Inappropriate Use of Anti-Extremist Legislation from January 2014 through August 2015, in Brief

This brief overview focuses on major legislative initiatives and criminal law enforcement statistics that pertain to combating extremism in the time period, when the events in Ukraine have become a major factor in Russia’s internal life. However, this report covers only the aspects of legislation and law enforcement practice that we see as leading to human rights violations and excessive restrictions of civil liberties.

Misuse of anti-extremist legislation falls into two major categories.

The first one can be described as “excessive implementation,” stemming from low quality of the law enforcement training and from the fact that the law enforcement officers are primarily interested in boosting up their reporting statistics, but, most importantly, from poor quality of the anti-extremist legislation per se. This first category has generally remained quite stable, although abuses that are not curbed have a natural tendency to multiply over time.

The second category represents deliberate development of suppression mechanisms targeting the oppositional or simply independent forms of activity. This category has become much more pronounced starting in mid-2012 on the height of the protest movement; however, the repressive component in legislation and law enforcement in our area of interest has continued to grow despite the decline in the oppositional activity. The Ukrainian events gave a new impetus to this process, and a number of new laws, aimed at tightening the anti-extremism legislation and expanding the “illegal zone,” were introduced in 2014. In 2015, the creation of legislative norms in this area has began to decline, apparently due to the fact that the ideas, which could be implemented given the current political situation, were already put into practice in the course of the preceding year. Notably, the new crimes and offenses are defined in such a way that their literal application is either impossible or would lead to mass repressions, but in practice these rules are applied very selectively.

Below we will review the legislative innovations that pose a clear danger of imposing undue restrictions on rights and freedoms.

The law on “insulting the feelings of believers,” that is, the new Part 1 of the Criminal Code Article 148, “Public actions, expressing obvious disrespect for society and committed to insult the religious feelings of believers,” came into force in early 2014. Penalties range from fines with no minimum amount to one year in prison. From the existing law enforcement practice we can infer that the law pertains to actual actions, but, based on its warning, it can also be used against statements.

In the context of the fight against the “rehabilitation of Nazism” a new article 354.1 was added to the Criminal Code, according to which not only denial of Nazi crimes, but also dissemination of false information about the activities of the Soviet Union in World War II, connected with accusing it of committing crimes, established by the verdict of the Nuremberg Tribunal, is punishable by a fine of up to 300 thousand rubles or imprisonment up to five years.

Second, the authorities have apparently appointed themselves the impossible task of stopping online distribution of information perceived as dangerous to themselves or the society as a whole.

The 2014 “Law on Bloggers” demands that server owners notify Roskomnadzor upon starting their activities, store their user activity data for six months, and make it available to law enforcement agencies in cases stipulated by law, as well as comply with the hardware and software requirements, which facilitate operational and investigative activities. Owners of relatively popular websites or social network accounts (the ones with over 3000 visitors a day) are required to register, reveal their real name, and face other obligations.

Since 2014, the fact that the statement was made on the Internet, has become an aggravating circumstance in cases of incitement to extremism (the Criminal Code Article 280) or separatism (Article 280.1).

Due to Russia's involvement in Ukraine, a significant portion of the anti-extremist law enforcement abuses is related to statements and actions related to the Ukrainian events, in one way or another. The number of inappropriately opened criminal cases, which involve various charges of “incitement to hatred,” increased during the period under review. Persecution against religious minorities, most frequently Jehovah's Witnesses and followers of Said Nursi, continued as well. Criminal sentences were still imposed for the wide range of intolerant statements that contained no illegal incitement and clearly presented no public danger.

We view 11 verdicts against 13 persons, rendered under Article 282 (incitement to hatred) in 2014 through August 2015, as inappropriate. For example, a school teacher Alexander Byvshev from Kromy, the Orel Region, was sentenced to 300 hours of mandatory labor, with the two-year ban on professional practice and with confiscation of his laptop, for posting online his poem, which called on the Ukrainians to meet invaders with armed resistance. The sentence issued against Elvira Sultanakhmetova of Pervouralsk, the Sverdlovsk Region, is also indicative; she received 120 hours of mandatory labor for her social network comment, in which she appealed to Muslims, urging them to refrain from celebrating the New Year – a pagan holiday. Only four criminal cases, improperly opened under Article 282, were closed during the period under review; meanwhile, about thirty new such cases were opened.

Two court cases, initiated in Chechnya under Article 148 Part 1 of the Criminal Code for insulting the feelings of believers, are causing some doubt, but we don’t yet have enough information to judge the appropriateness of the charges.

No wrongful convictions under the Criminal Code Article 280 were recorded in 2014; one such verdict was issued in the first half of 2015 – against opposition activist Anton Podchasov from Barnaul, who was sentenced to a year and a half of probation for sharing online a text hostile to (ethnic) Russians. However, ten new inappropriate or questionable cases were filed under this article in 2014 – August 2015.

Three criminal cases were inappropriately opened under Article 280.1 of the Criminal Code. One of them targets Refat Chubarov, the leader of the Mejlis of the Crimean Tatar People, for speaking out in favor of returning Crimea to Ukraine.

In 2014 through August 2015, courts issued no inappropriate sentences under Article 282.1 of the Criminal Code (organization of an extremist community or participation in it) and, as far as we know, no unfounded cases were opened under this article during the review period.

Ten wrongful convictions were issued over the past 1.5 years under Article 282.2 of the Criminal Code. 26 people were convicted for organizing activity of an organization, recognized as extremist, or participation in such an organization. Thus, three Ulyanovsk residents received sentences of 3 years 6 months in a penal colony, one year eight months in a penal colony and a suspended sentence of two years for their involvement in Nurcular – an organization, which in reality, is non-existent in Russia. At least four new cases were inappropriately opened under this article.

Without including them in our general statistics, we would like to point out 5 verdicts against eight Hizb ut-Tahrir followers, charged as members of a terrorist organization or assistants in terrorist activities only for the fact of their participation in the party. We consider these sentences inappropriate, since we do not view this radical Islamist organization as terrorist. Sentences in such cases are harsh; for example, in Moscow, four Hizb ut-Tahrir followers were sentenced to terms ranging from 7 to 11 years in prison. At least 8 new similar criminal cases were inappropriately initiated in 2014 through August 2015.

One inappropriate sentence under Article 205.2 of the Criminal Code (public incitement to terrorist activity or justification of terrorism) was issued to Anton Izokaitis, a resident of Staraya Russa, for the squabble at the police station in the morning after the New Year celebrations; he received a punishment of two years in a penal colony. Two new cases were opened, but one of them has since been closed.

No inappropriate sentences were issued in 2014 under the Criminal Code Article 213 (hooliganism) and Article 214 (vandalism) with the hate motive. During this period in 2015, we know of one such sentence under Article 213 against three persons – the activists from Kaliningrad received real prison terms equal to those they spent in pre-trial detention for hanging the German flag on the local FSB building. One earlier case under Article 213 was closed. However, at least two new criminal cases were initiated under Article 213 and at least two – under Article 214 (one case includes charges under both articles), taking into account the hate motive, which, we believe, was absent in these cases.

So, overall, 23 inappropriate sentences against 43 people, issued in 2014 through August 2015, involved charges under anti-extremist articles of the Criminal Code. The verdict against one of these defendants was later canceled. At the same time, we know of at least 51 criminal cases inappropriately opened during this period.

The Code of Administrative Offences also includes a number of articles utilized in the fight against extremism. Please note that our data in this area is far from complete. The majority of inappropriate legal actions are associated with the Administrative Code Article 20.29 (mass dissemination of extremist materials, or possession with intent to distribute). In the period under review, we recorded a significant increase in wrongful convictions under this article. The number of inappropriate court judgments under Article 20.3 of the Administrative Code for the propaganda and demonstration of extremist symbols has also increased in comparison with preceding years.

Cumbersome and riddled with errors, the Federal List of Extremist Materials added 846 items in 2014 through August 2015, and it now exceeds 3000 items in total. Its rate of growth has declined slightly, probably due to the fact that both the Unified Register of Banned Websites, blocked by the courts, and the list of sites blocked under “Lugovoy’s law” by the General Prosecutor's Office together with Roskomnadzor have already began to function during this period; some online materials must have ended up on one of these two lists instead. The first one now includes 235 items and lists resources recognized as extremist; the second one contains 219 items representing the pages blocked for incitement to extremist activity or calls for unauthorized public actions. In the period under review, inappropriate bans account for dozens of titles on each of these three lists, including religious materials, materials by the political opposition, the works by historians, and so on.