Address and Recommendations at the Plenary Session II “Fundamental Freedoms I”

SOVA Center took part inthe OSCE human rights conferencein Warsaw on October 2-13, 2023. Below is the SOVA's statement along with the relevant recommendations for the session "Fundamental Freedoms I".

Dear moderator, dear participants,

My name is Maria Kravchenko, I represent SOVA Center, Moscow. SOVA as a public organization has been enlisted as a foreign agent in Russia.

Since February 24, numerous new laws and law enforcement practices have developed in Russia which excessively restrict freedom of expression, among them the possibility of closing mass media without a court decision and a number of articles which shouldn’t have been included into the Criminal Code. The legal – not the political ground – is generally the need to fight extremism and terrorism.

Unfortunately, in recent years Russia has not been the only country to introduce restrictive measures based on the same grounds. Human rights defenders from different post-Soviet regions have been working on a joint report focused on these processes and will speak on this today at 14:00 in Saski hall, everyone is welcome.

Here I would mention only a part of alarming trends going on in Russia.

First, since the spring 2022, when the laws on discrediting the Russian army and officials and dissemination of fakes about them were introduced, over seven thousand of Russians have faced large fines and nearly three hundred have been prosecuted as criminals getting up to nine years prison terms just for mentioning the atrocities in Ukraine or protesting against the military operation. Since late February 2022, media outlets, public and political internet resources, and a wide range of media platforms have faced numerous claims from state authorities. This has resulted in the blocking of thousands of resources, including major social media platforms like Facebook, Twitter, and Instagram. The near-complete suppression of independent media has dramatically changed the information landscape for a significant portion of citizens.

Second, the number of criminal cases on calls to terrorism and extremism continues its growth. These cases increasingly deal with public statements against the authorities and the law enforcement, mostly on social media, including calls to forcible seizure of power or violence against the officials and the police. When we manage to get scarce information on some of the cases, we often conclude that the courts do not assess or overestimate the threat of the statements in question and impose disproportionate penalties. We have been also recording more and more cases of blatantly abusive law enforcement.

Third, more and more opposition activists have been faced criminal prosecution for participation in extremist organizations and communities, among them Alexei Navalny who was sentenced to another long prison term, and his supporters as well as members of Vesna youth movement banned as extremist for its public statements.

Fourth, the scope of application of anti-extremist articles on from the Code of Administrative Offences increased, primarily in cases involving the demonstration of banned symbols and incitement of hatred (more and more often – against the authorities as a social group). In 2022, over 6,000 people faced punishment under these two articles, along with the article on the distribution of extremist materials.

We again urge the Russian Federation to repeal numerous excessive restrictions related to freedom of expression which have been introduced in recent years. SOVA Center also proposes broader recommendations to all the OSCE member states.

Recommendations

To the participating states:

1. Bring national legislations and practices related to countering terrorism and extremism in line with the international human rights standards.
2. Ensure that the definitions of terrorist and extremist activity in relevant laws are as clear as possible to eliminate the chance for an expansive interpretation.
3. Revise the legal definition of extremism in national legislations, if present so that this concept refers only to actions connected in one way or another with the use of violence.
4. Ensure that freedom of conscience and belief as such is not subject to additional restrictions within the framework of anti-terrorism or anti-extremist legislation.
5. Ensure that criminal law articles relating to public statements criminalize only statements that call for discrimination and violence. Incitement to hatred based on group characteristics – such as race, ethnicity, religion, etc – may be an exception. The list of protected characteristics should not include any vague criteria, as the lack of clarity leads to abuse.
6. Ensure that the expression of various political or especially religious viewpoints regarding the desirable societal structure is not restricted merely because these perspectives are politically and ethically unacceptable to the majority of society. This includes opinions about the structure and policies of the state, its borders, approaches to managing cultural diversity, family matters, and more. Punishment should only be applied when unlawful methods, especially violent means, are used to achieve these ideals or when there are public calls to employ such methods, including incitement to hatred based on ethnic, religious, or similar criteria.
7. Ensure that public associations and media outlets are only prohibited by a court for extremist activities based on legally effective judgments against their participants, provided that this activity has not been an isolated incident. Criminal prosecution for the continued activities of such associations should only be considered if the actions in question were connected to or aimed at committing crimes of extremist or terrorist nature.
8. Ensure that the prohibition of a public association – as a measure affecting a wide range of individuals, aside from those proven to have committed crimes is only enforced based on genuinely serious claims against the association.
9. Ensure that the wording and application of the relevant criminal code articles meet the threshold of public danger of the statements in question. The criteria presented in the six-part test in the Rabat Plan of Action on the prohibition of advocacy of hatred can be used as guidelines.
10. Ensure that prohibitions on the public display of specific symbols and the imposition of penalties for such actions are imposed solely in instances where these actions have been intended to incite hatred or other forms of socially dangerous provocations, or to promote organizations that have been banned for engaging in terrorist or extremist activities.
11. Repeal the restrictions of historical debates if present in national legislations.
12. Repeal the mechanism of prohibiting “information materials” along with subsequent penalties for their dissemination per se, if present. With widespread internet availability, such prohibitions fail to effectively curtail socially harmful propaganda and often lack clear definitions, thereby significantly increasing the risk of excessive or arbitrary penalties. A first step should involve repealing any legal consequences for possessing such materials in countries where such regulations exist.
13. Ensure that blocking access to materials on the internet is exclusively applied to content that violates the law (as brought into compliance with the recommendations outlined above). The illegality of materials should either be determined by a separate court decision or declared by an executive authority based on the material being deemed illegal in the context of a previously reviewed criminal case.
14. Elaborate balanced and accurate approaches to cooperation with media platforms concerning the online content regulation.
15. Ensure that investigations and trials related to cases classified as terrorist or extremist are conducted while preserving the procedural rights of the accused, including trial transparency (with generally accepted exceptions). Imposing additional restrictions on the rights of the accused, including the use of torture, is unacceptable in such cases.
16. Review previously issued court decisions in order to secure the release of citizens who have already been convicted from unlawful or excessive penalties, primarily those who are deprived of their liberty.

To ODIHR:

1. Update the OSCE recommendations related to countering terrorism and extremism in view of the latest developments of national legislations and the human rights obligations of the OSCE member states.
2. Mediate a constructive dialogue between the participating states in all diversity of their anticipations and the global online platforms to elaborate more balanced and effective policies of online content regulation.