Оригинал материала
Misuse of Anti-Extremism Legislation in the First Half of 2011
Edited by Alexander Verkhovsky SUMMARY
COUNTERACTION TO THE MISUSE OF ANTI-EXTREMIST LEGISLATION : Justice Ministry's Cleaning Day in the Federal List of Extremist Materials : Resolution of the Supreme Court Plenum #11 "On Court Practice in Extremist Criminal Cases" Issued on 28 June 2011 : Participation of the Human Rights Ombudsman's Staff in Counteracting the Misuse of the Anti-Extremist Legislation
PROSECUTION OF THE ORGANIZATIONS, MEDIA AND PRIVATE PERSONS : Subjects of Prosecution : Extremist Materials : "Propaganda of Exceptionality" : Demonstration of Banned Symbols
Summary This report outlines examples of misuse of anti-extremism legislation[1] during the first six months of 2011, and is based on daily monitoring by Sova Center. These findings are published in the respective section of our website.
During the period under report, we became aware of two seemingly antithetical tendencies.
On one hand, for the first time in a few years of monitoring, we witnessed a willingness on behalf of the state to take steps to overcome problems arising in the current uses of anti-extremism legislation. High-level state officials admitted, in public, that these problems do exist. Certain measures have been taken. The most important of them was the Resolution of the Supreme Court Plenum #11, "On Court Practice in Extremist Criminal Cases" issued on 28 June 2011. The resolution explained, we feel correctly, how the courts should consider the corresponding cases. Unfortunately, apart from several remarks on the resolution itself, we have doubts that its approval will bear immediate fruit. So far, we see that regional courts are simply ignoring the Supreme Court's directions. We also cannot refrain from regretting that the positive changes described in our report are so late that it will be very hard, if not impossible, to undo already-existing harm.
On the other hand, we see a gradual increase in victims of misuse of anti-extremism legislation. This is occurring at the cost of those who have fallen under the wheels of an all-national fight against "extremism" "by chance". Simultaneously, the consequences of this fight become more serious for this category of people. Still, the same groups as before face inappropriate prosecution more often than others: religious minorities and oppositional social and political activists and organizations. However, in the first half of 2011, school and library headmasters, internet providers, ordinary web users, and journalists not belonging to the main at-risk groups began to face far more problems than before, and the problems themselves became far more serious. An illustrative example is the situation with libraries, on whose unenviable fate we have spoken on numerous occasions Formerly, the main sanctions against library management for the lack of a copy of the Federal List of Extremist Materials, or for the presence of forbidden books in the libraries' collections, were representations or disciplinary punishments. Now, prosecutor's offices instigate cases on violation of the administrative law and on an increasingly often basis strive for fines.
We cannot report significant changes in the sphere of lawmaking during the period under report. The fight against "extremism" remains a comfortable populist instrument used by mainstream politicians, while the misuse of anti-extremism legislation began to be exploited by the Liberal Democratic Party of Russia (LDPR) whose bills to reform anti-extremism legislation evidently pursue populist ends.
Creation of Regulatory Acts
In the first half of 2011, the State Duma approved only one act that could be misused in the "fight against extremism." It was the much-talked-of law "On the Police". Representatives of civil society criticized the law during the period leading to its approval, from the moment when its first draft appeared until it was signed by the president and came into force, on 1 March 2011. Our issue with the act is rather insignificant but nevertheless worth mentioning. Article 13, Part 1, Item 12 states: it is the right of the police to make obligatory representations to officials to "eliminate causes and conditions favoring the realization of threats to the security of citizens and social security, committing crimes, and violating administrative law." This differs from the previous law on the police in that previously, it was obligatory that police representations be considered, but not necessarily fulfilled. Attention to this point came because of the fight against copyright violations and the publication of illegal content on the web. Formerly, most Internet providers preferred not to block websites without court rulings requiring them to do so, but now they are obliged to do this due to police representations. But before, there were attempts to close websites not only for copyright violations or publication of child pornography, but also for materials that were deemed extremist. Police can now demand providers' cooperation concerning not only materials banned in court, but also those simply seeming extremist to a policeman.
According to our observations, the police so far have not been abusing this right to close websites with "extremist" content, preferring instead to oblige Internet providers to close access to the websites through court.[2]
Other inappropriate[3] legislative initiatives during this period were populist ones, as it often appears to be with such projects. None of them has even reached its first reading.
In January, parliamentarian Ivan Savvidi (United Russia) proposed amendments to Article 15 of the federal law "On Combating Extremist Activity," and to the Administrative Code.
According to his bill, article 20.30 ("Drawing extremist images on facades of buildings, constructions and transport objects") and 20.31 ("Failure to take measures to remove extremist images") should be added to the Administrative Code. The penalty for the authors of extremist inscriptions and images, and property owners was to be a fine from 500 to 10,000 rubles. The code already includes, in Article 20.3, a provision on liability for public demonstration of Nazi symbols, while the Criminal Code includes Article 214 ("Vandalism"). There have been many of occasions of law enforcement under those two articles (both appropriate and inappropriate). As for the property owner, he or she is not obliged to examine whether a phrase written on his or her wall is an extremist call, a curse, or a declaration of love.
As this report was being written, the bill received a negative review from the legislative department of the State Duma and a positive one from the Committee of the Affairs of Nationalities.
The priority of populist motives in the creation of regulatory acts is demonstrated at its best by the initiatives of the LDPR, and in June, Vladimir Zhirinovsky's party proposed two bills. The first one suggests the total abrogation of the federal law "On Combating Extremist Activity." The party's arguments seem to be sound but the bill itself is, as far as we can tell, simply declarative in that it is only possible to abrogate the law by changing other regulatory acts including the aspects of the Criminal Code that contain references to the law. The second bill suggests the complementation of Article 282 of the Criminal Code ("activities aimed at inciting hate or abasing human dignity or the dignity of a group of people on grounds of gender, race, nationality, language, origin, religion, affiliation with a social group committed in public or by using media") with the words "and entailing the crucial violation of rights and legal interests of citizens." This addition would change the essence of the article, the subject of which is propaganda as such, irrespective of its consequences. The bill actually suggests renouncing the prohibition of hate propaganda registered in international agreements ratified by Russia, as well as in the Russian Constitution. Given the proposed changes, the article loses its meaning because in the case of serious consequences ("crucial violation of rights and legal interests of citizens"), statements that led to such consequences should be qualified under other articles, as direct instigations to commit certain crimes. The bill was returned to its authors due to procedural violations. We see no chance of either bill's approval, and veteran parliamentarian Vladimir Zhirinovsky seems not to have seriously counted on it either. Perhaps, the reason for those bills to appear can be explained by the fact that Zhirinovsky's party has recently been actively cooperating with representatives of nationalist movements. For instance, the day the first bill was put forward, LDPR held a roundtable talk devoted to the "Russian issue." Parliamentarian Sergei Ivanov from the LDPR faction said there, "We can give legislative form to the ideas concerning the defense of the rights of the Russian people." The noticeable stirring-up of the "Russian issue," along with that of anti-extremism legislation in the speeches and activities of the so-called liberal democrats seems to be a populist step in the year preceding elections.
Apart from this, in the first half of the year the State Duma voted down the bill "On Introducing Amendments to the Criminal Code and Individual Legislative Acts of the Russian Federation (on the issue of changing the acting legislation on political, ideological, racial, national or religious hate motives)" put forward by the Moscow City Duma in October 2010. The bill proposed more severe penalty for hate-motivated crimes and administrative responsibility for the media for mentioning ethnicity in the criminal chronicle. It also recommended that courts of jury not consider cases on racist violence. We believe these proposals to be senseless and even harmful. We should remind that such legislative initiatives have appeared on numerous occasions in the past, but fortunately none of them has yet been successful.[4]
Counteraction to the Misuse of Anti-Extremism Legislation In the first half of 2011, the state took several measures that give hope for improvement in the practical application of anti-extremist legislation. For the first time in years of monitoring this issue, we faced the necessity of opening a new section on our website that we called, albeit clumsily, "Counteraction to the Misuse of Anti-Extremism." Here we started to publish news devoted to the state's positive steps aimed at limiting the misuse of anti-extremism legislation, as well as society's remarkable or significant actions against such practices.
Justice Ministry's Cleaning Day in the Federal List of Extremist Materials As we mentioned in a previous report,[5] the Justice Ministry itself is partly guilty of numerous violations of the rights of natural and juridical persons caused by the Federal List of Extremist Materials, although the Ministry seems to be nothing more than a technical registrar of court rulings. The problem lies in the fact that the list is being compiled carelessly and with multiple duplicating items, which significantly complicates its use. Some materials are included in the list when court rulings on their ban have not yet entered into legal force, while some others are not being removed in time although court rulings on their ban are already invalid.
On 3 May 2011, the first attempt to clean up a significant part of the list was finally taken, and some items were withdrawn while the numbering was maintained. First of all, 29 books by Ron Hubbard (items 632—660) that had been illegally added were removed because there was no court ruling on their ban. Moreover, since 2 February 2011, when the Khanty-Mansi district court finalized the ban, the existence of these materials in the list looked like a real sabotage by the Justice Ministry. Secondly, some items that totally duplicated previous ones were withdrawn from the list. They did not illustrate subsequent court rulings on the same materials, but just the same court rulings (items 667, 677—679, 682).
Unfortunately, the cleaning day did not deal with materials pertaining to the adherents to the Falun Gong religious organization, present on the list since 2009, although no court ruling on their ban has come into legal force. A significant portion of the duplicate items remained in the list as well (see the respective section of this report for more information).
We remind readers that the list has only been cleaned twice before, and then only insignificantly. Articles by Nikolai Andrushchenko in the New Petersburg (Novy Peterburg) newspaper (items 362—364) and an Anti-Krishnaite leaflet of the United Russia's Young Guard (item 413) were removed.
Resolution of the Supreme Court Plenum #11 "On Court Practice in Extremist Criminal Cases" Issued on 28 June 2011
This resolution became a remarkable event of the first half of 2011.[6]
Several interpretations by the Supreme Court can be seen as nearly revolutionary. In particular, the Supreme Court noted that criticism of officials and politicians should have broader legal limits than against private persons, so such criticism should not be qualified under article 282. It also said that examination by court-appointed experts should be assigned only in necessary cases. Human rights activists have spoken on such abuses for years, so one should be glad that their voices were finally heard.
Two provisions of the Resolution should be quoted in full. The first one: "When a court examination is being assigned in extremist cases, the expert should not be faced with legal issues outside his or her competence, concerning the estimation of the action and the solution, which is within the competence of the court only. In particular, experts cannot be asked whether a text includes calls for extremist activity or whether informational materials are aimed at inciting hatred."
The second one: "Criticism of political organizations, ideological and religious associations, political, ideological and religious beliefs, national or religious customs as such should not be considered as an action aimed at inciting hatred."
The court spoke on a number of disputable issues regarding discriminating on the various qualifications of actions that can be deemed extremist. In particular, the court confirmed that mass distribution of banned materials can be considered a crime if a malicious intent to incite hatred has been proven. The court also found it proper to use Article 282 for violent crimes if they are aimed at inciting hatred from the part of a third person, for instance, by means of an ideologically motivated, demonstrative attack in public. Acts of vandalism of various sorts, if committed with a public message, an inscription inciting hatred for instance, should be qualified under a totality of respective articles and Article 282. In conclusion, it is enough to find a person guilty of participation in an extremist organization (Article 282.1) if he or she participated in any kind of its activity, regardless of having committed any crimes.
On the other hand, the Resolution did not address some important, disputable issues. In particular, nothing is said on what groups are indicated in the extremism legislation concerning hatred against a social group. Article 282.2 ("Arrangement of the activity of an extremist organization") is left without interpretation: it is still unclear whether an activity under a changed name or with changed symbols but with the same personalities and content should be considered as continuation of the activity of a banned organization.
The Supreme Court could by no means exhaust all the problems tied to the misuse of anti-extremism legislation because their main sources are defects in the actual legislation.
Besides, it will be possible to talk about the efficiency of the Resolution only after monitoring the court rulings in coming months. Unfortunately, we can see that courts often ignore the position of the Supreme Court, as has happened with the previous years' Resolution on using the law on media.
One more reassuring, if not positive, event occurred after the period under report, strictly speaking, on 5 July 2011, but it was preceded by a long process in which Sova Center took an active part. The matter is a project of amendments to the law "On Combating Extremist Activity," to the Criminal and Administrative Code presented to President Medvedev by member of the Council for Civil Society Institutions and Human Rights, Valentin Gefter from the Human Rights Institute, at the Council's session in Stavropol. Apart from the project itself, the president was given an explanatory note.
Amendments as a whole call for narrowing the definition of extremist activity, and concentrating legislative attention on crimes related to violence.
The President replied to Gefter's proposals in his typical indefinitely positive manner, meaning that he had nothing against changes as a whole and agreed that "extremism is not a break of thought but an action."[7]
The amendments themselves were later rejected by the current administration but we hope the discussion around them will continue.
Participation of the Human Rights Ombudsman's Staff in Counteracting the Misuse of the Anti-Extremism Legislation
We should make special mention of the participation of human rights ombudsman Vladimir Lukin's staff this year in the fight against the practice and theory of the misuse of the anti-extremism legislation. First of all, we point more specifically to the participation of Lukin's representative, Mikhail Odintsov, as an observer in court during the case of a Jehovah's Witnesses leader in Gorno-Altaisk. Alexander Kalistratov, the defendant, was charged with Article 282 Part 1 (inciting religious hate) and on 14 April 2011, the Gorno-Altaisk City Court acquitted him due to the absence of a crime. According to our point of view, the decision was made possible due to wide publicity and public attention, in Russia as well as abroad, and also due to the ombudsman's control. Unfortunately, on 26 May 2011, the Supreme Court of the Altai Republic submitted the case for reconsideration in the court of first instance, which began on 22 June in that court. Mikhail Odintsov continues to observe the hearings.
The ombudsman's 2010 report paid much attention to the misuse of the anti-extremism legislation, mentioning the topic in three sections of his report — speaking on privacy, on the right of freedom of conscience, and on the right of freedom of thought and speech.
In particular, the ombudsman mentions the problem of the indefensibly broad interpretation, and therefore, application of anti-extremism legislation. "Possibly the main reason of the problem is the uncertainty of the term 'extremism' and, consequently, the lack of any certain criteria for qualifying public information as extremist." Apart from that, Lukin speaks on the low caliber of examination in so-called extremist cases. Prosecution of Organizations, Media and Private Persons
Subjects of Prosecution
The first half of 2011 showed several new tendencies in the misuse of anti-extremism legislation. Before, the victims were most often representatives of various religious organizations, but now, the subjects of the main episodes are social and political activists. During the first six months of 2011, though, the penalty was more severe and consistent against another group we consider unassociated with the traditional target groups, and which we conventionally refer to as "passers-by." Here we speak about the criminal and administrative prosecution because its subjects are persons, not organizations. The ban of texts and organizations "for extremism" is also a significant instrument, but the really wide range and high commitment to prosecution can be seen in how much real people suffer as a direct result.
In the first half of 2011, representatives of two particular religions fell subject to the misuse of anti-extremism legislation. Those were Muslims,[8] real or supposed members of Nurjular (4 episodes[9]), Hizb ut-Tahrir (4 episodes), and Tablighi Jamaat (2 episodes), and Jehovah's Witnesses (5 episodes).
The group of social and political activists falls all over the ideological spectrum, including nationalists (4 episodes), anarchists (4 episodes), citizens whose political orientation is unknown to us, charged with inciting hatred against "social groups" like the "police" and the "authorities" (4 episodes), communists (2 episodes), adherents to Eduard Limonov (2 episodes), members of the Voina (War) art group (1 episode), labor trade activists (1 episode), and members of the Solidarity (Solidarnost) movement (1 episode).
Most of the episodes concern the prosecution of social and political activists, but only two of 19 episodes came to verdicts with any real penalty. In the first case it was a prison term, and in the second, an administrative fine. Apart from this, there were two suspended sentences, two cancelled sentences under the Criminal Code and one acquittal under the Administrative Code.
Members of religious organizations seem to suffer from prosecution more rarely than social activists but more of them receive penalties: two prison terms, one administrative fine, and one suspended sentence out of a total of 15 episodes.
The third "traditional" at-risk group, journalists, faced law enforcement three times during the period under report. Journalists of the oppositional Draft (Chernovik) newspaper in Dagestan who were charged with incitement to hatred (Article 282) were acquitted. Another case was instigated under the same article, against the publisher of the Region Three by Nine (Trideviaty region) newspaper in Kaliningrad.[10] The third episode resulted in an administrative fine to the editor of The Way We Live (Zhitie-Bytie) newspaper in the Belgorod region after he published a photo with Third Reich-era German postage stamps seized by customs.
Besides that, we have sorted out a group referred to as "passers-by," which includes those who came under "anti-extremism" fire by chance. Those are headmasters of libraries where banned books were found (5 episodes), a member of a web discussion who quoted a banned material (1 episode), and an antique dealer who was selling goods with Third Reich symbols (1 episode).
One should note the penalty that these "victims by chance" received. Although the matter was only an administrative fine, five of seven episodes came to court verdicts and no one of those five people was acquitted.
We can compare the numbers of "passers-by" with the total remaining episodes and guilty verdicts.
| Number of episodes | Guilty verdicts under the Criminal and Administrative Code | Verdicts resulting in real prison terms or fines | |
| "Passers-by" | 7 | 5 | 5 |
| All others | 37 | 9 | 6 |
One can see that the rate of guilty verdicts to the whole number of episodes in the first group is far higher than in the second (71 and 24 percent respectively; if we exclude the penalties not concerning real prison terms and fines, the correlation becomes 71 to 16 percent).
The period under report is, of course, short. However, we think we can conclude that the misuse of anti-extremism legislation is beginning a new phase. Not only does the circle of chance victims become wider and wider, but the problems they face become increasingly serious. An illustrative example could be the situation with libraries, about whose problems we have been writing for years.
It is a well-known fact that libraries are caught in a crossfire of sorts. On one hand, anti-extremism legislation bans the distribution of materials deemed extremist. On the other, library legislation forbids libraries to discard books. This conflict results in numerous sanctions against libraries' management throughout the country.[11] (The number of sanctions has also risen, which is not surprising because prosecutors have to report on the fight against extremism. It is surely far simpler to visit a library than to uncover an underground militia.)
We have counted at least 30 cases of various inappropriate sanctions against libraries management beginning in July 2008, when we began observing this problem, to the end of 2010. During the first six months of 2011 alone, we registered at least 15 such cases. In the previous years, sanctions consisted mostly in warnings and disciplinary measures whereas in 2011, several library headmasters faced real administrative charges. In actuality, they were fined for fulfilling their duties.
Extremist Materials
Tendencies in other spheres of anti-extremist legal practice remained the same as in 2010, with the Federal List of Extremist Materials remaining instrumental to the "fight against extremism." In the first half of 2011, the list was updated 20 times, being supplemented by items 749 to 896. At the moment this report is being written, there are 966 items in the list. As we mentioned above, the list faced its first significant cleaning in May but many defects remained. The main one is the list's length, which makes it virtually impossible to work with, and we would also cite the fact that the Justice Ministry failed to totally clean all the technical duplications; for instance, items 209 and 213 are identical. Both of them note the ruling of the Kuzminsky district court of Moscow on 26 October 2007, banning issue #216 of Al-Waie, the Hizb ut-Tahrir party magazine. Apart from that, the list contains items on rulings by various courts that banned the same materials at different times. Those are items 34/96, 72/171, 73/431, 65/380, 86/212/284, 87/285, 89/216, 90/218, 93/122, 126/383, 142/265, 208/286, 209/213, 262/628, 269/407, 272 (partly)/354, 310/437, 608/668, 293/913.
In the first half of 2011, we registered at least five inappropriate regional court rulings, which banned 22 print materials (as well as non-print).
A January ruling of Mikiyansky regional court in Bashkiria is another example of simulation of the fight against extremism. The court satisfied another claim from regional prosecutor Amir Akhmetov, and deemed further material extremist although it had already been deemed as such on the grounds of the law "On Combating Extremist Activity." The prosecutor is famous for his liking for such claims, which the courts invariably satisfy.[12] This time, the target of his crusade was the book "Final Entries 1945: The Diaries of Joseph Goebbels."
In February, we became aware of a controversial ruling of the Cheremushkinsky court of Moscow, under which slogans "Orthodoxy or Death!" and "Russia for the Russians!" written in a pseudo-Old Russian orthography as "Россия для русскихъ!" were banned. The first slogan is used by radical Orthodox groups that are known to use violence, but means nothing extremist. It originated among monks in one of Athos monasteries and means only "either we will be Orthodox, or death awaits us, spiritually and physically." The second one is radical and discriminatory, i.e. unconstitutional, and is often used by those who commit hate-motivated violent crimes. We consider the ban of the slogan "Orthodoxy or Death!" to be wrong, but we cannot consider legal action against the second inappropriate. We doubt, however, that the slogan itself corresponds with the definition of extremism in the law because it can be interpreted in various ways in various contexts. Its ban is unreasonable on a practical level because it will be difficult to fulfill. Firstly, it is unclear whether the slogan is banned in its ordinary spelling or only with the archaic letter "ъ" in the end. Secondly, it is unclear whether the slogans themselves are banned or T-shirts with them (this refers to both of the slogans).
It is also worth noting that the slogan "Orthodoxy or Death!" appeared before the court again in April but was not banned on that occasion, when the Lyublinsky court of Moscow considered experts' opinions and issued a just ruling. Unfortunately, in August 2011 it was cancelled by the court of higher instance.
13 editions of Jehovah's Witnesses texts were banned in the first half of 2011. The Pervomaysky regional court of Krasnodar banned three issues of the Watchtower (Storozhevaia bashnya) magazine, and the book "Closer to Jehovah" on 22 April; three of these materials had already been mentioned in an earlier court ruling that had already come into force. One of the magazine issues and the book were deemed extremist by the Rostov regional court on 11 September 2009, which did not deem another of those three magazine issues extremist. It had a subtitle "What the Intention in Nature Indicates."
This ruling is a serious legal problem. When a court unknowingly bans something already banned, the second ban can be understood, if not justified. But if a court has already found that a material is not an extremist one, another court that is not a court of higher instance cannot revise or reverse its ruling. It especially cannot be so when respondents inform the court of the earlier decision. This contradicts the fundamentals of the legal process. In the case of the ban, an issue of the identity of two materials of the same name can appear (for instance, in the case of two editions of one book with two different prefaces, as it was in publisher Aslambek Ezhaev's case[13]), but here the same material was subject to two different court rulings; the magazine issue in question had only one version.
Apart from that, on 27 June in Salsk (Rostov region) nine more books and magazines of Jehovah's Witnesses were deemed extremist — six of which were already on the Federal List of Extremist Materials.
On 30 June, in Shchelkovo (Moscow region) seven works by L. Ron Hubbard were banned once again. Only a month before, Scientologists' materials whose ban was cancelled by the Surgut court were removed from the list (see above).
In the end of February 2011 the consequences of a ban that had come into force in previous years became known. The founder of the lib.ru web library Maksim Moshkov removed Samizdat website from the www.zhurnal.lib.ru domain, but failed to solve the problem of its ban for extremism in 2009 due to the materials by Viktor Dunaev. Extremism was found only in Dunaev's works, but the Cherepovets city court mentioned the whole domain as an identifier of the banned material. The website contained over 56,000 sections devoted to authors, and over 800,000 works total.
"Propaganda of Exceptionality"
In the first half of 2011, courts and prosecutors continued to interpret statements regarding the trueness of given religions or ideologies as propaganda of followers' exceptionality and others' inferiority, as well as an incitement to hatred.
The brightest examples here are surely bans of various religious books for "extremism." Jehovah's Witnesses take the leading position here, which can be seen elsewhere in this report, while Scientologist literature is often banned on the same grounds. Given that the idea of one's own belief to be the only true one is inherent to virtually all religions, selective prosecution for this as extremism is nothing but religious discrimination using a law that should actually obstruct such official discrimination.
Since bans on these grounds started to be generated on a virtually automatic basis, one can expect that at some point, such prosecution could move from the religious sphere to others. The first case of this type was the warning on the inadmissibility of extremist activity issued in June by Tatarstan prosecutor's office to Vkontakte social network user Roman Iliin, administrator of a group "Autonomous Action (Kazan)." He published a link to the manifesto of the Autonomous Action movement, and the prosecutor's office found propaganda of "exceptionality" in it. According to experts who examined the manifesto, it "propagates the exceptionality of its own ideology, libertarian communism, before other ideologies and political systems, creating positive conditions for forming social prejudices and negative attitudes towards other political views, determinates incitement to social hatred between the adherents of the 'Autonomous Action' and those who do not share their views and beliefs."
Demonstration of Banned Symbols
One more topic we would like to note is the interpretation of any kind of demonstration of Nazi symbols as Nazi propaganda. Article 20.3 of the Administrative Code foresees fines and even administrative arrest for propaganda and public demonstration of Nazi attributes or symbols, or attributes or symbols similar to Nazi attributes or symbols so that they can be confused. Further, it calls for similar treatment for making, selling or purchasing such attributes or symbols aimed at propaganda. It is not for nothing that we wrote the words on propaganda in italics: it often occurs that not propagators of neo-Nazism, and not manufacturers of modern attributes (T-shirts, scarves, stripes and stickers), but antique dealers who sell objects from the Third Reich era or newspapers illustrating articles on Nazis become subject to penalty under this article. In the first half of 2011, three of five such cases came to fines. In one case the defendant was acquitted.
This topic can be brightly illustrated by the story of the Kuban Live (Zhivaia Kuban') web portal. Although the main contradiction between the portal and the prosecutor's office took place after the period under report here, we will nevertheless mention this story because the events that provoked the contradiction took place in May. Besides, the problems we find in this particular story are actually not specific to Kuban (Krasnodar Krai).
In spring 2011, the portal, as well as other media, published photos of Vadim Gromyko, son of the deputy governor of Krasnodar Krai Yevgeny Gromyko, in the Nazi uniform. Gromyko Jr. was playing Stirlitz, the main character of a well-known Soviet TV film series "Seventeen Moments of Spring" (on the life of a Soviet spy in Nazi Germany), in a comic video. This created a local sensation after photos and video were published openly on the web. In May, the prosecutor's office of the Karasun administrative district of Krasnodar issued a representation to the portal on the necessity to remove violations of the law "On Immortalizing the Victory of the Soviet People in the Great Patriotic War of 1941—1945." The editorial staff of Kuban Live found the representation groundless because that publishing of the image containing Nazi symbols was not aimed at Nazi propaganda, which was definitely read in the accompanying text, and requested the prosecutor's office to recall the representation.
In response, the prosecutor's office submitted a claim to the Sovetsky regional court of Krasnodar demanding to oblige the portal to remove the violations mentioned because the respective article in the federal law is formulated in such a way that any use of the aforementioned symbols, without indicating aims of propaganda, becomes subject to ban.
The prosecutor's office also refers to the Resolution of the Supreme Court on 8 February 2011 #64-AD11-1,[14] which approved the December 2009 ruling of a magistrate's court in Yuzhno-Sakhalinsk that sentenced citizen I.A.Rozenko to a 500-ruble fine for wearing a stripe with a Nazi eagle while playing paintball. Rozenko tried to prove that his activities did not fall under Article 20.3 Part 1 of the Administrative Code (propaganda and public demonstration of Nazi symbols). In fact, Rozenko tried to prove not that he had no intent for propaganda but only that his stripe had nothing to do with Nazi symbols. When the Supreme Court considered his appeal it only stated that the stripe was a Nazi one, confirming the administrative sentence.
In theory, the absurd ban on any demonstration of Nazi symbols mentioned in the law "On Immortalizing the Victory of the Soviet People in the Great Patriotic War of 1941—1945" could be opposed by the law "On Combating Extremist Activity" that appeared later and mentions propaganda and demonstration, and by a similar statement in the respective article in the Administrative Code. As we have written many times, this statement is far from ideal because it allows arbitrary interpretations. However, in some cases it is possible[15] to remove charges by proving propaganda was not the defendant's goal.
Unfortunately, we see that in similar cases, prosecutors and courts including the Supreme Court often simply mention these federal laws without trying to prove propaganda intentions and banning the demonstration of symbols as such. Even the Supreme Court fails to make it clear when considering such cases. For instance, the Definition of its Panel of Judges #18-G07-1 issued on 6 February 2007[16] directly stated, "The fact of propaganda of a swastika image itself is a sufficient ground to deem an organization that uses such symbol extremist, leading to its ban." Instead of explaining the difference between propaganda and demonstration, the Supreme Court introduces a vague, hybrid expression, "propaganda of a swastika image." It seems that the Supreme Court should not play with words but put forward a legislative initiative aimed at removing the vagaries of the law.
The Kuban Live case is symptomatic of something more than a simple imperfection of the law. The Supreme Court clearly prefers not to notice the contradiction between the formulae in two federal laws, interpreting it in favor of a reading in a wider sense. However, such a wide interpretation of the ban leads to deliberately selective justice. For instance, hundreds of foreign, Soviet and post-Soviet films on the Second World War include obvious demonstration of Nazi symbols but it does not come to anyone's mind to ban or censor them on such grounds. Possibly, the only thing for the Kuban portal to do in case of an unfavorable result is to address the Constitutional Court so that it acknowledges that the statement of the law "On Immortalizing the Victory of the Soviet People in the Great Patriotic War of 1941—1945" contradicts the Constitution and obliges the agencies in charge to clarify the statements in the law "On Combating Extremist Activity" and the Administrative Code, or even change the statements legally, so that the demonstration of Nazi symbols that does not aim at propaganda would not fall under the ban.
[1] What we mean by this category is described in detail in the preface to the report: Alexander Verkhovsky. Inappropriate enforcement of the 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] This practice itself is far from perfect because internet providers are often obliged to wholly close access to websites when several banned materials are published there. A ruling to close access to certain pages that is more correct legally is less efficient in a technical way. See further in: Inappropriate enforcement of anti-extremist legislation in Russia in 2010 // Sova Center. 2011. 25 March (http://www.sova-center.ru/en/misuse/reports-analyses/2011/04/d21360/#r4_2).
Besides, in May 2011, the Supreme Court approved a ruling that made the situation even more tangled. See in: Verkhovny sud dal obosnovanie blokirovke saitov, soderzhashchikh zapreshchennye materialy // Sova Center. 2011. 10 May (http://www.sova-center.ru/misuse/news/persecution/2011/05/d22520/).
[3]During the period under report, some amendments to the anti-extremist legislation have been proposed that do not arouse our protest at all. But the specificity of our topic brings them out of the frameworks of our report. See further in: Dmitry Medvedev vnes v Gosdumu zakonoproekt, predusmatrivaiushchii gumanizatsiu Ugolovnogo kodeksa // Sova Center. 2011. 7 June (http://www.sova-center.ru/racism-xenophobia/news/counteraction/2011/06/d21844). [4] See further in: Inappropriate enforcement of anti-extremist legislation in Russia in 2010 // Sova Center. 2011. 25 March (http://www.sova-center.ru/en/misuse/reports-analyses/2011/04/d21360/#r2).
[5] Ibid. (http://www.sova-center.ru/en/misuse/reports-analyses/2011/04/d21360/#r4_1).
[6] Kommentarii "SOVY" na Postanovlenie Plenuma Verkhovnogo suda ob ekstremizme // Sova Center. 2011. 1 July (http://www.sova-center.ru/misuse/publications/2011/07/d22010/).
[7] Zasedanie Soveta po razvitiu grazhdanskogo obshchestva i pravam cheloveka // President of Russia website. 5 July (http://kremlin.ru/transcripts/11838).
[8] We should stress to important things concerning Hizb ut-Tahrir and Tablighi Jamaat organizations. Firstly, our claims against their bans are quite formal. There are serious grounds to think that the former conducts very aggressive propaganda, whereas the latter may have some relation to the training of militants. This cannot make us consider the attention of law enforcement agencies to them as inappropriate. However, these real suspicions have even not been discussed in Russian courts. Secondly, both these organizations are religious and political ones which means they can be included both into the group of religious minorities, and into the group of social and political activists.
[9] Here we mean the whole number of events during the period under report when people clashed with the Criminal or Administrative Code. Those are the cases that had been instigated but not submitted to the court, or the cases that were opened and ended into guilty or not guilty verdicts, or the verdicts issued in cases that had been instigated before.
[10] Kaliningrad region has number 27 in the list of the regions of Russia, the number has connotations of magic in the Russian folklore. (Translator's note.)
[11] The aggregate list of such sanctions and a more detailed description of the problem see in: Sanktsii v otnoshenii sotrudnikov bibliotek. Chast 1 // Sova Center. 2011. 13 July (http://www.sova-center.ru/misuse/news/persecution/2010/05/d18706/). In July 2011, we had to start writing the second part of the list.
[12] Yeshche odin zapreshchenny natsistskii trud zapreshchen v Bashkirii // Sova Center. 2011. 13 January (http://www.sova-center.ru/misuse/news/persecution/2011/01/d21174/).
[13] Vstupilo v silu reshenie o povtornom priznanii knigi "Osnovy very v svete Korana i Sunny" ekstremistskoi // Sova Center. 2010. 27 December (http://www.sova-center.ru/misuse/news/persecution/2010/12/d20642/).
[14] Postanovlenie Verkhovnogo suda RF ot 8 fevralia 2011 g. #64-AD11-1 // Supreme Court website (http://www.supcourt.ru/stor_pdf.php?id=423112).
[15] V Lipetske opravdan antikvar torgovavshii nagradami Tret'yego Reikha // Sova Center. 2011. 6 July (http://www.sova-center.ru/misuse/news/persecution/2011/07/d22052/).
[16] Opredelenie Sudebnoi kollegii po grazhdanskim delam Verkhovnogo Suda RF ot 6 fevralia 2007 g. #18-G07-1 // Supreme Court website. 2007. Bulletin #12 (http://www.supcourt.ru/vscourt_detale.php?id=5125&w[]=%D1%81%D0%B2%D0%B0%D1%81%D1%82%D0%B8%D0%BA%D0%B0)