Misuse of Anti-Extremism in December 2017

The following is our review of the primary and most representative events in the misuse of Russia’s anti-extremist legislation in December 2017.

Lawmaking

On December 8, the State Duma adopted in the second reading a bill on increasing penalties for contribution to terrorism. It underwent a significant transformation by the second reading. First of all, the bill came to include a proposal introducing a number of additions to Article 205.2 of the Criminal Code (public calls for committing terrorist activity or public justification of terrorism). The deputies believe that the text of Article 205.2 should also include “propaganda of terrorism,” and that the comments to the article should point out that propaganda of terrorism should be understood as “dissemination of materials and/or information aimed at forming the ideology of terrorism, convincing of its attractiveness or creating the sense of permissibility with respect to terrorist activities.” It should be noted that the concept of the “ideology of terrorism” has not been defined in the law on counteracting terrorism or in any other official document, therefore, it is unclear what kind of materials will be regarded as forming such an ideology. Additionally, according to the new version of the bill, the penalties under Parts 1 and 2 of Article 205.1 (contributing to terrorist activities) for inducing, recruiting or otherwise involving a person in committing crimes of terrorist nature are being increased up to a life sentence. More information on this subject can be found here.

A new bill expanding the legislation in the sphere of relations with “foreign agents” was introduced to the State Duma on December 19. The bill proposes amendments to the Law on Media and the Law on Information, Information Technology and Information Protection. The bill’s authors suggest, first of all, adding to the law “On Mass Media” the stipulation that individuals can also be regarded as mass media outlets that perform the functions of a “foreign agent.” In fact, such a status can be assigned to any person, who receives funds from abroad and systematically distributes any kind of information; the consequences of being designated a foreign agent are currently unclear. The draft bill also proposes that the “foreign agent media outlets” be ordered to establish the corresponding Russian organizations to represent them; the latter will automatically receive the same “foreign agent” status. Finally, according to this draft, materials and messages coming from the mass media outlets designated as “foreign agents” or the Russian “foreign agents” they have established, must be accompanied by a disclaimer that these materials were created by a “foreign agent.” This requirement applies to any informational resources. If the Prosecutor General's Office receives information about the absence of such a disclaimer, the website guilty of such an omission is subject to blocking. We write about this draft legislation in greater detail here.

Prosecutions for Incitement to Ethnic Hatred and Oppositional Statements

In the second half of December, the Astrakhan Regional Court, once again, reviewed the case of Igor Stenin, the leader of the Russians of Astrakhan movement, and upheld his conviction issued by the Sovetsky District Court of Astrakhan in May 2016. At that time, the nationalist was sentenced under Article 280 Part 2 of the Criminal Code (public incitement to extremist activities via the Internet) to two years in a settlement colony. The defense intends to challenge this decision. The lower court found Stenin guilty of publishing on VKontakte under the pseudonym “Ingvar Stefan” a post on the subject of the war in Ukraine, in which he called for liquidation of the “Kremlin invaders.” He was also held responsible for the comment made by another user, which the investigation mistook for a post shared by Stenin). The appellate court (the Astrakhan Regional Court) approved this decision. Then, by the order of the Supreme Court, the verdict was reviewed by the appellate court and revoked for lack of corpus delicti. Stenin was released from the penal colony, where he was serving his sentence. We know of no other such cases in the practice of anti-extremist law enforcement. However, in November, the Supreme Court of the Russian Federation granted the appeal of the Prosecutor General's Office and returned Stenin's case to the appellate court for a new consideration, which, this time, once again arrived at the guilty verdict. Now, Stenin faces the prospect of having to return to the colony and serve the rest of the term.

It became known in early December that, the case of Alexei Moroshkin (Andrey Breiva), charged under Part 1 of Article 214 (vandalism) for painting the bust of Lenin in Chelyabinsk in the colors of the Ukrainian flag in September 2015, was discontinued due to the statute of limitations for a criminal prosecution. The case was opened in 2015; the investigation came to an end several times, but the prosecutor's office never approved the indictments. Moroshkin did not admit his guilt, but agreed to have the case terminated. In our opinion, bringing Moroshkin to administrative responsibility for petty hooliganism could have been an adequate measure in this case, but there were no grounds for the criminal proceedings.

In December, we received information about seven cases of prosecution under Article 20.3 of the Code of Administrative Offences (CAO) for demonstration of Nazi symbols not intended as propaganda of Nazism; we view prosecution for such actions as inappropriate. A Novocheboksarsk resident was fined in late November for posting on a social network two videos, in which Nazi symbols were used with respect to a negatively characterized ideology. The administrator of the public VKontakte group on car accidents in Murmansk was fined in early December for publishing an image that depicted human figures with their heads replaced by a hammer and sickle and a swastika and the caption “We can do it again. 1941-1945” (a popular “patriotic” car sticker) next to depiction of a modern car, a smooth road and a comfortable hospital ward and the caption “We can’t do it.” The image was used to illustrate the news item under the headline “Russia Scores Lower than Mongolia and Ethiopia in the World Road Quality Rating.” A court in Cheboksary returned the case brought against a local activist back to the police; he was facing charges for sharing a Facebook post with the image of Vladimir Putin with a swastika painted on his forehead. The image included the caption “One of Him – We are Millions” and the call to attend the “Millions’ March” which took place in 2012. The police was unable to prove that the offending account on Facebook actually belonged to the activist. In Dzerzhinsk of the Nizhny Novgorod Region, the coordinator of a local movement against increasing the cost of public transportation was sentenced to four days of administrative arrest for posting two images on VKontakte. One of the images depicted “a fist clenching a Nazi eagle, which resembled a chicken” with the caption “To defeat fascism, destroy capitalism!” The other one was “an image of a hand holding a bird, which holds the Nazi swastika symbol in its claws” with the caption “The duty of every communist personally and of the entire communist movement as a whole.” In Dagestan, a report under Article 20.3 CAO was compiled against a local journalist for posting the eagle-shaped emblem of the FC Anzhi superimposed against the Third Reich coat of arms on his VKontakte page in 2012. Law enforcement agencies did not take into account the satirical nature of the image, which has to be understood in the context of the 2012 conflict between the fans of various clubs. A supporter of Artpodgotovka movement was detained in Tolyatti and charged with publishing on VKontakte an image of a man “with the face of the president of the Russian Federation” wearing the SS uniform. However, the court returned the report against him to the police due to formal violations.

It became known in late December that, in Norilsk, a local resident was fined under Article 20.3 part 2 of the CAO (manufacture, marketing or the acquisition for sale of Nazi attributes or symbols, aimed at their propaganda) for placing an announcement on the Avito e-commerce website regarding the sale of dishes with Nazi Germany symbols on them. Most likely, the announcement in question pertained to the sale of antique German dishes of the Third Reich. We believe that this part of Article 20.3 should be utilized not against antique dealers, but rather against modern manufacturers of items featuring Nazi and neo-Nazi symbols (badges, clothes, copies of weapons, etc.) and distributors of such products.

In mid-December, the St. Petersburg City Court approved the decision of the Leninsky District Court, issued in March this year, to recognize “Bandera and Banderites. Who They Really Were” – an article by historian Kirill Alexandrov – as extremist material. The decision of the Leninsky District Court was based on the expert opinion, authored by specialists from St. Petersburg State University, according to which the article contained the denial of acts and the approval of crimes established by the Nuremberg Tribunal, and the slander against the actions of the USSR during the Second World War – that is, fell under Article 354.1 of the Criminal Code. We reviewed the Alexandrov's article in question and found neither a denial of the crimes of the Nazis and their allies, nor dissemination of any information about the actions of the USSR, except for the ones already well-known. In addition, it is important to note that the fact of a text falling under any article of the Criminal Code does not entail that it should be considered extremist. First, a court must establish that the text in question corresponds to Article 1 Part 3 of the Law on Combating Extremist Activity, according to which extremist materials are defined as “calling for extremist activity to be carried out or substantiating or justifying the necessity of carrying out such activity, including works by leaders of the National Socialist Workers’ Party of Germany, the Fascist Party of Italy, publications substantiating or justifying ethnic and/or racial superiority or justifying the practice of committing war crimes or other crimes aimed at the full or partial destruction of any ethnic, social, racial, national or religious group.”

In December, the Federal List of Extremist Materials came to include five new materials (one video, three articles and a de-motivator), banned by the decision of the Oktyabrsky District Court of St. Petersburg. All these materials contain statements regarding the alleged involvement of the Russian Intelligence Services in the terrorist attacks that have occurred on the territory of Russia since the late 1990s, as well as in the terrorist attacks on the territory of Ukraine since the start of the military conflict there. The court decision was based on the provision of the law “On Combating Extremist Activity,” according to which extremist activities include making deliberately false public accusations against state officials of being engaged in such activity (and in terrorism in particular). However, in our opinion, the court failed to prove convincingly that the authors of the materials, or the commentators cited by the authors, were advancing the “knowingly false” notions, that is, the notions, in which the authors had no reason to believe. We view this provision of the law as problematic per se. Presumably, slanderous accusations of serious crimes against high-ranking officials can lead to destabilization and, therefore, legislators have categorized them as extremist activity; however, it is not clear why only certain accusations in this category (for example, of committing murders motivated by some kind of extremism) should be viewed as a form of extremist activity, but not the others (for example, murder accusations unrelated to extremism). We believe that this provision does not belong in the law on extremist activity – accusations of any crime put forward by one person against another can be considered in court as libel cases (the question of the most appropriate legal code to contain the article on libel needs to be discussed separately).

In the middle of the month Roskomnadzor blocked the website of the Open Russia movement upon request of the Prosecutor General's Office. The Prosecutor General's Office published a press release informing that it had “sent requests to Roskomnadzor seeking to restrict access to Internet sites that disseminate information materials of foreign non-governmental organizations, whose activities are deemed undesirable in Russia,” that is, to the sites of 11 organizations included in the relevant list of the Ministry of Justice, 21 online resources in total. On December 12, the Odnoklassniki social network blocked the Open Russia’s account “for violating the regulations.” On December 13, Twitter received a letter from Roskomnadzor with a request to block the organization's account within 24 hours or face potential restrictions with respect to the entire platform. On December 14, it became known that YouTube had received a similar letter with the order to remove their Open Russia channel. Neither platform blocked the Open Russia’s accounts. Notably, when British organizations of the Open Russia were added to the list of undesirable organizations in April, representatives of the Prosecutor General's Office pointed out that the Open Russia movement registered in Russia (the owner of the blocked website) has not been recognized as undesirable. We would like to reiterate that we view extra-judicial blocking of online materials as inacceptable, since it leads to arbitrariness and abuse by the law enforcement and to attacks against freedom of speech.

Prosecutions against Religious Organizations and Believers

In early December, the Babushkinsky District Court of Moscow received a criminal case against eight alleged members of the forbidden religious association Tablighi Jamaat. They are charged under Parts 1 and 2 of Article 282.2 for organizing activities of an extremist organization and for participating in it. All the defendants were detained in Moscow and Kazan in December 2016 through January 2017. The criminal case was initiated by the Directorate of the FSB of Russia for Moscow and the Moscow Region. We view the ban against Tablighi Jamaat and prosecutions of Muslims for involvement in it as unjustified, since the movement is engaged in propaganda of Islam and has not been implicated in any calls for violence.

At the same time, the Privolzhsky District Military Court, in the hearings in Kazan, sentenced eight followers of the radical Islamist party Hizb ut-Tahrir under Article 205.5 Part 1 of the Criminal Code (organizing a terrorist organization) and under Article 282.2 Part 1 (organizing activities of an extremist organization). One of the defendants was additionally convicted under Part 1 of Article 205.1 (financing a banned organization) for collecting donations in order to finance printing of Hizb ut-Tahrir literature, another one – under part 4 of Article 150 (involving a minor in a criminal group). All of them were sentenced to long prison terms – from 16 to 19 years – in a maximum security penal colony; some were also fined.

The same court passed a verdict in a Bashkortostan Hizb ut-Tahrir case in mid-December. The court found five residents of Sterlitamak and Salavat guilty of organizing the activities of the organization recognized as terrorist, or of participation of in it. Their sentences ranged from 11 to 16 years in a maximum security penal colony.

We would like to remind here that, in our opinion, charging followers of Hizb ut-Tahrir with terrorist crimes solely on the basis of their party involvement (holding meetings, reading literature, etc.) is inappropriate.

In the second half of December, the Leningrad Regional Court denied the appeal of four foreign Jehovah's Witnesses organizations against the ruling to recognize The Holy Scripture: the New World Translation (2014) and three brochures of Jehovah's Witnesses as extremist materials. Thus, the decision to ban these publications, issued by the Vyborg City Court on August 17, 2017, has been upheld. We believe that recognizing the Bible in the Jehovah's Witnesses translation or their other publications as extremist is inappropriate; we view such bans as manifestations of religious discrimination. In addition, in this case, the prosecutor's office and the court circumvented the law, which prohibits the recognition of the scriptures of the world's religions as extremist, without sufficient justification; this is a sad precedent that opens the possibility of prohibiting other translations and synopses of the holy books.

In early December, the European Court of Human Rights (ECHR) partially communicated a complaint filed in February this year by the Administrative Center of Jehovah's Witnesses in Russia and its chairman Vasily Kalin. The applicants challenged the warning on the impermissibility of extremist activities, issued to the Administrative Center by the General Prosecutor's Office in March 2016, and the decision of the Supreme Court of the Russian Federation, adopted in April 2017, according to which the Administrative Center of Jehovah's Witnesses in Russia and their 395 local communities were liquidated as an extremist organization and its structural subdivisions. Jehovah's Witnesses failed in their attempts to challenge either the warning or the liquidation decision in the Russian courts. The applicants have complained of illegal, unjustified and discriminatory interference with their right to freedom of religion expressed by the liquidation of the Administrative Center, in accordance with Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) guaranteeing the right to freedom of religion, in conjunction with Article 11 (guaranteeing the right to freedom of association), and Article 14 (prohibiting discrimination). In addition, the confiscation of the property of the Administrative Center was appealed on the basis of Article 1 of the Additional Protocol to the European Convention, protecting the right to property. The ECHR asked Russia whether or not all the above-mentioned provisions of the European Convention were violated in this case. The appeal has been prioritized for consideration. The Russian side has to provide answers to the ECHR questions by March 23, 2018.

Prosecutions for Anti-Religious Statements

In early December, the Industrialny District Court of Barnaul issued a guilty verdict in the case of Natalia Telegina, a neo-pagan woman charged under Article 148 Part 1 of the Criminal Code (insulting the feelings of believers) and Article 282 Part 1 of the Criminal Code (incitement to ethnic and religious hatred and humiliation of dignity). The court gave her a suspended sentence of two years with a probation period of 1 year and 6 months for her post on VKontakte. Telegina expressed her intention to appeal the verdict. The court interpreted her post of an image, which depicted a warrior in a horned helmet swinging a hammer over the silhouette of a burning temple, as an insult to the feelings of believers. Six anti-Christian de-motivators, according to the court, incited hatred and humiliated the dignity of Christians. The court found signs of humiliation of the dignity of people on the basis of ethnicity in yet another post by Telegina – the de-motivator about migrants from the Caucasus. We view the prosecution against Telegina under Article 148 of the Criminal Code as inappropriate, because we are convinced that the concept of “insulting the feelings of believers” should be altogether excluded from the Criminal Code as lacking clear legal meaning. As for the charge under Article 282 of the Criminal Code, we see no signs of inciting religious hatred in Telegina's publications. Some of them can be regarded as humiliating the dignity of Christians, but we believe that the humiliation of dignity should be decriminalized as an act of minor social danger. Telegina’s publication against natives of the Caucasus is definitely racist, but is unlikely, in and of itself, to merit criminal prosecution.