Women’s Rights and the Russian Constitution

When the battle around drafting the Constitution was taking place in 1991-1993, one particular issue was largely overlooked – the human rights of women. The drafters, predominantly male, were concerned with what was perceived as bigger issues: guaranteeing the first generation of human rights such as the right to life, liberty, property, freedom of assembly, movement etc. Not even all drafts explicitly guaranteed women’s human rights, including the draft by A. D. Sakharov, a Nobel Prize laureate for human rights. Only one draft offered a separate article on equality between women and men; all the others included the principle of gender equality in the ‘equality clause’ – a special clause outlining the principle of equality but without explicitly prohibiting discrimination. The final text of the Constitution guaranteed equal rights for women in Article 19.3, stating that men and women have equal rights and opportunities to exercise them in the said equality clause.

Was this an achievement or a failure? Today, thirty years later, it is obvious that such a minimum provision paved the way for constitutional neglect of women’s human rights. Other collective rights (of indigenous people, for example) were further guaranteed with a special federal law, but women never received such attention despite active attempts to put women’s rights on the legislator’s agenda.

In the 1990s, women’s rights continued to be dealt with using Soviet structures for handling the ‘woman question’. The Soviet Women’s Committee, which provided infrastructure for women in the Soviet Union, was transformed into the Union of Russian Women after the collapse of the USSR, becoming a semi-independent non-governmental organization lobbying for the interests of women. At the same time, the new parliament, which emerged as the result of the new Constitution of 1993, organized the State Duma’s Committee on the Affairs of Women, Family and Youth (and later Children) to oversee the ‘woman question’ in cooperation with the government and other agencies.

In line with the Russian Federation’s commitment to foster democracy and integrate into the international legal order, the Committee was very attentive to the international agenda for women’s rights. The Committee actively promoted legislation and policy documents to guarantee women’s rights, such as the 1996 Concept of the Improvement of the Status of Women in the Russian Federation, which stayed in force till 2004 and was the result of Russia’s commitment to the Beijing Platform. In 1997, the Committee introduced the draft law ‘On the basics of socio-legal protection from violence in the family’, one of four attempts to provide specialized legislation to prevent violence against women. Eventually, in 2003,the draft law ‘On state guarantees of equal rights and freedoms of men and women and equal opportunities for their realization’ was introduced to the State Duma after several years of preparatory work.

However, while every piece of draft legislation on gender equality or violence against women was finally tabled with explicit reference to  traditional values between 2016 and 2020, policy documents such as ‘concepts’ or ‘strategies’ have continued to regulate human rights of women up to this day. It is no coincidence that the regime has been using policy documents rather than legislation. In the Russian system of legal sources, a ‘concept’ is a system of interconnected approaches and views on a certain phenomenon, it is a type of legal policy document that provides guidelines for the executive agencies while simultaneously outlining the state’s stance on certain issues. Russia has a ‘concept’ for almost every field of regulation: The concept of foreign policy, nuclear policy, public administration, higher education, demographic policy, etc. Another policy document – a ‘strategy’ – is a system of specific steps to achieve certain results and supplements legislation and policy documents. Russia introduced the National Strategy in the Interests of Women, 2017–2022, in 2017, which was renewed in 2022 to extend until 2030.

In the absence of specialized legislation, policy documents fill the void. However, as they reflect the state’s view on women’s human rights, they do not provide legal guarantees but rather build on the existing mostly negative minimum of rights. In the absence of legislation, women’s rights are held hostage to the state’s policy and its caprices. Since Putin’s government committed itself to the ideology of ‘traditional values’ and structures its policies based on cultural sovereignty, women’s rights have been constantly challenged and threatened.

Women’s rights and gender equality in constitutional law

The Constitution of 1993 did not incorporate any provisions for the potential implementation of special measures to safeguard women’s human rights. Instead, Articles 15.4 and 17.1 stipulated the supremacy of international treaties ratified by the Russian Federation in instances of legislative gaps or contradictions. This essentially means that international treaties, namely, the CEDAW convention, serve as a direct source of law in the event of a legal gap, which in this case pertains to women’s human rights. Consequently, special measures can be introduced under such a constitutional provision.

The Constitution of 1993 and its amendments of 2020 with their minimum rights guarantees (also known as formal equality model) provide a potential framework for gender stereotyping and allow for the possibility of gender-based discrimination in the form of special measures related to motherhood and family.. The Constitution contains provisions for the support of the family, motherhood, fatherhood, and childhood (Article 7.2) and explicitly stipulates that motherhood, childhood, and the family are under state protection (Article 38.1). It is telling that fatherhood is excluded from the protection clause, thereby enabling gender stereotyping under the guise of constitutional protection.

The case law of the Russian Constitutional Court (RCC) also highlights that gender-based discrimination and human rights of women rarely become a subject of its assessment and ruling. Moreover, many of the applications which make it to the RCC include male applicants alleging gender-based discrimination. One of the landmark Russian cases brought before the European Court of Human Rights – Markin v Russia – is such a case, in which a male applicant claimed and won a case of gender-based discrimination in relation to parental leave, following a loophole in the constitutional provisions for the protection of motherhood, but not fatherhood.

Ironically, as scholars point out, the special protection of motherhood, including workplace protection and maternity benefits, as well as  women’s reproductive rights, became the primary focus of male applications alleging gender-based discrimination to the RCC. The case law generated by men protesting the preferential treatment of women is considerably larger than that arising from women’s complaints of discrimination. Men lodged complaints about women’s preferential treatment in pension legislation (where women’s retirement age is 5 years earlier than men’s), exclusive female access to maternity capital (a special demographic measure introduced in 2006 to encourage the birth of two or more children), employment guarantees (prohibition of firing a woman during pregnancy or while on maternity leave), and the exclusively male obligation of military service.

By contrast, women often bypassed the RCC to approach the European Court of Human Rights, with their applications primarily focusing on gender-based violence. Between 2019 – 2021, 16 applications pertaining to domestic violence were submitted to the ECtHR from Russia. Prior to that in 2018, the ECtHR communicated another four cases to Russia. Among other issues, complaints of Russian women regarding violations of their human rights to the ECtHR became one of the major points of contention between the RCC and ECtHR, ultimately leading to Russia’s attempt to challenge the supremacy of international law within the Russian legal system.

The situation around the Istanbul Convention underscored Russia’s fundamental problem with women’s human rights. The formal equality model, coupled with protectionist constitutional measures, ended up reinforcing gender stereotypes. This led to a reluctance by authorities to introduce more legislation on women’s rights, as men felt marginalized and voiced their complaints to the RCC. This reluctance in turn led to the dire situation with gender-based violence legislation. The open resistance to joining the Council of Europe’s Istanbul Convention resulted in legislative changes in 2020, with several federal laws and codes declaring domestic legislation superior to international law.. The Civil, Civil Procedural, Arbitrazh Procedural, Administrative Procedure and Criminal Procedure Codes were amended with the phrase ‘application of the rules of international treaties of the Russian Federation in their interpretation which contradicts the Constitution of the Russian Federation is not allowed’. This effectively reverted women to the protectionist and formal equality model in domestic law, in which women are not encouraged to have an active position, but are supposed to wait for the hand-outs from the state.

What is the future of human rights of women in Russia?

The constitutional amendments of 2020 and subsequent legislation focusing on traditional values and protection of the family also triggered a discussion about Russia’s place in the Council of Europe and other international organizations. Even before Russia was expelled from the Council of Europe in March 2022 for the attack against Ukraine, there had been voices suggesting that it would have been in Russia’s interest to exit the CoE due to its politically-biased attitude to Russia, as evidenced by the decisions on domestic violence cases coming from the ECtHR. On 14 February 2023, V.V. Putin declared that ‘some verdicts of this court [ECtHR] became openly politicized, … which recently had become unacceptable’ thus summing up the core issue.

Since the beginning of Russia’ aggression against Ukraine, the government’s rhetoric has become more conservative and nationalistic. In 2022-2023, Russia witnessed the introduction of a slew of oppressive legislation directly violating human rights. Against the backdrop of Putin’s focus on the fight against the ‘enemies’ and Russia’s isolation due to ‘fighting for the right cause’ women once again became the target of regulation with a steady and consistent assault on their human rights, particularly reproductive rights. Moreover, as women actively participate in anti-war protests, the authorities have been treating women more harshly during arrest, trial and sentencing as various reports show. Nevertheless, women continue to fight for their rights and freedoms in courts and on the streets, hoping for change.