The devil is in the details: the QR-code law is almost in line with the Constitution

Novye Izvestia was investigating how the new law would correspond to the Constitution.

Yelena Ivanova, Natalia Seibil

Why the State Duma postponed the adoption of the Law on QR-codes

From February 1, 2022, Russians can become equal or even more equal. The government, fighting the spread of the coronavirus, has introduced a bill according to which unvaccinated residents of the country will not be able to fly by air, travel by train, or go to shopping centers and restaurants. The new law was going to be discussed in the Duma this week, but it was postponed for a whole month. As Vice Speaker Pyotr Tolstoy said, "to remove the questions that people are asking".

The United Russia party did not want to discuss the new restrictions for political reasons. Of course, they have a constitutional majority, and they can easily push through any bill that the authorities put forward. But when two factions at once - the Communist Party of the Russian Federation and A Just Russia - announced that they would vote against, no one has a desire to make this loud topic a reason for popular unrest. And they will definitely be, as the experience in Tatarstan has shown.

The Russian government is not afraid of anything, except for one thing - when people take to the streets. And if several thousand people marry Navalny, hundreds of thousands will rise up against QR codes. With the failed vaccination campaign, 65% of residents live without protection from the virus. All 65% will be curtailed in their constitutional rights at the push of a button in the plenary hall, opponents of the restrictions say.

Therefore, the Duma members took time out for a whole month, and the profile committee represented by United Russia party Klishas managed to assure that, although the law violates the rights of citizens, it complies with the Russian Constitution. Therefore, the legislator is ready to discuss the proposed measures "with the regions and institutions of civil society".

What the Constitution and Laws Says about the Possibility of QR-Codes

Alexandra Orekhovich, member of the Commission for Legal Support of the Digital Economy of the Moscow Branch of the Russian Lawyers Association, Director for Legal Initiatives of the Internet Initiatives Development Fund (IIDF), agrees with the Duma members. According to the Constitution, human rights and freedoms can be limited by federal law, but only to the extent necessary in order to protect the health, rights and legitimate interests of others, the lawyer says:

- Federal Law No. 52-FZ establishes the possibility of such restrictions. It is indicated that restrictive measures, including restrictions on the movement of the population, can be introduced on the territory of individual subjects on the basis of proposals, orders of chief state sanitary doctors, including regional authorities.

Lawyers who have read the new bill are not happy with it. Vitaly Isakov, a lawyer at the Institute of Law and Public Policy who has been recognized as a foreign agent, says the law was being drafted in a clear rush, and many important things remained unresolved.

The wording of the law does not provide for any alternative. Regardless of how proportionate he turns out to be in life, what may change when he is accepted, and it turns out that restrictions affect even more citizens' rights, it will be impossible to retreat either to the right or to the left.

- It is very short, but it tries to cover everything and everyone. Moreover, even the officials of the subjects of the federation, the governors, are empowered to determine, without a list of objects, where entry is prohibited without a QR code, the lawyer is indignant.

The presence of a QR code confirms the fact of vaccination, but not everyone's safety for society, critics say. Having been vaccinated, a person protected only himself, because being vaccinated, you can become a carrier of the virus, as the latest medical data say. The law on codes cannot guarantee that the owner of a QR code will not be dangerous to others.

Without the presentation of the QR code, it will be impossible to get into, for example, the MFC. But access to the MFC is not enshrined in the Constitution. On the other hand, how do MFCs or shopping centers differ from courts from an epidemiological point of view? The answer is simple: nothing. Both there and there are large numbers of people who can carry the virus indoors. But the right to judicial protection is written down in the Basic Law. If the governors decide that access to the courthouse is possible only by codes, then most citizens are deprived of the right to be present at the court. And this is a direct violation of the Constitution.

Regional authorities decide for themselves how to deal with coronavirus

The most intelligible thing that is formulated in the new law is the transfer of funding for anti-coronavirus vaccinations to the federal level, political analyst Ekaterina Shulman says in an interview with the BBC .

Now the center wants to legislate that it was already a common practice in the regions - the federal center declares the situation epidemically dangerous, and the regional authorities themselves decide what to do. “Why is it frightening people? Exactly for this reason - what was kind of extraordinary, temporary and situational is now enshrined in legislation, and there is a feeling that now it will always be so", - Yekaterina Shulman quotes the publication.

It is completely unclear from the law who will be responsible for the insufficiently precise wording. The categories of citizens that fall under the restrictions are also described rather vaguely. Lawyer Isakov says:

- We have limited everything to everyone. Competition has been limited, we can restrict access to judicial protection, freedom of assembly has been restricted, freedom of political and mass activity has also been restricted. Take any article of the Constitution, including the article on the right to a dignified life, and you will understand that all rights are massively and totally limited. This cannot be recognized as admissible from the point of view of the constitutional and legal meaning, which is embedded in the concept of the Constitution.

Although Dmitry Kravchenko, head of practice at the Asnis & Partners Law Office, points out that Article 55 of the Constitution provides for the possibility of restricting constitutional rights by federal law when it comes to constitutional interests, such as the security of citizens or the interests of other citizens. But it is important how this will be introduced in practice. Clear criteria are needed by which these restrictions are introduced.

- You cannot say indiscriminately that this is an unconstitutional action. But the very issue of compulsory vaccinations is initially very difficult. In this case, the vaccination is not compulsory, that is, it is mitigated. Probably, in this form, the bill can comply with the Constitution. The question is to have a balanced implementation, especially if it is transferred to the regional level, - Dmitry Kravchenko points out.

Communists talk about the segregation of society. Sergei Obukhov, a member of the Presidium of the Central Committee of the Communist Party of the Russian Federation, is sure that the law violates the constitutional rights of citizens. "In fact, this is a compulsory form of supposedly voluntary vaccination. The government does not enter into a dialogue with society. At this stage, we must definitely resist this", - the deputy said.

There are many unanswered questions to the new law. What about people who have had covid disease, but are not included in the system? What to do with those who received vaccines unregistered in Russia? What to do with people who live abroad and cannot fly home because they do not have a Russian QR-code?

In order to avoid heated discussion, the United Russia members, although they did not back up, took a pause for a month. However, the likelihood that the vaccinated minority will become the majority is unlikely. The experience of foreign countries shows that the more vaccinated there are in the country, the slower the vaccination is. In the United States, since July, the authorities have not been able to exceed 70% of the achieved 50% in six months. Disciplined Germans trample on 67%, and this is only the national average. There are regions where vaccination has not reached 50%.

Discussions with civil society promise to be long and unpromising.

Business representatives saw firsthand what restrictions mean. President of the Union of Shopping Centers Bulat Shakirov addressed President Putin directly. Protect, dear father - this is the general tone of his address. It can be understood. In just a few days of forced vacations, shopping centers in Moscow alone lost 11 billion rubles. Lobbyists are demanding that the industry be included in the list of affected industries. A law aimed at the good of society can cost the authorities dearly. The authors tried to defend themselves and wrote that its implementation would not require spending from the federal budget. But it's hard to believe in it.

In addition to material losses, there are doubts even in those structures of society that traditionally support the authorities. The Russian Orthodox Church was worried that believers would perceive the QR-code as the seal of the Antichrist. “I don’t believe that the QR code is the seal of the Antichrist”, - wrote the deputy head of the church, Bishop Savva (Tutunov) of Zelenograd (Tutunov) in Telegram, but his system still evokes “apocalyptic associations”.

The situation is not clear for the authorities. The people can get scared and run to get vaccinated or get indignant and go to protest. According to Yekaterina Shulman, the chances are roughly equal. Only one thing can be said with confidence: the new law did not add confidence to the authorities. To revive the interest of citizens in vaccination, it would be possible to allow, for example, the use of foreign vaccines, and some part of the population would necessarily take root. This would push the balance of power towards reasonable limits. In any case, the usual tactics of suppressing or pushing through the decision by any means does not work. And although, as the situation in the world shows, restrictions are being introduced everywhere now, the background is different. When the majority of the population is vaccinated, it is difficult, painful, but politically possible to introduce them. In a country where 35% of citizens are vaccinated, such legislation is reminiscent of the actions of an elephant in a china shop.