Misuse of Anti-Extremism in October 2017
On October 12, the State Duma approved in the first reading a bill that establishes legal responsibility of search engines for failure to connect to the informational system containing the information about blocked websites and for failure to fulfill their obligation to cease supplying hyperlinks to such websites. The bill proposes adding Article 13.39 to the Code of Administrative Offenses; under this article, citizens involved in maintaining the functionality of search engines would be subject to a fine of 5,000 rubles, officials – to fines of 50,000 rubles, and legal entities – to fines ranging from 500 to 700 thousand rubles.
On October 26, the State Duma approved in the first reading the bill on extrajudicial blocking of websites, which contain information coming from organizations, whose activities are recognized as undesirable in Russia. This bill extends the extrajudicial blocking mechanism introduced by Lugovoy’s Law to websites that contain materials from undesirable organizations or information on gaining access to such materials. If the bill is adopted, the mere presence of a hyperlink to materials of an undesirable organization will become a sufficient reason for blocking any website. We view the practice of extra-judicial blocking online materials as unacceptable, since it leads to arbitrariness and abuse by law enforcement agencies; moreover, the proposed bill creates an instrument, unprecedented in scope, for curtailing freedom of speech on the Internet.
On October 5, Deputy Oleg Smolin from the Communist Party introduced in the State Duma a bill to amend Article 148 Part 1 of the Criminal Code (public actions expressing obvious disrespect for the society and committed with intent to insult the religious feelings of believers). The amendment proposes that this part of Article 148 covers only the acts committed “during and on sites of conducting religious rites, assemblies and ceremonies.” Smolin believes that the law in its existing form does not clearly define “the ways in which the right to freedom of conscience and religion can be violated by an insult to the religious feelings of believers,” while the broad interpretation of this law “clearly encroaches on freedom of speech and freedom of transmission, production and dissemination of information.” We believe that the article in its present form indeed violates the rights of citizens to freedom of speech and freedom of conscience. However, the amendment proposed by Smolin, even if viewed as a half-measure intended to limit abuses in the application of Article 148, does not look sufficiently thought out. The reviews of the bill, provided by the government and the Supreme Court, appropriately noted that insulting the feelings of believers in the places of worship was already subject to the sanctions under Article 148 Part 2 of the Criminal Code, more severe than Part 1. However, Smolin’s amendment does not provide for modification of Part 2 or its deletion from Article 148, thus creating competition between the two parts of the article.
Тhe Practice of the European Court of Human Rights
On October 3, 2017, the European Court of Human Rights (ECHR) issued its first decision on a complaint regarding the application of Article 282 of the Criminal Code, having satisfied the claim of Nizhny Novgorod journalist and human rights activist Stanislav Dmitrievsky. Dmitrievsky received a suspended sentence of two years under Part 2 Paragraph “b” of Article 282 (incitement of hatred or enmity, committed in the media with the use of official position) in 2006. The prosecution was based on the publication by Dmitrievsky – then the executive director of the Russian-Chechen Friendship Society and the editor-in-chief of Pravo-Zasсhita newspaper – of the statements by Ahmed Zakayev and Aslan Maskhadov in the spring of 2004. The ECHR decided that Dmitrievsky’s conviction and the severity of punishment imposed on him could have a “сhilling effect on the exercise of journalistic freedom of expression in Russia and dissuading the press from openly discussing matters of public concern, in particular, those relating to the conflict in the Chechen Republic.” Thus, the Russian authorities “overstepped the margin of appreciation afforded to them for restrictions on debates on matters of public interest.” Dmitrievsky’s verdict was not dictated by pressing needs of society and was disproportionate to the aims invoked by the Russian authorities. In this case, interference in the exercise of the right to freedom of expression was not necessary in a democratic society, and, therefore, violated Article 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression. The ECHR ordered Russia to pay Dmitrievsky ten thousand euros in compensation for non-pecuniary damage and 3,615 euros in respect of costs and expenses. We welcome this decision of the ECHR and hope that it will help to protect the publishers’ right to disseminate information of public interest and, in general, will encourage Russian courts to consider cases under Article 282 of the Criminal Code more carefully. We provide additional details on this decision here.
In mid-September though early October, the ECHR communicated several additional complaints pertaining to the use of anti-extremist legislation in Russia in connection with various statements, posing the following questions to Russia: whether the publications in question were really arousing hatred and presenting danger to society, whether the defendants’ guilt had been sufficiently proved, whether particular sanctions against them had been necessary, and whether any of the above had been done in violation of the provisions of the European Convention.
Journalist Ilya (Ille) Ivanov and editor-in-chief of the Vziatka newspaper Eduard Mochalov contest the decisions of the Morgaushsky District Court and the Supreme Court of the Republic of Chuvashia that had sentenced Ivanov to 300 hours of mandatory labor under Article 282 of the Criminal Code for incitement of ethnic hatred. The charges had been based on the article “Show Me Your Tongue, and I’ll Tell You Who You Are” published in Vziatka in 2011. Eduard Mochalov, who has repeatedly claimed to be the real author of the article in question, disputes the decision to recognize it as extremist issued by the Supreme Court of Chuvashia in 2012.
The complaint regarding the first case of Alexander Byvshev was communicated as well. The poet was sentenced in 2015 by the Kromsky District Court of the Oryol region under Article 282 Part 1 to 300 hours of mandatory labor with a two-year ban on the profession (secondary school teaching) and confiscation of his laptop for publishing a poem “To Ukrainian Patriots.” The content of the poem, written in the wake of the Crimean events, was limited to calling on the Ukrainians to meet “the Moskal gang,” which invaded their land, with armed resistance.
The European Court also communicated the complaint filed in 2009 by Yuri Mukhin, the former editor-in-chief of the Duel newspaper. The publicist and politician challenged the decisions to discontinue the activity of the Duel for publishing calls for extremist activity and to ban the leaflet “You voted, you have the right to judge,” as well his conviction under Article 280 Part 2 of the Criminal Code (public incitement to extremist activities using the mass media) for publishing the compilation “Death to Russia!“ (recognized as extremist two years later) in the Duel in 2006.
It is also worth noting that, in mid-October, it was reported that the ECHR had communicated a complaint by Novosibirsk artist Artem Loskutov filed in connection with the case against him under Article 5.26 Part 2 of the Code of Administrative Offences (deliberate public desecration of objects of religious veneration). Loskutov was fined twice in 2012 after placing on the streets of Novosibirsk his posters in support of Pussy Riot stylized to resemble the Icon of Our Lady of the Sign. The Strasbourg court posed a question to Russia whether the prosecution against Loskutov violated the artist's right to freedom of expression.
Prosecutions for Incitement to Ethnic Hatred and Oppositional Statements
In mid-October, 2017, the Leninsky District Court of Ufa issued a verdict in the case of Sagit Ismagilov, an activist of the Bashkir national movement. Ismagilov was found guilty under Article 282 Part 1 of the Criminal Code (incitement to ethnic hatred) and sentenced to a fine of 320 thousand rubles. He was found guilty of reposting on the social network VKontakte a text on the closing down of the Humanitarian Research Institute in Ufa, in which the author blamed the Tatars for the collapse of the Bashkir culture. The text was accompanied by a photograph of a book page with the fragment from the 16th-century poem containing invectives against the Tatars of the Golden Horde. In our opinion, the works of the past centuries should not be evaluated for compliance with modern ideas of tolerance and, particularly, with legislation on extremism. Here we are in agreement with the relevant clarification recently issued by the Constitutional Court. However, the totality of the two texts mentioned above can indeed be regarded as a statement aimed at humiliating national dignity. In any case, we believe that humiliation of dignity should be decriminalized – for example, moved from the Criminal to the Administrative Code as an offense not posing a significant danger to society. Ismagilov intends to challenge the court's decision.
Earlier this month, the Vakhitovsky District Court of Kazan discontinued the case of writer Aidar Khalim, charged with inciting ethnic hatred. The charges against Khalim were based on his emotional statements about Russians, including references to Russian President Vladimir Putin, made on October 11, 2014 during his address at the meeting dedicated to the Day of Memory of the Defenders of Kazan Killed in 1552. In his speech Khalim reportedly reiterated the thesis of his own book Ubit Imperiiu (To Kill an Empire), later recognized as extremist, about the “biological death” of the Russian people, and said that Russians could only be saved after “getting rid of Putin.” Apparently, despite Khalim’s adherence to rather radical nationalist views, the above-mentioned speech contained no calls for aggressive actions towards Russians, but merely expressed his opinions on the policy of the Russian authorities and on the imperial mindset.
In mid-October, Tatarstan Prosecutor-General Ildus Nafikov issued a warning to the All-Tatar Public Center (Vsetatarsky obshchestvenny tsentr, VTOTs) regarding the impermissibility of violating legislation on combatting extremism. The Prosecutor's Office gave the organization two months to address the violation, which consisted of “carrying out its activities and issuing its decisions in the Tatar language only.” The Prosecutor's Office stated that, according to the Federal Law on the state language of the Russian Federation, Russian as the state language “is mandatory for use in the activities of organizations of all forms of ownership.” In addition, the prosecutors found “signs of information aimed at inciting hatred on the basis of “relationship towards language” in the January address by the VTOTs presidium to deputies of different levels, political and public organizations of the republic “Save the Tatar language,” which proposed for discussion the idea of granting Tarar the status of the only state language in the republic in order to counteract its gradual displacement. The Prosecutor's Office regarded this suggestion as a discriminatory statement and declared that the VTOTs was seeking to “limit the rights and legitimate interests of Russian-speaking citizens.” We believe that the actions of the Prosecutor's Office of Tatarstan are inappropriate. Violations of the law on language are not covered under anti-extremist legislation; meanwhile, the VTOTs made no calls for discrimination on the basis of language. Discussions regarding the status of a language, in our opinion, do not violate the law.
In late October, above-mentioned poet Alexander Byvshev from Kromy in the Oryol Region was charged under Article 282 Part 1 of the Criminal Code for publishing his poem “On the Independence of Ukraine;” he has been put under travel restrictions. Byvshev posted the poem on his VKontakte page in February 2015, and the case against him was initiated in September 2016. Byvshev is charged with inciting ethnic Ukrainians to hatred towards the Russians. In our opinion, the poem “On the Independence of Ukraine” does contain statements that can be interpreted as humiliating for the Russians. However, once again, we believe that humiliation of dignity should not be considered a criminal offense.
In mid-October, a criminal case against local resident Aidar Kuchukov, charged under Article 282 Part 1 of the Criminal Code, was submitted to the Miass City Court. According to the media reports, the defendant is a former investigator in the Miass police department and a former lawyer, who was deprived of his status for significant violations of his client's interests in a criminal case; he holds oppositional political views. According to the materials of the case, which give us some reasons to doubt whether all the charges against Kuchukov are legitimate, in 2016 the defendant “imposed provocative topics, unrelated to those being discussed, on the conversation participants, and posted messages grounded in ethnic hatred,” on the social network Moi Mir, as well as used insulting language with respect to the Russians. According to the prosecutors, Kuchukov was leaving comments under the news posted by various media outlets; in particular, he commented “about the inevitability of imminent defeat of the Russian Armed Forces in Syria, about the vulnerability of our weapons, about the antinational regime of Vladimir Putin and the rapid growth of popular protest aimed at changing the government.” In addition, commenting on the news about the release of the Russian smartphone, he “began to talk about illegal activities of the FSB in the Crimea, the antinational annexation of the peninsula, and the deterioration of quality of life in Russia because of it.” Such statements of opinion on political issues are not covered under Article 282 of the Criminal Code.
It was reported in late October, that a criminal case under Article 282 Part 1 had been opened in Veliky Novgorod against a 28-year-old local resident. According to the investigators, the suspect posted on his personal VKontakte page an image “expressing negative assessment of representatives of the social group “antifa” that advocates fighting against fascism” in March 2015. In our opinion, the criminal case has been opened inappropriately, since the post reportedly contained no incitement to violence, and, in addition, the “antifa” is not a vulnerable population group in need of protection under Article 282 of the Criminal Code.
In mid-October, the Volgograd Regional Court returned the materials of the case of Alexei Volkov, the coordinator of the Alexei Navalny’s headquarters in Volgograd, charged with public desecration of the symbols of Russia's military glory (Article 354.1 Part 3 of the Criminal Code), to the prosecutor's office for further investigation. The court found that the charge could be re-qualified to increase its severity. The criminal case against Volkov under Article 354.1 was opened based on the fact that, after the green dye attack against Navalny, he published in the Volgograd VKontakte community of Navalny’s supporters a collage of the Motherland Calls statue covered with green dye. The image was later deleted, and the community administration apologized, but materials regarding this post were published in a number of federal mass media outlets. We believe that that there is no clear justification for Volkov’s prosecution under Article 354.1; more details are available here.
In October, we learned about three cases of prosecution under Article 20.3 of the Administrative Code for demonstrating Nazi symbols not intended as propaganda of Nazism, that is, the cases that, in our opinion, should not entail sanctions. A Navalny supporter from Omsk was fined back in September for having posted an image of Pikachu Pokémon with the swastika on its helmet and a cartoon image of Hitler with the swastika on his sleeve on a VKontakte page five years ago; he claims to have perceived these as “the works of pop art.” An Orthodox Christian activist was sentenced to a fine in the Samara Region for sharing on VKontakte an image of two posters – a Nazi poster with Hitler (again with the swastika on his sleeve) and a Soviet poster with Stalin – along with the text drawing parallels between the two regimes. Neither the text nor the overall post was intended as propaganda of Nazism. An antiquarian from the Krasnodar Region was fined for posting an online announcement regarding the sale of a buckle with Nazi symbols from the Second World War period, which contained a photo of the buckle.
In early October, the European Parliament adopted a resolution on the human rights violation in Crimea. The deputies demanded the annulment of the verdicts issued in September against Deputies of the Mejlis of the Crimean Tatar People (banned in Russia) Ilmi Umerov and Akhtem Chyigoz, and journalist Nikolai Semena, and the immediate release of Umerov and Chyigoz. The European Parliament stated that the human rights situation in Crimea has deteriorated significantly, in particular due to the application of legislative norms pertaining to extremism, terrorism and separatism. In late October, Ilmi Umerov and Akhtem Chyigoz were released from custody and sent by plane to Turkey. According to media reports, they were pardoned by the president, despite the fact that they had never applied for pardon. Reportedly, they were pardoned upon request of the mufti of Crimea, but Ukrainian President Petro Poroshenko said that the release of Umerov and Chyigoz happened due to the agreements with Turkish President Recep Erdogan.
Prosecuting Religious Organizations and Believers
On October 13, the Parliamentary Assembly of the Council of Europe adopted a Declaration on Freedom of Religion in Russia. The declaration was signed by 28 deputies from 14 European countries. The authors of the declaration noted that, “whilst the Russian Constitution guarantees every citizen the right to freedom of religion or belief, this fundamental right is at risk as the Russian authorities continue to foster an atmosphere of intolerance, discrimination and persecution against religious minorities throughout the entire Federation.” The total ban imposed on Jehovah's Witnesses in 2017 served as the principal example of this trend. According to the declaration, Evangelical Christians, Lutherans, Baptists, Pentecostals, Methodists, Presbyterians, Muslims, Hindus, Buddhists, Scientologists and representatives of other religious groups are being persecuted in Russia; some of them remain under arrest awaiting their trial on the basis of the 2002 law on combating extremist activity, while, in fact, they are charged for “simply engaging in peaceful religious beliefs and activities.” The Declaration calls on the Russian government to “put an end to these violations of the right to freedom of religion or belief of members of religious minorities.”
In late October, it was reported that a court in Nizhny Novgorod recognized a citizen of Uzbekistan, a team leader in a cleaning company, guilty under Article 282.2 Part 2 of participation in the activities of Tablighi Jamaat and sentenced her to 1 year of imprisonment to be served in a settlement colony.
The criminal case under Article 282.2 of the Criminal Code for involvement in the activities of Tablighi Jamaat was initiated in Crimea in early October. Several homes on the peninsula were searched, and four people were arrested.
It became known in October, that, in late September, the Supreme Court of the Republic of Tatarstan changed the verdict, issued by the Naberezhnye Chelny City Court under Part 2 of Article 282.2 in April with respect to nine Tablighi Jamaat supporters. The reference to an aggravating circumstance in the form of committing a crime by a group of persons was excluded from the verdict, and, therefore, the prison terms were reduced for all the offenders.
We would like to remind that the Tablighi Jamaat religious association was banned in Russia in 2009; we regard this ban as inappropriate. The movement is engaged in preaching its version of Islam and has not been implicated in any calls for violence.
In mid-October, the North Caucasian District Military Court found Makhachkala resident Zurab Mamedov guilty under Article 205.5 Part 2 of the Criminal Code (participation in the activities of a terrorist organization) and sentenced him to five years in a minimum security penal colony. Mamedov was charged for joining the Islamic radical party Hizb ut-Tahrir (recognized in Russia as a terrorist organization) in 2012 and attending classes conducted by Hizb ut-Tahrir representatives in Makhachkala.
The Vakhitovsky District Court in Kazan arrested seven Muslims charged under Article 205.5 for involvement with Hizb ut-Tahrir. All of them were detained in Almetyevsk on October 17.
We view the charges against Hizb ut-Tahrir members under anti-terrorist articles as inappropriate, if they are based solely on the defendants’ party activities (holding meetings, reading literature, etc.)
In October, we learned about at least two cases of prosecution under Article 20.29 of the Code of Administrative Offences for distribution of inappropriately banned (in our opinion) religious literature. A resident of Magas faces a fine for storing in a market pavilion two copies of the Fortress of a Muslim – a collection of daily prayers, which shows no signs of extremism. A resident of Kunashak, the Chelyabinsk Region, was fined for distributing to his co-religionists an inappropriately forbidden brochure Woman in Islam and in the Judeo-Christian World, which extolls the advantages of the women’s position in societies that live according to the Islamic tradition.
Prosecution for Anti-Religious Statements
It was reported in mid-October that a criminal case had been opened in Krasnodar under Article 282 Part 1 of the Criminal Code against Maxim Drozdov. The charges were based on the fact of publication by Drozdov of his own satirical poem “Heretic” on his VKontakte page. Despite the fact that the material in question is an obvious satire on the Orthodox radicals, the investigation declared that the poem was aimed at humiliating the dignity of the social group “atheists.” In our opinion, the poem does not give the slightest grounds for criminal prosecution; hopefully, this absurd case will not reach the court.
In late October, the Central District Court of Sochi partially granted the appellate complaint of Viktor Nochevnov, convicted under Article 148 Part 1 of the Criminal Code (insulting the feelings of believers). The verdict of the Magistrates Court was revoked and the case was sent for a new consideration. In August, the Magistrates Court sentenced Nochevnov to a fine of 50,000 rubles. The prosecution was based on the fact that Nochevnov, under the pseudonym “Vityok Vlasov,” had shared a series of caricature images of Christ via the social network VKontakte. We spoke out against the verdict to Nochevnov.