Misuse of Anti-Extremism in October 2020
In mid-October, the State Duma adopted in the first reading amendments to the Code of Administrative Offenses that punish hosting providers and website owners with large fines for failure to block or remove problematic content; multimillion-dollar fines are proposed for legal entities. The law, if passed, will apply to all cases of blocking with the exception of copyright infringement. In our opinion, Russia’s current legislation on limiting the dissemination of information over the Internet has systemic problems, and its application often unreasonably and disproportionately restricts freedom of speech, especially in the cases of extrajudicial blocking. The European Court of Human Rights (ECHR) has repeatedly pointed out the fact that these norms were not in compliance with the requirements of the European Convention on Human Rights and were applied arbitrarily. Heavy fines, which apply not only to content providers that evade blocking but also to web hosting providers and website owners, can, in these circumstances, become new tools for arbitrary restriction on freedom of speech and suppression of criticism against the government’s activities.
The plenary session of the Supreme Court of Russia decided to withdraw from the State Duma the previous version of its draft law, which introduced the concept of “criminal misconduct” into the Criminal Code, and to propose a revised text. According to the proposed draft, a citizen will be regarded as having committed a criminal misconduct if the offence in question was his or her first crime, a minor one, not entailing a punishment in the form of imprisonment; the offender must also have no outstanding or unexpunged convictions and not be released from criminal liability in the preceding year. Those who have committed a criminal misconduct for the first time can be released from criminal liability (upon request by the bodies of inquiry and investigation, or at the initiative of the court), which is replaced by a court fine, community service or work with limited pay. Minors are expected to be released from criminal liability and, instead, be subject to compulsory educational measures. If the bill is adopted in its current form, the acts regarded as criminal misconduct will include, among others, those stipulated in Article 148 Part 3 of the Criminal Code (illegal obstruction of the activities of religious organizations or the conduct of services, other religious rites and ceremonies) and Article 354.1 Part 3 of the Criminal Code (dissemination of information expressing obvious disrespect for society about Russia’s days of military glory and memorable dates associated with the defense of the Fatherland, as well as desecration of symbols of Russian military glory, committed publicly).
Russia’s President Vladimir Putin in the middle of the month signed a law amending Articles 9 and 10 of the Federal Law “On Combating Extremist Activities”. He formally gave the Ministry of Justice the authority to compile lists of organizations, which have been suspended or banned for carrying out extremist activities, and ordered the courts to send copies of the relevant decisions to the Ministry of Justice within three days. The amendments will enter into force 180 days after their official publication, that is, in April 2021.
The Practice of the European Court Of Human Rights
On October 6, 2020, the European Court of Human Rights published its decision in the case “Karastelev and Others v. Russia.” The complaint was filed by human rights defenders Vadim Karastelev and Tamara Karasteleva from Novorossiysk (Tamara died in 2011), and by their organization, the Novorossiysk Committee for Human Rights (Novorossiysky komitet po pravam cheloveka). In April 2009, Tamara and Vadim Karastelev held two “static demonstrations” (picketing) in protest against the new law of the Krasnodar Territory. During the first one, they publicly exhibited a poster stating “Freedom Is Not Granted; It Has To Be Taken.” During the second one, they were approached by two teenagers, whose parents subsequently complained to the prosecutor's office. After that, the prosecutor's office issued two warnings to Karastelev about the unacceptability of violating the law and a caution to the Novorossiysk Committee for Human Rights about the unacceptability of violating the anti-extremist legislation with an order to remedy these violations. When Tamara Karasteleva tried to challenge these measures in court, the prosecutor's office presented the expert reports, according to which the poster was extremist and provocative in its message. As a result, the court dismissed the complaint. Vadim Karastelev’s attempt to challenge the warnings failed as well, since the court ruled that the disputed issue had already been resolved during the review of Tamara Karasteleva’s complaint.
The ECHR noted, on the one hand, that the wording of the Russian law “On Combating Extremist Activities with respect to the issuance of warnings and cautions created legal uncertainty that affected “the foreseeability of the regulatory framework, while being conducive to creating a negative chilling effect on freedom of expression, and left too much discretion to the executive.” In addition, according to the legislation in force in 2009, the applicants were limited in their ability to challenge the actions of the prosecutor in civil proceedings. On the other hand, according to the ECHR, the arguments presented by the prosecutor's office fail to support the conclusion that the actions by Vadim and Tamara Karastelev posed a risk of obstruction of the lawful activities of the authorities and a real threat of violence, which could serve as a basis for interference with the applicants’ rights to freedom of expression protected by Article 10 of the European Convention on Human Rights.
In addition, the ECHR found that, with respect to Vadim Karastelev, the Russian state has also violated Article 6 of the Convention (right to a fair trial). As a result, he was awarded compensation for non-pecuniary damage in the amount of three thousand euros. Read more about this case here.
Sanctions for Anti-Government Statements
In late October, the Nakhimovsky District Court of Sevastopol retried the case of Valery Bolshakov – the former head of the Sevastopol Workers Union and the secretary of the Sevastopol branch of the Russian United Labor Front Party (ROT FRONT) – and issued a suspended sentence of two and a half years with a two-year ban on holding leadership positions under Article 280 Parts 1 and 2 of the Criminal Code (public calls for extremist activity including those committed on the Internet). The charges against him under Article 280 Part 2 were based on his social network posts that included offensive characteristics of the Terek Cossacks and called for “kicking them out to Novorossiya;” the posts also contained accusations against the Russian authorities of “genocide against the people of Russia,” Lenin quotes and calls for “establishing the dictatorship of the proletariat by violent means.” The charge under Article 280 Part 1 was brought up in connection with an address delivered by Bolshakov during his one-man picket with the poster “Down with Putin's Police State.” The court found that the poster as well as Bolshakov's speech (in which he wished for the imminent demise of “Putin's dictatorship” and the “police state” and the subsequent establishment of the dictatorship of the proletariat) contained calls for “the elimination of the officially acting government.” We are inclined to believe that the calls for revolution and for the proletariat to take power, which are often heard from activists on the left, are, in most cases, incapable of instigating real violent anti-government actions and are more accurately interpreted as a figure of speech employed to convey dissatisfaction with the current authorities. Bolshakov's statements about the Cossacks, however, can indeed be understood as a call for their deportation; at the same time, the court should have taken into account the vanishingly small likelihood for such calls to be implemented in the modern political context.
Activist Mikhail Podgursky was fined a thousand rubles in Omsk under Article 20.29 of the Administrative Code (mass distribution of extremist materials) for sharing on VKontakte in 2013 the banned video “Let’s Remind Crooks and Thieves about Their Manifesto-2002,” created by supporters of Alexei Navalny. Activists of the opposition often face charges for sharing of this video, despite the fact that it merely lists a number of unrealized campaign promises made by United Russia in its 2002 manifesto and calls to vote for any other party. We believe that the video was banned without due justification, and prosecution for its distribution is inappropriate.
Sanctions for Incitement to Terrorism
In early October, the 2nd Western District Military Court issued a sentence against Mikhail Sharygin, a resident of Nizhny Novgorod. The ex-candidate for the city Duma from Yabloko was found guilty of public calls for terrorism committed on the Internet (Article 205.2 Part 2 of the Criminal Code) and sentenced to a fine of 400 thousand rubles. Sharygin published a comment on NN.ru, in which he suggested blowing up the fence around a construction site. The fence inconvenienced local residents and the guards on the construction site prevented ambulances from passing through to the houses. Nevertheless, the developer never dismantled the fence, ignoring the official order. The court, based on the expert opinion, decided that Sharygin, in his commentary, was setting the local residents against the city authorities as two sides of the socio-political conflict, and that he outlined the way to influence the authorities (by blowing up the fence) - that is, called for a terrorist attack. We are inclined to think that this qualification is incorrect. On the one hand, the objective side of terrorist attack as a crime is characterized by the intent to intimidate the population - but we have no reason to assume that such an explosion would have frightened the population. On the other hand, the socio-political motivation for such an action is also far from obvious, since the situation can be more appropriately characterized as a local economic dispute. Accordingly, the unauthorized demolition of the fence, if it ever took place, would have to be qualified under Article 167 of the Criminal Code (intentional destruction or damage to property) or Article 330 of the Criminal Code (arbitrariness), and calling for it should have been qualified as incitement to the destruction of property or arbitrariness, and not a call to perform a terrorist attack.
Sanctions for Distributing Materials Prohibited as Incitement to Hatred
In October, we found out about two cases of prosecution for incitement to hatred that we can classify as inappropriate. Early in the month, the court in Kurgan fined artist Polina Guzeeva from Yekaterinburg one thousand rubles under Article 20.29 of the Code of Administrative Offenses. In 2010, she posted on her VKontakte page a video set to the song “Why Did You Lay with a Black Man?” (original title - “TTP-Kupchino”) by the band Alai Oli and failed to delete it after the song was added to the Federal List of Extremist Materials in 2016. The song was banned as part of a series of xenophobic materials published on VKontakte, despite the fact that it clearly ridicules racist attitudes, which are widespread among young people from disadvantaged residential areas of Moscow and St. Petersburg; the majority of its audience understands its satirical intent.
Yaroslav Zubov, whose page was found to include the video “Hitler against Putin: a Great Rap Battle” was fined the same amount in mid-October in Mtsensk. This video, recognized as extremist in 2017, uses Nazi symbols, but we didn’t find any propaganda of Nazi ideology in it. The authors of the video merely criticized Putin's policies and ridiculed the mutual accusations of fascism made by Russia and Ukraine.
Law Enforcement Abuses When Countering the Spread of Nazi Ideology
In mid-October, the Zabaikalsky Regional Court fined Evgeny Akhmylov from Chita 150 thousand rubles under Article 354.1 Part 3 of the Criminal Code (dissemination of information expressing clear disrespect for society about the days of military glory of Russia associated with the defense of the Fatherland). In early May 2020, he uploaded a photograph of Ataman Pyotr Krasnov, head of the headquarters of the Cossack troops of the Imperial Ministry for the Occupied Eastern Territories of the Third Reich, to the Immortal Regiment commemorative website. Akhmylov fully admitted his guilt, but, at the same time, explained that he only wanted to “annoy” the Immortal Regiment website organizers, for what he viewed as their lack of patriotism. We believe that Akhmylov's actions were qualified by law enforcement agencies under Article 354.1 of the Criminal Code inappropriately. An action, such as uploading a photograph of a Nazi criminal to a website, even if it takes place on an anniversary of the May 9 Victory Day, does not, in and of itself, constitute dissemination of any information about this day of Russian military glory. As far as we know, this photograph was not accompanied by any statements approving or denying Nazi crimes.
Persecution against Religious Organizations and Believers
In mid-October, a sentence was issued in St. Petersburg against Muso Jalolov, a citizen of Tajikistan. He was charged under Article 205.5 Part 2 of the Criminal Code with participation in the activities of the radical Islamic party Hizb ut-Tahrir, recognized in Russia as a terrorist organization. Jalolov was sentenced to 10 years of imprisonment, with the first three years to be spent in prison and the remainder of the term - in a maximum security penal colony. In addition, two citizens of Uzbekistan were detained in the Kaliningrad Region on suspicion of their involvement in Hizb ut-Tahrir. We believe that prosecuting Hizb ut-Tahrir members under the “terrorist articles” of the Criminal Code merely on the basis of party activities (holding meetings, reading literature, etc.) is inappropriate, since this party was never known to engage in terrorism.
In Saransk, the court issued a fine of two thousand rubles to Ziaki Aizatullin, the former mufti of the Regional Spiritual Board of Muslims of Mordovia (RDUM RM), and a fine of 100 thousand rubles to the Uskudar mosque (of which he was a mufti until mid-August 2020) as a legal entity, both under Article 20.29 of the Administrative Code. The case was based on the testimony by a parishioner, who claimed that Aizatullin had sold him Selected Hadiths – a book, recognized as extremist, written by Sheikh Muhammad Yusuf Kandhlawi, the ideologist of the banned Islamic religious movement Tablighi Jamaat. Law enforcement agencies also reported finding a copy of the book in the mufti's office with a price tag on it. In addition, in August, Aizatullin's nephews were among those suspected of Tablighi Jamaat involvement under Article 282.2 of the Criminal Code (organizing the activities of an extremist organization or participation in such). We consider the cases against Ziaki Aizatullin and his nephews unjustified. From our point of view, both the Selected Hadiths and Tablighi Jamaat were banned inappropriately. The movement promotes fundamentalist Islam but was never implicated in any calls for violence.
Russian courts issued four sentences against Jehovah's Witnesses in October. Sergei Mysin and Natalya Mysina, Mikhail Zelensky, Andrei Tabakov, Alexander Ganin and Khoren Khachikyan received suspended sentences ranging from two and a half to four years under Article 282.2 Part 2 of the Criminal Code (participating in the activities of an extremist organization) in Ulyanovsk. In Kostroma, Sergei and Valeriya Raiman were found guilty by the court and are facing suspended sentences of eight and seven years of imprisonment respectively under Article 282.2 Parts 1 and 2 (organizing the activities of an extremist organization and participating in it). A court in Kirov fined Anatoly Tokarev 500 thousand rubles under Article 282.2 Part 1 of the Criminal Code.
In Mayskoye of the Kabardino-Balkarian Republic, the lengthy trial of Yuri Zalipaev came to an end. He was charged under Article 280 Part 1 of the Criminal Code (public calls for extremist activity); according to the investigation, he called for beatings of Orthodox and Muslims during his sermon. The court acquitted him based on the results of the forensic examination. Zalipaev had also been charged under Article 282 Part 1 of the Criminal Code (incitement to religious hatred), but this charge was dropped in 2019 after the partial decriminalization of this legal norm.
There were also reports of several newly opened criminal cases. Evgeny Zhukov, Vladimir Sakada, Igor Shmidt and Vladimir Maladyka were arrested in Sevastopol in early October under Article 282.2 Part 1 of the Criminal Code. In Blagoveshchensk of the Amur Region, the case under Article 282.2 Part 2 of the Criminal Code was opened against Sergei Kardakov; Alexander Rakovsky was charged under the same article in Pavlovo of the Nizhny Novgorod Region.
In mid-October, Yuri Kim from Nikolsk of the Penza Region faced charges under Article 282.2 Part 1 of the Criminal Code (he died late in the month); Konstantin Zotov and Natalya Kochneva from Berezovsky of the Sverdlovsk Region we charged under Part 2 of the same article. Two additional suspects have appeared in Zeya, the Amur Region.
Two residents of Khabarovsk Krai were detained in late October: Alexei Ukhov, a resident of Sovetskaya Gavan charged under Article 282.2 Part 1 of the Criminal Code, and Ilya Degtyarenko from Vyazemsky charged under Article 282.2 Part 2 of the Criminal Code.
In addition, a court in St. Petersburg reportedly accepted for trial a prosecutorial claim seeking to block the Jehovah's Witnesses JW Library app in Google Play and App Store and adding it to the Federal List of Extremist Materials.
We consider inappropriate the bans against Jehovah's Witnesses text as extremist, the bans against religious organizations for distributing these texts, and persecution against believers for their involvement in Jehovah's Witnesses communities.
Sanctions for Anti-Religious Statements
A criminal case was opened in the Oryol Region in late October under Article 148 Part 1 of the Criminal Code (public actions expressing obvious disrespect for society and committed in order to offend the religious feelings of believers) against a resident of the Verkhovsky District. According to the investigation, in April 2020, the defendant wrote a comment on VKontakte that insulted the feelings of believers. Unfortunately, we have no information that would allow us to identify the comment in question. However, we generally believe that the vague concept of “insulting the religious feelings of believers” does not and cannot have a clear legal meaning. In our opinion, if the text contained insults aimed at representatives of a particular confession, and aroused hatred towards them, then the actions of the suspect should have been qualified under Article 20.3.1 of the Code of Administrative Offenses; otherwise, he should not have been prosecuted at all.