Misuse of Anti-Extremism in December 2018

The following is our review of the primary and most representative events in the misuse of Russia’s anti-extremist legislation in December 2018.

Lawmaking

On December 27, 2018, the President signed a package of bills related to partial decriminalization of Article 282 of the Criminal Code (incitement to hatred or enmity). According to the new legislation, the first violation by citizens or legal entities will entail administrative punishment under the new Article 20.3¹, which corresponds to the current composition of Article 282 Part 1. Criminal liability ensues only after a repeated violation of the law within a year following an administrative prosecution. The only amendment made in the second reading on December 19 was related to establishing a one-year limitation period for administrative liability under Article 20.3¹ (as opposed to the three months period, currently established for administrative offenses that require court proceedings). The proposals of the Ombudsman and the President’s Human Rights Council – to exclude the clause on belonging to a social group from Articles 282 and 20.3¹, to exclude criminal prosecution for humiliation of dignity and to introduce criminal liability only for the third, rather than the second, violation within one year – were not taken into account.

A package of bills, signed on the same day, stipulated harsher conditions of serving the sentences for offenders, convicted under a number of the Criminal Code articles (primarily pertaining to terrorism) or offenders, who have a “destructive impact” on their cellmates. The package expands the list of conditions that allow courts to decide on imprisonment for at least part of the term, to specify initial mandatory prison term under a number of Criminal Code articles and to prohibit the premature transfer of inmates with positive characterizations to penal colonies. In addition, the new legislation gives the Federal Penitentiary Service of Russia discretion to determine the location for offenders to serve their sentences, regardless of their crime, if they are noticed to have a “negative impact” on their cellmates or engage in propaganda of terrorist ideologies. These provisions do not pertain to ordinary members of extremist groups or organizations convicted under Article 282.1 Part 2 and Article 282.2 Part 2.

In mid-December, a group of State Duma Deputies headed by Yelena Yampolskaya, Chair of the Committee for Culture, submitted to the lower chamber a package of bills amending Article 20.3 of the Administrative Code (propaganda or public demonstration of Nazi attributes or symbols, or attributes or symbols of extremist organizations, or other attributes or symbols, propaganda or public demonstration of which are prohibited by federal laws). The draft legislation is intended to limit the scope of the article, so that, when it is applied, the context for displaying the symbols of prohibited organizations is taken into account. At this time, Russian legislation allows for punishing any display of such symbols whatsoever. The Deputies fail to propose a clarification to indicate that demonstration of the symbols of banned organizations is punishable under this article only if it is intended as propaganda – although such a clarification alone would have been sufficient for avoiding the majority of abuses related to the application of this legal norm. The intent is merely to supplement the article with a note, according to which the provisions of the article “do not apply to cases, in which Nazi attributes or symbols, or attributes or symbols similar to Nazi attributes or symbols to the degree of confusion, or attributes or symbols of extremist organizations, or other attributes or symbols, propaganda of which is prohibited by federal laws, are used in works of science, literature, or art, in mass media output as well as for teaching and educational purposes by educational institutions, on condition of condemnation of Nazism and extremism and promoting negative attitude towards Nazism and extremism, in the absence of signs of propaganda and (or) justification of any Nazi or extremist ideology.” We have doubts whether the introduction of the note, as proposed by Yampolskaya’s group, would allow ordinary citizens to avoid unreasonable prosecution. After all, they will have to prove every time that an image they publish belongs to “works of science, literature, or art;” otherwise only mass media outlets (or educational organizations for academic and educational purposes) would be allowed to publish it. The requirement for a publication to unequivocally condemn a given ideology is not always appropriate and looks out of place, if an image in question is a neutral reproduction not in the context of discussing ideology or practice of a particular prohibited organization.

On the same day, Deputy Dmitry Vyatkin (United Russia) and Senators Alexander Klishas and Lyudmila Bokova (the Heads of the Federation Council Committee on Constitutional Law) submitted to the State Duma two draft legislative packages seeking to punish citizens for dissemination of objectionable information on the Internet. This is the first time, when the sanctions specifically punishing online behavior were introduced in the Duma

The first of the proposed projects is intended to prevent the dissemination of online information targeting an unlimited number of people and “expressing obvious disrespect in indecent form” toward the society, the state, the official state symbols, the Constitution and the agencies exercising state power in the Russian Federation, “if these actions do not constitute a criminal offense.” The bills’ creators suggested adding Part 3 to Article 20.1 (petty hooliganism) of the Code of Administrative Offences. The new provision would punish for the offense described above by imposing an administrative fine ranging from one thousand to five thousand rubles or an administrative arrest for up to fifteen days. Introduction of a procedure for extrajudicial blocking of such information is expected as well. The relevant State Duma committees – the Committee on State Building and Legislation and the Committee on Informational Policy, Technologies and Communications – have already approved both bills included in the package. In our opinion, the draft contains vague formulas (“expressing disrespect in indecent form” has not been clearly defined) and suggests excessive legislative norms duplicating the existing articles of the Criminal Code on socially dangerous statements. Furthermore, it creates the risk of excessive interference of the authorities in the Russian citizens’ right to freedom of opinion and expression with respect to their online communication styles, which are governed by the rules established by the social networks administration.

The second package of bills suggests imposing sanctions for distribution of “deliberately inaccurate socially significant information, disseminated under the guise of reliable messages, that creates a threat to the life and (or) health of citizens, threat of mass violation of public order and (or) public safety, of breakdown in the functioning of the essential services, transport or social infrastructure, or other grave consequences” via mass media or the Internet. The authors propose adding Part 9 to Article 13.15 of the Code of Administrative Offenses (abuse of freedom of the media), which would stipulate a punishment for such violation – an administrative fine ranging from three thousand to five thousand rubles for individuals, from 30 to 50 thousand rubles for officials and from 400 thousand to one million rubles with confiscation of means of committing the offense for legal entities. We regard the use of the expression “deliberately inaccurate” in the legal sphere in relation to socially significant information as problematic. It will be almost impossible to establish the presence of intent in the relevant cases, that is, to prove the fact that a violator knew for a fact that the incriminating information was unreliable and that its dissemination would lead to the named or even to certain unnamed “grave” consequences. The courts’ failure to pay due attention to determining such an intent would inevitably lead to violations of the citizens' rights to freedom of receiving and disseminating information, freedom of expression and freedom of assembly. In addition, according to the existing legislation, if a person publicly urged citizens to engage in illegal activity or shared prohibited information, such publications fall under the relevant articles – criminal Article 280 (incitement to extremism), 205.2 (incitement to terrorism), 212 (mass riots), or administrative Article 20.29 (dissemination of extremist materials) and others – regardless of whether the disseminated information was false or truthful. Thus, the proposed law is redundant. As for countering the spread of fake news, in our opinion, this goal is best achieved by promptly providing citizens with the most complete information and expert opinion on socially important issues.

Prosecutions for Incitement to Hatred and Oppositional Statements

In late December, the Moscow City Court Presidium overturned the sentence in the case of Yevgeny Kort, convicted under Article 282 Part 1 of the Criminal Code (incitement to national hatred), and sent the case to the Zelenogradsky District Court for a re-trial. The appeal of Kort’s attorney Sergey Badamshin was delivered to the Moscow City Court by Vladimir Davydov, the Deputy Chairman of the Supreme Court of Russia. As Davydov pointed out, the verdict failed to provide evidence that Kort had acted with direct intent to humiliate the dignity of a group of people on the basis of nationality, while the conviction should not be “based on assumptions.” Kort was sentenced to the year in a settlement colony in November 2016 for sharing an image on VKontakte. The image was a racist collage from the account of well-known ultra-right activist Maxim “Tesak” Martsinkevich. It depicted Tesak pressing Pushkin against the wall, accompanying this action with a xenophobic insult. The content of Kort’s social network account and witness testimonies in his case indicate that he may have sympathized with the Nazi ideology. However, in our opinion, the publication of one image did not constitute a sufficient basis for bringing Kort to criminal liability. The Moscow City Court replaced his incarceration sentence with a fine in January 2017. The sentence served as the basis for filing a complaint with the Constitutional Court regarding application of Article 282 of the Criminal Code; however, this case was not accepted for consideration. The Supreme Court initially rejected the appeal against the verdict as well, but, after the adoption of a new plenary resolution of the Supreme Court on the procedures in extremism-related cases, Kort’s attorney sent a new complaint to the presiding judge and succeeded in having the sentence revoked.

In December, the Leninsky District Court of Cheboksary fined local blogger Konstantin Ishutov a thousand rubles under Article 20.29 of the Code of Administrative Offenses (mass distribution of extremist materials). Ishutov has appealed this decision. The claims by law enforcement agencies were related to Ishutov’s LiveJournal post of November 2012. It contained the beginning of the announcement, published by Ishutov on a city website, of the upcoming (officially permitted) Russian March in Cheboksary. The text referred to the Russian March slogans, including the slogan “Russian Power for Russia,” which was added to the Federal List of Extremist Materials in 2018. The list of slogans was taken from the notice of the public event, which was posted on the website along with the news announcement, but did not make it to Ishutov's blog. We believe that prosecution for the fact of mentioning a banned slogan for informational purposes is inappropriate. Ishutov’s post can be perceived as an advertisement for the event with a deliberately xenophobic agenda; however, both the event and the slogan were permitted by the authorities at that time. In addition, after six years, the author was simply bound to forget that he had once mentioned this slogan in his post, therefore, the distribution of extremist material in this case can hardly be considered intentional.

We found out in the first half of December that Roskomnadzor had issued warnings to Echo of Moscow radio station in Pskov for releasing the “Minute of Enlightenment” show by journalist Svetlana Prokopieva and to the Pskovskaya Lenta Novostei [Pskov News Feed] media outlet, which published the transcript of the broadcast. The program was dedicated to an explosion at the FSB office lobby in Arkhangelsk, as a result of which three department employees were injured, and a 17-year-old anarchist student, who had set up the explosion, was killed. A few minutes before the explosion, the young man had posted on a social network a message about the FSB torturing people and fabricating cases. Analyzing the incident, Prokopieva argued that the young man’s actions were fueled by the repressive state policy. According to the journalist, there was a great risk that young people, growing in the atmosphere of the state-sanctioned cruelty, would respond to the state in the same way. In our opinion, warnings to both media outlets were issued inappropriately. According to Article 205.2 of the Criminal Code, public justification of terrorism should be understood as “a public statement on the recognition of the ideology or practices of terrorism as correct, and in need of support and a following;” there is no other legal definition of this concept in Russian legislation. Prokopieva’s program never said that the ideology or practice of terrorism was correct and deserves to be emulated; accordingly, we believe that it exhibited no signs of justifying terrorism.

Prosecutions against Religious Organizations and Believers

In early December, the Orekhovo-Zuyevo City Court of the Moscow Region issued a verdict under Article 282.2 Part 2 of the Criminal Code in the case of four supporters of Tablighi Jamaat – an Islamic movement prohibited as extremist. The court found that the defendants had been spreading the Tablighi Jamaat ideology among the Muslims of Moscow and the Moscow Region. Russian citizens Mukhamedali Saidov, Rakhmatullo Kiroev, Ulugbek Yusupov and Azerbaijani citizen Kenan Kerimov were sentenced to two years and two months of incarceration to be served in a minimum-security penal colony followed by six months of restrictions on freedom. Tablighi Jamaat is engaged in the peaceful propaganda of Islam and was never implicated in any calls for violence, therefore, we consider prosecution of its supporters inappropriate.

It became known in December, that, in mid-November, the Privolzhsky District Military Court issued sentences to four residents of the Chelyabinsk Region. Vadim Khabirov was found guilty of organizing the activities of the terrorist organization Hizb ut-Tahrir (Article 205.5 Part 1 of the Criminal Code) and sentenced to 16 years in a strict regime colony and a fine of 200 thousand rubles. Danis Abdrakhmanov, Ruslan Fatkullin and Rafis Khalilov received prison terms ranging from six to six and a half years with fines of 100 thousand rubles for participating in the organization under Article 205.5 Part 2. The sentence has been appealed.

In late December the North Caucasus District Military Court in Rostov-on-Don issued a verdict in the case of Bakhchisarai residents Enver Mamutov, Rustem Abiltarov, Zevri Abseitov and Remzi Memetov, charged with participating in the activities of Hizb ut-Tahrir. Mamutov was convicted under Article 205.5 Part 1 of the Criminal Code, as well as under Article 278 with Article 35 Part 2 and Article 30 Part 1 of the Criminal Code (conspiracy to prepare for the forcible seizure of power) and sentenced to 17 years of imprisonment in a penal colony. Abiltarov, Abseitov and Memetov were sentenced under Article 205.5 Part 2 of the Criminal Code and under Article 278 with Article 35 Part 2 and Article 30 Part 1 to nine years in a maximum security penal colony. The court agreed with the investigation’s version, according to which Mamutov organized a Hizb ut-Tahrir cell in Bakhchisarai in December 2015; the activities of the cell were aimed at “eliminating non-Islamic governments and launching a phased establishment of an Islamic state, including in the Russian Federation,” however “the criminal intent was not consummated,” due to the detention of the cell’s members by law enforcement officers. Despite the fact that the Hizb ut-Tahrir party favors the establishment of the worldwide caliphate, it has never practiced or advocated violence on the Russian territory in order to achieve this theoretical goal. We consider its ban as a terrorist organization inappropriate; the same is true with regard to prosecutions against Hizb ut-Tahrir supporters, charged with participating in a terrorist organization and preparing to seize power solely on the basis of their party activities (conducting meetings, reading literature, etc.)

At the end of the month, the Prokhladnensky District Court of the Kabardino-Balkar Republic found Jehovah's Witness Arkady Akopyan, a seventy-year-old retiree, guilty of inciting religious hatred under Article 282 Part 1 of the Criminal Code and sentenced him to 120 hours of community service. Akopyan was found guilty based on the testimony of five witnesses who did not follow the same faith. They stated that they had distributed the forbidden brochures of Jehovah's Witnesses upon Akopyan’s request. The defense claimed that Akopyan had not distributed prohibited materials, and moreover, distribution of extremist materials, even if it had taken place, could be punishable under Article 282 only if the offender’s intent to incite hatred or enmity could be proven. Meanwhile, the text of incriminating publications contained no statements regarding the need for illegal actions against any group of persons. According to the Supreme Court 2011 Resolution “On Judicial Practice in Criminal Cases Concerning Extremist Crime,” these are the kind of statements that should be considered a sign of incitement to hatred. It is worth pointing out that all Jehovah's Witnesses, previously convicted under Article 282 of the Criminal Code have been acquitted by higher courts with recognition of their right to exoneration.

New criminal cases against Jehovah's Witnesses under Article 282.2 were opened in various regions of Russia in December.

In Petropavlovsk-Kamchatsky, a 34-year-old local resident was charged under Article 282.2 Part 1 for organizing worship, distributing Jehovah's Witnesses literature and teaching their religious principles to citizens.

In Oryol, a decision was made to arrest V. Maximov and D. Prikhodko in absentia as defendants under Article 282.2 Part 2 for participation in the activities of the banned local Jehovah's Witnesses community. The two defendants currently stay out of the country and have been put on federal and international wanted lists.

Three believers – Alexander Akopov, Konstantin Samsonov and Shamil Sultanov – were arrested in Neftekumsk (the Stavropol Region) after a series of searches conducted as part of the investigation under Article 282.2 Part 1; another person was put on a wanted list. When the question of electing a preventive measure was being considered in court, the FSB officers explained the need to keep Samsonov and Sultanov in custody by pointing out that, they “did not give up their religious beliefs” following the Supreme Court ban against the activities of Jehovah's Witnesses organizations in Russia.

We view the decision, adopted by the Supreme Court of Russia in April 2017, to recognize the Administrative Center of Jehovah's Witnesses in Russia and 395 of their local communities as extremist (which has become the basis for criminal prosecution of believers) as inappropriate.

At the end of December, the Pushkinsky District Court of St. Petersburg considered the claim of the city prosecutor’s office to recognize as extremist a number of books and pamphlets by American preacher William Branham (1909 - 1965). Evening Light, a charitable non-governmental organization that distributes these publications, is involved in the process as an interested party. According to the experts brought in by the prosecutor's office, the author of the books uses neuro-linguistic programming techniques, puts his teaching above the teachings of other churches, and creates an “image of an enemy” with respect to the “Catholic (also including the Orthodox) and the Protestant churches”. The writings in question insult the feelings “of the relevant groups of clergy and believers” by calling their opponents sectarians, and suggesting the “ideas of a person’s inferiority based on his/her religious affiliation.” The Pushkinsky District Court ordered a new expert examination, reviewed its results and the materials of the case and, after hearing the opinion of the process participants, decided to deny the prosecutorial request. We welcome the court decision – in our opinion, there are no grounds for banning Branham’s texts, since statements about the truth of one creed and the fallacy of all others are typical of any religious teaching and should not be prosecuted.