Lawmaking

In early August, the Ministry of Communications issued for public discussion a draft amendment of the Federal Law on Information. The department proposes adding the information that contains “justification of and excuse for extremist and/or terrorist activities” to the types of information listed in the law as subject to extra-judicial blocking at the request of the Prosecutor General's Office. We view extra-judicial blocking of online materials as undesirable and permissible in exceptional cases only. The proposed changes, in our opinion, can lead to further increase in abuses related to restricting freedom of speech. While “public justification of terrorism” is defined in the relevant Article 205.2 of the Criminal Code (as a public statement on the recognition of the ideology or practices of terrorism as correct, and in need of support and following), Russian legislation never defines the concept of “ justification of and excuse for extremist activity,” opening the way for arbitrary interpretations.

Тhe Practice of the European Court of Human Rights

On August 28, 2018, the European Court of Human Rights (ECHR) ruled on two cases that involved application of Russian anti-extremist legislation, finding Russia in violation of Article 10 of the European Convention on Human Rights, which protects freedom of expression.

The ECHR upheld the complaint of the blogger Savva Terentyev against the verdict in his case issued under Article 282 Part 1 of the Criminal Code (publicly committing actions aimed at inciting hatred and enmity and humiliating the dignity of a group of persons on the grounds of their membership in a social group) and awarded Terentyev a compensation for legal expenses, but refused to compensate him for moral damage. Terentyev, a LiveJournal user, was given a one-year suspended sentence by the Syktyvkar City Court in 2008 for a comment he had left on a local journalist's blog. In this comment he sharply criticized the police and called for installing ovens on town squares for burning the “infidel cops.” The court found Terentyev's statement to contain incitement to violence against the police officers as a social group. Terentyev left for Estonia and was granted political refugee status there; he has later moved to Austria.

The ECHR drew attention to the fact that Terentyev's comment was made in the context of a discussion prompted by the human rights defenders’ press release about the police search conducted in the editorial office of a newspaper, which supported an opposition candidate in the regional parliamentary election – that is, in the course of the discussion of the alleged police involvement in silencing and oppressing the political opposition during the electoral campaign. It, therefore, pertained to a matter of general and public concern, a sphere in which restrictions of freedom of expression are to be strictly construed, especially in the pre-election period. From the ECHR's point of view, despite the fact that the blogger's statement was provocative and rude, it should be interpreted not as a call to real violence, but as a metaphor, which affirmed the applicant’s wish to see the police “cleansed” of corrupt and abusive officers. The Strasbourg Court also pointed out that the police – a law-enforcement public agency – can hardly be described as an unprotected minority or group with a history of oppression or inequality. Accordingly, the police should display a particularly high degree of tolerance to offensive speech, unless such inflammatory speech is likely to provoke imminent unlawful actions in respect of their personnel and to expose them to a real risk of physical violence. It has only been in a context of armed conflicts, fight against terrorism or prison riots that the Court has accepted the interference with such statements as justified.

The European Court also noted that comments, made by Terentyev – neither a public figure nor even a well-known blogger – apparently drew very little public attention prior to the initiation of the criminal case. Since the Russian courts failed to explain exactly how Terentyev's act had threatened public security and made no attempt to assess the potential of his statement to provoke any harmful consequences, their provided reasons cannot be regarded as “relevant and sufficient” to justify the interference with the applicant’s freedom of expression. Terentyev had received a suspended sentence; meanwhile imprisonment (even conditional) for statements on issues of public significance is an exceptional measure, and the criminal conviction constitutes a serious sanction in and of itself. The ECHR came to the conclusion that Terentyev’s criminal conviction had not met a “pressing social need” and had been disproportionate to the legitimate aim invoked; the prosecution against the blogger had not been “necessary in a democratic society.”

On the same day, August 28, the European Court issued a ruling regarding the prohibition against the works of the Turkish theologian Said Nursi, banned in Russia as extremist. The court unanimously decided to uphold the relevant complaints, which were combined into one case – “Ibragim Ibragimov and Others v. Russia.” The first complaint concerned the prohibition of fourteen works by Nursi from the Risale-i Nur collection. The corresponding decision was made by the Koptevsky District Court of Moscow in 2007. The complaint was filed on behalf of Nuru Badi Cultural Educational Fund, which published the books, and its head Ibragim Ibragimov. The Fund was a party to the process as a third party; so was the Council of Muftis of Russia. The second complaint, United Religious Board of Muslims of the Krasnoyarsk Region v. Russia,” challenged the ban on “The Tenth Word: The Resurrection and the Hereafter,” a brochure also included in Risale-I Nur. The decision to recognize the brochure as extremist was made by the Zhelezhnodorozhny District Court of Krasnoyarsk in 2010. The printing of the brochure was commissioned by the United Religious Board of Muslims of the Krasnoyarsk Region, which participated in the proceedings as a third party.

The European Court noted that Said Nursi was a well-known Turkish Muslim theologian and commentator of the Qur’an, and that Muslim authorities both in Russia and abroad, as well as Islamic studies scholars, all affirmed that his texts were moderate, belonged to mainstream Islam, advocated open and tolerant relationships and cooperation between religions, and opposed any use of violence. The Russian side submitted no evidence that dissemination of these works had caused interreligious tensions or led to any harmful consequences, let alone violence. Cultural, historical, religious and other local features, which provide ample opportunities for national legislations to regulate inter-religious relations, do not, however, allow one individual country to prohibit its citizens from accessing authoritative religious literature that is universally accessible throughout the world.

The ECHR indicated that the judges had essentially relied on expert opinions. The decisions to ban fourteen brochures included no references to any specific problematic passages from them; the court didn’t take into account the context of distribution of Nursi’s books and the possible negative consequences. Expert opinions submitted by the applicants were rejected by the courts, as were the opinions of the heads of Muslim organizations and experts on Islam. With regard to the process of recognizing the “The Tenth Word: The Resurrection and the Hereafter” as extremist, the ECHR noted that some of the offending words, used in the book to characterize followers of other faiths, as well as positive characteristization of the Muslims, did not cross boundaries of permissible criticism of other religions; they were not accompanied by calls for violence and can not be interpreted as inciting hatred and intolerance. The mere fact, emphasized by the Russian court, that the author’s intention was to convince the readers to adopt his religious beliefs is insufficient to justify the ban of a religious book, since the book did not advocate any illegal methods for achieving this goal.

Thus, the ECHR came to the conclusion that, when examining the cases on the recognition of Nursi’s books as extremist and their prohibition, the Russian courts failed to provide relevant and sufficient reasons for interfering with the applicants' right to freedom of expression guaranteed by Article 10 of the European Convention, and the interference in this case can not be considered necessary in a democratic society. The court ruled that Russia should pay Ibragim Ibragimov EUR 7,500 in compensation for non-pecuniary damage.

Meanwhile, the Federal List of Extremist Materials came to include four more editions of Nursi's works in August; the decision to ban them was made by the Sverdlovsky District Court of Krasnoyarsk in March and confirmed by the Krasnoyarsk Regional Court in June 2018.

Prosecutions for Incitement to Hatred and Oppositional Statements

In early August, another case of criminal prosecution under part 1 of Article 148 (insulting the feelings of believers) and Part 1 of Article 282 (incitement to hatred) for publication of images on the social network was reported in Barnaul – against 38-year-old Andrei Shasherin. According to him, he was forced to sign a confession that he had deliberately placed on VKontakte the images targeting groups of individuals based on heir ethnicity or religion, but he withdrew his testimony later. Based on the results of an outpatient psychiatric examination, the Leninsky District Court of Barnaul in the second half of July made a decision to send Shasherin for a new examination in a psychiatric hospital; challenging this decision proved impossible. We do not know how many memes were imputed to Shasherin, but the expert opinion referred to 36 images published on the social network. We know that one image pertained to a scandal with the watch edited out of the Patriarch Cyril’s photo – the meme has Jesus Christ asking the patriarch: “Do you have the time?” to which the latter responds with an obscenity. We view persecution for publishing atheistic memes as inappropriate. In our opinion, the legally indefinable concept of “insulting the feelings of believers” should have never been included in a criminal article at all. Another image, which pertained to Russia's policy towards Ukraine, was aggressive but satirical in its character and gave no grounds for prosecution. The third image called for violence against migrants from the Caucasus.

In late August, it became known that a criminal case under Article 282 Part 1 of of the Criminal Code had been opened in St. Petersburg against Yevgeny Nikolaev, 28, the author of the video blog “Belarusian’s Diary.” According to the investigation, the suspect had published a comment under another author’s video, which incited enmity and was degrading on the basis of ethnicity. We had a chance to review Nikolaev's comment. It contains the signs of humiliating the dignity not only of the Russians as a political entity, but also of ethnic Russians. However, it includes no aggressive appeals. Humiliation of dignity, from our point of view, presents no significant public danger and does not merit criminal prosecution.

Bagrationovsk resident Artur Smirnov, 27, who had been diagnosed with a mental disorder, was charged under Article 282 part 1 of the Criminal Code (incitement to hatred or enmity or humiliation of dignity on the basis of sex) in the Kaliningrad Region. He was charged for publishing misogynistic posts on VKontakte under the pseudonym “Anchen Nightmarish Dream Stirner.” He sent similar texts to his female university professor via e-mail and by leaving messages on her page – the act that, obviously, led to his expulsion and prosecution. After two years of investigation, the case now involves a single post, made by Smirnov on his personal page in 2014. It contains an image of a man hitting a woman, and a text in which the author speaks in harsh terms about women, their inherent qualities and their behavior. In our opinion, Smirnov’s post is not a direct call to violence, but certainly contains statements aimed at humiliating the dignity of women. We consider humiliation of dignity to be an act of small gravity, which should be excluded from the criminal article.

In the second half of the month, Lyubov Kalugina, a feminist activist from Omsk, reported that one of the city district departments of Investigative Committee is conducting a pre-investigation probe regarding a possible criminal case against her under Part 1 of Article 282 of the Criminal Code based on her VKontakte publications. The investigation was based on the complaint that her posts incited hatred towards men, received from an unnamed Birobidzhan resident. In late July 2017, Kalugina was summoned to a police interview, and she had to write an explanatory note. During a conversation in the Investigative Committee in August 2018, Kalugina was told that a criminal case could be opened against her, and that an expert examination was conducted for 12 posts from her page. The statements contained in these publications vary in their degree of aggressiveness – from the gross humor to the ones, which could be perceived as containing signs of humiliation of dignity and calls for violence against men. We believe that public danger of aggressive statements made by radical feminists is low, because, at the moment, their rhetoric is not connected with any practice of using real violence. Thus, there is no need for criminal prosecution for aggressive feminist texts. However, requests to remove such content could be quite appropriate.

Alexander Byvshev, a poet from Kromy of the Oryol Region, reported on social networks in mid-August that he had been questioned with regard to a new criminal case opened in late July under Article 280 part 2 of the Criminal Code (public appeals for performance of extremist activities commited online). According to Byvshev, the case is based on the fact of publication of his poem “Dedicated to Expansion of NATO to the East.” We doubt the expediency of prosecuting Byshev for the poem. Despite his bellicose rhetoric, the author calls for the expansion of NATO's borders as part of a containment strategy, not for a war with Russia. In addition, leaders of NATO or of the NATO countries are not among Byvshev's audience; therefore it is hard to imagine his calls having any practical significance. We would like to remind that Bystshev had been convicted twice under Article 282 Part 1 of the Criminal Code for publishing his poems; at this time, yet another case against him has been opened under the same Article 282 of the Criminal Code and also under Article 294 (obstruction of the administration of justice). We believe that all these cases lacked convincing grounds for criminal prosecution.

In August 2018, it was reported that the central office of the FSB is investigating the case related to the activity on certain VKontakte public pages and to an Instagram account dedicated to criminal matters. A couple from Yekaterinburg was charged under Part 2 of Article 280 (public calls for extremism via the Internet) and Parts 1 and 2 of Article 282.1 (organization of an extremist community and participation in it) of the Criminal Code; another defendant in the case is their friend. On May 31, the Verkh-Isetsky District Court put the men under arrest; they are in the Moscow Lefortovo prison. The pregnant wife was released under travel restrictions. They are charged for administering public pages that spread the ideology of the A.U.E. (Arestantskoe Urkaganskoe Edinstvo, Prisoners Criminal Unity) including propaganda of violence against law enforcement officers, and for distributing products “with the movement’s symbols.” The ideology of the criminal world (and the A.U.E. subculture) is oriented towards illegal activities and is conceptually incompatible with realization of constitutional rights of the citizens. Nevertheless, this ideology is not political and not aimed at changing the constitutional system. Therefore, we believe that the activity to popularize this ideology should not be subject to anti-extremist legal regulation, although, in principle, it can be criminalized. Perhaps, a new criminal norm, similar in composition to Article 239 Part 1 of the Criminal Code (creating a public association whose activities involve violence against citizens) should be provided for organizers of the structures that exploit crime matters and incite violence.

In early August, the Kyzyl Town Court of the Republic of Tyva fined local activist Oyumaa Dongak under Article 20.3 part 1 of the Code of Administrative Offenses (public demonstration of Nazi symbols). The law enforcement objected to Dongak’s post made on VKontakte in 2015, which contained an excerpt from the present-day interview with a German woman, who participated in the activities of the Nazi League of German Girls and a link to the interview itself. The post was illustrated by an archival photograph, on which girls were waving swastika-decorated flags. In addition, the police found on Dongak’s page a post with a photograph of Hitler sitting and holding a newspaper; the photo illustrated the post that the leader of Nazi Germany had once been recognized as the man of the year. We believe that Dongak was prosecuted inappropriately. Her posts were not intended to justify the Nazi ideology; on the contrary, they condemned it. However, the current Russian legislation allows punishing any demonstration of Nazi symbols without taking into account the context and purpose of their publication.

Prosecutions against Religious Organizations and Believers

In mid-August, the Sovetsky District Court of Krasnoyarsk issued a two-year suspended sentence to Sabirzhon Kabirzoda, 27, having found him guilty of involvement in the activities of the extremist organization Nurcular (Article 282.2 Part 2 of the Criminal Code). We regard banning both books by Turkish theologian Said Nursi and Nurcular (which has never existed in Russia at all) as inappropriate. In our opinion, there are only individual believers, who study the heritage of Nursi and face unreasonable persecution.

At the same time, Privolzhsky District Military Court sentenced Rinat Galiullin to eight years of imprisonment under Article 205.5 part 2 of the Criminal Code (participation in the activities of a terrorist organization). Galiullin was found guilty of continuing the activity of Hizb ut-Tahrir, a radical Islamic party banned in Russia. For his involvement in the organization Galiullin was already sentenced to six and a half years in a penal colony in 2013; his term was reduced to five years in 2015. Galiullin was charged for having conducted “collective and individual conversations with prisoners and attempted to involve them in the activities of Hizb ut-Tahrir”, while in prison.

Almaz Usmanov, the owner of a halal butcher shop was arrested in Ufa in mid-August. He was named a defendant in a criminal case under Article 205.5 initiated in connection with the activities of a Hizb ut-Tahrir cell. Usmanov became the fourteenth person to be arrested in this case. In March 2018, the defendants’ relatives reported that the defendants were being tortured.

We view charges of terrorism against Hizb ut-Tahrir followers made solely on the basis of their party activities (holding meetings, reading literature, etc.) as inappropriate.

In August, at least two new cases under Article 282.2 of the Criminal Code were initiated for continuing the activities of the Jehovah's Witnesses communities, banned in Russia as local branches of an extremist organization.

The Federal Security Service of Russia in the Khabarovsk Region conducted searches in at least four houses of Jehovah's Witnesses in Khabarovsk in early August. 51-year-old Valery Moskalenko was detained and then, on the following day, put under arrest by the court as a defendant under Article 282.2 Part 2 of the Criminal Code (participation in the activities of an extremist organization).

In the second half of August, the case under Article 282.2 Part 1 of the Criminal Code (organizing activities of an extremist organization) was initiated against three Jehovah's Witnesses from the city of Elizovo (the Kamchatka Region) – spouses Konstantin and Snezhana Bazhenov and their acquaintance Vera Zolotova, 72. The women were released under travel restrictions and the pledge of proper behavior; the court placed the man under arrest, but then released him without specifying any further pre-trial restrictions.

The Russian Supreme Court recognized the Jehovah's Witnesses Administrative Center in Russia and 395 local organizations of Jehovah's Witnesses as extremist in April 2017. We regard this decision, which became the basis for the criminal prosecution of believers, as lacking any legitimate grounds.