Creation of Regulatory Acts
The scandal, which broke out in September over the ban against the collection of Koranic verses and commentary imposed in Yuzhno-Sakhalinsk (see below), brought to the fore the long-simmering issue - the viability of banning religious texts as extremist, and, more broadly, the specifics of the mechanism for banning materials as extremist. The problem was discussed by adepts of various religions, the media, and the government. As a result, two bills were simultaneously introduced in the State Duma. Shamsail Saraliev, a Deputy from Chechnya, introduced in the lower house of parliament a draft amendment to the law “On Combating Extremist Activity,” which would make it illegal to recognize sacred texts as extremist. The Deputy proposes the following adding to Paragraph 3 of Article 1: “Scriptures - the holy books of the world religions (including Abrahamic religions) are not to be recognized as extremist materials.” Note that asserting the superiority of one’s religion over others constitutes an integral part of any religious doctrine; therefore, recognizing texts as extremist on this basis is, in our opinion, ill-advised. Moreover, to analyze any ancient texts, not necessarily sacred, from the perspective of modern legislation is meaningless and absurd. However, it is impossible to determine what texts have the status of sacred; there is no list of “world religions” and their “holy books,” and the decision of whether a text rises to the status of “holy” should not be in the state’s purview. In the current situation, for example, it has to be determined whether translations of the Koran are considered holy (and, if so, which ones), and district courts, which have no relevant competence, would be asked to establish the authenticity of hadith.
Parliamentarians have also been considering the problem of judicial competence in matters of recognizing materials as extremist. In late September, a group of deputies from all Duma factions introduced amendments to the law “On Combating Extremist Activity,” and to the Code of Civil Procedure, stating that such cases should be decided by highest courts of the Federal subjects. We welcome this legislative initiative. It will improve the quality of judicial decisions due to the higher qualification of judges; it will also provide an opportunity to attract more competent experts and will make it easier to monitor new cases related to such bans.
Two other legislative initiatives in September, related to the fight against extremism, are worth noting. In both cases, the initiative belonged to outgoing Senator of the Federation Council Konstantin Dobrynin.
A bill “On countering attempts to justify the crimes of Stalin’s totalitarian regime (Stalinism)” was introduced in the second half of the month. The draft provides for a ban against justifying or denying the crimes of Stalin’s totalitarian regime, defined as a the crimes, condemned by the laws on rehabilitation of victims of political repressions and rehabilitation of repressed peoples, as well as other regulatory acts. Besides preventive (educational and advocacy) measures against such justification, and bans against commemoration of those involved in the crimes of Stalinism, the bill also suggests recognizing all normative acts of the Soviet authorities related to the period of political repressions under Stalin as extremist, prohibiting officials from making any public statements to justify the crimes of Stalinism, banning activities of Stalinist organizations or dissemination of any information aimed at justifying the crimes of Stalin's totalitarian regime. The draft law contains a disclaimer that its provisions do not apply to scientific, artistic and other creative activity, not intended for justification or denial of the crimes of Stalin's totalitarian regime. We welcome the overall direction of the bill, but some of its aspects deserve criticism. More information can be found here.
In mid-September, we were informed about the bill that proposed a new wording for Article 10.2 of the Federal Law “On information” that regulates the activity of bloggers. You may remember that the current version of the law defines a “blogger” as the owner of a website or webpage that is being visited by over three thousand people a day but is not registered as mass media. The owner must report his/her real name; s/he is listed in a special registry and faces responsibilities, which duplicate provisions of the law “On mass media.” The proposed wording of Article 10.2 shifts the burden of compliance with the legal requirements, similar to the requirements for the media, onto individual account owners. According to Konstantin Dobrynin, the main purpose of the bill is to relieve the social network owners of responsibility for the information published by their users. In our view, the proposal has some merit, because the platform should not be penalized for the offences of individual users; however, we view the entire Article 10.2 as problematic and call for its abolition.
Criminal Prosecution
September of 2015 was marked by a large number of criminal sentences related to extremist activity.
In early September, the Tagansky District Court of Moscow fully acquitted base-jumpers Anna Lepyoshkina, Alexander Pogrebov, Aleksey Shirokozhukhov and Yevgeny Korotkov, charged under Article 213 Part 2 and Article 214 Part 2 of the Criminal Code (hooliganism and vandalism committed by a group motivated by political hatred). St. Petersburg roofer Vladimir Podrezov was found guilty under the same charges and sentenced to imprisonment of 2 years and 3 months. As you may remember, on August 20, 2014, unknown persons raised the flag of Ukraine on the steeple of a high-rise building on Kotelnicheskaya embankment in Moscow, and painted the star on the steeple in the colors of Ukrainian flag. The four base-jumpers were charged for the action and put under house arrest. Later, Ukrainian roofer Pavel Ushivets took responsibility for this action; he was charged under the same articles in absentia; Podrezov was arrested and detained in a pre-trial facility on the charges of complicity in Ushivets’ action. The group of base-jumpers completely denied their involvement in the events from the outset. Podrezov also testified to their innocence. The base-jumpers spent six months under house arrest; they subsequently appealed their arrest with the ECHR. We view the verdict against Podrezov as inappropriate - a possible target of his hatred is not clear; furthermore, the action should have been considered a minor (rather than gross) violation of public order and tried as an administrative offense under Article 20.1 of the Administrative Code. The Tagansky District Court sentence has been contested by both the defense and the prosecution.
In mid-September, the Naberezhnye Chelny City Court found Chairman of the Tatar Public Center Rafis Kashapov guilty under Article 282 Part 1 (incitement to hatred or enmity) and Article 280.1 Part 2 (public calls for action aimed at violating the territorial integrity of the Russian Federation) and sentenced him to three years in a penal colony. Kashapov was charged for publishing four materials on his VKontakte page in 2014 - “Crimea and Ukraine Will Be Free from the Occupiers,” “Yesterday, Hitler and Danzig; today, Putin and Donetsk!” “Defend Ukraine and the entire Turkic world,” “Where Russia Is, There Are Tears and Death.” We view this verdict as inappropriate. We had an opportunity to read these materials and found nothing that constitutes a crime under Article 280.1 of the Criminal Code – they only contained the author’s statements of opinion and some clauses of the international law. We further found no signs of incitement to hatred on ethnic grounds, and no calls for military action. As for Kashapov’s criticism against the Russian authorities, it cannot be viewed as an incitement to hatred and prosecuted under Article 282, in accordance with the Supreme Court’s clarification of anti-extremist law enforcement practice.
On the same day, opposition activist Sergey Titarenko was sentenced to a fine of 100 thousand rubles under Part 1 of the Criminal Code Article 280 (public calls for extremist activity) in Krasnodar. The court found that Titarenko, motivated by hatred of the current political regime and President Vladimir Putin, deliberately shared on his VKontakte page a message by the “Kolomoysky Broadcasting” group, which contained the text about a reward, allegedly offered for the elimination of the Russian president Vladimir Putin under the caption “No Dictator - No Problem.” Titarenko shared this text without any comments to indicate his own position, so, in this case, the repost should not be interpreted as a call to action. In our view, the police would have been justified in demanding the removal of this incendiary falsehood, but the original author of the post should be the one to merit criminal prosecution.
In the second half of September, a few more people were wrongfully convicted under the same Article 280 for incitement to extremist activity, but, unlike Titarenko, they were given amnesty.
The Leninsky District Court of Cheboksary sentenced RPR-PARNAS activist Dmitry Semyonov to a fine of 150 thousand rubles, and then issued an amnesty, releasing him from penalty and expunging his criminal record. Semyonov was charged with distributing, via his VKontakte page a caricature of Dmitry Medvedev's wearing а Cossack hat with the caption “Death to the Russian Viper.” We view the verdict against Semyonov as inappropriate. The de-motivator he shared has been fairly widespread on the Internet; apparently, its creator intended to show that the Prime Minister carries out “anti-Russian” policies. Semyonov, who has decried the Russian government’s failure to provide support for Russians in other subjects of the Federation and former Soviet republics, likely interpreted the image in a similar way. It is unreasonable to view the image as inflammatory and an actual incitement to murder Russians in this case. Semyonov has appealed the court's decision.
Konstantin Zharinov, an activist of the South Ural Civic Movement, was sentenced by the Tsentralny District Court of Chelyabinsk under the same article to two years' imprisonment with a probation period of two years; he also received an amnesty. Zharinov shared on his VKontakte page an appeal by the Right Sector to “Russians and Other Enslaved Peoples,” which called for actions of disobedience, establishment of guerrilla groups, and other forms of resistance against the regime. According to Zharinov, he quickly removed the entry, but it had been posted for a sufficient period of time to attract attention of the FSB, which opened a criminal case. To some extent, the intelligence services’ interest in Zharinov could be attributed to the fact that he is a political scientist specializing in terrorism. In our view, the sentence against Zharinov is inappropriate. Since the author didn’t express any approval for the Right Sector’s appeal, as well as taking into account the nature of his other activity on social networks and blogs, not characterized by any aggressive rhetoric, the law enforcement authorities’ request to remove the material (if still on the page) would have been sufficient; the criminal proceedings were a disproportionate measure.
We would also like to mention a similar verdict, issued on the first day of the following month of October. The Industrialny District Court of Khabarovsk sentenced LGBT activist Andrey Marchenko to a fine of 100 thousand rubles, and then granted him amnesty. Marchenko was found guilty of having published on his Facebook page some statements that “contain calls for violence, including physical destruction, against a social group, defined by the author as residents of Russia who, in his opinion, support fascism and terror, and have committed violent takeover of Ukrainian territories” In our opinion, the verdict against Marchenko is at least partially inappropriate. “Residents of Russia - the supporters of fascism and terror, who committed violent takeover of Ukrainian territories” are not a group that falls under the protection of anti-extremist articles. Social groups cannot be defined on the basis of a political opinion, and therefore call for the use of violence against a groups united by political opinions, cannot constitute a crime under Article 280. In addition, incitement to violence against a group, which have “committed violent takeover of territories “ (of another state) is legitimate and stipulated by legislation of all countries (including, of course, Ukraine) as protection of territorial integrity.
In September, we learned the details of the charges against Ukrainian citizen Nadezhda Savchenko. The trial in this high-profile case started in mid-September in Donetsk, the Rostov Region. It turned out that Savchenko was charged under paragraphs “a,” “f,” “g” and “k” of Article 105 Part 2 (murder of two or more persons committed in a socially dangerous way by a group of persons by prior agreement or an organized group, motivated by hatred or enmity towards a particular social group). The indictment defined a social group “the civilian population of Luhansk region (Ukraine), in connection with their refusal to acknowledge the legitimacy of the current government in Ukraine and their desire to create a separate territorial entity - Luhansk People’s Republic” as the target of hatred that motivated Savchenko. We have to mention that the offence, incriminated to Savchenko, is, in our opinion, inappropriately qualified. The actions she is accused of occurred (or not) under battle conditions, so they could be qualified as a war crime, to which the provisions of the Criminal Code Section VII, relating to the conditions of peace, are not applicable. By constructing an arbitrary social group, as it was done in the indictment, any war crime against civilians can be interpreted as hate crime, which is wrong as a matter of principle. (Here, we chose to forego discussion of the fact that a vague notion of “social group” has resulted in widespread abuse, and we would prefer to see it removed from the anti-extremist articles altogether.)
Administrative Prosecution
In September, we found out that three individuals and one legal entity faced responsibility under Article 20.29 of the Administrative Code for distribution of inappropriately prohibited materials or possession of those with intent to distribute. The owner of the Islamic goods shop in Grozny was prosecuted because several religious books recognized as extremist were found in her store; Nur, a Muslim community in Komsomolsk-on-Amur, was fined 100 thousand rubles for keeping two banned books in their mosque. Jehovah's Witnesses in Kotlas, the Arkhangelsk Region, faced prosecution after a raid on their prayer room, but it was later established that the seized literature contained no extremist items, and the case was closed.
Two residents of Closed Administrative-Territorial Entity Seversk in the Tomsk Region were fined under the same article for, among other things, sharing on a social network the video “Donald Dag - the Banned Episode”, included on the federal list of extremist materials. As it turned out, the video in question was a famous anti-fascist classic Disney animation Der Fuehrer’s Face from the Donald Duck series, made in 1942. The cartoon was added to the List as part of No. 2030 among a large number (over 100) of videos that were, indeed, predominantly racist.
In September, we were informed about five prosecutions under Article 20.3 of the Administrative Code for demonstration of extremist symbols with no intention of promoting extremism. In late August, a resident of Kemerovo was sentenced to a fine of one thousand rubles for sharing on a social network a link to an antifascist article “Six terrible rules of Nazism: How to melt personalities into a biomass” - a retelling of Bruno Bettelheim’s book “The Informed Heart,” illustrated with a photo of Hitler on the podium, and accompanied by information about using online tools to distinguishing between genuine and fake photos (with pictures that showed the swastika incorporated into actual images). Later, a PARNAS activist was fined two thousand rubles in Novosibirsk for posting on social networks a drawing of two little men holding hands, with the swastika image on one of them, and the hammer and sickle on the other - the image in question was anti-communist, rather than promoting Nazi ideology. Yet another Novosibirsk court fined a former activist of Other Russia 1.5 thousand rubles for posting images with the swastika on his VKontakte page. The images included anti-fascist pictures and Red Army insignia from 1919. Two more people were prosecuted in Krasnodar. Daria Polyudova, the eternal target of prosecution by local authorities, was sentenced to four days of administrative detention for publishing on social networks the music video “This Is Rashism, Baby,” based on the song by Boris Sevastyanov. The song contains harsh criticism of the Russian state propaganda and its foreign policy in connection with activities in Ukraine, which the author views as characteristic of totalitarian regimes. In this case, as in many others, Nazi symbols (clip contains excerpts from the Third Reich newsreels) are demonstrated for polemic purposes. Another Krasnodar activist, Yuliya Usach, was sentenced to a fine of fifteen thousand rubles on the second attempt (initially, the case had been returned to the prosecutor's office) for the several cartoons and de-motivators featuring a swastika, which were posted and publicly visible on her VKontakte page. All images were satirical in nature and definitely not intended to advocate Nazism.
The owner of the commerce and entertainment center in Yaroslavl was fined 20 thousand rubles under Article 6.17 of the Administrative Code (violation of Russian legislation on the protection of children from information harmful to their health and/or development) in September; the owner of a cafe in Tambov received a motion on eliminating the violations of the law. In both cases, the charges related to providing Wi-Fi access without content filtering. We oppose the prosecution of administrators of cafes, internet cafes, hotels and similar establishments for lack of content filtering, since these establishments are designed not only for children (supervised by the parents), but also for adult users whose rights should not be limited .
Materials Banned as Extremist
In September, a Cherkessk court recognized the article “Internationalism, Karachay-Style,” published in March 2014 in both printed and online versions of the Sovershenno Sekretno newspaper, as extremist on the grounds that the article contained statements inciting ethnic hatred. This article is a historical essay, which examines the memorandum “On Negative Processes in the Karachay-Cherkess Autonomous Region” of December 9, 1980, written by then-KGB chairman Yury Andropov, and draws some conclusions about the limited reach of the KGB and failure of Soviet nationalities policy. The author provides numerous quotes from the document, related to growing national tensions in the country and an increased hostility of Karachay people against Russians, including some quotes that really contain “statements aimed at inciting hatred and enmity.” However, these statements belong to anonymous criminals (the quote relates to cases of bullying, mass brawls and so on.), and the position of the document’s authors is clearly marked by preceding the quote with the words “followed by cynical statements and shouts.” The prohibition against this article is clearly inappropriate. The Supreme Court 2010 ruling on media regulation clearly states that a quote cannot be imputed to the author of the overall text.
In September, we were informed that two Jehovah's Witnesses booklets (“Keep Yourselves in the Love of God” and “Let the Spirit of God, and Not the Spirit of the World Affect You”) were banned in Kurgan. The court agreed with the prosecutors’ arguments - based on expert opinions by linguists and religious scholars - that these publications were extremist, since they were allegedly “aimed at inciting religious hatred and enmity towards people, who do not belong to the Jehovah's Witnesses religious organization.”
The most remarkable event of the month in the area of enforcement of anti-extremist legislation was a notorious decision of the Yuzhno-Sakhalinsk City Court. It was reported in early September, that, on August 12, 2015, the court recognized as extremist the book Prayer (du'aa) to God: its purpose and place in Islam - a brief explanation of Koranic verses, presented in Arabic and in Russian translation. The Court agreed with the expert opinion that the Koranic texts given in the book and the corresponding commentary contained propaganda of the superiority of Islam over other religions. The court's decision, in particular, said: “The component analysis showed that the text in question “presents Allah as an antithesis to the undefined multitude of gods that exist in other religions and are false; Muslims, who worship “Allah,” are characterized as true in contrast to polytheists, or followers of other denominations, who are also false. These fragments indicate the superiority of one group of people over the others on the basis of their relationship to religion, their belonging to Islam, to the Muslims.” It should be noted that the expert opinion in this case contained errors and was generally incompetent.
The ban against scripture verses attracted believers’ attention, and the resonance managed to surpass even the scandal inspired by the ban of the Koran in Elmir Kuliev’s translation. Chechen ruler Ramzan Kadyrov unexpectedly rushed to lead this wave of indignation; he started with overt threats against the Yuzhno-Sakhalinsk law enforcement authorities and then appealed the court’s decision. The Council of Muftis of Russia was preparing its complaint at the same time. The Yuzhno-Sakhalinsk Prosecutor's Office, evidently having realized the consequences of the mistake, hurried to challenge the court's decision, pointing out that the charges pertained only to the comments and not to the verses per se, - a false statement, as evident from the official filed charges on record. As mentioned above, the discussion on banning extremist materials in the wake of the scandal has resulted in two bills, introduced in the Duma; if adopted, these bills could reduce the number of inappropriate bans, but will not solve the problem in general. In order to achieve a real solution, amendments must be made to a number of infelicitous formulas in the Law on Combating Extremist Activity, and, in particular, the Federal List of Extremist Materials has to be eliminated as a faulty and inflexible mechanism. At the same time, it would be beneficial to review many past decisions and, as a matter of first priority, review restrictions against religious literature, the majority of which are just as inappropriate as the infamous decision of the Yuzhno-Sakhalinsk Court.
