Оригинал материала
Inappropriate enforcement of anti-extremist legislation in Russia in 2010
Edited by Alexander Verkhovsky
Contents
IMITATION OF ANTI-EXTREMIST ACTIVITY
THE FEDERAL LIST OF EXTREMIST MATERIALS : The Ministry of Justice as a Responsible Party : Materials Deemed Extremist and the Issue of Internet Freedom of Speech
DIRECT ABUSE OF THE ANTI-EXTREMIST LEGISLATION : Persecution of Religious Groups : Persecution of Political and Social Activists and Organizations : Persecution of the Media : Persecution of Human Rights Activists : Election Campaings
SUMMARY
The principal result of 2010 in our opinion has been the ultimate loss of public confidence in the anti-extremist legislation as a result of what we see as inappropriate anti-extremist activities.[1] Perception of this legislation and law enforcement practice as repressive was fully formed in 2010. While expressing opinions on extremism, a person is likely to note that in our country this concept is “elastic,” and virtually anyone can be labeled an extremist. This is not entirely accurate, and journalists and public figures, expressing such an opinion, often don’t have sufficient command of necessary facts or legal issues to be able to expand on their statement. However, this sentiment demonstrates society’s attitude toward the legislation. It came to the point, that even Russia’s Foreign Ministry, in its testimony before the European Commission, admitted that the definition of extremism in Russia is “too broad.”[2] There is a growing international understanding that inappropriate anti-extremism represents a crucial problem in today’s Russia. It became one of the major topics on the hearings on Human Rights in Russian Federation, organized by European Parliament.
“Extremism” has become just another kind of a dirty word, used indiscriminately by critics of the anti-extremist legislation as well as by its supporters in reference to anything good or bad respectively. Radical nationalists utilize this tendency with some measure of success for discrediting persecution of hate crimes in general, even violent ones. The latest attempts pertain to discrediting the Stanislav Markelov and Anastasia Baburova murder investigation: attempts to portray one of the suspects, Evgenia Khasis, - a member of Russian Verdict (Russkii verdikt) project for defense of neo-nazis convicted of violent crimes - as an unfairly victimized prisoner of conscience. In our opinion, the government is partially responsible for giving nationalists this opportunity by discrediting the anti-extremist legislation
Generally the unjustified use of anti-extremist legislation tends to display two tendencies (although borderline cases are also possible). First, it is used for suppressing particular “enemies”: religious organizations and their followers, political parties or specific politicians, civil groups and activists, media outlets and specific journalists. Second, various responsible agencies are engaged in “window dressing” in order to improve their statistics in the declared “war against extremism”: they are, so to speak, looking for extremism within easy reach. This second tendency affects libraries, schools, internet service providers, publishers and random users of internet forums.
Both tendencies have a lot to do with low quality of the legislation itself. The quality issue manifests itself in ever-increasing tendency to utilize the notion of “hatred towards a social group” in order to protect such groups as government representatives or law enforcement officials, as well as in persecution of religious groups merely for asserting that theirs is a true faith. Attempts to correct the norm by reasonable official commentary so far have extremely limited influence on law enforcement; the resolution of the plenary meeting of the Supreme Court of the Russian Federation regarding judicial practice related to the Russian Federation Statute on the Mass Media clearly illustrates this observation. Nobody has enough courage to even tackle an overwhelming problem of fixing the Federal List of Extremist Materials.
CREATION OF REGULATORY ACTS
In 2010 legislative initiatives manifested a tendency toward increasing punishments and extending the mandate of law enforcement agencies. In the period under review two pieces of legislation traveled the full path from the draft submission to becoming a law.
The first bill –on extending the powers of the FSB – was submitted to the State Duma by the government in April 2010, and its last components went into effect in October. The bill included changes to the Code of Administrative Offenses and to the law “On FSB” granting to this law enforcement agency the right to give proactive warnings to individuals regarding the “unacceptability of actions, causing reasons or creating conditions for committing crimes for which, according to the laws of Russian Federation, the investigation is within the purview of federal security agencies, in the absence of the basis for criminal charges.” Among the “extremist” articles of the Criminal Code under the FSB’s purview is Article 280 on public incitement to extremist activities. In addition the bill instated administrative penalties for refusing to comply with lawful orders of FSB officers, exempting, however, the above-mentioned preventive warnings.
Notably, the initial version of the bill, which contain no provisions for appealing the warnings in court and suggested publishing the warnings in the mass media, and then levying fines or administrative arrests on those , who ignore them, was modified substantially, to a large extent as a result of the public opinion pressure.
Passing this bill, even in its reduced format, was evidently important for the government, but so far we are unable to find out the reason. If this legislation was, indeed, intended for intimidation of political opposition – which was the popular fear – we doubt that the government would have shown so much readiness to amend it. In addition, lack of administrative responsibility for failure to comply renders the entire procedure meaningless: those, who can be stopped by warnings, will likely never plan a terrorist act or call for an armed uprising (crimes of actual concern to the FSB). The same can be said about potential victims of such inappropriate warnings: a political activist, seriously engaged in protest, will pay no attention to an inconsequential warning, since s/he is bound to deal with far more serious pressure.
The law might still have improper enforcement potential, but correct evaluation can’t be achieved without further research into its practice. At the time of this report we are not aware any cases the FSB-issued warnings.
It also should be noted, that giving the FSB – an operational and investigative body – legal oversight responsibilities goes contrary to the legislative logic, according to which this function belongs with the Prosecutor’s Office.
The second law, passed by the State Duma in 2010 toughened penalties for terrorists, their supporters and advocates. The bill was introduced by President Medvedev in July as a response to the April bombing in the Moscow Metro and went into effect in December. The changes related to Article 205 (Terrorism), Article 2051 (“Involvement of a person in the commission of crimes of terrorist nature”) and Article 2052 (“Public calls to terrorist activity or public justification of terrorism”) of the Criminal Code of the Russian Federation. The amendments by and large toughen the penalties and reduce the possibility of parole.
In our opinion the introduction of these amendments has no justification beyond achieving short-term political gains. The upper limit of punishment, especially for Article 2052 had been rarely used even prior to these changes.
Grouping sanctions “for the actions” and sanctions “for the words” (“Public calls …or public justification of terrorism”) within the same bill de facto puts these entirely conceptually different crimes on the same level. Considering customary liberties our law enforcement agencies take in their legal interpretations, toughening of penalties under Article 2052represents not simply a populist measure, but a threat to the freedom of speech. So far there have been no cases of inappropriate enforcement of the Criminal Code Article 2052, but in 2010 the society witnessed a vivid example of arbitrary interpretation of “public justification of terrorism” clause – a warning to Vedomosti daily newspaper, which misinterpreted newspaper article about the reasons behind terrorism, as justification of terrorism (see below for more on this case).
Another notable bill “On making changes to the Criminal Code of the Russian Federation, and selected legislation of the Russian Federation,” recently submitted to parliament by Moscow City Council, it yet to have its first reading. It calls for tougher hate crime penalties, for removing racist violence cases from the purview of jury trials, and for introducing administrative responsibility for media outlets if they mention ethnicity in the course of their criminal activity coverage. Various versions of similar initiatives have emerged in recent years, but, fortunately, never passed.
A restriction on mentioning ethnicity in criminal reporting is easy to sidestep, while at the same time it leads to restrictions on free speech and to concealing important information (i.e. racist attacks) from the public. As for tougher hate crime penalties and removing these crimes from the purview of jury trials, these ideas are based on the erroneous concepts. In fact, the maximal penalties, allowed by the Criminal Code’s are seldom used, and there is no reason to think that the Code needs further repressive potential. Jury issues a guilty verdict just as often as “regular” judges; moreover in some known cases after the guilty verdict by the jury, the judge issued a minimal or suspended sentence.
Interestingly enough, while lawmakers repeatedly come up with such initiatives, their ideas don’t find acceptance: out of the three Duma committees, which submitted their opinion on the bill, only one – the Committee on Nationality Affairs – gave a positive review. Committee on Civil, Criminal, Arbitral and Procedural Legislation and Committee on Public Associations and Religious Organizations found the bill to be excessive and laden with contradictions.
Over the past year, the issue of responsibility for the “distorting history” or “rehabilitating Nazism” resurfaced once again. In January 2010 the government issued a negative decision regarding the bill, proposed by United Russia, aimed at “‘violation of the historical memory of events which took place during the Second World War.” The ruling party did not stop there, and in March put together a project, criminalizing public approval or denial of Nazi crimes against peace and the security of humanity as established by the verdict of the Nuremberg Trial.” This formulation is obviously more acceptable than the previous version (which talked of "distorting the verdict of the Nuremberg Tribunal,” as if a sentence, already in effect, can be somehow distorted). However, existing legislative options are quite sufficient for counteracting Russian Nazi sympathizers, and passing of this law would have had a chilling effect on the academic debate on the subject of the Second World War. The goal to fight the “distortion of history” in the former Soviet republics, declared by United Russia members, is unachievable anyway, since the Criminal Code only applies inside the Russian Federation. Thus, we view this initiative as yet another example of imitating anti-extremist activity. At the moment of this report the project was still in the draft stage, which likely means that it gets no further serious consideration.
In 2010 an attempt was made to challenge the most odious formula in the anti-extremist legislation and law enforcement – incitement of hatred towards a social group. Roman Zamuraev, who was tried (and acquitted – more on that below) under Part 1 Article 282 of the Criminal Code of the Russian Federation (“Incitement of hatred”) for distributing a leaflet “You have elected — You are to judge!” (“Ty izbral – tebe sudit”), appealed to the Constitutional Court, asking to recognize the “hatred towards a social group” formula as unconstitutional, since it is non-specific and creates conditions for unconstitutional limitations to the freedom of speech. The Constitutional Court dismissed the complaint, based on the fact that the law specific in focusing only on premeditated actions, and protects an individual “regardless of any social or physical attributes.” This is not really an answer, or, rather, this is an answer to a different question, so the Constitutional Court simply avoided considering an actual existing problem. Besides, from numerous unsuccessful attempts to use this article for protection, for example, of sexual minorities, we see that it protects an individual by no means “regardless of any attributes.”
The 15 July 2010 resolution of the plenary meeting of the Supreme Court of the Russian Federation regarding judicial practice related to the Russian Federation Statute on the Mass Media has been an only positive step toward limiting the inappropriate enforcement of anti-extremist legislation. This resolution resolves in favor of the media the contentious issues such as whether a media outlet can be held responsible for quotation of xenophobic statements, for the publication of satirical, humorous and non-realistic materials that engage an “extremist” topic, and for audience comments during live broadcast or on forums of the mass media outlet internet sites. It is also important, that the Supreme Court instructed to consider the entire content of the publication, when evaluating the case, repudiating the practice of taking quotes out of context.
Regretfully, monitoring of the law enforcement practice following the enactment of this resolution shows that prosecutors and judges are so far simply ignoring it. The most striking example is the town court of Tosno, Leningrad Region, which managed to break the Supreme Court regulation, even while quoting it in its decision. We are talking about the cartoon in the Arsenievskie Vesti newspaper, which illustrated the critical article about the Housing and Utilities Sector (Zhilishno-Kommunalnoe Hozyaistvo, “ZhКХ”) reform: the last letter was stylized as the swastika. The court, basing on logic “if we are not laughing, then this is not satire” deemed that the cartoon had not been appropriate in the context of the article and upheld the anti-extremist warning to the newspaper.
Following the Supreme Court Regulation, the Federal Supervision Agency for Information Technologies and Communications (Roskomnadzor) promptly issued an order, regulating the procedure of issuing anti-extremist warnings to media outlets for statements made on their forums. The order applies to all registered mass media outlets that have websites or online versions. Upon discovery of internet forum statements s/he considers extremist the Roskomnadzor officer emails and faxes the formal letter to the editor. The offensive commentary should be removed within 24 hours otherwise the agency issues an official warning. This formula immediately raised concerns: it did not specify whether the 24-hour countdown starts from the moment the letter was received, or from the moment it was sent. In addition, 24-hours constitute an extremely tight timeframe (for example, some internet media outlets argue that they receive thousands of letters each day, and may not be able to process the Roskomnadzor’s letter that fast).
IMITATION OF ANTI-EXTREMIST ACTIVITY
This phenomenon existed prior to 2010. Imitation of activity appeared as soon as the fight against extremism was declared a state priority. Since the legal definition of extremism de facto puts very dangerous activities in the same category as less or even not at all dangerous ones, in order to look well on the report it is much easier to follow simple formal procedures then investigate activities of truly dangerous groups (often undercover, and even with some ability to resist, as we have seen in case of the neo-Nazi underground). This imitation of activity takes several major directions.
First and foremost we would like to mention the situation with libraries all over the country, facing prosecution for extremist materials found in their collections, or simply not having on file the up-to-date copy of the Federal List of Extremist Materials. There are tens of thousands of libraries in this country, and if the Prosecutor’s Office pays a visit to each of them, in 90% of the cases they will be able to find fault with one thing or another. This potentially means tens of thousands of points in the anti-extremist section of prosecutorial response statistics.
In 2010 we learned about sanctions against the library managers in Orenburg, Kirov, Novgorod, Voronezh, Novosibirsk, Volgograd, Tula, Pskov, and Kaluga Regions; in Altai, North Ossetia, Tuva, Kalmykia, Adygea, and Tatarstan Republics; in Krasnodar, Krasnoyarsk, the Trans-Baikal and Altai krays; in Khanty-Mansiysk and Chukotka Autonomous Districts. In these cases a lot of time, paper and law enforcement efforts are completely wasted, since both charges against libraries are inappropriate. First, there is no obligation to have a printed copy of the Federal List of Extremist Materials on file, since it is both constantly revised, and available via the Ministry of Justice website. Next, according to the law “On Librarianship” libraries can neither refuse to lend a publication, nor conceal its existence in their collections. Deposit Libraries are under obligation to accept mandatory copies, and, even if materials are deemed extremist, can’t withdraw them from their collections.
Schools are in a similar situation: the sanctions against them might be better substantiated from the legal standpoint, but no more justified. Here the problem is with the content filtering software that the Federal Education Agency was supposed to provide for all school computers with internet access. These systems do not function properly, due both to their inherent design flaws, and the school personnel’s lack of diligence or skill. The prosecutor visits a school, enters a “bad” word, such as “national-bolshevik” or “swastika” into a search engine, or simply tries a banned site’s URL, then penalizes the school management for giving children an opportunity to read something extremist online. In the meantime, nobody bothers to check whether this computer was ever, in fact, used to access banned sites. In any case, the filtering system has a very limited effectiveness, and can easily be bypassed, and this is definitely not the school’s fault.
Imitation of activity also takes form of banning organizations that have long ago ceased to exist. Thus on 1 February 2010 the Supreme Court of the Russian Federation declared extremist the International Public Organization “National-Socialist Society” (Natsional-sotsialisticheskoe obshchestvo,NSO), and on 20 December Moscow City Court banned the Inter-regional Public Association “Format-18.” Both organizations, while notorious and worthy of law enforcement attention in their past, by all accounts had ceased to operate.
We would like to mention separately the ban on the organization “Noble Order of the Devil” (Blagorodnyi Orden Diavola), issued by the Supreme Court of Mordovia on 27 December 2010. Initially the founders of this “Satanist” youth group were charged with a whole series of crimes, but most accusations fell apart during investigation. In the meantime, the group has completely ceased to exist. On 20 July 2010 October District Court of Saransk, which convicted Denis Danshin and Alexander Kazakov, included no charges of extremism in its verdict. Even if we believe the court charges of sexual assault against junior female group members (according to human rights activists, the case has been falsified, and the investigation was marred by numerous violations)[3], the charge has no relation to the law "On Countering Extremist Activities", and thus the Court had no legal grounds for banning the organization
Another possible activity is solemn media-publicized banning of already banned books. The text of the Federal Law "On Countering Extremist Activities" contains a direct prohibition of publications by leaders of the Nazi Party and the Fascist Party of Italy. This does not prevent some of the courts from banning these books and including them into the already bloated Federal List. In 2010 Bashkir prosecutor Amir Akhmetov showed a particular zeal in this area. Due to his efforts the courts once again banned Hitler's Mein Kampf (by the 24 March 2010 decision of Kirov Court in Ufa), the book by Himmler (by the 22 December 2010 decision of Miyakin District Court of Bashkortostan) and two books by Mussolini (by the 26 May 2010 decision of Kirov District Court in Ufa to ban The Doctrine of Fascism and by the 28 October 2010 decision of Miyakin District Court of Bashkortostan to ban Memoirs 1942-1943). By the time of the Bashkortostan court decision, in addition to an outright ban in the text of the law, Mussolini’s The Doctrine of Fascism was already banned by Butyrsky District Court in Moscow on October 7, 2009. Prosecutor Akhmetov explains his actions by saying that the ban on works of the founders of Nazism and Fascism was "insufficiently regulated”, and therefore the decision was made to fight “founding documents” rather than “grass-roots manifestations of extremism”. We consider the ban to be sufficiently regulated and already successfully used: for example, in 2009 the “National Business” magazine in Tyumen received a warning from the Prosecutor's Office for publishing the excerpt from Mein Kampf.
THE FEDERAL LIST OF EXTREMIST MATERIALS
The very ease of classifying material as extremist makes this activity an extremely attractive tool for inflating statistics and imitating fight against extremism. After conducting an expertise, not necessarily professional in substance or legitimate from the procedural perspective the Prosecutor’s Office files a claim, and the court frequently satisfies the claim, often not even duly examining the expert opinion or material in question, and not calling authors, publishers or distributors as defendants in the suit, thus depriving them of the right to a fair trial.
It seems that nobody gives a thought to feasibility of banning a particular item. For example, in June 2010 the list added seven items, altogether containing over 300 materials under such titles as “13ng.jpg” “beelinel.jpg”, “Zhidy.wmv”, “Blagotvoritelnost.wmv”, and listing name and address of computer owner in place of bibliographic data. How could files from someone’s private computer (even if they indeed contain something criminal) constitute danger to society, and, more importantly, how could these documents be identified in the future?
The same can be said about the bans on leaflets, produced in minimal quantities, and once seized, no longer available to an outside reader, about the bans on comments or entire Internet pages already physically inaccessible online (many times we faced the problem of being unable to determine whether the ban was appropriate for this very reason). Thus on 15 September 2010 in Omsk, the court banned the leaflet entitled The Third Capital Special Issue: The Chronicles of the diving mayor (Tretiia stolitsa spetsvypusk: Hroniki pikiruruiushego gradonachal’nika) – a look-alike of the local newspaper The Third Capital, released without imprint. Here, the court not only accepted the extremist character of the leaflet, which, according to the expert opinion, consisted of the information "about the inferiority of citizens on the basis of their relationship to social groups, such as the City Hall (Omsk City Administration), the Department of Internal Affairs, etc. (here specific government agencies are named as social groups). In addition, the leaflet’s text is no longer available on the Internet, and the actual print run was confiscated and destroyed.
Yet another absurd law enforcement practice is banning clearly unreadable texts, which become publically known only due to the fact of their ban, and which present no danger since even if someone accidentally reads them, they can’t be taken seriously. The most obvious example is the ban on the texts (deemed extremist in January 2010) authored by Kolograd Society of Bryansk, filled with mystical terms along with spelling and grammar errors, and constituting a dossier of sorts on Dmitry Medvedev and Vladimir Putin. These texts, which read like the work of psychiatric patients, reveal Jewish origins of Putin and Medvedev and their "dark" identity (in a mystical sense).
On several occasions we mentioned that the Federal List of Extremist Materials has become a problem in itself. In 2010 it was updated 27 times and grew from 467 items to 748: four items have been “erased” (the materials excluded, without shifting the numeration), 32 items have been formally deemed inappropriately classified, after their ban was lifted by higher courts, with no further decisions up to date; 47 items duplicate each other, i.e. contain duplicating bans on the same materials by different courts (this count excludes the cases of the same texts with different imprints, such as “You have elected — You are to judge!” (Ty izbral – tebe sudit’) featured on the Federal List three times. In addition, at least three court decisions are included twice, i.e. the error was made by the Ministry of Justice: the same decisions regarding the same materials were registered repeatedly. Due to its size, repetitions and grave bibliographic errors, the List has become completely unusable.
The Ministry of Justice as a Responsible Party
In the meantime, the Federal List of Extremist Materials has turned into one of the principal repressive instruments, serving as the basis for administrative charges (sometimes even criminal charges, not stipulated in the law), for numerous warnings to libraries, for forcing ISPs to execute court orders of uncertain legal standing and technical effectiveness, even the prosecutors’ orders, although their out-of-court orders are highly questionable to begin with. In 2010 it became clear that the Ministry of Justice, which serves as a technical registrar of court decisions on the prohibition of certain materials, also bears its share of responsibility for this situation.
We have two points in mind. The first is the timely removal of materials from the List once judicial decisions about their ban are overruled. Since 2009 the List includes the materials of Falun Dafa religious movement, although there is no enforceable court decision to ban them. In early 2010 the Falun Dafa followers attempted a court case to force the Ministry of Justice to remove their materials from the list, but failed. The Moscow City Court ruled to wait until the appeal to overturn the ban lift, filed by the Prosecutor’s Office, receives its final verdict. At the time of writing, Pervomaiskii Court of Krasnodar is still considering the Prosecutor’s Office claim, although the process began as far back as in September 2009. A complex psycho-linguistic and theological expertise has been scheduled with the governmental "Southern Regional Forensic Center" of the Ministry of Justice of the Russian Federation. Forensic Center missed all the scheduled deadlines, and eventually moved their expert opinion due date to February 2011. While the Ministry of Justice experts have spent a year and a half looking for non-existing extremism (at taxpayers' expense, mind you, since the expertise costs are covered by the Prosecutor's office), several texts by Falun Dafa followers remain on the Federal List compiled by the very same Ministry of Justice.
The texts of L. Ron Hubbard faced a similar, albeit even more egregious, situation in 2010. On 26 March, 2010 they were deemed extremist by the City Court of Surgut (in our opinion, inappropriately). Scientologists filed their appeal at their first opportunity, and technically the decision never went into effect, but the materials have been added to the List nevertheless. Moscow Scientology representatives filed a complaint in court, requesting the Ministry of Justice to take these materials off the List, and in October 2010 Zamoskvoretsky court in Moscow issued a judgment instructing the Ministry to remove them from its website until the proceedings are over. However, at the time of this report, L. Ron Hubbard’s books are still listed as banned. The lack of action from the Ministry of Justice looks particularly cynical, considering that on Dec. 9, 2010 he City Court of Surgut reconsidered its earlier decision, and no longer considers Scientology books extremist (the latter decision went into effect on February 2, 2011).
The second point regarding the Ministry’s responsibility is the lack of initiative in resolving certain issues related to the materials on the Federal List.
As we mentioned above, the libraries find themselves in a difficult situation, between the hammer of anti-extremist legislation, prohibiting any distribution of extremist materials, and the anvil of the law “On Librarianship,” prohibiting any removal of books from library collections. Libraries have no authority to resolve this contradiction, so this issue needs to be decided on higher level.
In 2010 the Ministry of Culture took the initiative to resolve this contradiction, and, in coordination with the Prosecutor General's Office, drafted an order "On Approval of instructions for the documents included in the Federal List of Extremist Materials.” This order was intended to establish a clear procedure for library staff working with prohibited materials.
The order had to get the Ministry of Justice approval. However the Ministry of Justice refused to cooperate, insisting that, by issuing this order, the Ministry of Culture has exceeded its jurisdiction, thus creating a “corruptogenic factor.”
Materials Deemed Extremist and the Issue of Internet Freedom of Speech
The lack of understanding between internet services providers and law enforcement agencies constitutes one of the key problems. The former[4] insist that they merely provide “the pipeline,” for the entire internet content stream, from which the users can pick whatever they need. Thus, the ISPs do not consider themselves content distributors; they just provide technical internet access capabilities. The law enforcement personnel insist that providing this “pipeline” constitutes distribution of extremist materials, and that ISPs carry some degree of content responsibility (please note, that we are talking about internet access providers, not content hosting providers). Several crucial factors further complicate this fundamental difference in perception.
Russian judges and prosecutors – the ones who give orders to internet service providers – are appallingly internet-illiterate. This is not surprising, since modern technologies are complex, rapidly evolving, and quite hard for non-professionals to understand. However, these law enforcement officers, who, in the absence of clear legislative guidance have to rely on their own judgment, end up giving orders to internet professionals. The most striking example of this phenomenon is the “YouTube ban” story in the Khabarovsk Kray, when the court demanded to block the entire range of high-profile international portals, including YouTube, for containing several banned videoclips. It was further revealed during the process, that the judge, who issued this decision, did not know the meaning of the term "online." Fortunately, the Kray Court later reversed the verdict, but instead it came up with a technically problematic decision to block access to specific materials.
The means of blocking access to banned materials are not always clear. Access filters can be IP-based, but then, in addition to prohibited items, the users lose access to many other materials located on the same server. Filters can also target the URLs of specific materials (that could be the way to fulful the Khabarovsk Kray Court) but then a supposed malefactor could easily move the items to another URL on the same site.
The inefficiency of the ISP-based filtering has become obvious. The distributors of the materials can easily move them, while potential audience can use proxy-servers. Moreover, URLs of banned webpages or online materials are deliberately distorted when the sites are added to the Federal List (evidently, in order to avoid accidentally advertising the sites) making their identification and filtering impossible.
It is becoming evident that blocking access to a particular banned material is unlikely to be effective as a law enforcement measure.
DIRECT ABUSE OF THE ANTI-EXTREMIST LEGISLATION
Direct abuse of the legislation, by using overly expansive or simply inappropriate intepretation, usually takes place in order to persecute specific people or groups. 2010 continued the trends of the previous years.
Persecution of Religious Groups
The most widespread and severe repressions, including even the criminal convictions, pertained to religious groups: certain Muslims, Jehovah's Witnesses, followers of the Falun Gong spiritual practice and Scientologists (whose major problems, related to the recent ban on their materials, are described above; in addition we have learned of one court case against Scientologists in the Moscow region under Article 282).
Persecution of Muslim groups in 2010 has become rather routine: despite the scale of repression, nothing drastically new took place: some books were banned, including works by Said Nursi; real and suspected followers of banned groups Hizb ut-Tahrir, Tablighi Jamaat and Nurdzhular[5] faced administrative and criminal prosecution. Twelve people cumulatively received at least five criminal convictions for Hizb ut-Tahrir membership (with five members sentenced to prison terms), there was at least one conviction for Nurdzhular membership (suspended sentence); same with Tablighi Jamaat. At least six criminal cases were opened: four for Hizb ut-Tahrir membership, one for Nurdzhular, one for Tablighi Jamaat. These results were obtained by comparing our data with data collected by Elena Ryabinina of the Human Rights Institute. Compared to 2009 we observe slight increase in the number of convictions: four in 2009 vs. seven in 2010, but the overall picture remains unchanged, and so does the number of convicted persons: 14, the same as in 2009.
Persecution of Jehovah’s Witnesses can be named as the defining process of the year with at least eleven criminal cases currently unfolding across Russia mainly under charges of incitement to hatred (seven of the cases were initiated in 2010).
The trial of Alexander Kalistratov in Gorno-Altaisk (still ongoing at the time of this report) provided the most revealing example. Gorno-Altaisk Jehovah’s Witnesses organization was deemed extremist and banned in October 2009, and the trial of its leadear under part 1 Article 282 (“inciting religious hatred”) of the Criminal Code of the Russian Federation began a year later, on 20 October 2010. This trial is unique not just because it is the first criminal case against a specific adept of Jehovah’s Witnesses, but also because this was the first time the Prosecutor’s Office charges against religious literature by Jehovah’s Witnesses have been considered on their merits, with representation from authors and publishers. In addition, Kalistratov trial attracted significant attention, which gives us some hope for a fair trial. Specifically, the proceedings are being monitored by representatives of the Office of the Commissioner for Human Rights in Russia, and receive attention at the international level (for example, in the European Parliament).
Out of 40 prosecution witnesses, not a single one confirmed that the defendant had incited religious hatred. At the same time, it turned out that an overwhelming majority of them, including Irina Malysheva, the Gorno-Altaisk administration public relation expert,[6] were familiar with Jehovah’s Witnesses doctrine only as paraphrased by the notorious “expert on sects” Alexander Dvorkin.
In our opinion this trial is inappropriate not only because it is impossible to find any elements corresponding to the definition of extremism, let alone the wording of the Criminal Code Article 282 in the teaching of Jehovah’s Witnesses. The activities, qualified by the prosecution as incitement of hatred, consisted of distributing literature, and should have been prosecuted under article 20.29 of the Administrative Code (“Mass distribution of extremist materials”). However, these materials have not been banned at the time when Kalistratov was distributing them, according to the Prosecutor’s Office.
The ban of six additional Jehovah’s Witnesses book and magazine titles by Zavodskoj District Court of Kemerovo became yet another notable event of 2010. The court session took place on 28 October 2010, but its decision became known only in January 2011 from the update of the Federal List of Extremist Material. The ban was made in complete secrecy not only from the general public, but also from Jehovah’s Witnesses’ representatives; as a result they had no chance either to participate in the process or to appeal its decision. Of course in some cases concerning the prohibition of materials it could be difficult for the court to locate interested parties (for example, if the book contains no imprint), but this is not applicable to materials of a well-known religious organization.
Also notable is the criminal charges in Kemerovo brought under several articles of the Criminal Code including Article 2821 (“Organizing an extremist group”). Since the entire case once again boils down to distribution of religious literature, the extremist activities, which, according to the prosecution, constitute the “group’s” purpose, consist of spreading their religious beliefs. If we agree that merely spreading one’s religious beliefs constitutes participation in the extremist group, then all Jehovah’s Witnessess can be charged under Article 2821. The Kemerovo precedent, if upheld by the court, signifies authorization for mass persecutions of this kind. In case of slightly more narrow interpretation, when participation in extremist group comes from the act of distribution of banned materials, the repressive potential of the law is diluted, substituting criminal responsibility under Article 2821 for administrative responsibility under Article 20.29 (This schema can be later applied to the followers of other religions or opinions along the same lines).
While Jehovah’s Witnesses and several other religious groups are persecuted primarily for the claim that theirs is a true faith (i.e. for the activities common to all religions), the conviction to the organizers of the exhibit “Forbidden Art 2006” reflects quite different, albeit not any more appropriate, interpretation of the Criminal Code Article on inciting religious hatred. De facto, based on the verdict’s text the Moscow Taganski Court, which on 12 July 2010 found Yuri Samodurov and Andrey Erofeev guilty of inciting religious hatred, convicted them for distorting religious symbols, i.e. for blasphemy (this decision was upheld by Moscow City Court in October). Strong public reaction, both in Russia and beyond, speeches by human rights activists, artists, art critics and even several religious leaders could not prevent the prosecutor or the court from abusing their right to appease insulted orthodox radicals, most of whom never even attended the exhibition. We can specifically point to the abuse, since Article 282 refers to actions against people and not against their ideas, including religious ones.
Persecution of Political and Social Activists and Organizations
As before, the cases against former or suspected members of National Bolshevik Party (Natsional-bol’shevistskaia partiia, NBP), banned in 2007, stand out. In 2010 the Supreme Court refused to consider a complaint from Ekaterinburg activist Alexey Nikiforov against this ban. In 2010 at least 10 criminal cases were initiated against the National-Bolsheviks under Article 2822of the Criminal Code of the Russian Federation (“Participation in activities of banned extremist organization”); at least half of them ended with a guilty verdict. Nikiforov was among those convicted, and, like others, he was convicted for the activities, that were not criminal by themselves, except under Article 2822. Thus, the only reason for their conviction was the ban on NBP, which, as we always remind, was inappropriate[7] to start with – the detail, which many commentators have now forgotten.
Persecution of other political activists have been narrowly targeted and mostly had to do with the local need to “reign in undesirables”. Most frequently activists are charged with various crimes against professional groups such as "law enforcement agents," “the military,” “government officials,” “deputies” – the wording may vary, but the essence is the same. Powerful and often armed people are portrayed as vulnerable social group in need of extra protection, and criticism against them is interpreted as inciting social hatred. According to our ongoing observations since 2005, such cases constitute the vast majority of times the term "social group” is used in legal practice. In 2010, the trial of Nadezhda Nizovkina and Tatiana Stetsura, two activists of the Democratic Union (Demokraticheskiy Soyuz) and Solidarity (Solidarnost’) movement has started in Ulan-Ude. They were charged under Part 1 Article 282 ("inciting social hatred") of the Criminal Code. Nadezhda Nizovkina and Tatiana Stetsura distributed leaflets entitled "February 23 – Day of TRA-URA: Day of victims of Defenders of the Fatherland!" (“23 fevralia – den’ Tra-Ura: den’ zhertv zashitnikov Otechestva”). Experts have not found any direct incitements in the text, but found "verbal extremism:" intolerant and hostile feelings toward law enforcement and the military. Defendants maintained a defiant stance: refused counsel and repeatedly failed to appear at the sessions, denying the legitimacy of the charges against them in particular and legitimacy of Article 282 as a whole. As a result, they were even put in jail for two months, citing the need to ensure their attendance in court. The sentence was handed down in January 2011; the women were fined 100 thousand rubles each.
Another court case, on trial since December 2010 in Tyumen, was filed against the anarchist and social activist Andrei Kutuzov. He was charged under Part 1, Article 280 (“public appeals for extremist activity ") of the Criminal Code for distributing leaflets calling for violence against police. In the meantime the activist himself and a number of independent experts claim that the leaflet was faked: incitement to violence was added to Kutuzov’s original text and markedly contrasts with it. Interestingly enough, one of the prosecution’s experts, Svetlana Mochalova from the forensic laboratory of the Sverdlovsk regional FSB office, is notorious for her expert opinions regarding materials by Jehovah's Witnesses and the Falun Gong. The second expert, psychologist Olga Usova for her research uses Slovodel software available through the site www.vedium.ru. The site also offers paid services for the scientific protection against vampires and evil eye along with other dubious miracles.
Andrey Kutuzov was one of several suspects held in the 2009 political vandalism case, but that case was closed. It is not improbable that some police officers could slightly "adjust" Kutuzov’s leaflet on the police reform, inserting some incriminating calls for violence.
We would like to give special attention to the case of the art-group Voina (“War”), which had its two activists arrested in November of 2010. At the time of this report, they are released on bail while awaiting trial for staging an action against police brutality and for police reform titled Palace Overturn (Dvortsovyi Perevorot). Oleg Vorotnikov and Leonid Nikolayev are charged with crime under Paragraph "b" Part 1 Article 213 ("Hooliganism motivated by hate"). In the course of the action one police car and one private security car of non-government were turned over; the authors posted their video on the internet with commentary, clearly showing that these acts were committed not out of simple aggression but as a symbolic call for change.
We consider prosecuting Nikolaev and Vorotnikov “for extremism” to be inappropriate. Without a doubt, the property was damaged, and we are not advocating complete release of the perpetrators from responsibility. We think, however, that here the law has been poorly formulated and used, and this is socially dangerous and relevant not just to the defendants in this particular case.
Briefly, our considerations are as follows.
The very existence of hate motivation in Article 213 of the Criminal Code is a legal nonsense, since hooliganism is a public order violation, committed almost for no reason, just for the sake of violating public order.[8] As soon as we have a clear motivation – and hate is as clear and strong a motive as, for example, greed – the breach of public order stops being end in itself, and thus the action is no longer hooliganism in the sense of Article 213.[9]
With respect to the case of Voina this problematic article of the Criminal Code is used inappropriately as well, since here police is portrayed as a group, protected by the hate crime laws, while, as we mentioned above, police can’t be considered a particularly vulnerable social group, and it should not get extra protection, provided by hate crime legislation.[10]
To conclude our discussion of the “social group” concept and its inappropriate interpretation we would like to mention two positive examples: in the fall of 2010 two ordinary district courts, in Kostroma and Ekaterinburg directly stated in their decisions that government representatives cannot be considered a social group.
On 1 November 2010 Sverdlovsk District Court of Kostroma acquitted Roman Zamuraev, who published online text of the leaflet You have elected — You are to judge! (Ty izbral – tebe sudit’ by Army of People’s Will (Armiya Voli Naroda, AVN). Zamuraev was charged under Part 1 Article 282 (“Incitement of social hatred”) of the Criminal Code of the Russian Federation. The court found no crime in his actions: the Prosecutor’s Office insisted that publishing an extremist article online was the act inciting social hatred, but, as the court correctly noted, responsibility for this action is covered by the Article 20.29 (“Mass distribution of extremist materials”) of the Administrative Code of the Russian Federation. In addition, the court’s position on expert opinion was unusual for our jurisprudence. Faced with the fact that different experts examining the text of the leaflets, have come to conflicting conclusions and since these contradictions were impossible to eliminate in the course of the trial, the court interpreted all irremovable doubts in favor of the defendant. Judge Trifonova also pointed out that representatives of the legislative and executive branches cannot be considered a social group, since they lack the internal structure, common goals, unity and commonality of interests.
On 11 November 2010 Kirov District Court in Ekaterinburg dismissed a lawsuit by the Prosecutor’s Office to recognize a series of texts by Eduard Limonov, and Zakhar Prilepin as extremist materials. With respect to incitement of hatred toward the government and police found in the texts by the prosecutors, the court noted that "these social subjects not have any specific features, attributing them to one or another social group, except for the fact that they have the power", therefore "the urge to commit hostile and illegal actions on the basis of non-existent features does not appear possible."
Persecution of the Media
In 2010 persecution of the media due to inappropriate interpretation of anti-extremist legislation was mostly related to Roskomnadzor’s warnings. Out of 28 warnings to media outlets about impermissibility of extremist activities at least 10 were issued inappropriately.
We would like to emphasize two warnings issued to major federal newspapers: Novaya Gazeta and Vedomosti. They deserve special attention not because smaller and regional newspapers are any less important, but because both warnings were not just inappropriate, but demonstratively so, and the scope of the media outlets only underscored this inappropriateness. Both newspapers appealed the warnings but to no avail, thus adding to the number of state entities responsible for breaking the law with regard to those media outlets. This is not just a mistake by Roskomnadzor, but a premeditated violation, buttressed by the court decision. In both cases the warning was made for articles on extremely controversial subjects, so the warnings could probably be interpreted as the sign of the officials’ fear of such discussions. On both occasions the courts, by refusing to lift the warnings, violated the resolution of the plenary meeting of the Supreme Court of the Russian Federation “On judicial practice related to the Russian Federation Statute on the Mass Media”, which clarifies the importance of considering the publication context.
Novaya Gazeta received a warning in March 2010 for publication of the incriminating article by I. Nikitovich “Gang, Agency, Party. Who are the
Vedomsti received a warning in June 2010 for an article by Maya Kucherskaya “Eternal Values. Failure to Communicate,” (Vecnnye tsennosti: Proval kommunikatsii) of 9 April 2010. According to Roskomnadzor, the article contains statements providing public justification of terrorist activity. The article analyzed the motives of two female suicide bombers responsible for the Moscow Metro explosion of 29 March 2010. The author clearly repudiated these terrorist attacks in particular as well as terrorism in general. She wrote that at least one of the suicide bombers had been motivated not by her suggestibility and fanaticism, but by hopelessness and feeling that an act of terror was the only way to “make herself heard”. The article’s final sentence “Terrorist act also represents a sick and ugly attempt to communicate with the deaf world” leaves no doubts that the author condemns this method of communication. The same Tagansky District court in Moscow upheld the warning, citing expert opinion. Curiously enough, prior to the court verdict, there had been an attempt to discredit the expert opinion: Elena Penskaya, Professor of the Higher School of Economics (Vysshaya Shkola Economiki, HSE) and the head of its Literature Department, who was listed as the expert opinion’s author, denied her authorship. This story reaches Shakespearean passion once we realize that Maya Kucherskaya also teaches at the HSE Literature Department, and Penskaya is her direct supervisor.
Besides warnings to media outlets, 2010 also witnessed initiation of criminal proceedings against Vladimir Yefimov the chief editor of the Vechernyaya Tyumen newspaper under paragraph b Part 2 Article 282 ("incitement of social hatred, committed with the use of the mass media by a person through his official position."). The charges stemmed from several articles, witty stories about the interaction of Tyumen social activists with law enforcement officials, which contain neither appeals to violence, nor any inferiority allegations toward any group whatsoever. The author of these articles, Rustam Fakhretdinov, a co-defendant of above-mentioned Andrey Kutuzov in a failed political vandalism case, has been searched and interrogated as a suspect.
On the positive side, in 2010 the Supreme Court of Dagestan dismissed a lawsuit filed by Roskomnadzor and Dagestani Prosecutor's Office to close the "Draft" (Chernovik) newspaper. Expert opinion has not confirmed the presence of extremism in articles under examination. Meanwhile, to the best of our knowledge, the court case against the newspaper employees (accused of inciting hatred) has not yet been closed.
Persecution of Human Rights Activists
In 2010 inappropriate sanctions or actions on the topic of extremism relating to human rights activists were sporadic, so we can simply list them all.
The Rostov Regional Prosecutor's Office issued a warning regarding the impermissibility of extremist activity to Konstantin Baranov, the author of the report "Xenophobia and Discrimination in the Rostov region in 2008. Report on the Results of Human Rights Monitoring." The pretext for the warning was that the last pages of the report listed the contact details of all organizations, described therein, including the banned National Bolshevik Party. The effectiveness of publishing contact information in such reports is questionable, but, in any case, this action cannot be qualified as extremist. Despite this, Baranov was unable to dispute the warning.
In October 2010, Igor Sazhin, a Board member of International "Memorial" Society, a member of the Oversight Commission to monitor human rights in places of detention in the Komi Republic, was twice detained, searched and photographed by the Interior Ministry officers in Moscow and St. Petersburg airports. To justify their actions, the police cited " the FSB orders” and a certain “list of extremists" which ostensibly contained Sazhin’s last name.
In December 2010 in Krasnodar Anastasia Denisova, the head of the Youth Group for Tolerance (ETnIKA), was summoned for questioning. The experts - including Sergei Fedyaev, who had achieved notoriety during the case of Jehovah's Witnesses ban in Taganrog (their prophecy regarding the end of the world he interpreted as a call to violence) - have found book The Situation of Former USSR Citizens in the Krasnodar Kray (Polozhenie grazhdan byvshego SSSR na territorii Krasnodarskogo kraya), published by Memorial Human Rights Centre and ETnIKA, to contain signs of inciting social hatred to the Krasnodar Region Administration employees, prosecutors, civil registrar's officers, the court officials, and the Cossacks. During interrogation human rights activist was told that the prospect of legal action under Article 282 is very real. In the end, no court action was initiated, but episode become part of a pressure campaign against Denisova, resulting in complete paralysis of her human rights activism in the region.
Another case is related not to misuse of the law but to exceeding mandate during a special operation. In early December 2010 in Moscow, secret service officers while conducting a search in the Kyrgyzstan native’s apartment, beat up Bakhrom Khamroev, the employee of Memorial Human Rights Centre, who was summoned by the apartment’s owner. Memorial sees this attack as an attempt to pressure the organization: over several prior months "Memorial" brought media attention to numerous cases of disappearances and abductions of Muslims in Moscow, and to gross human rights violations during special operations to combat "Islamic extremism" in the city.
Election Campaings
We encountered only a single case of anti-extremist legislation misuse against the electoral candidates.
In September 2010 Rostov-on-Don Voroshilov district court satisfied the claim of the United Russia’s Michael Gnutov for cancelling city council elections registration of Sergey Bashtyrev, the candidate from A Just Russia (Spravedlivaia Rossiia) party during in a single-mandate electoral district № 5. Gnutov, the Bashtyrev’s opponent claimed that one of Bashtyrev’s promotional materials titled "We are opposed to for-fee schools" exhibited signs of extremism, namely the incitement of social hatred between such social groups as “parents of pupils" and" school personnel” and also between "youth" and “members of the United Russia party".
The report was made possible by support from the Open Society Institute Assistance Foundation and National Endowment for Democracy.
[1] Our interpretation of this concept is examined in detail in the Preface to the preceding report: Inappropriate enforcement of anti-extremist legislation in Russia in 2009 // SOVA Center. 2010. 22 March (http://www.sova-center.ru/en/misuse/reports-analyses/2010/04/d18482/#r1).
[2] SOVA representative presented during the European Parliament hearings // SOVA Center. 2010. 1 December (http://www.sova-center.ru/misuse/publications/2010/12/d20411/).
[3] More on this see: “Witch” process in Saransk” («Vedovskoi» protsess v Saranske). // Website of the Movement For Human Rights. 2010. 24 February (http://zaprava.ru/content/view/2204/2/).
[4] For details see.: Opinion of the Provider, as a Defendant at the Youtube Ban Case // SOVA Center. 2010. 14 September (http://www.sova-center.ru/misuse/discussions/2010/09/d19733/).
[5] We have commented on the appropriateness of these bans in our earlier reports.
[6] For details see: Details of Jehovah’s Witnesses ban in Gorno-Altaisk // SOVA Center. 2010. 19 November (http://www.sova-center.ru/misuse/news/persecution/2010/11/d20316/ ).
[7] For details see Verkhovsky “Why ban on NBP should be reversed” // SOVA Center. 2007. 4 August (http://www.sova-center.ru/racism-xenophobia/publications/2007/08/d11167/).
[8] This is most evident in petty hooliganism. A person hits a trash can while walking down the street not because by doing this he is trying to achieve something. He is doing it “for no reason” – this is the definition of hooliganism.
[9] For a solid professional article on this subject see Kibalnik A., Solomonenko I. “Extremist” Hooliganizm – a criminal nonsense“ // Zakonnost. 2008. No. 4, pp. 21–23.
[10] For details see SOVA Center report at the press-conference “Protest Art: a right or a crime?” on Voina case // SOVA Center. 2010. 14 December (http://www.sova-center.ru/misuse/publications/2010/12/d20501/).