Unlawful anti-extremism in December 2018

We publish an overview of the main and most significant events in the field of misuse of anti-extremist legislation in Russia in December 2018.

Rulemaking

On December 27, 2018, the President signed a package of laws on the partial decriminalization of Art. 282 of the Criminal Code (inciting hatred or enmity). It provides for the introduction of a mechanism of administrative prejudice to Part 1 of Art. 282 of the Criminal Code: at the first violation of citizens, as well as legal entities, they will be punished administratively under the new Art. 20.3 ¹ , corresponding to the current composition of Part 1 of Art. 282, criminal liability will occur only in case of repeated violation of the law within a year after being held accountable under an administrative article. The only amendment that was introduced in the second reading, on December 19, concerned the establishment of a one-year statute of limitations for bringing to administrative responsibility under Art. 20.3 ¹ (in contrast to the currently established period of three months for administrative offenses requiring consideration in court). The proposals of the Ombudsman and the Presidential Human Rights Council on exclusion from Art. 282 and 20.3 ¹ the sign of belonging to a social group, the exclusion of criminal prosecution for humiliation of dignity and the onset of criminal liability only in the event of a third, and not a second, violation during the year were not taken into account.

On the same day, a package of laws was signed on toughening the conditions for serving sentences for those convicted under a number of articles of the Criminal Code (primarily terrorist ones), as well as for those who have a destructive effect on cellmates. The list of conditions under which the courts can decide to serve part of the sentence in prison has been expanded, and under a number of articles - to appoint the beginning of serving a sentence in prison without fail and prohibit early transfer of positively characterized convicts to colonies. In addition, the Federal Penitentiary Service received the opportunity to arbitrarily determine the place of serving sentences for those convicted of any crimes, if they are seen in the "negative impact" on fellow inmates and propaganda of terrorist ideologies, and arbitrarily transfer them to other correctional facilities. These provisions do not apply to ordinary members of extremist communities and organizations convicted under Part 2 of Art. 282.1 and part 2 of Art. 282.2 of the Criminal Code.

In mid-December, a group of State Duma deputies, headed by Elena Yampolskaya, chairman of the Committee on Culture, submitted to the lower house a package of bills on amendments to Art. 20.3 of the Code of Administrative Offenses (propaganda or public display of Nazi paraphernalia or symbols, or paraphernalia or symbols of extremist organizations, or other paraphernalia or symbols, the promotion or public display of which is prohibited by federal laws). The bills are intended to limit the effect of the article so that its application takes into account the context of displaying the symbols of banned organizations. Recall that at the moment, Russian law allows you to punish any demonstration of such symbols. The deputies do not propose to make an indication that the display of symbols of banned organizations falls under the scope of the article only if it has propaganda purposes, although this indication alone would be enough to avoid most abuses in the application of this rule. It is only meant to accompany the article with a note, according to which the provisions of the article "do not apply to cases of using Nazi paraphernalia or symbols, or paraphernalia or symbols confusingly similar to Nazi paraphernalia or symbols, or paraphernalia or symbols of extremist organizations, or other paraphernalia or symbols, propaganda or public demonstration of which is prohibited by federal laws, in works of science, literature, art, in mass media products, as well as for educational and educational purposes by educational organizations implementing educational programs, subject to the condemnation of Nazism and extremism, the formation of a negative attitude towards the ideology of Nazism and extremism, and the absence of signs of propaganda and (or) justification of any Nazi and extremist ideology." The note proposed by the Yampolskaya group raises doubts as to whether, as a result of its introduction, ordinary citizens will be able to avoid unjustified persecution. After all, they will have to prove every time that the image they published refers to "works of science, literature, art", since in other cases publication is allowed only by the media, as well as for educational and educational purposes - by educational organizations. And the requirement that a publication necessarily condemn this or that ideology is by no means always appropriate and looks strange when it comes to the neutral reproduction of the image outside the discussion of the ideology or practice of this or that banned organization.

On the same day, United Russia deputy Dmitry Vyatkin and senators Alexander Klishas and Lyudmila Bokova, who head the Federation Council committee on constitutional law, submitted two packages of bills to the State Duma at once, punishing citizens for disseminating reprehensible information on the Internet. Sanctions punishing specifically online behavior are being proposed to the Duma for the first time.

The first of the proposed projects is designed to prevent the dissemination on the Internet of information intended for an unlimited circle of people, "expressing in an indecent form a clear disrespect" to society, the state, official state symbols, the Constitution and bodies exercising state power in the Russian Federation, "if these actions do not contain a criminal offence." The developers of the bills proposed to supplement Art. 20.1 of the Code of Administrative Offenses (petty hooliganism), part three, which punishes such an offense with an administrative fine in the amount of one thousand to five thousand rubles or administrative arrest for up to fifteen days. In addition, it is planned to introduce a procedure for extrajudicial blocking of such information. The profile committees of the State Duma - the Committee on State Construction and Legislation and the Committee on Information Policy, Information Technologies and Communications - have already approved both bills included in the package. From our point of view, the draft contains vague wording (what is meant by the expression of disrespect in an indecent form is unclear), proposes redundant rules that duplicate the existing articles of the Criminal Code regarding socially dangerous statements and creates a danger of excessive interference by the authorities in the right of Russian citizens to freedom of expression opinions when it comes to the stylistic features of communication on the Internet, which are regulated by the rules established by the administration of social networks.

The second package of bills provides for the imposition of sanctions for the dissemination in the media and the Internet of "knowingly unreliable socially significant information disseminated under the guise of reliable messages that poses a threat to the life and (or) health of citizens, a massive violation of public order and (or) public safety, and the cessation of the operation of facilities life support, transport or social infrastructure, the onset of other grave consequences. The authors of the initiative plan to supplement Art. 13.15 of the Code of Administrative Offenses (abuse of freedom of the mass media) part 9, which provides for such a violation as a punishment in the form of an administrative fine in the amount of three thousand to five thousand rubles for citizens, from 30 to 50 thousand rubles for officials and from 400 thousand to one million rubles with confiscation of the subject of an administrative offense for legal entities. From our point of view, the use of the wording "knowingly unreliable" in the legal field in relation to socially significant information is problematic. Indeed, in cases of relevant offenses it will be practically impossible to establish the existence of intent, i.e. to prove the fact that the violator certainly knew that the information he disseminated was unreliable and its dissemination would lead to the enumerated and even some not enumerated "serious" consequences. If the courts do not pay due attention to establishing the existence of intent, this will inevitably lead to violations of the right of citizens to the freedom to receive and disseminate information, freedom of expression and freedom of assembly. In addition, according to existing legislation, regardless of whether a person disseminated false or truthful information, if at the same time he publicly called on citizens to illegal activity or if the information was prohibited, his publications are subject to the relevant articles (criminal art. 280 calls for extremism, article 205.2 on calls for terrorism, article 212 on mass riots, administrative article 20.29 on dissemination of extremist materials, and others). Thus, the proposed norm is redundant. As for counteracting the spread of fake news, in our opinion, the best way here is to promptly provide citizens with the most complete information and expert opinion on socially important issues.

Prosecution for incitement to hatred and opposition speech

At the end of the month, the Presidium of the Moscow City Court overturned the verdict in the case of Yevgeny Kort, convicted under Part 1 of Art. 282 of the Criminal Code (inciting ethnic hatred), and sent the case for a new trial to the Zelenogradsky District Court. The cassation appeal of Sergey Badamshin, Kort's lawyer, was submitted to the Moscow City Court by Vladimir Davydov, Deputy Chairman of the Supreme Court of Russia. He pointed out that the verdict did not provide evidence that Kort acted with the direct intent to humiliate the dignity of a group of people on a national basis, and the guilty verdict could not be "based on assumptions." In November 2016, Kort was sentenced to a year in a colony-settlement for publishing one image on the VKontakte social network - a racist collage from the account of the well-known far-right Maksim Martsinkevich (Tesak). In the picture, Tesak presses Pushkin against the wall, accompanying this with a replica with a xenophobic insult. From the content of Kort's social media account and the testimony in his case, it could be concluded that he was sympathetic to Nazi ideology. However, from our point of view, the publication of one image was not a sufficient basis for bringing him to criminal responsibility. In January 2017, the Moscow City Court replaced Korta's imprisonment with a fine. The verdict served as the basis for filing a complaint with the Constitutional Court against the application of Art. 282 of the Criminal Code, which, however, was not accepted for consideration. The cassation appeal against the verdict was initially rejected by the Supreme Court, but after the adoption of a new plenum of the Supreme Court on the consideration of extremist cases, Kort's lawyer sent a new complaint to the chairman of the court, which led to the cancellation of the verdict.

Leninsky District Court of Cheboksary in December fined a thousand rubles under Art. 20.29 of the Code of Administrative Offenses (mass distribution of extremist materials) of local blogger Konstantin Ishutov, he appealed this decision. The claims of law enforcement agencies were caused by the publication made by Ishutov in LiveJournal in November 2012. It was given the beginning of the announcement of the forthcoming coordinated "Russian March" in Cheboksary, which was published by Ishutov himself on one of the city's websites. The text mentioned the slogans under which the "Russian March" will take place, including the slogan "Russian power to Russia", which in 2018 was included in the Federal List of Extremist Materials. The list of slogans was taken from the announcement of the public event, which was posted on the website along with the news, but did not make it to Ishutov's blog. We believe that persecution for mentioning a banned slogan for information purposes is unlawful. Ishutov's text can also be perceived as an advertisement for an event with a deliberately xenophobic agenda, however, both the event itself and the slogan were agreed upon by the authorities. In addition, after six years, the author simply could not forget that he once mentioned this slogan in a publication, so the spread of extremist material in this case can hardly be considered intentional.

In the first half of the month, it became known that Roskomnadzor had issued warnings to the Echo of Moscow in Pskov radio station for releasing the Minute of Enlightenment program by journalist Svetlana Prokopyeva and to the Pskov News Tape publication, which published the transcript of the broadcast. The program was dedicated to the explosion in the reception room of the FSB in Arkhangelsk, as a result of which three employees of the department were injured and a 17-year-old anarchist student who caused the explosion died. A few minutes before the explosion, the young man posted a message on the social network that the FSB was torturing people and fabricating cases. Analyzing what happened, Prokopyeva reasoned that such actions of a young man were due to the repressive policies of the state. According to the journalist, there is a great risk that young people growing up in an atmosphere of cruelty of the state will respond to the state in the same way. In our opinion, the warnings to both media outlets were issued unlawfully. We recall that according to Art. 205.2 of the Criminal Code, public justification of terrorism should be understood as "a public statement on the recognition of the ideology and practice of terrorism as correct, in need of support and imitation", there is no other legal definition of this concept in Russian legislation. Prokopieva's program did not say anything about the ideology or practice of terrorism being correct and worthy of emulation, and accordingly, we believe that there were no signs of justifying terrorism in it.

Persecution of religious organizations and believers

In early December, the Orekhovo-Zuevsky City Court of the Moscow Region issued a sentence under Part 2 of Art. 282.2 of the Criminal Code in the case of four supporters of the Islamic movement Tablighi Jamaat, which is banned as extremist. The court found that they were spreading the ideology of the organization among the Muslims of Moscow and the Moscow region. Russian citizens Mukhamedali Saidov, Rakhmatullo Kiroev, Ulugbek Yusupov and Azerbaijani citizen Kenan Kerimov were sentenced to two years and two months in prison to be served in a penal colony with limited freedom for six months. Tablighi Jamaat is engaged in the peaceful propaganda of Islam and has not been seen in any calls for violence, so we consider the persecution of its supporters to be unjustified.

In December, it became known that in mid-November, the Volga District Military Court sentenced four residents of the Chelyabinsk region. Vadim Khabirov was found guilty of organizing the activities of the terrorist organization Hizb ut-Tahrir (part 1 of article 205.5 of the Criminal Code) and sentenced to 16 years in a strict regime colony and a fine of 200 thousand rubles. Danis Abdrakhmanov, Ruslan Fatkullin and Rafis Khalilov received sentences ranging from six to six and a half years in prison with a fine of 100,000 rubles for participating in an organization under Part 2 of Art. 205.5 of the Criminal Code. The verdict has been appealed.

At the end of the month, in Rostov-on-Don, the North Caucasian District Military Court delivered a verdict in the case of Bakhchisaray residents Enver Mamutov, Rustem Abiltarov, Zevri Abseitov and Remzi Memetov, who were accused of participating in the activities of Hizb ut-Tahrir. Mamutov was found guilty under Part 1 of Art. 205.5 of the Criminal Code, as well as under Art. 278 through part 2 of Art. 35 and part 1 of Art. 30 of the Criminal Code (conspiracy to prepare for the seizure of power) and sentenced to 17 years in prison in a strict regime colony. Abiltarov, Abseitov and Memetov were sentenced under Part 2 of Art. 205 .5 of the Criminal Code and Art. 278 through part 2 of Art. 35 and part 1 of Art. 30 of the Criminal Code to nine years in a strict regime colony. The court agreed with the version of the investigation, according to which in December 2015 Mamutov organized a Hizb ut-Tahrir cell in Bakhchisarai, whose activities were aimed at "eliminating non-Islamic governments and the gradual establishment of an Islamic state, including on the territory of the Russian Federation", however "the criminal intent was not brought to an end" in connection with the detention of members of the cell by law enforcement officers. Despite the fact that the Hizb ut-Tahrir party advocates the establishment of a world caliphate, it did not take any violent actions on the territory of Russia to achieve this theoretical goal and did not call for such actions. We consider it unlawful to ban this organization in Russia as a terrorist organization, as well as to prosecute its members for participating in a terrorist organization and preparing to seize power on the basis of holding meetings of like-minded people and distributing party materials.

At the end of the month, the Prokhladnensky District Court of the Kabardino-Balkar Republic found Arkadya Hakobyan, a 70-year-old pensioner, Jehovah's Witness, guilty of inciting religious hatred under Part 1 of Art. 282 of the Criminal Code and sentenced him to 120 hours of compulsory work. Hakobyan was found guilty on the basis of the testimony of five non-denominational witnesses who stated that they had distributed banned Jehovah's Witnesses pamphlets on Hakobyan's instructions. Hakobyan's defense argued that he did not distribute prohibited materials, and in addition, the distribution of extremist materials, even if it took place, could be punishable under Art. 282 of the Criminal Code only if it is proved that the accused pursued the goal of inciting hatred or enmity. Meanwhile, in the text of the publications, the distribution of which was charged against Akopyan, there were no statements about the need for unlawful actions against any group of persons, namely, such calls, according to the Resolution of the Supreme Court "On judicial practice in criminal cases on crimes of extremist orientation" 2011 year, should be considered a sign of incitement to hatred. It should be noted that all the followers of Jehovah's Witnesses, who were previously convicted under Art. 282 of the Criminal Code, were acquitted by higher courts with recognition of the right to rehabilitation.

In December, new cases were initiated against Jehovah's Witnesses under Art. 282.2 of the Criminal Code in different regions of Russia.

In Petropavlovsk-Kamchatsky under Part 1 of Art. 282.2 A 34-year-old local resident was accused of organizing worship services, distributing literature of Jehovah's Witnesses and teaching citizens about religious postulates.

In Orel, a decision was made in absentia to arrest both defendants under Part 2 of Art. 282.2 in participation in the activities of the banned local community of Jehovah's Witnesses V. Maksimov and D. Prikhodko, who are abroad and put on the federal and international wanted list.

In Neftekumsk, Stavropol Territory, after a series of searches conducted as part of an investigation under Part 1 of Art. 282.2 of the Criminal Code, three believers were arrested - Alexander Akopov, Konstantin Samsonov and Shamil Sultanov, another person was put on the wanted list. During the consideration of the issue of choosing a preventive measure in court, the FSB officers motivated the need to keep Samsonov and Sultanov in custody by the fact that after the Supreme Court issued a ban on the activities of organizations of Jehovah's Witnesses in Russia, they "did not give up their religious views."

As a reminder, we consider unlawful the decision taken in April 2017 by the Supreme Court of Russia to recognize the Administrative Center of Jehovah’s Witnesses in Russia and 395 of their local communities as extremist, which became the basis for mass criminal prosecution of believers.

At the end of December, the Pushkinsky District Court of St. Petersburg considered a suit filed by the city prosecutor's office to recognize books and pamphlets by the American preacher William Branham (1909-1965) as extremist materials. As an interested person, the charitable public organization "Evening Light", which distributes these publications, was involved in the process. According to the expert opinion presented by the prosecutor's office, the author of the books uses neuro-linguistic programming techniques, puts his teaching above the teachings of other churches, and creates an "enemy image" in the person of "the Catholic (which the author refers to as the Orthodox) and Protestant churches", insulting the feelings of "relevant groups of clergymen and believers", calling opponents sectarians, and instilling "ideas of the inferiority of a person by his religious affiliation." The Pushkinsky District Court appointed a new expert examination, studied its results and case materials, and, after hearing the opinion of the participants in the process, decided to refuse the prosecutor's office to satisfy its demands. We welcome the court's decision: from our point of view, there are no grounds for banning Branham's texts, since assertions about the truth of one creed and the fallacy of all others are inherent in any religious doctrine and should not be prosecuted.