Controversy with AGORA over its appeal against deputy Abeltsev

*We received a response from the AGORA Association to our criticism of their speech against MP Abeltsev. This response was published on the Open News Agency website and is also reproduced below .

Let us briefly respond.*

We welcome the opportunity to continue the discussion on issues that are rarely discussed in the human rights community. We will not repeat our arguments against the AGORA's position, we will also not find fault with trifles, but we will formulate a position on the main points of disagreement.

Our main disagreement is with the following position of "AGORA": "We protect civil activists and NGOs and are simply obliged to use all legal means for this." Such a position is characteristic of a lawyer, this lawyer must protect the interests of the client in any legal way, in this case, the community of human rights defenders. From our point of view, a human rights activist defends, first of all, human rights as such, he defends certain principles of the social order, whether in a public debate or in a specific case. When choosing between the interests of the client and the public interest, a human rights defender should give preference to the latter. (We recognize that not all human rights defenders share our approach.)

In this case, the public interest is to call to order deputy Abeltsev, who offended current and former human rights activists, and not damage such a fundamental value as freedom of speech. We are convinced that no matter how harsh and insulting criticism of political and public opponents, and therefore - of any social movements, should not become a reason for criminal prosecution. Not everything that is morally unacceptable is a crime. If the Duma Commission on Ethics or its own party leadership does not call Abeltsev to order, and this is likely to happen, then this is not yet a reason to encroach on freedom of speech.

Yes, the vague wording of the Constitution and the Criminal Code, and even more so of the law "On Combating Extremist Activity", allow excessive restrictions on freedom of speech. Including - through the manipulation of the concept of "social group". But we must not contribute to this. The court's decision in the case of Savva Terentyev is by no means the end of the discussion about the "social group" in Article 282 of the Criminal Code. It will be continued in the European Court of Human Rights, in other processes, and supporters of freedom of speech should not give up their positions and start playing "by their rules."

The question remains - how can we stop Deputy Abeltsev or others who in the future will resort to aggressive and offensive rhetoric against human rights activists or any other social trend?

Alas, today a civil suit in such cases is extremely difficult. This means that it is necessary to ensure that in our civil law the procedure for a claim in defense of the interests of an indefinite circle of persons is prescribed. But civil process and public controversy are the only acceptable means for us to deal with opponents, if they do not commit obvious criminal offenses. But Abeltsev did not commit it (and "AGORA" also does not insist on the opposite).

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Answer "AGORA"

Unfortunately, SOVA is wrong in choosing a "weapon". A civil trial in this case is impossible, since Abeltsev, in his own words, humiliated not a specific person - an individual or a legal entity - but human rights activists in general.

As far as we know, the policemen have already been recognized by a social group as an unrepealed sentence (the case of Savva Terentyev), military personnel (the case of the Tyumen anarchists) and security officers (the case of Dmitry Solovyov) are one step away from this. Unfortunately, linguists unanimously declare that the army and the police are social groups. It is counterproductive to cover them up with the term "departmental", thereby removing them from the scope of anti-extremist legislation, because Russian legislation does not know such a term. But the concept of "a sign of social affiliation" is present in the Constitution of the Russian Federation (Article 19: "Any form of restriction of the rights of citizens on the grounds of social, racial, national, linguistic or religious affiliation is prohibited), the concept of "social group" is found several times in the Criminal Code of the Russian Federation .

This does not mean that we agree with such criminal cases, however, we are practicing lawyers and cannot afford to ignore the jurisprudence in the state where we work on a daily basis. We protect civic activists and NGOs and are simply obliged to use all legal means to do so. We decided to put up a barrier and form a moral, if not legal, responsibility for negative statements addressed to human rights activists, to a social group or social movement (in the strictly scientific sense of the word), to which we ourselves belong.

Among human rights activists, there is a position of denying both the very concept of "extremism" and the concept of "social group". We are convinced that it is illegal to humiliate people because they belong to the police or the army, and it is criminal to call for their destruction on this basis. It is dangerous to engage in the ostrich tactics of denying reality in the form of sentencing civil activists. Since there is no clear definition of the concept of "social group" in the legislation, there are no criteria or an exhaustive list of groups that, in the opinion of the legislator, are social, the only way to protect is empiricism. It is obvious to us that the law enforcement system, by conducting precedents like the "Savva Terentyev case", and with powerful publicity free of charge, is trying to forcibly create immunity from public criticism throughout the country. There are serious reasons to believe that the terms "incitement of hatred" and "extremism" are used by investigative and judicial practice for the political purposes of protecting the government from any - political, religious, civil - attempts to call into question its legitimacy. The acceptance of these rules of the game in this case is a scrupulous doubt about the possibility of asserting that human rights activists (anarchists, anti-fascists, communists, socialists, national Bolsheviks, and so on) are a social group, which allows the security forces to freely form a "new reality".

We have not changed our position. We are convinced that the criminal prosecution of Terentyev, Solovyov and others on similar grounds is illegal and violates freedom of speech. Some of the allegations that they are charged with disseminating on blogs or on the walls of military registration and enlistment offices, although they cannot be considered decent and non-offensive, are still not crimes due to their insignificance and low public danger. Another thing is a politician, a member of the Russian parliament, a public figure who allows himself generalized insulting statements about a group of people to which he does not belong, in an interview with a federal news agency with a daily audience of more than 10 thousand people. For such actions, responsibility should follow - at least moral in the form of damage to reputation.

We do not undertake to assert that there is a crime in the actions of State Duma deputy Abeltsev, we say that there are signs, and we suggest that the Investigative Committee under the Prosecutor's Office of the Russian Federation draw a conclusion, since it is and only he is authorized to do this. In addition to the procedure provided for by the Code of Criminal Procedure of the Russian Federation, we turned to the State Duma Commission on mandate issues and issues of deputy ethics.

It has been reliably established that "in the studied texts, lexical means were found that refer to insulting vocabulary and humiliate the honor and dignity of human rights defenders ...... in the material, a sharply reduced image of human rights defenders undoubtedly discredits their honor, dignity and business reputation." This is the conclusion of three professors, two of whom are heads of departments of specialized disciplines of two state universities. We have no reason not to trust their opinion. As well as to assume that Comrade. Abeltsev can go unpunished for his insults only because, in a strictly scientific sense, human rights activists are a social movement, not a group.

In this case, the lawyers of the Association used the freedom of interpretation of criminal law terms based on the analysis of investigative and judicial practice, as well as consultations with a number of forensic experts in the field of political science, sociology, linguistics, psychology and cultural studies. This action is a test both for the law and for the UPC, the State Duma, Abeltsev, other human rights activists and ourselves.

Moreover, by initiating a pre-investigation check on the application, we want to find the edge of the concept of "social group", acting on the contrary. For our part, we guarantee the publication of any response of the UPC RF, as well as the State Duma apparatus with its comments.

Pavel Chikov,

Association AGORA

Sources

• Accusations against deputy Abeltsev provoked a discussion in the human rights community // Open news agency. April 15, 2009