restriction of 65 years was also removed - previously, men older than this age could not apply for consideration of their case by non-professional judges. This change was also caused by the decision of the Constitutional Court, which in 2017 recognized differentiation by age as discrimination.

In 2019, the Constitutional Court expanded its ruling in the Filimonov case and still allowed for the possibility of a jury trial if the defendant is under 18 years of age. However, this from that moment on could have happened for teenagers only if there were adult accomplices in the case who were petitioning for a jury, and if it was impossible to separate the case.

Mikhail Rostovtsev filed a complaint with the Constitutional Court. Five properties belonging to him have repeatedly become the object of recovery. At the same time, the recoverer, OAO "Sberbank" of Russia, withdrew the writ of execution several times, and then reiterated his claims.

The bailiff each time issued a decision on the completion of the enforcement proceedings and on the withdrawal of the seized property from sale. This story has been repeated many times. Mikhail Rostovtsev of the next initiation of enforcement proceedings appealed to the court. He stated that the three-year period established by law for the presentation of a writ of execution had been missed, but the courts did not agree with him, and he appealed to the Constitutional Court.

The Applicant believed that the norms contested by him violated the balance of interests of the parties in the enforcement proceedings - they allowed an unlimited and unlimited right of the exactor to present and withdraw the enforcement document, and then reinitiate the proceedings. In fact, the beginning and end of enforcement proceedings depended on the unmotivated will of the creditor, and such proceedings themselves became unjustifiably endless.

The Constitutional Court recognized the contested norms as unconstitutional, agreeing with the position of the applicant. The law was reduced to the fact that the period for presenting the executive document can be interrupted and renewed, and the time that has elapsed before the interruption of the period was not counted in the new period.

Such regulation made the debtor indefinitely under the threat of enforcement measures against him - and this violated his rights: the indefinite withdrawal of his property from the sphere of civil circulation, the restriction of his property rights and the obstacles to effective judicial protection.

The Constitutional Court instructed the legislators to make appropriate changes to the norms of the Federal Law, and before that, to deduct the term of the existing enforcement proceedings in the newly opened procedure.

In 2017, the legislators introduced Art. 22 of the Federal Law "On Enforcement Proceedings", part 3.1, which regulates the rules for deducting terms if the recoverer has withdrawn the enforcement document. It would seem that the problem should have been resolved, but the issues of the relationship between debtors and creditors continue to be put on the agenda of judicial consideration.

So, in December 2021, the Supreme Court tried to determine whether it is an abuse of the right to repeatedly withdraw a writ of execution without explaining the reasons, because even apart from the issues of the term, such behavior of the claimant can limit the debtor.

"The Law on Enforcement Proceedings gives the recoverer the right to repeatedly present the enforcement document for execution after its return, as well as the right to repeatedly withdraw the enforcement document after the initiation of enforcement proceedings, without requiring the exactor to indicate the motives for his decision, on which the legal fate of the procedural action being performed does not depend ", - stated in the decision of the Supreme Court.

The applicants to the Constitutional Court were the spouses Nikolai and Veronika Korolyov. In May 2008, Nikolai Korolyov was sentenced to life imprisonment in a special regime colony for participating in a series of high-profile crimes of the SPAS club on ethnic grounds in the early 2000s. Including, he was convicted for the explosion at the Cherkizovsky market, which killed 14 people, 61 people were injured. Already in prison, Korolev got married.

He is serving his term in the Polar Owl colony in Yamal. The peculiarity of the detention of such convicts is that they live in cell-type premises, and they are allowed only two short visits a year. Those serving sentences not in strict conditions are allowed two long visits a year. Transfer Nikolai Korolev to normal conditions of detention could only happen after 10 years in prison. The couple wanted to have a child with the help of assisted reproductive technologies, but this procedure was only possible under the conditions of a long date.

In the complaint, the Korolyov family pointed out that the ban on long visits during the first ten years of serving a sentence violates their right to family life, and also "is a cruel, inhuman, degrading punishment of a prisoner, and cruel, inhuman, degrading treatment of a wife a prisoner."

The Constitutional Court sided with the applicants and found the contested norms inconsistent with Art. 15, 17, 23 and 55 of the Constitution "in conjunction with Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the European Court of Human Rights". The Constitutional Court ruled that a life-sentenced person should be granted the right to at least one long visit per year, even if he has not yet served ten years of punishment.

The Constitutional Court noted that long visits should not be granted as an incentive at the discretion of the administration of the colony.

Some time later, parliamentarians softened the norms of the penal legislation and made changes to the Penal Code of the Russian Federation, providing long visits to life-sentenced prisoners.

The decision of the Constitutional Court, which became the impetus for these changes, was extremely positively assessed by the then member of the Presidential Council for Human Rights Pavel Chikov. At the same time, the lawyer noted that the measures proposed by the Constitutional Court were not exhaustive - the Russian legislator still had a lot to strive for.

"This is a very good decision, like all the changes that have been made in recent years under pressure from the European Court of Human Rights (ECHR) [meaning the case of Khoroshenko v. Russia]," Chikov commented on the ruling of the Constitutional Court for "Gazeta.Ru". "Compared to the current situation, this is a serious step forward, a kind of systemic change. [In the European penitentiary system] visits are allowed much more often, because the approach of the penitentiary system is based on the support of any social ties, not necessarily even with close relatives, but in general with any free people, because for the convict this is a key factor in reintegration into society ".

Such an approach, according to Chikov, ideally should be a guideline.