Anti-extremist legislation and enforcement as instruments used for arbitrary restriction of fundamental freedoms in Russia

On March 29, 2007 in Vienna, at the OSCE Supplementary Human Dimension Meeting on Freedom of Assembly, Association and Expression, the SOVA Center organized a briefing dedicated to the situation with these basic freedoms in Russia. Alexander Verkhovsky, the director of SOVA Center, presented his report at the briefing. We are publishing the report.

At the beginning of this decade, the Russian society associated extremism primarily with the ultra-nationalists and their illegal activities. There was an ongoing debate around the allegedly inadequate legal framework for counteracting hate crime and hate speech. As a result of these debates and government decisions, the theme of extremism has substantially expanded, while the legislation in this sphere has toughened. We should admit that while the effectiveness of counteracting hate crime and hate speech has improved, it has not improved in a major way. On the other hand, threats to fundamental freedoms are very real.

The Federal Law on Counteracting Extremist Activity was adopted in the summer of 2002 and updated in June 2006. It defines extremist activity (synonymous to extremism, as set out by this law) through a long list of acts of a fairly broad spectrum in terms of their public danger. The definition (see appendix) fails to establish shared characteristics of an extremist activity, so the list can be easily modified as needed - as we witnessed last July.

The definition of extremism includes "terrorism" (defined in the relevant law), attempts to seize power, and other extremely dangerous acts, but on the other hand, it includes acts which are less dangerous, and even those which do not need to be regulated by any law - let alone a specialized, very tough law: for example, affirmation of religious superiority - natural for very many believers - may be qualified as "extremism"; similarly, any act (or even threat) of violence against any representative of public authority, regardless of motivation, seriousness of violence or threat, context of the situation - falls under the definition of "extremism."

Any - even merely technical - assistance to extremist acts is also qualified as extremism, as is public justification or excuse of such actions, radically placing the freedom of expression under threat.

So the single term "extremism" describes a mixture of very different actions, enabling arbitrary and selective enforcement, and even making such enforcement inevitable, because it is impossible to prosecute the so-called extremism in all instances mentioned in the anti-extremist law.

This excessively broad definition is combined with excessively tough sanctions against organizations and media outlets (it is important to remember that the law targets primarily groups, rather than individuals). Any organization may be closed by court, even without prior warning, and its further activity banned in any form, just for one incident of "extremism" (while there is also a procedure for issuing warnings). The same applies to media - even though you are almost certain to find something which can be labeled as "extremist" among hundreds of articles published by a typical newspaper. Organizations are supposed to publicly denounce the activity of their leader if such activity is found to be extremist. Organizations can be suspended for up to six months in an out-of-court procedure if they are as much as suspected of extremism. Should a suspended group continue its operation, administrative liability may apply; should a banned organization carry on, its members face up to two and its leaders up to three years of prison under art 282-2 of the Criminal Code.

In contrast, an individual cannot be accused of extremism per se; s/he may face charges for certain elements of extremism, including the Criminal Code article 282 (incitement to hatred based on ethnic, religious or other group identity). Art. 280 of the Criminal Code - which before 2002 punished for "appeals to a forceful overthrow of power" - has been reduced to "public appeals to extremist activity" punishable by up to 3 years of prison or up to 5 years if mass media are used. Incidentally, the type of extremist activity encouraged by the defendant does not need to be a crime, because the definition of "extremism" is broader and goes beyond crimes listed in the Criminal Code.

Over the past year, the notion of extremism has been increasingly used in the Russian legislation. It was referenced, in particular, in early 2006 as part of the restrictive amendments of the NGO legislation: someone convicted for extremism cannot participate in NGO activities.

The reform of electoral legislation in the autumn of 2006 also made a reference to the concept of "extremism." It goes without saying that extremist activity may cause a candidate to be banned from elections. But a candidate may be banned even for something s/he did in the past (for a period equal to his/her prospective term in office, if elected) in case such acts are found extremist now (art.76 p. 9 (g) of the framework law on elections).

When people argue for such draft laws, they usually highlight the most dangerous aspects in the definition of extremism, such as terrorism, but the enforcement is based on the legal definition in its entirety, so the liberty guaranteed to citizens continuously - and rapidly - shrinks.

One could assume that the dangerous features of anti-extremist legislation outlined above are due to the lawmakers' errors, and the enforcement will make necessary adjustments; however, the enforcement increasingly proves that critics of the anti-extremist laws were right in their concerns.

So far, the Law on Counteracting Extremist Activity and pursuant Criminal Code provisions have rarely been enforced, even against the progressively active neo-Nazi and other extremist groups in Russia (this law was only used to close a few ultra-nationalist papers and organizations). Apparently, it can be explained by the inertia of the law enforcement system. In the last couple of years we have observed a growing intensity of enforcement. Unfortunately, we have observed a simultaneous increase in the number of cases where enforcement of anti-extremist legislation is used for unlawful restriction of fundamental freedoms. Moreover, in the latter cases the enforcement is often tougher than in cases of suppressing really criminal gangs, such as neo-Nazi.

The following are a few brief examples of enforcement.

The best known is the unlawful conviction under art. 282 of the Criminal Code of human rights defender Stanislav Dmitrievsky in February 2006. He was convicted (and sentenced to a probational term) for a publication of statements made by Chechen separatist leaders Aslan Maskhadov and Akhmed Zakayev. The prosecution was triggered by the names, rather than the texts of their statements, which, however critical they were with regard to the Russian government, did not seek to incite any ethnic or religions hatred. In October, the organization led by Dmitrievsky was liquidated, because members refused to disown their leader and did not oust him from the governing bodies. We note that these legal provisions had never been used before, e.g. not a single neo-Nazi group was liquidated in this manner.

The toughest sentence ever since articles 280 and 282 were first applied - five years of prison under both articles combined - were meted out in November 2006 to active propagandist for the Chechen independence Boris Stomakhin. We believe that he was, indeed, guilty under both articles. But it should also be admitted that the punishment for his publications on a rarely visited website and in a newsletter with a tiny print-run was disproportionally tough (the case has not been heard by the appeal court yet). The most blatant neo-Nazi or similar agitators have never been sentenced to such a tough punishment (in absence of other offenses).

The most prominent example of large-scale anti-extremist enforcement in Russia is the suppression of actual or assumed members of the radical Islamic Hizb ut-Tahrir Party and members of other independent Moslem groups. In some cases, Hizb ut-Tahrir theoretically justifies violence and even terror, and engages in rather aggressive Islamist propaganda - therefore an investigation of their activity in Russia could potentially produce sufficient evidence for a prosecution of this group as extremist. It is known that Hizb ut-Tahrir is banned in a number of West European countries. But the Russian authorities, unfortunately, chose a different approach.

On 14 February 2003, the Russian Supreme Court found 15 organizations, including Hizb ut-Tahrir, to be terrorist - even though it is known that Hizb ut-Tahrir, as a matter of principle, is resolved not to use violence, and it is exactly what makes them different from similar radical Islamist groups. As long as Hizb ut-Tahrir has been found to be a terrorist organization, it is also considered extremist. As long as it is banned, being a member of this organization is a crime under art. 282-2 of the Criminal Code. This charge was envoked to prosecute many people who were actually involved in Hizb ut-Tahrir, assumed to be involved, or had nothing to do with the group. In fact, the law enforcement authorities could not resist the temptation of fighting terror in a "quick and easy" manner, which produced a real conveyor of arbitrariness.

Anti-extremist legislation is constructed in such a way that a single finding of an individual, group or text to be extremist entails more findings of this type through the mechanisms of "assistance" or "justification" or "excuse."

For example, one of Russian Muftis Nafigulla Ashirov, while he was not a supporter of Hizb ut-Tahrir, wrote an opinion denying any presence of incitement to violence or hatred in the four main brochures produced by the group (these brochures are commonly used as evidence in criminal proceedings against them). It is possible that Mufti Ashirov was not entirely correct, but he certainly had the right to disagree with the above judgment of the Supreme Court in this particular format. Nevertheless, he was officially warned against extremist activity after publishing the opinion, even though, contrary to what the prosecutor said, Ashirov did not even quote from the materials of the banned group.

Moreover, the Memorial Human Rights Society received the same warning for publishing Ashirov's opinion on their website, even though it was obvious that Memorial did not disseminate Hizb ut-Tahrir' ideas. As of the end-2006, courts of two instances denied Ashirov and Memorial their appeals of these warnings.

Anti-extremist legislation is designed, among other things, to uphold the public value of tolerance. Understandably, it is always difficult to regulate and to establish legal boundaries of the freedom of expression. Even a well-designed law subsequently requires a lot of work to ensure its appropriate enforcement. In Russia, legislation often fails to deter or suppress even the most outrageous promoters of hatred. For example, prosecutors refused to open criminal investigations into public threats of death voiced by neo-Nazi against certain human rights defenders. On the other hand, excessive restrictions of the freedom of expression result from attempts to promote tolerance.

It applies in particular to protecting religious sentiments. The re-printing of the Danish cartoons depicting Prophet Mohammad did not only result in warnings of closure issued to a number of newspapers, but also in a criminal prosecution against an editor-in-chief of a paper New region + (Vologda region) under art. 282 of the Criminal Code - she was acquitted only after cassation of the original sentence.

Zyryanskaya Zhizn, a paper published in the Komi Republic, was warned against extremist activity in 2006 just for neutral reporting of nationalist meetings. The warning led to financial difficulties, and the paper is now published on the Internet only. At the moment, a request of its liquidation is pending before a court. The paper came under attack for quoting a politically incorrect pronouncement of a local official, in response to the interviewing journalist's question about politically incorrect lyrics of some songs.

On 25 December 2006, priest of ethnic Mari heathen faith Vitali Tanakov was sentenced to compulsory labor under the art. 282 for publishing a brochure where he asserted supremacy of his faith over all others. He was found guilty of incitement to religious and ethnic hatred, although the text of the brochure contained no evidence of incitement to hatred against people of different faith or ethnicity. He was also found guilty of incitement to hatred against a specific social group - the court defined the targeted group as "the government of Marii El Republic." On 21 March 2007, the Supreme Court of the Republic upheld this unlawful verdict.

The anti-extremist enforcement practice, as noted above, is very limited. However, the quoted examples reveal that this practice has been evolving towards arbitrary restriction of fundamental freedoms, in contravention of the Russian Constitution and relevant international treaties that Russia is party to. We have reasons to believe that abuse of anti-extremist legislation due to defects in the legal provisions as well as the growing case-law may present a serious threat to fundamental freedoms in Russia.

Appendix. The Federal Law on Counteracting Extremist Activity. Article 1. Main Definitions

As used in this Federal statute, the following terms shall mean:

1. "Extremist activities" or "extremism":

a. activities of non-governmental and religious associations or other organizations, editorial offices of mass media or natural persons, to plan, organize, prepare to commit, and commit acts directed toward:

• Forcibly changing the foundations of the constitutional structure and violating the integrity of the Russian Federation;

• Undermining the security of the Russian Federation;

• Seizing or usurping governmental powers;

• Forming illegal armed units;

• Conducting terrorist activities or publicly justifying the use of terrorism;

• Inciting racial, ethnic, religious, as well as social strife involving violence or calls for violence;

• Demeaning ethnic dignity;

• Engaging in mass riots and acts of hooliganism and vandalism by reason of ideological, political, racial, ethnic or religious hatred or animosity, as well as hatred or animosity toward any social group;

• Spreading propaganda of the exclusivity, superiority or inferiority of individuals based on their attitude toward religion or their social, racial, ethnic, linguistic, or religious affiliation;

• Impeding, in combination with acts of violence or threats of violence, the lawful activities of government agencies and election commissions and of their official representatives;

• Slandering a government official of the Russian Federation, or of a subdivision of the Russian Federation, engaged in performing his official duties or in connection with his performance of those duties, in combination with accusing such official of acts prohibited in this article, provided that the fact of such slander is judicially established;

• Using violence, or threat of violence, toward a representative of the government or his relatives in connection with his performance of his official duties;

• Making an attempt on the life of a governmental or public figure with the intent of stopping his governmental or other political activity, or in revenge for such activity;

• Violating human and civil rights of individuals, and inflicting bodily injury and property damage on individuals, by reason of their beliefs, race or ethnicity, faith, social status or social origin;

• Creating and/or disseminating printed, audio-, or audiovisual and other materials (works) intended for public consumption and containing at least one of the indicia provided in this article;

b. Propaganda and public display of Nazi emblems or symbols, or of emblems or symbols confusingly similar to Nazi emblems or symbols;

c. Public appeals urging the commission of the aforementioned activities, as well as public appeals and pronouncements having the effect of inciting the commission of the aforementioned activities, or justifying or defending the commission of activities prohibited in this article;

d. Financing of prohibited activities or otherwise assisting in the planning, organization, preparation for and the execution of prohibited activities, including providing such means for the execution of such activities as financial resources, real estate facilities, educational, printing and technological infrastructure, telephone, facsimile and other communication equipment, informational services, and other material and technical resources;

1. "An extremist organization" - a non-governmental or religious association or other organization as to which a court has rendered, in accordance with this Federal statute, a final judgment ordering it dissolved or enjoining it from any further activity connected with engaging in extremist activities.

2. "Extremist materials" - documents intended for public dissemination or information conveyed through other channels which urge the commission of extremist activities or justify or defend the necessity of extremist activities, including the works of the leaders of the German National-Socialist Labor Party and the Italian Fascist Party, publications justifying or defending ethnic and/or racial superiority or justifying or defending the practice of committing war or other crimes having as their goal total or partial annihilation of any ethnic, social, racial, national or religious group.