The law enforcement machine is working at its limit in cases of “extremist statements”

We are republishing an article by Alexander Verkhovsky published on August 30, 2023 in The Moscow Times.

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Criminal prosecutions for “extremist speech” have increased in 2022 – but by how much? And what does this mean for the near future?

In 2022, political repression has sharply intensified; this has long been a commonplace. Actually, regardless of political position, everyone could have expected exactly this in a situation of a full-scale armed conflict. Even a quick glance at the endlessly updated “Anti-War Cause” section on the OVD-Info website confirms that this is so. And of course, the strongest impression in the past year was made by the incredible number of administrative cases of “discrediting the army” (Article 20.3.3 of the Code of Administrative Offences, which, if repeated, could result in a criminal case under Article 280.3 of the Criminal Code), by the end of the year the number of cases exceeded 5, 5 thousand.

In this article, I will make an attempt to assess how much wider criminal prosecution has become in 2022 specifically for public statements of an ideological or political nature. I want to emphasize that the degree of legality of this prosecution will not be discussed here, and it varies very much - ranging from completely unjust sentences for innocent statements to cases that would be approximately the same in an average European country, for example, for real public incitement to terrorism. The validity of cases in the middle of this range is a separate issue.

It should also be borne in mind that this article is not about statements of one or another ideological kind, for example, anti-war, we are talking about all persecuted statements.

To prosecute public statements, the Criminal Code has long had a number of articles, and new ones were added in 2022 (almost all such articles will be mentioned below). For simplicity, I will call all statements covered by these articles “extremist,” although formally, from the point of view of law enforcement agencies, this is not accurate.

Why can we only talk about an approximate estimate even now, in the middle of next year? It seems that full article-by-article data on sentences passed for 2022 are already known. But it is important to understand that sentences in speech cases are handed down, on average, about a year after the start of the criminal case, so the data on sentences reflect the dynamics of the initiation of criminal cases approximately a year earlier. And data on sentences for this year, which would make it possible to more accurately estimate the number of cases filed in the past year, will be published only by the end of next spring.

How many cases of “extremist statements” have been opened in 2022?

If you look at the official data (on the website of the Judicial Department of the Supreme Court) on sentences under articles on public statements for 2019–2022, that is, after the partial decriminalization of Art. 282 of the Criminal Code (incitement of hatred), we will see that the most “popular” articles by a large margin from the rest in these years were Art. 280 (calls for extremism) and Art. 205.2 (calls for terrorism and justification for it). It is not very realistic to count such cases manually: too many of them do not become known at all, including to the SOVA center. But it is precisely for them that there are official data from the Ministry of Internal Affairs collected by the Prosecutor General’s Office on the number of cases opened last year.

According to these data, in 2022, according to parts 2 of both articles, that is, for statements made in the media and the Internet, there will be an increase in the number of cases solved (hereinafter, for ease of presentation, the fact that cases are group cases is ignored - and I call “case” case of one accused) was 41% for Art. 205.2 (that is, approximately 110 cases under Part 2, and this is a very large increase, of course) and 12% for Art. 280 (that is, approximately 40 cases under Part 2). Parts 2 in these articles are used much more often than parts 1 (the same calls, but without the Internet or the media) for obvious reasons: on the Internet it is easier to speak out and find material for the case. For example, in 2022, in sentences under Art. 205.2, part 2 appeared in 264 cases, and part 1 - only in 54. For Art. 280 this ratio was generally 334 to 22. We do not know how much the dynamics in the new cases of 2022 differed in parts 1 and 2 of these articles; in previous years this happened differently. In the sentences handed down in 2022, in both articles, the increase compared to the previous year in both parts was almost the same. But most importantly, since the share of cases under Part 1 is small in both articles, it is reasonable to assume that the above percentage increases for Part 2 articles are approximately the same for the articles as a whole.

Unfortunately, in recent years, the statistics of the Ministry of Internal Affairs on registered or solved crimes under these articles, as well as on the number of “identified persons,” do not in any way correlate with the number of sentences passed either in the current year, or in the next, or when averaged over several years. And we can be much more confident in the data on the number of convictions than in the Ministry of Internal Affairs data on the number of cases under investigation. The best fit is the data on solved crimes of the current year and the verdicts of the next year, however, only for 2020-21, when the total number of cases, after fluctuations in the previous few years associated with the reform of anti-extremist law enforcement in 2018, grew to a scale comparable to the current one. At the same time, the deviation of two parameters is still noticeable: according to Part 2 of Art. 205.2, the increase in the number of solved cases exceeded the number of sentences the following year by 10-20 percentage points, and in part 2 of Art. 280 the increase could be less or more by 20 points.

If we average these deviations in the growth rate, the increase in 205.2 will be not 41%, but 56%, which will coincide with the increase in the number of “registered crimes,” so that the real increase in the number of cases could not be higher. According to Art. 280 is not 12%, but 16%. These may be overestimates of growth, but more accurate ones are unlikely to be made.

It is very important to take into account those not at all rare cases when a person also has Art. 280, and Art. 205.2. It is impossible to calculate this using official statistics, but you can rely on data from the SOVA center, which knows about half of the sentences passed. Then we will see that among those convicted under Art. 205.2 in 2020–2022, 27, 34 and 33%, respectively, also had Art. 280. It can be assumed that among the new cases of 2022 there were about 30% of such intersections.

In what follows, we will continue to assume that the number of convictions in a calendar year roughly reflects the number of cases filed over the past year, at least those where the suspect is clear, since a year is approximately the average duration of an investigation. Then, based on the fact that in 2022 Art. 205.2 appeared in the sentences of 318 people, and Art. 280 - from 356, let's take the growth percentages above, subtract 30% of the intersection from the number of cases under Art. 205.2, we add up the data for both articles - and we get an estimate of 760 people against whom cases were opened in 2022 under one or two of the most popular articles of the Criminal Code on statements.

For other articles of the Criminal Code of interest to us, new cases had to be counted manually using data from the SOVA center and OVD-Info. According to the new articles that appeared in the Code in 2022, there were 137 of them under Art. 207.3 of the Criminal Code (about “fakes”), 42 - under Art. 280.3 (repeated “discreditation of the army”) and 2 - under Art. 282.4 (repeated display of prohibited symbols). Under the old articles, 28 cases were opened under Art. 282 (incitement to hatred, repeated or with aggravating circumstances), 44 - under Art. 354.1 (“rehabilitation of Nazism”, that is, statements in one form or another relating to the Second World War, symbols and dates of military glory, as well as veterans) and 9 - under parts 1 and 2 of Art. 148 (“insulting religious feelings”).

Since we had information about the set of articles of the Criminal Code in these cases, we could then subtract cases where there were two or three (which is rare) articles in the case from the set of interest to us.

Finally, for each of the articles it was also necessary to assess the degree of awareness of “Sova” about this kind of cases, judging by the verdicts of previous years, and it is not the same across the articles. Let's say, according to Art. 282 is about half, and under articles 354.1 and 148 - about 70%. And to what remained after subtracting the double charges, it was necessary to apply the appropriate coefficients. It is difficult to assess our awareness of the new articles of the Criminal Code; we can only assume that OVD-Info and Sova knew by mid-2023 (when these calculations were made) a significant majority of last year's cases. Out of caution, I did not apply any increasing factor to new articles.

After all these operations, the total number was about 1020 people, but this, of course, is not an exact figure, but an estimate. It could be increased if there were grounds to believe that the data on the new articles of the Criminal Code are significantly underestimated, and lowered if we agree that the method chosen above for correcting the Ministry of Internal Affairs data on the increase in the number of cases overestimates it. I myself am inclined to assume that it would be more accurate to lower the rating somewhat, but not much.

Comparison with previous years

And now one can wonder how much the increase in the number of new criminal cases for “extremist statements” in 2022 differed from the increase in previous years.

Data on sentences have been available since 2010. Still assuming that the investigation lasts on average a year, we thus see the dynamics in the number of new cases. But it is still necessary to retrospectively assess the intersection of different articles on public statements in these cases in order to estimate the total number of people convicted of “extremist incitement” (including in combination with other charges). This can be done, again, based on Sova data, and then extrapolated to the entire array of sentences for speech for each year. Then, let’s say, in 2022 there will be 656 people whose sentences included articles for public statements, and we can consider this number a good estimate of the number of cases of “extremist statements” filed in 2021.

If the calculations above are correct, the increase in the number of such cases in 2022 was 55%. And this is a very big increase. For example, a year earlier the increase was 16%. But in previous years things were very different. There was a very significant drop in 2018, the year of partial decriminalization of Art. 282 - by 57%. There was a significant increase in the number of such cases, which began back in 2011 - after the riots on Manezhnaya Square - and reached its maximum in 2014 - the year of the Donbass conflict - 52%. Significantly more than last year, there was an increase in the number of new cases of statements only in 2020 - the year of constitutional reform - by 70% (from approximately 330 to approximately 560, with the main contribution made by Article 280 with an increase of 123 cases and Article 205.2 with an increase of 67 affairs).

That is, one could say that the current large-scale armed conflict has affected the criminal prosecution of speech approximately as much as the armed conflict of 2014 and noticeably less than the political events of 2020. But we must not forget that we are always talking about an increase, that is, an increase in the number of new cases by 55% (perhaps slightly more or less, depending on how accurate our assumptions) occurred already on a very “high base”, let still not as high as before the reform of Art. 282 of the Criminal Code of 2018.

Features for 2022

It is worth noting some other circumstances that are typical for 2022.

Firstly, the increase in the number of cases, according to the above estimate, by approximately 360 was achieved half due to cases of “discrediting” and “fakes”, of which at least 177 were opened in total. However, in almost two dozen of them there are also old articles about “extremist statements.” And cases under Art. 205.2 on calls for terrorism or justification for it has apparently increased by about 170 (also often in combination with other articles). Old articles are by no means forgotten and appear, as can be seen from the data above, in the overwhelming majority of the total number of new cases in 2022 - more than 80%.

Second, it is worth repeating that criminal prosecutions are not the only form of prosecution. Already since 2012, and especially since 2015, administrative prosecution has increasingly outpaced criminal prosecution and the count quickly went from hundreds to thousands. And 2022 set an undisputed record for acceleration - almost twice as many people were punished under “extremist” articles of the Code of Administrative Offenses, including “discredit” added in March, than a year earlier - more than ten and a half thousand people.

Thirdly, the threat of administrative liability escalating into criminal liability for repeated offenses has become more obvious. This mechanism appeared back in the 2010s, and in the area of ​​prosecution for public statements it has so far been used most often on charges of inciting hatred; a pair was used - art. 20.3.1 Code of Administrative Offenses and Part 1 of Art. 282 of the Criminal Code. 2022 added several more such pairs to the legislation, of which the most significant is Art. 20.3.3 Code of Administrative Offenses and Art. 280.3 of the Criminal Code on “discredit”. At the end of June, OVD-Info knew of 102 cases of “repeated discrediting,” and if this is correlated with cases under Art. 20.3.3 of the Code of Administrative Offenses, even just last year, this means that the share of administrative prosecution for “discredit” escalating into criminal prosecution is now less than 2%. Whether this is a lot or a little - everyone decides for themselves, but probably few people know this percentage.

Fourthly, it sometimes happened before that cases were opened against people who were known to be outside Russia, but last year this became quite a widespread phenomenon. I counted 74 such people (67 of them are involved in cases of “fake news”). Of course, the cases brought against these people cause significant harm, but it is still difficult to compare it with the harm that a criminal case can bring to a person in the hands of justice.

Fifthly, in 2022, articles of the Criminal Code that were not intended for this purpose began to be used more often to prosecute actual public statements. At least part 2 of Art. 214 of the Criminal Code on ideologically motivated vandalism began to be more often applied to cases with very minor material damage, when the goal of the accused was clearly to make a certain statement, for example, by writing a slogan on the wall. These were approximately 30 of the 46 cases of ideological vandalism known to the SOVA Center. True, this phenomenon in itself is not new: in the past, a very large part of the cases under this article were about drawing swastikas and slogans in different places. We cannot fully take these changes into account: in too many cases the plot is not really known. However, this factor did not have a significant impact on the overall figures.

Sixth, the large increase in the number of cases specifically under the harsh article on calls for terrorism (up to seven years in prison) and the new article on “fakes” (up to ten years under the more often used part 2 of the article) was intended to have a “chilling effect” on everything groups of opponents of the authorities. Sentences for statements in 2022 were not, in general, judging by the cases known to “Sova,” more severe than a year earlier, but expectations for 2022 were justified this year, when the number of people actually imprisoned only for “extremist statements” for from six years old, in six months the number was twice as high as for the entire 2022.

Why are there “only” 55% more cases?

This question may seem strange, but in March last year there were very broad expectations of truly massive repressions, almost a “new ’37”: the military situation was associated with a rejection of self-restraint in repressive policies, and of the usual gradualism in its development. The reality turned out to be different.

We can state that specialized anti-extremist and anti-terrorist bodies, and all such criminal cases are handled almost exclusively by them, responded to the political situation, which definitely requires them to mobilize in every possible way, by multiplying the number of new cases of public statements by at least one and a half times. But law enforcement practice in this area has changed not only quantitatively: new approaches have been tested and old approaches have been expanded, aimed primarily at prevention (or, one might say, intimidation). That is, the mobilization of the law enforcement system is obvious. But it is also true that just two years earlier, the intensification of criminal prosecutions for public statements was more decisive (although the public outcry from this was less).

How can this be interpreted?

Firstly, it may be worth assuming that the increased activity is assessed by the security and political leadership not as a percentage, but in absolute numbers, and they are quite impressive. The peak in the number of people convicted “for words” (be it peaceful political criticism or calls for terrorist attacks or mass murders, I repeat, I am not making this distinction here) has so far occurred in 2017. If we take the data of the Supreme Court and evaluate the “intersection” of different articles of the Criminal Code according to Sova data, as was done above, we can calculate how many people had the corresponding articles of the Criminal Code in their sentences. For 2017, the result is 726 (this is not an exact figure, of course, but an estimate). Then there was a recession, followed by a rise, and the same estimate for 2022 already gives 656 people. If the calculations above are correct, in 2023 it will be about 1,020 people.

Secondly, there is a very likely lack of resources: the same agencies throughout the country were supposed to deal with people who tried to set fire to military registration and enlistment offices, committed other acts of sabotage, etc., and we are talking about expanding the staff in the “E” centers of the Ministry of Internal Affairs and the FSB didn't hear anything. This forced them to partly “disregard” even Jehovah’s Witnesses, whose persecution had previously not been prevented by any other repressive campaigns. It is even more significant that in 2022 and in the first half of this year, very few new cases were opened against the radical Islamist party Hizb ut-Tahrir, despite the fact that before there were always many of these cases and in recent years a good half of the accused were in Crimea , in which it would be difficult to expect a drop in the activity of security forces now. In total, about a hundred fewer cases were brought in 2022 for participation in these two organizations and several other peaceful, but prohibited, Muslim organizations than in the previous year.

Thirdly, the authorities are clearly relying on administrative measures, either forced or planned. It is difficult to say how effective the rapid expansion of the lists of foreign agents and “undesirable organizations” turned out to be, but the strikingly large-scale application of the same article. 20.3.3 of the Code of Administrative Offenses was clearly effective: the total volume of protest activity after the spring and autumn waves of last year decreased, which can be seen at least from the scope of application of this very article - in the first half of 2023 it was used “only” one and a half thousand times. If the easy ones work for the authorities, in terms of the resources expended (the local police operate here, not specialized units) - articles of the Code of Administrative Offences, there is no need to move on to more costly criminal articles. And indeed, although it is very easy to see “discredit” in something if necessary, so far the criminalization of “repeated discredit” is, as already mentioned, less than 2%.

Fourthly, the hypothesis seems plausible, which I would call political self-restraint in terms of the use of criminal repression. The flywheel of such repression is very easy to spin, especially in a situation of armed conflict, without even planning it, but it has been suggested more than once that the Russian authorities want to avoid truly mass terror, which is always insufficiently controlled, and do not stimulate law enforcement agencies to increase the number of cases without limit. And preliminary observations of this year’s law enforcement tend to confirm this hypothesis: it’s too early to count, but criminal prosecutions in the first half have more or less stabilized, at least compared to last year’s rapid growth. For example, “repeated discrediting” (Article 280.3) and “military fakes motivated by political enmity” (Article 207. Part 2, paragraph “d”), that is, the main new charges, in total, brought, according to SOVA , for 9 months of 2022 there are just over 110 cases, and for the first 6 months of 2023 - 62.

Results of the year

Criminal enforcement of “extremist speech” is an important part of repressive policies. Those statements that are considered inflammatory and fraught with a real attack on political stability are persecuted. Of course, the known features of Russian lawmaking and law enforcement make this counteraction to “dangerous incitement” very redundant (not to mention constitutionality), but the political task, undoubtedly, is precisely that.

This area of ​​law enforcement has always been determined by two main factors.

The first is bureaucratic: law enforcement agencies must gradually improve reporting.

The second is political: a request could come from above for escalation, inhibition, or - much less often - for de-escalation. This request was always based on ideas about real or, rather, potential threats to state security (and often seemed irrational to ordinary citizens), be it the activity of far-right movements or radical Islamists, the threat of the “Orange Revolution” or the activation of Navalnists, etc. But, what Significantly, enforcement as a result of the request varied not only in relation to such a trigger threat, but across the entire front.

In 2022, I think there were two clear perceived threats - destabilization of the regime through anti-war protests and the widespread spread of militant pro-Ukrainian actions (acts of sabotage, attacks on authorities, departure to Ukraine with the aim of participating in hostilities on its side). Over the course of a year, I think the authorities decided that these threats were less dangerous than they seemed. And therefore, it no longer seems necessary to increase criminal prosecution for calls for such actions (prosecution for militant actions themselves is not the subject of this article).

On the other hand, although it is difficult to give exact calculations here, according to the observations of the SOVA center, last year (and in the first half of this year) all anti-extremist (and anti-terrorist) law enforcement, to a much greater extent than was the case before, focused precisely on the main threats, leaving other potential targets of persecution on the rarely visited periphery.

In other words, the law enforcement system coped with the task assigned to it. But, if we take into account this concentration on the main threats and the resource and political limitations discussed above, we can say that it managed almost to the limit of its current capabilities or close to it.

Probably, such assessments have already been reported to the political leadership, but they should be concerned about the margin of safety. If you take the assessments into account and decide that it’s time to draw conclusions, then you can draw different ones.

The first and most obvious one is that we can significantly expand the staff of the relevant departments and departments throughout the law enforcement system. It's hard to say how easy it is to do this. You can try to compensate for the “shortage” of criminal cases for speaking out with the severity of punishments - this is already being done, but whether it works is unknown. It is possible to again expand the use of administrative measures as preventive measures - there is definitely a reserve of resources here, and this path can be taken. It is possible to more decisively abandon the prosecution of objects of anti-extremist law enforcement in general that are not so significant for political stability. Jehovah's Witnesses immediately come to mind, but they hardly seem unimportant to the authorities, since so many resources have been spent on this area for so many years (and this year the number of these cases has increased again). So this method, if used at all, will be very limited. One can finally decide that “public incitement” in general is not as dangerous as it seemed, and simply pursue it less, repeating in one form or another the de-escalation steps of 2018 and focusing the efforts of the law enforcement system on more material actions, which, after all, enough. But de-escalation, inevitably public, would not be easy to combine with the general state of state propaganda, so the likelihood of such a solution must be assessed as low.

Sources

• Alexander Verkhovsky. The law enforcement machine in cases of “extremist statements” is working at its limit // The Moscow Times. 2023. August 30.