ON THE STATE OF EMERGENCY
A. N. Medushevsky
Constitutional regulation of the institution of a state of emergency is an important component of a
juridical state. Juridical uncertainty in this respect can pose a very dangerous situation. A state of
emergency institution, according to the history of democratic regimes crises, can be used in
antipodal ways—to protect democracy against extremism and, conversely, to establish an antidemocratic regime. According to K. Schmidt’s gnomic expression, a constitutional guarantor can
implement a state of emergency. That is why the establishment of a democratic law about the state
of emergency is extremely important for states with unstable constitutional processes and facing a
stage of transition from authoritarian to democratic statehood. The Constitution of the Russian
Federation of 1993 provided for the possibility of the implementation of a state of emergency in the
case of a situation and, according to the procedure, “established by the federal constitutional law”.
However, the law was approved only in 2001.
Its most important positive features are: a clear definition of a state of emergency institution, its
goals, conditions and procedure for its implementation. A state of emergency is considered “a
special legal regime” of the power bodies’ operation which is implemented regardless of the
existing organizational and legal forms and allows for particular limitation of civil rights and
freedoms to protect the constitutional state. Its implementation is only possible according to the
Constitution and alongside the existence of particular conditions of natural, social characteristics,
the elimination of which is not viable without extraordinary measures. The latter category includes
extreme situations of political conflicts which emerged abundantly in post-Soviet Russia—from
coup d’état attempts, military rebellion, terrorism and the formation of illegal military troops to
disturbances and various conflicts of a national, congressional or regional character. Their
distinguishing feature is defined by the application of “violent acts” creating a threat to the security
of citizens and operation of the state power structures.
It is very important that the law clearly establishes limits for the state of emergency institution within
such parameters as procedure of implementation, terms of existence and realization, set of applied
measures and limitations, as well as guarantees of the rights of citizens and responsibility of
officials. Effectuation of a state of emergency is supported by the organs of internal affairs, by the
criminal legislative system, by the federal security organs and by internal armed forces. Regulation
of the use of the armed forces in this context is of special importance. The law permits their
engagement "in exceptional situations”, though it does not explain the meaning of the latter
wording. The Frontier Service forces are engaged to facilitate a state of emergency only to protect
the state frontiers. The armed forces are engaged to fulfill the tasks performed by them many times
in the course of regional conflicts—effectuation of a special regime for entering a territory where a
state of emergency is implemented, safeguarding of strategic objects, separation of opposing
parties, participation in termination of activities of illegal military formations, as well as participation
in liquidation of extraordinary situations. Such tasks (except extraordinary situations related to
natural and man-caused conditions) are fulfilled by the armed forces “together” with the internal
affairs law and order forces, criminal law system organs, the federal security organs and internal
forces that aim to provide guidelines for strict control and coordination of their activity.
Operative subordination of troops varies depending on the state of emergency implemented either
locally, or, in the entire territory of the state. In the first case, uniform command of all the forces and
means supporting the regime is to be charged to the commandant of the territory. Within the
commandant’s authorities to issue orders and directives obligatory for organizations are citizens,
as well as heads of power organs, including military formations in the given territory attracted for
effectuation of the state of emergency. In the case of implementation of a state of emergency in the
entire territory of the Russian Federation, there is a special regime of operative subordination of all
military formations to a federal executive body nominated by the President of the RF.
It is important to outline several particulars of the law understandable in the current Russian
situation. Firstly, the state of emergency is implemented without consultations with the subjects of
the federation (this is considered by opponents as a limitation of federalism). The right to
implement a state of emergency belongs to the President. The formation of special state of
emergency administrative organs is done not by legislation, but by the edict of the President, and
the operation of such organs is based on the provisions approved by the President. The edict of
the President, on implemention of the state of emergency, is to be approved by the upper
chamber—the Federation Council, which becomes extremely important in such a situation.
Nevertheless, the matter of political independence of the upper chamber has become disputable
because of changes in the procedure of forming the same.
Of course, in the general context of power division and reformation of federalism, the law is aimed
at provision of integrity of the state, stability of the political regime and centralization of
administration. In an extreme situation, it gives to the federal center and to the President an
important instrument to influence subjects of the federation and allows the effectuation of wide
scale federal interference. Application of this instrument will depend on the general political
situation and dynamics of the Russian federalism processes.
As far as the law includes a considerable amount of limitation norms, its application is only possible
in exceptional situations and under strict public and international control. That is why some
opponents have demanded its application in the course of conflict in Chechnya. That would have
allowed, in particular, the flooring of the problem of refugees and protection of their proprietary
rights, and discussion of the question of legislative control over the armed forces. At the same
time, it is obvious that application of a state of emergency institution and engagement of troops in
the settlement of conflicts contains an imminent threat to democracy and should be considered as
an exceptional measure.