Inappropriate enforcement of anti-extremist legislation in Russia in November 2013

The following is our review of the primary and most representative events in the misuse of Russia’s anti-extremist legislation in November 2013.

Creation of Regulatory Acts

In early November, the President signed a law introducing a range of new anti-terrorism measures. The bill criminalizes organizing and joining a terrorist conspiracy or continuing the activities of an organization banned for terrorism. The clauses are similar to anti-extremist articles 282.1 and 282.2 of the Criminal Code, respectively, but this bill provides for a much more severe punishment. This law will affect future cases on the charges of membership in Hizb ut-Tahrir, an Islamist party that could have been banned as extremist, but, instead, was inappropriately banned as a terrorist group.

Three bills released in November constitute a threat to freedom of speech in Russia. Since their prospects are still unclear, we will describe them only in brief. Oleg Mikheev, a Deputy from A Just Russia (Spravedlivaya Rossiya) fraction, submitted his bill to amend the Criminal Code Article 282 for the consideration by the Supreme Court and the government. The amended wording of Article 282 would include “insult to patriotic feelings,” which Mikheev interprets as a person’s emotional connection with the country. From our point of view, the introduction of such a rule is unacceptable. Patriotic and other feelings cannot be protected by the criminal law, since it is impossible to separate an offence from a legitimate public debate.

Deputies from the United Russia faction Anton Romanov and Evgeny Fedorov and Mikhail Emelyanov from A Just Russia proposed to regard any activity pertaining to separatism, even possession of printed materials on the subject, as criminal. The authors of the draft bill on separatism recommend amendments to a number of articles of the Criminal Code and the Administrative Code, as well as addition of new articles to both codes. Suggested punishments for non-violent offences include up to 20 years in prison.

We view this legislative initiative with a great concern, particularly, because it criminalizes even academic discussions on regional policy, on separation or consolidation of particular territories of the Russian Federation, and even on the adjustment of borders. The authors consider the use of mass media and the Internet as an aggravating circumstance; so, for example, a skeptical public statement on the issue of sovereignty over the Kuril Islands could be interpreted as "questioning of the territorial integrity of the Russian Federation" and punished by up to 20 years in prison. We are convinced that the constitutional prohibition of separatism should criminalize only those actions that are associated with violence.

Andrei Lugovoi, a Deputy from the Liberal Democratic Party of Russia (Liberalno Demokraticheskaya partiya Rossii, LDPR), submitted a draft bill to the State Duma on extrajudicial blocking of websites that call for extremist actions, riots and conducting public events without permit, in a manner, similar to blocking child pornography. We consider extrajudicial blocking of materials, based only on suspicion of extremism, unacceptable, because it will inevitably lead to arbitrary decisions and abuse by law enforcement and will infringe on freedom of speech. If and when it is necessary to promptly block the site, the police must act with court approval, which can be issued in an expedited manner, as it is done for search or arrest warrants. Notably, the Russian Association of Electronic Communications (RAEC) spoke against the bill as well; the Association declared it untimely and insisted that it contradicted the Federal Law “On Combating Extremist Activity."

It should be noted that the blocking calls for "mass participation in public events held in violation of the established order" can obviously be applied to any actions found objectionable by the authorities, including actions that simply didn’t yet receive the permit.

In November, the Russian government gave a negative review on the draft law "On the inadmissibility of acts aimed at the rehabilitation of Nazism, glorification of Nazi criminals and their accomplices, and denial of the Holocaust," submitted to the Duma by Senators Konstantin Dobrynin, Boris Shpigel and Alexander Savenkov in March 2013. The Cabinet’s review of the bill, in particular, stated that the bill’s operational concepts - "Nazism," "Nazi criminals and their accomplices," "glorification" – have not been defined in Russian law, and the bill failed to define them as well. In addition, the government indicated that the bill duplicates existing articles of the Criminal Code and the Administrative Code. Overall, we agree with the government's review. It has to be noted, however, that Konstantin Dobrynin has announced his intention to reintroduce the bill in the State Duma after making the necessary improvements.

In November, the Commission for Inter-ethnic Relations and Freedom of Conscience of the Public Chamber drafted a petition to the Prosecutor General with suggestions for improving the process of examining religious literature for signs of extremism. In our view, this initiative is highly relevant given the numerous law enforcement abuses in this area. The petition was discussed with input from representatives of the Russian Orthodox Church, Muslim and Buddhist organizations. Participants in the discussion came to the conclusion that the police "often fail to take into account that it is impossible to adequately assess in modern legal terms the texts, written many years ago and filled with specific religious meaning." The authors of the petition decided to ask the prosecutors to "exclude ancient sacred books of Russia's traditional religions, as well as other known religious traditions of the world from being subjected to assessment for extremism." The text states that "other religious literature used by believers for religious, ritual and personal purposes" can be studied "to access the extent of its relation to sacred texts," but the examination needs to "involve qualified experts in the field of religious studies and members of religious communities."

Criminal Prosecution

In November, five followers of Hizb ut-Tahrir were sentenced in Chelyabinsk. All of them were found guilty under Part 1 of the Criminal Code Article 205.1 (involvement of others in terrorist activities or other assistance in committing them), part 2 of the Criminal Code Article 282.2 (participation in an extremist organization), Part 1 of Article 30, and Article 278 (preparing the forcible seizure of power). In addition, one of them was convicted under Part 1 of the Criminal Code Article 282.2 (organization of an extremist group), and another one - under Part 1 of Article 280 (public incitement to extremist activity). Five offenders were sentenced to six years' imprisonment in a maximum security penal colony and a fine of 150,000 rubles with subsequent restriction of freedom for another year after their release; in one case the verdict was six and a half years in prison, followed by restriction of freedom for a year. We believe this verdict to be partially inappropriate. The accusations of incitement to terrorism and aiming to seize power were levied only on the basis of the defendants’ active membership in the party (meetings, distribution of literature, etc.); no other evidence of the allegations was ever submitted. The sentence for incitement to extremist activity was imposed merely on the basis of a video, which called for boycotting the elections.

In November, the law enforcement agencies of the Novosibirsk Region reported that the regional FSB opened a criminal case under Parts 1 and 2 of Article 282.2 (organization of an extremist group or participation in it) against five residents of the region. They are accused of involvement in the activities of a local cell of banned religious organization Tablighi Jamaat. According to investigators, the cell was under the leadership of Kamolitdin Rakhmanov, a Tajik citizen, who was expelled from the Russian Federation for his involvement with Tablighi Jamaat in 2012, and banned from re-entering the country for 5 years, but later returned to Russia with a fake passport. Most likely, he will also be prosecuted under Part 2 of the Criminal Code Article 322 (illegal crossing of the state border). The remaining detainees are citizens of Russia. We view the ban of religious association Tablighi Jamaat inappropriate, since the organization was engaged in promotion of Islam and was never implicated in incitements to violence. We consider the persecution of the Tablighi Jamaat members to be unjustified.

In late October, the criminal case against five Jehovah's Witnesses was opened in Rostov -on-Don under Article 282.2 (organization of an extremist group or participation in it). They were accused of continuing the work of the Taganrog Jehovah's Witnesses group following its ban and liquidation. The charges are similar to the ones brought against 16 Taganrog Jehovah's Witnesses, against whom the criminal proceedings are currently under way. All five defendants are restricted from leaving the area. One of the accused had been persecuted for his religious beliefs back in the Soviet era. We believe that the persecution of Jehovah's Witnesses for extremism is illegal and view it as religious discrimination.

In mid-November, the Investigative Department of the Investigation Committee of Russia in the Tyumen Region reported that the head of the Jehovah's Witnesses community in Tobolsk (name not reported) was charged under Part 1 of Article 282 (incitement to hatred and enmity) and Part 1 of Article 239 (the creation of a religious association, whose activities involve violence against citizens or otherwise causing harm to their health). He is accused of attempting to prevent the blood transfusion to a victim of a road accident, who was a Jehovah's Witness. The community leader acted on the basis of his power of attorney regarding medical intervention, signed by the victim prior to the event. Transfusion was administered despite the objections, and the victim and her son agreed to the procedure after the fact. Description of the case, provided by the investigation, contains no indications that, while in the hospital, the defendant engaged in oral or other propaganda that could be viewed as incitement to hatred or enmity. Nevertheless, he is accused of propaganda of superiority of his religion over others, which, in any case, should not be regarded as incitement to hatred.

In the middle of the month, a criminal case was opened against performance artist Petr Pavlensky, who was charged with hooliganism under paragraph "b" of Article 213 Part 1 (gross violation of public order, which expresses patent contempt for society, motivated by political, ideological, racial, ethnic or religious hatred or enmity, or hatred or animosity towards any social group) for his "Fixation" performance, which took place on the Red Square in Moscow on November 10. Pavlensky offered the following explanation for his action: "A naked artist looking at his scrotum, nailed to the Kremlin pavement is a metaphor for apathy, indifference and political fatalism of modern Russian society." It is not at all clear, how a motive of hatred could be ascribed to this action.

Administrative Prosecution

In November, the Pallasovsky District Court found Valentina Shaikina from the Pallasovka village in the Volgograd Region guilty of an administrative offense under the Administrative Code Article 20.29 (dissemination of extremist materials) and sentenced her to a fine of 2,000 rubles. Jehovah's Witnesses, Shaikina held community prayer meetings in her house, where participants read aloud from the Jehovah's Witnesses materials stored on Shaikina ‘s laptop.

Administrative proceedings under Article 20.29 (storage of extremist materials for mass dissemination) were initiated in Ilek, the Orenburg Region, against the head of a local Muslim community. The case was submitted to the Ilek District Magistrate Court for consideration. The prosecution was based on the fact that copies of inappropriately banned Muslim classical treatise 40 Hadith of Imam an-Nawawi had been found in the community.

Meanwhile, Zaurbek Gatsalov, a member of the Spiritual Administration of Muslims of North Ossetia and a son of the North Ossetian Mufti, was acquitted in Vladikavkaz. Gatsalov had been previously fined under Article 20.29 for “distribution,” for an attempt to send a DVD with the banned video “The Miracles of the Quran” to a prisoner, using the inmate support program. A higher court pointed out that the Magistrate Court had found no correspondence between the contents of the disk, seized from Gatsalov, and the video that was deemed extremist. The case was dismissed. However, in our opinion, the video was also inappropriately recognized as extremist.

Opposition activist Andrei Teslenko from Barnaul was fined 1000 rubles by the Novoaltaisk City Court under Article 20.29 in November for posting video "Let Us Remind Crooks and Thieves of Their Manifesto-2002" on his VKontakte social network page; the video was published on Alexei Navalny’s blog and on YouTube in October 2011. From our perspective, this election-season video, which calls to vote for any party other than the United Russia, contains no signs of extremism and was banned inappropriately (it was added to the Federal List of Extremist Materials as part of the group of Russian nationalist materials, under No. 2066). Accordingly, we consider Teslenko’s verdict inappropriate as well. The activist intends to challenge the verdict.

In November, the Promyshlenny District Court of Stavropol fined Boris Ledovsky, director of Kvartal Plyus, a communication services provider in Stavropol, 3000 rubles under Article 20.29 (production and distribution of extremist materials). The case was based on the fact that Kvartal Plyus failed to block several websites recognized as extremist. We consider this decision to be inappropriate, since the Administrative Code Article 20.29 provides for punishment in case of intentional offenses, not offenses committed through negligence. This Administrative Code article does not imply that failure to prevent distribution can be interpreted as actual distribution.

In the end of the month, the Perm Regional Prosecutor's Office filed two court claims pertaining to administrative violations under Part 1 of the Administrative Code Article 20.3 (propaganda and public demonstration of Nazi paraphernalia or symbols) against the founder of the Bereznikovskiy Rabochiy newspaper (a legal entity) and its main editor Natalia Maltseva for public display of the swastika in the newspaper. The issue of November 7, 2013 published a 1936 photograph of girls from the Hitler Youth with barely perceptible swastikas on their clothes as an illustration to the article "Why are they calling for the young, the active, and the talented?" We believe that the administrative prosecution of the Bereznikovskiy Rabochiy is excessive: the photo likely appeared in the paper due to carelessness of technical personnel, and the newspaper had no intention of publicly display Nazi symbols (this is particularly evidenced by the fact that the editors promptly issued an apology, and the issue was removed from the online archive). A warning, addressed to the newspaper, would have been more appropriate in this case.