Original Material
Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2018
Edited by Alexander Verkhovsky SUMMARY
THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS
PRINCIPAL TARGETS OF PROSECUTION : Ideological Opponents of the Regime : Prosecutions for Incitement to Extremist Activities : Prosecutions for Calls for Separatism : Prosecutions for Incitement to Hatred toward Public Officials and Other Anti-Government Statements : The “Ukrainian Question” : Prosecution for “Rehabilitation of Nazism” : Prosecution for Anti-Government Group Initiatives : Side Effects of the Fight for Tolerance : Abusing Criminalization of Incitement to Hatred : Prosecutions for Extremist Symbols : Fight against Insults to the Feelings of Religious Believers : Religious Groups : Hizb ut-Tahrir : Tablighi Jamaat : Followers of Said Nursi : Other Muslims : Jehovah’s Witnesses : Sanctions against Libraries : The Internet and Anti-Extremism : Blocking Practices : Other Sanctions : Mass Media and Anti-Extremism
Summary
This report presents an analytical review of anti-extremist legislation and its misuse over the past year of 2018. SOVA Center has been publishing these annual reports on a regular basis to summarize the results of the monitoring carried out by the organization since the mid-2000s.[1]
Multidirectional legislative initiatives of 2018 introduced important changes in law enforcement and paved two possible paths for the events to develop in the coming years.
Under public pressure, Article 282 of the Criminal Code (incitement of hatred) was partially decriminalized, making it possible to close or review hundreds of criminal cases tried in the recent years. The Supreme Court of the Russian Federation made extremely important recommendations on applying the norms on “extremist statements”; the implementation of these recommendations can improve the law enforcement practice significantly. The procedural legislation was amended to streamline the procedure for declaring materials extremist or prohibited for distribution. New bills have emerged to soften the absolute ban on displaying prohibited symbols, which currently leads to absurd administrative prosecution cases. If the authorities continue to consistently follow the path of reforms and move on to eliminate other numerous shortcomings of the anti-extremist legislation, the restrictions of basic civil liberties – freedoms of speech, conscience and association could be relaxed considerably. Such a development would be all the more appropriate since, in the year under review, the European Court of Human Rights considered a number of complaints from Russian citizens about the use of anti-extremist legislation and related norms and found violations of fundamental rights guaranteed by the European Convention in the decisions issued by the Russian courts. The decisions handed down by the Court in Strasbourg could serve as a guide for changes to be implemented in both legislation and problematic law enforcement practices.
However, the state is just as likely to take another road – the one of “tightening the screws” further and establishing more stringent control over the independent public opinion, which, today, manifests itself primarily on the Internet. There are good reasons to suggest the latter scenario – in 2018 and the early months of 2019, the State Duma adopted in the first reading several bills aimed at strict regulation of online activity, and they could be approved in one form or another. Additional legal norms were also introduced to restrict the rights of those “involved in extremist and terrorist activities.”
Speaking of the law enforcement statistics for 2018, the year brought no radical changes in prosecutions under the articles pertaining to “extremist statements” – mass closing of court cases and revisions of the sentences under Article 282 will take place in 2019. We can only note that inappropriate prosecutions we identified in the period under review were directed primarily against activists; ordinary citizens, who happened to randomly catch the law enforcement’s eye, were less affected than in the few preceding years. Increasingly, this year, the investigation and the court had to close the cases on insulting the feelings of believers, which, obviously, do not fit the legal framework of a secular state.
As for the policy toward religious minorities, we have to acknowledge that the authorities have been increasing their pressure against religious organizations and movements of foreign origin, probably viewing their functioning in Russia as undesirable and not taking into account the notion that Russian citizens have the right, guaranteed by the Constitution, to choose their confession and to profess it individually and collectively. With respect to followers of inappropriately prohibited Islamic movements and associations – followers of Said Nursi and Tablighi Jamaat, recognized as extremist, and the Hizb ut-Tahrir party recognized as terrorist – the changes in 2018 did not result in an expanded scope of persecution, but have brought much harsher penalties for continuing the activities. Jehovah's Witnesses, whose Russian organizations were completely banned in 2017, faced mass criminal prosecution. This persecution caused a dramatic increase in our statistics – the number of individuals wrongfully prosecuted in extremist criminal cases has tripled in 2018, compared to the preceding year.
Lawmaking
The year 2018 was marked by important initiatives, some of which were aimed at liberalizing the legislation, while the other provided for new and very significant restrictions.
The President’s amendments to Article 282 of the Criminal Code became the most notable event of the year. The problem with using Article 282 of the Criminal Code – increasingly visible in recent years as its application has expanded – remained in the center of public attention throughout 2018. During the “Direct Line with the President” in June, Deputy Sergei Shargunov (the author of yet another initiative to change the article) spoke on the need to reform the anti-extremist legislation and law enforcement practice. Following Putin’s instructions, All-Russia People’s Front (Obshcherossiysky narodny front, ONF) took up the task of drafting possible changes, and the Supreme Court of the Russian Federation issued new clarifications on the use of anti-extremist legal norms.
Тhe Supreme Court resolution, published in September, indicated that, when anti-extremist articles are applied, the fundamental freedoms could be restricted only in extreme cases, in accordance with the Constitution and international law. The court recommendations mostly pertained to the cases under Article 282 of the Criminal Code for online publications. The Supreme Court clarified the process of evaluating the context of a public statement when deciding on the motive of a defendant, charged with incitement to hatred. In particular, the Court recommended to take into account the form, content and extent of the statement, presence of any commentary describing the publisher’s attitude toward the material, the overall content of the defendant’s account and information about their personality and activities.
When analyzing a statement to decide whether it represents a danger to society or whether it is an insignificant act that does not merit prosecution, the Supreme Court suggested taking into account the size and composition of the post’s audience and its reaction to the published statement. The Court also indicated the possibility of appeals, citing the above circumstances, against the decisions to initiate court proceedings. All these explanations were made only with respect to Article 282 of the Criminal Code, although the same should obviously apply to other articles that deal with public statements.
The Supreme Court also commented on the issue of using expert opinions in cases involving Article 280 (incitement to extremist activity), Article 2801 (incitement to violation of the territorial integrity of the Russian Federation) and Article 282 of the Criminal Code. The Supreme Court indicated, once again, that an expert opinion in these cases had no predetermined validity and no advantage over other evidence, whereas the task of evaluating public statements for possible liability under the provisions of the anti-extremist Criminal Code articles falls within the exclusive competence of a court.
The Prosecutor General’s Office followed the Supreme Court’s example. An order to strengthen prosecutorial oversight over the investigations related to extremist crimes was signed by the Prosecutor General in late September. Following the lead of the Supreme Court, the Prosecutor General’s Office stressed the need to examine the motive of the supposed perpetrators and establish the intent of inciting hatred; it further required that not only distributors, but also creators of such content be held accountable. The document specifically emphasizes that prosecutors need to put an end to the cases of unreasonable prosecution; but, at the same time, they should examine the legal validity of criminal case terminations and report back to the Prosecutor General’s Office. Prosecutors should also maintain detailed regional-level registries of extremist crimes and of reports on such crimes. Finally, the prosecutor-general’s order paid particular attention to the need to investigate violent hate crimes and cases related to extremist communities and organizations.
The Prosecutor General’s Office, once again, emphasized the need to involve academic experts in investigating extremist cases (although the Supreme Court has stated that requests for such an expert opinion are not always appropriate). The document also discussed the quality of expert opinions in such cases. The agency recommended that, when assessing the legality of procedural decisions, “the opinions of specialists and experts be examined carefully, paying particular attention to the following: correspondence of their conclusions to the content of their analytical part and to questions reflected in the request for an expert opinion (examination); completeness and comprehensiveness of their conclusions; qualifications of experts (specialists) and the extent of their authority to evaluate the stated facts.” Hence, the Prosecutor General’s Office recommended avoiding the currently widespread practice of automatically copying the experts’ conclusions with “no reason to doubt” their competency.
Ambiguously worded project to reform Article 282 of the Criminal Code, submitted to the State Duma by deputies Shargunov and Zhuravlyov, received negative reviews and was not considered. However, it served as the basis for a package of bills developed by the ONF on behalf of the President and submitted to the parliament by Vladimir Putin in October. It was adopted in record time, signed on December 27, 2018 and entered into force on January 7, 2019. The reform introduced partial decriminalization of Article 282 Part 1 of the Criminal Code – the first violation is now punished administratively under the new Article 20.3.1 of the Code of Administrative Offenses, which corresponds exactly to the composition of Article 282 Part 1. Administrative responsibility has been extended to legal entities. Criminal liability is incurred only if the law is violated for a second time within a year following the 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 20.3.1(as opposed to the three months period after the offense, 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 20.3.1, 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.
Partial decriminalization of Article 282 will allow many citizens accused of inciting hatred to avoid overly harsh punishment and a criminal record. The Supreme Court resolution and the expected amendments to the article already led to revision and closing of a number of cases in late 2018. The process of reviewing previous sentences as well as removal of unexpired criminal records has started in January 2019. Certainly, we are going to see fewer sentences under Article 282. However, a number of emerging concerns has to be noted as well.
First, the procedures for initiating an administrative offense cases are much simpler than in criminal proceedings, and the burden of proof is much lighter; therefore, we can expect a significant increase in the number of prosecutions for inciting hatred, most of which will take place within the framework of the Code of Administrative Offenses. The provision, stipulating that only prosecutors and not the police have the right to open administrative proceedings under Article 20.3.1 could, to some extent, serve as a sole possible deterrent to the rapid proliferation of prosecutions under the new article.
Next, one should not forget that the Criminal Code still contains the unmodified Article 280, which covers calls for extremist activities. Since the definition of extremist activities includes incitement of hatred, law enforcement agencies can bring charges under this article, if they so desire. The established practice is to file charges under two articles at once in the cases where the incitement of hatred is accompanied by calls for violence. However, belligerent xenophobes are not the only ones who should keep their vigilance – let's not forget that the elastic formulation of Article 280 creates ample opportunities for criminal prosecution of activists. Article 2801 (calls for violation of the territorial integrity of the Russian Federation), Article 3541 (rehabilitation of Nazism) and Article 148 (insulting the feelings of believers) are also still present in the Criminal Code.
Many abuses of anti-extremist norms are caused by flaws in their wording and the corresponding wording in the Law on Combating Extremist Activity. The reform addressed only Article 282; it failed to include the clarifications and corrections proposed for the problematic provisions of the anti-extremist legislation. The Supreme Court resolution may have a positive impact on enforcement, but only if law enforcement agencies and courts actually follow it. Experience shows that the prior Supreme Court recommendations on the extremism-related cases have often been ignored even by the Supreme Court itself. Obviously, future development of law enforcement in this area depends on the political will of the authorities.
Meanwhile, the ONF decided to take the matters further and proceeded to work on a project to reform Article 20.3 of the Administrative Code, which covers the display of prohibited symbols. In December, a group of State Duma deputies, headed by Chair of the Committee for Culture Yelena Yampolskaya, submitted to the lower chamber a package of bills amending the article. The draft legislation is intended to limit the effect 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, leading to numerous cases of unreasonable prosecution. The authors proposed no 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 draft proposes merely to supplement the article with a note, according to which the provisions of the article do not apply to cases, in which banned symbols 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.”
Notably, the wording of the note as proposed by Yampolskaya’s group is much narrower than the one proposed earlier by the Ministry of Communications or the one proposed by Senator Anton Belyakov, who introduced his own version of the amendments to the State Duma in February 2018. Belyakov proposed to change the title and the wording of the article so that the ban only pertains to “propaganda or public demonstration for propaganda purposes” of Nazi symbols and symbols of extremist organizations. The note in Belyakov’s version also allowed the use of such symbols “in works of science, literature or art, or for informational, training or educational purposes in the absence of signs of propaganda, and/or justification for extremism.”In our opinion, Belyakov’s proposal is more effective than Yampolskaya’s amendments.
Apparently, the note proposed by Yampolskaya’s group will not always help to protect citizens from unreasonable prosecution. After all, they will have to prove every time that an image they publish belongs to “works of science, literature, or art” since otherwise only mass media outlets or educational organizations may publish it. The requirement for a publication to unequivocally condemn certain 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.
A certain positive effect can be expected from a change in the procedure for banning materials as a result of the new amendments to the procedural legislation that were approved by the President in November, but will only enter into force in the fall of 2019. Among other norms, the innovations will also affect the court procedures with regard to claims on deeming materials as extremist or on recognizing information as prohibited. According to the new law, the cases pertaining to recognition of materials as extremist are transferred from the civil proceedings to the administrative sphere. When considering a prosecutorial claim to recognize certain materials as extremist, the court is obligated to involve persons, whose rights and legal interests may be affected by the judicial decision. In addition, “if a person, whose actions have led to filing of an administrative claim, has been identified” the court shall involve them in the case as a defendant and impose legal costs on them. If such a person has not been identified, the Ombudsman of the Russian Federation (or of a respective unit of the Federation) will be involved in the consideration of the case “for providing an opinion.” In addition, the court will be able to take “preliminary protective measures in the form of restricting access to extremist materials” while the case is under consideration, and, if the claim is satisfied, the decision regarding the ban will take effect immediately. The cases on recognizing certain information as prohibited will proceed in a similar fashion. The key procedural difference for these cases is mandatory participation of Roskomnadzor in the proceedings. Thus, the favorable conditions have been created to terminate the practice of banning materials without adversarial proceedings – the change that can reduce the number of inappropriately banned materials. However, this reform will not make the Federal List of materials, whose length approaches 5,000 entries, into an acceptable and effective mechanism for countering the spread of radical ideology.
All the remaining legislative innovations and initiatives of 2018 related to regulation were proscriptive.
In late June, the president signed a law establishing the responsibility of web search engines for showing links to banned sites and for failure to connect to the information system containing data on blocked sites. The law introduced Article 13.40 (failure to perform duties by a search engine operator) into the Code of Administrative Offenses; citizens operating the offending search engines may be fined 5 thousand rubles, officials – 50 thousand rubles, and legal entities – from 500 to 700 thousand rubles. At the time of writing the report, Yandex was already connected to the Roskomnadzor system, while Google refused to do so and continued to review the agency’s blocking decisions on the case by case basis.
In addition, the Administrative Code article on failure to submit information to Roskomnadzor was augmented with a new part, which punishes hosting providers for failing to submit to Roskomnadzor, in a timely manner, the information identifying their clients who own anonymizing websites or VPN-services. A fine of 30 to 50 thousand rubles has been established for individuals, and of 50 to 300 thousand rubles for legal entities.
The fate of the extremely controversial bills described below is not yet clear, but they can be quickly approved if the authorities suddenly consider the introduction of such norms expedient.
In April, a new and even harsher version of the bill by deputies Sergei Boyarsky and Andrei Alshevskikh (United Russia) on combating illegal information on social networks was introduced in the State Duma and adopted in the first reading. The bill introduces a new concept of “public network owner.” Its insufficiently precise definition leaves room for interpretation – such networks can be understood to include not only social networks, but any network platform where users can leave comments and generally exchange messages – all the way to instant messengers, e-mail services, online games, and so on. Owners of such “public networks,” whose audience in Russia exceeds one hundred thousand users are obligated to open their representative offices on the Russian territory in order to address user complaints about illegal content (including materials intended to promote war or incite hatred) and remove it within 24 hours. In addition, “public networks” are required to abstain from participation in dissemination of the following information: any secrets protected by the law, extremist materials, propaganda of violence and cruelty, pornography, false information on the issues of public importance (although this notion has not been clarified in any way), and even materials containing obscene language. The public networks will also have to observe restrictions stipulated by the legislation on elections and referendums. The network owners will have to provide Roskomnadzor with access to the incoming complaints. The agency will be able to identify illegal information and require that the network owner eliminate violations within 24 hours; it can also order the illegal content removed upon request from the authorized state agencies. If a network owner refuses to comply with these requests, Roskomnadzor will block the problematic content (in reality, this is impossible in most cases) and, if the court determines that a “public network” has refrained from blocking the content on two separate occasions, the network itself will also be blocked. In addition, the amendments to the Code of Administrative Offenses, adopted in the first reading, specify multimillion-dollar fines for non-compliance with the requirements of the proposed law. In our opinion, the amendments by Boyarsky and Alshevskikh imply a total extension of the extra-judicial mechanism for blocking information on the Internet, impose on the owners of “public networks” an obligation to perform judicial functions, and, de-facto, aim to use the owners as instruments for implementing the state censorship.
In early August, the Ministry of Communications released for public discussion a draft amendment of the Federal Law on Information. At the time of publication of this report, it was still under negotiation and has not yet been submitted to the Duma for consideration. The Ministry proposes adding the information that contains “justification of and excuse for extremist and (or) terrorist activities” to the types of information listed in the law as subject to extra-judicial blocking at the request of the Prosecutor General's Office. The proposed changes, in our opinion, can lead to further increase in abuses related to restricting freedom of speech. While “public justification of terrorism” is defined in the relevant Article 2052 of the Criminal Code (a public statement on the recognition of the ideology or practices of terrorism as correct, and in need of support and following), Russian legislation never defines the concept of “ justification of and excuse for extremist activity,” opening the way for arbitrary interpretations. The Communication and Information Technologies Working Group of the Government’s Expert Council also expressed its concerns regarding the vague wording used in the project.
However, the misgivings of experts and even entire agencies do not necessarily mean that the bill will not be submitted to the Duma.
In December, 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 was the first time, when the sanctions specifically punishing online behavior were introduced in the Duma.
The first of the proposed projects was 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 authors suggested adding Part 3 to Article 20.1 (petty hooliganism) of the Code of Administrative Offenses. 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 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 on the Internet, where communication has its own stylistic peculiarities and is 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 term “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. On the other hand, 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), 2052 (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.
Despite criticism from the Prosecutor General’s Office, the Ministry of Communications and Mass Media, the Ministry of Justice and Roskomnadzor, the bills eventually received the necessary positive feedback from both the government and parliamentary committees. In January 2019, both packages were approved by the lower house in first reading. We can possibly expect substantial amendments to the text of the draft laws in the second reading, but improvements to individual formulas in the Klishas bills will not make the proposed norms expedient.[2]
Yet another round of tougher measures, introduced in 2018 for different categories of individuals accused and convicted under anti-terrorist or anti-extremist articles, is also worth noting.
Thus, in June, a plenary meeting of the Supreme Court of the Russian Federation adopted a resolution “On Certain Issues Related to Using Confiscation of Property in Criminal Proceedings.” In the draft resolution, the Supreme Court inter alia indicated that “any property belonging to the defendant that is an instrument, equipment or other means of committing a crime” (including cell phones, computers, etc.) is subject to confiscation in the criminal cases on extremist or terrorist activity. At the same time, as the Supreme Court noted, if money, valuables or other property were intended for “financing terrorism, extremist activity, an organized group, illegal armed formation or a criminal association (criminal organization),” then in accordance with Article 1041 Part 1 Paragraph “c” of the Criminal Code, such items are subject to confiscation “regardless of their ownership.” Accordingly, seizure of property for the purpose of securing possible confiscation can be applied not only to the suspects, defendants or individuals materially responsible for their actions, but to any persons, if “there are sufficient grounds to believe” that it was used as an instrument of crime. In its reasoning for the relevant resolution, a court has to justify its choice of property rights restrictions as “necessary and sufficient” for ensuring the preservation of the property in question.
In October, Putin signed a law allowing to ban foreigners, who are on the Rosfinmonitoring list of extremists and terrorists (as well as those whose bank accounts were frozen by a court or by the Interdepartmental Commission on Counteracting the Financing of Terrorism) from entering Russia. It should be noted that, in practice, foreigners included on the extremists’ list were regularly barred from entering the country even prior to these amendments “in order to ensure the defense capability or security of the state.”
A package of bills, signed in December, 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 early transfer of inmates with positive characteristics 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 2821 Part 2 and Article 2822 Part 2.
The Practice of the European Court Of Human
Rights
In 2018, the European Court of Human Rights (ECHR) continued to review complaints by Russian citizens against the application of anti-extremist laws and related legal norms.
The Court found that Russia had violated the article of the European Convention on Human Rights on the right to freedom of expression in a number of cases. Some ECHR findings in these cases replicated the findings made with respect to Russian cases in 2017, but the court also brought up a number of new considerations, to which we would like to draw attention.[3]
In April, the ECHR reviewed a complaint of 24 former members of the banned National Bolshevik Party (NBP), who participated in an action of protest held in the waiting area of the Presidential Administration building in Moscow on December 14, 2004. The Court found that Article 6 (the right to a fair trial), Article 10 (the right to freedom of expression) and Article 11 (freedom of assembly) of the European Convention on Human Rights had been violated with respect to the applicants. In total, 39 people were convicted in the case of the occupation of a room in the Presidential Administration’s Office (31 activists received suspended sentences, and eight received real prison terms); they were found guilty of participation in mass riots under Article 212 Part 2 of the Criminal Code. In our opinion, this verdict was inappropriate – the events occurring inside one room can hardly be classified as mass riots. In addition, the actions of the National Bolsheviks were not accompanied by “mass riots attended by violence, pogroms, arson, the destruction of property, the use of firearms, explosives, or explosive devices, and also armed resistance to government representatives,” as described in the provisions of Article 212.
In May, the ECHR ruled on the complaint of Boris Stomakhin, a journalist and publisher of the Radical Politics bulletin, convicted in 2006 under Articles 280 and 282 of the Criminal Code (calls for extremist activities and incitement of hatred) for publications, in which Russian courts found statements directed against the Russians, Christian Orthodox believers, Russian military personnel and law enforcement officers. Among the statements incriminated to Stomakhin, the ECHR identified a number of pronouncements that romanticized and idealized the actions of Chechen separatists and demonized the Russian military and law enforcement officers; they also included calls for violent uprising and armed resistance and approval of terrorist acts as a form of struggle. In addition, the bulletin presented ethnic and religious groups (the Russians and the Orthodox believers) in a negative light – for example, both groups were indiscriminately accused of serious crimes. The European Court found such statements to be contrary to the principles of tolerance and non-discrimination. With regard to these groups of statements, the ECHR regarded the state intervention in Stomakhin’s right to express an opinion as “necessary in a democratic society.” Other statements by Stomakhin, which called for collecting information about the crimes committed by the Russian authorities in Chechnya, according to the ECHR, only criticized the actions of the Russian government, albeit in a particularly harsh manner, and interference with Stomakhin’s right to express opinion was not justified in these cases. In general, the ECHR decided that it was possible to view the verdict to Stomakhin as rendered in accordance with the law and for a legitimate purpose – he was prosecuted in order to protect the rights of others, and “in the interests of national security, territorial integrity or public order, in order to prevent disorder or crime,” which corresponds to Article 10 Paragraph 2 of the European Convention. However, the court concluded that five years of imprisonment along with the ban on journalistic activities solely for the utterances had constituted a disproportionate measure. The ECHR emphasized that, at the time of publication of his texts, Stomakhin was not a widely known and influential figure; the run of his bulletin was very small, thus significantly reducing the potential impact of his statements.
In July, the European Court of Human Rights issued a ruling regarding the complaint of the members of the Pussy Riot music band about the prosecution against them under Article 213 Part 2 of the Criminal Code (group hooliganism motivated by religious hatred) for their action in the Cathedral of Christ the Savior. The ECHR found that several provisions of the European Convention on Human Rights had been violated with respect to the applicants. According to the ECHR, the failure of the Russian courts to provide the public with relevant and sufficient grounds justifying the criminal punishment and imprisonment of Pussy Riot participants, and the lack of proportionality between sanctions imposed on them and the declared legitimate aim constituted a violation of Article 10. The ECHR presented similar consideration with regard to the ban on Pussy Riot videos recognized as extremist. Accordingly, the court concluded that the interference in the rights of the group’s participants had not been necessary in a democratic society. The court declined Russia’s request to transfer the Pussy Riot case to the appellate court (the Grand Chamber).
On August 28, 2018, the European Court of Human Rights (ECHR) ruled on two cases that involved application of Russian anti-extremist legislation.
The ECHR upheld the complaint of the blogger Savva Terentyev against the verdict in his case issued under Article 282 Part 1 of the Criminal Code; the court awarded Terentyev a compensation for legal expenses, but refused to compensate him for moral damage. Terentyev – a musician and a blogger – was given a one-year suspended sentence by the Syktyvkar City Court in 2008 for a comment he had left on a local journalist's blog. In this comment he sharply criticized the police and called for installing ovens on town squares for burning the “infidel cops.” The court found Terentyev's statement to contain incitement to violence against the police officers as a social group. The ECHR drew attention to the fact that Terentyev's comment was made in the context of a discussion of the alleged police involvement in silencing and oppressing the political opposition during the electoral campaign. It, therefore, pertained to a matter of public concern in the pre-election period, and in such cases restrictions of freedom of expression are to be particularly strictly construed. From the ECHR's point of view, despite the fact that the blogger's statement was provocative and rude, it should have been interpreted not as a call to real violence, but as a metaphor, which affirmed the applicant’s wish to see the police “cleansed” of corrupt and abusive officers. The court also pointed out that the police – a law-enforcement public agency – can hardly be described as an unprotected minority or group with a history of oppression or inequality. Accordingly, the police should display a particularly high degree of tolerance to offensive speech, unless such inflammatory speech is likely to provoke imminent unlawful actions in respect of their personnel and to expose them to a real risk of physical violence. It has only been in a context of armed conflicts, fight against terrorism or prison riots that the Court has accepted the interference with such statements as justified. The Russian courts failed to explain exactly how the words of Terentyev, who was not a popular blogger, had threatened public security.
On the same day, the European Court upheld two claims against Russia, challenging the prohibition as extremist of fifteen books by Turkish theologian Said Nursi from the Risale-i Nur collection. Citing religious scholars from various countries, the court noted that Said Nursi was a well-known moderate Muslim theologian, who advocated open and tolerant relations between representatives of different religions and opposed violence in any form. The Russian side submitted no evidence that dissemination of these works had caused interreligious tensions or other harmful consequences, let alone violence. Certain demeaning words, used in the book to characterize followers of other faiths, did not cross boundaries of permissible criticism of other religions. The author’s intent to convince the readers to adopt his religious beliefs did not lead him to advocate any illegal methods for achieving this goal.
The court specifically noted that cultural, historical, religious and other local peculiarities, which entail wide opportunities for regulating inter-religious relations in national legislation, do not, however, give a single country the right to prohibit its citizens from access to authoritative religious literature that is widely available throughout the world. The ECHR has once again pointed out that Russian judges relied entirely on the expert opinions provided by the prosecutors, while refusing to take into account the expert opinions submitted by the other side as well as the opinions of the heads of Muslim organizations and experts on Islam.
In 2018, the ECHR communicated at least 12 more complaints related to the use of anti-extremist articles of the Criminal Code and the Code of Administrative Offenses and to bans against organizations (in particular, local Jehovah's Witnesses communities) as extremist. At the same time, the ECHR issued a number of very relevant comments on methodology of proof in these cases, the use of expert opinion, determining proportionality of the repressive measures, and so on. We believe that the ECHR documents constitute the most important guidelines for potential alignment of the Russian law enforcement practices with the general European legal principles.
Principal Targets of Persecution
Ideological Opponents of the Regime
Law enforcement agencies continue to focus their attention on the activists’ social network pages. In the year under review, this heightened vigilance of law enforcement officers with respect to such publications resulted in a number of unjustified criminal prosecution cases.
Prosecutions for Incitement to
Extremist Activities
In June, the Toropets District Court of the Tver Region issued a verdict in the case of local resident Vladimir Egorov, charged with public incitement to extremist activities via the Internet (Article 280 Part 2 of the Criminal Code). The opposition activist was found guilty and received a suspended sentence of two years followed by a three-year probation period and the ban on moderating websites. The court also ordered to have the CPU removed from his personal computer. Egorov filed an appeal with the ECHR. The prosecution was based on Egorov’s post in the VKontakte public group “Toropets Citizens,” of which he had been a moderator. The post contained a photo of Putin and the text stating that intelligence services- directed propaganda worked to exonerate the head of state, while shifting the blame for all government blunders to other officials. The author urged “not to be led astray” by such propaganda tricks, and declared that “the chief Kremlin rat with his friends and partners in crime should be brought down.” Such abstract, albeit aggressive, anti-government statements by ordinary citizens pose no significant danger, since they cannot be implemented by the author’s audience. In our opinion, criminal prosecution in such cases, is inappropriate – removal of a provocative post is quite sufficient.
In the summer, the media reported on the case opened under Part 2 of Article 280 of the Criminal Code (public calls for extremist activities on the Internet) against Abakan resident Lydia Bainova. Bainova, known in the republic as a popularizer of Khakass culture, was brought to trial in Abakan. She was prosecuted for her post of July 2017 on VKontakte. According to Bainova, she created a post on the social network after, at the entrance to the playroom in one of the city cafes, the children said to her and her daughter: “Only Russians can come in here.” In her post, Bainova expressed her protest against the fact that people “to whom this land belongs” were not respected in Khakassia, and characterized the degree of her indignation, adding: “In such moments, it feels like we need to arrange a revolution, a takeover! Return power and land to our people! Take it back in a fight!” However, the regional FSB department terminated the case against Bainova in November, having found in her actions no intent to incite extremism. The Prosecutor’s Office of the Republic later apologized to her for the damage caused by the unfounded prosecution. Indeed, Bainova’s post was emotionally charged and therefore abrasive, but such statements should not be regarded as calls for extremist activity representing a significant danger for society and meriting criminal prosecution.
Prosecutions for Calls for Separatism
In April, the Severomorsky District Court of the Murmansk Region issued a suspended sentence of one and a half years with a probation period of one and a half years to local resident P. under Article 2801 Part 2 of the Criminal Code (public calls for violation of the territorial integrity of the Russian Federation via the Internet). P. was prosecuted for the comments he left under the news post “Barque Sedov will no longer belong to Murmansk,” on VKontakte. His comments were as follows: “The Murmansk region should be separated from Russia altogether. The entire periodic table is underground in the region. We need to hold a referendum, and all the money would remain in the region,” “I am in favor of the referendum. To each resident of the Murmansk region – 10 thousand euros on their personal account,” and “To secede from Russia.” It was reported that “at the court hearing, P. fully admitted his guilt, repented of his deed, and actively assisted the preliminary investigative agencies in the detection and investigation of the crime.” In our opinion, calls for a referendum should not be prosecuted; the sanctions are appropriate only against calls for violent actions with secessionist goals. Article 2801, which does not limit prosecution in this manner, unreasonably restricts the discussion of the territorial composition of the Russian Federation.
In November, a court in Ulyanovsk issued a suspended sentence of two years with the ban on leading any public organizations to Ivan Kolotilkin, an activist of the Community of the Indigenous Russian People (Obshchina korennogo russkogo naroda, OKRN). He was found guilty under Article 282 Part 1 and Article 2801 Part 1 of the Criminal Code. The prosecution against Kolotilkin was based on the fact of his handing out leaflets, which contained ethno-xenophobic (probably anti-Semitic) propaganda and called for creating a new (ethnically) Russian state of on the territory of Russia. We doubt the appropriateness of the charges related to the calls to violate territorial integrity of the Russian Federation, since the known materials of the Ulyanovsk OKRN contain no calls for violent separatism.
Prosecutions for Incitement to Hatred toward
Public Officials and Other Anti-Government Statements
In November, the Magassky District Court of Ingushetia sentenced the opposition activist Magomed Khazbiev to two years and 11 months of imprisonment in a settlement colony and a fine of 50 thousand rubles, having convicted him of illegal possession of weapons and explosives (Article 222 Part 1 and Article 2221 Part 1 of the Criminal Code), insulting a representative of the authorities (Article 319 Part 1 of the Criminal Code) and inciting hatred against head of the Republic of Ingushetia Yunus-Bek Evkurov, as well as against “representatives of the judicial system, law enforcement agencies, the government, and the authorities of the Republic of Ingushetia as a whole” (Article 282 Part 1 of the Criminal Code). The latter charge was related to Khazbiev’s interview, in which he criticized the republic’s authorities and called for their replacement. We regard this part of the verdict as inappropriate, since a call for changing the government, as long as it doesn’t involve any calls for unlawful actions, belongs to the sphere of public debate, not of the criminal law enforcement. In addition, as explained by the Supreme Court, the criticism of officials “in and of itself, should not be viewed in all cases as an act aimed at humiliation of dignity of a person or a group of persons, since the limits of permissible criticism of officials and professional politicians are wider than regarding ordinary citizens.”
The verdict imposed in May under Article 282 Part 1 by Balaklavsky District Court of Sevastopol on a local resident I. Stukalo also gives reasons for doubt; he received a suspended sentence of two years with an eight-month probation period. According to the law enforcement, the Balaklava resident published on his social network page an image with the caption intended “to incite hatred and hostility towards law enforcement agencies of the Russian Federation.” We have no information on the image in question and do not know whether the caption contained calls for violence. However, in general, we believe that law enforcement officers do not constitute a vulnerable social group in need of protection under Article 282. On the contrary, they belong to the category of officials who should not be overly sensitive to harsh criticism.
It became known in July that student Ibrahim Yangulbaev was under arrest in Grozny, charged under Article 282 with inciting hatred against the social group “Russian military personnel.” The prosecution against Yangulbaev was based on his VKontakte publication of the photographs of civilians (both Chechens and Russians) killed during the first and second Chechen campaigns. We had no opportunity to review Yangulbaev’s publications and cannot judge their content. However, the military personnel does not constitute a particularly vulnerable social group that needs to be protected from incitement to hatred.
Also in July, it was reported that a criminal case under Article 282 of the Criminal Code had been initiated against Rafis Kashapov, an activist of the Tatar nationalist movement. According to the investigation, “he posted on his personal social network page on the Internet the text and images, which incited hatred.” In 2015, Kashapov was convicted under the same Article 282 and under Article 2801 of the Criminal Code for calls to separatism (in our opinion, inappropriately) and sentenced to three years in a minimum-security colony. Upon his release, fearing that he might face administrative supervision, Kashapov left for Ukraine, and then for the UK, where he asked for political asylum, and was granted asylum for five years; Russia declared Kashapov wanted. In March 2018, Kashapov, together with representatives of the Ukrainian Erzya community, announced the creation of the public platform Free Idel-Ural, advocating the establishment of an “integrative association of independent states of Tatarstan, Bashkortostan, Chuvashia, Udmurtia, Mari El and Erzyano Mokshania (Mordovia).” The specific incriminating posts by Kashapov that served as a basis for this case have not been specified. On his social network pages he criticizes the policy of the Russian authorities and characterizes Russia as a state that has been expanding for centuries at the expense of its neighboring peoples; he often criticizes what he perceives as passive political position of Russian citizens. However, we found no xenophobic rhetoric in Kashapov’s statements and see no grounds for prosecuting the activist for incitement to hatred.
A criminal case under Article 282 of the Criminal Code was initiated in Saratov in August against local resident Natalia Kovalyova. She was charged with inciting hatred towards the social group “judiciary” for publishing on her own YouTube channel a number of videos with satirical songs and appeals to the authorities, in which she denounced the “corruption, nepotism, curatorship” practiced, in her opinion, by the Saratov judiciary. The case was opened as a result of an inspection following the complaint by the Saratov Regional Court. The head of this court was the prime target of Kovalyova's criticism in the incriminating materials. We believe that the prosecution against Kovalyova under Article 282 was inappropriate. Judges are protected by other legal norms and need no special protection from the manifestations of hatred as a vulnerable social group; moreover, Kovalyova’s publications were not directed against the entire judicial community – they were targeting only a small number of its representatives. In addition, her videos contained no aggressive appeals that would merit criminal prosecution due to their social danger. Once the plenary meeting of the Supreme Court of Russia adopted amendments to the resolution on the procedure for dealing with extremist cases in September, the prosecution against Kovalyova under Article 282 was discontinued. The investigation stated that it did not find the intent to incite hatred in her actions. Kovalyova even managed to win in court 15,000 rubles in compensation for illegal criminal prosecution under this article, but was charged with contempt of court and libel against the judge.
In 2018, activists faced ongoing prosecution under Article 20.29 of the Administrative Code for distribution of inappropriately prohibited materials. Members of the political opposition were brought to court for distributing Alexei Navalny’s video about unfulfilled promises of the United Russia party Let’s Remind Crooks and Thieves about Their Manifesto-2002 (Napomnim zhulikam i voram ikh manifest-2002), videos about alleged involvement of Putin and the FSB in the terrorist attacks of the late 2000s, photos of conservative deputy Vitaly Milonov in a T-shirt with the banned slogan “Orthodoxy or Death,” satirical songs of the band “The Ensemble of Christ the Savior and the Crude Mother Earth” (an anarchist from Sevastopol spent 11 days under arrest just for sharing the latter, although fines were the punishment of choice in other known cases), and so on.
The “Ukrainian Question”
We recorded a number of cases in 2018 of the law enforcement using anti-extremist legislation with respect to statements on the conflict in Ukraine, and their reaction was incommensurate or clearly disproportionate to the actual content of the statements.
In January the Voskresensk City Court in the Moscow Region found Valentin Sokolov guilty under Article 282 part 1 and sentenced him to a real prison term. An activist from Kolomna, Sokolov was nominated for election as a candidate to the Moscow Regional Duma from the Rodina (Motherland) Party in 2016. The prosecution was based on his Facebook posts (several videos accompanied by xenophobic remarks calling, in particular, for violence against black people) and on his post on Odnoklassniki – an image containing the text that was interpreted as inciting hatred towards the Russians. We consider this sentence inappropriate in the part pertaining to the Odnoklassniki post. The screenshots show that Sokolov shared the image, accompanied by the pro-Ukrainian text that included a call for killing Russians, along with the following comment: “How crazy does one have to be to spout such heresy. Or it is a deliberate incitement. Scary to read.” However, the fact that Sokolov republished the text not for the purpose of propaganda of the ideas contained in it, but, on the contrary, in order to discredit them, was not reflected in the case materials. The investigation only paid attention to the fact that the text was preserved without comment in the “Miscellaneous” folder on Sokolov’s page (the Odnoklassniki social network saves all published images in this folder automatically). In March, the Moscow Regional Court reduced the sentence to Sokolov from 1.5 years to 8 months of incarceration.
In Velikiye Luki of the Pskov Region, 21-year-old gamer Mikhail Larionov received a 2-year suspended sentence under Article 282 Part 1 of the Criminal Code. In January, Larionov posted on Twitch.com a clip from a live stream of the multiplayer game World of Tanks. In this video titled “Disrespect toward the Ukrainian people!” he “incited the public to aggressive actions against the Russians.” Larionov’s statements should be interpreted in the context of the game and the communication style typical among players. The principal audience of game streams recognizes even aggressive statements as humorous rather than inflammatory. It is unlikely that Larionov intended to provoke national hatred; more likely, he wanted to taunt the other player. If the law enforcement believed that Internet users outside of the gamer community could misinterpret the players’ conversation, then warning Larionov and asking him to close public access to the video would have been sufficient.
In April, a court in Kromy of the Oryol Region passed a verdict in a case against local poet Alexander Byvshev pertaining to the publication of his poem “On the Independence of Ukraine.” The poet was sentenced under Article 282 of the Criminal Code to 330 hours of community service with a three-year ban on teaching. However, the regional court revised this decision in June and increased the punishment to 400 hours of community service – at the same time, crediting Byvshev 300 hours of community service he already served in accordance with his 2015 sentence for another poem on the same topic. Thus, the actual community service requirement came down to 100 hours. “On the Independence of Ukraine” contained statements that can be interpreted as humiliating for residents of Russia, but the poem’s intent was political rather than xenophobic. In addition, as SOVA Center has repeatedly pointed out, humiliation of dignity is an act that does not present significant social danger and should not be subject to criminal prosecution.
In the same month, yet another case against Alexander Byvshev was opened under Article 282 Part 1. He was charged for publishing on the site orlec.ru his poems “The Russian spirit” and “A Mighty Pile,” which, according to the law enforcement, contained “statements, derogatory in character, against a particular ethnic group.” Byvshev published these poems in September 2017 in the comments to the article about a garbage pile in a building courtyard in Oryol. The author mocks the Russians’ disinclination for cleanliness and order and speaks of his fellow citizens in unflattering terms, but, nevertheless, both poems contain nothing that could serve as the basis for criminal prosecution for incitement of hatred.
Evidently having decided not to rest on their laurels, law enforcement agencies opened another case against the poet in July – this time under Part 2 of Article 280 (public calls to extremist activity committed with the use of the Internet). The case is based on the fact of publication of his poem “Dedicated to Expansion of NATO to the East.” We doubt the appropriateness of the charges. Despite his bellicose rhetoric, the author calls for the expansion of NATO's borders as part of a containment strategy, not for a war with Russia. In addition, leaders of NATO or of the NATO countries are not among Byvshev's audience; therefore it is hard to envision his calls posing an actual threat.
A criminal case under Article 282 Part 1 of the Criminal Code had been opened in St. Petersburg in August against Yevgeny Nikolaev, the author of the video blog “Belarusian’s Diary.” He was charged for publishing under another author’s video a comment, which incited enmity and was degrading on the basis of ethnicity. We had a chance to review Nikolaev's comment, in which he fiercely argued against the “vatniks” point that “Ukraine was invented by Lenin.” The comment contained the signs of humiliating the dignity not only of the Russians as a political entity, but also of ethnic Russians. However, this fact per se did not merit criminal prosecution, since the comment contained no aggressive appeals.
In 2018, the Federal List of Extremist Materials came to include a number of disparate Ukrainian materials seized from the Library of Ukrainian Literature[4] in Moscow and banned in 2015 by the Meshchansky District Court. We had no opportunity to get acquainted with most of them and cannot assess the validity of their prohibition; the only obvious fact is that not all of them are nationalist. Surprisingly, the set of banned materials also includes two editions of the book The Empire of the Kremlin by well-known Sovietologist and publicist Abdurakhman Avtorkhanov (1908-1997), first published in Germany in 1988. The arguments of the court are unknown to us. The Empire of the Kremlin deals with the Soviet period of Russian history, which the author views through the prism of the “colonial policy” of the leadership towards the peoples of the USSR, revealing the chauvinistic attitudes of the Soviet leaders. The book contains neither nationalist rhetoric, nor aggressive appeals based on the author’s ideology, nor statements justifying Nazism. Perhaps the issues with the book were related to Avtorkhanov’s interpretation of the Molotov-Ribbentrop Pact or the history of the Bandera movement – the prosecutors and the court could have interpreted it as spreading false information about the activities of the USSR during the war. However, the signs of potentially being liable under Article 3541 of the Criminal Code do not provide a formal basis for recognizing a material as extremist. We would also like to remind that, in our opinion, the clause in Article 3541 Part 1 that provides punishment for spreading false information about the activities of the Soviet government during the Second World War should be excluded from the article as excessively restricting the discussion on historical subjects and thus violating the right to freedom of expression.
Prosecution for “Rehabilitation of Nazism”
In October, a criminal case under Article 3541 Part 2 of the Criminal Code was opened in Cheboksary against oppositional blogger Konstantin Ishutov, who published on Facebook a 1941 German leaflet with promises to the residents of the USSR; the publication was accompanied by his comment that the Third Reich cared more for the Soviet people “than Putin does for the Russian people.” The blogger’s choice of the words was unfortunate – his statement could, in fact, be interpreted as an indirect approval of the Nazi actions. At the same time, the content of Ishutov’s pages on social networks shows no indication of any interest toward Nazi ideology – obviously, his intent was not to justify Nazism, but to criticize the policies of the Russian president. We believe that, in this case, an order to take down the publication would have been appropriate and sufficient. In addition, it is unclear why the case was initiated under Part 2 of the Criminal Code article on the rehabilitation of Nazism, which punishes acts committed with the use of official position, use of mass media or with “artificial creation of prosecutorial evidence.”
Prosecution for Anti-Government
Group Initiatives
Several criminal cases were initiated in 2018 against groups of citizens, whose activities were perceived by law enforcement agencies as dangerous anti-government actions or as preparation for such actions.
In March, a criminal case was initiated in Moscow under Article 2821 of the Criminal Code (organizing an extremist community and participating in it) against ten members of a group called the New Greatness (Novoe velichie), headed by Ruslan Kostylenkov. Some of them, including two girls, were sent to pre-trial detention. As of February 2019, four people remained in jail; the rest were under house arrest. According to investigators, several young people created a social network group of the same name in early December 2017, and posted the charter of the movement they had founded, as well as texts that advocated and justified violence against the police. Some of the materials in the case indicate that the New Greatness conducted firearms training with two hunting weapons as well as instruction on making and throwing “Molotov cocktails.” Nevertheless, the New Greatness case raises doubts. The specific plans of the group never became public. Besides preparing for some future events (judging by the group's program – for the time of the fall of the existing regime), the group distributed leaflets, but they contained no incitement to violence, only calls for the regime change. At the same time, three or even four undercover agents joined the group and, judging by the materials of the case, played an important role in its development – in particular, they found an office and wrote the charter. It is hard to agree with the investigation, which considers the New Greatness an established community with distinct goals that are extremist and present a real danger to society.
A number of participants in the opposition action “He’s not our king” were subjected to house searches in late May in Chelyabinsk as part of the investigation under Article 213 part 2 of the Criminal Code (hooliganism committed by an organized group based on political hatred), including the coordinator of Navalny’s headquarter Boris Zolotarevsky, who became a suspect in the case. According to the police, the participants of the non-permitted march were expressing obvious disrespect to society and manifesting their political hatred, called for resignation of the local governor, as well as “chanted hostile slogans permeated with social hatred, against President Vladimir V. Putin of the Russian Federation, such as “Putin is a Thief”, and “One, Two, Three – Putin, Be Gone”. In our opinion, far from being a manifestation of political hostility, chanting slogans that call for non-violent change of leadership in the state and the region and accuse the leadership of dishonesty, cannot even be classified as hooliganism because, in and of itself, it does not violate public order.
In August 2018, it was reported that the central office of the FSB had opened the case related to the activity on VKontakte public pages and on the Instagram account dedicated to criminal matters. A married couple from Yekaterinburg was charged under Part 2 of Article 280 and Parts 1 and 2 of Article 2821; another defendant in the case was their friend. On May 31, the Verkh-Isetsky District Court put the men under arrest; they are in the Moscow Lefortovo jail. The pregnant wife was released under travel restrictions. They are charged for administering public pages that spread the ideology of the A.U.E. (Arestantskoe Urkaganskoe Edinstvo, Prisoners Criminal Unity), including propaganda of violence against law enforcement officers, and for distributing products “with the movement’s symbols.” The ideology of the criminal world (and the A.U.E. subculture) is oriented towards illegal activities and conceptually incompatible with realization of constitutional rights of the citizens. Nevertheless, this ideology is not political and not aimed at changing the constitutional system. Therefore, we believe that the activity to popularize this ideology should not be subject to anti-extremist legal regulation, although, in principle, it can be criminalized. Perhaps, a new criminal norm similar in composition to Article 239 Part 1 of the Criminal Code (creation of a public association whose activity is fraught with violence against individuals) should be provided to punish organizers of the structures that exploit criminal matters and incite violence.
Meanwhile, a court in Moscow returned the case of retiree Vyacheslav Gorbaty to the prosecutor due to vagueness and inconsistency of the charges. Gorbaty was charged under Article 2822 Part 2 of the Criminal Code (participating in the activities of an extremist organization) for his involvement in the Initiative Group of the Referendum “For Responsible Power” (IGPR “ZOV”) which is the successor of the Army of People’s Will (Armia Voli Naroda, AVN) banned in 2010. We believe that AVN, an organization of the Stalinist-nationalist kind repeatedly implicated in xenophobic propaganda, was deemed extremist inappropriately since the decision to recognize it as extremist was based solely on the ban of the leaflet You have elected – You are to judge! (Ty izbral – tebe sudit), which called for a referendum to establish the government responsibility for the deterioration of the life of citizens, including the ability to outlaw unpopular officials. Accordingly, we view the prosecution against Gorbaty as inappropriate as well. In our opinion, the AVN case should be reviewed on the merits.
Side Effects of the Fight for
Tolerance
Abusing Criminalization of
Incitement to Hatred
We view several additional cases of prosecution for incitement of various kinds of hatred, not related to criticism of the government, as inappropriate or insufficiently justified.
On May 24, activists of the Sudak “Anticorruption Bureau” Dmitry Dzhigalov and Oleg Semenov were sentenced under Article 282 to fines of 300 and 50 thousand rubles respectively (Semenov was issued a smaller fine, taking into account the six months he spent in pre-trial detention). They were found guilty of humiliating the dignity of the Bulgarians. The prosecution was based on a published video, in which Semenov rebuked the Bulgarians for failing to invite the Russian delegation for the celebration of the anniversary of the country’s liberation from the Ottoman yoke during the Russian-Turkish war of 1877-1878. Semenov accused them of ingratitude toward the Russians, and also made some statements about the deportation of Crimean Bulgarians under Stalin. Obviously, the real reason behind the prosecution against Dzhigalov and Semenov had to do with their public fight against landfills and illegal construction, which had annoyed local authorities. We expressed our reservation regarding the proportionality of the criminal prosecution against Dzhigalov and Semenov. They were charged with abasement of dignity, which is an act of small gravity. In addition, Semenov and Dzhigalov were not previously known to engage in xenophobic propaganda. In any case, the Supreme Court of Crimea overturned the activists’ sentence in February 2019, in connection with the partial decriminalization of Article 282 Part 1.
A criminal case, opened in September under Article 282 Part 1 against Lyubov Kalugina, a feminist activist from Omsk, attracted media and public attention. The activist was charged with inciting hatred towards men on a social network. The statements in her posts, which the law enforcement found objectionable, differed in their aggressiveness, ranging from crude humor to the ones which could be seen as insulting dignity and inciting violence. However, we believe that the risk to the public, stemming from aggressive statements made by radical feminists, is small, since their rhetoric is not related to actual violent practices; thus, there was no need for criminal prosecution against Kalugina. Her case was terminated by the investigation in February 2019, also as a result of the reform of Article 282
In December 2018, the Moscow City Court overturned the sentence in the case of Yevgeny Kort, convicted in 2016 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. Kort had been sentenced to the year in a settlement colony (incarceration was later replaced with a fine) 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. Kort’s appeal was delivered to the Moscow City Court by Vladimir Davydov, the Deputy Chairman of the Supreme Court of Russia. Davydov pointed out that 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.” The sentence had served as the basis for filing a complaint with the Constitutional Court regarding application of Article 282 of the Criminal Code; however, this case had not been accepted for consideration. The Supreme Court initially rejected the appeal against the verdict as well, but changed its position after the adoption of the new resolution on the procedures in extremism-related cases.
In September, the Chelyabinsk Regional Court issued a verdict to Alexander Gir, a participant in the pogrom at the Tornado rock festival in 2010, who had been hiding from the investigation and the court. Let’s recall that, at that time, the locals injured several dozen guests at the festival, and were later brought to responsibility. Gir was found guilty, not only of the organization of mass riots accompanied by violence, but also under Article 282 Part 2 Paragraph “a” (publicly committed actions aimed at inciting hatred, as well as at the abasement of dignity on the grounds of affiliation with a particular social group, with the application of violence). We view the charge of inciting hatred, brought up against Gir and several other pogrom participants, as inappropriate. They were accused of inciting hatred toward rock music fans, who can hardly be considered a separate social group. In addition, the main reason for the attack was not an ideological confrontation, but an ordinary conflict between the defendants and the guests of the festival, which took place the day before the pogrom.
Prosecutions for Extremist Symbols
According to the statistics of the Judicial Department at the Supreme Court, in 2018, 963 persons faced responsibility under Article 20.3 of the Code of Administrative Offenses (propaganda and public demonstration of Nazi attributes or symbols, as well as symbols of extremist organizations),[5] but only for some of these administrative cases we have the details and can judge the extent of their legitimacy. In the course of the year, we recorded 29 instances of prosecution for public demonstration of Nazi symbols or symbols of banned organizations obviously not aimed at dangerous propaganda, which represents a significant decrease from the preceding year (46 instances).
As before, this article is often improperly used to exert pressure against activists disfavored by the authorities. Thus, in August, Dmitry Teterin, an activist of Navalny’s headquarters in Naberezhnye Chelny and one of the organizers of a rally against pension reform, was fined 2,000 rubles for publishing an image on VKontakte, which depicts Russian President Vladimir Putin in Nazi uniform with the caption “Führer of the Fourth Reich.” We believe that Teterin was penalized inappropriately, because he used Nazi symbols as a means of political polemics, and did not promote the ideology of Nazism.
Historical photographs, published without any political connotations, also attract the law enforcement attention. In August, the Kyzyl Town Court of the Republic of Tyva fined local activist Oyumaa Dongak one thousand rubles. The law enforcement objected to several of her VKontakte posts. One of them contained an excerpt from the present-day interview with a German woman, who participated in the activities of the Nazi League of German Girls and a link to the interview itself. The post was illustrated by an archival photograph, on which girls were waving swastika-decorated flags. The second publication included a photograph of Hitler sitting and holding a newspaper, accompanied by the information that the leader of Nazi Germany had once been named “man of the year” by Time magazine. The third post showed a famous 1936 photograph from a Hamburg shipyard, where, in the crowd cheering for Hitler, one man clearly does not raise his hand. The fourth image illustrated the material on the creation of the atomic bomb in Germany. The court did not consider it essential that Dongak’s posts condemned Nazism, assessing only the formal side of her action. The Supreme Court of the Republic upheld this decision.
However, in some cases, the courts took the defendants’ side. For example, in February 2018, the Arkhangelsk Regional Court overturned the decision of the Isakogorsky District Court, which, a month earlier, fined Mikhail Listov, a volunteer of the Arkhangelsk headquarters of Alexei Navalny, for two VKontakte publications: a famous 1945 photo of Soviet soldiers throwing Nazi banners to the ground near Lenin Mausoleum on Red Square during the Victory Parade, and a still from the controversial dance show on the Russia 1 TV channel, where one of the participants was wearing Nazi uniform. Listov’s posts were obviously not intended to promote Nazism, and his case was widely publicized via a flash mob, launched in his support by Alexei Navalny, in which social media users were sharing the photo with the Nazi banners published by Listov. Possibly, it was the resonance of this case that led to the introduction of the draft bill to amend Article 20.3 in the State Duma.
Fight against Insults to the Feelings
of Religious Believers
In February 2018, the Naberezhnye Chelny City Court in Tatarstan issued a verdict to 20-year-old Anton Ushachev, charged for writing the insulting graffiti on the fence of the Borovetskaya Church of the Holy Ascension (ROC) and near the local well spring. Ushachev was sentenced to 320 hours of community service under Article 148 Part 1 of the Criminal Code (insulting the feelings of believers) and Article 214 Part 1 of the Criminal Code (vandalism without hate motive), while the charges under Article 282 Part 1 (incitement of hatred on the basis of religion) were dismissed. The court decided that Ushachev acted “with the purpose of insulting the religious feelings of believers,” understanding that many Orthodox faithful come to the church and to the spring (meanwhile, the representatives of the Holy Ascension monastery declared that “this is just nastiness” and not a serious crime). At the same time, according to the court judgement, the actions in question were motivated by hooliganism, and not by religious hatred or enmity. As a result, the defendant was cleared of charges under Article 282 of the Criminal Code with the right to exoneration, and the prosecution under Article 148 of the Criminal Code was re-qualified from Part 2 to Part 1 (excluding the reference to actions performed in places specifically intended for conducting religious rites). Taking into account the fact that Ushachev had already spent more than six months in custody, the sentence was declared served. We believe that qualifying Ushachev’s actions under Article 214 of the Criminal Code (in case of establishing a motive of hatred – under Part 2 of this article) would have been sufficient.
In April, the investigative agencies in Krasnodar dropped the case of Maxim Drozdov, charged with abasement of dignity of atheists under Article 282 Part 1 of the Criminal Code. The case was initiated in connection with the publication of his satirical poem “The Heretic,” in which the villagers, led by a local priest, burned at the stake a school teacher, who said in class that science was important, and that there was no God. The investigator finally came to the conclusion that the poem had no purpose of inciting hatred, since “it was Drozdov’s act of self-expression,” was intended as ironic, and contained no calls “for any specific actions.”
In general, most of the proceedings in connection with insulting the feelings of believers in 2018 pertained to distribution of atheist images on social networks. We would like to remind that we see no need of prosecution for posting such materials, even rude ones, unless they contain aggressive appeals against believers. Such posts do not pose any public danger, and sanctions for their distribution can be viewed as unreasonable interference with freedom of expression with regard to religion.
In January it became known that a case under Part 1 of Article 148 was transferred to court. The defendant, a 29-year-old local resident, posted on his page on VKontakte “photographs with captions insulting the religious feelings of Orthodox believers and desecrating principal objects of religious veneration.” The outcome of the case is unknown.
In the same month, a magistrate’s court in Sochi dismissed the criminal case against Viktor Nochevnov, previously convicted under Article 148 part 1 of the Criminal Code due to the expiration of the limitation period. Nochevnov was sentenced to a fine of 50 thousand rubles in August 2017, but then the district court annulled the verdict and sent the case for a new trial. The Sochi resident faced charges for sharing a series of cartoon images of Jesus Christ on a social network.
It became known in March, that a court in Kurgan discontinued the criminal case against an 18-year-old local resident charged with insulting the feelings of believers (Article 148 Part 1 of the Criminal Code), having sentenced him to a legal fine of 30 thousand rubles. According to the investigators, when celebrating his birthday in a rented cottage in December 2017, the young man found an Orthodox Christian icon. He photographed his reflection in a mirror, holding the icon upside down, and posted the photo on a social network accompanied by a caption that was insulting toward Orthodox believers. During the preliminary investigation, the Kurgan resident expressed repentance regarding his act, and, in order to make amends, he apologized to all believers via a social network and donated money to an Orthodox church. Since it was the young man’s first crime, his crime was minor, and, moreover, the offender had compensated for his act, the investigation requested the court to terminate the case.
Severodvinsk resident Igor Markov was fined 15 thousand rubles in September under Article 5.26 Part 2 of the Administrative Code (deliberate public desecration of objects of religious worship) for the publication of eight atheist memes. From our point of view, posting atheist images, even the crude ones, should not, in and of itself, be interpreted as desecration of objects of religious worship, since published photo collages do not imply any active actions with respect to the actual objects. It is also worth noting that the legislation never defines the concept of “desecration,” which has obvious religious connotations.
In October, a court in Irkutsk proceeded to consider the case of anarchist Dmitry Litvin, charged under Part 1 of Article 148 of the Criminal Code in connection with his publication of four anti-religious memes on VKontakte. The defendant refused to have the case terminated due to the expiration of the limitation period, since this outcome provided no basis for exoneration. Images of gospel characters, published by Litvin, were rude and obscene, but included no aggressive calls against Christians.
In the summer of 2018 in the wake of discussions on the application of Article 282, a scandal broke out around the criminal cases of three Barnaul residents. Maria Motuznaya, Andrei Shasherin and Daniil Markin. The first two had been charged under Article 148 Part 1 and Article 282 Part 1 of the Criminal Code for publishing atheist and xenophobic images; Daniil Markin had been charged only under Article 282 Part 1 with abasement of dignity of Christians for publishing anti-Christian memes. In our opinion, the charges against Markin were completely without merit; Motuznaya and Shasherin did publish xenophobic images, among others, still their posts did not give sufficient grounds for criminal prosecution.
Motuznaya’s case was tried in the Industrialny District Court of Barnaul. In October, facing public pressure, the prosecutors, court and defense took advantage of the new Supreme Court resolution and agreed to return the case to the prosecutor for clarification of the evidence. At the same time, based on the proposal of the local Federal Penitentiary Service administration, the same district court overturned a suspended sentence of Natalia Telegina, convicted in 2017 under the same articles for repost of seven anti-Christian images and one picture directed against natives of the Caucasus region.
In January 2019, the criminal cases against Motuznaya, Shasherin and Markin were terminated due to decriminalization of Article 282; the law enforcement chose not to continue prosecution of Motuznaya and Shasherin under Article 148 only.
In our opinion, numerous examples of unsound charges of insulting the feelings of believers, as revealed during investigation or trial, support the proposals to abolish or at least partially decriminalize Parts 1 and 2 of Article 148.
Religious Groups
Hizb ut-Tahrir
According to our information, 15 verdicts against 49 people were issued in 2018 on charges of involvement in the activities of the Islamist party Hizb ut-Tahrir al-Islami (banned as terrorist in 2003), all of them under Article 2055 (organizing activities of a terrorist organization or participating in it). In two cases, 24 people were also convicted under Article 278 in aggregation with Article 30 Part 1 of the Criminal Code (preparation for the forcible seizure of power). The known sentences are geographically distributed as follows: one verdict against 21 residents of Ufa (Bashkortostan), three verdicts against three Muslims from Tatarstan, three verdicts against six residents of the Chelyabinsk Region, three verdicts against ten St. Petersburg residents, two verdicts against two Muslims in Moscow, one verdict against two residents of Sevastopol, one – against four residents of Bakhchisarai (Crimea), and one verdict against one inmate in the Vologda Region. We recorded 15 such verdicts against 37 people in 2017.
We would like to remind that we consider the decision to ban Hizb ut-Tahrir as a terrorist organization inappropriate, because the party does not practice violence and does not view it as a suitable method in its struggle to build a global caliphate. However, in our opinion, Hizb ut -Tahrir could be banned on other grounds.[6]
Meanwhile, involvement in Hizb ut-Tahrir entails prosecution under Article 2055, which provides for punishment up to life imprisonment, and the prison terms meted out by the courts lengthen every year. Thus, in July, the Volga District Military Court sentenced ten Ufa residents out of 21 to 20-24 years in a maximum-security penal colony, despite the fact that none of them were accused of involvement in violence.
As before, when considering cases that involve Hizb ut-Tahrir, there is no effort to prove that the defendants actually prepared to carry out terrorist acts or seize power – the investigation states that they were involved in the party activities in the form of disseminating or simply studying Hizb ut-Tahrir literature or holding meetings of like-minded people, and then district military courts[7] satisfy the prosecutorial claims.
At the same time, the total scope of prosecution against Hizb ut-Tahrir adherents decreased in 2018. While at least 20 people were charged in five criminal cases, it should be noted that, in 2017, about ten cases were initiated against more than forty Muslims. Two out of five cases in 2018 were opened in Tatarstan (including the most ambitious case against 14 people; the other one has three defendants), two more in the Crimea (two people arrested) and one in Chelyabinsk. Charges under Article 2055 were filed against 18 people; one is charged under Article 2052 with propaganda of terrorist activity, and another one was charged under both of these articles at once. A defendant in the latter case – Chelyabinsk resident Amir Gilyazov – was put under arrest, despite the fact that he is almost completely paralyzed and needs constant help. It took an active intervention of the human rights community and mass media to get Gilyazov released under travel restrictions.
In 2018, 26 items with Hizb ut-Tahrir materials were added to the Federal List of Extremist Materials including four electronic editions of Al-Waie magazine and other party materials, as well as videos about the persecution of its adherents in Russia. In addition, according to Roskomnadzor’s statistics, Hizb ut-Tahrir materials were blocked extra-judicially under Lugovoy’s Law (not counting the court-mandated restrictions) at least 17,000 times in the first three quarters of 2018.[8] As before, law enforcement agencies and courts prohibit Hizb ut-Tahrir’s materials automatically by association with a banned organization, without considering them on the merits and without accessing the degree of potential danger for each item. We also recorded some cases of prosecution under Articles 20.29 and 20.3 of the Administrative Code for distributing materials and displaying the symbols of Hizb ut-Tahrir; however, we do not consider these cases inappropriate, if the offense in question was disseminating party propaganda.
Tablighi Jamaat
We recorded five verdicts against 22 people, issued in 2018 on the charges of involvement in the activities of the international religious movement Tablighi Jamaat (banned in Russia) under Article 2822 (organizing or participating in an extremist organization). 14 people were sentenced in Moscow in two separate trials, four people in the Moscow Region, three people in Bashkortostan, and one in the Altai Region (under Article 2822 Part 1.1 for involving a person in the activities of an extremist organization). They all received real prison terms ranging from one to six years. We recorded seven such sentences against 19 people in 2017.
At least one new case against Tablighi Jamaat followers was initiated in 2018 – two people were arrested in Tatarstan. According to our data, at least four such cases were opened in the preceding year.
The FSB Border Service continues to report the cases when citizens of other states, reportedly involved in Tablighi Jamaat, were not allowed to enter Russia.
We would like to remind that the Tablighi Jamaat religious movement was banned as extremist in Russia in 2009. We view this ban as inappropriate, since the movement is engaged exclusively in peaceful propaganda of Islam, albeit fundamentalist, and have never been implicated in incitement to violence.
Followers of Said Nursi
In 2018, we saw the continued persecution of Muslims studying the works of the Turkish theologian Said Nursi, which have been banned in Russia – inappropriately, in our opinion. Russian law enforcement agencies prosecute believers, who are found to possess books by Nursi, for their alleged membership in Nurcular – a centralized organization, banned in Russia despite the fact that its existence there has never been proven. They are usually charged with organizing of and participation in “home madrasas,” where they discuss Said Nursi’s writings, and with distribution of his books.
We know of five sentences against five followers of Nursi under Article 2822, – three people were convicted in Krasnoyarsk, one in Novosibirsk and one in Dagestan. In Krasnoyarsk, Andrei Dedkov and Andrei Rekst, convicted for involvement in the activities of the local Nurcular cell, got off with fines, Sabirjon Kabirzoda received a two year suspended sentence. However, two out of five convicted offenders in 2018 were sentenced to real terms of imprisonment. We recorded four such sentences against nine people in 2017.
The sentence to Ilgar Aliev became the most severe known verdict in the entire history of pressure against the followers of Nursi. In May, the Izberbash City Court of the Republic of Dagestan sentenced him to eight years in a minimum-security penal colony (the decision was upheld by the Supreme Court of the Republic in July). According to the investigation, whose position was upheld by the court, Aliev conducted classes in Izberbash, Makhachkala and Khasavyurt for the purpose of studying the works of Muslim theologian Said Nursi, involved young people in the activities of the Nurcular cell, and attended international conferences and forums organized by Nursi’s followers. His long prison term resulted from the fact that he was charged simultaneously under two parts of Article 2822 – under Part 1 with organizing the activities of the extremist organization and under Part 1.1 with involving others in its activities.
The Oktyabrsky District Court of Novosibirsk sentenced Imam Kamil Odilov in July to two years in a minimum-security penal colony under Article 2822 Part 1. Odilov was charged for resuming his “home madrassa” classes with the use of the banned books by Nursi despite his suspended sentence from a similar case in 2013.
In addition, in December, the Pervomaisky District Court of Novosibirsk granted the claim of the administration of the penal colony, in which Odilov has been serving a term on the appointment of administrative supervision after his release. The court noted that Odilov was convicted of a crime of an extremist nature, classified as serious, and “negatively characterized while serving his sentence” – he received four disciplinary punishments in the colony, received no rewards and did not respond to educational measures, in particular, “does not accept proactive measures for the psycho-physical adjustment of his personality and re-socialization,” as well as for employment. Therefore, Odilov was put under supervision for the entire term prior to the expiration of his criminal record, that is, for eight years from the time of serving his sentence.
Notably, one of Odilov's co-defendants, accused of participation in his “home madrasa” under Part 2 of Article 2822, was released from criminal responsibility in March with a court-imposed fine (the same happened to two other defendants in the same case in 2017).
A criminal prosecution under Part 1 of Article 282 and Part 1 of Article 2052 for distribution of certain religious materials calling for armed struggle on a social network was discontinued in the Kurgan Region in 2018 due to the expiration of the limitation period. The law enforcement took a Muslim, charged with publishing these materials, for a follower of Nurcular because, in their opinion, he “was collecting the relevant library for a long time and independently produced brochures of Said Nursi’s works, planning to use them for further education of his countrymen.”
We have no information about any new cases initiated in 2018 against Nursi followers. However, in October 2018, the Vakhitovsky District Court of Kazan began a trial in the case of two local residents charged with organizing the activities of a Nurcular cell. We have no information concerning the time of the opening of this case. In addition, a local resident, previously held as a witness in cases involving the activities of the Krasnoyarsk and Novosibirsk “cells,” was arrested in Krasnoyarsk. In 2017, we recorded three such cases initiated against five people.
In 2018, the Federal List of Extremist Materials came to include five Nursi brochures, all of them banned in Krasnoyarsk – one in 2012, and the other four in 2018.
Other Muslims
In late February, the Chebarkul City Court of the Chelyabinsk Region issued a suspended sentence of two years' with a two-year probation period to 67-year-old assistant to the Imam of the Al-Amin mosque Kh. Dinmukhametov for distributing four copies of the brochure Women in Islam Versus Women in the Judeo-Christian Tradition. The brochure was recognized as extremist in 2015 in the Sverdlovsk Region. We believe that the ban against the brochure Women in Islam was not justified. Its author tries to show that Islam gives women more rights and fosters a more respectful attitude toward women than Judaism and Christianity; however, the text is generally written in the spirit of respect for these two religions. Accordingly, we believe that Dinmukhametov was convicted inappropriately.
In August, the Kirovsky District Court of Ufa considered the case of Amin Shayakhmetov, charged under Part 1 of Article 282 with incitement of religious hatred. The charges were brought for sharing six texts on the website of the Shura of Muslims of the Republic of Bashkortostan – an organization that had self-disbanded a year earlier. These texts were recognized as extremist in 2017; we saw no grounds for banning at least three of them. The court decided to stop the criminal prosecution of Shayakhmetov with a court-appointed fine, but this decision was appealed by the prosecutor's office, and, in November, the Supreme Court of Bashkortostan sent the case back to the district court for a re-trial.[9]
In July 2018, it was reported that a criminal case regarding the continuation of activities of the Faizrakhmanist community, recognized as extremist, was under investigation in Tatarstan. Five people are being investigated in this case. Rustam Galeyev and Galimyan Khazetdinov, charged under Article 2822 Part 2 of the Criminal Code, are under arrest. According to the investigators, they had recruited members into the religious group, organized its training sessions where they studied forbidden religious literature, called for avoiding medical care and civil duties, and raised money for community activities. The Muslim community, founded by former deputy Mufti of Tatarstan Faizrakhman Sattarov, was recognized as an extremist organization in 2013 after the relevant agencies conducted an investigation of the community and found out that its members were leading an isolated way of life, were forbidden from seeking help from medical institutions and from sending children to schools. Such situations are not subject to anti-extremist legal regulation. As far as we know, the community led an insulated but not aggressive life; therefore we view the decision to recognize its extremist as inappropriate, and there are no grounds for bringing charges under Article 2822 for the continuation of its activities.
In June, the Krasnoglinsky District Court of Samara received a claim to recognize a number of Islamic religious books as extremist. The texts include interpretations of the Quran by ibn Kathir and as-Sa'di, as well as the books from “Die Bedeutung des Korans” series (Russian version); we had no opportunity to get acquainted with them. All these materials were confiscated in a prayer house in the village of Krasny Pakhar in the Samara Region, in the course of a search related to the “underground Salafi cell.” The lawsuit is based on the results of linguistic expert examination performed in March 2018 by the FSB administration of the Samara Region. According to the Prosecutor's Office, the experts found “extremist statements aimed at inciting hatred, enmity or discord on the basis of religion (in relation to the following groups: “Jews,” “Christians,” “non-believers”)” in the books submitted for their review. We found no signs of extremism in the ibn Kathir’s Tafsir, which is under review in this case. The references to calls for fighting against the infidels and to negative statements in the Quran about non-believers should not, in our opinion, be interpreted as direct aggressive appeals that pose a threat to followers of other religions. Meanwhile, as-Sa’di’s Tafsir contains a number of statements, freely interpreting the verses of the Quran, which can be understood as an approval of military jihad. The interests of the publishing houses that have issued the books in question are represented by a group of well-known lawyers, previously involved in other cases related to bans against Islamic literature. The process attracted attention of Muslim organizations and mass media.
During 2018, 22 entries containing inappropriately prohibited Muslim materials were added to the Federal List of Extremist Materials. They were recognized as extremist for asserting the superiority of Islam, in one version or another, over other religious movements. In our opinion, such assertions should not be interpreted as incitement to religious hatred.
We learned about eight cases of Muslims being charged under Article 20.29 of the Code of Administrative Offenses in 2018 for distributing religious materials, unreasonably deemed extremist, or possessing them with intent to distribute. Additionally, we know a number of cases in which fines were levied under Article 16.13 of the Code of Administrative Offenses (non-compliance with customs prohibitions) for attempting to import inappropriately banned Islamic literature into Russia.
Jehovah’s Witnesses
In 2018, a widespread campaign was launched to persecute Jehovah's Witnesses, whose Russian organizations – 395 local communities led by the Jehovah's Witnesses Administrative Center – were banned as extremist in 2017.
In the period under review, we recorded at least 36 new criminal cases against at least 100 believers in 28 different regions of Russia, from Smolensk to the Far East (Moscow and St. Petersburg have not been included in this set so far, although a precedent, in which a suspect in the case opened in another region was arrested in Moscow, already exists).
Jehovah's Witnesses face charges under Article 2822 for continuing the activities of their banned communities. The activities in question consist in organizing and conducting prayer meetings. Thus, they are religious activities, the right to engage in which, individually or as a group, is guaranteed by Article 28 of the Constitution of the Russian Federation. As a rule, charges are brought under Parts 1 and 2 of Article 2822, but in at least four cases Jehovah's Witnesses have been charged under Part 1.1 of this article with involvement of others in the activities of a banned community, and in three cases also under Article 2823 with financing extremist activities. The defendants include believers ranging in age from 23 to 84; more than two dozen of them are women, two of whom are in a pre-trial detention center in the Smolensk Region at the time of the release of this report. The total number of defendants in jail has fluctuated in the course of the year – on the one hand, new arrests were being made, on the other hand, the courts have changed the pre-trial restrictions for some defendants to more lenient ones (house arrest, banning certain activities, travel restrictions). In the last 6 months of 2018, this number fluctuated between 20 and 35 people.
Starting in April 2018, the Zheleznodorozhny District Court of Oryol was considering the case of Dennis Christensen, a Danish citizen charged under Part 1 of Article 2822 for organizing the activities of the local community, banned in 2016. He was kept in jail since May 2017 for the entire span of investigation and trial. Christensen’s trial attracted the attention of the media, Russian human rights defenders and international organizations; its outcome was perceived as an important precedent to determine the further fate of Christensen's co-religionists charged under the same article. The harsh sentence of six years in a minimum-security penal colony, issued to Christensen in February 2019 i.e. already outside the period covered by the report, caused strong public reaction and protests from international institutions. The UN High Commissioner for Human Rights called upon the Russian authorities to stop persecution of those exercising their right to freedom of religion, belief, expression and freedom of assembly and to review the anti-extremist legislation.
In addition, in late December, the Prokhladnensky District Court of the Kabardino-Balkar Republic found Jehovah's Witness Arkadya 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. Moreover, distribution of extremist materials, even if it took 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 on the need for illegal actions against any group of persons. According to the Supreme Court 2011 Resolution “On Judicial Practice in Criminal Cases Concerning Crimes of Extremism,” 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. The defense filed an appeal against the sentence, which should be rescinded as a result of the decriminalization of Part 1 of Article 282.
Pressure on believers is not limited to criminal prosecution. According to the information collected by Jehovah's Witnesses, in 2018, law enforcement agencies conducted at least 270 searches with confiscation of printed materials, papers, the equipment and digital media. It should be noted that these raids are often carried out in a brutal manner – armed law enforcement officers were breaking into houses and apartments, scaring the elderly and children; in some cases the use of force caused the believers to seek medical help later. Nighttime interrogations were frequently conducted without regard to age and health of those interrogated. It should also be noted that we observed an increase in the number of incidents of Jehovah’s Witnesses being denied the right to alternative civilian service. According to Jehovah's Witnesses, about five thousand of their fellow believers left the country as a result of the ban against the communities and the subsequent wave of persecution.
We only know of several cases of Jehovah's Witnesses facing administrative responsibility under Article 20.29 of the Code of Administrative Offenses for distribution of prohibited literature, although it can be assumed that, in reality, they were much more numerous. Meanwhile, the Federal List of Extremist Materials added twenty entries of Jehovah's Witnesses literature. These include the New World Translation of the Holy Scriptures, that is, the Bible in the Jehovah's Witnesses translation and a number of brochures banned in Vyborg in 2017. The newly added materials also included brochures recognized as extremist in 2016 in Odintsovo (the Moscow Region), the ban of which was confirmed by the Moscow Regional Court in January 2018, and an issue of the Awake! magazine banned in June 2018 in Yelabuga (Tatarstan).
Meanwhile, Jehovah's Witnesses continue to defend their rights in the ECHR, which, according to their information, had over 40 related complaints filed as of early 2019. The complaints speak of violations of the rights of believers resulting from the bans on literature and community activities, suppression of religious meetings, and persecution of individual citizens. On May 7, the European Court of Human Rights communicated a complaint of the Glazov Jehovah’s Witnesses organization and 394 other local religious organizations of Jehovah’s Witnesses in Russia, their chairmen and rank-and-file members. The complaint pertains to the decision of April 20, 2017 by the Supreme Court of the Russian Federation to ban the activities of the Jehovah’s Witnesses Administrative Center in Russia and the local communities of Jehovah’s Witnesses as extremist. The local communities were not even given an opportunity to participate in the proceedings and defend themselves. It is worth remembering that the ECHR intends to prioritize its review of a complaint by the Administrative Center, communicated back in 2017. The ECHR decision will give Russia a chance to reconsider the erroneous decision to declare Jehovah's Witnesses' organizations extremist – the decision that lead to an obvious deadlock, in which the state forces itself to prosecute tens of thousands of law-abiding citizens for their peaceful religious activities.
Sanctions against Libraries
In 2018, prosecutors continued to impose sanctions on libraries that arise from the contradiction between the law “On Librarianship,” requiring the libraries to provide unfettered reader access to collections, and anti-extremist legislation forbidding mass distribution of prohibited materials.
We recall that prosecutors charge libraries with a variety of offenses from presence of banned materials (usually books) in their collections (despite the fact that libraries have no legal ground for removing these materials) to the fact that the library bylaws fail to mention the ban on dissemination of extremist materials.[10]
The most frequently occurring actions are prosecutorial objections with respect to library bylaws, and orders to eliminate the violations of legislation on combating extremist activity. They result in the libraries having to verify their holdings against the Federal List of Extremist Materials and take disciplinary action against the employees deemed responsible for the oversight. According to our data,[11] at least 170 such sanctions were imposed on library administrators, including school libraries, in 2019 (vs. at least 155 in 2017). Despite the slight increase in 2018, the data of the past two years indicates the general downward trend in the number of such sanctions. The change might be due to the fact that the library staff have generally adjusted to the peculiarities of the existing legislation and now show increased vigilance that enables them to successfully pass prosecutorial audits.
The Internet and Anti-Extremism
In 2018, the Russian authorities continued to use the previously created tools to block online content. As before, we doubt both the validity of criteria, chosen by the authorities to select target materials for restrictions, and the quality of blocking mechanisms.
Blocking Practices
The Unified Registry of Banned Websites created in 2012 has continued to add resources that contain pornographic information or images, propaganda of drugs and psychotropic substances, or information that can encourage children to take actions that could be harmful to their health, including incitement to suicide. In addition, by court decisions, the Registry adds resources with information recognized as prohibited for distribution in Russia, including materials that are recognized as extremist (or similar to those). According to the Roskomnadzor, the total number of resources added to the Register during the first three quarters of 2018 was 161,171.[12] Presumably, resources with extremist materials make up only a small part of them.
We have data only about 611 resources blocked “for extremism” by court decisions in 2018, collected by the Roskomsvoboda project.[13]
Websites and webpages subject to restrictions under Lugovoy’s Law and added to a special registry on the Roskomnadzor website (created in addition to the Unified Registry of Banned Websites), should be mentioned separately. Information, containing “calls for mass riots, extremist activities, participating in (public) mass actions carried out in violation of the established order, or informational materials of a foreign or international non-governmental organization whose activity is considered undesirable on the territory of the Russian Federation” as well as “information allowing users to access the indicated information or materials” are subject to extra-judicial blocking upon request of the General Prosecutor's Office to Roskomnadzor. According to Roskomnadzor,[14] 51,892 resources were blocked “for extremism” in the first three quarters of 2018. In the overwhelming majority of cases, these were the “mirrors” of previously blocked pages, as identified by Roskomnadzor. The agency received only about 400 requests from the Prosecutor General's Office.
With respect to both registries, we view access restrictions on the following resources as inappropriate: opposition materials and websites that do not call for forcibly taking down the regime (in particular, the ones containing announcements of peaceful actions); materials and websites of organizations recognized as “undesirable”; materials of regionalists and peaceful separatists; historical materials that contain no calls for violence; Ukrainian information and analytical materials that contain no calls for violence and websites of Ukrainian media; religious, anti-religious and some nationalist materials inappropriately recognized as extremist; materials and websites related to inappropriately prohibited organizations, and materials of a comic or satirical nature. We are also concerned about the large-scale blocking of information related to the persecution of adherents of the radical Islamist party Hizb ut-Tahrir in Russia.
Other Sanctions
Educational institutions and libraries still often face the prosecutorial wrath due to imperfection of content filtering on their computers. All computers accessible to minors are supposed to be equipped with filters restricting access to the forbidden information, including extremist materials. If a protection system does not work or works inadequately (and ideal filters simply do not exist), prosecutors issue their motions not to software developers or vendors, but to administrators of educational institutions and libraries, and the “guilty” staff faces disciplinary responsibility.
The number of inspections we recorded in educational institutions (secondary schools, colleges, etc.) and libraries in 2019 and various acts of prosecutorial response based on their results stands at 38, that is, fewer than in 2017 (53). Our data, of course, is incomplete, but it suggests that, under pressure from the prosecutors, educational institutions in the past few years have been paying increased attention to the effectiveness of their content-filtering systems.
At least five individuals and legal entities, including a school, a café, a hotel and a shopping center, were inappropriately fined in 2018 under Article 6.17 of the Code of Administrative Offenses (“Violation of the legislation on protection of children from information that is harmful to their health and (or) development”) for low quality of their content filtering.
Mass Media and Anti-Extremism
In a report on its activities for the first nine months of 2018, Roskomnadzor states that it issued 12 warnings “for using the media to carry out extremist activities (disseminating extremist materials)” and sent 47 requests to the editors of online media to remove reader comments with signs of extremism from their pages. However, the agency does not inform specifically which publications received warnings and requests, and for what infractions.[15] We have information only on two cases of overreach by Roskomnadzor in 2018.
In January, the North-West Federal District department of Roskomnadzor sent to the Business News Agency (ABN, abnews.ru) a notice of alleged violation of the Law on Mass Media corresponding to Article 13.15 part 2 of the Code of Administrative Offenses (dissemination of information about an organization included into a published list of extremist organizations, without specifying that its activities are prohibited). The ABN news item of July 17, 2017, which attracted Roskomnadzor’s attention, discussed the refusal of the appeals board of the Supreme Court of Russia to annul the decision recognizing the Administrative Center of Jehovah's Witnesses in Russia with 395 of its local organizations extremist and liquidating them. The headline of the news announced the “liquidation of Jehovah’s Witnesses,” and the text said about “eliminating the Jehovah’s Witnesses organization,” but the news item did not specifically contain the phrase “organization banned in Russia.” The Roskomnadzor claims against the ABN were obviously unsound – the article discussed the ban, even if its wording differed from the one prescribed by Roskomnadzor. In addition, administrative responsibility is provided exclusively for not mentioning the ban on organizations featured on the list of extremist organizations, and the Jehovah's Witnesses organizations were added to it only on August 17, 2017, that is, one month after the ABN published the news. Finally, Roskomnadzor had to agree with the ABN’s arguments and abandon the idea of prosecuting the media outlet.
Kirill Rubankov, the editor-in-chief of Kostroma.today, was also released from fine issued under Article 13.15 Part 2 of the Administrative Code for his alleged failure to mention the ban on the Jehovah's Witnesses organizations. His case was discontinued by the appellate court due to the expiration of the limitation period. The editor was penalized in August for failure to mention the fact that the organizations were recognized as extremist in the newsletter text about the arrest of a follower of Jehovah's Witnesses. Meanwhile, this fact was actually mentioned in the credits of the video inserted in the news item.
Roskomnadzor filed the claims under Article 13.15 Part 6 of the Administrative Code (media production publicly justifying terrorism) following the broadcast by the Echo of Moscow radio station in Pskov of the “Minute of Enlightenment” show by journalist Svetlana Prokopieva and publication of the corresponding transcript by the Pskovskaya Lenta Novostei (Pskov News Feed) website. The show aired in November 2018 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, which limits opportunities for civilized political struggle and expressions of opinions and demonstrates cruelty against its own citizens. Roskomnadzor issued warning to both the radio station and Pskovskaya Lenta Novostei in December, and, in early 2019, forwarded the administrative offense report to a court, which proceeded to fine both media outlets. In addition, in February 2019, the journalist became a suspect in a criminal case under Article 2052 Part 2 of the Criminal Code (public justification of terrorism in mass media). In our opinion, charges against the media outlets and the author of the material are inappropriate. According to Article 2052, 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 show never said that the ideology or practice of terrorism was correct and deserved to be emulated; accordingly, we believe that it exhibited no signs of justifying terrorism.
A Bit of Statistics
According to the data collected by SOVA Center, at least 11 verdicts against 45 individuals were issued in 2017 for violent crimes motivated by hatred, at least 2 verdicts against 6 individuals for ideologically-motivated vandalism,[16] and 55 verdicts against 65 individuals for actual hate propaganda.[17] Providing these figures, we need to clarify that our numbers on sentences issued for utterances constitute only about one third of the real number of sentences, reflected in the statistics published semiannually by the Judicial Department of the Supreme Court of the Russian Federation. We only know of the sentences that are reported by the press, law enforcement agencies, courts, convicted offenders themselves or their lawyers, etc., and such information does not always become public. In addition, in some cases, we do not have sufficient information to assess the legitimacy of the sentences. It is also worth remembering that, in some cases, we can say that incriminating statements violated the law, but presented no significant social danger – for example, because they had a very small audience. Nevertheless, we believe in the importance of demonstrating our findings that provide at least an approximate ratio between the numbers of legitimate prosecution for hate crimes and clearly inappropriate application of anti-extremist legal norms.
Further in this chapter, we present the tallies for the court decisions and for the newly initiated criminal cases that we view as either completely unjustified or extremely problematic.[18] We have grouped the sentences by the corresponding articles of the Criminal Code (the cases are discussed in greater detail in the relevant chapters of this report).
We regard as inappropriate 7 verdicts to 8 persons issued in 2018 under Article 282 of the Criminal Code (vs. 10 verdicts against 10 individuals in 2017). Social activists from Crimea Dmitry Dzhigalov and Oleg Semenov were sentenced to a fine for a video with statements allegedly humiliating the Bulgarians.[19] Mikhail Larionov, a gamer from Velikiye Luki, received a two-year suspended sentence for sharing a clip from a live stream of a multiplayer on-line game, in which the adversary was trolled with aggressive anti-Russian rhetoric. Poet Alexander Byvshev from the Oryol Region was sentenced to community service for publishing a pro-Ukrainian poem. Magomed Khazbiev, an opposition member from Ingushetia, received two years and 11 months in a penal colony under the aggregation of several articles; the charges against him included incitement of hatred towards the authorities of Ingushetia and towards the head of the republic. Arkadya Akopyan from Kabardino-Balkaria was sentenced to community service for distributing Jehovah's Witnesses materials. Kh. Dinmukhametov, an assistant imam from the Chelyabinsk Region, is facing a two-year suspended sentence for distributing four copies of an inappropriately banned Islamic brochure. Finally, we found the verdict issued to Alexander Gir (a participant in the 2010 pogrom at the Tornado rock festival in Miass, the Chelyabinsk Region, sentenced to six years in prison) inappropriate in the part that pertains to inciting hatred toward the social group “rock music fans.”
On the other hand, at least two people previously wrongfully accused under Article 282 – Anton Ushachev from Tatarstan, the author of insulting inscriptions on the church fence, and Maxim Drozdov, who published a comic poem about the murder of the “heretic teacher” – had their charges dropped in 2018. The notorious sentence of Yevgeny Kort, convicted in 2016 for publishing a meme with Pushkin and Tesak, was overturned as well.
We categorize six cases against six people initiated in 2018 under Article 282 as unreasonable prosecution; two of these cases were terminated in early 2019. These numbers are significantly lower than in the preceding year, when we documented 14 new cases against 15 people.
According to our data, one inappropriate verdict against one person was issued in 2018 under Article 148 Part 1 of the Criminal Code for insulting the feelings of believers (vs. 5 verdicts against 5 individuals in the preceding year) – Anton Ushachev was convicted in Naberezhnye Chelny for his insulting graffiti on a church fence. In Sochi, the case of Viktor Nochevnov, charged for publishing memes depicting Jesus Christ, was discontinued due to the expiration of the limitation period. A court in Kurgan, dropped the criminal prosecution against a young man, who had published photographs of a Christian icon accompanied by an offensive comment on a social network, letting him off with a court fine. Meanwhile, three new cases were inappropriately initiated, two of which were discontinued in early 2019 due to the absence of a crime, and one could not be discontinued, because the defendant insisted on being released from responsibility on exonerative grounds. In addition, neo-pagan Natalia Telegina, wrongfully convicted under this article a year earlier, had her conviction removed.
No inappropriate verdicts were issued under Article 3541 of the Criminal Code (“rehabilitation of Nazism”) in 2018 (the same was true for 2017). One new unfounded case was opened under this article against opposition blogger Konstantin Ishutov from Cheboksary for publishing on a social network a Nazi leaflet with appeals to Soviet citizens.
As in 2017, only one verdict was inappropriately issued under Article 280 of the Criminal Code in 2018. It was a two-year suspended sentence in Toropets, the Tver Region, to activist Vladimir Egorov for his aggressive but abstract anti-government statement on a social network. Four new cases were initiated under this article on dubious, albeit not totally absent, grounds; one of them, however, has been closed by the investigation.
Two inappropriate sentences were issued under Article 2801 of the Criminal Code for incitement to separatism in 2018 (vs. one in 2017) – one against Ivan Kolotilkin, an Ulyanovsk activist of the Community of the Indigenous Russian People for distributing leaflets that called for the creation of a “Russian state” in Russia, and the other one against a Severomorsk resident who expressed his support for the referendum on separation of the Murmansk Region from Russia on a social network; both of them received suspended sentences. We have doubts about the charges, filed under this article against Sevastopol activist Valery Bolshakov, whose criminal prosecution had begun a year earlier.
In 2018, as in 2017, the courts did not render a single inappropriate sentence under Article 2821 of the Criminal Code. However, at least two new cases were opened on dubious grounds under this article, – against ten activists from the New Greatness group and against three administrators of the public pages that spread the A.U.E. ideology.
Ten inappropriate sentences against 27 people were pronounced in 2018 under Article 2822 of the Criminal Code (vs. 11 against 32 people in the .preceding year). Five verdicts against 22 people were handed down for organizing cells of the banned Islamic movement Tablighi Jamaat or participating in its activities (in Bashkortostan, the Altai Region, the Moscow Region and Moscow). Another five verdicts against five people were issued against Muslims studying the books of Said Nursi, charged with participating in the non-existent, but nevertheless prohibited, Nurcular organization (in Krasnoyarsk, Novosibirsk and Dagestan). One case – against retiree Vyacheslav Gorbaty, charged with involvement in the banned AVN – was returned to the prosecutor's office by the court in 2018, due to vagueness and inconsistency of the charges. However, at least 38 new cases were inappropriately initiated with at least 108 people as defendants. Jehovah's Witnesses, who faced mass prosecution in 2018, account for 36 of these cases against 101 people (in three of these cases the defendants were also charged with financing extremist activities under 2823). Two additional cases under Article 2822 were opened in Tatarstan – one against two followers of Tablighi Jamaat, and the other one against five members of the Fayzrakhmanist community. For comparison, we reported 7 new cases against 14 people initiated under Article 2822 in 2017.
Separately, we would like to note the sentences to the followers of Hizb ut-Tahrir, which are not included in our general statistics, and which we consider inappropriate in the part related to the charges of involvement in a terrorist organization under article 2055. There were 15 such sentences in 2018 against 49 people (vs. 15 against 37 in 2017), so the number of wrongfully convicted has grown. In two of these cases, 24 individuals were also charged under Article 30 Part 1 and Article 278 of the Criminal Code – that is, with preparation for the forcible seizure of power; in our opinion these charges were inappropriate as well. At least 20 people were arrested in 2018 in five criminal cases under the charges of involvement in Hizb ut-Tahrir (we recorded about 10 such cases against more than 40 people in 2017).
According to our data, in 2018 (as well as in 2017) no inappropriate sentences were issued under Articles 213 and 214 of the Criminal Code (“Hooliganism” and “Vandalism”) aggravated by the hate motive. However, at least one criminal case was inappropriately initiated under Article 213 in Chelyabinsk based on the oppositional action “He’s not our king;” five people were subjected to house searches as part of the investigation.
In total, 21 inappropriate sentences against 39 people were handed down in 2018 under the “anti-extremist” articles of the Criminal Code (not counting the Hizb ut-Tahrir cases opened under anti-terrorism articles) – a smaller number than in the preceding year, when 26 verdicts were issued against 47 people. Meanwhile, 11 sentences against 12 people were issued for “extremist” statements (we counted 15 such sentences against 15 people in 2017),[20] and 10 sentences against 35 people – for involvement in the activities of extremist organizations (vs. 11 against 32 in 2017). Thus, as in the preceding year, the majority of the offenders followed a banned religious organization.
In total, we know of approximately 50 new criminal cases inappropriately initiated during the review period against approximately 120 people, significantly exceeding the numbers of 2017, when about 30 cases were inappropriately initiated against 40 people. Such a significant increase came from the cases opened as part of criminal prosecution campaign against Jehovah's Witnesses under the article on continuing the activities of extremist organizations; only ten percent of the new cases pertained to public statements.
Before proceeding to our data on the use of the Code of Administrative Offenses articles aimed at combating extremism, we would like to remind that, in reality, the cases of prosecution under these articles are measured in hundreds (according to the statistics provided by the Judicial Department of the Supreme Court, only in the first half of 2018, 963 persons were punished under Article 20.3 and 1133 persons – under Article 20.29 of the Code of Administrative Offenses).[21] However, the number of cases, for which we have information on the specific reason for a prosecution, and can assess the degree of its appropriateness, is in the dozens.
We regard 29 cases of prosecution for public demonstration of Nazi or other prohibited symbols, that is, under Article 20.3 of the Administrative Code, as inappropriate (vs. 46 such cases in 2016). In all cases the offenders were individuals, mainly activists of the opposition. A fine was imposed in 15 cases, administrative arrest in 7 cases and 5 cases were discontinued in a court of first instance; the outcome of 2 more cases is unknown
According to our information, 17 defendants (there were at least 30 in 2017) were inappropriately punished under Article 20.29 for mass distribution of extremist materials or for storage of such materials with intent to distribute. We know that the courts imposed a fine as punishment in 14 of these cases and administrative arrest in one case, one case was discontinued in a court of first instance; the outcome of one more case is unknown. The defendants included Muslims of different branches, Jehovah’s Witnesses, and activists of the opposition. As a rule, these people did not engage in mass dissemination of prohibited materials.
The Federal List of Extremist Materials increased by 465 entries in 2018, compared to 330 new entries 2017. We can see that its growth rate increased again, although it did not reach the level of 2016, when 785 entries were added. It should be borne in mind that, in 2018, the Ministry of Justice, obviously, took up the task of putting its records in order, since the list came to include a significant amount of materials banned by the courts in the preceding years, but, for some reason, not properly processed at that time.
We consider the following additions to the list clearly inappropriate: at least 7 entries with various non-dangerous oppositional materials (two of them from Ukrainian websites), 20 entries with materials of Jehovah's Witnesses, 22 entries with Muslim materials, two entries with historical writings, one entry with a video on healthy lifestyle created by right-wing activists, as well as 11 entries with various satirical materials. They come to a total of 63 (vs. 38 clearly inappropriate entries added in 2017). We have to add, as usual, that we are not familiar with all the materials on the List, and some materials with content unknown to us also could have been banned inappropriately.
The Karelian regional branch of the Youth Human Rights Group (Molodezhnaya Pravozashchitnaya Gruppa, MPG), an interregional youth public charity organization, was added in 2018 to the list of organizations banned in Russia for extremism.[22]
[1] Our work on this issue in 2018 was supported by the Norwegian Helsinki Committee, the International Partnership for Human Rights and the European Union.
On December 30, 2016, the Ministry of Justice forcibly included SOVA Center on the list of “non-profit organizations performing the functions of a foreign agent.” We disagree with this decision and have filed an appeal against it.
[2] In March 2019, i.e. beyond the reporting period, both of Klishas bills were approved by the Duma in the second reading with certain amendments, then upheld by the Federation Council and signed by the President.
[3] See: Тhe Practice of the European Court Of Human Rights in: Kravchenko, Maria. Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2017 // SOVA Center. 2018. 24 April (https://www.sova-center.ru/en/misuse/reports-analyses/2018/04/d39253/#_Toc507372740).
[4] See: Criminal case initiated against the Director of the Library of Ukrainian Literature // SOVA Center. 2015. 29 October (https://www.sova-center.ru/misuse/news/persecution/2015/10/d33129/).
[5] Consolidated Statistical Data on the Activities of Federal Courts of General Jurisdiction and Magistrates’ Courts for the First Half of 2018 // Judicial Department at the Supreme Court of the Russian Federation. 2018 (http://www.cdep.ru/index.php?id=79&item=4758).
[6] Our position is based, inter alia, on the ECHR decision on the activities of Hizb ut-Tahrir, which was made as a supplement to the decision on the complaint of two convicted members of the organization against the actions of the Russian authorities. The ECHR stated that although neither the teachings nor the practice of Hizb ut-Tahrir allow us to consider the party a terrorist organization and it does not explicitly call for violence, its prohibition on other grounds would be justified, since it presumes, in the future, the overthrow of some existing political systems with the aim of establishing a dictatorship based on the Sharia law; it is also characterized by anti-Semitism and radical anti-Israeli propaganda (for which Hizb ut-Tahrir was banned in Germany in 2003), as well as categorical rejection of democracy and equal rights and recognition of violence against the countries, which the party considers as aggressors against the “land of Islam,” as legitimate. The goals of Hizb ut-Tahrir clearly contradict the values of the European Convention on Human Rights, in particular, the commitment to the peaceful settlement of international conflicts and the inviolability of human life, the recognition of civil and political rights, and democracy. Activities for such purposes are not protected by the European Convention on Human Rights.
[7] In accordance with the Law on Amendments to Certain Legislative Acts of the Russian Federation (in Part of Improving Counteraction to Terrorism) adopted in 2014, criminal cases related to activities of terrorist organizations are handled by three (taking into account the amendment of 2016) district military courts.
[8] Roskomnadzor’s results // Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications (Roskomnadzor). 2019. February (http://www.rkn.gov.ru/plan-and-reports/reports/p449/).
[9] In January 2019, the court discontinued Shayakmetov’s case due to the absence of a crime as a result of partial decriminalization of Article 282.
[10] For the detailed list of possible charges see: Alexander Verkhovsky. Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2011 // SOVA Center. 2011. 27 April (http://www.sova-center.ru/en/misuse/reports-analyses/2012/04/d24302/).
[11] We are sure that we never find out about the majority of sanctions imposed. Often, we know about a series of inspections, which was conducted and resulted in sanctions, but the number of warnings and other acts of prosecutorial response is not reported. In such cases, we count the entire series as a single instance.
[12] According to Roskomnadzor, “due to the presence of prohibited information,” the Unified Registry added 53,848 sites and/or site indexes on the Internet in the first quarter of 2018, 49,212 sites and/or site indexes in the second quarter, and 58,111 sites and/or web site indexes in third quarter. See: Roskomnadzor’s results // Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications (Roskomnadzor). 2019. February (http://www.rkn.gov.ru/plan-and-reports/reports/p449/).
[13] For more information see the simultaneously published SOVA report: N. Yudina. On the Threshold of Change? The State Against the Promotion of Hate and the Political Activity of Nationalists in Russia in 2018 // SOVA Center. 2019. March 18 (https://www.sova-center.ru/en/xenophobia/reports-analyses/2019/03/d40754/).
[14] Roskomnadzor’s results // Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications (Roskomnadzor). 2019. February (http://www.rkn.gov.ru/plan-and-reports/reports/p449/).
[15] The results of the analysis of information on the implementation of the plan of activities of Roskomnadzor for the 3rd quarter of 2018 // Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications (Roskomnadzor). 2018. November 7 (https://rkn.gov.ru/docs/doc_2342.docx).
[16] For more information see: N. Yudina. Far Right and Arithmetic: Hate Crime in Russia and Efforts to Counteract It in 2018 // SOVA Center. 2019. 4 February (https://www.sova-center.ru/en/xenophobia/reports-analyses/2019/02/d40603/)).
[17] For more information see the simultaneously published SOVA report: N. Yudina. “On the Threshold of Change? The State Against the Promotion of Hate and the Political Activity of Nationalists in Russia in 2018.”
[18] It should be noted that in speaking of appropriate and inappropriate verdicts we focus only on the merits; in most cases we do not consider possible procedural violations.
[19] The sentence was revoked in February 2019 due to partial decriminalization of Article 282.
[20]The data on sentences in this report does not numerically coincide with those in N. Yudina’s report “On the Threshold of Change? The State Against the Promotion of Hate and the Political Activity of Nationalists in Russia in 2018,” because here we considered the sentences imposed under several articles as inappropriate, if we regarded the charges under one of them as unfounded. The report “On the Threshold of Change?” classifies such sentences as “not sure.”
[21] Consolidated Statistical Data on the Activities of Federal Courts of General Jurisdiction and Magistrates’ Courts for the First Half of 2018 // Judicial Department at the Supreme Court of the Russian Federation. 2018 (http://www.cdep.ru/index.php?id=79&item=4758).
[22] Karelian MPG Added to the List of Extremist Organizations // SOVA Center. 2018. 7 November (https://www.sova-center.ru/misuse/news/persecution/2018/11/d40252/).