Original Material
Inappropriate Enforcement of Anti-extremist Legislation in Russia in 2008
This report does not provide a comprehensive list of cases involving inappropriate anti-extremist enforcement; details of such cases are available from the SOVA Center website at http://xeno.sova-center.ru/89CCE27. This paper is an attempt to analyze the main trends in this sphere. This report, therefore, is structured around the main types of inappropriate anti-extremism prevalent in 2008. [1]
Contents
Attempts to limit the freedom of conscience : Persecution of Muslims : Persecution of other religious groups : Prosecution for "offending the religious sentiments of believers'
Persecution for criticism of law enforcement authorities : Persecution of mass media : Persecution of private individuals and organizations : Persecution for quotations
The expansion of anti-extremist enforcement : The federal list of banned extremist materials : Unfair persecution of hate campaigners : Absurd enforcement
SUMMARY
The events reported in 2008 were consistent with the trends of abusive anti-extremist enforcement documented earlier. [2] Almost all related legislative proposals, instead of providing clarity in terms of the specific extremist offenses to be prosecuted, would have only toughened the repressive measures; all but one proposal were rejected. New items continue to be added to the federal list of extremist materials, but the quality of the list is so poor as to make it unusable. Two types of civil liberty were particularly affected by the misuse of anti-extremism legislation in 2008 - namely, freedom of conscience and freedom of expression (in connection with criticism of law enforcement agencies).
Some repressive practices did not expand any further, contrary to many experts' concerns. Practices such as the large-scale confiscation of campaign materials, the removal from elections of candidates opposing the "ruling party', the issuing of warnings and the persecution of activists for criticism of the authorities continued, but on a smaller scale than in 2007. In particular, pre-election pressure against the opposition decreased due to the fact that the federal elections in Russia were over by March 2008. No criminal convictions in 2008 relied on the new aggravating circumstances of political and ideological hatred introduced in 2007.
It would be wrong to assume that anti-extremist pressure is inescapable. The case against liberal political writer Andrei Piontkovskii - whose books were challenged in court as being extremist - was closed and charges dropped in 2008. The inappropriate judgment ordering the liquidation of the newspaper Duel was quashed (however, proceedings were eventually resumed on new and appropriate grounds). The ethnic Mari pagan priest Vitalii Tanakov continues his court battle, while the proceedings to determine whether his book A Priest Speaks (Zhrets govorit) should be banned as extremist increasingly resemble a parody of a trial. However, few people have successfully challenged inappropriate prosecution, and we do not know of any charges brought against those responsible for such pressure (and we assume no officials have been held accountable).
NEW LEGISLATIVE PROPOSALS
Most new bills designed to amend (i.e. to toughen) the anti-extremist legislation were rejected in 2008.
Following a negative comment by the federal government in October, the Kursk regional Duma withdrew the bill (introduced in June 2008) which would have facilitated the liquidation of legal entities after an anti-extremist warning by removing the 12 months' period of grace currently allowed for the correction of violations.
Similarly, the government's negative opinion expressed in August 2008 resulted in the rejection of a proposal by Bashkortostan legislature. This would have allowed internet providers only 30 days in which to block access to websites featuring blacklisted extremist publications; the government argued that the requirement was technically unfeasible.
The most comprehensive amendment of anti-extremist legislation was initiated by the Office of the Prosecutor General and launched in the State Duma by United Russia (Edinaia Rossiia) and the Liberal Democratic Party of Russia (Liberal'no-Demokraticheskaia Partiia Rossii, LDPR). The bill on Amending Certain Laws to Improve Counteraction to Extremism would amend the laws on Mass Media, on the Freedom of Conscience and Religious Associations, on Combating Extremist Activity, and the Code of Administrative Offenses. Even though the bill was withdrawn from the State Duma the following day, it is consistent with the general approach adopted by the Office of the Prosecutor General since 2007, so we assume that this initiative will reemerge and it therefore merits a detailed review.
It was unclear to us how the obligatory retraction of untrue information in the media would contribute to the fight against extremism. Apparently, it was also unclear to the Duma members proposing the bill, since they failed to offer any clues in the explanatory note attached to the bill.
Amendments to the Law on the Freedom of Conscience were intended to suppress potential links between religious and political activity (reflecting concerns over faith-related terrorism), as well as "undesirable' religious practices as such (reflecting concerns over "totalitarian sects'). The amendments required that religious groups applying for registration should disclose "the fundamentals of their teaching and practices, such as the history of the religion and the group in question, the forms and methods of their operation, their attitude towards the family and marriage, education, any specific ideas concerning the health of their believers, any restrictions of civil rights and obligations imposed on members and clergy.' Technically, groups which are not formally registered are required to provide similar information for expert review to determine whether or not they qualify as religious organizations; the proposed amendment, therefore, would only provide additional grounds for denial of registration.
However, a new requirement that religious organizations should inform the registering authority of all curricula of their educational establishments and any amendments to such curricula would be very difficult to comply with (even for those organizations which have not been suspected of "extremism' so far, such as the Russian Orthodox Church). These potentially repressive proposals were clearly in line with other "anti-extremist' attempts to limit freedom of conscience (see below).
Also potentially repressive was a proposal to amend article 20.29 of the Code of Administrative Offenses which punishes the mass dissemination of literature blacklisted as extremist; the bill would delete the word "mass' to make any exchange of banned materials punishable.
Amendments to the Federal Law on Combating Extremist Activity, besides merely technical matters, [3] included the above-mentioned proposal of Bashkortostan legislators to set a deadline for internet providers ordered to block offending resources, even though the Bashkortostan-sponsored bill had been rejected by both the government and the Duma two months earlier.
In sum, the proposal included excessively tough measures deemed unacceptable by those decision-makers who initiated its immediate withdrawal.
On 12 December 2008, the government proposed a potentially repressive bill related to anti-extremism and expanding the concepts of high treason and espionage. Specifically, it mentioned the term "state security' - which has no definition in Russian law - and contained a list of "hostile actors' which even included international organizations without any reservations. [4] Then on 27 January 2009 the draft was withdrawn to be finalized and improved.
And finally, the only substantive bill with implications for anti-extremism adopted in 2008 was the one which limited the competence of jury courts. [5] Launched in the State Duma on 2 December, it was promptly adopted on 12 December and signed into law by the President on 30 December. Under the new law, jury trials are not available for cases under article 205 (terrorist act), 206 parts 2-4 (hostage taking), 208 part 1 (organization of an illegal armed formation), 212 part 1 (organization of riots), 275 (high treason), 276 (espionage), 278 (the seizure or retention of power by force), 279 (armed riot), and 281 (subversion).
We are strongly opposed to any restriction of jury trials. Moreover, trials on the above charges are often closed to the public, and the removal of jurors may lead to an increase in the number of unfair judgments.
Some experts are concerned by the September 2008 reorganization of the Ministry of the Interior; they argue that the establishment of a special police force - a separate department in the Ministry of the Interior and dedicated centers in its regional branches - for combating extremism may contribute to abusive anti-extremist practices. However, we do not see how reorganization per se may lead to such consequences. [6]
ATTEMPTS TO LIMIT THE FREEDOM OF CONSCIENCE
A particularly visible trend in 2008 can be described as inappropriate pressure on groups and individuals accused of inciting religious hatred. While previously such pressure was limited to Muslim groups in opposition to officially-recognized muftiats, in 2008 the situation changed drastically. Anti-extremist measures now target mainstream Muslims and members of other faiths, including Orthodox Christians. Anti-extremist legislation is being used as a weapon in disputes between secular and religious groups and between different religious groups. Increasingly, believers themselves initiate inappropriate pressure under the guise of anti-extremism.
The excessively broad legal definition of extremism makes it possible to interpret any strong criticism of someone's religious (or antireligious) opinions as "incitement to religious hatred'.
Persecution of Muslims
Muslim groups in opposition to officially-recognized muftiats continue to be targeted by controversial anti-extremist enforcement.
According to the Civic Assistance Committee, at least 15 Hizb ut-Tahrir activists were convicted in Russia in 2008 - in Chelyabinsk (four people) and in Bashkortostan (11 people in three trials). The sentences varied between probation and short prison terms. All verdicts relied on article 282-2 of the Criminal Code, which means that the only charge brought or proven against them was their membership of Hizb ut-Tahrir. Some of the defendants had been tortured.
According to FSB Director Alexander Bortnikov, a total of 23 Hizb ut-Tahrir leaders and functionaries were tried and convicted in various Russian regions in 2008; [7] five activists of the Islamic Party of Turkestan were arrested and extradited. Furthermore, between late 2007 and early 2008 three members of Tablighi Jamaat - a non-violent movement known for its radical teaching of "pure Islam' - were tried and sentenced to short prison terms in Bashkortostan. Notably, most investigations against radical Muslim groups outside the North Caucasus have been reported from Privolzhskii (Volga Region) Federal District.
Thus, the practice of criminal prosecution for membership in radical Islamic groups - even in the absence of evidence that such groups are dangerous[8] or that specific defendants have been involved in criminal acts - persists in Russia. We have no evidence to insist that any specific sentence was unfair. The observed pattern, however, causes concern, since it suggests persecution for beliefs.
In 2008, the Russian authorities continued to extradite (or to attempt to extradite) individuals wanted by authorities in their home countries (in most cases Uzbekistan) for involvement with radical Muslim groups. Russian courts do not consider any charges against such people on their merits. The main argument against extradition is that these individuals face torture in their home countries. By appealing to the European Court of Human Rights, the Civic Assistance Committee was able to stop all but one such extradition (the Said Baiburin case, see below) in 2008. However, the reported cases may be a small fraction of the actual number of extraditions.
The fact that Russia violates (or attempts to violate) its international obligation to refrain from extraditing individuals to countries where they may face torture is linked to the broad legal definition of extremism and the agreements under the Shanghai Cooperation Organization (SCO). [9]
Certain Muslim groups were added to the official list of extremist and terrorist organizations in 2008. On 13 November, the Russian Supreme Court found the al-Qaeda organization in the Islamic Maghreb a terrorist group and banned its activity in Russia, and on 10 April the Supreme Court banned the religious organization Nurdjular for extremism.
While the former judgment does not raise any doubts (except that the organization does not appear to be active in Russia anyway), [10] the Nurdjular case is different.
It is questionable whether such an organization - banned at the request of the Prosecutor General - actually exists in Russia. So far, the name Nurdjular has been used to refer to the organization of Said Nursi's (or his disciple Fathulla Gulen's) followers in Turkey and to their real or assumed representatives in Russia. The latter have never engaged in any visible organized activity; to the best of our knowledge, no charges have been brought yet in the criminal investigation against Nurdjular ongoing in Naberezhnye Chelny since 2005. We are certain, however, that the Russian followers of Nursi will face sanctions anyway. We do not know on what grounds the organization was banned, but we assume that the ban is based upon the judgment which found the Russian translations of Nursi's books to be extremist; an application challenging this judgment is pending before the European Court of Human Rights. We know of no evidence to suggest that Nursi's followers in Russia have ever been involved in violent acts motivated by their beliefs, or in hate propaganda.
Notably, the Supreme Court ruling, with its potentially serious consequences for many of Nursi's followers who may now be considered members of a banned organization, has not yet been published (like the landmark judgment of 2003 banning 15 organizations as terrorist groups). This uncertainty creates a situation where one cannot challenge the judgment or even get a copy of it without showing one's personal interest in the case - and by disclosing such interest one may face criminal charges. [11]
The Tatar-Turkish schools in Tatarstan have already come under pressure since they are perceived as being influenced by Nursi's followers. The ban on Nurdjular will further undermine the position of such schools.
Even mainstream Muslim groups are targeted by unfair anti-extremist enforcement.
Of particular concern is the apparent tendency to involve the government with its anti-extremist policies in essentially theological disputes within Islam.
For example, numerous people have faced criminal charges for their outspoken support of Wahhabism. Formally, these charges have relied upon the (controversial) legal ban against The Fundamentals of Tawheed (Kniga edinobozhiia in Russian), an eighteenth century theological treatise written by the founder of Wahhabism. Promotion of Wahhabism was among the charges brought against imam Said Baiburin who was tried and convicted by the Ordzhonikidzevskii District Court in Ufa on 16 April 2008 for public calls to extremist activity (part 1, article 280 of the Criminal Code) and sentenced to 18 months in a general regime prison. [12] In our opinion, the evidence of his guilt presented in the courtroom was insufficient. But even more importantly, central to his conviction was Baiburin's support of Wahhabism and dissemination of The Fundamentals of Tawheed. Whether or not he disseminated the books should not have mattered for the criminal proceedings, since this is an offence under the Code of Administrative Offenses rather than the Criminal Code. The expert witnesses of the prosecution alleged that Baiburin had incited hatred against certain groups, but failed to provide any evidence - even quotations - to support their allegations, and only one of the prosecution witnesses confirmed that the imam had encouraged violence against opponents of Wahhabism. The sentence was appealed; the appeal hearings began on 30 May 2008 and, to the best of our knowledge, they are ongoing; however, in November Baiburin was extradited to Kazakhstan immediately following his release from prison.
Even more dramatic is the ongoing case of Islam as It Is (Islam kak on est') website associated with a mosque in Samara and now facing closure under charges of extremism for having once published (just as several other websites did) an article suggesting that Muslims should not celebrate Nowruz. The court addressed this purely theological issue with administrative sanctions, finding in March 2008 that the entire website constituted extremist material. The defendants successfully appealed, and the decision was finally revoked on 14 April 2009. Nevertheless, access to the website remains blocked, amidst misleading statements by the regional FSB office alleging that the website has been closed following an effective judgment.
Persecution of other religious groups
Following a series of failed attempts to liquidate religious organizations on formal grounds, [13] in 2008 we observed a pattern of anti-extremist persecution targeting certain faith groups depicted by the mass media as "sects'.
Jehovah's Witnesses were targeted in particular. In May 2008 in Sverdlovsk region they faced an anti-extremist warning, which they challenged in court but lost (and eventually won in March 2009). In the same region in June, criminal charges were brought under article 282 of the Criminal Code, and the prosecutor's office asked the court to find evidence of extremism in the group's magazines - Watchtower, Awake! , and Draw Close to Jehovah. On that occasion the court rejected the suit, but in March 2009 the prosecutor's office made another attempt. In July, proceedings to liquidate a Jehovah's Witnesses community began in Taganrog, relying on two unchallenged anti-extremist warnings issued in late 2007.
Increasingly, arbitrary administrative rulings against "alien religions' are presented as "efforts to fight extremism'. For example, anti-extremist warnings were issued to a few property owners for intending to allow Jehovah's Witnesses to hold prayers on their premises. The prosecutor's office of Bashkortostan offered the following reasoning: "The non-traditional for Russia teaching of Jehovah's Witnesses was founded in the late 70s in the US, and according to traditional Christian believers, it is a sect.' [14]
Jehovah's Witnesses were not the only target of anti-extremist pressure. Baptists in Moscow received a warning about alleged extremist activity - a faith community which has never been considered a threat to public security before.
The case of Penza recluses and their leader Petr Kuznetsov also ended in anti-extremist prosecution. [15]
On 30 April 2008, the Bekovskii District Court in Penza region banned five books by Petr Kuznetsov for extremism. The prosecution experts found that the books contained "overt and covert propaganda of religious, ethnic hatred, overt and covert propaganda of violence'. Moreover, the prosecutors claimed that the content of the books in question "may elicit negative emotions, affect one's mental state, trigger various behavioral reactions, and in special circumstances may provoke aggressive, agitated, and immoral conduct.' Not having read the books, we cannot judge whether the finding of extremism was appropriate, but the prosecutorial statement raises doubts, since the wording about "covert propaganda' and potential effects on one's mental state, behavior and morals appears too vague and remote from the legal definition of extremism, particularly since we are dealing with a religious text.
Petr Kuznetsov was convicted a few months later under article 282 of the Criminal Code and referred for compulsory psychiatric treatment.
Mainstream Orthodox groups have not escaped anti-extremist pressure. In October 2008, the local FSB Office in Samara region attempted to prosecute Iurii Maksimov, owner of the Orthodoxy and Islam website, under article 282-1 of the Criminal Code; they forwarded the case file to Moscow (the website's official location), but the Moscow authorities refused to prosecute. [16] The website is devoted to theological polemics with Islam from an Orthodox Christian perspective. The FSB Office in Samara was concerned about a text entitled Muhammad's False Piety (Mnimoe blagochestie Mukhammeda), written by Orthodox Christian missionary Aleksandr Miropolskii at the turn of the twentieth century. Even though investigators in Moscow failed to find any problems with the publication, the owner temporarily blocked access to the website, while the FSB Office in Samara region misleadingly announced that the website was "suppressed following a duly adopted judgment'.
At the end of 2008, it was reported that the authorities in Krasnodar region banned four texts by Falun Gong on finding them extremist; these included: the Russian translation of a treatise about Falun Gong beliefs and practices; two newsletters, and the Russian translation of a report by Canadian human rights investigators about organ harvesting from Falun Gong practitioners in China. The ban relied on an expert opinion stating that the materials in question "contained statements eliciting animosity and hatred against people who do not belong to this religious association, proclaiming the exclusivity and superiority of Falun Gong followers and the inferiority of all other people based on the fact that they do not belong to the said religious association, and statements inciting hostile actions against the official government of China,' and on a psychologist's opinion that "citizens without specialist knowledge of religion, history, culture and art, may perceive the symbols and attributes used in their book and information leaflets as similar to Nazi symbols and attributes (without prior acquaintance with the text and its meaning). '
We find that neither a statement of the superiority of one's own religion, nor hostile pronouncements against the Chinese authorities, nor even the possibility that an ignorant reader - "without prior acquaintance with the text' - might misinterpret the traditional solar symbols used by Falun Dafa, warrant blacklisting the said materials for extremism. Besides, repressive practices against Muslim groups reveal that the banning of texts may lead to further persecution of Falun Gong practitioners in Russia.
Prosecution for "offending the religious sentiments of believers'
Alongside unfairly persecuted members of religious groups, non-religious organizations and activists come under pressure for more or less explicit criticism of religious beliefs.
In May 2008, co-organizers of the Banned Art 2006 exhibition - prominent human rights defender Iurii Samodurov and equally prominent art critic Andrei Erofeev - faced charges for incitement to religious and ethnic hatred. [17] It is clear from the charges that both are accused of blasphemy against Christian symbols. Their trial began in the summer of 2008; in autumn the proceedings were suspended due to Erofeev's illness, and were resumed in February 2009.
Yet more scandalous was an attempt to close the 2x2 TV channel which broadcasts animated films, mostly for adults. The channel has been criticized on numerous occasions by various religious organizations for "immoral' content, and we do not question the right of religious leaders to voice such criticism. However, "anti-extremist' attacks against the channel launched in March 2008 were quite effective, and dangerous for both freedom of expression and freedom of conscience. As the TV channel was applying to renew its broadcasting license, members of the Russian Union of Evangelical Christians (Pentecostals - Rossiiskii obedinennyi soiuz khristian very evangel'skoi, ROSHVE), complained that "by broadcasting animated cartoons around the clock, the TV channel massively bombards the minds of children with an ideology of immorality and vice, ruthlessness and cruelty; they propagate homosexuality, religious hatred and intolerance.' Soon the Pentecostals were joined in their protests by members of Jewish and Muslim religious organizations, and some Orthodox Christian activists (but not by Russian Orthodox Church officials). By September, ROSHVE and some other religious figures formally appealed to the Investigation Committee of the Prosecutor General's Office urging them to close the 2x2 TV Channel and to open a criminal investigation against the broadcasters, in particular for the showing of South Park episodes. Shortly afterwards, Liudmila Steben'kova, member of the Moscow City Duma, demanded that the Prosecutor General revoke the channel's broadcasting license for screening yet another animation - Popetown - wherein the Duma member perceived "extremism' and "religious hatred'.
On 8 September 2008, the Basmannyi prosecutor's office in Moscow warned the channel against televising a Cartoon Wars episode of South Park; the absurdity of the warning was emphasized by the fact that the episode, in a humorous manner, addresses political correctness towards religion - specifically, whether it is acceptable to portray the prophet Muhammad in a cartoon - and the cartoon characters' behavior is quite appropriate and politically correct. The TV channel challenged the warning in court; no proceedings have taken place yet, but since the channel's broadcasting license was renewed on 16 October, the campaign against them has dwindled.
Many demands to prosecute people for "offending religious sentiments' are simply ridiculous; for example, a group of Orthodox Christians found incitement to hatred in a comment made by TV producer Ivan Dykhovichnyi: he said "How dumb all those priests are!' about Orthodox priests blessing bomber aircraft.
Nevertheless, such complaints persist and multiply, wasting law enforcement resources and creating problems for individuals and organizations whose intentions are totally free from religious hatred. For example, a group of believers insisted on the criminal prosecution of Natalia Ischenko, website editor of the New Business (Novoe Delo) paper in Nizhnii Novgorod, for her article "Christ's Beloved', published under the pen name Natalia Volgina on 4 January 2008 - shortly before Orthodox Christmas - and containing a popular account of a few religious, historical and artistic sources mentioning Mary Magdalene, from the canonical Bible and apocryphal Gospels to Dan Brown. An investigation was launched in response to the believers' complaint, involving experts in linguistics and religion.
PERSECUTION FOR CRITICISM OF LAW ENFORCEMENT AUTHORITIES
The most notable anti-extremist attacks against freedom of expression, affecting private individuals and groups as well as the mass media, occur in response to criticism of the law enforcement agencies.
This abusive practice assumes particularly dangerous forms whenever uniformed forces or top officials in the North Caucasus are criticized. [18] Such "anti-extremist' harassment usually targets people who criticize police or bureaucrats for practices which are likely to provoke, rather than mitigate extremist and terrorist activity. The bureaucrats then bring charges against the critics for "libelous allegations of extremist activity' - which is an extremist crime per se under the current version of the law. Usually, they do not sue their critics for libel under the defamation law, but even if they do, the "anti-extremist' prosecution often precedes a judicial finding of libel (we described this practice in our previous report).
Persecution of mass media
The case of Ingushetia.Ru was the most dramatic story of the persecution of a mass media outlet in 2008. The first attempt to close the website - which opposed the then political leadership of the republic - was made in March 2008; the prosecutor's office of Ingushetia asked the Russian Supreme Court to close the website on the grounds that a criminal investigation under article 282 of the Criminal Code had been opened into one of the website's publications. But the Russian Supreme Court refused to prosecute.
In another attack against the website, on 3 April the Nazran Court found evidence of extremism in an interview with prominent Ingush opposition leader Musa Keligov - even though Ingushetia.Ru had reprinted the interview from News Time (Vremia Novostei) [19] and the latter had experienced no problems as a result of this publication. On 10 April, the same court found evidence of extremism in some other materials published on the website (we do not know exactly which materials).
There was clearly nothing illegal in Keligov's interview; it should be acknowledged, however, that certain publications on Ingushetia.Ru did contain xenophobic statements, particularly against Ossetians, [20] so we do not rule out the possibility that the judgment of 10 April may have been well-founded.
In May, Kuntsevskii Court in Moscow opened proceedings against the website based on the two judgments delivered in April. The website editors were accused of incitement against the authorities and xenophobia. [21] The former charge at least was ill-founded: the website had never incited anyone to riots or violence. Its authors' strong opposition to President Zyazikov and their efforts to organize mass protests were not the same as extremist activity, even if individual participants of such protests may have done something illegal. [22]
On 6 June 2008, Kuntsevskii Court in Moscow ordered the closure of Ingushetia.Ru, and the judgment came into force after an unsuccessful appeal in Moscow City Court on 12 August. Moreover, even the domain name was confiscated for the first time that we know of in anti-extremist jurisprudence.
Since Magomed Evloev, the website owner, was killed by Ingush police in Nazran on 31 August, pressure against the website has subsided; on 4 September the judgment finding Keligov's interview extremist was quashed, the website was reopened as Ingushetia.Org, and, to the best of our knowledge, has been left alone.
Two papers in Dagestan, Rough draft (Chernovik) and Action Time (Vremia Deistvyi), came under massive pressure in 2008.
In September, two articles in Action Time criticizing police and FSB practices in Dagestan first came under scrutiny. In December, the Federal Service for the Supervision of Communications, Information Technology and Mass Communications (Rossviaz'komnadzor) confirmed (wrongly, in our opinion) that the articles contained "evidence of incitement to extremist activity and interethnic hatred'. Further proceedings appear to have been suspended after the reviewing experts declared that they had not drawn any categorically negative conclusions about the articles.
The editors of Rough draft received an "anti-extremist' warning in July, and in August editor-in-chief Nadira Isaeva faced criminal charges under part 2, article 280 and part 1, article 282 of the Criminal Code. While the reason for prosecution appears to be their criticism of police brutality in dealing with the Islamic underground, formally the charges referred to the fact that they had quoted a leader of rebel fighters, alongside other testimonies, to illustrate the problems of terrorism and anti-terrorism in the region. (The investigation was completed in February 2009, and formal charges were finally brought under part 2, article 282 against Isaeva and part 1, article 282 against four reporters. They were charged with incitement of animosity "between members of Russia's main ethnos and ethnicities of the Caucasus,' and hatred against law enforcement officers.)
Persecution of private individuals and organizations
Similarly, private individuals and organizations often come under pressure for criticism of the law enforcement and other authorities.
In 2008, Savva Terent'ev, a blogger from Syktyvkar, was sentenced to one year's probation for having posted an aggressive comment about the police on a private blog discussing police abuse in 2007. In his case, the court established that the police are a distinct social group. We have argued on many occasions against this interpretation, as the status of "social group' entitles them to special protection under criminal law. Moreover, Terent'ev's single comment presented no public danger, because his audience was originally very limited (that is, until his high-profile prosecution and trial).
Since then, the authorities have continued to persecute people for postings on their blogs. As opposed to the Terent'ev case where political motives were not apparent, the criminal prosecution of Dmitrii Solov'ev - an activist of the opposition movement Oborona - for a few critical comments about police and security agents was clearly political.
Proceedings against two North Caucasus NGOs continued beyond 2008: the Council of Balkar Elders is being persecuted for their criticism of Kabardino-Balkarian President Arsen Kanokov, in particular of his anti-terrorist practices, and the Voice of Beslan (Golos Beslana) is under pressure for the publication of an open letter in 2005 denouncing the federal authorities for indirectly aiding the terrorists by inaction and inadequate investigation of the Beslan tragedy. [23]
The trial of the Voice of Beslan began on 21 March 2008, but came to a standstill because the organization had split by the time of the trial and the new leaders had not been formally involved in the alleged offense. The plaintiffs' prospects in this case are not particularly bright: an independent linguistic review requested by the North Ossetia law enforcement authorities failed to find any evidence of extremism in the text.
Similarly, the Council of Elders case is currently stalled: in March 2008, the Federal Supreme Court quashed the order of the Kabardino-Balkaria Court to liquidate the group, and sent the case back to be reconsidered. A new trial began on 12 May; no judgment has been passed yet. The group, however, is suspended from operation and it is at the moment the only NGO on the Ministry of Justice's "List of nongovernmental and religious organizations suspended for extremist activity.' [24] By law, an organization may be suspended for a maximum of six months. We are not sure whether their suspension has been formally extended by the courts or whether they have not been taken off the list due to a technical error.
Persecution for quotations
Pressure against mass media outlets for quoting certain people in their reports began in 2007 and increased in 2008.
The most unusual case was a warning issued by Rossviaz'komnadzor to the newspaper Novaia Gazeta v Peterburge just a few hours (!) after the publication of an article entitled "Summer Camps for Genatsvale' expressing indignation at the intention of the Movement against Illegal Immigration (DPNI) to conduct raids to expose Georgians living in Russia. The article quoted a DPNI activist, and the paper was warned against quoting the xenophobic statement. Ironically, the law enforcement authorities ignored the DPNI's xenophobic actions.
This example is one of many, [25] where vaguely written policies combined with a large-scale anti-extremist campaign hinder the discussion of xenophobia and discrimination in the mass media.
The newspaper editors challenged the warning in a commercial court [court of arbitration], but the case was referred to a general jurisdiction court, even though most warnings issued to mass media go before the commercial courts. By the time the paper was referred to another court, they had missed the deadline for appeal and found themselves in a legal impasse. The newspaper editors challenged the denial of jurisdiction in a higher commercial court and won the appeal on 16 March 2009, so a commercial court still has to review the legitimacy of the warning.
The above-mentioned Rough draft newspaper in Dagestan is now being persecuted for quoting a rebel leader, and Russian Newsweek has been warned for reprinting one of the Danish Muhammad cartoons to illustrate a story of past events.
THE EXPANSION OF ANTI-EXTREMIST ENFORCEMENT
It is hardly possible to determine the total number of cases of inappropriate anti-extremist enforcement. The statistics of relevant government departments, particularly the prosecutors' offices, are non-transparent. However, we can say by looking at indirect evidence that the practice is expanding, at least in some areas.
For example, large-scale confiscations of promotional materials shortly before the events they are printed for, on the pretext of checking them for extremism, persists and affects both left-wing (Za Rabochuiu Vlast!, Marksistskaia Gazeta, and Chto Delat'? in St. Petersburg) [26] and extreme right-wing publications alike (the Moscow authorities confiscated most of the DPNI's stickers prepared for the Russian March 2008).
Serious concerns have been expressed over the Supreme Court ruling of 11 September 2008 on the appeal of the Union of Right-Wing Forces (Soiuz pravykh sil, SPS) challenging the outcome of elections to the State Duma and mentioning specifically the confiscation of campaign materials on suspicion of extremism. The Supreme Court effectively upheld - without stating it directly - the practice of such confiscations even in the absence of official review findings or any involvement in extremist activity criminal cases.
Yet another abusive practice - the removal of candidates from elections on the pretext of their extremism - is less visible than before, but it still exists. On 17 March 2008 in Saratov, the district election commission annulled the registration of Communist Party candidate Sergei Mikhailov, editor-in-chief of the Saratov Reporter (Saratovskii reporter), on grounds that he had lost his right to be elected after being issued a warning for the dissemination of extremist materials. They referred to articles which had triggered warnings against the newspaper back in 2007. We consider both warnings unfounded, and one of them, related to a widely reported case of an illustration featuring Vladimir Putin as Schtirlitz, was eventually lifted. [27] However, regardless of the assessment of the publications in question, the law did not permit Mikhailov's removal from the elections, since he was not the author of the articles. Indeed, a court overruled the decision of the election committee on 24 April - after the election campaign.
In 2008, we observed more cases under article 282-2 of the Criminal Code (participation in a banned organization). So far, only Hizb ut-Tahrir members have been convicted under this article without additional charges, but other groups have been targeted as well.
We do not consider article 282-2 harmful or unfair, but we believe that its enforcement should be conditional upon evidence of public danger associated with the banned organization, proven and established by a competent court. It is not known exactly why Hizb ut-Tahrir was banned by the Supreme Court. In contrast, evidence of public danger in the Omsk Inglings case (banned in 2004) and in the Tatarstan RNE case (banned in 2003) was sufficient (RNE members convicted under article 282-2 in 2008 also faced charges for violent crimes). Even though it was clear by April 2008 that the ban of the National Bolshevik Party (Natsional-bol'shevistskaia partiia, NBP) was ill-founded, [28] the Supreme Court refused to reconsider the case on 1 April 2008. Thus, the current ban of the NBP is based on one judicial error and two opinions of the prosecutor's office, neither of which has been upheld in criminal proceedings.
At least five criminal cases were opened against NBP activists under article 282-2 in 2008; in all cases it supplemented other charges brought against the activists for participation in actions for which the punishment could not be particularly severe - for refusing to pay in a restaurant to protest against rising prices, for example. In 2008, both sentences delivered in such cases were probationary; however, in March 2009 for the first time offenders were sentenced to real prison terms under 282-2 in Khabarovsk and Moscow.
The federal list of banned extremist materials
We have often mentioned the numerous problems with the federal blacklist of extremist materials. [29] Not only is the list poorly designed and drafted, it is also arbitrarily enforced.
The arbitrariness is partly related to the vague definition of extremism. As a result, the authorities have banned certain historical sources, such as (admittedly xenophobic) books written in the early twentieth century, writings by contemporary radical political leaders, religious texts and even history studies. For example, in 2008 they banned the book Slavery or Freedom (Kabala ili Svoboda), written in early twentieth century by antisemite Georgii Butmi; books by Petr Kuznetsov, leader of the Penza recluses (see above); and Ayatollah Khomeini's Legacy. [30] They even tried to ban Hitler's biography by Joachim Fest. The bans hinder research in many humanities subjects.
Even though courts usually rely on the findings of certain academic experts, this fact alone rarely ensures good judgment. Firstly, according to the Criminal Procedure Code, judges cannot and should not rely on experts to make a legal assessment of the case, and should not ask experts such questions, although they often do. Secondly, the expert opinion in many cases is not supported by evidence, so the judge is supposed to trust the expert's words. Thirdly, in many cases, experts called to testify in court do not have adequate expertise to deal with the evidence in question.
Following protests from Muslim believers and human rights defenders, the problem was acknowledged by the Presidential Administration. Proposals have been made to clarify criteria for blacklisting Islamic books and to set up a Muslim expert panel to establish whether certain books contain evidence of extremism. However, there has been no follow up, [31] and in any case setting up a Muslim panel would have been unfair and selective, given that the blacklisted texts are diverse. If the authorities insist on using the controversial blacklist, it would be logical to limit potential harm by clarifying criteria for banning certain materials, setting up an appeal procedure, adopting rules for bibliographical details to be included with the banned title, providing a procedure for accessing banned materials, etc.
Unfair persecution of hate campaigners
Unfounded anti-extremist pressure against groups and individuals who are otherwise involved in illegal activity (such as xenophobic propaganda), but have done nothing wrong in the case they get punished for, is particularly disorienting. This problem can be illustrated by the authorities' first attempt to close the newspaper Duel. In February 2008 the paper successfully appealed the order of its liquidation following two unfounded warnings from the Federal Service for the Supervision of Mass Media, Communications and the Preservation of Cultural Heritage (Rossviaz'okhrankul'tura) . [32] However, the paper eventually received new warnings (which we find to be appropriate) and was closed anyway. The problem is that the material entitled "Your Vote - Your Judgment', which triggered the first warnings, was blacklisted as extremist in 2008 (in our opinion, for no good reason).
Perhaps the most illustrative example was the persecution of the newspaper New Petersburg (Novyi Peterburg). Even though the paper had consistently engaged in xenophobic propaganda and triggered numerous public complaints to the police, the authorities failed to respond - that is, until the paper supported the Dissenters' Marches. A series of warnings were issued to the paper within a short period; the paper was suspended from publication, and in February 2008 a court ordered its closure. The management of the paper attempted an appeal, but failed: on 13 May, the Supreme Court upheld the verdict. Two articles were considered in the proceedings against the paper - "Why We Will Join the Dissenters' March on 25 November' by its editor Nikolai Andruschenko and "Here Is the Real Candidate' by Konstantin Cherniaev. Clearly, neither of the texts could be described as extremist; similarly, the label of extremism did not fit yet another text targeted by an official warning: "Time to Buy Weapons. How Putin's Oprichniks Kill Souls and Faith', also by Andruschenko.
Andruschenko faced charges under article 280 of the Criminal Code for publishing four of his articles in the paper (including both of the above), but again, the charges were clearly unfounded. [33]
After lengthy proceedings and numerous appeals to the Supreme Court, the paper won the case in January 2009. Rossviaz'okhrankul'tura's warnings issued for Andruschenko's two articles were quashed, alongside the pursuant judicial order to close the paper. In the meantime, no issues of the paper were published pending the final judgment.
The case against New Petersburg was also used to harass human rights advocates who had nothing to do with the paper. On 4 December 2008, the Memorial Society's office in St. Petersburg was searched - allegedly to investigate their involvement with extremists (specifically, with New Petersburg). At the time of writing, the organization is challenging the legality of the search. Meanwhile, a Russian diplomat made a public statement to an international forum alleging that Memorial was financing extremist activity. The organization received no subsequent explanations, let alone apologies, from the official.
Absurd enforcement
Growing rates of anti-extremist pressure result in numerous administrative absurdities, due primarily to a lack of clear legal definitions. Below are just a few examples.
On 12 February 2008, the Perm newpaper For the Individual (Za Cheloveka) was warned for publishing an article entitled "Putin: Our Good Hitler' by civil society activist Igor Averkiev. The text of the article was reviewed for potential violation of articles 280 and 282 of the Criminal Code. Averkiev avoided criminal prosecution, but the warning was not lifted.
In August, authorities in Sverdlovsk region banned the campaign video of a candidate running against a United Russia Party representative in the local elections. They claimed that the video contained evidence of extremism; in particular that it showed an actor saying, "A man with a full belly thinks no one is hungry.' The court found incitement to social hatred between rich and poor.
Even more absurd was a warning issued to a multimedia store in St. Petersburg for selling Zone 88 Japanese anime films; the prosecutor's office perceived the combination of a cross (which did not resemble a Nazi swastika at all) and the 88 number in the title as promotion of neo-Nazi skinheads.
Such incidents negatively affect the targets of administrative pressure who may suffer damage to their reputation as well as financial losses. Moreover, they undermine the reputation and credibility of the law enforcement authorities.
In an embarrassing and widely discussed case in the spring of 2008, the Novosibirsk regional prosecutor's office issued an anti-extremism warning to Viacheslav Verevochkin, a reconstructor of military vehicles and technology. A mock fight between the Soviet T-34 and the Nazi "Prague' tanks was staged in a village of Novosibirsk region, reenacting a scene from WWII history. Both tanks were manned by people wearing appropriate historical costumes and symbols; the Nazi tank bore a white cross - the latter triggered the prosecutorial warning. It appears that the prosecutor's office did not only mistake the Wehrmacht cross for a Nazi symbol, but issued a warning which failed to take into account the context of its use. The story was reported by the mass media as an absurdity of anti-extremist enforcement, but the regional prosecutor's office insisted on the warning, rather than admit their mistake. [34]
Apparently, some right-wing radical activists known to the prosecutor's office were involved in the mock fight, but the prosecutors should have picked a better occasion to suppress their unlawful conduct - by failing to do so, they undermined their own (otherwise quite impressive) achievements in this area, as well as the legitimacy of law enforcement measures.
Prosecutors are responsible for the prevention, as well as the suppression, of extremist activity. Such prevention mainly takes the form of official warnings sent out in huge numbers to various organizations. This type of prosecutorial response is on the rise: from 12,000 warnings in 2007 to 29,000 in the nine month period between January and September 2008. Far from all of these warnings are intended to suppress extremism - even in the broader sense established in the law. In Kaliningrad region, an anti-extremist warning was issued following a suspected violation of immigration rules ( "notification forms completed by the inviting party to notify authorities of the arrival of foreign nationals are not adequately checked to make sure that the forms are completed in the required manner'); the authorities in Voronezh region have used anti-extremism as a pretext to require reports from libraries on compliance with the legal deposit legislation, [35] while the prosecutors in Tula region have reported on their fight against extremism by referring to measures taken against the local administration and the family of a child who did not attend school on religious grounds.
The above anti-extremist absurdities have little to do with politics; rather, they are caused by a lack of clarity in the law and pursuant executive orders, as well as the professional incompetence of certain bureaucrats. Pressure from central government to step up the fight against extremism causes subordinate officials to imitate activity, e.g. by sending out warnings to libraries for the possession and alleged issue of blacklisted extremist materials. This situation highlights a legal conflict between the Law on Libraries whereby a library must issue any material available to it, and the Law on Combating Extremist Activity prohibiting the issue of blacklisted materials. It is highly improbable that public prosecutors are unaware of the conflict.
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[1] Note that here, as in our other reports, the SOVA Center does not analyze the situation in the North Caucasus, except in cases directly relevant to the freedom of expression in terms of general law enforcement practices. Other practices of unlawful enforcement of anti-extremist legislation in the North Caucasus are monitored and analyzed by the Memorial Center, the Caucasus Knot (Kavkazskii Uzel) website, and by international human rights organizations consistently working in the region.
[2] Alexander Verkhovsky, "Anti-Extremist Legislation, its Use and Misuse', in Xenophobia, Freedom of Conscience and Anti-Extremism in Russia in 2007, (Moscow: SOVA Center, 2008), pp. 45-79.
[3] These included reasonable proposals to establish a procedure for publishing and updating the official blacklists of extremist materials and organizations, to require the publication of names of mass media outlets and legal entities formally warned against extremism, etc.
[4] The fact that prosecutors find it difficult to prove the "hostility' of certain activities was given as a reason for the need to introduce a detailed description of "hostile' activity to the Criminal Code.
[5] In May 2008, another law was adopted to establish the functions of the Federal Registration Service (Rosregistration, henceforth FRS). It was strictly technical and became obsolete a week after its adoption. See details in: Galina Kozhevnikova. Radical nationalism in Russia in 2008, and efforts to counteract it // SOVA Center. Nationalism and Xenophobia. 15 April 2009 (/en/xenophobia/reports-analyses/2009/04/d15763/).
[6] See details Op. cit.
[7] Besides PFD and Chelyabinsk region, the FSB officials mentioned Kurgan region and the Republic of Udmurtia, but we could not uncover any details of the trials held there in 2008.
[8] This relates to Hizb ut-Tahrir and Tablighi Jamaat, but not the Islamic Party of Turkestan.
[9] See details of this important legal aspect of the problem in: Elena Riabinina, "Soglasheniia Shankhaiskoi Organizatsii Sotrudnichestva, kak "pravovaia" osnova dlia ekstraditsii politicheskikh bezhentsev', in Prava cheloveka v Rossii, 2 September 2008 (http://hro1.org/node/2933).
[10] We should remember, however, that al-Qaeda in its entirety was banned in Russia in 2003. See the most complete, updated list of banned organizations in: "Spisok organizatsii, priznannykh rossiiskimi sudami ekstremistskimi', Natsionalizm i ksenofobiia, SOVA Center website, (/racism-xenophobia/docs/2007/11/d11927/).
[11] This happened a few years ago to a member of Hizb ut-Tahrir who was charged with a criminal offense and sentenced upon requesting a copy of the Supreme Court ruling which banned Hizb ut-Tahrir.
[12] S. Baiburin, imam of a mosque in Ufa, was arrested in Ufa in May 2007, initially for alleged possession of explosives and drug dealing (both explosives and drugs had clearly been planted in his car shortly before the arrest). Later, he was charged under article 280, while the former charges were dropped.
[13] To remind the reader, in 2006-2007 the ECHR delivered judgments against Russia concerning the following groups: the Salvation Army, the Church of Scientology, and the Christ's Grace Church of Evangelical Christians.
[14]"Provedena proverka sobliudeniia zakonodatel'stva o federal'noi bezopasnosti i protivodeistvii ekstremizmu', available on the official website of the Prosecutor's Office of the Republic of Bashkortostan, 25 August 2008, (http://www.bashprok.ru/news/4032.html).
[15] To remind the reader, in the autumn of 2007, a group of Orthodox Christian believers voluntarily barricaded themselves in a cave awaiting the end of the world. In April 2008, the threat of the cave's collapse made them come out. Two women died during the voluntary confinement.
[16] In May, the prosecutor's office in Moscow denied some Muslim activists their request to open a criminal investigation under article 282 of the Criminal Code against Orthodox priest Daniil Sysoev who engaged in active proselytism among Muslims and was strongly critical of Islam.
[17] To remind the reader, the museum hosted an exhibition of art objects which had been censored out of other art displays in 2006. Orthodox activists deemed the exhibition to be "an anti-Christian provocation', as some of the exhibits on display contained distorted images of sacred objects. See details of the initial stage of prosecution in: Alexander Verkhovsky, Olga Sibireva, "Restrictions and Challenges in 2007 on Freedom of Conscience in Russia' in Xenophobia, Freedom of Conscience and Anti-Extremism in Russia in 2007 (Moscow: SOVA Center, 2008), p. 101.
[18] It should be noted that persecution is not limited to mass media based in the North Caucasus; in October, Arsen'evskie Vesti paper in the Far East received a warning following publication of an appeal by members of the Ingush opposition.
[19]"Poriadok v respublike dolzhny navodit' sami ingushi', Vremia Novostei, 11 February 2008. The text is still accessible via the paper's website (http: //www.Vremia.ru/2008/20/4/197273.html).
[20] Aleksei Batayev, "Etnicheskaia ksenofobiia v internete: sluchai saita INGUSHETIYA.RU', Charta Caucasica, 2 April 2008 (http://caucasica.org/analytics/detail.php?ID=1227).
[21] Xenophobia is also mentioned in the above criminal case under article 282. It is arguable whether xenophobic remarks are serious enough to warrant closure of the website, let alone bring criminal charges against anyone. Perhaps this issue should be addressed with regard to the overall climate of ethnic intolerance in the region,
[22] See details of these events in Ingushetia in: ":Oni kak budto upali s neba!; Kontrterrorizm, narusheniia prava cheloveka i beznakazannost' v Ingushetii', a report by Human Rights Watch, June 2008, pp. 87-103.
[23] See details in A. Verkhovsky, Op. cit., pp. 66-67.
[24] Perechen' obshchestvennykh i religioznykh obedinenii, deiatel'nost' kotorykh priostanovlena v sviazi s osushchestvleniem imi ekstremistskoi deiatel'nosti, available on the Ministry of Justice website (http://www.minjust.ru/ru/activity/nko/perechen2).
[25] A year earlier, Izvestia received a similar warning for an article about discriminatory practices in Yakutia.
[26] The confiscation occurred in late August 2008.
[27] See details in A. Verkhovsky, Op. cit., p. 71.
[28] To remind the reader, the judicial ban of the party relied on three earlier episodes. One of them was a judicial mistake: even though activists of NBP's Chelyabinsk chapter were found guilty under article 282, the National Bolshevik Party had not only denounced the offenders and their statements prior to their trial, but had expelled them from the party for the same texts which eventually caused the activists to be tried and convicted. By the time of the ban, no judgment had been delivered in two other cases (in which party members were tried for scattering leaflets in the Legislative Assembly of St. Petersburg and for grabbing the ballot box from the election officer in Odintsovo). On 28 November 2007, the incident in St. Petersburg was resolved in a peaceful settlement, which prompted the NBP to apply for a reversal of the ban. On 26 March 2008, the Odintsovo ballot box case was heard and the offender was convicted for misdemeanor, which did not however involve charges of extremism.
[29] See: G. Kozhevnikova. Op. cit.
[30] Found extremist by Gorodischenskii District Court, Penza region, on 21 February 2008.
[31] Members of a recently updated advisory panel, set up by the Ministry of Justice and operating since April 2009 under a new set of rules, do not review contended texts - the panel chaired by Alexander Dvorkin cannot be expected to provide an adequate expert opinion anyway.
[32] See details in A. Verkhovsky, Op. cit., p. 72.
[33] See details in: "V Sankt-Peterburge nachalsia sud po delu zhurnalista Nikolaia Andrushchenko', Natsionalizm i ksenofobiia, SOVA Center website, 20 May - 3 July 2008 (/misuse/news/persecution/2008/05/d13377/).
[34] On 19 June 2008, Sergei Shmonin, a participant in this mock combat, was fined 900 rubles for the display of Nazi symbols.
[35] Publishers are required to provide copies of every publication to designated legal deposit libraries.
Translated by I. Savelieva