Misuse of Anti-Extremism in October 2014

The following is our review of the primary and most representative events in the misuse of Russia’s anti-extremist legislation in October 2014.

Lawmaking

In October 2014, a draft law “On Amendments to Article 20.3 of the Code of Administrative Offences (regarding clarification of an administrative offense) was adopted by the State Duma in the second and the third readings and approved by the Federation Council. This document introduces additions to the text of the Federal Law “On Immortalization of Victory of the Soviet People in the Great Patriotic War of 1941 - 1945” establishing legal responsibility not only for propaganda and public demonstration of Nazi attributes or symbols similar to Nazi attributes to the point of confusion, or symbols of extremist organizations but also for propaganda and public demonstration of attributes or symbols of “organizations, who were cooperating with groups, organizations, movements or persons recognized as criminal or guilty of crimes in accordance with the verdict of the International Military Tribunal (Nuremberg Tribunal) or in accordance with sentences by national, military or occupation tribunals, based on the judgment of the International Military Tribunal (Nuremberg Tribunal) or sentences handed down during the Great Patriotic War, the Second World War.“ The proposed wording of the Administrative Code Article 20.3 provides for sanctions against propaganda of the Nazi and extremist symbols, as well as “paraphernalia, public demonstration of which is prohibited by federal law.” In addition, the project augments the law “On Immortalization of Victory of the Soviet People in the Great Patriotic War of 1941 - 1945” by Part 5, which provides for compiling the list of entities subject to the prohibition, the attributes and symbols of these organizations. The vague wording of the bill is “balanced” by the fact that creation of a specific procedure for drawing up these lists of organizations and symbols has been delegated to the Government. This assignment will probably be entrusted to the Ministry of Justice. We believe that this bill, brought forth solely for political reasons, is redundant and of low quality even by current Duma standards, and its enforcement will inevitably be highly selective and, thus, may lead to unjustified harassment.

In the second half of October, the Constitutional Court dismissed the complaint by Nadezhda Tolokonnikova against the implementation of the Criminal Code Article 213 (hooliganism). As Nadezhda Tolokonnikova, a member the punk band Pussy Riot, mentioned in her complaint, the Criminal Code Article 213 (which was used in the Pussy Riot case) “disproportionately restricts freedom of expression, allows to declare a public nuisance what, in fact, is a violation of religious norms, and establishes the criminal nature of acts on the basis of them being perceived as unacceptable by the majority of the population.” The Constitutional Court disagreed with Tolokonnikova’s position. As stated in the court ruling, “the challenged provisions of criminal law contain no uncertainty, which could cause a person to be deprived of the opportunity to realize the wrongfulness of their actions and anticipate eventual responsibility for its commission, and which could prevent uniform understanding and application of the rule by the law enforcement authorities, and can not be viewed as constituting a violation of the applicant’s rights.” According to the Constitutional Court judges, in cases where the information is propagated in a manner, based on “gross and demonstrative neglect toward accepted societal notions of acceptable behavior in particular locations, including religious sites, is devoid of any aesthetic and artistic value and is in and of itself offensive,“ such activity falls outside the legitimate scope for freedom of expression. As we see it, the history of use of the Criminal Code Article 213 indicates lack of common understanding of this Article by law enforcement agencies. Notably, due to the shortcomings of the law on combating extremism, all related legislative norms are also interpreted ambiguously, including articles that penalize hate crime. The issues pertaining to the extent of exhibited disregard for social norms, or the degree of social danger of particular hooliganism incidents, not to mention the aesthetic and artistic aspects of the event, are all debatable.

Criminal Prosecution

In early October, the Naberezhnye Chelny City Court of the Republic of Tatarstan found Fauziya Bayramova, a Tatar writer, activist, and leader of Milli Mejlis (the alternative “national parliament”), guilty under Part 1 of the Criminal Code Article 282 (inciting hatred or enmity and humiliation of human dignity) for publishing texts on her personal Facebook page; she received a suspended one-year prison sentence. Bayramova was convicted for publishing two materials in February – “Beasts and Victims” article and the “Statement of Milli Mejlis on the Events in the Crimea and Ukraine”. The court agreed with the prosecution that by publishing these texts Bayramova “committed acts aimed at inciting hatred, enmity and the humiliation of a person’s or a group of persons’ dignity on the grounds of nationality.” In our opinion, neither text shows any qualifying signs for Article 282. “Beasts and Victims” discusses the problem of persecution of peaceful Muslims in Tatarstan, which, according to the author, are taking place with the knowledge of the Republic’s leadership, and the “Statement of Milli Mejlis on the Events in the Crimea and Ukraine” expressed solidarity of Tatar nationalists with the Crimean Tatars’ yearning for independence and disagreement with the policy of the Russian authorities. Bayramova made no appeals that could pose a danger in relation to any ethnic group.

In the same time period, the Smolensk Regional Court found Smolensk City Councilman Andrei Ershov guilty under Part 1 of Article 282 (actions aimed at humiliation of a group of persons on the basis of belonging of a particular social group, committed in public), and sentenced him to a fine of 200 thousand rubles. As previously mentioned, at the meeting of Planning and Budget Commission Smolensk City Council, Ershov had expressed the following opinion upon hearing the proposal to give juvenile prisoners of World War II Nazi concentration camps the status of veterans: “What do we owe juvenile prisoners of concentration camps? The fact that they were not finished off?” During the preliminary investigation, the Smolensk City Branch of the regional public organization of former juvenile prisoners of Nazi concentration camps, as well as 11 people belonging to this social group, were recognized as offended parties, but the claim for moral damage was not granted. We believe that Ershov‘s statement can definitely be considered degrading and insulting. In this case, we would recommend actions under the civil code as most appropriate - that is, we do not agree with the rejection of the civil claim by the Smolensk Regional Court. However, we oppose the criminalization of inflicting humiliation as such; we saw no need for criminal prosecution in this case.

In early October, the proceedings against activist Paul Shekhtman were initiated in Moscow under Part 2 paragraph “a” of Article 282 (inciting hatred with the threat of violence) for his Facebook post; the activist has been put under travel restrictions. Shekhtman shared a text by Roman Davidenko, a Ukrainian parliament member from the UDAR Party, about the murder of the captured Ukrainian soldiers, who refused to give interviews to Russian TV journalists, by the representatives of Donetsk People's Republic. The text ends with a call to shoot “vatniks, terro-Rashists and even more so - Kadyrovites and Ossetians” on location. Shekhtman added his own comment to the shared post, urging Ukrainian troops to shoot journalist Andrey Stenin, who was then considered to have gone missing, and kill employees of Russian pro-government channels. From our perspective, the police had every reason to demand that Shekhtman remove aggressive statements from the public Internet space. However, it is doubtful that law enforcement agencies should resort to criminal prosecution on such insignificant matter. In addition, the object of the defendant’s hostility does not correspond to the composition of Article 282, unless, of course, we are considering “employees of Russian pro-government channels” to be a protected social group. More information can be found here.

In the second half of October, Irina Khrunova, an attorney for member of the Kaliningrad Committee of Public Self-Defense movement Mikhail Feldman, announced that her client had filed a lawsuit in the European Court of Human Rights. Feldman complained of a violation of his right to liberty and security (Article 5 of the European Convention on Human Rights) and his freedom of expression (Article 10 of the Convention). “The applicant pleads non-guilty of the indicated crime, however, he argues that his detention is not a justified measure, even if he had committed that crime,” reads the text of Feldman’s complaint to the ECHR. Feldman has been under arrest since April 26, 2014. We would like to remind here that three activists - Mikhail Feldman, Oleg Savvin and Dmitry Fonaryov - were arrested in Kaliningrad in April and charged under Part. 2 of the Criminal Code Article 213 (hooliganism committed by a group of persons by prior agreement or by an organized group or associated with resistance to authority). According to the investigators, the offenders hung a German flag on the Federal Security Service building on March 11, 2014 “as a symbol of the need for the Kaliningrad Region to leave Russian Federation and to join the European Union, and thus flagrantly violated the public order.” We do not agree with the qualification of this incident under the Criminal Code Article 213, which implies committing hooliganism involving weapons - which is not the case here- or motivated by hatred. It is utterly unclear who could be an object of hate for the persons displaying the flag.

In early October, criminal case under Part 2 of the Criminal Code Article 205.5 (participation in the activities of a terrorist organization) was opened in Yuzhnouralsk against four Muslims - members of Hizb ut-Tahrir. According to the investigation, three of the detainees distributed leaflets in Chelyabinsk mosques on September 27, 2013. Another criminal case had been opened against them earlier under Part 1 of Article 282 (inciting hatred or enmity and humiliation of human dignity). As previously mentioned, we believe that the ban on Hizb ut-Tahrir specifically as a terrorist organization was inappropriate, and, accordingly, so is the prosecution of its supporters for participating in a terrorist organization.

In mid-October eight people were detained in Tatarstan on suspicion of their involvement in Hizb ut-Tahrir. Criminal cases against them were initiated under Article 205.5 of the Criminal Code.

In mid-October, there were reports on the beginning of the trial against six Said Nursi followers in the case under Article 282.2 (organization of and participation in the activities of extremist organizations) in the Perm Region. In addition to the residents of the Perm Region, the defendants also include Nursi followers from Rostov-on-Don and Saint Petersburg (their exact number is unknown). Initially, the case involved seven suspects, but it was reported that one of the defendants received a suspended one-year prison sentence in June 2014. No further details were disclosed. As previously mentioned, we do not consider appropriate to ban either the works by Said Nursi (which do not contain any extreme statements) or the Nurcular organization. which have never existed in Russia. We oppose the persecution of individual believers for studying Nursi’s books.

Administrative Prosecution

Six people, including a bookseller and a head of the religious organization from Khanty-Mansiysk, an imam from the Kemerovo Region and a Mufti from a Yekaterinburg mosque, were fined in October under the Administrative Code Article 20.29 (mass distribution of extremist materials, or possession with intent to distribute). All of them were found to be in possession of inappropriately banned religious literature. Two more people - from Perm and Tatarstan respectively - were fined for online distribution of the video Let’s Remind Crooks and Thieves of Their Manifesto 2002, created by supporters of Alexey Navalny and inappropriately recognized as extremist. In addition, the Perm Regional Court confirmed the decision of the Kirovsky District Court of Perm, which sentenced Yevgeniya Vychigina to a fine of one thousand rubles under Article 20.29 for being tagged in the prohibited video The last interview of Prymorye Guerillas, posted on the social network “Vkontakte.”

Notably, a temporary moratorium on the removal of literature banned in Russia for extremism was introduced in Crimea in mid-October. Leader of Crimea Sergey Aksenov announced that such literature had to be voluntarily surrendered within three months.

In late October, the Supreme Court overturned the decision of the Leninsky District Court of Cheboksary, issued in the spring of 2014 and upheld by the Supreme Court of the Republic, against Rostelecom regional branch director Sergey Ivanov. Ivanov was fined in the amount of two thousand rubles under the Administrative Code Article 20.29. The provider was accused of failing to restrict access to materials listed on the Federal List of Extremist Materials as item no. 2066. In addition to several appropriately banned nationalist videos, this item also included Let’s Remind Crooks and Thieves of Their Manifesto 2002, created by supporters of Alexey Navalny, which was banned inappropriately. Recall also that, from our point of view, charging providers under Article 20.29 is altogether inappropriate, since they do not engage in deliberate distribution of prohibited materials. The Supreme Court found that Ivanov’s guilt has not been sufficiently proven, since the pages, which contained the materials recognized as extremist, have not been included on the Unified Register of Banned Websites. Thus, a precedent was set for reviewing a number of similar cases against providers in different regions.

Banning Materials for Extremism, Blocking Websites and Other State Actions

The materials, inappropriately banned as extremist in October, include 52nd book of Sahih al-Bukhari Hadith, written in the 8th century, and “To Ukrainian Patriots” poem by Alexander Byvshev, a teacher from the Orel Region; an inappropriate ban was also upheld for four songs by Igor Popov of the Other Russia party from the punk-project album Vosstavshy Partiets [insurgent party member]. In addition, a trial in the case pertaining to the ban on Pristavnoe Blagochsestie video (video about the confiscation of relics of Venerable St. Euphymios and St. Euphrosynia of Suzdal from the Russian Orthodox Autonomous Church) has started in Vladimir; we view the prosecutorial claims against the video as unfounded.

Inappropriate access restrictions for Russian users implemented by Roscomnadzor in October affected the following resources: the blog hosting platform lj.rossia.org, the Wayback Machine (archive.org) – an automatic aggregator of Internet content that contains a fairly complete archive of the Internet from 1996 (a few days later it was excluded from the registry and unblocked), and a number of pages with content related to the Ukrainian events.

In October, prosecutors issued a series of inappropriate warnings to citizens about the impermissibility of violating the law on combating extremist activity. Three citizens of Kyshtym in the Chelyabinsk Region, who have been found to possess inappropriately banned collection of prayers The Muslim’s Fortress, received warnings; the imam of the Sababash Village Mosque in the Sabinsky District of Tatarstan and six local residents received warnings for their support of Tablighi Jamaat religious movement.

Unjustified warnings about the impermissibility of violating the law on combating extremist activity also affected mass media in October. Novaya Gazeta received a warning for publishing an article by Yulia Latynina and the Ekho Moskvy (Echo of Moscow) Radio Station - for the Eyewitness show with Los Angeles Times correspondent Sergey Loiko on the subject of military activities in the Donetsk airport.