Misuse of Anti-Extremism in November 2020
In early November, Deputy Irina Yarovaya introduced two draft bills in the State Duma to amend Article 354.1 of the Criminal Code (rehabilitation of Nazism) and the Code of Administrative Offenses of the Russian Federation. One of them proposes to make responsibility for online dissemination of information aimed at rehabilitation of Nazism equal to responsibility for dissemination of such information via mass media – that is, to qualify such activities under the more severe Part 2 of Article 354.1. The second bill seeks to introduce administrative punishment for the rehabilitation of Nazism in mass media; for this purpose, a related part, which stipulates a fine for legal entities of up to three million rubles with or without confiscation of the offending item, should be added to Article 13.15 of the Code of Administrative Offenses. We would like to remind that we view Article 354.1 of the Criminal Code as excessive and imprecisely formulated legal norm, some provisions of which excessively limit the historical discussion; we oppose increasing in severity and expanding the sanctions for the rehabilitation of Nazism.
In late November, a group of State Duma deputies headed by Elena Yampolskaya submitted to the Duma two bills to ban the public display of the faces of Nazi criminals. The changes suggested in these legislative proposals include amending the federal laws “On Immortalization of the Victory of the Soviet people in the Great Patriotic War of 1941–1945” and “On Combating Extremist Activities,” and amending Article 20.3 of the Code of Administrative Offenses, which punishes for display of banned symbols, by explicitly stating that public display of facial images of persons found guilty by the Nuremberg Tribunal (or by Nuremberg Tribunal-based decisions by national military or occupation tribunals, or by sentences imposed during the Second World War) is prohibited and classified as extremist activity. At the same time, similarly to the existing legislation on the use of Nazi symbols, the new proposal exempts such display from punishment, if it forms a negative attitude towards the ideology of Nazism and shows no signs of propaganda or justification of Nazism. We regard this initiative as problematic for several reasons. First, some prominent Nazis (Hitler, Himmler, and Goebbels) had died before the start of the Nuremberg Tribunal and were never convicted by it. At the same time, faces of the overwhelming majority of Nazi criminals are simply not familiar to Russian citizens, making the enforcement of this legal norm unpredictable. Furthermore, portraits of party leaders become propaganda tools only in a certain context. It is obvious that the proposed amendments will inherit all the shortcomings of the existing legal regulation of displaying Nazi symbols. The prior experience shows that the exemption to allow legal use of such symbols, adopted in 2020, has failed to prevent sanctions against citizens and organizations, which displayed the symbols without the purpose of promoting Nazism – including as a means of political polemics or satire. The ban on displaying faces of war criminals will run into the same problem.
In mid-November, a group of five senators led by Andrei Klimov and 10 deputies led by Vasily Piskarev introduced in the State Duma a number of amendments to the federal law “On Education” in an attempt to establish a legal concept of “educational activities,” as activities undertaken in order to disseminate various knowledge and experience and carried out outside the framework of formal educational programs. According to the draft bill, the rules, requirements and forms of conducting such activities should be determined by the government – thus, in and of itself, immensely expanding its powers. At the same time, following the existing restrictions on pedagogical activity, the authors of the bill propose, to prohibit “the use of educational activities to incite social, racial, national or religious hatred, for campaigning that promotes the exclusivity, superiority or inferiority of citizens on the basis of social, racial, national, religious or linguistic affiliation or their relationship to religion, including through reporting inaccurate information about the historical, national, religious and cultural traditions of peoples, or to induce actions that contradict the Constitution of the Russian Federation.” In our opinion, the formulas, proposed or already used in the Law “On Education,” particularly with regard to “reporting inaccurate information about the historical, national, religious and cultural traditions of peoples,” can potentially be utilized to limit the historical discussion and put unreasonable restrictions on freedom of speech in general.
The bill also included a proposal to entrust federal authorities with control over the participation of educational organizations in international cooperation, echoing two bills, submitted to the State Duma in mid-November by the same authors, on increasing the severity of the “foreign agents” legislation. We have written in detail here and here about these initiatives that seek to introduce unreasonable new restrictions on freedom to receive and impart information and freedom of association.
The November campaign against foreign influence went even further. In mid-November, a group of deputies led by Alexander Khinshtein, joined by Senator Alexei Pushkov, introduced in the State Duma a bill to block Internet resources if, according to the authorities, the resources unreasonably restricted distribution of materials produced by the Russian mass media. The bill proposes adding to the law “On Sanctions for Individuals Involved in Violations of Fundamental Human Rights and Freedoms, Rights and Freedoms of Citizens of the Russian Federation” an article recognizing an owner, whose information resource is used by Russian citizens or legal entities, as implicated in human rights violations if the resource restricts dissemination of socially significant information in Russia “based on nationality, language, origin, property and official status, profession, place of residence and work, attitude to religion and(or) in connection with the introduction of political or economic sanctions against the Russian Federation, citizens of the Russian Federation or Russian legal entities,” or restricts the right of Russian citizens to freely seek, receive, transmit, produce and distribute information by any legal means. According to the draft bill, the decision to impose this status on the resource owner should be made by the Prosecutor General of Russia or his deputies in consultation with the Ministry of Foreign Affairs. The decision must be reported to Roskomnadzor, which then must add the internet resource owner to a special list within 24 hours and then issue a warning. Upon eliminating the violations, the owner must notify Roskomnadzor, and the latter is supposed to send a notification to the Prosecutor General's Office or his deputy, who, in consultation with the Ministry of Foreign Affairs, decides whether or not to lift the imposed “sanctions.” If the resource owner fails to fulfill the requirements of the Russian authorities within the time frame specified in the warning, Roskomnadzor proceeds to fully or partially restrict access to this resource. Partial restriction in this case can mean the internet traffic slowdown. The explanatory note states that, since April 2020, the authorized agencies have recorded about 20 incidents of “discrimination” against such media as RT, RIA Novosti, or “Crimea 24” by Twitter, Facebook or YouTube. We fear that using this mechanism for extrajudicial blocking of entire resources, including large social networks and video hosting sites, may lead to unreasonable and disproportionate restrictions on freedom of speech. It should be noted that the existing blocking mechanisms already suffer from a similar problem; the European Court of Human Rights (ECHR) has repeatedly drawn attention to their arbitrary application and inconsistency with the requirements of the European Convention on Human Rights.
Another legislative proposal, submitted to the State Duma at the same time, is attempting to expand the list of online information subject to extrajudicial blocking; it proposes that election commissions be instructed to make decisions on temporary blocking of illegal campaign propaganda. Following a report by election commissions about the presence of such information on the Internet, Roskomnadzor would be expected to immediately send to a provider a request to temporarily block the offending site (subject to immediate compliance). According to the bill, blocking can start no earlier than the day of the announcement of the elections, and ends five days after the date their results are determined.
Activity of the Constitutional Court
In November, the Constitutional Court registered the complaint of Yevgeny Kim, a follower of the Islamic theologian Said Nursi. Kim was deprived of Russian citizenship and was supposed to be deported from the country, but there was nowhere to deport him, since he has no other citizenship; he has been held in Khabarovsk Temporary Detention Center for Foreign Citizens for 18 months. Kim had been sentenced under Article 282.2 Part 1 of the Criminal Code (organizing the activities of an extremist organization) for his involvement in the banned religious association Nurcular (we consider this ban inappropriate) and under Article 282 Part 1 of the Criminal Code (incitement to hatred), and, once the sentence was served, a decision was made regarding his deportation. We would like to remind here that, according to the amendments to the law “On Citizenship” adopted in 2017, an enforced court verdict under some articles that cover crimes of extremism and terrorism (including under Article 282.2 of the Criminal Code) is regarded as knowingly reporting false information in process of acquiring citizenship about the duty to honor the Constitution and laws of the Russian Federation, and therefore can serve as a basis for revoking the decision to grant citizenship. The present situation is due to the fact that the law does not establish the maximum detention term for stateless persons in detention centers. Vladislav Chepelev, a lawyer of the Institute of Law and Public Policy who filed a complaint with the Constitutional Court on Kim’s behalf, asked the Constitutional Court to check the constitutionality of Article 18.8 Part 1.1 of the Code of Administrative Offenses (administrative expulsion from the Russian Federation) and Article 3.10 Part 5 of the Code of Administrative Offenses (violation by a foreign person of the rules of entry into the Russian Federation), which make it possible to keep a person without citizenship in a temporary detention center for foreign citizens “purposelessly and indefinitely.” Notably, in 2017, the Constitutional Court has already considered a similar case and recognized such detention as unconstitutional. In the ruling, the court ordered legislators to immediately amend the Code of Administrative Offenses, specifying the time frame and the judicial procedure for the release of stateless persons, and recommended assigning them a migration status in order to eliminate the risks of re-detention. However, this order of the Constitutional Court has not yet been followed. The first draft bill on this topic was submitted to the State Duma in 2017, but never progressed beyond the first reading. The second one was submitted by the government to the State Duma in April 2020 and adopted in the first reading on July 8, 2020; the date of its second reading has not yet been determined.
Prosecutions for Anti-Government Statements
In early November, the Perm Regional Court of Appeals upheld the verdict in a case, opened following an action, in which a Vladimir Putin dummy had been tied to a light post. However, the Court has mitigated the punishment for Alexander Shabarchin, who has now received a two year suspended sentence instead of two years in a minimum-security colony. The one year suspended sentence to Danila Vasilyev and the decision to acquit Alexander Etkin (Kotov) have remained unchanged. It is worth reminding that, in August, the Leninsky District Court of Perm found Shabarchin and Vasilyev guilty of hooliganism committed by an organized group (Article 213 Part 2 of the Criminal Code), in connection with a public action conducted on November 11, 2018, when a dummy appeared on a Perm street, representing Putin dressed in a prison uniform emblazoned with the words “liar” and “war criminal Pynya V.V.” In a video that was subsequently posted on the “Groza Permi” YouTube channel, people in camouflage uniforms escorted a man in a Putin mask through the Perm city center and then tied a dummy, with the president's photograph for a face, to a post near the local central department store. We doubt that the investigation had sufficient grounds to qualify the tying of the dummy to the post as hooliganism, that is, a gross violation of public order.
Prosecutions for Rehabilitation of Nazism
In early November, the Perm Regional Court found Daniil Shestakov guilty under Article 354.1 Part 3 of the Criminal Code (dissemination of information expressing obvious disrespect to society about the days of military glory and memorable dates of Russia associated with the defense of the Fatherland) and sentenced him to nine months of compulsory labour. According to the investigation, the defendant had submitted photos of Andrei Vlasov to be displayed on the Immortal Regiment Online among the phots of the Great Patriotic War veterans. We believe that Shestakov’s actions, like the actions of several young people convicted of the same crime before him, are qualified incorrectly, since uploading photographs of Nazi leaders to a website, even on the commemorative day of May 9, in and of itself, constitutes neither a public endorsement of Nazi crimes, nor dissemination of any information about a day of Russia's military glory.
Sanctions for Display of Banned Symbols
In late October, the Surgut City Court of the Khanty-Mansi Autonomous Okrug-Yugra fined local resident Igor Lubyagin one thousand rubles under Article 20.3 Part 1 of the Code of Administrative Offenses (public display of banned symbols). Lubyagin, who had previously faced administrative responsibility on many occasions for petty hooliganism while drunk and other offenses, posted on his YouTube channel (which had 11 subscribers) the videos “Hitler and Crimea” (a satirical compilation from The Bunker historical war film with subtitles commenting on the events in Ukraine) and “Stalin and Hitler” (the cartoon, which ironically discusses the relationship between the two dictators and their roles in World War II). In our opinion, both videos do not justify or advocate Nazism, despite the fact that they display Nazi symbols; therefore, Lubyagin should not have been punished for publishing them.
In mid-November, the Pervorechensky District Court of Vladivostok put Khabarovsk activist Rostislav Smolensky, the owner of a well-known campaign car covered with slogans in support of the arrested former governor of the Khabarovsk Krai, under arrest for 10 days under Article 20.3 Part 1; this decision was upheld by the Primorsky Regional Court. The rear-view mirror of Smolensky's “Furgalmobile” was decorated with a cross and two neo-pagan amulets, one of them in the shape of a Svarog square. This neo-pagan symbol was previously used by Northern Brotherhood, a nationalist organization declared extremist in 2012. The amulets were also known to have been publicly displayed during Smolensky’s live Instagram broadcast. We have no information about Smolensky's ties to the Northern Brotherhood or disseminating the ideology of this banned organization. In addition, it is possible that he, like many others, did not even know about the banned status of this symbol and could not expect punishment for displaying it.
The same Pervorechensky District Court of Vladivostok put activist Gia (Georgy) Kakabadze under arrest for seven days for publishing on Instagram a number of collages featuring Vladimir Putin in Nazi uniform. We believe that Kakabadze was prosecuted inappropriately, since he did not advocate Nazism, but, instead, used Nazi symbols as a means of political polemics. It is worth noting that, at the same time, a report under Article 20.1 Part 3 of the Code of Administrative Offenses (insulting the authorities) was compiled against Kakabadze in connection with two posts that contained photographs of Putin and captions critical of the leader. We believe that this legal norm unreasonably restricts freedom of expression.
In November, we were informed of six cases when sanctions were imposed for displaying the symbols of the A.U.E. movement, recognized as extremist in August. We would like to remind that the ideology of the criminal underworld and the A.U.E. subculture is focused on illegal activities and is, therefore, by its nature incompatible with honoring the constitutional rights of citizens. The activity of spreading such an ideology can be prohibited and criminalized, but the ideology is not political per se and not aimed at changing the constitutional order; therefore, in our opinion, it should not fall under anti-extremist legal regulation. We view the application of anti-extremist legal norms, including Article 20.3 of the Code of Administrative Offenses, in the fight against the A.U.E. ideology as inappropriate.
Persecution against Religious Organizations and Believers
In November, the Fifth General Jurisdiction Appellate Court upheld the claim of the prosecutor of the Republic of Khakassia to liquidate and recognize as extremist Khakassian Regional Public Organization for Spiritual and Physical Self-Improvement of a Person under the Great Falun Law “Falun Dafa.” Earlier, in July, the Supreme Court of the Republic of Khakassia dismissed the claim, but the Prosecutor’s Office appealed this decision. The claim accused the Khakassian organization of trying to disseminate Zhuan Falun, – a treatise by Falun Dafa (Falun Gong) founder Li Hongzhi. According to Falun Gong practitioners, the Khakassian Falun Dafa organization ceased its operations in 2017, and have tried to notify the state authorities about it. However, the prosecutor's office stated that they never received the minutes of the meeting, during which the organization had made its decision to self-dissolve. Meanwhile, in August, the court of first instance came to the conclusion that the plaintiff's demands to ban the organization's activities were disproportionate to the violations committed, since the fact of mass distribution of extremist materials had never been established. There were only isolated cases of violation of the law by the organization’s members, for which they were individually held accountable. Zhuan Falun was recognized as extremist on the grounds that it allegedly advocated the superiority of the adherents of Falun Gong ideology over other people. In our opinion, propaganda of the truth of one’s own convictions cannot be regarded as incitement to hatred, and the book does not contain any calls for violence, therefore the ban against it is inappropriate. Thus, there were no grounds for banning the organization in Khakassia. Falun Dafa is a new religious movement is built around the practice of qigong gymnastics in combination with elements of Buddhism, Taoism, and Confucianism. It has been banned and persecuted in China, and its followers abroad, in turn, sharply criticize the Chinese authorities.
The active persecution of Jehovah's Witnesses continued in November. They are being charged with involvement in the activities of banned organizations based on the April 2017 ruling of the Supreme Court of Russia that recognized the Administrative Center of Jehovah's Witnesses in Russia and 395 of their local religious organizations as extremist. We believe that this decision had no legal basis and regard it as a manifestation of religious discrimination.
The Pervomaisky District Court of Omsk delivered a verdict in the case of Sergei Polyakov, Anastasia Polyakova, Dinara Dyusekeeva and Gaukhar Bektemirova. Polyakov was sentenced to three years in a maximum security colony under Article 282.2 Part 1 of the Criminal Code (organizing the activities of an extremist organization). The other defendants were sentenced under Article 282.2 Part 2 (participation in the activities of an extremist organization). Polyakova received a suspended sentence of two and a half years, Dyusekeeva – a two year suspended sentence, and Bektemirova – a suspended sentence of two years and three months.
In the Kamchatka Territory, the Petropavlovsk-Kamchatsky City Court found Sergey Ledenev guilty under Article 282.2 Part 1 of the Criminal Code and issued a two year suspended sentence followed by a probationary period of three years.
Meanwhile, in Smolensk, the Leninsky District Court returned for further investigation the case of two Jehovah's Witnesses – 64-year-old Valentina Vladimirova and 61-year-old Tatyana Galkevich. The court's decision is related to the inadmissibility of evidence provided by the prosecutor's office. Vladimirova and Galkevich were charged under Article 282.2 Part 2 of the Criminal Code because of the prayer meetings held in their apartments. They spent six months, from May to November 2019, in a pre-trial detention center.
A new criminal case was opened in Komi against six believers: Nikolai Anufriev, Eduard Merinkov, Pavel Ogorodov, Viktor Schannikov, Alexander Vorontsov and Alexander Prilepsky. It was combined with the case of Gennady Polyakevich and Gennady Skutelets, opened in January under Article 282.2 Parts 1 and 2 of the Criminal Code.
A criminal case under Article 282.2 Part 2 of the Criminal Code was opened against Elena Menchikova in Karachay-Cherkessia; she was put under travel restrictions.
In Kabardino-Balkaria, a criminal case against the followers of the Jehovah's Witnesses teachings was initiated under Article 282.2 Part 1.1 (recruitment into an extremist organization); the defendants are Vadim Zalipaev and Maria Zalipaeva, relatives of previously persecuted Yuri Zalipaev.
Five criminal cases were initiated against believers in the Lipetsk Region. Sergei Kretov and Yevgeny Reshetnikov were arrested as defendants under Article 282.2 Part 1 of the Criminal Code; Natalya Perekatiy, Svetlana Vyrezkova and Tatyana Morlang, charged under Article 282.2 Part 2 of the Criminal Code, were released from a temporary detention facility after 48 hours.
In Nizhnekamsk (Tatarstan), a criminal case was initiated under Article 282.2 Part 2 of the Criminal Code. The believers’ homes were searched; 12 people were interrogated.
In Cheboksary, a criminal case under Article 282.2 Part 1 was opened against Vladimir Dutkin.
Finally, for the first time, a criminal case against Jehovah's Witnesses was opened in Moscow under Article 282.2 Parts 1, 1.1 and 2. Ivan Tchaikovsky, age 65, (who, back in the 1990s, headed the Moscow Jehovah's Witnesses community that was later liquidated by a court decision that was later declared illegal by the ECHR) was detained along with Vitaly Komarov, Yuri Chernyshev, Sergei Shatalov and Vardan Zakaryan (who was hit with a rifle butt in the course of detention and subsequently hospitalized). All five were placed under house arrest as a preventive measure. The Moscow Public Monitoring Commission reported that Vladimir Kalinushkin had also been detained in connection with the activities of Jehovah's Witnesses.
In early November, the Southern District Military Court issued a guilty verdict to three residents of the Krasnogvardeisky District of Crimea charged with involvement in the activities of the banned radical Islamic party Hizb ut-Tahrir. Rustem Emiruseinov was sentenced under Article 205.5 Part 1 of the Criminal Code (organizing the activities of a terrorist organization) to 17 years of imprisonment in a maximum security penal colony with the first two years to be served in prison. The court’s sentence to Arsen Abkhairov and Eskender Abdulganiev charged under Article 205.5 Part 2 of the Criminal Code (participation in the activities of a terrorist organization) was 13 and 12 years in a maximum-security colony, respectively, also with the first two years to be served in prison. All three were accused of promoting Hizb ut-Tahrir among local residents.
In late November, the Central District Military Court in Yekaterinburg found Alexei Botva, a resident of the Samara Region, guilty of involvement in the activities of Hizb ut-Tahrir, specifically of participating in the meetings of the organization's local cell, and sentenced him to five years of imprisonment under Article 205.5 Part 2 of the Criminal Code.
The FSB detained five alleged Hizb ut-Tahrir followers in Kazan in early November. A criminal case was initiated against the detainees, probably under Article 205.5 of the Criminal Code.
We would like to remind that we consider prosecution against the party Hizb ut-Tahrir followers under the “terrorist articles” merely on the basis of their party activity (holding meetings, reading literature, etc.) inappropriate. The organization itself was banned in Russia as terrorist despite the fact that it was never implicated in using terrorism.
The Karachay-Cherkessia Prosecutor's Office reported in early November that, in the Malokarachaevsky District, six local residents were fined 1,000 rubles each under Article 20.29 of the Administrative Code (storage of extremist materials for the purpose of mass distribution). As indicated on the website of the Malokarachaevsky District Court, all six offenders – Jasalli Albotov, Alibek Baboev, Rashid Dzhankezov, Osman Urusov, Abdullah Tokhchukov and Umar Tokhchukov – kept The Future Belongs to Islam, a banned book of Sayyid Qutb, “in a generally accessible place in their home” and each of them took this book along when going out to offer it as reading material to all their acquaintances wishing for a more in-depth study of the Islamic religion. We view the ban against The Future Belongs to Islam as unfounded, since the book contains no inflammatory appeals, while its statements characterizing Islam as the true religion and critical of other religions are typical of most faiths and, in and of themselves, cannot serve as a basis for recognizing a book as extremist. Therefore, in our opinion, the prosecution in this case was inappropriate.