Alexander Verkhovsky, Galina Kozhevnikova. Three Years of Combating Extremism

Sanctions against organizations : Election Campaigning : Sanctions against media : Judicial ban on extremist materials : Criminal prosecutions : Conclusions

It has been three years since the enactment of the Federal Law on Combating Extremist Activity (hereinafter - the 2002 Law), and the initial experience of its application can be summarized.

The definition of extremist activity obviously relates to certain legal provisions, which are not directly mentioned to in the said law. These provisions include Art. 282 of the Criminal Code and provisions on various hate crimes. We will consider any offences treated under these provisions as extremist activity in the meaning of Art. 1 of the 2002 Law (hereinafter we use the term "extremism' and its derivatives in this sense only).

We will not consider here any terrorist acts or "propaganda' type of offences committed by, or in relation to, Chechen separatists. While these offences fall under the definition of extremist activity (and the term "terrorism' is included in the broader notion of "extremism' under the same Art. 1 of the Law in question), but for political reasons, they belong to a different sphere of law enforcement. Moreover, anti-terrorist law belongs to an adjacent, but different legal sphere.

The Law on Combating Extremist Activity came into force on July 30, 2002. This paper looks at the practice of law enforcement agencies and courts between that date and this writing (September 2005), only with regard to offences committed after July 30, 2002, except cases under the relevant Criminal Code articles unaffected by the 2002 Law (hereinafter we will use this term to denote this law and pursuant changes in other laws).

The review is structured by legal provisions applied to extremist offences.

Unless stated otherwise, all information presented here has been published by the SOVA Center in its reviews and news reports (http://sova-center.ru). The key developments in 2004 and 2005 presented here are described in reviews by Galina Kozhevnikova and in the authors' other articles on the same subject [1] covering the 2002-2003 events, so we will omit most of the details.

Sanctions against organizations

An organization can be defined as extremist only if it has been liquidated under the 2002 Law. There have been very few such cases that we are aware of, although the Law should enable such liquidation, as it was stated at the time of its adoption in 2002.

The first organization closed under the 2002 Law was the RNE (Russian National Unity) chapter in Omsk City, and then in the Omsk Oblast. On 10 October, 2002, the Omsk Oblast court, following a petition by the Oblast prosecutor, liquidated the RNE chapter for violating three federal laws, namely the Law on Public [Non-governmental] Associations, the Law on Combating Extremist Activity, and the Law on Commemorating the Victory of the Soviet People in the Great Patriotic [Second World] War. The prosecutor's action was based on the content of the organization's Charter and on its use of Nazi-like symbols.

The Omsk judgment enabled a virtually automatic liquidation of other RNE chapters that use the same Swastika symbol. Indeed, a number of regional RNE chapters have been liquidated since, but we do not know whether courts always referred to the 2002 Law or to legislation adopted earlier. In particular, the use of Swastika was the argument against RNE chapter in the Republic of Tatarstan, when the Supreme Court of the Republic liquidated the group on May 21, 2003.

We are aware of at least one case where a religious group was liquidated for attempts to promote racial discrimination and for the use of Swastika as its symbol. On May 5, 2004, the Slavic Community of Perun Veda Temple (or the so-called Inglings - Old Believers Church[2]) was liquidated in Omsk; strictly speaking, the liquidation affected three interrelated organizations[3].

The use of symbols (especially various modifications of the ancient Swastika symbol) as the single reason for sanctions against secular as well as religious groups lends itself to abuse; however, we know of only one case of related abuse, which was an attempt to sanction National Bolsheviks (NBP) under Art. 20.3 of the Code of Administrative Offences. A district court in Nizhni Novgorod found in July 2003 that the NBP flag (the same as Nazi, but with a sickle and hammer symbol instead of a Swastika) violated the 2002 Law; however, the case was appealed in the Oblast court, which sent the case back, and on September 11, 2003, the same district court dismissed the case.

That said, abuse can take other forms. Amendments to the Law on Public Associations changed the procedure for liquidation and termination of NGOs on any grounds, not limited to extremist activity.

In 2002, the Krasnodar Human Rights Center was suspended for six months. In early June 2005, the Nizhny Novgorod Human Rights Society (NOPCh) was also suspended. In both cases, the charges against human rights groups were not those of extremist activity, but referred to a specific context: in Krasnodar, local authorities publicly claimed that human rights defenders were undermining local security, while NOPCh in Nizhny Novgorod was sanctioned for its formal ties with the Russian Chechen Friendship Society - a group charged initially under Art. 280 of the Criminal Code, which was later re-qualified under Art. 282 of the Criminal Code (see below).

As to those groups which engage (or which are suspected by law enforcement agencies to engage) in extremist activity, they are often liquidated for reasons having nothing to do with extremism. On many occasions, such organizations have been liquidated for some sort of general non-compliance with regulations, found by local departments of justice in the course of blanket inspections, and any apparent connection between their liquidation and the content of their messages has been vigorously denied by authorities.

In the same context, we can mention the liquidation, in 2003, of the National Power Party of Russia (NDPR). It is widely believed that NDPR was closed "for extremism', but in fact, the Ministry of Justice never challenged NDPR's anti-constitutional activity; instead, it revoked the party's registration for "not having enough regional branches', even though the case was at the moment considered in a number of regional courts. [4]

A specific situation is faced by organizations which are found to be "terrorist'. They can be found to be "terrorist' under the 1998 Law against Terrorism, but they also fit the definition of "extremist', with all implications. Therefore, a list of 15 terrorist organizations established by the Supreme Court ruling of 14 February, 2003, is part of the extremist organizations list. Most of the 15 groups are hardly represented in Russia, some of them are exclusively Chechen - by their origin and location, and we do not consider them in this review. Only one group of the 15 is represented, visible, and vocal in Russia - Khizb-ut-Takhrir. But it is aware of the Supreme Court ruling and has not attempted to register.

Election Campaigning

We do not know much about instances of direct application of the election legislation, such as petitions by election committees or others to courts challenging violations of election campaigning rules (specifically, violations of extremist nature).

We know of a suit against German Sterligov who ran for the Mayor of Moscow in December 2003. Sterligov used free TV air time to call for a deportation of all Azeri and other ethnicities, and even threatened to shoot some of them. Remarkably, the Moscow city election committee said they were planning to sue the candidate, and even sent the TV ads to be reviewed by experts, but finally did not sue Sterligov; instead, he was sued by another candidate, Alexander Lebedev. However, on 28 November 2003, the Moscow City Court dismissed the suit.

It is common for election committees to refuse to find xenophobic propaganda, so cases are never taken to court. In 2004, we know of at least two such cases: Alexey Mitrofanov running for Pskov governor, and Evgenya Golubyatnikova, running for Volgograd governor (both from LDPR).

But on 8 April 2005, in Khanty-Mansiisky Autonomous District (KMAD), a candidate running for the mayor of Megion - Alexander Kuzmin, winning the majority of votes in the first round (49.53%), was banned before the second round for incitation of interethnic hatred. Kuzmin was sued by the Imam of the regional Moslem Religious Authority, and his runner-up was the current mayor of Megion. On 29 June, the Supreme Court reversed the ruling due to procedural deficiencies, rather than on the merits of the case. A re-vote of the second round was scheduled for 11 September, but stopped by the Supreme Court Collegium of Civil Suits as inconsistent with the law on elections.

Sanctions against media

Both government authorities and public prosecutors can warn mass media allegedly engaging in extremis activity, and in most cases such warnings are issued by the former. Before the administrative reform was launched in 2004, warnings were issued by the Ministry of the Press and its departments in federal districts, while currently this function is taken over by the Federal Service for Supervision over Compliance in the Sphere of Mass Communications and for Protection of Cultural Heritage (often referred to as Ros-Okhran-Cultura).

In 2003, a total of 30 such warnings were issued to media, including "marginal' nationalist as well as "normal' media outlets. In 2004 - apparently due to the reorganization of government - the newly formed Ros-Okhran-Cultura did not issue any warnings, but since 2005 they have been increasingly active and warned a number of media.

Two newspapers were closed with specific reference to the Law in question (some other media were closed for allegedly extremist activity back in the second half of 2002, but the charges were based on older incidents and on former legislation). One of the two newspapers - The Russian Siberia (Russkaya Sibir) - was closed in 2003, and its editor-in-chief, Igor Kolodezenko, was convicted under art. 282 of the Criminal Code (and immediately released under a general amnesty). We should clarify that the closure of the newspaper and the trial of the editor-in-chief were based on different publications in the newspaper, so the proceedings were separate and independent of each other. However, Kolodezenko immediately registered his banned newspaper again under the title of Our Native Siberia (Rodnaya Sibir), and distributed its copies during trial sessions of the court, which, once again, convicted him under art. 282 of the Criminal Code for older publications in The Russian Siberia. The sentence, however, was probational, and the convicted publisher was not banned from publishing. He registered another paper and continued to distribute it. Another decision to banish a newspaper was fairly recent. On 4 July 2005, a court of first instance passed a decision to close NBP's [National Bolshevik Party's] The General Line (Generalnaya Linia) newspaper, but as of this writing, the ruling has not entered into force[5], and even if does enter into force, the newspaper, no doubt, will continue to be published - most likely, under the same logo as Limonka banned in 2002.

Art. 8 of the 2002 Law established a very strict and virtually irreversible procedure for banning media outlets: if the producers of a publication, upon receipt of a warning, fail to challenge it in court - or, alternatively, do challenge it in court, but lose the case, the publication must be - rather than "may be' - banned. This procedure has never been applied, however - which is good, because the procedure effectively equates warning a media outlet with banning it. All of the above also applies to the 2002 Law procedure for liquidating organizations.

We are not aware of any rational explanation of why prosecutors and Ros-Khran-Cultura fail to use judicial proceedings to ban openly racist publications, while it is permitted by law and has been suggested, on many occasions, by top officials of these bodies. Apparently, they are held back by the toughness of restrictions placed on the freedom of expression - even The General Line, which was extremely disliked by authorities, was not closed until it had received three warnings[6]. This motive, however - or any other motive, for that matter - was never voiced in public.

We do not have sufficient information to discuss government attempts to restrict extremist activity in the Web. Art. 12 of the 2002 Law is little more than a reference, while no one has yet succeeded in designing technically and legally sound legislation regulating the Web content; it is also unlikely that such legislation will be developed in the nearest future, given the lack of successful international experience in this sphere. There have been incidents of extremist sites being closed, but their closure was achieved through pressure on providers by the law enforcement or by the public, i.e. by informal, rather than formal, means.

Judicial ban on extremist materials
The 2002 Law offers two different (!) definitions of materials which can be subject to a judicial ban. According to Art. 13 of the Law, all banned materials are entered in a federal list, which is made public on a regular basis.

No such list has ever been published, and we have good reasons to believe that it does not even exist. Moreover, there have been very few cases of any material being found extremist. Logically, every time an individual is found guilty of extremist propaganda under Art. 280 of the Criminal Code, the materials they have published to give grounds for such a finding should be found extremist as well, but we cannot test this assumption due to virtually no cases under Art. 280 (see below). Similarly, we have not heard of any court finding extremist any materials associated with organizations[7] or publications banned for extremism.

Consequently, art. 13 of the Law is hardly effective. For example, RNE, after liquidation of their regional chapters, continues the dissemination of the same materials as the liquidated groups. Art. 13 can be applied independently to books or Web publications, but such cases are rare.

For some reason, the concept of "extremist materials', as it is currently applied in Russia, is primarily associated with texts on faith and religious doctrines, which are rather old. The first known ruling which found a print publication to be extremist was passed in April 2004, when Savyolovsky district court of Moscow found to be extremist, and thus outlawed the distribution of, a book written by the founder of Vakhabism in the 18th century. According to Art. 13 of the 2002 Law, production and distribution of such materials make one liable under criminal or administrative law. However, in September 2003, the Moscow Prosecutor's Office dropped the criminal investigation against the publisher of the said book under art. 282 of the Criminal Code, for want of corpus delicti, and has never reviewed the case. Apparently, the distribution of The Fundamentals of Tawheed is an administrative violation, rather than crime; however, the Administrative Code does not provide for liability in such cases, so there is no legal foundation for sanctions.

Banning an ancient religious treatise is hardly relevant. Obviously, requiring ancient religious texts to be tolerant would be asking too much. Without going into a much more complicated matter of whether such requirements may be applied to modern texts, we should admit that freedom of conscience prohibits the authorities from forcing faith communities to abandon their historical religious texts. People can only be judged based on what they write and do now. In this respect, we can understand the attempt to sanction the publisher of the books by Said Nursi, a Turkish fundamentalist of the 20th century, but the court, having considered opinions of knowledgeable theological experts, found the books to be consistent with law, and in April 2005, Dzhambul Issabayev charged with distribution of the books was found not guilty under art. 282.

The ruling by the Savyolovsky court had some unfavorable consequences. Moscow-based neo-heathens were the first to take advantage of the precedent, and demanded that the Prosecutor General should outlaw the Bible for intolerant statements about heathens, and "review the Russian Orthodox Church for extremism', because their faith is based on the Bible. The Prosecutor's Office effectively ignored the complaint, but it could not possibly ignore a similar application by five hundred (and later - five thousand, followed by fifteen thousand) citizens, including 19 members of the Federal Duma, concerning the same type of measures to be applied to the Jewish religious treatise Kitsur Shulkhan Arukh and Jewish organizations. The said Kitsur Shulkhan Arukh published in late 19th century is a digest of the Shulkhan Arukh treatise written in the 16th century and based on Talmud and its mediaeval comments; assessing it in terms of modern Russian law makes as much sense as similar assessment of the Bible or The Fundamentals of Tawheed. No criminal investigation was launched, contrary to the demands of "the letter by 500' - nor any investigation into this explicitly anti-Semitic letter - but the Prosecutor's Office admitted in the explanation of why it refused to investigate that Kitsur Shulkhan Arukh did contain intolerant and thus unlawful statements while the investigation was dropped for want of criminal intent of the modern publishers. Obviously, this type of litigation will continue and may be provoked by many other ancient religious texts.

Criminal prosecutions

Article 282

Art. 282 of the Criminal Code is drafted in such a manner that it defines "propaganda' (i.e. hate speech) as crime in most cases, but sometimes the definition also includes violence (part 2 para "a'). Therefore, the application of art. 282 falls into two parts.

:Propaganda' of hatred (or hate speech) is a common public concern (we do not need to describe here the multiple manifestations of this phenomenon), and prosecutors receive a lot of complaints expressing this concern. Generally, authorities refuse to prosecute. Nevertheless, each year since 2002 there have been more than 80 criminal prosecutions under art. 282. In 2003, a total of 8 such cases featuring 9 offenders went to courts in Russia. In 2004, a total of 24 cases went before courts, with charges brought against 40 individuals. For various reasons, many investigations under this article were dropped and never reached the court. In 2003, 15 investigations against 20 individuals were dropped, while in 2004, 9 investigations were dropped (against 9 culprits). Convictions are very few. In 2002, there were 4 convictions, 8 convictions in 2003, and 11 convictions in 2004 (according to the Research Institute of the Prosecutor General's Office).

Apparently, most investigations are into "hate propaganda'. These are easily identified among the convictions (except in 2002).

In 2003, five individuals were convicted for "hate propaganda', and we know their names. Only one of them got a prison term, and was not amnestied - Vitaly Sosnin, the founder of "February 11' patriotic association in Saratov was sentenced to two years in a prison colony for organizing an anti-Semitic meeting to mark the 620th anniversary of Kulikovsky Battle (his co-defendant, Yury Babikov, got a probational sentence). Three persons were convicted for violent crimes under art. 282. [8]

Four persons were convicted for hate speech in 2004, namely: Kolodezenko (mentioned above), Victor Korchagin in Moscow, Mikhail Trapeznikov in Izhevsk (all have been released from punishment; Korchagin's case was completed in 2005), and Pavel Ivanov in Novgorod was sentenced to a fine.

None of these people, not even repeat offenders Kolodezenko and Korchagin, were banned from publishing or journalism. Such a ban imposed on Ivanov was later reversed by a higher instance and replaced by a fine.

Between three and eight persons were convicted for violent offences under this article in 2004.

A special case was the conviction of Magomed Tagaev, an ideologist of radical Islam in Dagestan. On 12 July, 2004, he was sentenced to 10 years of prison for a combination of crimes, including, alongside art. 282, illegal possession of weapons, forgery, and banditry.

It is too early yet for any conclusions about 2005 (this paper covers eight months), because the information often comes in after a long delay. In nine trials, a total of 11 persons were convicted for hate speech, three of whom (V. Korchagin in the second instance, and the NBP activist A. Nikolaenko and the Web propagandist D. Chuprunov - see below) were released from punishment due to the expiration of the statute of limitations[9]. Three RNE members were punished in Novgorod (see details about art. 2821 below), two RNE members in Oryol, Rem Latypov, NBP leader in Khabarovsk, E. Teplyashin, NNP leader in Kirov (see below), another Web propagandist (see below) and a man who was caught sticking propaganda ads in the streets of Novokuznetsk. The latter was sentenced to six months of correctional labor, Teplyashin was sentenced to a fine, and the others received probational sentences.

Between January and August 2005, a total of 13 persons were sentenced under art. 282 in four trials (in Tambov, Lipetsk, Surgut, and Yekaterinburg), 11 of whom were sentenced to prison terms between one and 9 years.

Article 282 was rarely applied to hate crime before, but has been increasingly used since 2004 - which, in and of itself, is not necessarily a positive thing.

The provisions of art. 282 deal with "public propaganda' - i.e. hate speech associated with violence. During most attacks, such "propaganda' in the form of vocal statements heard by many people either does not take place or cannot be proven. Sometimes the prosecutor refers to neo-Nazi materials found on the accused as evidence of their motives, but courts refuse to accept such evidence, because motives do not equal actual propaganda, i.e. public action. For example, in April 2003 in Kursk, a court convicted a group of teenagers who had beaten foreign students of African and Asian origin in the streets of the city. Nazi symbols and literature found in the youngsters' apartments gave rise to prosecution under art. 282, alongside street violence ("hooliganism'). All defendants got between 10 months and 2 years of probation, but the court did not find them guilty under art. 282, because, according to the judge, :their actions were not of expressly public nature or addressing a wide range of people with the purpose of inciting ethnic, racial and religious hatred;[10].

It is unclear why the prosecutor and the court applied art. 282 of the Criminal Code in the case of Surgut skinheads, who beat and killed "aliens' in the streets - art. 111 of the Criminal Code under which they were sentenced already contains the motive of racial hatred as an aggravating circumstance, and its application would have been more appropriate from the legal perspective. Besides, the use of art. 282 did not affect the severity of punishment - the murderers were sentenced to prison terms below the maximum allowed under art. 111.

Another specific application of art. 282 is associated with Web publications. In February 2005, in Syktyvkar, a student got a probational term for publishing porno and Nazi materials on his website. See also (below) a Web-related prosecution in Kemerovo under art. 280 and 282. Such sentences are rare, but they are not new: back in September 2002, A. Pitilimov in Vorkuta was sentenced to a RUR 9,000 fine under art. 282 part 2 for promotion of violence on the Web[11].

Art. 282 can be applied inappropriately, where a certain text containing a discussion of nationalism, ethnic or religious intolerance and hatred is misinterpreted as incitation of such hatred. A dramatic example of such misinterpretation took place in 2002, when Professor Victor Avksentyev, who was at that time the head of Philosophy and Ethnology Department of Stavropol University, was prosecuted under art. 282. The charges against him were based on extracts from interviews with residents of the region quoted in an extensive research paper analyzing the situation in Stavropol region in the light of ethnic conflict theory. It took months of judicial proceedings and a number of expert reviews by prominent academic institutions for the court to find Victor Avksentyev innocent; by that time, the professor had survived a heart attack and lost his position at the University.

Another example was the verdict of guilty, on 28 March, 2005, concerning two of the three defendants charged under art. 282 after the incident at the :Beware Religion!; exhibition in Moscow (the court of second instance supported the verdict). We believe that the prosecutor failed to prove the allegation that the exhibits in question incited animosity or hatred towards believers. Even if we agree that the exhibits incited hatred towards the Orthodox Christian faith, article 282 does not establish criminal liability for incitation of hatred against a religion or for profanation of religious symbols (which is treated under art. 5.26 of the Code of Administrative Offences).

Finally, at the moment of this writing, criminal investigation is in progress against Stanislav Dmitrievsky, director of the Russian-Chechen Friendship Society, who is charged under art. 282. Charges against Dmitrievsky are based on his publication of Akhmed Zakaev's appeal to the Russian people and Aslan Maskhadov's letter to the European Parliament. It may be argued whether publishing such appeals is legal, or the publications may be interpreted to contain an indirect call for separatism or extremism, but the last thing you can find in the texts and in the fact of their publication is incitation of religious or ethnic hatred. However, a preliminary review commissioned by the FSB, found an offence treated under art. 282, rather than art. 280, so the investigation which had been opened under art. 280 was re-qualified.

Article 280

Following the adoption of the 2002 Law, provision of art. 280 of the Criminal Code became as broad as the definition of extremism - rather than deal with :calls for a forceful seizure of power or overthrow of the current political regime,; this article now covers any :calls for extremist activity.; As a result, many people face prosecution under this article, especially National-Bolsheviks. A number of investigations under this article have been launched since its amendment, but most of them have been closed or re-qualified.

Here is a typical example. In 2003, in Chuvashia, Kyrill Kornilov, a National-Bolshevik was prosecuted under art. 280 for chanting slogans during the 1st of May demonstration, including some potentially offensive ones, such as :Yankees cannot rescue Vovka [diminutive of Vladimir] - Putin's gang should face trial!; and :Let us cleanse Ichkeria using the method of Beria! Let's wring the Chechens' necks using the method of Yermolov!; But then the criminal investigation was dropped, and Kornilov was sentenced to five days of administrative arrest for misdemeanor ("petty hooliganism').

Of course, re-qualification from art. 280 was not limited to cases involving National Bolsheviks. The same happened in Pekin et. al. case (see below) in Novgorod, and in the aforementioned Russian-Chechen Friendship Society case.

On 17 March, 2005, Zavodsky District court in Kemerovo convicted Denis Chuprunov, a local resident and a law school student, under art. 280 of the Criminal Code for publication of offensive materials on the Web site of Russkoye Znamya. He was also found guilty under art. 282, but the statute of limitations had expired. It appears to be the first of the three convictions under art. 280 in its current version that we know of.

Alexander Nikolaenko, NBP leader in Belovo, Kemerovo Oblast, was charged - according to information on the NBP websites - with publishing a number of texts in the local paper The Course (Kurs) stating in particular that he :supported and justified the repression and deportation of Gypsies,; and, apparently, with making similar statements during public rallies in 2004. Two criminal investigations were opened against Nikolaenko, both under art. 280, part 2 and 282 part 1.

On 26 April, 2005, he was found guilty only under art. 280 part 2, sentenced to two years' probation, and banned from journalistic activity for the entire period of his sentence. (Apparently, charges under art. 282 were abandoned due to expiry of the statute of limitations, because the episodes in question took place between 2000 and 2003). In the second case based on incidents which took place in 2004, Nikolaenko was sentenced on 6 July to six months in a prison colony, but we do not know whether he was found guilty under both articles he was charged with. (Interestingly, the Siberian Department of the Federal Service for Supervision over Compliance in the Sphere of Mass Communications warned The Course newspaper using a rare formula, namely :incitation of civic hatred, animosity, calls to overthrow of the current constitutional regime.;).

However, in most cases of serious extremist agitation - namely, calls for pogroms or organizing gangs for such crimes - art. 280 has not been applied. As of today, only once a member of a really dangerous racist organization has been convicted - in August 2005, Eugeny Teplyashin, leader of the Popular National Party branch in Kirov was sentenced to a fine of RUR 80,000 under art. 280 and 282.

Article 2821

In early November 2003, in St. Petersburg, the first attempt was made to apply the new art. 2821 of the Criminal Code (:organization of an extremist community;). Together with articles 280, 150 (involvement of minors in crime) and 213 (hooliganism), the offence treated under art. 2821 is incriminated to Dmitry Bobrov, leader and organizer of a skinhead group named Schultz-88. However, the Bobrov trial is not over yet, and we do not know whether art. 2821 will be part of the sentence.

Since then, offences under art. 2821 have been part of the criminal charges a number of times, but the only conviction so far was passed on 31 May 2005, in conjunction with art. 282 part 2 (upheld by the court of second instance on 26 July 2005). Three RNE members in Novgorod were charged with writing and dissemination of Novgorodets newsletter found to incite racial hatred. Therefore, the three offenders were found by the investigators, and then by the court, to constitute an extremist community, and their actions were treated under art. 282 part 2 and art. 2821: their leader, Mikhail Pekin, was convicted under part 1, and the other two - under part 2. The sentence (four, three and two years of prison, respectively) was probational, but all the three were banned by court from distributing any mass media materials for three years, and Pekin was banned from journalist activity for the same period.

We consider the sentence passed by the Novgorod court to be the best ruling in a racial hatred case over recent years.

Article 2822

All caselaw under this provision concerns members of Khizb-ut-Takhrir - an organization found by the Supreme Court to be terrorist[12]. This finding makes it possible to bring charges against anyone suspected of being a member. There are some other organizations banned under the 2002 Law provisions, but this article has not been used against their members.

In January and in February 2005, four Khizb-ut-Takhrir members were sentenced to fines. In April, five members were sentenced to one and two years' probation, and in June two more were sentenced to a year of probation. On 9 June 2005, three residents of Kazan were sentenced under art. 2822 to actual incarceration, rather than probational terms - 4 years and 7 months each. However, more Khizb-ut-Takhrir members were sentenced to probational terms later. The most recent sentence as of this writing was passed on 8 September, and it was for 4.5 years probation.

A number of Khizb-ut-Takhrir members were charged with illegal storage of ammunition and involvement of others in terrorist activity (art. 2051 of the Criminal Code - this is the way any recruitment of new members is treated in accordance with the Supreme Court ruling). But these charges lie outside the scope of specific anti-extremist legislation and fall under counter-terrorist laws, so we do not consider them here. In particular, in some cases, courts have rejected charges under art. 2822, while admitting charges under other articles; thus, on 2 June 2005, in Kazan, Alisher Usmanov, a national of Uzbekistan, was found guilty under art. 222 part 1 (illegal acquisition, transfer, sale, possession, transportation or carrying of weapons, their main parts, ammunition, explosive substances and devices) and sentenced to nine months of prison, but then acquitted under art. 2051 and 2821.

It is worth noting another sentence - on 4 August, 2005, nine people were sentenced in Ufa for terms between 3.5 and 8 years of imprisonment (one of them got a probational term). Three people were found guilty of possessing ammunition (art. 222 part 2 of the Criminal Code). Interestingly, two of the convicted were found guilty of participation in a banned organization - i.e. under art. 2822 part 2, while seven others were found guilty of involving (the first two people?) in terrorist activity. In addition, all the nine were convicted under art. 210 (organization of a criminal community).

This conviction creates a dubious collision. In fact, art. 2822 was included in the Criminal Code in the first place to complement art. 210, which covers criminal organizing for the purpose of committing serious and very serious crimes, while some of the offences mentioned in art. 2822 do not fall under the category of serious or very serious - so is, in fact, it is an "anti-extremist extension' of art. 210. So applying these two articles in conjunction is rather strange - although formally, it is not against the law, as art. 210 protects public security, while art. 2822 protects the constitutional regime and state security.

Moreover, art. 210 can be applied where the purpose of setting up an organization is to commit serious and very serious crimes, covered by part 2 of art. 222 and art 2051. But part 2 of art. 222 punishes for the offence described in part 1 of the same article, if the offence is committed by an organized group - there is duplication here. Furthermore, if we compare art. 210 and the fact that art. 2051 punishes the act of involving someone in Khizb-ut-Takhrir, we see that art. 210 has been applied to punish for the organization of involvement in an organization.

Using racial hatred as an aggravating circumstance

The Criminal Code mentions the motives of ethnic, racial, and religious hatred as an aggravating circumstance in a number of serious violent crimes, and in art. 244 (abuse of corpses and burial places).

Our information on the use of this aggravating circumstance in art. 244 may be lacking, but we know of very few such cases. Thus, in November 2004, two participants of the Jewish cemetery abuse in Kaluga were sentenced to two years probation. In August of the same year, in Pyatigorsk, one vandal was sentenced to two years in a prison colony, and two underage offenders were sentenced each to 18 months in a correctional institution. In May 2005, three Chechens were sentenced to 18 months in a prison colony each for violation of graves motivated by ethnic hatred in the village of Yandyki, Astrakhan Oblast. However, in August, the court of second instance replaced incarceration by probational sentences. This ruling was one of the causes of massive clashes between Chechens and Kalmyks in Yandyki. following which, the sentence was overruled, and the case was sent back to be re-considered.

With violent crimes, the use of hate as an aggravating circumstance in sentencing is more visible. It is hardly possible to compare the statistics of hate-motivated attacks and the sentencing statistics, as most attacks remain unreported. It is clear, however, that hundreds of such attacks take place. The number of sentences for hate-motivated violent crimes is one order less (there is no reliable statistics). However, there is a positive trend in the quality of sentencing.

We do not know of the hate motive having been used as an aggravating circumstance between August and December 2002; it does not mean that no one was sentenced for racist crimes, but racial hatred was not considered as an aggravating circumstance, even in the case of major violence in Tsaritsino Market in Moscow.

Over the entire period of our research of this subject, we have not been able to find a single sentence referring to racial hatred as an aggravating circumstance under art. 63 par. "e' of the Criminal Code.

In 2003, judging by the incomplete data available to us, courts used art. 282 only in conjunction with the main article (murder, hooliganism, etc.). There were only three such sentences, and, apparently, three convicted offenders.

In 2004, there were three or four sentences under art. 282 of the Criminal Code for "direct action' (attacks and the use of a dummy bomb - between five and eight people were convicted), and in four or five sentences the sentencing method was more appropriate - the judges considered racial hatred as an aggravating circumstance for the main crime (four murder cases qualified under part 2 par. "l'; one case unknown; between 27 and 30 people were sentenced, but probably, only a few of them were sentenced with the right qualification).

To sum up, in 2004, the motive of racial hatred was considered and influenced sentencing in eight cases. But, of course, in many cases offenders were sentenced without consideration of the hate motive.

In the first eight months of 2005, the law enforcement have been visibly more active in detecting and punishing violent hate crimes: by incomplete data, up to 31 persons were sentenced in 10 trials, including four murder cases where art. 105 part 2. p. "l' was applied; four trials where art. 282 part 2 was applied, and in two more trials the hate motive was also considered, although we are not sure yet what article of the Criminal Code was applied[13].

Most importantly, we do not know of any trials to take place in the first five months of 2005, where violent hate crimes would be qualified by courts without consideration of the hate motive. There were a few such cases in summer, but the overall trend remains positive.

It is important to remember (although we tend to forget about it) that there are only three articles of the Criminal Code where the aggravating circumstance can be used. For example, it is absent from art. 115 (intentional infliction of minor bodily harm) and art. 116 (beating). Courts usually qualify such offences as hooliganism, because the attackers almost always use some objects as weapons (such use is the qualifying characteristic of hooliganism under art. 213). Given that there are usually more than one attacker, part 2 of art. 213 is applied, where the maximum sentence is seven years of incarceration, which is even tougher than punishment for inflicting "medium severity' bodily harm under part 2 of art. 112 of the Criminal Code. It is a reasonable solution from the perspective of the prosecutor wishing to impose as tough a punishment as possible on the offender (for example, in the case of criminal assault against Rabbis in January 2005). Very often, there is no reason to add art. 282 to the charges (see above). However, from the perspective of public interest in fighting racist violence, it would be more important to recognize the hate motive as an aggravating circumstance under art. 63 par. "e' of the Criminal Code.

Conclusions

We can see that the growth of racially motivated violence is accompanied by a corresponding growth in the number of criminal sanctions. However, a proportional increase in prosecutions is not enough to effectively curb the spread of hate crime.

The frequent application of art. 282 to punish violent crimes in 2004 suggests that prosecutors all across the country followed an unofficial instruction "from above'. Later, apparently, the application of art. 282 in such cases was found ineffective, so investigators and courts finally started to refer to racial hatred as an aggravating circumstance, which is exactly how it should be.

In order to build on this obvious success, it would be appropriate to apply the hate motive as an aggravating circumstance in all relevant Criminal Code provisions.

Arguably, the progress achieved so far in the application of legal provisions was connected with the adoption of the 2002 Law - or, rather, with attempts of the policy-makers and the public to make this legislation work. However, the legal provisions applicable to violent offences were not changed with the adoption of the 2002 Law, as they had been in the Criminal Code since a long time.

The main targets of the 2002 Law - i.e. organizations and media that pursue extremist, anti-constitutional goals - have not been affected.

Virtually in all instances, organizations were liquidated either on merely formal pretexts - the same way as back in the 90-ies, or for the use of swastikas and similar symbols (RNE chapters and the Ingling community) - again, Nazi symbols were banned back in 1995 by the Law on Commemorating the Victory of the Soviet People in the Great Patriotic [Second World] War in 1941-1945. Apparently, in recent years, the Ministry of Justice agencies and the prosecutors have increased their pressure against radical nationalist organizations, but it has almost nothing to do with the 2002 Law. On the other hand, the law enables authorities to use illegitimate pressure against their civil society opponents, i.e. human rights groups.

As to extremist groups operating without registration, articles 2821 and 2822 were added to the Criminal Code to address this type of problem. Art. 2821 is a potentially powerful instrument which can be used against skinheads and similar gangs. But, as we can see, this provision has only been used once, and the other one - art. 2822 - has been first used this year, and only with regard to Khizb-ut-Takhrir, which can be described as anti-terrorist, rather than anti-extremist action.

The amendment of the Law on Political Parties has drastically limited the growth opportunities for radical nationalists. However, in other respects, their organizations are not subjected to any substantial pressure by the state.

Since the 2002 Law provisions have been applied, mass media that engage in hate speech are closed even less often than immediately before the law. An overview of sentencing under art. 282 for hate speech shows clearly that sentences hardly ever restrict such "propaganda' (the only exception being the Pekin group case in Novgorod), and we need to remember that even more cases have not reached the sentencing stage due to inadequate investigation and red tape both before and during the trial. However, art. 282 has already been used for inappropriate prosecutions.

It can be said that the 2002 Law has not in any way helped to combat hate speech in Russia.

Therefore, the Law on Combating Extremist Activity has not been really useful. Successes achieved in combating radical nationalism were based in the old legal framework, whereas the new provisions, due to the overall poor quality of the legislation, are confusing and sometimes even worse than the former ones; even those which are better than others are hardly ever used, even though it has been three years since their enactment.

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[1]. Sources in Russian: by Alexander Verkhovsky - Верховский Александр. Полгода противодействия. Краткий обзор применения и неприменения закона "О противодействии экстремистской деятельности" (Six months of combating. A brief overview of application and non-application of the Law on Combating Extremist Activity // Russian Bulletin on Human Rights, 2003. № 17; Основные тенденции в развитии национал-радикального движения и противодействия ему со стороны государства (Trends in national radical movement and its combating by the state)// Monitoring of Discrimination and Extreme Nationalism in Russia. Moscow.: The Foundation for Civil Society, 2004. pp. 41-60; by Galina Kozhevnikova - Возбуждение розни, призывы к дискриминации и насилию на этнической и религиозной почве (Incitation of hatred, promotion of discrimination and violence on ethnic and religious grounds)// Human Rights in Russian Regions, 2002, Moscow Helsinki Group, 2003. pp. 235-236; Запрет на пропаганду войны, на подстрекательство к дискриминации и насилию (The ban on war propaganda, incitation of discrimination and violence)// ibid, 2004. pp. 81-96.

[2]. See an article by Eugeny Moroz about it.

[3]. On July 27, 2004, the Supreme Court upheld the ruling and it came into effect.

[4]. See details in Верховский А. Полгода противодействия (A. Verkhovsky. Six Months of Combating).

[5]. We do not know any details of this trial yet.

[6]. One of the warnings was issued in October 2004 for the publication, in March, of an explicitly racist article - however, there were more articles of this kind, even in the same issue of the publication. So it would be a mistake to believe that NBP have abandoned their propaganda of radical nationalism.

[7]. Art. 13 of the Law defines as extremist :official materials of banned extremist organizations; - but we believe that it should be up to the court to decide on a case-by-case basis which materials are to be considered official.

[8]. With regard to the above, we do not refer to the document widely disseminated by the Moscow Bureau for Human Rights - the Prosecutor General's report on the application of art. 282 in 2000 - 2003. This document is often perceived as sentencing statistics, but apparently, it reflects the statistics of charges, which is not the same thing.

[9]. We do not refer here to A. Nikolaenko's second sentence on 6 July, 2005 (see details in the paragraph about art. 280 below), because at the moment of this writing it was unclear whether the second time he was sentenced under art. 280, or art. 282 or both.

[10]. Izvestia. The News Feed, March 17th, Kursk Oblast: Избиение иностранцев вдали от глаз публики не посчитали разжиганием межнациональной розни (The beating of foreigners away from public eye was not found to incite inter-ethnic hatred)// REGNUM News Agency, 2003. 22 April.

[11]. Проявления национализма и ксенофобии в Республике Коми (Manifestations of nationalism and xenophobia in the Komi Republic) (October - November 2002) // The Memorial Society in Komi website.

[12]. See more about the Khizb-ut-Tahrir ideology and the sentencing of its members in the article :Is Khizb-ut-Takhrir an extremist organization?; (in Russian).

[13]. These statistics do not take into account the sentence against four skinheads in Saratov in February 2005 under art. 105 part 2. p. "l'; the sentences were overruled by the Supreme Court due to procedural violations, and the case was sent back for re-consideration.

English translation by Irina Savelieva.