Misuse of Anti-Extremism in September 2020
In September, the State Duma adopted in the first reading a package of two bills on amending the Code of Administrative Offenses and the Criminal Code with respect to punishment for separatism or incitement to separatism. The most significant change envisioned in these legislative drafts is reclassifying incitement to separatism as an administrative offense; criminal liability for it will only come with repeated violations (for more details see here).
In September, the Ministry of Justice published a legislative proposal by the government to create a specialized data bank of extremist materials. As the Federal List of such materials gains additional entries, the Ministry of Justice will enter their copies into such a data bank for internal use in order to simplify identification of allegedly extremist materials by the way of comparison with the previously prohibited ones. If adopted, this amendment is expected to enter into force in 2021.
Meanwhile, the Ministry of Digital Development, Communications and Mass Media of the Russian Federation has published a draft bill to ban certain online encryption protocols. The plan is to amend the Federal Law “On Information, Information Technology and Information Protection” and ban the use of any encryption protocols that allow hiding the name of a webpage or a website, except in certain specific permitted cases. Violation of the ban will result in blocking the site within 24 hours. The purpose of the bill is to eliminate the increasingly widespread technical methods of bypassing restrictions.
In addition, the Kurultai of the Republic of Bashkortostan and State Duma Deputy Ramzil Ishsarin submitted to the Duma a bill that seeks to extend the blocking mechanism under Article 15.1 of the Federal Law “On Information, Information Technology and Information Protection” (that is, on the basis of a court decision) to materials identified in the course of intelligence tracking “if, according to the expert opinion provided during the intelligence tracking activities, they contain signs of extremist materials.” The bill was submitted with a positive opinion from the Federal Assembly Council of Legislators’ Commission on Legislative Support of the National Security and Countering Corruption and with a negative opinion from the government. Among other considerations, the government's response states that, on the one hand, granting “discretionary powers not proportionate to the level of public security threats” to agencies that carry out intelligence tracking creates preconditions for the violation of the constitutional rights of citizens, while, on the other hand, granting such powers fails to take into account the existing extrajudicial blocking procedure. We would like to remind that we oppose any expansion of the existing extrajudicial blocking mechanism for online materials, which has already led to arbitrariness and abuse by law enforcement agencies.
The Practice of the European Court Of Human Rights
In September, the European Court of Human Rights (ECHR) ruled in the Vasilyev and Others v. Russia case and partially satisfied a complaint by members of Hizb ut-Tahrir, a radical Islamic party recognized in Russia as a terrorist organization. A complaint to the ECHR was filed by five residents of Chuvashia, convicted in 2007 under Article 282.2 Part 2 of the Criminal Code (participation in the activities of a banned organization) and Article 282 Part 2 Paragraph “c” of the Criminal Code (incitement to hatred committed by an organized group). The ECHR refused to consider their complaint about the violation by the Russian justice system of a number of European Convention on Human Rights provisions: Article 9 (freedom of conscience), Article 10 (freedom of expression), Article 11 (freedom of assembly and association) separately and in combination with Article 14 (ban on discrimination). Back in 2013, as part of its review of the complaint “Kasymakhunov and Saybatalov v. Russia,” the ECHR concluded that, on the basis of Article 17 of the Convention, the activities of Hizb ut-Tahrir are not protected by the Convention, since the organization intends to abolish the rights and freedoms recognized by the Convention. However, the Strasbourg Court satisfied the complaint in its part relating to Article 6 of the Convention, which guarantees the right to a fair trial. According to the ECHR, the Russian court violated Article 6 because it provided no compelling reason for its refusal to disclose the witnesses in the case, and never explained why the testimony of the secret witnesses could be taken as a decisive evidence – as it usually happens in criminal cases that pertain to affiliation with Hizb ut-Tahrir.
Sanctions for Anti-Government Statements
It became known in mid-September that a new charge was brought against Darya Polyudova, an activist of the Left Resistance (Levoe Soprotivlenie) movement, under Article 205.2 Part 1 of the Criminal Code (public justification of terrorism). The charges were based on a video recording saved on Polyudova's phone. In the video, she, in a conversation with a fellow activist, commented on the armed attack against the FSB building on Lubyanka Street in Moscow organized by Evgeny Manyurov on December 19, 2019. According to the investigation, Polyudova’s statements in approval of Manyurov's actions could be heard by the people around her. We believe that there are no grounds for such a charge. The objective aspect of the crime under Article 205.2 of the Criminal Code implies that statements are made publicly, that is, addressed to a group or an indefinitely wide circle of people. However, in this case, it is unclear whether anyone, except for her interlocutor, heard or could have heard Polyudova's words. Even if someone did hear them, the number of such people is unlikely to have been large. The subjective aspect of the crime is characterized by a direct intention. If the conversation in question was private, not intended for prying ears, then it follows that Polyudova had no criminal intent in this case. It is worth noting that Polyudova has been in pre-trial detention since January of this year on charges under Article 280.1 Part 1 of the Criminal Code (public calls for separatism) and Article 205.2 Part 2 of the Criminal Code (public justification of terrorism on the Internet).
In mid-September, a citizen of Ukraine born in 1998 was detained in Crimea for distributing leaflets with incitement “to take actions aimed at violating the territorial integrity of the Russian Federation” in the cities of the peninsula. The young man was arrested as a defendant under Article 280.1 Part 1 of the Criminal Code (public calls for violating the territorial integrity of the Russian Federation). He was a member of the “Ukrainian Resistance in Crimea” community on the VKontakte social network; the community shared various materials criticizing the annexation of Crimea to Russia and calling for its return to Ukraine. We found no calls for violent actions among the materials we were able to access. We would like to remind here that we view prosecutions for incitement to separation of a particular territory from Russia as excessively restricting freedom of expression, unless the incitement is specifically to violent separatism.
The Leninsky District Court of Chelyabinsk in September found two eighteen-year-old activists of the Other Russia party guilty of involvement in the activities of the banned National Bolshevik Party (NBP). Artyom Golubev was issued a four-year suspended sentence with a four-year probationary period under Article 282.2 Parts 1 and 1.1 of the Criminal Code (organizing the activities of an extremist organization and recruitment into it); Mikhail Prosvirnin received a three-year suspended sentence under Article 282.2 Part 2 (participating in the activities of an extremist organization). Golubev, Prosvirnin and Alexander Kryshka, who received a suspended sentence of two and a half years in August, were arrested in June. According to the investigation, on April 25, 2020, these members of the Other Russia attacked a monument to the Czechoslovak Legion soldiers in Chelyabinsk, on which the defendants inflicted several blows with a sledgehammer, while unfurling the banner “You Shall Pay for Konev!” This action, as well as their alleged attempt to set fire to the Leninsky District Police Department of Chelyabinsk in protest against the beating and rape of a detainee that took place there on May 6, was interpreted as a continuation of the NBP's activities. We consider inappropriate both the ban against the NBP and prosecutions against activists for participating in it. If the acts described above actually took place, they should have been qualified under other articles.
In early September, the Yekaterinburg Garrison Military Court issued a verdict in the case of administrators of the public social network pages that promoted the criminal A.U.E. subculture. Nikolai Babarika was sentenced to seven years in a minimum security penal colony under Article 280 Part 2 of the Criminal Code (calls for extremist activity), Article 282 Part 2 (incitement to hatred toward the FSB and the police) and Article 282.1 Part 1 (creation of an extremist community). His wife Natalia Babarika was convicted under the same Article 280 Part 2 and Article 282 Part 2 of the Criminal Code, as well as under Article 282.1 Part 2 of the Criminal Code (participating in an extremist community) and received a four-year suspended sentence with a ban on administering websites. The court also found their family friend, Artyom Zuev, guilty under Article 282.1 Part 2 and sentenced him to three years and nine months in a minimum security penal colony. Nikolai Babarika and Zuev must also pay to the state 80 thousand rubles and 30 thousand rubles, respectively (the sums are to be forfeited as proceeds of crime). According to the FSB central administration, which investigated the case, Nikolai Babarika, a contract military serviceman, and his girlfriend (now wife) Natalya Babarika served as administrators of the public pages created by Nikolai, which promoted A.U.E. subculture; their friend Zuev, together with Nikolai and Natalya, was involved in online sales of backgammon, rosaries and cell phone cases decorated in the manner that glorified criminal lifestyle. Nikolai and Natalia were also found guilty of publishing posts that called for violence against the police and the FSB. We have doubts about the validity of the verdict under anti-extremist articles in this case; in our opinion, promotion of A.U.E. should not fall under anti-extremist legal norms, although it can be criminalized in principle. We view the recent ban of A.U.E. as a unified extremist organization (despite the fact that it has never existed as such) as unfounded, and the bill, recently submitted to the State Duma and intended to block information facilitating the spread of “criminal subcultures,” as problematic. Perhaps, a new criminal norm, similar in composition to Article 239 Part 1 of the Criminal Code (creation of a public association whose activity is fraught with violence against individuals) should be created for the organizers of structures that exploit issues related to criminality and incite violence. Generally, we believe that fighting the glamorization of crime by prohibitive, i.e. violent measures is pointless – the issue should be addressed by ensuring public confidence in the judicial and penitentiary systems, and by working with public morality and public opinion in the spirit of rejection of the cult of violence.
We found out in September that, back in August, the Zavodskoy District Court of Kemerovo fined local resident Anna Vortelo 10 thousand rubles under Article 20.3.1 of the Code of Administrative Offenses (incitement to hatred or enmity, as well as humiliation of human dignity). Vortelo was prosecuted for affixing to a public transportation stop a leaflet from the Citizens of the USSR movement (recognized as extremist) addressed to the police. The leaflet equated service in the Russian police with treason and collaborationism. The text of the leaflet also noted that the leaflet would serve as a letter of protection in the course of a tribunal that was to take place after the impending revival of the USSR. We are inclined to believe that the charges against Vortelo in this case are inappropriate. First, in our opinion, law enforcement officers should not be considered a vulnerable social group in need of protection under Article 20.3.1 of the Code of Administrative Offenses or Article 282 of the Criminal Code. Next, the text of the leaflet contained a negative political assessment of the police, but we don’t see it as humiliating for their human dignity. Finally, it should be borne in mind that, as the European Court of Human Rights repeatedly noted, representatives of law enforcement agencies must be extremely tolerant of criticism, with the exception of a real threat of violence. The threat of the use of violence by a hypothetic tribunal organized by a putative “restored” government of the USSR can hardly be taken seriously. It is worth noting, however, that, according to some reports, Vortelo systematically published anti-Semitic posts with direct calls for violence on VKontakte. In our opinion, the law enforcement agencies had every reason to bring her to justice for such statements.
In the second half of September, the Kirovsky District Court of Kemerovo reviewed three reports filed against local video blogger Mikhail Alferov under Article 20.3.1 of the Code of Administrative Offenses. The court sentenced him to a fine of 15,000 rubles, 96 hours of community service and 11 days of administrative arrest. Alferov has published a number of videos that feature him insulting police officers; however, for the reasons stated above, we consider the case against him inappropriate.
In early September, the Yeysk City Court of the Krasnodar Krai fined Nikolai Makukhin 30 thousand rubles under Article 20.1 Part 3 of the Code of Administrative Offenses (petty hooliganism) for online dissemination of information that expressed disrespect for the state or the society in an indecent form. The case was based on Makukhin’s comment published under a Facebook post, in which he wrote: “Personally, Putin stole about 200–300 thousand rubles from me when he froze the investment part of my pension in 2014.” The court had fined him previously for his comments that “Roldugin's billions were, in fact, Putin's money, which he has been stealing from the Russian people for 20 years.” As a reminder, we believe that Article 20.1 Parts 3–5 of the Code of Administrative Offenses are intended to suppress criticism against the authorities, whose safety is already sufficiently protected by other provisions of the law.
In September, we learned about ten cases of prosecution under Article 20.29 of the Code of Administrative Offenses for sharing the video “Let’s Remind Crooks and Thieves about Their Manifesto-2002,” created by supporters of Alexei Navalny in 2011. This video, which lists a number of unrealized campaign promises made by United Russia in its 2002 manifesto and calls to vote for any other party, shows no signs of extremism, but was, nevertheless, recognized as extremist in 2013. It has since become one of the most “popular” extremist materials among the police.
In June: the Angarsk City Court of the Irkutsk Region fined Alexander Grishin one thousand rubles.
Abuses When Countering the Spread of Nazi Ideology
In early September, the Perm Regional Court sentenced 19-year-old student Daniil Simanov under Article 354.1 Part 3 of the Criminal Code (dissemination of information about the days of military glory associated with the defense of the Fatherland expressing obvious disrespect to the society) to 200 hours of community service with the confiscation of a computer. The prosecution was based on the fact that, on May 4, 2020, Simanov, using a social network application, sent a photo of Andrei Vlasov to the Memory Bank website to be further broadcast in the “Immortal Regiment Online” action. The Investigative Committee reported that, in Simanov’s own words, he committed these actions “to justify the betrayal committed by Nazi accomplice A.A. Vlasov and to portray him as a hero.” Simanov further stated that he had published the photo of Vlasov due to his “young age and historical illiteracy.” “I was very mistaken about Vlasov's personality and relied on false sources that described his actions positively. I saw this information in the community, just flipping through the social media feed; I noticed, then I began to read – and his actions were justified there.” Simanov pleaded guilty and does not intend to challenge the verdict. We believe that his actions were qualified incorrectly, since he did not disseminate any information about the days of Russia’s military glory, or, specifically, May 9. Therefore, we consider the verdict issued to Simanov inappropriate.
In Ulyanovsk, the regional court sentenced local resident Vyacheslav Kruglov to a fine of 120 thousand rubles under Article 30 Part 3 and Article 354.1 Part 1 of the Criminal Code (attempted denial of the facts established by the verdict of the International Military Tribunal for the trial and punishment of the major war criminals of the European Axis countries, approval of the crimes established by this verdict, as well as dissemination of deliberately false information about the activities of the USSR during the Second World War, committed publicly). Taking Kruglov’s financial situation into account, the court gave him a 12-month installment plan to pay the fine. According to Kruglov, he was charged for his actions of May 4, 2020, when he, “for the sake of a cruel joke,” submitted a photograph of Hitler on the Memory Bank website. We believe that submitting an application for a photo to be displayed on the site, in and of itself, cannot be considered a public endorsement of Nazi crimes.
We would like to remind that we know of nine additional cases currently under investigation based on attempts to publish photographs of Nazis on the “Immortal Regiment” website.
A criminal case under the same part of the same article was opened in mid-September against a 44-year-old resident of Krasnoyarsk. According to the Investigative Committee, the Krasnoyarsk resident published “the flag of the Russian Federation decorated with Nazi symbols made out of a St. George ribbon” with inscriptions “negatively characterizing the symbol of Russia's military glory” on a social network in February of last year. According to the media reports, we are talking about an activist of the Citizens of the USSR movement, who published on his VKontakte page “a swastika photoshopped from a St. George ribbon” with the caption “the flag worthy of the state.” We believe that criminal proceedings under Article 354.1 Part 3 of the Criminal Code can be initiated in the cases when aesthetically inappropriate treatment of a certain symbol is linked to the desire to incite hatred, justify violence or spread a misanthropic ideology. The Krasnoyarsk resident obviously did not seek to justify the Nazi ideology or to desecrate the St. George ribbon as a symbol of military glory by publishing this image, – most likely, the publication was intended as a critical statement about the politics of modern Russia.
In September, we learned about several cases of inappropriate prosecution under Article 20.3 of the Code of Administrative Offenses for displaying prohibited symbols. As a reminder, we believe that the grounds for such legal action exist only when the symbols are demonstrated for the purpose of promoting the corresponding dangerous ideology.
The Nizhnevartovsk City Court of the Khanty-Mansiysk Autonomous Okrug fined Najib Gasanov, the secretary of the local branch of the Libertarian Party of Russia, a thousand rubles in late August for publishing on VKontakte in 2014 an image from the CountryBalls online comics that poke fun on international relations and historical conflicts. The characters include “Nazi Germany,” which is marked by a swastika.
The Birobidzhan City Court of the Jewish Autonomous Region ruled to impose an administrative penalty on local resident Denis Kelner in September. The case was based on a photograph in a VKontakte public album showing two women surrounded by a large number of Nazi paraphernalia – a staged art shot from the Disturbation project by photographer Dany Peschl. The author of the image emphasized that he did not adhere to Nazi views; Kelner obviously did not use the image to advocate Nazism as well.
In Tatarstan, the Naberezhnye Chelny City Court has sentenced Denis Belov, a member of the Marxists Union, to 14 days of administrative arrest based on a number of posts on the VKontakte page Belov administered under a pen name. Some of his anti-fascist posts contained Nazi symbols. In addition, anarchist symbols have apparently been misinterpreted as banned symbols in several instances.
The same court arrested Lev Burlakov, a left-wing activist from Naberezhnye Chelny and the administrator of the Levomarginal public page on VKontakte, for 10 days under the same article for posts and comments with the swastika (made by him and other users), where the symbol was used as a visual means of polemics against a totalitarian ideology, not as propaganda in its favor. The prosecutor's office also filed a claim to block the public page due to the presence of these materials, but withdrew it once the publications were removed.
In late September, the Kirovsky District Court of Saratov fined 57-year-old Mark Zhurakovsky a thousand rubles and ordered to have the incriminating material confiscated. The prosecution was based on the fact that Zhurakovsky demonstrated prohibited symbols at the local market. He explained that he had acquired a helmet and other artifacts with Nazi symbols for resale, and these were not the original pieces from the Nazi era but only copies. At the market, Zhurakovsky traded in various military paraphernalia both from the Second World War and from pre-1917 Russia. We believe that it would have been appropriate to demand that the seller remove the Nazi paraphernalia from public view. At the same time, the court should have taken into account that the banned symbols were demonstrated not in order to advocate Nazism, but for profit.
Persecution against Religious Organizations and Believers
In September, the Southern District Military Court in Rostov-on-Don sentenced eight alleged members of the banned Islamic radical party Hizb ut-Tahrir. They were charged under Article 205.5 Parts 1 or 2 of the Criminal Code (organizing the activities of a terrorist organization or participating in it) and Article 278 of the Criminal Code in aggregation with Article 30 Part 1 of the Criminal Code (preparations for the forcible seizure of power). The court sentenced Marlen Asanov to 19 years in a penal colony, Memet Belyalov – to 18 years, Timur Ibragimov – to 17 years, Seyran Saliev – to 16 years in a penal colony, Server Mustafaev – to 14 years, Edem Smailov and Server Zekiryaev to 13 years each. Ernes Ametov was acquitted (as far as we know, this was the first acquittal in a Hizb ut-Tahrir case). We oppose the practice of charging Hizb ut-Tahrir supporters under anti-terrorist articles, since the organization does not practice violence, and the charges against them are only brought for their party activities, such as holding meetings, studying and distributing the party literature, and so on. The fact that the party preaches the idea of creating a world Islamic caliphate does not give sufficient grounds for charging its followers with planning a violent takeover of power in Russia.
We learned in September that, back in mid-August, the Volzhsky District Court of Saratov issued a verdict under Article 282.2 of the Criminal Code (organizing or participating in an extremist organization) in the case of a group of six farmers – Radik Galimjanov, Bakhtiar Baykulov, Aydyngali Mindagaliev, Aslan Makhmaliev, Mukhambetzhan Bakhmetov – charged with involvement in the banned Islamic religious movement Tablighi Jamaat. The “cell leader” was reportedly convicted under Article 282.2 Part 1 of the Criminal Code and received three years in a minimum security penal colony with a one-year restriction of freedom. The other five defendants were recognized as members of the cell and sentenced under Article 282.2 Part 2 of the Criminal Code – four to 1 year and four months in a minimum security penal colony with a one-year restriction of freedom, and the fifth one – to a year in a minimum security penal colony with a one-year restriction of freedom. Personalized information about these sentences is not currently available. Tablighi Jamaat was banned in Russia in 2009 – in our opinion, inappropriately. This association is engaged in propaganda of fundamentalist Islam, but has never been implicated any calls for violence; therefore we view the persecution against its supporters as unjustified.
The Sibay Town Court in Bashkortostan fined Damir Kuvandykov in August and Yulia Arslanova in September one thousand rubles each under Article 20.29 of the Code of Administrative Offenses (mass distribution of extremist materials). The prosecutor's office also issued a warning to Arslanova about the impermissibility of violating anti-extremist legislation. Kuvandykov gave his wife and brother three forbidden Islamic religious books to read; this action should not be qualified as mass distribution of materials. Arslanova was prosecuted for reposting The Book of Monotheism by Muhammad ibn Sulayman at-Tamimi (Muhammad ibn Abd al-Wahhab), recognized as extremist. This book contains certain elements of hate speech and a number of positive references to jihad, but, in our opinion, modern standards cannot be applied to 18th century religious works. Therefore we consider the ban against this work inappropriate and believe that people should not be prosecuted for its dissemination.
According to our data, at least five sentences against eleven Jehovah's Witnesses were issued in September for continuing the activities of their communities that have been banned in Russia as extremist organizations. We view this ban and prosecutions for membership in Jehovah's Witnesses communities as inappropriate.
In late August, an investigator of the FSB Directorate for the Sakhalin Region terminated the criminal case against Vyacheslav Ivanov and Dmitry Kulakov from Nevelsk – suspects under Article 282.2 Part 2. The investigator concluded that their actions were “of a general religious nature, connected with the right to practice religion not prohibited in the Russian Federation, which is guaranteed by Article 28 of the Constitution of the Russian Federation.” However, Ivanov remains a defendant in another criminal case initiated under the same article.
The Penza Regional Court commuted in its appellate capacity the sentence of Vladimir Alushkin, a follower of Jehovah's Witnesses previously convicted under of Article 282.2 Part 1 of the Criminal Code, replacing his six-year prison term with a four-year suspended sentence in September. The verdict against five other believers, also charged in this case, was upheld by the court.
The Pervorechensky District Court of Vladivostok returned the case of Elena Barmakina, charged under Article 282.2 Part 2 of the Criminal Code, to the prosecutor, noting that the text of the indictment failed to clarify how Barmakina's exercise of her constitutional right to freedom of religion violated the prohibitions established by the Criminal Code. At the same time, the court continues to consider the case of Barmakina's husband Dmitry; several believers, who had the status of witnesses in the case, have since become defendants.
In September, we learned about new criminal cases against Jehovah's Witnesses in different regions of Russia.
Sanctions for Anti-Religious Statements
A magistrates’ court in Surgut fined local resident Nikolai Sokurov 30 thousand rubles in September under Article 5.26 Part 2 of the Code of Administrative Offenses (intentional public desecration of religious or liturgical symbols and attributes). The case was based on Sokurov's VKontakte posts made in 2016–2018. The report mentioned “about ten images connected to religious themes in one way or another” (the ones that were specifically listed are satirical in nature and do not incite hatred) and the video “Orthodox Economy. Such News # 73,” published on the Radio Liberty YouTube channel and critical of Russia’s economic policy. In our opinion, posting atheistic pictures and videos online should not, in and of itself, be interpreted as desecrating objects of religious veneration, since publication of photo collages does not imply any active actions performed with the objects. It should be noted that the concept of “desecration” has never been defined in the legislation. Sokurov intends to appeal the court ruling.