Misuse of Anti-Extremism in September 2018
The following is our review of the primary and most representative events in the misuse of Russia’s anti-extremist legislation in September 2018.
On September 20, 2018, the plenary meeting of the Supreme Court of the Russian Federation adopted a new Resolution on the use of anti-extremist articles of the Criminal Code, making changes to the corresponding document of 2011. The Resolution indicates that, whenever anti-extremist articles are applied, the fundamental freedoms may only be restricted in extreme cases, in accordance with the Constitution and international law.
Most of the recommendations pertained to the cases tried under Article 282 of the Criminal Code (incitement to hatred or enmity, as well as the humiliation of human dignity) and based on the Internet publications. The Supreme Court clarified the process of evaluating the context of a public statement, when deciding on the motive of a defendant charged with incitement to hatred or whether their statement constituted a danger to society. The Court recommended to take into account the form, content and number of published materials in question (including those previously recognized as extremist), the context of the publication, presence of any commentary describing the publisher’s attitude toward the material, the overall content of the defendant’s account and information about their personality, the size and composition of the post’s audience, and its reaction to the problematic publication. The Court also indicated the possibility of appeals against the decisions to initiate court proceedings citing the above circumstances. Unfortunately, all these explanations were made only with respect to Article 282 of the Criminal Code, although the same should obviously apply to other articles that deal with public statements (articles 280, 280.1, and partly 354.1 of the Criminal Code).
The Supreme Court also commented on the issue of using expert opinions in cases involving Article 280 (incitement to extremist activity), Article 280.1 (incitement to violation of the territorial integrity of the Russian Federation) and Article 282 of the Criminal Code. The Supreme Court indicated that the expert opinion in these cases had no predetermined validity and no advantage over other evidence, whereas the task of evaluating public statements for their liability under the provisions of anti-extremist Criminal Code articles falls within the exclusive competence of a court. In our opinion, a determination that any expert opinion, which touches upon legal issues, is to be rejected as inadmissible evidence could substantially change the current deeply flawed practice of using expert opinions in the cases pertaining to extremist crimes.
Prosecutions for Incitement to Hatred and Oppositional Statements
In early September, having conducted an audit, the Investigative Committee decided to open a criminal case under Article 282 Part 1 of the Criminal Code against Lyubov Kalugina, a feminist activist from Omsk. The activist was charged with inciting hatred towards men on a social network. The statements in her posts, which the law enforcement found objectionable, differed in their aggressiveness, ranging from crude humor to the ones possibly exhibiting signs of insulting dignity and inciting violence. However, we believe that the risk to the public, stemming from aggressive statements made by radical feminists, is small, since their rhetoric is not related to practice of using real violence; thus, there was no need for criminal prosecution against Kalugina.
At the same time we learned that a criminal case under Article 282 of the Criminal Code was initiated in Saratov against local resident Natalia Kovalyova in late August. She was charged with inciting hatred towards the social group “judiciary” for publishing on her own YouTube channel a number of videos with satirical songs and appeals to the authorities, in which she denounced the “corruption, nepotism, curatorship” practiced, in her opinion, by the Saratov judiciary. Kovalyova’s friend, 60-year-old Galina Kolpakova, was also interrogated in relation to the case. Kolpakova had posted Kovalyova’s videos, as well as her own appeals to the Russian president, on her YouTube channel. The case was opened as a result of an audit, carried out based on the complaint by the Saratov Regional Court; the head of this court was the main target of Kovalyova's criticism in the incriminating materials. We believe that this case under Article 282 of the Criminal Code was opened inappropriately. Kovalyova’s publications were not directed against the entire judicial community – they were targeting only a small number of its representatives. In addition, we believe that judges do not constitute a vulnerable social group in need of special protection from the manifestations of hatred. We advocate for eliminating the vague concept of “social group” from anti-extremist legislation altogether, due to its high potential for abuse. In addition, we found no aggressive appeals that would merit criminal prosecution due to their social danger in Kovalyova’s videos.
Four cases of inappropriate prosecution under Article 20.3 of the Administrative Code for displaying prohibited symbols on VKontakte were reported in September. Notably, the defendants in all four cases are activists of Alexei Navalny’s headquarters, and three cases pertain to activists from the Kemerovo Region. The report against Oleg Astafyev from Novokuznetsk was based on his publication of the “Punk Anthem” – the 2005 animated music video by the Red Mold [Krasnaia Plesen’] band about punks fighting against Nazis. Seventeen-year-old Lev Gyammer, also from Novokuznetsk, was prosecuted for publishing four comic videos, three of which were cut together from several comedies about Hitler and Nazism, and the fourth was satirical History of World War 2 by History Bombs; all the four videos showed the swastika. In Kemerovo, Serafima Tebenikhina received the summons for sharing the images depicting various religious symbols allowed for tombstones by the US Department of Veterans Affairs; they included the emblem of the Japanese syncretistic religion Seichō no Ie, which contained a right-side swastika, markedly different from the one used by the Nazis. We have no information regarding the outcome of these three administrative cases in the Kemerovo Region so far. In addition, a court in Ulyanovsk fined Vlad Maryin for publishing a comic post, which contained an image of the ISIS flag (the organization has been banned in Russia as terrorist).
The publications by these four activists were not aimed at propaganda of Nazism or the ISIS ideology, and we view the prosecution against them as inappropriate. Obviously, law enforcement agencies are searching for such materials on social networks as a pretext for putting pressure on the activists. This tactic was especially relevant in September in connection with the country-wide action of Navalny’s supporters against pension reform. Thus, according to Vlad Maryin, after his trial, an employee of the local police Center for Combating Extremism recommended him “to temper his ardor for oppositional activities.” As a result, Navalny supporters in Ulyanovsk decided to forego the rally, replacing it with a series of one-person pickets.
Prosecutions against Religious Organizations and Believers
In mid-September, the Babushkinsky District Court of Moscow issued a verdict in the criminal case of the Moscow cell of the banned Islamic religious movement Tablighi Jamaat; the defense appealed the verdict. Eight people received various terms of imprisonment from four to six and a half years under Parts 1 and 2 of Article 282.2 (organizing the activities of an extremist organization and participating in such). All convicted offenders were detained in Moscow and Kazan in December 2016–January 2017. The charges against them included organizing the meetings of their cell in a Moscow apartment in June–July 2016, studying prohibited literature and recruiting new supporters into the movement. Four defendants stated during the trial that they had been beaten and tortured with electric shock by FSB officers. In mid-June, the court interrupted the proceedings for almost a month and sent the reports of torture to the Investigative Committee for verification, but the agency found no irregularities in the actions of the FSB. The international religious organization Tablighi Jamaat was recognized as extremist in Russia in 2009. We view this ban as inappropriate – Tablighi Jamaat is preaching its version of Islam and has not been implicated in any calls for violence.
In early September, the Volzhsky District Military Court issued a verdict in the case of Chelyabinsk resident Amir Karymov, charged under Article 205.5 Part 2 of the Criminal Code (participation in the activities of a terrorist organization) in connection with the Islamic religious party Hizb ut-Tahrir, banned in Russia. He was found guilty and sentenced to two years and nine months in a minimum-security penal colony for participating in the activities of the local party “cell” and recruiting new members into it. We believe that Hizb ut-Tahrir is a radical party that could be banned as an extremist organization, but not as a terrorist one, since it has never practiced violence. Accordingly, prosecutions against Hizb ut-Tahrir followers under the anti-terrorist articles merely on the basis of their party activities (holding meetings, reading literature, etc.) are inappropriate.
At least two citizens faced responsibility in September on the charges of distributing banned religious literature under Article 20.29 of the Administrative Code. In Karachay-Cherkessia, Murat Mamedguseinov was fined on the charges of having possessed the Concise Commentary on the Book of Tawhid by the Saudi theologian Salikh al-Fawzan with intent to distribute it. The Concise Commentary on the Book of Tawhid contains sharp criticism of apostasy (from what the author views as true Islam), but does not advocate the use of violence against those the author considers apostates or unfaithful. We consider the prohibition of this book inappropriate; accordingly, in our opinion, the prosecution for its distribution is inappropriate as well. Smail Temindarov – the head of the urology department of the city hospital – was fined in Feodosia. The administrative case was initiated after FSB officers discovered religious literature recognized as extremist (the report contained no further detail) in the hospital prayer room. Temindarov pleaded not guilty of an offense, rightly noting that his professional duties did not include control over the prayer room literature circulation. From our point of view, it would have been more logical to levy fines on those who brought such literature to the hospital; in addition, the Prosecutor's Office could have sent a request to eliminate violations of the law to the hospital administration.
Igor Turik and Viktor Kuchkov were put under house arrest on charges under Article 282.2 Part 1 of the Criminal Code (organization of the activities of an extremist organization) in September in Perm; 77-year-old Boris Burylov is also being accused in the case. They are charged with continuation of the activities of a local Jehovah's Witnesses community. In April 2017, the Supreme Court of Russia issued the decision to recognize the Jehovah's Witnesses Administrative Center in Russia and 395 local Jehovah's Witnesses organizations as extremist. We regard this decision, which became the basis for the criminal prosecution of the believers, as legally unfounded.