Misuse of Anti-Extremism in May 2021
In May, the State Duma passed in three readings a law prohibiting people, who were “involved” in the activities of an extremist or terrorist organization, from running for elective office. According to the newly adopted law, the restriction of the right to be elected will apply to anyone who, in the three-year period before the decision to ban or liquidate a problematic organization enters into force, held the post of its founder, member of its collegial governing body, its head or deputy head, a head or deputy head of its structural unit, as well as anyone who, during the year that preceded the ban’s entry into force, was a participant, a member, an employee or “other person involved in the activities” of the organization. In the first case – for founders and leaders – the restriction on the passive electoral right will be in effect for five years from the date on which the decision to ban their organization enters into force. In the second – for participants, etc. – the restriction remains in effect for three years after the said date. Involvement in the activities of an extremist or terrorist organization is defined as “direct implementation of objectives and/or forms of activity (including individual events), due to which the organization was recognized as extremist or terrorist,” “support by statements” (including online) of such objectives, forms of activity and of the organization itself, or providing the organization with financial, property, organizational, methodological, advisory and other assistance. “Involvement” in a banned organization must be established by a “court decision that has entered into force.”
The legislation does not provide for a special court procedure for establishing such “involvement.” At the same time, if a “court decision” establishing “involvement” is interpreted as a decision made on any case related to an organization, we can expect first that the restrictions are going to apply to all people mentioned in the text of the court decision on banning the organization or in the text of other relevant court decisions. The standards of proof for facts concerning particular individuals named in such cases, tend to be low. Second, “involvement” in a prohibited organization is likely to be established by court decisions under “extremist” articles that mention, as a circumstance of the commission of a crime or an offense, the fact that the defendant supported a prohibited organization (for example, by oral or written positive references to its political actions) or took part in its events.
In general, the breadth and ambiguity of the “involved person” concept can lead to law enforcement abuses. Finally, the constitutionality of such broad passive suffrage restrictions, especially for actions committed in the period that precedes the actual ban on the organization or even the filing of charges against it, raises some doubts. Loss of the right to be elected can, in this case, be regarded as a form of punishment, which, according to Article 54 of the Constitution, should not be imposed for actions that were not illegal at the time of their commission.
A bill, under which the law “On Immortalization of the Victory of the Soviet people in the Great Patriotic War” will come to include the ban against “publicly equating the goals, decisions and actions of the USSR leadership, the USSR commanders and military personnel with the goals, decisions and actions of the Nazi Germany leadership or commanders and military personnel of Nazi Germany and the Axis countries during World War II, as well as denying the decisive role of the Soviet people in the defeat of Nazi Germany and the humanitarian mission of the USSR in the liberation of the European countries.” It is not clear which statements will be regarded as “equating” in practice. Anyway, we view the proposed innovation as an unreasonable restriction of freedom of expression in the historical discussion. The corresponding amendments to the Code of Administrative Offenses or the Criminal Code have not yet been submitted to the State Duma.
In mid-May, the Duma also adopted in the first reading a bill that establishes the responsibility of media resources for mentioning terrorist organizations without indicating that their activities are prohibited.
In late May, a bill obligating the foreign Internet companies whose daily audience includes over 500 thousand Russian users to open representative offices in Russia was introduced to the State Duma. Among other requirements, the bill stipulates that these companies must restrict access to materials banned in Russia. Various coercive measures are provided for failure to comply with this requirement: informing search engines users that a resource violates Russian legislation, a ban on the distribution of its advertising in Russia, a ban against advertising on the company’s websites, restrictions on accepting monetary transfers and payments from Russian individuals and legal entities, a ban on being delivered by search engines, and the prohibition on collection and cross-border transfer of personal data. In addition, measures such as partial or complete restriction of access to the resource using the “sovereign Internet” mechanisms can follow a refusal to interact with Roskomnadzor, to open a representative office, or to store personal data of Russians on the Russian territory; these measures can also be used as sanctions for “censoring” Russian media and citizens. All these requirements will also apply to foreign hosting providers that work with Russian citizens, advertising networks and foreign information dissemination organizers. The bill was adopted in the first reading on June 1.
The Practice of the European Court Of Human Rights
In May, the European Court of Human Rights (ECHR) ruled on two complaints concerning restrictions on freedom of expression in Russia. The first was filed by Novaya Gazeta in connection with a caution from Roskomnadzor received in 2010 for quoting the program of the ultra-right organization Russky Obraz and displaying symbols similar to Nazi symbols. Russia's representative to the ECHR argued that the caution was a proportionate response since it did not require the newspaper to take any action. The court in Strasbourg, however, noted that the caution presented the editorial board with a choice – either to abandon detailed coverage of a socially significant topic or to be subjected to even greater state pressure. In accordance with the legislation in force, if Roskomnadzor decided to send another caution within 12 months, the publication of the newspaper could have been suspended. Meanwhile, according to the ECHR’s opinion, interference with freedom of expression in this case was not necessary in a democratic society. The ECHR noted that the quotes from the Russky Obraz manifesto only illustrated the unequivocally expressed message of the article’s author and the editorial board regarding the illegal nature of the organization’s activities. The published symbols were clearly related to the article and were used in the context of public discussion, but the Russian courts, in which Novaya Gazeta tried to challenge the caution, never investigated the context, in which these symbols had been displayed. The ECHR ordered Russia to pay Novaya Gazeta two thousand euros in compensation for non-pecuniary damage and over two thousand euros in legal costs.
The second complaint, considered by the ECHR, was submitted by Roman Kilin, who received a suspended sentence under Article 280 Part 1 of the Criminal Code (public calls for extremist activities) issued by a Kemerovo court in 2011 for the publication on VKontakte of an excerpt from Pavel Bardin's film “Russia 88” and the “Glory to Russia” song by Kolovrat. The ECHR did not find the verdict to violate Kilin's right to freedom of expression but awarded him 1,500 euros for violation of his right to a fair trial since the review of his appeal was held behind closed doors.
Sanctions for Oppositional Activities, Criticism of the Authorities, and Incitement to Separatism
In May, a criminal case was opened in Khabarovsk against artist Maxim Smolnikov, known as Xadad, under Article 205.2 Part 2 of the Criminal Code (public justification of terrorism on the Internet). The court took him into custody. The prosecution was based on the artist's post published on October 31, 2018 on his VKontakte public page, speculating about a bomb detonated by anarcho-communist Mikhail Zhlobitsky in the FSB regional headquarters building in Arkhangelsk. According to Smolnikov, the repressive policy of the state and, in particular, the torture methods practiced by officers of the Federal Penal Enforcement Service and the FSB had motivated Zhlobitsky to take such a radical step. The artist noted the explosion was more akin to an act of self-immolation than to a “guerilla attack or terrorist attack.” At the end of his commentary, Smolnikov called the incident “too high of a cost [of the political struggle]” and expressed his condolences to relatives and friends of the deceased anarchist.
We regard the prosecution against Smolnikov as inappropriate, since we cannot see in his statements signs of either a public justification or propaganda of terrorism, as defined in the notes to Article 205.2 of the Criminal Code. The artist's text contained no statements on the appropriateness or permissibility of terrorism.
In late May, the court found Daria Polyudova, a Left Resistance (Levoe soprotivlenie) activist, guilty under Article 205.2 Part 2 of the Criminal Code and Article 280 Part 1 of the Criminal Code (public calls for extremist activity) and sentenced her to six years in prison. Polyudova’s guilty verdict under Article 280 of the Criminal Code, was based on an incident originally qualified by the investigation under Article 205.2 Part 1 of the Criminal Code (public calls for terrorist activity). It involved a video recording found on the activist's phone, in which she, in a conversation with a colleague, commented on the armed attack against the FSB building on Lubyanka that took place on December 19, 2019. The investigation claimed that Polyudova’s statements, which approved of the actions of shooter Yevgeny Manyurov, were heard by people around her.
We doubt the appropriateness of the prosecution against Polyudova in connection with this episode. First, even if the activist's statements were overheard by anyone, such people would have been very few in number. Second, if these statements were made in a private conversation that was not intended for prying ears then it follows that Polyudova had no criminal intent to make public calls.
As for the charge against Polyudova under Article 205.2 Part 2 of the Criminal Code, it was initially filed in combination with the charge under Article 280.1 Part 1 of the Criminal Code (public calls for separatism); the charge under Article 280.1 was later dropped. The charges were based on a single-person picket staged by the activist to encourage the residents of the Kuril Islands to hold a referendum on secession from the Russian Federation and her two VKontakte posts. In the first post, accompanied by a map of the hypothetical dissolution of Russia, Polyudova substantiated her point of view on this issue citing Lenin's understanding of the right of nations to self-determination. In the second instance, Polyudova shared a post by another activist that contained an endorsement of violent separatism using the armed struggle by Chechen separatists as an example and a Shamil Basayev meme as an illustration. In our opinion, the first post provided no grounds for prosecution. The second one, however, did contain calls for an armed separatist struggle, and Polyudova did not distance herself from the statements made by the post’s author.
In late May, the Zabaikalsky Regional Court overturned the verdict for the Chita blogger Alexei Zakruzhny (Lekha Kochegar) and returned his case to the prosecutor. Zakruzhny had been previously found guilty under Article 280 Part 2 of the Criminal Code (public calls for extremist activity on the Internet) and Article 212 Part 3 of the Criminal Code (calls for riots) and received a suspended sentence. The case was opened based on a stream, in which the blogger criticized the pandemic-related ban on visiting cemeteries for the “parents' day” and called for “demolishing the cordons” at the entrance to the cemetery grounds and, in this way, launching a “bloodless revolution.” In our opinion, the verdict against Zakruzhny was inappropriate, since his statements contained no calls for violent actions.
A court in Yevpatoria sentenced Ukrainian citizen Alexander Dolzhenkov to a year in a penal colony for participating in the activities of the “Ukrainian Resistance in Crimea” group on VKontakte. He was found guilty under Article 282.1 Part 1 of the Criminal Code (founding an extremist community). The Ukrainian Resistance in Crimea published various materials critical of the annexation of Crimea to Russia and calls for facilitating the peninsula’s return to Ukraine. We found no posts in the community that contained incitement to violent actions aimed at returning the territory and have no reason to believe that the defendant and his associates planned such actions.
In early May, a criminal case was initiated in Perm under Article 214 Part 2 of the Criminal Code (vandalism motivated by political enmity) against Pavel Lisin. According to the investigation, he wrote “Putin is a thief” on two residential buildings. The resulting damage to the property management companies amounted to 285 rubles and 263 rubles.
A Moscow court issued a verdict under the same article against activists Olga Misik, Ivan Vorobievsky and Igor Basharimov in mid-May. Misik was sentenced to two years of restriction of freedom, and both Vorobyevsky and Basharimov – to one year and nine months of restriction of freedom. The case was opened based on a protest action against the verdict in the “New Greatness” (Novoe velichie) case, which was dubbed by the media as “the booth of federal importance.” As established by the court, in August 2020, the activists poured paint on the wall of the entrance checkpoint booth of the General Prosecutor's Office and decorated it with sanitary pads and a poster with a crude caption. The material damage suffered by the Prosecutor General's Office amounted to 3464 rubles 50 kopecks. That same night, the offenders also glued pads and posters to the fence of the Lublinsky District Court.
We doubt the legitimacy of political and ideological hatred or enmity motive as part of an article on vandalism. Vandalism motivated by hatred is essentially close to another illegal action – incitement to hatred. However, incitement to political or ideological hatred (unlike, say, racial or religious hatred) does not constitute an offense or crime under Article 20.3.1 of the Code of Administrative Offences or Article 282 of the Criminal Code. Such actions, unless they are associated with violence, are indistinguishable from legal political struggles that involve the rivalry of political platforms and leaders.
In addition, Article 214 of the Criminal Code is often used in cases where property damage is not very significant. We believe that Lisin's case can be closed for insignificance. The introduction of a corresponding norm in the Code of Administrative Offences may be an appropriate solution for cases that only inflicted minor damage but cannot be dropped as insignificant.
In mid-May, a court in Kemerovo placed local opposition blogger Alexei Fedorov under arrest for 18 days under Article 20.3.1 (incitement to hatred) and Article 19.3 Part 1 (disobedience to the lawful demand of a police officer) of the Code of Administrative Offences. Prosecution under Article 20.3.1 was based on the video “Ghouls are destroying Kuzbass. The time for change has come,” which he published on his YouTube channel in November 2020. We believe that the prosecution against the blogger was unjustified – the video contained critical remarks about the Kemerovo authorities, but no calls for violence or any illegal actions. We also believe that, in any event, government officials should not be considered a vulnerable social group protected by anti-extremist legislation. Moreover, SOVA Center advocates eliminating from anti-extremist legislation the vague concept of “social group,” which contributes to excessive restrictions on freedom of expression.
In late May, a court in Novosibirsk fined activist Viktor Sorokin 18 thousand rubles under Article 20.3.1 of the Code of Administrative Offences. He had published a video message addressed to the Prosecutor General of Russia, in which he accused Novosibirsk Regional Prosecutor Yakov Khoroshev and other law enforcement officials of corruption and, in particular, of defending the interests of cement producers associated with ex-Governor Viktor Tolokonsky. Sorokin’s video included the words “bandits in uniform” and a derogatory term for police officers (“menty”). We believe that Sorokin was penalized inappropriately. Law enforcement personnel and prosecutors do not constitute a vulnerable social group in need of special protection from hatred. On the contrary, they must be extremely tolerant of criticism, unless it includes a real threat of violence. Far from calling for violence, Sorokin, in fact, demanded compliance with the law, and his criticism targeted only law enforcement officers who commit illegal acts.
Konstantin Ledkov, a resident of Krasnoe, was fined 35 thousand rubles in Naryan-Mar in late May under Article 20.3.2 Part 2 of the Code of Administrative Offences (public calls for separatism on the Internet). According to Ledkov, the charges were based on his two VKontakte posts, where he argued that Crimea belongs to Ukraine and that people who visit Crimea under the current circumstances should feel ashamed. In our opinion, calls for border changes should be considered illegal only if they are combined with incitement to violent actions. Apparently, Ledkov’s posts contained no incitement whatsoever, so there was no basis for imposing the sanctions.
In May, social media users continued to face punishment under Article 20.29 of the Code of Administrative Offences (public distribution of extremist materials) for sharing the banned video “Let’s Remind Crooks and Thieves about Their Manifesto-2002,” created by supporters of Alexei Navalny. The Ardatovsky District Court of Mordovia fined Andrei Kovalenko 1,000 rubles. We also found out that seven additional people were punished for this video in Yoshkar-Ola over the past few months; Sergei Biryukov, Olga Dolganova, Angelina Ilyina, Andrei Khanov, Ivan Isanov, Denis Babochkin and Alexei Yandlechev were fined in amounts ranging from one to one and a half thousand rubles. We view the prohibition of this video as inappropriate. It merely lists a number of unfulfilled campaign promises from the 2002 United Russia party manifesto and calls to vote for any party other than United Russia.
Lawyer Roman Raymov was fined one thousand rubles under Article 20.29 of the Code of Administrative Offences in Cheboksary for posting the following comment on a social network: “Another person got in trouble for Milonov’s “Orthodoxy or Death” slogan and left the country.” We view numerous cases against opposition activists in Chuvashia for mentioning the forbidden slogan “Orthodoxy or Death” as unfounded, and the very ban against this slogan as inappropriate. Although this slogan is popular among the aggressive segment of Orthodox activists, it has been historically interpreted not as а wishing death upon people who don’t follow the Orthodox Christian doctrine, but as an opposition of Orthodoxy and spiritual death – this is how the slogan is interpreted by the overwhelming majority of people who use it. In addition, punishing any mention of a banned item, including a slogan, is absurd.
Other Sanctions for Incitement of Hatred
In Cheboksary, oppositionally-minded student Marina Pralkova was fined 10 thousand dollars under Article 20.3.1 of the Code of Administrative Offences. Back in 2015, she shared on VKontakte a text from the public group “The Lamp Conversations” written by radical feminist Lyubov Kalugina. The post spoke of four stages, which, according to Kalugina, women go through in understanding their oppressed position. Those who have reached the fourth stage, according to the author, are preparing a theoretical and ideological basis for future generations of women who will be able to “fight for their place under the sun to the last drop of blood” and “will finally sweep away the power of sperm scum from the face of this beautiful planet.” The expert examination carried out at the prosecution’s request concluded that the text contained a set of linguistic and psychological signs of inciting hatred towards men and humiliation of their dignity.
The post shared by Pralkova is dedicated to women's awareness of their position in society and the strategy of combating patriarchy, the active phase of which, as follows from the text, will unfold in the distant future. Meanwhile, the text contains no incitement to violence against men. The characterization given by Kalugina to men in general can be called offensive, but such rhetoric is generally typical for certain radical feminists and, as far as we know, at the current stage of social development it does not, in and of itself, entail socially dangerous consequences. In addition, Pralkova shared the post back in 2015, and so far this act had no noticeable consequences. Thus, sanctions in this case were unjustified.
Prosecutions for “Rehabilitation of Nazism”
In late May, the Voronezh Regional Court found 63-year-old Alexander Khoroshiltsev guilty under Article 354.1 Part 1 of the Criminal Code (condoning the crimes established by the Nuremberg Tribunal) and sentenced him to a fine of 90 thousand rubles. On May 4, 2020, Khoroshiltsev posted a photograph of Adolf Hitler with the caption “Schicklgruber, Adolf Aloisovich, on the “Memory Bank” website to be displayed among the photos of the Great Patriotic War veterans.” The investigation concluded that, by doing so, he publicly expressed his approval of the participation by the leadership of the National Socialist German Workers' Party (NSDAP), including Hitler, in the commission of war crimes and crimes against humanity during the Second World War. Khoroshiltsev himself stated that he had no intention to rehabilitate Nazism; he uploaded Hitler’s photo onto the site in order to “no longer be spammed” with suggestions to participate in the Immortal Regiment project.
We believe that Khoroshiltsev's actions have been qualified incorrectly. He did not accompany Hitler's photo with any statements approving or denying Nazi crimes. Uploading photos of Nazi leaders to a website, even on the eve of the Victory Day of May 9, does not, in and of itself, constitute a public endorsement of the Nazi crimes.
In addition, we learned that several additional similar cases related to uploading photos of Nazi criminals were opened in 2021. The defendants are Russian citizens Andrei Akimov from the Orenburg Region and Sergei Sakharov from the Tomsk region, as well as the Ukrainian citizens Dmitry Alexeenko and Mikhail Pukh.
Persecution against Religious Organizations and Believers
Prosecution against Jehovah's Witnesses charged with continuing the activities of their communities, banned as extremist, continued in May. We view the bans as legally unfounded.
A court in Perm found Boris Burylov and Viktor Kuchkov guilty under Article 282.2 Part 1 of the Criminal Code (organizing the activities of an extremist organization), and Alexander Inozemtsev and Yuri Vaag – under Article 282.2 Part 2 of the Criminal Code (participating in the activities of an extremist organization). All four received suspended sentences of two and a half years. Igor Turik was found guilty under Article 282.2 Part 1 and Article 282.3 Part 1 of the Criminal Code (financing of extremist activities) and received a seven-year suspended sentence.
In Rostov-on-Don, 71-year-old Lyudmila Ponomarenko received a two-year suspended sentence under Article 282.2 Part 2 of the Criminal Code.
In Nadezhdinsky District of Primorsky Krai, 73-year-old Lyudmila Shut’ was issued a four-year suspended sentence on a similar charge.
Rustam Seidkuliev from Saratov was sentenced under Article 282.2 Part 2 of the Criminal Code to two and a half years in a penal colony.
In Novosibirsk, Vitaly Popov received a three-year suspended sentence under Article 282.2 Part 2 and Article 282.3 Part 1 of the Criminal Code.
In the Moscow Region, Yuri Krutyakov received a six-year suspended sentence under Article 282.2 Parts 1, 2 and 1.1 (involvement in the activities of an extremist organization) of the Criminal Code, and Zinaida Krutyakova, Konstantin Zherebtsov and Vitaly Nikiforov – two-year suspended sentences under Article 282.2 Part 2 of the Criminal Code.
Ekaterina Pegasheva, a resident of Mari El, received a suspended sentence of six and a half years under Article 282.2 Part 1 of the Criminal Code.
The Court of the Jewish Autonomous Region increased the severity of the sentences to Svetlana Monis and Yulia Kaganovich; instead of a fine they now face suspended sentences of two and a half years under Article 282.2 Part 2 of the Criminal Code.
Konstantin Bazhenov, newly released from a penal colony, was deprived of his Russian citizenship and deported to Ukraine.
A number of new criminal cases were initiated as well. In Kaltan of the Kemerovo Region, the charge under Article 282.2 Part 1 of the Criminal Code was filed against Alexander Tsikunov, and charge under Part 2 of the same article – against Vitaly Syrykh; both were placed under house arrest.
In Maysky of the Kabardino-Balkarian Republic, Kirill Guschin, previously charged under Article 282.2 Part 1 of the Criminal Code, is now being prosecuted under Part 1.1 of the same article; his wife Svetlana Guschina as well as Zareta Ortanova, Svetlana Dubovkina, Olga Shulgina and Aksana Dominova became suspects under Article 282.2 Part 2 of the Criminal Code. In addition, materials under Article 308 of the Criminal Code (refusal of a witness or victim to testify) were removed to form a separate case.
In the Chelyabinsk Region, a new criminal case was initiated against Pavel Popov under Article 282.2 Part 1 of the Criminal Code.
In the Altai Territory, the case was opened against Pavel Kazadaev under Article 282.2 Part 2 of the Criminal Code.
In the Saratov Region, a criminal case was initiated in May under Article 282.2 Part 2 of the Criminal Code against a 50-year-old resident of the region accused of involvement in the activities of the banned religious movement Tablighi Jamaat. Tablighi Jamaat was not implicated in any calls for violence and, in our opinion, was recognized as extremist inappropriately.
In the course of the month, we became aware of a number of cases in Mari El, in which people faced administrative responsibility under Article 20.29 of the Code of Administrative Offences for sharing The Miracles of the Quran video. In April, Yoshkar-Ola residents Izzatilo Isakov and Valea Tamazova were fined 1,000 rubles. The Sernursky District Court in May imposed the same fine on Renat Salikhov, a resident of the village of Paranga. From our point of view, the Miracles of the Quran was recognized as extremist inappropriately. We found no calls to violence, incitement to hatred, or discriminatory statements in this more than two-hour-long educational history video; in our opinion, it speaks about other religions in an emphatically respectful tone (although, of course, it affirms the superiority of Islam; the opposite would be strange). However, Russian courts have punished citizens for disseminating the video on a number of occasions.
In mid-May, a magistrate's court in the Tula Region fined Dmitry Bukharov, a resident of Shchyokino, 30 thousand rubles; he was found guilty of deliberately publicly desecrating objects of religious veneration (Article 5.26 of the Code of Administrative Offences). His offense consisted of posting on VKontakte an image stylized as an Orthodox icon and depicting Joseph Stalin as a saint. In our opinion, posting such images online should not, in and of itself, be interpreted as desecrating objects of religious veneration. Online collages imply no active actions with actual religious paraphernalia. If the court implied that the image in question was a photograph of an actual “icon” of Stalin painted by someone, then it should be noted that the assertion of Stalin's holiness should be categorized as religious polemics and is not illegal per se. It is also worth noting that the legislation never defines the concept of “desecration.”