Russia’s overuse and misuse of anti-extremism laws

On December 19, 2019,a post by Joanna Szymanska, Programme Officer, ECA (Article 19), Laurens Hueting, Legal Officer (Article 19), and Maria Kravchenko (SOVA Center) was issued by the European Human Rights Advocacy Centre (EHRAC) (School of Law, Middlesex University, London). The text of the post can be found below.

Russia’s overuse and misuse of anti-extremism laws

In the recent report entitled “Rights in Extremis: Russia’s anti-extremism practices from an international perspective“, ARTICLE 19 and SOVA Center examine the interpretation of various pieces of Russian legislation – in particular on ‘extremism’ and ‘incitement to terrorism’ – by the Russian judiciary in contravention of the country’s obligations under international human rights standards.

Since 2002, anti-extremism legislation in Russia has been applied beyond its legitimate scope to prevent violence, rendering it an instrument of state control. In 2012, the Council of Europe noted that the definition of “extremism” in Russian law was “too broad, [lacking] clarity and [inviting] arbitrary application”. Successive legislative amendments (the 2016 ‘Yarovaya Package’ and the 2017 expansion of the Criminal Code to include ‘propaganda of terrorism’) have compounded this, particularly online. Most convictions under anti-extremist articles of the Criminal Code are related to posts on social networks, while the number of websites blocked for containing ‘extremist’ content has significantly increased. In many cases charges are misapplied to silence dissent.

International human rights standards recognise that terrorism and incitement to violence and hatred constitute a serious threat to human rights, democracy, peace and societal cohesion. States are obliged to protect their citizens and others from the threats of such acts. However, any efforts of states in this regard must respect international human rights law and the rule of law more broadly, and States must not misuse them to criminalise the legitimate actions of opposition groups, civil society organisations and human rights defenders, as well as ordinary citizens.

And yet, it is precisely this phenomenon that we see in action in Russia: the application of the law far beyond its purpose.

What constitutes “extremism” in Russia?

It should be noted that what is understood to fall under the “extremism” umbrella is very broad in Russia. In addition to ideologically-motivated violence, it also comprises not only the speech-related provisions in the legal framework on anti-terrorism, and articles that criminalise incitement to hatred, but also other specific speech-related offences, such as the prohibition of the rehabilitation of Nazism or of insulting the religious feelings of believers. Essentially, a number of restrictions are conflated which, from an international perspective, pertain to several distinct situations.

Some concern national security, to which the usual three-part test regarding restrictions on the right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 10 of the European Convention on Human Rights (ECHR) and other international human rights instruments applies.Any interference must be prescribed by law, must pursue one of a number of exhaustively listed legitimate aims (in casu, protecting national security) and must be “necessary in a democratic society”, which entails that the measure must be the least restrictive one possible and must be sufficient to pursue the law’s legitimate aim.

Other restrictions pertain to the prohibition on incitement to hatred or violence, falling under Article 20 of the ICCPR. Under international legal standards, such speech must be prohibited when it is severe enough to meet the threshold of incitement. Severity is assessed taking into account both content and context of the impugned speech, pursuant to the six-part test set out in the Rabat Plan of Action, to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.

A further category concerns acts of expression which, under international legal standards, may not be restricted and must instead be protected. In Russia, these include restrictions on historical debate and for insult of the religious feelings of believers.

Under Russian domestic law, provisions pertaining to the criminalisation of “extremist” speech are contained in several legislative acts, including: the Law on Counteraction to Terrorism, the Law on Combating Extremist Activity, the Criminal Code and the Code of Administrative Offences.

In ARTICLE 19 and SOVA Center’s assessment, many of these provisions fall short of international legal standards because they are formulated in an overly broad way, provide for sanctions that are disproportionate or criminalise expression that should be protected.

Thus, according to the law, ‘extremist activity’ includes a wide range of actions. Inciting ’extremist activity’ falls under Article 280 of Russia’s Criminal Code. These provisions are sometimes used by law enforcement authorities against criticism of the authorities, alleging that this constitutes calls for ‘forcible change of the foundations of the constitutional system’ or violence against officials. No distinction is made between substantive calls for violence and more ‘abstract’ calls for revolution or reform.

How are Russia’s anti-extremism laws applied in practice?

The recent conviction of student video blogger Yegor Zhukov is a case in point. In September 2019, Zhukov was charged under Article 280. According to law enforcement agencies, four videos from Zhukov’s YouTube channel contained “calls for extremist activities motivated by political hatred and hostility, including calls for forcibly changing the constitutional order, riots and obstructing the lawful activities of law enforcement officials.” In his videos, Zhukov had indeed called for the opposition to engage in a more active and better planned struggle against the state system that has developed in Russia, but advocated exclusively non-violent methods of resistance. Zhukov was handed a three-year suspended sentence for “inciting extremism.”

Before 2019, the majority of criminal convictions for “extremist speech,” which constitute hundreds of cases a year, have been handed down under Article 282 of Russia’s Criminal Code, which concerns incitement of hatred or enmity. They often concerned ethno-xenophobic and militant jihadist propaganda, mostly web postings (in particular the sharing of xenophobic videos, songs, and memes). The provision of Article 282 is phrased in vague terms, allowing it to be applied beyond its legitimate scope. Prohibited action includes not only ‘the incitement of hatred or enmity, but also ‘abasement of dignity’ with no reference to incitement to discrimination and violence.

Prosecutions often target critical speech by opposition activists. In this regard, the provision’s reference to the protection of “social groups” has been interpreted to comprise State officials and law enforcement officers, despite specific instructions of the Supreme Court that dovetail the European Court of Human Rights’ (ECtHR) jurisprudence in setting a higher threshold for criminalising speech that targets authorities.

In January 2019, following public discontent and anguish discussion on anti-extremist enforcement, an amendment introduced by the President came into force that partially changed the qualification of the impugned behaviour from a criminal offence to an administrative offence. Using the same language as Article 282, Part 1 of the Criminal Code, the new Article 20.3.1 of the Code of Administrative Offences now applies to this behaviour. Only if a person subsequently re-offends within 12 months does Article 282 Part 1 continue to apply. Article 282, Part 2 is used if the case has aggravating circumstances. As a result of this act of decriminalisation, those charged under the provision, as well as those convicted whose criminal sentence had not yet expired, were provided with an opportunity to seek retrial. It should also be mentioned that prior to decriminalisation,the Supreme Court of Russia adopted a resolution on the use of anti-extremist articles of the Criminal Code,affirming the six-part test set out in the Rabat Plan of Action for evaluation of hate speech cases.

The provisions of Article 20.29 of the Code of Administrative Offences prohibit ‘production and mass distribution of extremist materials or their storage for the purpose of distribution.’ If any informational material (i.e. books, leaflets, audio, video, images, online postings, etc.) is found to be ‘extremist,’ as defined in the Law on Combating Extremist Activity, and banned by a court, it is included in the Federal List of Extremist Materials, a blacklist maintained by the Ministry of Justice. The list contains a wide range of materials, including materials inciting terrorism or violence, xenophobic videos, as well as peaceful opposition materials or even crude jokes. Theoretically, every person must be familiar with the contents of the list and avoid distribution of the materials that are on it.

Currently, the list encompasses 5000 items . Most are described in an overly vague manner, making compliance or enforcement practically impossible for individuals and for law enforcement respectively. In one of the most absurd examples, in 2017 the Blagoveshchensk City Court of the Amur Region banned the text of the song “Kill the Cosmonauts ” by the hardcore punk band Ensemble of Christ the Savior and Crude Mother Earth. It was later added to the federal blacklist. The court did not take into account the fact that this song, like most others in Ensemble’s repertoire, was obviously tongue-in-cheek. The authors ridiculed the obscurantism of Orthodox radicals and their perception of science through the prism of primitive religiosity. It is hard to imagine that the calls to kill cosmonauts for “climbing to heaven” or the proposal to ban scientific progress contained in the text could be taken seriously. Still, the song’s ban has led to a number of administrative cases and fines imposed for its distribution.

The Code of Administrative Offences also bans public display of banned symbols. Article 20.3 prohibits ‘propaganda or public display of Nazi paraphernalia or symbols, or paraphernalia or symbols of extremist organisations, or other paraphernalia or symbols, propaganda or public display of which is banned by federal laws.’ These provisions have mainly been applied against displaying swastikas or other symbols of organisations banned as ‘extremist.’ The law prohibits any display of banned symbols, but the intent or context are not assessed. For example, some web users have been convicted for posting historical photos with Nazi symbols. In the first half of 2019, 1388 people were punished under Article 20.3. As of December 2019, the amendments aimed at improving the enforcement practice are being adopted; however their potential effectiveness raises concerns.

In September 2019, Elena Kurkina, the head of the circus box office, was fined in Volgograd under Article 20.3. She was punished for posting on a social network photos that depicted actors involved in a play about the Great Patriotic War wearing Third Reich uniforms. Kurkina was obviously not involved in Nazi propaganda but simply took some photos as a personal memento. In November 2019, a public activist named Igor Madasov was sentenced to two days in prison for posting an image on his Facebook page. The image depicted two badges,those of the Russian road police and of the Third Reich administration (featuring a swastika), with a capture saying “POLICE: Everything new is well-forgotten old.” Obviously, the posting was intended as a criticism of Russian police, not to promote Nazi ideas.

In addition to the overly broad wording of certain provisions that are otherwise legitimate (in the sense that they prohibit expression that must or can be restricted under international human rights law), Russian law also criminalises speech that should be protected pursuant to the country’s international obligations. For instance, under Article 354.1 of the Criminal Code it is a criminal offence to distribute false information on the activities of the Soviet Union during World War II, which stifles historical debate. Under Article 148 part 1 and 2 of the Criminal Code it is also a crime to insult the religious feelings of believers, allowing for the censure of inter- and intra-religious dialogue, debate and criticism. In practice, the provision is most frequently applied to online statements critical of Orthodox Christianity.

In June 2016, Vladimir Luzgin from Perm was found guilty under Article 354.1 for reposting on his social network page a text entitled ‘Fifteen facts on Banderites or what the Kremlin is silent of.’ The article criticised Nazis and communists, and approved of the position taken by the Ukrainian Insurgent Army that the Ukrainian Banderites (right-wing nationalists) had not collaborated with the Third Reich. The Court also considered that the interpretation of the Molotov-Ribbentrop Pact, to the effect that World War II was the result of close collaboration between communists and Nazi Germany, was false information.

In August 2017, resident of Sochi named Viktor Nochevnov was fined under Article 148, Part 1 of the Criminal Code for sharing a series of cartoon images of Jesus Christ on a social network page (Christ as a rock star, Christ in a gym, Christ wearing a Nazi uniform, and so on) with ironic or obscene captions. In the trial, prosecutors presented testimonies from the rector of the local Orthodox monastery, the imam of the Sochi Muslim community, the head of the city’s Jewish community, and the rector of one of the city’s Orthodox churches. The latter testified, inter alia, that the images shared by Nochevnov were not only blasphemous and offensive to believers but also provocative ‘in view of the disrespectful use of the sacred image,’ and thus ‘express[ed] contempt for public morality and the society in general, as well as social values.’ In support of his statement, the priest cited the dogma of icon worship adopted by the Second Council of Nicaea in 787. The Court found that Nochevnov expressed ‘extreme intolerance towards adherents of Christianity – Christians; as a result, he began to antagonise social norms and values and show aggression against the above-mentioned group of believers as well as believers in general.’ After extensive publicity, the case was sent for a re-trial and was discontinued.

Conclusion

An examination of judicial practice in relation to “extremism” reveals trends in the jurisprudence that exacerbate shortcomings of the legislation and contributes to systematic violations of the right to freedom of expression. Mostly, Russian courts do not weigh the necessity of an interference in light of the risk of the impugned act to a democratic society. Rather, that risk is merely stated, and the necessity of the interference and proportionality of the sanction are automatically assumed once it is found that the impugned act comprises the elements of the crime. Furthermore, imposed sanctions are often disproportionate to the impugned behaviour, including the possibility of prison sentences for peaceful speech.

Additionally, following a practice developed by the end of the 2000s without any legal basis, cases almost inevitably involve expert opinions, from linguistic and socio-psychological experts among others. Problematically, the experts’ role is not limited to clarifying certain linguistic aspects of the evidence or other matters that require particular scientific expertise. Instead, despite a ban on raising legal questions with experts, in practice they determine the criminality of impugned speech in place of the judges. The judges merely refer to the experts’ conclusions presented by the Prosecutor’s Office or requested by the court itself and thus let those substitute their own assessment.

In its decisions on these cases to date, the Court has repeatedly ruled that restrictions imposed on the applicants were not necessary in a democratic society. Among other things, the European Court has found that the Russian domestic courts’ decisions were profoundly deficient for failing to provide relevant and sufficient reasons for conviction, linked inter alia to the particular use of expert evidence, and that the sanctions imposed were disproportionate to the impugned offences.

Sources:

• Joanna Szymanska, Laurens Hueting, Legal Officer (Article 19), Maria Kravchenko. Russia’s overuse and misuse of anti-extremism laws // European Human Rights Advocacy Centre. 2019. December 19.