The Venice Commission analyzed the Federal Law "On Combating Extremist Activities" of the Russian Federation

On June 20, 2012, the European Commission for Democracy through Law under the Council of Europe (Venice Commission) published its “Opinion” on Federal Law No. 114-FZ “On Combating Extremist Activities”. The document was adopted at the 91st plenary meeting of the commission on June 15–16, 2012.

The Venice Commission supports the efforts of the authorities of the Russian Federation to combat extremism and notes that this struggle must be carried out with strict observance of human rights and the rule of law. However, the wording of the law "On Counteracting Extremist Activity" is too vague and vague, especially in terms of basic concepts such as "extremism", "extremist activity", "extremist organization" and "extremist materials", and leaves too much room for interpretation and law enforcement, which leads to arbitrariness.

The Commission document analyzed various aspects of the definition of "extremist activity". Thus, while in accordance with the Shanghai Convention, the concepts of "extremism", "terrorism" and "separatism" include violence as the main defining element, the authors of the document noted, some types activities defined in the law on combating extremism as "extremist" do not include elements of violence.

At the same time, Opinion reports that the Russian authorities gave them explanations that only “violent change in the foundations of the constitutional order” and “violation of the integrity of Russia” is extremist, that is, non-violent activity of this kind does not fall under the definition of extremist. The Commission emphasizes that the peaceful defense of the right of nations to self-determination and the non-violent movement for the right to establish an autonomous territorial entity are generally not considered crimes, but, on the contrary, are considered as a legitimate expression of human views.

"Public justification of terrorism and other terrorist activities" The Commission proposes to define in accordance with Art. 205.2 of the Russian Criminal Code. Regarding the definition of "inciting social, racial, national or religious discord", the authors of the "Opinions" note that "academic and political discussions and texts, not aimed at inciting hatred do not constitute a criminal offence." However, both definitions included in the current version of the law do not imply a connection with violence or incitement to it, which leads to numerous abuses of anti-extremist legislation.

The wording "propaganda of the exclusivity, superiority or inferiority of a person on the basis of his social, racial, national, religious or linguistic affiliation or attitude to religion", in the opinion of the Venice Commission, allows us to consider any religious teaching aimed at proving the superiority of a certain worldview as extremist. This can lead to restrictions on freedom of conscience and freedom of assembly. It seems that only violent religious extremism should fall under the definition of extremist activity, the authors of the document believe.

The complexity and confusingness of the wording " public knowingly false accusation of a person holding a public office of the Russian Federation or a public position of a constituent entity of the Russian Federation of committing acts by him during the performance of his official duties" is also emphasized, which is in conflict with the established practice of the ECtHR, according to which in relation to officials, active civil servants, other officials and public figures open up a wider field for criticism than in relation to ordinary citizens.

The definition of "extremist materials" is also criticized by the Venice Commission. The vague definition given in the law opens the way for subjectivism, arbitrariness and abuse, she argues, and leads to disproportionate anti-extremist measures.

The definition of "extremist organization" in the law also does not comply with international standards, the authors of the document believe. Legal means of countering extremist activity (warnings and cautions) can only be directed at organizations or their leaders, and a member of an organization or a media employee cannot be punished for the fact of membership in an extremist organization. The special tools provided by law for combating extremism - written warnings and cautions - and the corresponding punitive measures (liquidation and / or ban on the activities of public, religious or other organizations, closure of the media) are in conflict with the PACE recommendations on combating extremism and should be changed accordingly. The Venice Commission pays special attention to the mechanism for issuing warnings and liquidating organizations and the media. The Commission believes that the powers of the prosecutor's office in issuing warnings are too broad. But most importantly, the liquidation of an organization or a media outlet should only be a last resort. And it should always be carried out in a public hearing with the participation of interested parties. The Commission believes that procedural guarantees for the protection of the rights of interested parties should be more clearly spelled out in this law (in the "Opinion" it is indicated that the Russian side reported that such clarifications would be made to the law in the future).
In addition, it is worth noting that the authors of the "Opinion" focused on the wording of Art. 16 of the Law on preventing extremist activity during mass actions. In addition to the difficulties that arise in connection with the definition of "extremist activity" described above, this article imposes on the organizers of assemblies the obligation to "timely suppress" any such activity, a ban on the participation of extremist organizations, the use of their symbols or paraphernalia, as well as the distribution of extremist materials . According to the Venice Commission, the organizers of peaceful assemblies not associated with extremist activities cannot be liable for possible violations of the law that occurred through no fault of their own, if they have made reasonable efforts to prevent this, and cannot be held responsible for the actions of individual participants or provocateurs, because it is the prerogative of the police.

The Venice Commission summarizes: the arbitrary application of the law on countering extremism opens up the possibility of introducing severe restrictions on fundamental rights and freedoms enshrined in the European Convention on Human Rights (in particular, Articles 6, 9, 10 and 11) and violates the principles of legality, necessity and proportionality. In this regard, the Commission recommends bringing the legislation in line with the European Convention on Human Rights and offers its assistance and assistance in this work.

Sources

• Opinion on the Federal Law on Combating Extremist Activity of the Russian Federation // European Commission For Democracy Through Law (Venice Commission). 2012. 20 June.