Problems of application of legislation on countering extremism

We bring to your attention an article by Aidar Sultanov [1] , first published in the journal "Russian Justice" No. 9, 2010. Published with the consent of the author.

"... there are three sources of injustice: obvious violence, malicious trapping in the network under the pretext of the law and the cruelty of the law itself.

Francis Bacon "Great Restoration of Sciences. New Organon" [2] .

For a long time, there was no legal term "extremism" in Russian law. Attempts to use it without disclosure in the text of the law at one time were suppressed by the Constitutional Court of the Russian Federation, which, checking the constitutionality of the Decree of the President of the Russian Federation of October 28, 1992 "On measures to protect of the constitutional system of the Russian Federation" decided: "To recognize not having legal significance, the concept contained in this paragraph of the Decree "extremist elements" because it has no specific legal content, which may, when applying the Decree, lead to a violation constitutional rights of citizens" (Decree of the Constitutional Court of the Russian Federation dated February 12, 1993 N 3-P).

The definition given in the dictionaries of extremism as "commitment to extreme views and measures [3] , was not legal, generative legal liability or any legal consequences.

For the first time the concept of "extremism" in Russian law as legal term arose in connection with the signing and ratification of the Shanghai Convention of June 15, 2001 "On the fight against terrorism, separatism and extremism". According to this Convention, extremism is defined as "any act aimed at the violent seizure of power or forcible retention of power, as well as forcible change constitutional order of the state, as well as violent encroachment on public safety, including the organization for the above purposes illegal armed groups or participation in them.

In the later adopted federal law of July 25, 2002 N 114-FZ "On countering extremist activity" under the extremist activity (extremism), a broader concept was given, which included themselves, including incitement to racial, national or religious discord, as well as social discord associated with violence or calls for violence , as well as propaganda of exclusivity, superiority or inferiority of citizens on the basis of their attitude to religion, social, race, nationality, religion or language; violation rights, freedoms and legitimate interests of a person and a citizen, depending on his social, racial, national, religious or linguistic affiliation or relationship to religion.

The Human Rights Committee, acting under International Covenant on Civil and Political Rights, Having considered the fifth periodic report of the Russian Federation (CCPR/C/RUS/2002/5), adopted on November 6, 2003 "Concluding Observations of the Human Rights Committee of the United Nations according to the report of the Russian Federation". In paragraph 20 of these comments The Committee, while welcoming the efforts of the State party to prohibit and persecution of groups spreading racist and xenophobic views, however however, expressed concern that the definition of "extremist activities" in the federal law of July 2002 "On countering extremist activities" is too vague and does not protect citizens and organization from the risk of its arbitrary interpretation. The committee recommended revise this law in order to make the concept of "extremist activities" to exclude any possibility of arbitrary interpretation, and notify stakeholders of exactly what actions they will be be subject to criminal liability.

Changes were made, but in the Federal Law of July 27, 2006 N 148-FZ the concept of extremism was expanded: when defined as an extremist activity "incitement of racial, national or religious hatred, and also social discord" was removed "associated with violence or calls for violence."

It should be noted that such a change was regarded as a threat to religious minorities and there were grounds for these fears. For example, Deputy Prosecutor General of the Russian Federation considering the problem of extremism came to the conclusion that "religious extremism has a dogmatic basis, since each religion seeks to establish its own absolute and the comprehensive nature and falsity of other religious teachings [4] .

Indeed, believers in almost every denomination claim that it is their religion gives the correct answers to the questions of life and the universe, which, professing only their religion can achieve their goals. But the reason for this is not desire. discriminate against anyone. A man, knowing what helped him, also wants help others and wants to save them from mistakes and delusions. Is it desire can be blamed? Condemned, can only be violent actions and those that call for violence. By definition, extremism is only adherence to extreme views and measures.

But after being out of law "associated with violence or calls for violence", there was a risk that the assertion of the truth of religious teachings may be mistakenly perceived as a manifestation of extremism. Especially, that excluding from the criterion for classifying activities as extremist the facts of conscription to violence and facts of violent actions, there was a threat of being classified as extremist activity not on the basis of facts, but on the basis of subjective opinions.

Thus, there was a threat that the fight against injustice in the form of a fight against obvious violence, can turn into injustice in the form of malicious trapping in the network under the pretext of the law and in injustice due to the cruelty of the law itself.

The introduced Federal Law of July 24, 2007 N 211-FZ provided the prosecutor's office with the opportunity apply to the courts with an application for the recognition of materials as extremist, and the courts began are obliged to consider such cases, however, in a somewhat indefinite procedure, Well, more on that later.

In the meantime, let us express the opinion that due to the fact that a number of terrorist acts caused an instruction from the country's leadership to fight terrorism and extremism, the activity of law enforcement agencies has also increased, which has become necessary report on the work done in the fight against extremism.

At a time when the whole country is outraged by the terrorist attacks and demands the adoption effective measures to prevent threats to life from terrorists, law enforcement bodies, including the prosecutor's office, earn "ticks [5] by fighting "extremists" - religious minorities [6] . Whose "extremism" is only in the fact that they consider their religion to be true. While the Witnesses are persecuted Jehovah, those who do not even accept taking up arms, are real extremists are ignored.

Illegitimately earned "ticks" are a violation human rights and fundamental freedoms. Anti-extremist legislation is becoming as a result, extremist in relation to religious minorities, since its use causes a violation of the rights, freedoms and legitimate interests of a person and citizen, depending on his religious affiliation or attitude to religion (which is one of the manifestations of extremism).

In 2009, the Human Rights Committee considered the sixth periodic report of the Russian Federation (CCPR/C/SR.2681) adopted the final remarks in which he again drew attention to the Federal Law "On countering extremist activity".

Committee, given the many reports that extremism laws are being used against organizations and individuals critical of the government expressed regret that definition of "extremist activity" in the Federal Law "On counteracting extremist activity" vague, allowing an arbitrary approach to its application, as well as in connection with the fact that, as a result of changes made to this Law in 2006, some forms of defamation of public officials are declared acts of extremism.

The Committee was concerned that some of the provisions of article 1 Federal Law "On countering extremist activity" include measures not provided for in the Criminal Code, as well as the extent to which freely interpreted by the courts the definition of "social groups" in article 148 of the Criminal Code and their reference to the opinion of various experts in this respect, ensuring the protection of state bodies and officials from "extremism" (Articles 9 and 19).

The Committee reiterated its previous recommendation (CCPR/CO/79/RUS, paragraph 20) that the State party should review the Federal law "On Counteracting Extremist Activities", in order to make the definition of "extremist activity" more precise and to exclude any possibility of its arbitrary application, and to consider repeal of the 2006 amendment. Moreover, when determining whether the written material is "extremist literature", the State party should take all measures to ensure the independence experts on whose opinions court decisions are based, and guarantee the right of the accused to a counter-examination with the involvement of an alternative expert.

It was also recommended that the concept of "social group" in the form provided for in Article 148 of the Criminal Code, in such a way that it does not include the organs of the state or public officials.

It should be noted that in the form in which it currently exists anti-extremist legislation, it can become a violation not only provisions of the International Covenant on Civil and Political Rights, but also Art. 9 (freedom of conscience) and Art. 10 (freedom of information dissemination) European Convention for the Protection of Human Rights and Fundamental Freedoms. It is unlikely that the European Court of Justice Human Rights (hereinafter referred to as the ECtHR) will come to different conclusions regarding the Russian legislation on countering extremism rather than the Committee on the Rights person. Although the ECtHR deals with specific violations of human rights and freedoms, but when considering a specific case, the ECtHR has the right to consider how conforms to the Convention law or regulation and the practice of their application.

Unfortunately, cases of recognition of religious literature are often are considered behind the scenes, behind closed doors, with an obstacle to participation consideration of cases by believers [7] . There are even cases where cases of recognition of materials as extremist were considered in a special proceeding - a procedure known for being applicable only in the absence of right dispute.

However, the recognition of materials as extremist is a measure applied simultaneously with the prosecution of persons distributing extremist materials (Article 13 of the Federal Law "On countering extremist activity"). The fact that the legislator provided for the possibility consideration of the issue of recognizing materials as extremist, including when the production of a civil case does not at all mean the possibility of considering cases without the participation of the person who distributed the disputed materials, without the possibility providing them with arguments in their defence.

But the most disturbing thing is that the recognition of the material as extremist most often has nothing to do with facts, but is only a fixation in judicial act of a subjective opinion about the material as extremist and giving this subjective opinion the force of a judicial decision.

Therefore, we join the wishes of the Commissioner for Human Rights in the Russian Federation on that, under the ill-founded and unsubstantiated pretext of fighting extremism did not allow interference in the affairs of the beliefs and beliefs of millions citizens, which can provoke real massive violations of their rights to freedom of religion and socio-religious conflicts in our country, and thus the repetition of the practice of prohibitions and persecution against dissidents and dissidents, characteristic of non-democratic, totalitarian states [8] .

[1] Sultanov Aidar Rustemovich, head of the legal department of OAO Nizhnekamskneftekhim, judge of the Energy Arbitration Court, member of the Association for the Improvement of Life and education.

[2] Francis Bacon "The Great restoration of sciences. New Organon" http://www.ruslib.com/FILOSOF/BEKON/nauka2.txt_Piece40.26

[3] Bulyko A.N. "Big Dictionary of foreign words ". M.2008, S. 678; Krysin A.P. "Explanatory dictionary of foreign words", M. 2005, p. 678; Big explanatory dictionary Russian language. Ed. Kuznetsova S.A. St. Petersburg, 2000, p.1518.

[4] Zabarchuk, E. L. Religious extremism as one of the threats to the security of the Russian statehood // Journal of Russian law. - 2008 .- N 6 .- S. 3-10.

[5] "Ticks", "glasses", "sticks" there are a lot of their names in slang, their essence is that the higher authorities note that the lower authorities are working, and not idle, which sometimes causes a desire to find extremism where it does not exist, just to report back and not be worse than others who have found extremists.

[6] For more details see Alexander Verkhovsky Misuse of anti-extremist legislation in Russia in 2009. http://xeno.sova-center.ru/29481C8/E8EC6EA

[7] "Russian newspaper" dated March 14, 2008, http://www.rg.ru/2008/03/14/doklad-dok.html

[8] Will Russian muftis, the Pope and the Secretary General of the OIC declared extremists? Message from V. Lukin on the "Nursi case" http://www.islam.ru/pressclub/islamofobia/lukin/

Sources

"Russian Justice" No. 9, 2010.