Prosecuted "for Words": Will Putin's Amendment Have a Liberalizing Effect?

On October 3, 2018, President Vladimir Putin submitted to the Russian legislature a bill that decriminalized some of the deeds currently described in Article 282 of the Russian Criminal Code. The article in question relates to “incitement to hatred,” which it defines as a crime. Alexander Verkhovsky, head of the SOVA Center for Information and Analysis, explains the possible reasons behind the president's amendments and discusses whether they may be regarded as a softening move.

In Russia, Article 282 has gained broad notoriety among civic activists with political leanings, as it has frequently been used as a legal instrument against citizens engaged in undesired political activism of any ideological stripe. In these circles, this Article is generally referred to as the “article on extremism.” The president's legal initiative and its possible implications have attracted a lot of attention due to the outrage over—and protests against—what liberals regard as unlawful prosecution of individuals for online posts and re-posts categorized as “extremist actions.” The president's amendments have been broadly discussed by the media, lawyers, and other experts (see examples here, here, and here) yet there remains significant misunderstanding as to the content of Article 282, as well as to what the decriminalization in question may mean for the police and judicial practice. Some of these issues are clarified below.

In its content, Article 282 of the Russian Criminal Code is not dissimilar from articles on incitement to hatred present in the codes of various European countries, though of course, particular national legislatures have their own specific features. The article (or its predecessors in earlier versions of the Soviet and Russian Criminal Codes) has been part of the criminal law since the 1920s. In the 1990s and early 2000s, it was mostly enforced against “Russian fascists”—that is, ultra-right and national-populist movements. At that time, members of the liberal constituency usually criticized the government for being too lax in its enforcement of this article. It is therefore ironic that Putin initiated the decriminalization of some of the offenses defined in this article exactly 25 years after the events of October 3, 1993—the peak of the putsch against then-president Boris Yeltsin and his government, the major participants in which were those same ultra-rightists and national-populists.

It is important, however, to differentiate between the political use of a legal norm and its legal content. Over the years since its codification, Article 282 has been enforced against nationalists of various strains, left-wing or religious radicals, a broad range of racists and xenophobes, aggressive misogynists, political opposition activists who did not share any of the listed traits, and even just random individuals. The legal norm enshrined in Article 282 is a necessary element of the criminal code; it is a projection of the constitutional norm (as well as similar norms in international law) that limits free expression by imposing a ban on inciting racial and similar hatred. What should be discussed, therefore, is Article 282's linguistic quality and how it is enforced in practice.

It should be pointed out that Article 282 is an “article on extremism.” Describing it in these terms helps ingrain conventional wisdom, which is, in fact, nothing but a grim oversimplification of reality—just like the myth that in Russia people are prosecuted on the basis of their “likes” on social networks. As a matter of fact, Russia has unique framework legislation on “counter-extremism,” adopted in 2002 and barely changed since 2007. Here, “extremism” is defined as a very broad range of actions, from terrorism to drawing swastikas on a fence. It is on this framework legislation that legal efforts to regulate “speech” (not so much Article 282, but Article 280—“calls for extremist activity”) and hate crimes draw. This framework legislation serves as the basis for banning particular organizations and prosecuting those members who continue to engage in these organizations’ activities, as well as for banning books, films, images, and other materials; it is also used to justify other restrictions on civil rights, including electoral rights. The enforcement of these norms is entrusted to special police departments (the so-called “E” Centers—E for extremism), special members of the Investigative Committee, the prosecutor's office, and, more and more frequently, the FSB.

The anti-extremism framework legislation is often criticized, first and foremost because its key definition is fairly broad and vague. Yet judging by how broadly it has been borrowed by other former Soviet states, it is apparently seen as an effective instrument of repression.

Since its adoption, the anti-extremism legislation has been used for political purposes. Its primary targets are easy to identify—radical political Islam and radical nationalism—but it has also been used against other groups, including some that are not at all radical. Political purposes have long led to selective enforcement, yet in the early stages criticism was rarely voiced, since the main targets of repressions were seen as a real threat.

What did spark serious criticism was the quality of enforcement, primarily the low evidentiary standards. For instance, back in 2003, the Supreme Court of the Russian Federation banned about a dozen Muslim organizations practically without examining the evidence for their guilt. Even when applied to al-Qaeda, the justification of the ban seemed frivolous. It is perhaps for this reason that the court ruling was kept secret for several years.

Upon their appearance in 2007, “E” Centers began a powerful campaign aimed at eliminating neo-Nazi groups that had committed hundreds of murders and violent assaults across Russia. The achievements of this campaign were highly impressive: by 2018, the level of hate crimes stood at about one-tenth of what it had been in 2008. During that period, “E” Centers pursued their political-police functions far more broadly than just against hate crimes or groups associated with hate crimes, yet other opposition movements (and neo-Nazis qualified as an opposition movement) were treated differently: they were generally not arrested, but were put under surveillance and faced other forms of harassment. Radical Islamists were an exception: they were and remain the domain of the FSB.

By the turn of the 2010s, a powerful repressive machine had been thoroughly oiled аnd was ready to be put into high gear. Even if this machine was a matter of concern for some human rights and opposition activists, the number of hate crimes went down, and nobody was prepared to risk “softening” the repressive machine for fear of hurting these figures.

It should be pointed out that in the records of law enforcement bodies, hate crimes, “extremist statements,” and membership in “extremist organizations” are all categorized as “crimes of an extremist nature.” In the 2000s, “E” Center operatives preferred to focus on street crimes and shun “propaganda” cases of any kind— “propaganda” was something they found it hard to understand. Gradually, however, they mastered the methods for investigating public statements. It turned out that this was not too complicated and was in fact much simpler than investigating hate crimes. Moreover, this approach meant that it took less effort than before to maintain or even increase the number of “extremism crimes” they solved.

Official statistics of court sentences in this category are not available; only the records of pre-trial investigation can be found (on this website). Investigation statistics show that not all proceedings instigated end in court hearings, perhaps because no culprit is found, but also because the investigation sometimes fails to collect enough evidence. (Quite often, a case is never even opened following a preliminary examination by the “E” Center or prosecutors.)

Figure 1. Government Data on Investigations of “Crimes of Extremist Nature” (source)

Unfortunately, neither these data nor statistics on sentences—available from the Supreme Court website, where they are grouped according to Criminal Code articles—make it possible to assess the dynamics of prosecuting hate crime, since respective norms are “hidden” inside different articles. The dynamics of prosecution of various types of “crimes of extremist nature” can, however, be assessed on the basis of the SOVA Center monitoring. Our data is incomplete, but they at least make it possible to compare the dynamics. Our data confirms what was said above: since the anti-extremist law enforcement fails to disclose violent hate crimes (or, probably, faces serious challenges in investigating them), it is increasingly shifting toward prosecuting verbal expression.

Figure 2. SOVA Center Data on Convictions for Various Types of “Crimes of Extremist Nature” (source)

One can look closely at criminal law enforcement of two types of “extremist crimes”: for “extremist statements” and for membership in various “extremist organizations.” Full pertinent statistics since 2010 are available on the Supreme Court website.

In this case, too, it is impossible to find accurate figures, since in many cases the convictions include violations of more than one article. We, therefore, have to limit ourselves to the primary article of conviction, the one that implies the harshest punishment. This means that a person convicted of both—a grave physical assault and accompanying propaganda—will not be recorded in the statistics for “extremist statements” cases. It may be stated with high certainty, however, that summarizing cases on the basis on the major article of conviction gives us a fairly good idea of prosecutions for the two types of “extremist crimes” that are of interest to us here.

Figure 3. Supreme Court Statistics on Two Types of “Extremist Crimes” (for a major article of conviction only) (source)

The dynamic of cases related to membership in various groups eludes a simple explanation since this dynamic is affected by campaigns against certain groups, as well as modifications of the relevant legislation. Meanwhile, the dynamic of court verdicts on verbal expression is rather simple and graphic. A rapid rise in such sentences began in 2012—the year of mass protest rallies—and did not subside for several years thereafter. The graph also shows the additional boost to this process associated with the beginning of the war in eastern Ukraine.

Despite the obvious political motivation of the law enforcement machine, it would be wrong to assume that it has fully re-oriented its operation toward targeting liberal protesters (who constituted a majority in the 2012 mass rallies) or all those who opposed the annexation of Crimea and the Russian policy in the Donbas. In fact, just as before, way over half of the sentences (unfortunately, a more precise estimate is not feasible) were passed upon statements that qualified as unequivocally racist, and most of the others had to do with supporting armed jihad. Only about 10 percent of those convicted of “extremist statements” were not guilty of either of the above-mentioned misdeeds but were instead convicted for heavy criticism of the government, public discussion of a revolution, public support of Ukraine in the ongoing war, opposition to the annexation of Crimea, etc. Some of those 10 percent made rather radical statements, including calls for violence.

Thus, even in a generally more repressive political environment, the anti-extremism policy was pursued in much the same way as it had been. This is why proponents of this policy did not see the reason for the protests and outrage of political opponents and human rights activists: repressions still most often targeted racists, the ultra-right, and jihadists. As for the gravity of punishments, instances of incarceration for “extremist statements” were relatively few. The courts preferred to hand down fines, community service, or suspended sentences to such felons. However, the share of those sentenced to real jail terms gradually began to rise.

Anti-extremist cases are fairly diverse, making a detailed classification impossible, but some statistical data can be cited.

Figure 4. Sentences Grouped by Articles of the Criminal Code (based on the article of the primary conviction) (source)

The data in this table confirm that Article 282 plays a major role in convictions on “extremism” charges, but it is also clear that other articles of the Criminal Code make a significant contribution to the total number of convictions.

One should also bear in mind punishments for minor misdemeanors. The punishments per se may be insignificant, but the actual cases are much more numerous.

Figure 5. Data on the Enforcement of the Two Administrative Anti-Extremist Articles (source)

Imposing punishment for showing banned symbols (most often the swastika) has increasingly caused not even outrage, but ridicule. The unprofessional language of the article in question enables prosecution for any swastika, whether it is an Oriental religious image, a political caricature, or even a historical photo of the Second World War. Looking at these simple examples, even those with no legal knowledge began to feel that there was something wrong with the anti-extremist legislation and that there was no reasonable justification for its enforcement.

Gradually, the Russian public began to pay more attention to the anti-extremism policy. There were at least two reasons for this. The first had to do with the fact that charges were being brought against new categories of individuals. In the early 2000s, criminal prosecution targeted local activists of radical groups. More recently, the number of “anti-extremist” cases continued to grow, even as the radical groups were on the decline. This led to rapid growth in the share of cases against random individuals who were not radical activists at all. These were people caught by operatives because they had made “extremist statements”: though these statements demonstrated these individuals’ intolerance, they were not systematic or aggressive and therefore by no means presented a threat.

The second reason was the gradual shift of anti-extremist policy to target Internet activity: according to SOVA Center data, in 2017 the makers of online statements comprised 95 percent of those targeted by law enforcement. The overwhelming majority of these statements were found on VKontakte: since VKontakte is the most popular network, major political groups prefer to make their statements there. In addition—and probably most importantly—unlike Facebook or Twitter, VKontakte is a Russian network and therefore it cannot refuse police demands to provide its users' personal data. The police, therefore, are looking for “felons” where they are easiest to find. The rise in “prosecuting the Internet” caused exasperation among the community using these social networks, which had been accustomed to an unconstrained life online. Anti-extremism reduced to hunting for “bad memes” has itself become the target of popular memes.

Apparently, rising discontent became a matter of concern for the Kremlin at some point. Two questions should be posed here: when that happened and why, given the range of causes of discontent in various social groups, the Kremlin chose to make an uncharacteristic conciliatory gesture on this issue.

Of course, it is impossible to identify the very moment when this happened, but most likely we are talking about the fall of 2017. In addition to unconfirmed rumors, there is also statistical data supporting this suggestion. The Supreme Court has not yet published detailed data on the sentences for the first half of 2018, but two indirect indices are available.

Apparently, rising discontent became a matter of concern for the Kremlin at some point. The first is the number of cases of “crimes of extremist nature” that were taken to court. In January-August 2018, this number declined compared to the previous year for the first time since 2012, and the decrease was as large as seven percent. As was shown above, cases of prosecution for “words” now account for a significant majority of such cases. The second index is provided by SOVA Center monitoring: this year, we have registered a small decline in the number of sentences “for words” compared to last year. There can be no doubt that such an abrupt slowdown in the number of cases would have been impossible without instructions from above. For such instructions to work, they must have been given no later than the winter and more likely in the fall.

The answer to the question of why the Kremlin decided to accede to popular discontent may only be hypothetical. In recent years, the anti-extremist legislation has lost its effectiveness as a tool of political repression because its operation has become random and imprecise. On the one hand, the anti-extremist legal instrument has failed to target the most active and even radical opposition activists. On the other hand, the highly selective enforcement has failed to intimidate common citizens: although everyone is aware of the threat, law enforcement gives no clue as to what should be considered punishable, so punishments are regarded as a lottery.

As far as public statements are concerned, the government failed to draw a “red line” that would make sense to regular citizens or even to political activists. In other words, the enforcement of the anti-extremist legislation was now barely of use to the Kremlin, and worked, as it were, just for itself. This may be the reason why the Kremlin has opted to “sacrifice”—or limit and reform—this tool. In 2018, new bills aimed at improving the obvious flaws of the anti-extremist legislation appeared. Finally, in June, during Putin's Priamaia Liniia, his annual call-in show with the nation, the president formally opened the discussion and entrusted the organization of this discussion to Popular Front, a subsidiary of United Russia.

The fact that the president himself admitted in public that the practice of prosecution for “extremist statements” is imperfect and even absurd (at the time, such cases were referred to in public parlance as “cases of reposts and likes”) generated some optimism and emboldened other officials to venture similar recommendations. In particular, the Council on Human Rights came up with recommendations and the Federal Ombudsperson started work on her own. It should be noted, however, that the heads of law enforcement bodies did not join the public discussion.

In the framework of this now-public campaign, the Supreme Court on September 20 issued additional and highly important commentary on the enforcement of Article 282. The Supreme Court insisted that a case may be stopped at its opening if the accused is not a true propagandist but simply happened to post something unethical.

The Supreme Court also finally admitted that if only a few people saw the post, then the post itself was insignificant, and this is sufficient reason not to consider the case a crime. This commentary responds to the actual problems associated with the enforcement of the anti-extremist legislation: quite a few cases were opened on the grounds of random, sometimes singular re-publications, and in many cases, both the investigation and the court ignored the fact that the accused had just a few dozen “friends” and the publications mentioned in the charge received less than five “likes.”

Barely three weeks after the Supreme Court published this commentary, two cases were closed based on its clarifications, right at the investigation stage. This unexpected efficiency was undoubtedly related to the promised reform of the anti-extremist legislation. On October 3, the reform was finally announced.

Putin's bill, however, turned out to be as modest as could be. Nearly all the suggestions made by the Council on Human Rights were ignored. An almost unique situation in which Putin initiated a public discussion on the liberalization of a legal norm ended in a surprisingly small-scale proposal.

The reform bill applies only to Article 282, and even the offenses defined in this article are only partially decriminalized. Nothing will be removed from the content of the article. The Council had suggested that the fully incomprehensible formula “incitement to hatred toward a social group”—a legally blurry term that opened the way for abuse, including politically motivated abuse—be removed. In addition, the Council had suggested that only “incitement to hatred” be kept in the article, in accordance with the Constitution and international law. The Council had further recommended that the formula “humiliating people's dignity” based on their group identity be removed from the Criminal Code and reclassified as a minor misdemeanor. It should be added that the softer qualification implied in the president's bill—that is, the replacement of the criminal qualification currently defined by Article 282 with an administrative one—is restricted to cases without aggravations. This means that only a first-time violation will be treated as a minor misdemeanor; a repeated “extremist” statement will be classified as a crime.

Nevertheless, when the bill is adopted (and it will, of course, be adopted), it should, together with the commentary of the Supreme Court, lead to a dramatic, multi-fold decrease in the number of criminal cases based on part 1 (that is, without aggravations) of Article 282, and, if only in part, a revision of earlier court decisions based on that article. The decrease will most likely be achieved by reducing the number of small cases that do not have clear and important political interests behind them. Even so, this should be regarded as a positive development.

It is highly regrettable, however, that the reform has left unchanged all other elements of the anti-extremist legislation. For instance, it will not help Jehovah's Witnesses, whose religious organization has been banned, leaving tens of thousands of them under threat of criminal investigation simply for taking part in religious meetings. Nor will it help those who make highly critical statements about the dominant religion, Orthodoxy; condemn the annexation of Crimea; or re-post historical photos where a swastika can be discerned. Nor will it stop “ban rage,” which results in the police hunting the broadest range of “extremist materials,” a campaign that is entirely impractical in the age of the Internet. One of the most recent examples of this campaign is the ban of an absurdist punk song called “Kill the Teenager.”

The new administrative article defining punishment for first-time “hatred-inciters” will likely produce a large number of convictions, since in these cases the procedure will be much simpler than in criminal cases, and, as I showed above, there are typically several times more administrative cases than criminal ones.

In other words, the government has not only preserved the full capacity to prosecute “for words,” but its capacity is overabundant even for its own political goals since everything said above about the “multiple focus” of the repressive policy applies far beyond Article 282.

That is the way the Kremlin usually operates: government officials are concerned not only about encroachments on stability but even about insignificant “rarefication” of the multi-layer protection of this stability. One can still expect, however, for the president's modest bill to be complemented with other measures that the Kremlin deems innocuous.

Sources:

• Alexander Verkhovsky. Prosecuted "for Words": Will Putin's Amendment Have a Liberalizing Effect? // Point & Counterpoint. PONARS Eurasia. 2018. 11 October.