SUMMARY
CREATION OF REGULATORY ACTS. POSITIVE DEVELOPMENTS
MAJOR TRENDS IN 2011 : “Excessive Vigilance” : The Internet and Anti-Extremism : Incidental Victims of Inappropriate Anti-Extremism : "E"-Centers
PRINCIPAL TARGETS OF PERCECUTION : Religious Groups : Political and Civic Activists : Media Topics
A BIT OF STATISTICS
SUMMARY
With the eruption of the protest movement in winter of 2011-2012, the issue of political repressions became one of the most hotly discussed subjects, thus bringing attention to the anti-extremist legislation in general, and to the Criminal Code Article 282 in particular. In the past uncompromising defenders of free speech were this legislation’s primarily opponents; however, in 2011 the right-wing circles became quite unified and vocal in their criticism of it. Their obvious purpose was to defend their associates, convicted not only for incitement of various kinds, but for violent hate crimes as well. Vladimir Zhirinovsky even introduced several bills to repeal the law "On Countering Extremist Activity" and Article 282; however the obvious lack of coherence in his proposals revealed their true purpose – not to change the law, but to make a political gesture. Young ultra-nationalists expressed the same sentiment more bluntly in their chants, "Russian Moscow for the Russians; repeal two-eight-two" (Russkim russkaia Moskva, otmenit’ dva-vosem’-dva).
The purpose of ultra-nationalists is clear, and an informative discussion of laws and their enforcement is not in their best interests; nevertheless the non-radical opposition and civic activists should have paid greater attention to this issue is well. Unfortunately, the protests against "inappropriate anti-extremism" lack well-formulated demands, and protesters are often unable to tell apart different articles of the Criminal Code (e.g. 280, 282 and 2822). A careful analysis of this legislation and its enforcement, based on clear and non-political criteria, is a prerequisite for any attempts to improve the legislation and stop its misuse.
Anti-extremist legislation has been criticized repeatedly and in much detail,[1] so this paper will only focus on analyzing the major law enforcement trends of 2011. The report is divided into four parts. The first part provides an overview of the legal innovations. The second one analyzes the trends most pronounced during this past year. The third one presents our traditional breakdown and review of the groups that tend to become principal targets for "inappropriate anti-extremism." The fourth part, newly added this year, represents our attempt at statistical analysis of repressive practices in this area.
Within the phenomenon of excessive anti-extremism we can identify two levels of violations. The first level represents restrictions of fundamental rights and freedoms to a significantly greater degree than prescribed by international law. The second level refers to abuses of current, already rather repressive, legal statutes of the Russian Federation.[2]
As in all previous years, the most severe persecution was directed toward particular religious groups; nevertheless certain categories of political and civic activists also became targets for "inappropriate anti-extremism." Media outlets suffered to a lesser extent than in previous years; however, the internet-related inappropriate enforcement of the anti-extremist laws has been on the increase.
In general, we see that measures against extremism, in the form they took under the influence of repressive legislation and repressive campaigns, generate more and more "side effects." Anti-extremist legislation was initially seen as a kind of "enforced tolerance," and its interpretations to this effect have become increasingly arbitrary, threatening prosecution for controversial statements that represent a very minor potential threat to society. Organizations, such as a libraries or Internet providers, which accidentally cross paths with "fighters against extremism," come under increasing pressure. The number of clearly incidental, even completely accidental, victims of this campaign is growing. Finally, we have recorded a rising level of abuse perpetrated by specialized anti-extremist units.
The solution to these problems requires a fundamental reform of anti-extremist legislation. Various aspects of this reform can and should be subject to a serious discussion, which does not fit into the format of this report. We can only indicate its several key provisions:
- Redefining the object of counter-action as a set of criminal acts, directly or indirectly related to ideologically motivated violence;
- Decriminalizing all other acts, currently qualified as extremist;
- Repealing some clearly discredited legal mechanisms, particularly, the ban on informational materials, and the mandatory examination requirement for the "extremism-related" cases;
- Revision of prior judicial decisions to ban organizations as extremist, as well as of criminal convictions, at least under Articles 280 and 282, since the reform will change the content of these articles to adopt more narrow definitions.
CREATION OF REGULATORY ACTS. POSITIVE DEVELOPMENTS
The majority of developments in the field of rule-making in 2011 were positive. It seems that the political leadership, the leadership of law enforcement agencies (always involved in lawmaking in this area), and especially the Supreme Court of the Russian Federation felt the need to eliminate at least the most egregious inconsistencies and abuses arising in the field of "anti-extremism." Of course, the developments never reached the level of full-scale reforms; rejection by the Presidential Administration of a draft reform of the anti-extremist legislation, submitted by the Human Rights Council,[3] is symptomatic of the situation. However, even partial reforms are not only important in themselves, but also denote the beginning of a new trend; previously the authorities had simply ignored the problems resulting from "inappropriate anti-extremism."
Major developments in this field were previously described in the SOVA Center report on counteracting xenophobia and radical nationalism;[4] here we shall present only the extended quotes from this report, covering important developments and initiatives.
"The most important and positive development of the year was neither a law nor a legislative proposal; it was Resolution No. 11 of the plenary meeting of the Supreme Court of the Russian Federation "Concerning Judicial Practice in Criminal Cases Regarding Crimes of Extremism" adopted on June 28, 2011,[5] already cited in this report on several occasions.
The Court clarified a number of controversial issues regarding the distinctions that determine different qualifications of alleged extremist acts.
First, it confirmed that mass distribution of prohibited materials could be considered a criminal offense under Article 282, if the prosecution proves direct intention of inciting hatred.
Second, the court found the application of Article 282 to violent crimes, if they were aimed at inciting hate in third parties, to be appropriate; for example, through public and provocative ideologically motivated attack. Various acts of vandalism, when they result in a public message, such as, for example, a graffiti inciting hate, should be considered under the aggregation of the relevant articles (i.e. Articles 214 and 244) and Article 282.
Third, the court stated that in order to find a person guilty of involvement in an extremist group (Article 2821 of the Criminal Code) any form of participation was sufficient, even if no other crimes were committed.
The ruling also contained a number of important points, which had been raised by experts and human rights advocates for many years, and were needed primarily in order to eliminate inappropriate law enforcement.
First, the court stated that criticism of officials and politicians should not qualify under Article 282, since, in this respect, they cannot be held equal to ordinary citizens.
Second (and this is even more important in the context of Article 282), the criticism of political, religious and ideological beliefs and associations, as well as national and religious customs in and of itself does not constitute hate speech.
Third, the ruling prohibited asking experts (linguists, psychologists, and others) any questions related to legal evaluation of the offense. For example, an examiner cannot be asked whether the materials under review were intended for inciting national hatred. Thereby, the Supreme Court merely restated a founding principle of the criminal procedure legislation – the legal issues should always remain the responsibility of the investigation and the court.
However, the Resolution did not eliminate all the blind spots in anti-extremist legislation. In particular, it gave no clarification regarding the kinds of groups that enjoyed protected status under the anti-extremist legislation, in the context of the hate motive toward a social group. The essence of the Criminal Code Article 2822 ("organization of an extremist group") received no clarification as well; for example, the Court never explained whether activities, conducted under a different name and logo, but by the same persons and for the same purpose, could be considered as continuation of the activity by a banned organization. Finally, based on experience, we don’t expect the courts to accept unusual Supreme Court clarifications quickly. Nevertheless, we already saw some cases, where the verdicts clearly reflected these clarifications.
The presidential bill, expanding the use of "professional restrictions" under some "extremist" articles of the Criminal Code, went into force on July 26.
It reformed Articles 280 ("public incitement to extremist activity"), 2821 ("organization of an extremist community") and 2822 ("organization of an extremist group"). In some cases the punishment in the form of ban on occupying certain positions or engaging in certain activities was newly introduced, and in other cases its use was expanded to include longer time periods for the restrictions.
In this case we support more stringent "bans on professional activity,"[6] as well as the fact that prison sentences were not increased; we believe that a prison term is not an appropriate punishment for "mere words."
The presidential bill presenting extensive humanization of the Penal Code (including "crimes related to extremism") went into force on December 7, 2011. Under this legislation, custodial sentences will be less frequently imposed for offenses under Part 1 of Article 280, Part 1 of Article 282, Part 2 of 2821 and Parts 1 and 2 of Article 2822 of the Criminal Code, as these crimes will now be considered minor offenses, to which custodial sentences shall not apply in the absence of aggravating circumstances. We welcome this initiative, since it relates to sentences for offences that involve "mere words" or simple membership in a group.
Amendments will indirectly affect the practice of giving suspended sentences for these crimes. A suspended sentence is usually given in lieu of a prison term, and, since such custodial sentences are now expected to become rare, the number of suspended sentences should decrease as well. We welcome these changes, because we believe that an ideologically-motivated offender tends to perceive a suspended sentence as, essentially, a non-punishment.
In addition, in 2011 two seriously problematic pieces of anti-extremist legislation were introduced.
On August 4 the government sent a bill to the Duma that dealt with financing extremist activities and propaganda of extremism on the Internet. It provides:
- Introduction of a new article of the Criminal Code, 2823 ("funding of extremist activity"), with penalty ranging from a fine to up to 6 years' imprisonment;
- Inclusion of valuables intended to finance extremist activity into the list of confiscated property;
- Giving the Internet the media status in relation to Articles 280 and 282;
- Setting procedural deadlines associated with the recognition of extremist materials. The judgment should be sent to the Ministry of Justice within three days, and the Ministry of Justice should add the decision to the Federal List within 30 days.
We believe that the introduction of article on financing extremist activities serves no useful purpose, since the Criminal Code already assumes that providing funds for the commission of a crime is a form of participation (Article 33 of the Criminal Code). However, the addition of this article is not expected to cause any harm.
As for treating the Internet equally to mass media, this initiative seems to us very ill-conceived. First, not all material posted on the Internet is publicly accessible; it can be hidden behind a password and accessible only to a narrow range of users, making this arrangement no different from a group e-mail. Second, in any propaganda crimes the degree of publicity is critical. While the extent of public exposure is sufficiently clear when applied to the media, for the statements made online exposure can vary greatly – from a broadcast, exceeding the circulation of most newspapers, to a smaller resonance than a conversation in a crowded room.
The proposed bill encourages serious prosecution (especially under Article 280) for Internet remarks, even when public danger is only negligible because of the small audience size. The amendment essentially does not change the disposition of Article 282, which simply mentions the Internet, along with other types of media after the word “including,” when giving examples of public statements. In case of Article 280, however, utilizing the media (and, according to the proposed bill, the Internet as well) constitutes a qualifying clause, so that any call to extremist activity on the Internet would have to be punished under this article by nothing less than imprisonment for up to five years. The motivation for such a harsh innovation is not clear. Even now, nothing prevents the prosecution from filing charges based on illicit statements posted on the Internet, and a considerable case base (of both legitimate and inappropriate application of the law) has been accumulated.
The bill shows no signs of advancing through the Duma, and, considering the growing resistance, might never pass in its current format.
On October 11, 2011 President Dmitry Medvedev submitted to the State Duma a draft federal law Concerning the Introduction of Amendments to Article 22.1 of the Federal Law "Concerning the State Registration of Legal Entities and Private Entrepreneurs" and articles 331 and 351.1 of the Labor Code of the Russian Federation."
The bill concerns the restrictions on working with juveniles. Now it is prohibited to everyone, who have been convicted or charged (and never acquitted) under a good half of the Criminal Code articles. The bill proposes to add crimes against the foundations of the constitutional order (Chapter 29 of the Criminal Code) to the list, including offences under Articles 280, 282, 2821 and 2822.
We have no objections against the law itself, but would like to emphasize a considerable amount of wrongful convictions imposed under these articles of the Criminal Code. This means that victims of anti-extremist legislation misuse would face an even greater deprivation of rights, if this bill passes."
As you can see, not all the changes last year were for the better. In particular, the situation with the Internet regulation has only deteriorated (see "The Internet and Anti-Extremism" section below). Let us, however, dwell on one more encouraging episode, which shows that the Supreme Court is not the only organization concerned about the most obvious excesses of anti-extremist law enforcement.
We have already written about the fact that Russian law mandates an absolute ban on public use of Nazi and similar symbols. This context-independent ban is obviously absurd, and, of course, has never been systematically applied. A case of meaningless persecution finally attracted attention beyond the circle of human rights activists and the media.
Vadim Gromyko, a son of the Krasnodar Kray vice-governor Eugene Gromyko, decided to make a comic movie with himself playing the role of Stirlitz[7] , and rented SS uniform for this purpose. As a result, the Krasnodar Kray Prosecutor's Office opened a case under the Administrative Code Article. 20.03 (propaganda and demonstration of Nazi symbols) against the woman, who posted online the photograph of V. Gromyko, wearing this uniform, and demanded that all the media outlets, covering the video (which scandalized the region) removed these images from their publications. Charges were also brought against the police, the president of the university, attended by V. Gromyko, and the director of the recreation center, where Gromyko rented the uniform.
This absurd story could have been forgotten, like many other ones before it, but the Zhivaia Kuban' web portal found the claims of the prosecutor's office to be unfounded, since the materials were never intended to promote Nazism, and went to court.
In substance, the editorial board was, of course, right, but not according to the letter of the law. The old law "On Immortalizing the Soviet People's Victory in the Great Patriotic War of 1941-1945" contained an unconditional prohibition, and the later law "On Counteracting Extremist Activity" prohibits "propaganda and demonstration," and the interpretation of the conjunction "and," contained in this prohibition is not clear; the logic of Russian grammar implies that each activity is separately forbidden; however the tradition of the legal usage dictates using a different conjunction "either" (libo), when referring to banning both one and the other. Thus, the legal norms set by the law "On Immortalizing..." effectively have not been invalidated.
In September Sergey Sitnikov, the head of Roskomnadzor, grasped the situation with Zhivaia Kuban' and declared that his department would send a request to the Regional Prosecutor's Office to withdraw their demands to the media outlets and, most importantly, would initiate a discussion regarding possible revision of the relevant legal norms. On October 5, 2011 the Public Council of the Roskomnadzor supported Sitnikov’s position that the media should not be held responsible for the publication of images of Nazi symbols or paraphernalia or symbols or attributes, similar to Nazi, if the publication had no purpose of promoting the ideas of Nazism.
It is difficult to say when this legislative change would occur, but at least Roskomnadzor’s position on the issue underwent a radical transformation.
Decisions of the European Court of Human Rights exert substantial influence the legal climate in Russia. Needless to say, Russia, despite its obligations as the Council of Europe member, is not very eager to implement the recommendations of the ECHR. Yet, in many cases, these recommendations do not go unnoticed.
On June 21, 2011 the ECHR ruled that the "Watchdog control" (Storozhevoi kontrol’) databases, used by Russian law enforcement agencies to keep activists under surveillance as part of the anti-extremism campaign, and the practice of "preventive" detention violates the right to respect for private life. The decision was taken based on the complaint filed by Sergei Shimovolos, the human rights activist from Nizhny Novgorod.
As we mentioned before, the existence of the police database of people, who have become targets of operational work, is completely natural. The ECHR has no objections against such a database. The court also has no doubt that any secret surveillance interferes with the privacy rights, and the only question is the ground and rules for such an intervention. The Strasbourg Court insisted that the basis, on which a person can be included in the database for secret surveillance, had to be clearly stated in a public legal act, giving every citizen an opportunity to avoid such observation. The "Watchdog Control" surveillance database functioned on the basis of an unpublished order; the legislation provided no clear explanations regarding the inclusion criteria for this database (due, in particular, to the exceedingly vague definition of extremist activity) and did not describe an appeal procedure. Thus, the existing mechanism in Russia was deemed not "in accordance with the law" in terms of interference with the personal privacy rights.[8]
In February 2012 the District Court of Nizhny Novgorod had to resume deliberations regarding Shimovolos’ complaint. The full implementation of the ECHR decision requires clarifying the definition of extremist activity and publishing an open act that defines functioning of the "Watchdog Control" according to the relevant European standards.
SOVA Center has been monitoring abuses in the application of anti-extremist legislation for a number of years and issued numerous annual reports on the subject. [9] Over the years, law enforcement has developed routines, along with corresponding routine abuses. Our analysis of these routines is forthcoming in the next section of this report. Now, however, we would like to focus on significant trends of 2011.
Anti-extremist legislation is directed primarily against conduct, motivated by a particular intolerance, and cultivating, advocating and implementing this intolerance in practice (including grave crimes against an individual). We agree with legislators and the majority of citizens that intolerance is harmful both ethically and socially, and, even if not detrimental per se, can produce bad consequences. This is true even for such forms of intolerance as, for example, morally justifiable indignation directed at someone's harmful and dangerous actions. Therefore, in discussing the enforcement of anti-extremist legislation and its level of appropriateness, we must bear in mind that socially dangerous behavior, to which law enforcement agencies are bound to respond, could easily be related to the world outlook, which is not reprehensible per se, for example to certain religious or political views.
At the same time, we believe that in many cases society should not compel its citizens to behave tolerantly, especially since no government can always be trusted to enforce such tolerance. Only in extreme cases the moral and other kinds of social self-regulation can be replaced by government intervention. This remains true even in the situations, where the worldviews of some citizens are not well-tolerated by the majority (the examples of such religious and political views abound). This is true, even if some other proponents of such views committed ideologically-motivated crimes – after all, people are only responsible for their own statements and actions (aside from exceptions, such as a leader or a parent). This last point must be borne in mind, when discussing public statements of people, who share extremely xenophobic views of any kind.
However, all these considerations clearly have not been taken into account, when the current anti-extremist legislation was designed, and, worse, are not taken into account in its enforcement, despite vast accumulated experience that should inspire reflection.
Anti-extremist measures were often applied in cases where a statement (in the form of speeches, articles, videos, etc.) was certainly intolerant to one or another (usually ethnic) group, but contained no inflammatory appeals. It is particularly outrageous, when such cases lead to criminal prosecution; the police either misinterpret or explicitly ignore such necessary component of any offense as its level of public danger.[10]
The two most problematic legal statements in this respect are the element of the "extremist activity" definition, which defines it as an assertion of the inferiority or superiority of any group, and related disposition of the Article 282, dedicated to the abasement of human dignity, as it relates to a person’s group membership. It seems that such statements do not represent significant danger to society, since, in essence, they are similar to such acts as defamation or insult, decriminalized in December 2011. We believe that an adequate solution to the problem would be to delete the "abasement of human dignity" clause from Article 282.
Currently the "abasement of dignity" appears in a number of cases, and we believe that, while it may correspond to the letter of the law, it reflects neither the spirit of today's Russian criminal legislation nor (to even greater extent) the boundaries for freedom of speech, set the by European Convention on Human Rights and Fundamental Freedoms according to its practical interpretation by the European Court of Human Rights.
For example, at the end of December, the Kabardino-Balkaria Prosecutor’s Office requested that the court to ban extremist as the article, "Balkaria for Balkars… and Moscow for them, darlings, as well" (Balkaria dlia balkartsev…i Moskva dlia nikh zhe, rodimykh), which contains only stabs at backwardness of the Balkar People, and their widespread hostility to the Kabardians and the Russians (the criminal case under Article 282 was initiated right after the New Year).
In April 2011 a new case was filed concerning Yuri Mukhin, the leader of the banned Army of People’s Will (Armiya voli Naroda, AVN) and the editor of the banned Duel newspaper (in the meantime, the To the Stand (“K barieru”) newspaper, which replaced the Duel, was banned as well, and now is being published as the True Names (“Svoimi imenami”)). In this case Mukhin, a known anti-Semite, was clearly inappropriately accused of anti-Semitism under Article 282. His controversial article "I also have an advice" (Est’ i u menia sovet) expresses hostility toward Jews, but the worst accusation, levied against them in the article, is that they first created and then destroyed the USSR. Mukhin also was accused of quoting Hitler, which, in itself, does not constitute a crime.
Even more famous example is the criminal case under the same article against the well-known nationalist activist Konstantin Krylov for his speech at the "Stop feeding the Caucasus!" rally. His speech contained hints that people from the Caucasus kill Russians and corrupt the police, but no incitement to illegal activities.
While in the above examples we can still expect the cases not to reach the court, or the defendants to be acquitted (and, contrary to popular opinion, both of these outcomes are possible in Article 282 cases), the Kaliningrad publisher Boris Obraztsov was already convicted on September 19, 2011 under Part 1 of Article 282 to a fine of 110,000 rubles for his attacks on the Russian Orthodox Church in print. Obraztsov also made pronouncements about religious people in general, but even the strongest sentence in the article – "A religion is a combination of suckers, who are being fooled, and the scum that heads any religious organization" – is obviously not so aggressive as to merit criminal prosecution.
In our opinion, at least three issues need to be considered in this case. First, the article contained no incitement of any kind, and "abasement of human dignity" in itself constitutes a rather weak and doubtful corpus delicti in the context of criminal law, especially since acts, such as insults and slander, were decriminalized in December 2011. Second, the position of the Supreme Court was not adequately taken into account; its judgment of June 2001 stipulates that "criticism of religious communities ... religious beliefs,…or religious practices ... in and of itself does not constitute an act aimed at inciting hatred or hostility," although here the Supreme Court does not mention abasement of human dignity. Third, the extent of the act’s social danger, critical for establishing its criminal nature in accordance with Part 2 of the Criminal Code Article 14, was clearly never taken into account. Obraztsov’s statement, quite typical for an anti-Church rhetoric, was unlikely to hurt many people’s feelings.
The story does not end there. In mid-November someone reproduced Obraztsov’s text online (in fact, it was partially posted on many sites), and this became the basis for the second round of criminal proceedings for the fact of re-publication. So far, however, it is unclear how the prosecution is planning to prove that the online publication was carried out by Obraztsov. On December 5 his place was searched, and on December 13 the Bureau of the Kaliningrad Regional Court ordered the Leningrad District court in Kaliningrad to consider the Prosecutor’s application to recognize the ill-fated text as extremist.[11] Incidentally, an interesting procedural dispute arose in this case; both district and regional courts had previously refused to consider the case, since they considered it inappropriate to decide on an administrative action regarding the text simultaneously with the related criminal proceedings. However, the Bureau of the Regional Court decided otherwise.
We have already stated on several occasions that assertion of superiority and exclusivity of one’s religious faith should never be the ground for prosecution, either criminal or administrative. Although our laws can, unfortunately, be interpreted to classify such speech as criminal, even plain common sense dictates that the claim of exclusivity of one’s own faith (one’s religion or one’s personal interpretation of religion) constitutes a natural and almost universal feature of religion as such. Of course, crimes can be inspired by what is commonly referred to as "fanatical faith,” but this should not be used as the reason to prohibit manifestations of such faith, when they are not criminal in any other way.
2011 brought new cases of prosecution based solely on this shaky foundation (see examples in the next section of this report). Of course, such prosecution is extremely selective, since systematic persecution for claims of religious exclusivity is simply not possible.
The assertion of exclusivity of political views has also been used as the ground for prosecution, despite the fact that such charges contradict anti-extremist legislation, even in its present form. Political and ideological enmity is, according to the Criminal Code, an aggravating circumstance for any crime on a par with hatred of race, religion, etc. However, Article 282, which criminalizes public statements aimed at inciting various kinds of enmity, excludes the political and ideological enmity. Simply put, incitement of enmity between political or ideological opponents is not a crime. Apparently, some people view such an exception to "forced tolerance" as unreasonable, and found a way to circumvent it.
On June 24, 2011 the Public Prosecutor's Office of the Republic of Tatarstan delivered a warning about the impermissibility of extremist activity to Roman Ilyin, the user of the social network VKontakte, and the administrator of the group Autonomous Action (Avtonomnoe deistvie) (Kazan). According to the prosecutors, the content of a manifesto of libertarian communism (the ideological platform of the Autonomous Action), "determines" social hostility between the groups of supporters and non-supporters of this movement. Thus, the prosecution is actually prepared to qualify the actions of Kazan’s activists as an incitement of hate toward a "social group" of their political opponents. Apart from yet another obvious abuse of the "social group" concept, here we observe an attempt to criminalize the expression of political views (albeit, in this case, certainly radical) as such.
The Internet and Anti-Extremism
There is no doubt that everything forbidden offline is also forbidden online. A very substantial case history of enforcing anti-extremist legislation in relation to the statements, made on the Internet, already exists. This enforcement had some degree of success (primarily quantitative), as well as serious problems, which we have mentioned repeatedly, but which, far from disappearing, instead appear more often. They exist even when we exclude from consideration all the cases of clearly inappropriate bans for online material.
First, the prosecution and the court customarily don’t recognize the degree of publicity as an important criterion of the statement’s danger to society. It is not taken into account at all in cases, relating to the Internet speech, where the degree of publicity is, indeed, difficult to assess.[12]
Second, the problem of removing material from the cyberspace continues to exist. Simply removing the materials upon request from a law enforcement agency is a voluntary choice, since such requests have no binding force. Often site owners or hosting providers agree that a certain item should be deleted as likely violating the law and their own rules (and responsible hosting service providers usually have their own very reasonable set of restrictions for posted materials). Problems begin if the material is not being removed voluntarily.
There are two legal mechanisms for implementing prohibition of an item published on the Internet. The first is a targeted court judgment of removal, which is mandatory for local hosts and site owners (or social networks account owners, etc.), but it is seldom used, since it actually requires two decisions: to recognize an item as extremist, and to make a decision regarding its specific location. The second mechanism is a judgment about blocking access to illegal material, addressed to one or more access providers.
In both mechanisms the court judgment is often replaced by a simple request from law enforcement agencies, which, as we believe, should not be sufficient, since usually the situation also involves a disagreement, which should be resolved in court. The problem is that the law "On Communications" mandates to fulfill "motivated requests" from the law enforcement, but, currently, there is no common understanding on what kind of "motivation" is expected for "extremist content"- related cases.
Meanwhile, a new law "On police," which entered into force on March 1, 2011, introduced an additional theme. Unlike the previous law "On Militia," this law states that the police notions of "eliminating the causes and conditions that contribute to security threats to citizens and public safety, commission of crimes and administrative offenses" are considered mandatory. So far, this development did not manifest itself in the field of anti-extremism, but it certainly will.
In 2011 we observed a number of judicial and extrajudicial cases of blocking the Internet sites, usually due to presence of just one or two previously banned materials (although specific reasons for blocking are frequently not published). There are some doubts that in each case the police had first asked the site owners or hosting provider to remove these materials. The increasingly used method of blocking is also fraught with problems, which we have discussed in our earlier publications.[13]
Internet service providers insisted on many occasions that they could not be held responsible for materials that are read, watched and listened to by their customers, and, moreover, an attempt to influence them would constitute a breach of contractual obligations, or even a censorship attempt. In cases, when the dispute went to court, providers more often lost than won. As a rule, such cases are related to blocking access to specific sites of Jehovah's Witnesses or National Bolsheviks, and sites with banned Muslim or nationalist materials. Sometimes blocking requests were more ambitious in nature; in Togliatti, the prosecutor ordered a number of local service providers to block access to 100 sites at once, and the court approved the request for 80 of them.
Clearly disproportionate decisions to block sites, because of a few items posted on them, cause the greatest damage. Disparity and injustice of such a solution is obvious in cases where certain materials prohibited by the court are clearly not typical for a given site. The most striking example was an absurd decision in the Khabarovsk Kray (later repealed) to ban YouTube and several other world-wide services because of certain materials posted there. Another absurd decision, which was not canceled and entered into force, was made by one of the courts in the city of Ulyanovsk regarding the prohibition of the popular service liveinternet.ru and the popular Tatar portal tatarlar.ru because of several nationalist materials.
A ban on several National Bolshevik web sites in Khabarovsk manifested a clearly oppressive bias, characteristic for the Internet anti-extremist security measures. Even more importantly, this case has set an important precedent.
In the case of blocking access to the NBP sites, initiated at the request of Khabarovsk prosecutors back in 2009, the Central District Court of Khabarovsk on February 2, 2010 (followed by the regional court on April 28, 2010) took the side of the provider, since the prosecution did not have explicit legal ground. Indeed, the National Bolshevik Party was banned, but not its sites, and no law suggested that one implies the other (even in legal practice, materials of a proscribed organization are banned in a separate judgment). In addition, the Khabarovsk courts decided that the access provider was not engaged in distribution of materials.
However, the Prosecutor General's Office appealed this decision to the Supreme Court; the Judicial Panel of the Supreme Court for Civil Affairs returned the case for retrial, and, incidentally, on May 10, 2011, adopted a Decision # 58 Vpr11-2,[14] which also has wider implications.
In this Decision the Supreme Court states that, when providing access to forbidden information, the provider becomes complicit in its distribution, since the provider has technical ability to block it. Moreover, the Supreme Court decided that blocking access should be carried out without a court order, purely on the basis of a motivated request from law enforcement agencies, providing no clarification on determining sufficiency of a motivation (precisely the problematic issue.)
Unfortunately, such is the current outcome of the blocking dispute. Apparently, it will remain in effect until the matter is resolved otherwise at the legislative level. In the wake of the Supreme Court decision blocking access to sites in Khabarovsk Kray have met almost no further resistance.
The theme of blocking access as a way to enforce the ban on materials is related to the theme of blocking websites as an independent measure.
In some cases, the court approved requests to block access to the site on the grounds of the site ownership by a banned organization. In June, the Sovetsky District Court of Rostov-on-Don ordered a number of local Internet providers to block access to sites, "used by the leader of the banned Army of People’s Will inter-regional public movement," and courts in Kirov and Astrakhan made similar requests regarding the NBP sites. In November and December there were several notifications about blocking access to Jehovah's Witnesses web sites in different cities; it was not always clear whether the court judgment existed in each case, or whether the service providers simply complied with requests from law enforcement agencies (as well as what particular law enforcement agencies were involved). On May 18 the Krasnoflotsky District Court in Khabarovsk approved the request to block access to the web sites of NBP, Jehovah's Witnesses, and the Slavic Union (Slavyansky soiuz, SS), evidently, because they were associated with the organizations banned as extremist. The degree of legal justification for prohibiting these organizations, varies greatly, from an obviously inappropriate ban on two regional Jehovah's Witnesses organizations to a legitimate and quite appropriate ban on the neo-Nazi SS. In any case, blocking entire sites without any court rulings about their ban cannot be considered legitimate. Notably, the site nbp-info.ru was banned as extremist in Kirov, but it happened a month after the court decision to block access, not prior to it. The other sites on the list have not been officially banned at this time.
In some cases, prosecutors have successfully sought to block sites not for hosting any prohibited materials, but because of allegedly extremist content found on these sites by the prosecutor’s office. In 2011 the courts in Togliatti and Khabarovsk made judicial decisions about blocking access to dozens of sites at once. It does not seem realistic that the court gave serious consideration to the content of all these sites at once. In fact, in such cases, a court decision to block access serves as a substitute for actually banning the materials, at least on the local level. In any case, regardless of public safety and other justifications for such measures, it should be recognized that the law "On Countering Extremist Activity" does not authorize site blocking without the court ban. However, this new restraining mechanism has emerged de facto and is increasingly utilized. The situation is not yet close to anything like the "Great Chinese Firewall," but law enforcement agencies naturally drift in this direction.
Certain organizations that simply have nothing to do with "extremist materials" on the Internet and are not in position to reduce the real risks associated with these materials, also become subjects of persecution. We are talking about organizations that provide citizens with access to the Internet, such as thousands of schools, libraries, and other similar places. According to the law enforcement, these institutions, just like Internet access providers, are required to block "extremist content." Meanwhile, no legislation stipulates specific steps they should follow.
This obligation practically means that schools and libraries are required to install filtering software that prevents the user from accessing the "extremist materials" (and other problematic content, such as pornography). If such user protection fails to function properly, prosecutors issue a warning to directors and insist on disciplinary measures against responsible parties. The schools received a standard Internet filtering software package, but were left responsible for periodic updates to filtering databases, and often have neither money nor personnel to deal with this task. Libraries never received any filters at all, and, obviously, have no budget for installing them locally.
Furthermore, the presence of filters does not prevent institutions, such as schools, from running into problems with the prosecutor’s office. After all, no filter can guarantee that the user will be unable to access the site containing prohibited materials. The usual way of "filtering the internet for extremism," that is, blocking access to sites, directly specified in the Federal List of Extremist Materials, is clearly insufficient. The filter is usually tested by searching for certain keywords, and the prosecutor's office staff immediately gains access to numerous pages either very similar to the banned ones, or simply containing clearly inflammatory content, promptly classified as "extremist." The question of whether filters work at all in terms of shielding children from undesirable materials is still unresolved (even more so for adults), but their existence turns institutions, such as schools and libraries, into convenient targets for "beefing up the numbers" for anti-extremist activity.
The number of inspections and various acts of prosecutorial response grew accordingly, often with disciplinary consequences for employees. According to our most conservative estimates, [15] the total of 171 sanctions had been issued prior to 2011, while in 2011 their number reached 192.
Incidental Victims of Inappropriate Anti-Extremism
As we mentioned earlier, people and organizations that are clearly not related to "suspected extremists," but simply happened to attract attention of law enforcement agencies and presented an easy target, increasingly become the victims of inappropriate or simply irrational enforcement of anti-extremist legislation. [16]
We have written more than once about the plight of libraries, caught between the law "On Librarianship," requiring them to provide unfettered reader access to collections, and anti-extremist legislation forbidding mass distribution of prohibited materials.[17]
Below is our summary of this anti-library campaign. The prosecutor’s offices in various jurisdictions charged libraries with a variety of offences, starting with presence of banned materials (usually books) in their collections – despite the fact that libraries have no legal ground for de-accessioning these materials. The following charges were used as the ground for sanctions:
- Absence of printed Federal List of Extremist Materials or its updated version (this charge is absurd even on a technical level, given the List’s size);
- absence of regular shelf reading to indentify materials from the Federal List, or even absence of plan for such a shelf reading;
- absence of the standard clause regarding "the prohibition of extremist literature distribution" in the library by-laws;
- absence of subscription to the Rossiyskaya Gazeta newspaper, which publishes the list (despite the fact that the list also appears on the Ministry of Justice web site far in advance of Rossiyskaya Gazeta);
- absence of access restrictions in relation to the books, featured on the List (although no regulation exists to provide a procedure for such restrictions);
- absence of effective (or any other kind of) Internet filtering of "extremist content" (see above for more information).
In 2011 the campaign continued on a larger scale. According to our definitely incomplete data, in the period from mid-2008 through the end of 2010 at least 170 cases of inappropriate sanctions against the libraries’ leadership took place (including school libraries); in 2011 we recorded at least 138 such cases in a single year. [18]
Sanctions became tougher. Whereas previously they were limited to warnings and disciplinary measures, in 2011 the courts began to impose sentences under the Administrative Code Article 20.29 for storage of extremist materials with intent to distribute. Several library directors were, essentially, fined for carrying out their duties.
For example, on July 4, 2011 the magistrate’s court in Yekaterinburg handed down a guilty verdict to Galina Kudryashova, the director of the Ural Federal University Zonal Research Library. She was sentenced to a fine for the following items found in her collection: Fascism and the Russian emigration, by A. Okorokov, and the "Chechen Republic" article from the Terra Publishers’ Great Encyclopedia (inside the entire encyclopedia volume). Okorokov’s book is a scientific publication that (whether good or bad) cannot be removed from a university research library. The same argument is even more relevant in case of an entire encyclopedia volume, regardless of whether banning the "Chechen Republic" article was reasonable.
In January, the Moscow Library of Ukrainian Literature faced criminal charges under Article 282 for storing Ukrainian Nationalist books and pamphlets, which, of course, contained anti-Russian statements. Fortunately, the case was closed in summer due to lack of corpus delicti.
It remains to be added that the prosecutor's office, while finding fault with libraries, is not generally inclined to wage a "war to the bitter end." Back in 2009 the Ministry of Culture and the General Prosecutor's Office developed quite practical and non-burdensome procedures for accessing extremist material, based on the set of instructions previously introduced in major metropolitan libraries. Although the relevant normative act has never been adopted (through the fault of the Ministry of Justice), the existence of established procedures could well protect the library. [19]
For example, on June 2, 2011 the Omsk Regional Prosecutor's Office filed a lawsuit against the Pushkin library of Omsk for its refusal to withdraw six books, recognized as extremist, from the library collection and destroy them. In July the case was dropped, due to the development of special regulatory documents for libraries by the Regional Ministry of Culture.
Of course, the "innocent bystanders" suffer from the anti-extremist activity primarily because many law enforcement officers tend to imitate such activity.
A striking 2011 example of such imitation was a case of closing the site of writer Leonid Kaganov. Kaganov, outraged by the very fact of injunction against the texts, cited one poem, already prohibited as anti-Semitic, as an example. More than a year later the FSB notified a hosting provider, who, in turn, notified Kaganov, who replaced the poem with an acrostic parody of his own writing, where the first letters spelled "What is the problem, not the same verse" (V chem problema, stikh ne tot). For some reason, this did not satisfy the authorities, and, upon the FSB’s request, Zenon Hosting Company shut down Kaganov’s site (the site, of course, simply moved to another domain).
Numerous cases of penalties for display of Nazi symbols (outside the context of a neo-Nazi or nationalistic propaganda) [20] constitute another common method of imitation fight against extremism. For example, a student in Omsk was fined for drawing swastikas on the American flag and pictures of George W. Bush as a sign of protest.
The very possibility of punishment for displaying swastikas and similar items outside of the specific propaganda context constitutes an obvious defect in the law, and the ensuing rules simply cannot be applied consistently (just think of the Great Patriotic War movies). In practice, however, the courts sometimes resolve the dispute in favor of the defendant, as in the case of Lipetsk antiquarian Konstantin Kuzmin, who managed to prove that he traded Nazi German medals, without publicly exhibiting them.
Finally, we would like to mention two criminal cases involving violence that, nevertheless, deserve to be mentioned in this section. In both cases an "extremist motive" was attributed to the defendants, clearly without sufficient reason. It is even difficult to construct a reasonable explanation of such an ascription.
Both cases were fairly well-publicized. The first one was the fistfight between two big businessmen, Alexander Lebedev and Sergei Polonsky, that took place live during the NTV show on September 16. The Investigative Committee filed charges under Part 1 paragraph "b" of the Criminal Code Article 213, that is, for disorderly conduct motivated by hatred. It is impossible to guess what kind of hatred, penalized in the Criminal Code – political, ideological, racial, national, or social – was implied in this charge. Despite such outlandish qualifications, in December the court rejected the cassational appeal against this judgement.
The investigation also found signs of extremism in the famous bandit attack on a Miass rock festival in 2010. The attackers severely beat and injured dozens of people. The subsequent investigation for 13 of them was completed in the summer of 2011 (the fate of the remaining perpetrators is unknown), and they were charged with parts 1 and 2 of the Criminal Code Article 212 ("organization and participation in mass disorders"); three of them were also charged with Part 2 paragraphs "a" and "c" of Article 282 ("inciting hatred of a social group, committed with use of violence, by an organized group"). In this case, the whole issue turns around the peculiar interpretation of the term "social group. The prosecution believes that the crime was directed against the "informal social group having such common values and interests as a passion for rock music." We do not see a reason for the prosecutor’s decision to additionally qualify this assault under Article 282.
Creation of so-called "E"-Centers, the specialized Interior Ministry units to combat extremism, has brought many benefits, but also gave rise to some very legitimate criticism, which has only intensified over time. Improved quality of police work relating to hate-motivated violent crimes and overall investigations of truly dangerous groups became their main positive outcome. [21]
The negative consequences, in our opinion, include the following: first, the staff of the "E"-Centers, transferred from the Department for Combating Organized Crime, brought with them their brutal methods of operative work, and, second, the very existence of a separate structure with its own line of accountability contributed to the phenomenon of inflating the activity reports with minor or even imaginary crimes and offenses.
"E"-Centers face three additional major criticisms: a large number of various procedural irregularities, "pro-fascist" sympathies of some staff members, and conducting purely "political surveillance" that is, surveillance of political, civil and religious activists for reasons, unrelated to the ordinary criminal law. These claims are also quite justified, but they are not specific to this particular structure.
Unfortunately, our law enforcement in general is prone to frequent procedural violations, and "E"-Centers are not exceptional in this regard. As for the employees’ political and ideological preferences, xenophobic prejudices are common among the police to the same degree as among the society in general. In addition, constant work with political radicals is bound to have a radicalizing impact on at least some employees (such psychological shifts are well known in other instances).
The reasons to discuss "political surveillance" inevitably arise, when an agency conducts operational work associated with ideologically motivated crimes. The scope of operational work inevitably includes keeping track of the suspect’s environment, which features a lot of activists of all kinds, not harboring any criminal designs. This is true for every country. In modern Russia, this problem is exacerbated by the excessively broad definition of "extremism." This problem, however, is not caused by the existence of "E"-Centers. Prior to their emergence, other police units had performed the same functions. Expanding the scope of anti-extremist prosecution led to more extensive operational activities, so these deficiencies in police work have simply become more visible.
At the same time, the above problems can become more pronounced within a large specialized structure due to inevitable "inflated reporting" and mutual influence of employees, so the Chief Directorate for Countering Extremism and its regional centers require a greater degree of social monitoring.
We need to specifically address "E"-Centers in this report, since the accounts of their misconduct became noticeably more frequent in 2011. Likely, this change is related to a greater overall level of political activity during the election year, and many of the episodes are directly related to the election.
Entire print runs of newspapers (e.g., Izvestia Kaliningrada, or the KPRF Pora newspaper in Irkutsk) were arrested upon the orders from "E"-Centers or with their direct involvement, ostensibly for expert examinations, despite obvious inappropriateness of this practice. The seizure of PARNAS party election leaflets in Ulyanovsk was allegedly motivated by campaign finance violations, so the reason for the "E"-Center’s involvement is not clear to begin with.
It has to be noted that "E"-Centers frequently perform actions outside of their mandate. For example, they take part in raids on immigration regime violators. One could assume that they are searching among the "illegals" for someone involved in extremist crimes, but since we have no data on any such cases, we believe that in these cases the "E"-Center employees are simply "lending a hand."
However, actions outside of their mandate are often only a cover-up for increasing pressure on activists, who angered in some way either someone in authority or an individual head of the anti-extremist unit. The prosecution of Philip Kostenko, a staff member of the St. Petersburg Memorial Anti-Discrimination Center, provides a striking example. He repeatedly complained about receiving threats from the "E"-Center employees. In December 2011 Kostenko was twice sentenced under administrative charges to 15 days in custody, which in itself was typical for the December events; however, it is noteworthy that "E"-Center employees were present on both trials initiated for offences outside the purview of their department. In the first trial they even played an active role, when the court admitted their "note" on Kostenko as evidence (this fact was later successfully appealed). Literally on the day of Kostenko’s release from a month-long custody another trial took place; he was charged with vandalism, and the prosecution requested that he remained in custody. The court refused, but the attempt to keep an activist behind bars was obvious. (Since then, in early 2012, Kostenko was severely beaten by unknown assailants, but at the time of writing no criminal case has been filed).
All divisions of the Russian police use clearly illegal pressure methods, and this subject is outside the scope of our work. However, methods of moral pressure practiced during the "E"-Center interrogations – not necessarily of suspects, often simply individuals called in for a conversations – even when not explicitly illegal, have often been highly questionable. For example, in Saratov the "E"-Center employees tried to force an anti-fascist activist, arrested when distributing anti-Nazi leaflets during the "Russian march," to testify against other left-wing activists by threatening him with punishment for distribution of "Nazi symbols" – meaning the crossed-out swastikas on his anti-Nazi leaflets.
PRINCIPAL TARGETS OF PERSECUTION
Freedom of conscience suffers from inappropriate enforcement of anti-extremist legislation at least as much as the other civil liberties. Inappropriate (or at least clearly excessive) prosecution of various religious groups quantitatively exceeds wrongful prosecution of political and civic activists, although the latter is more noticeable to the public.
Here we have to start from various Muslim groups and movements, including purely religious ones (such as followers of Said Nursi), the ones combining religion and politics (such as a non-violent Hizb ut-Tahrir party, and militarized factions in the North Caucasus). Traditionally, the most dangerous groups and the movements actually associated with violence (either practicing it or calling for it), are prosecuted under anti-terrorism legislation, without involving anti-extremist Criminal Code articles;[22] however, occasionally, these articles were used as well.[23]
The anti-extremist legislation was applied, first and foremost, to the Hizb ut-Tahrir party, which had been banned as terrorist. We believe this solution to be inappropriate, since Hizb ut-Tahrir does not practice violence and does not call for it (with several minor exceptions). The extent of public danger, presented by Hizb ut-Tahrir propaganda is worth studying,[24] and it is possible that certain measures against the organization are, indeed, justified. However, at this time people, accused of participating in Hizb ut-Tahrir, are most often charged only under the Criminal Code Article 2822 for membership in a banned organization; we consider them wrongly convicted, since the ban on the organization was inappropriate. According to Elena Ryabinina of the Human Rights Institute, about two-thirds of 35 jailed Muslim activists, whom she knows to be improperly or excessively harshly convicted, were convicted on the Hizb ut-Tahrir membership charges.
The prohibition of various Hizb ut-Tahrir materials continues, and it seems that nobody is actually interested in their content, since the texts in question frequently, in and of themselves, contain nothing that fits the definition of extremism. It follows that the materials, in clear departure from the law, have been routinely banned based solely on the fact of their connection to the prohibited party. If the legislators regarded all materials produced by banned organizations as extremist by definition, they would have reflected this understanding in their legal definition.
As was noted before, the peak of the campaign against Hizb ut-Tahrir is clearly over. It should be noted that its prosecution have been very geographically uneven. The Volga region, primarily Tatarstan and Bashkortostan, account for most of these verdicts. In 2011 we only know about convictions in these two republics and in Moscow for a total of 19 offenders (four of them received suspended sentences and the rest got prison sentences for periods ranging from 6 months to 2.5 years), all of them just for being members of the organization (the Criminal Code Article 2822), not for the content of their propaganda. Nevertheless, Hizb ut-Tahrir is spread much wider geographically, and, according to some reports, is even starting to emerge from hiding. This indicates that some central and regional authorities, without formally denouncing the ban, try to pursue a more flexible policy in this case. Obviously, such informal "indulgences" are not the best way to resolve the problem.
Other religious and political Muslim organizations are prosecuted much less frequently in the context of the anti-extremist campaign; some of them, as mentioned above, are usually considered under anti-terrorism legislation, while others are simply far less common. To be precise, we have no prosecution-related information regarding the majority of the banned Islamic organizations (possibly these organizations undertake no activities in Russia). We know of persecution against Tablighi Jamaat, which had also been banned without proper justification. In 2011 two people in Ulan-Ude were given suspended sentences of 10 and 12 months for participating in this movement; some cases of administrative pressure against Muslim groups in possession of the texts associated with Tablighi Jamaat, are also known.
In 2011 repressions against the followers of Said Nursi stepped up sharply, despite the fact that it is hard to find a reasonable justification for prosecution of this movement. Nine people, including a group of six in Nizhny Novgorod, were convicted of membership in a non-existent, but, nevertheless, banned Nurcular[25] organization – de facto, for spreading the Nursi teachings. Moreover, four out of nine defendants received actual prison terms from 8 months to 1.5 years.[26] New criminal cases were opened as well. In particular, the charge under the Criminal Code Article 2822, against two imams, Ilkhom Merazhov and Camil Odilov,[27] received a great deal of attention. At this point, we can say that the followers of Nursi are persecuted more often than people of other faiths.
For this reason the total number of wrongfully convicted Muslim activists in 2011 reached 30 people, compared to 14 people for the two preceding years.
The case of Aydar Khabibullin, director of the Garden (Sad) publishing group and Edward Gabdrakhmanov, who had previously served a term under Article 282[28] caused even greater resonance. Both were arrested in October 2010 and accused of possession of ammunition and distribution of leaflets inciting to hatred, It is difficult to evaluate the charge on the merits, because we know neither the contents of the leaflets, nor whether one or both defendants were involved in distribution. We also cannot assess the credibility of the allegations by the defense that the ammunition had been planted. We can only say that a well-known publishing activity of A. Khabibullin does not seem very compatible with storing grenades in his house. The charges against the Garden publishing group are based on the findings of experts, who discerned the signs of extremism in calls to live according to Sharia, contained within the medieval treatise, and in abundance of violence in the military history book. Alexander Torshin, the first vice-speaker of the Federation Council, stated immediately after the arrest that Khabibullin is a "leader" of Nurcular organization, who had been engaged in training suicide bombers via hypnosis.[29] It is hard to shake the feeling that essential parts of case, which entered the court in September 2011, have been fabricated.[30]
However, even very serious charges are sometimes impossible to prove in court. For example, on May 31 the court in New Urengoy refused to ban the Muslim community Nur Islam on the basis of unconvincing evidence of spreading illicit texts and undocumented operational information on the community’s ties to terrorism (the Supreme Court of the Russian Federation later upheld this decision).
In 2011 the European Court of Human Rights communicated two complaints of different Muslim groups in connection with the 2007 ban of 17 primarily Salafi books in Buguruslan and 14 books of Said Nursi in Moscow. In both cases the ECHR submitted questions to the Russian authorities in accordance with the established procedure. In particular, the ECHR needed to clarify as to whether these restrictions were "necessary in a democratic society," as required by Articles 9 and 10 of the European Convention on Human Rights. In the Buguruslan case it was also important to clarify whether the complainers’ rights had been violated by the fact that the Muslim community had not been invited to the hearing.
The ECHR resolution of the first issue could finally affect the practice of arbitrary restrictions on religious (and possibly other) public statements. The second question is essentially procedural, but also very important; when a text, and not a person becomes a "defender" in court, it is necessary to develop reasonable criteria to identify people and organizations, which can be considered stakeholders in this process.
Besides Hizb ut-Tahrir and followers of Nursi, Jehovah's Witnesses remain the primary target of the "anti-extremism" measures. The scale of persecution of this movement on various levels has been growing every year,[31] and accusations of extremism still continue, based solely on the fact that Jehovah's Witnesses proclaim the superiority of their faith.
The investigation of about a dozen Jehovah's Witnesses cases under the Criminal Code Articles 282 and 2822 continued throughout the year. The case under Article 282 against Alexander Kalistratov, head of the Gorno-Altaysk Jehovah's Witnesses organization, which had come before the court a year earlier, was met with mass resistance of human rights activists, including formal intervention by the Federal Commissioner for Human Rights. On April 14, 2011 the court acquitted Kalistratov. The prosecutor's office appealed the verdict; the case was returned for a new trial, and on November 3, the same court found Kalistratov guilty. Nevertheless, the sentence of 100 hours of compulsory work was rather lenient. On December 22 this conviction was overturned by the Supreme Court of the Altai Republic due to lack of corpus delicti.
Throughout the year, the courts prohibited new missionary materials by Jehovah's Witnesses. Decisions about blocking access to Jehovah’s Witnesses web sites appeared as well. There were attempts, with varying degrees of success, to bring administrative charges against believers for distributing these materials. We can ascertain that Jehovah's Witnesses remain under a constant "anti-extremist" pressure.
The fight against "religious extremism" in modern Russia is closely tied to the concept of a "nontraditional" nature of certain religions or certain movements within the major religions. Therefore, the new religious movements,[32] which can be classified as "nontraditional" (such as the Hare Krishnas, the Scientologists, or Falun Dafa), remain the main targets of inappropriate anti-extremist measures.
The Church of Scientology was occasionally able to deflect these "anti-extremist attacks." On February 2, 2011 a decision by the court in Surgut, remarkable both in essence and in argumentation, came into force. The court overturned its own ban on 29 texts of the founder of Scientology L. Ron Hubbard, recognizing that such a ban constitutes an assault on freedom of conscience. Scientologists have even managed to get these 29 texts excluded from the Federal List of Extremist Materials. Later, an attempt in Novy Urengoy to ban the Hubbard’s biography was unsuccessful. On the other hand, two new large packages of Scientology materials were declared extremist in Moscow on June 20 and in Naberezhnye Chelny on August 24. The Moscow investigation of the case under Article 282 regarding the distribution of Scientology materials is proceeding slowly (or rather, one case was closed, and then another one was opened).
On October 27, 2011 Pervomaisky district court of Krasnodar, once again after a lengthy litigation,[33] banned four texts distributed by the followers of Falun Dafa religious practice, and the decision went into force on December 26. In this case, in addition to the fundamental religious treatise Zhuan Falun and two quite neutral leaflets, prohibited items also included the report by Canadian human rights activists on organ harvesting from Falun Dafa practitioners in China. Accordingly, in this last case not only preaching the superiority of their faith, but also making statements against the Chinese government constitutes extremism.
The case about banning Bhagavad Gita as It Is, a central treatise for Hare Krishna followers, attracted wide, even international, attention. The experts, invited by the prosecutors, said in court that they found nothing extremist in A. C. Bhaktivedanta Swami Prabhupada's commentaries on the Bhagavad Gita. Finally, on December 28, 2011 Leninsky district court of Tomsk dismissed the lawsuit, but prosecutor's office have since appealed the decision.
An attempt to ban T-shirts carrying the slogan "Orthodoxy or Death!," characteristic of the Orthodox fundamentalists, who also constitute a religious minority of sorts[34] constituted an interesting legal case. The prosecutor's office interpreted the slogan as a call to violence, although, in practice, it has always been used in the context of willingness to be faithful to the Orthodox Church, even if the price turns out to be one's own life. Two prosecutor's offices in Moscow brought charges simultaneously in 2010, resulting in two Moscow courts making opposite decisions regarding the slogan’s extremist nature. Both solutions were then disputed by both sides. The prosecutor's office, which had lost the case, actually gave up in November, and the case was closed. The second case is still ongoing; the prosecutor is suing an owner of a studio that produces T-shirts. The latter managed to extend the period for appeal, but the ban has already come into force, and the slogan has subsequently been included in the Federal List.
The year of 2011 introduced some new plot lines in prosecutions under anti-extremist legislation, such as trials for criticism of religion, or desecration of symbols, according to the prosecutors’ opinion. The most important example of this trend is the case of B. Obraztsov, described above. A bit earlier, on May 20, blogger Dmitry Lebedev was convicted in Gatchina (Leningrad Region) under Part 1 of the Criminal Code Article 282 for the series of statements, offensive to Patriarch Kirill and the clergy of the Russian Orthodox Church made on the VKontakte social network. He received a suspended sentence of one year.[35]
In August, the painting by Alexander Savko, "The Sermon on the Mount" from the series Journey of Mickey Mouse through the History of Art was banned. On a reproduction of an ancient print Savko replaced the figure of Christ with Mickey Mouse. The prosecutor argument, adopted by the court, was based solely on the notion that manipulation of the engraving constitutes an attack on Jesus Christ himself and therefore hurts the feelings of believers. Attempts to somehow combine these arguments with the legal definition of extremist activity looked completely unconvincing.[36]
During an election year it is natural to expect an increase in various inappropriate actions against oppositional political organizations and civil society activists. In most cases such abuse does not involve anti-extremist legislation, so the following should not be regarded as a report on persecution of activists in general. Our task here is more modest – to point out how specific tools, provided by anti-extremist legislation, have been misused for this purpose.
Removal of campaign materials (newspapers, pamphlets, videos) from circulation upon a mere suspicion of extremism remained one of the most popular such tools in the pre-election period. In most cases the suspicion was later deemed unfounded, but only after enough time had passed to render the materials useless. During the 2007 parliamentary campaign this mechanism was used quite widely, [37] while during the 2011 campaign it was much more modest in scope. Still, the entire runs of newspapers and leaflets were seized "for examination" from many different organizations, ranging from the "Nah-nah" movement leaflets and pamphlets by the National Socialist Initiative leader Dmitry Bobrov to the newspapers, produced by the Communist Party and Just Russia party. Such cases have been observed everywhere from Chita to St. Petersburg. We cannot assert that the widespread use of this unacceptable method indicated a centrally planned campaign, but these incidents definitely cannot be views as isolated excesses.
Local election commissions contributed to the situation as well. There are two cases (in Astrakhan and Sverdlovsk regions) of the Just Russia’s commercials being removed from the air for "inciting social discord" toward the authorities, according to the opinion of the election commission (the commission was not issuing orders, but rather "advised" against airing these videos)
During the 2011 a very diverse set of political activists faced prosecution involving inappropriate use of anti-extremist legislation.
We can start with members of the Other Russia party, led by Eduard Limonov (not to be confused with the identically-named movement, to which Limonov’s followers had previously belonged). Sometimes they call themselves National Bolsheviks, and sometimes they don’t; however, the judiciary had no doubt that these people were, indeed, the National Bolsheviks, that is, the continuation of the banned (in our opinion, the ban resulted from a judicial error) National Bolshevik Party, and most political scientists are likely to agree with the judiciary in this respect. The continuation of the NBP activity implies prosecution under the Criminal Code Article 2822, and, thus, the issue gets transferred from the field of political science into the legal realm, where this question is not as simple. It is difficult to identify the boundary between continuation of activities by a banned organization and the activities of its former members, not illegal as such, but, expectedly, similar to the activities of the organization, to which these members had previously belonged. This confusing norm in criminal law, unfortunately, have never been explained, so the courts in specific cases accept or reject evidence that the offending act should be considered under Article 2822 at their own discretion. In particular, it is obvious that the persecution of the Other Russia members under this Criminal Code article is highly selective; the same had been true for the National Bolsheviks back when they were still officially known under this name.
In 2011 not a single National Bolshevik was convicted, but this should not be interpreted as the end of criminal prosecutions. For example, early this year the Other Russia activist Nikolai Avdyushenkov was convicted under the Criminal Code Article 2822, but his verdict was later rescinded due to statute of limitations.
By the end of the year several criminal cases remained in various stages of the investigation. The biggest of them – the case of the St. Petersburg organization led by Andrey Dmitriev – began after the organization’s active participation in the nationalist demonstrations of December 11, 2010. The number of defendants has gradually grown to 13 (they all are on the recognizance not to leave; nevertheless, one of them went abroad). We consider launching an official investigation of the demonstration, as well as of the better-known Moscow events of that day to be completely appropriate. From the very beginning the fact that National Bolsheviks became the principal object of investigation was met with deep suspicion, since they did not play a leading role in the December riots. However, the investigation, which ended in November, bypassed the events of December 11 and focused instead on proving that the defendants had continued their NBP activities, under the Criminal Code Article 2822.
In late November and early December a case under the same article was opened in Moscow. There is no information on possible suspects at the moment.
In 2011 the charges under the Criminal Code Articles 282 and 2822 were filed against Igor Popov and Alexander Kurov in Vladivostok; Kurov was also charged under Article 280. The trial in this case is not yet over. The trial of Inna Marinina under Article 2822 began in Murmansk.
Note that at the same time in Vladivostok the National Bolsheviks were acquitted of charges of using symbols similar to the Nazi ones on their anti-"E"-Center leaflet (which really did feature an image, stylized to look like a Gestapo symbol).
On December 7 in Komsomolsk-on-Amur Anton Lukin, charged under Article 2822, was taken into custody for house arrest violation. [38] However, Lukin got out by the end of January. Subsequently he and Svetlana Kuznetsova faced an entirely different set of charges for distribution of the leaflet Pobeda budet za nami (Victory Will Be Ours!) and the Vysshaya Mera (Capital Punishment) newspaper. These charges were filed under Part 2 paragraph "a" of Article 282 ("activities, aimed at the incitement of national, racial, or religious enmity, committed with the use of violence or with the threat of its use"), Part 1 of Article 280 ("public incitement to extremist activity"), and Part 3 of Article 212 ("calls to mass riots"). The case was brought before the court in February 2012. Unfortunately, we have no information regarding the content of materials, which Lukin and Kuznetsova are accused of distributing, so that we cannot assess the appropriateness of the charges.
The complex relationships within a triangle, "the police – the far right –the far left" remain one of the most important phenomena of today's radical politics. The persecution of the far left and anti-fascist activists by law enforcement agencies specifically for their anti-fascist activities constitutes one of the most controversial aspects of this relationship. There is no doubt that the attacks on the members of the far right by the "militant anti-fascists" actually took place; that is, quite a lot of violent crime takes place in the name of anti-fascist ideas. The subsequent inevitable criminal investigation, often involves abuse of authority, including the prosecution of the innocent and "routine" (especially when dealing with the radical youth) beatings during arrest and interrogation.
In order to legally qualify as crimes of an extremist nature, attacks on the right wing activists must be qualified with an appropriate motive for must. Therein lies the problem. For example, in Nizhny Novgorod five young anti-fascists were charged with a number of violent crimes (the evidence raises some doubts, but that’s a separate issue) and organizing an extremist community for the purpose, described as the motive of "establishing anarchy," as "use of violence motivated by ideological hatred and hostility toward such social groups as "skinheads and football fans," and "wealthy citizens of Russia." Once again, we are faced with a completely arbitrary use of the term "social group." Furthermore, it is unreasonable to accuse a group of people, labeled "Red skinheads" by the prosecution, of hostility toward the "skinheads."
The Nizhny Novgorod case came before the court in only February 2012. However, the similar case of attacks against the right wing activists in St. Petersburg resulted in a suspended sentence to four people under Part 2, paragraph "a" of Article 282 for the "abasement of human dignity by reason of membership in a particular social group, publicly, with the use of violence. The "social group" in question was specified as "the Russian nationalists."
Once again, the issue here is not that attacks on "Russian nationalists" are somehow less criminal than any other ones, but, specifically the ridiculous qualification of this act. Utilizing the Criminal Code term "hate motive" in this manner defies the common sense interpretation of the term "social group" and distorts the very concept of hate crimes (in Russian usage, "crimes with the motive of hatred"), which was designed to provide additional protection to specific vulnerable social groups and strata – not to any conceivable group of people.
In the previous years, indictments and convictions often featured such "social groups" as government officials and law enforcement officials. However, it seems that in 2011 this trend was reversed, and the first indications of this change took place even before the Supreme Court clarification in June regarding criticism of the authorities.
We only know of one judicial decision in 2011 based on protecting the authorities as a "social group." Andrey Kutuzov, a left-wing activist, was convicted under the Criminal Code Article 280 ("public incitement to extremist activity"), and received a two-year suspended sentence for distributing leaflets, which called for violence against the police. Once again, in this case the police was recognized as a protected social group. Moreover, the case was unconvincing altogether; the leaflet in question shows obvious signs of being a fake.
In May a criminal case under Article 282 in the defense of the same "social group" was initiated in Magnitogorsk, based on the online publication of the Fascists in Uniform video. This completely inappropriate case is still under investigation, and is in fact specifically directed against the local union activists Olesya and Andrei Romanovs.
The most famous case of this kind was the case against the members of the radical art collective Voina (War) Oleg Vorotnikov and Leonid Nikolaev for turning over a police car in 2010. The action nicknamed "The Palace Overturn" (Dvortsovyi perevorot) was classified as hooliganism motivated by hatred of the "police" social group. However, in the summer of 2011 the experts, involved in the case, concluded that the police is not a social group, and thus the charge of hooliganism has vanished (because, according to the peculiar disposition of the Criminal Code Article 213, the qualification of hooliganism can be applied only either in case of the use of weapons, or motivated by hatred, and weapons had clearly not been used). As a result, on December 1 the case under Article 213 was closed (on the second attempt). [39] The investigation also rejected the prosecution of defendants under Part 1 of the Criminal Code Article 167 ("deliberate destruction or damage of property"), since the property damage caused by the actions is not significant for the St. Petersburg Police Department or for Leningrad Region as a legal entity."
However, Vorotnikov is also a defendant in another case, the attack on the police during the rally on March 31. The charge in this case looks strange as well. Application of Article 319 ("public insult of a representative of the authority during the discharge by him of his official duties, or in connection with their discharge ") and Part 1 of Article 318 ("use of violence that does not endanger human life or health, or threats to use violence against a representative of the authority, or his relatives, in connection with the discharge of his official duties") looks convincing enough, but for some reason it was aggregated with the same old hooliganism motivated by hatred.
Another example of this changing trend is the case of the Left Front activist Anatoly Yurkovets, who was convicted in Omsk for a fistfight with political opponents on February 3, but acquitted from charges under Article 282, precisely because the court refused to recognize the protected group status of "the authorities"[40] .
Meanwhile, the criminal charge of "actions motivated by political or ideological hatred" has gradually become more common in prosecutorial practice. In fact, Yurkovets was convicted under part 1 item "b" of Article 213 ("Hooliganism motivated by political or ideological hatred or enmity") and Article 329 ("outrages upon the National Emblem of the Russian Federation or State Flag of the Russian Federation"). The fistfight, as such was, of course, motivated by political strife, but qualifying it under Article 213 is still unjustified; it is difficult to imagine a combination of hooliganism motives and political hatred motives in the same act. Obviously, the content of Article 213 needs to be amended in order to avoid further such conflicts, so that the actions of a man, convicted for assault motivated by political discord, could be qualified under the Criminal Code article corresponding to the relevant extent of damage (from beating to murder).
Even more remarkable political enmity-related case began in February. Three anarchists in Barnaul were charged with defacing a public service announcement poster, depicting various venereal disease microbes and the slogan, "Do you need these companions?" The anarchists glued the faces of known politicians, starting with Putin and Medvedev, onto the microbes’ heads. These actions were qualified as Part 2 of Article 213 ("hooliganism motivated by political hatred committed by a group of persons in a preliminary conspiracy.") The investigation is ongoing.
We have repeatedly recorded the cases of inappropriate prosecution against nationalists (Russian ethno-nationalists as well as the other groups). In 2011, besides the above-mentioned case of K. Krylov, we were unable to identify additional clearly inappropriate criminal cases (although, some questionable cases do exist). Instead, there were other, less significant, incidents, such as removing an entire print run of brochures for inspection.
One interesting example was the prosecutor’s order to two Cossack organizations in Kaluga and Stavropol regions to repeal the provision in their charter stating that members of the organization must belong to the Orthodox Church (the provision was perceived by the Prosecutor’s Office as discriminatory). Discrimination is defined in Russian legislation as a violation of rights, based on a discriminatory attribute. However, a citizen of Russia has no right to belong to a social organization of their choice; it cannot be considered a legitimate interest, and the legislature never put any limits on membership criteria, utilized by organizations.
The pressure has been gradually building up against the Volya party led by Svetlana Peunova. The doctrine of this organization combines elements of ethno-nationalism, Stalinism and the mystical beliefs of their leader. The party is actively involved in political life (Peunova even attempted a presidential run in 2012, but failed to collect the required number of signatures), distributes books by Peunova, newspapers and leaflets. All texts combine emotional criticism of the current political regime and modern bureaucracy with general discussion and with literary works, which sometimes raise doubts about intellectual adequacy of their authors.
In 2011 the clearly inappropriate criminal case against the Khabarovsk Volya activist Natalia Ignatyeva for her satirical poem was closed. However, two new ones were opened, in Vologda and Kirov, for distribution of leaflets, Hotiat li russkie voiny (Say, do the Russians Want a War?). The leaflets contained no illegal incitement; the most radical point was a call for a boycott of the "corrupt national clans." The prosecutor’s office in Vladimir is seeking to ban one of Peunova’s books, apparently, for inciting hostility to the officials.
The law enforcement campaign against publications and organizations associated with journalist Yuri Mukhin continues. Mukhin and his associates combine Stalinism and xenophobia in such proportions that they frequently became the targets of legitimate law enforcement measures. However, the most repressive judgments against them were based on the inappropriate ban on a Ty izbral – tebe sudit’ (You Have Chosen – You Will Judge) leaflet, which called for changing the Constitution in such a way that unpopular officials could be punished by outlawing. On February 22, 2011 the Judicial Chamber of the Supreme Court upheld the Moscow City Court decision of October 19, 2010 to ban Mukhin’s Army of People’s Will (AVN). Mukhin himself, as we mentioned before, is being wrongly prosecuted under Article 282 on the charge of anti-Semitic propaganda.
The case against the Chelyabinsk AVN activist Andrei Yermolenko was opened on January 21 and closed on December 28. He was charged with publication of two articles inciting hatred against officials and the police. In the end, the investigator ruled the case closed, citing the June Plenary Resolution of the Supreme Court, which specifically emphasized that the criticism of the authorities was not a crime. The fact that the Resolution is already being applied inspires some optimism.
Pressure on the media, related to inappropriate interpretation of anti-extremist legislation, most frequently took the form of warnings to media outlets, issued by Roskomnadzor (Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications) and the prosecutors. The Prosecutor's Office does not publish its statistics, but Roskomnadzor does, and during 2011 the agency issued 25 warnings to media editorial boards regarding extremist activities; at least ten of them lacked proper justification.
The under-defined status of a warning plays an important role in the debate on its level of appropriateness. Is a warning simply a preventative measure, a method to keep the editors from crossing the line? Alternatively, should the warning be interpreted as the first step toward closing the publication? In fact, both of the above are true. Of course, the warning is preventive and we assume that major media outlets are not in danger of being shut down on these grounds. On the other hand, a warning, as opposed to a cautionary note sent to the main editor, is written into the law as a prerequisite to closing a publication. In practice, two warnings received in the course of one year (or slightly longer) often constitute the basis for filing a lawsuit to close the newspaper. [41] Therefore, we believe that the supervising agency, when issuing a warning, should not simply cite something "potentially extremist," but indicate a real, even if minor, violation of the law.
Alas, this is not always the case. Here are just some examples. The Shatura (Moscow Region)-based Liubimyi Gorod (Beloved City) and the Vecherniaya Tyumen (Evening Tyumen) newspapers received warnings for quoting Hitler in the context that had nothing to do whatsoever with any apology of Hitler. The offense seems very strange, since the existing legal prohibition on the dissemination of works by the NSDAP leaders never implied a ban on citation. Several Cossack nationalist newspapers received an entire series of warnings. Some of the warnings were issued for the article, whose only claim to "extremism" was in its calls for a future "Cossack republic."
The only newspaper closed in 2011 for extremism was K bar’eru (To the Stand), published by aforesaid Yuri Mukhin. In this case, the decision of the Moscow City Court April 13, 2011 to close the newspaper[42] appears to be inappropriate. It was based on the fact that Mukhin had lost his court appeal against two preceding warnings, issued to his newspaper. Both warnings, however, were inappropriate. The first one was related to the leaflet You Have Chosen – You Will Judge; we have written regarding the inappropriateness of this particular ban on numerous occasions. The second one had to do with an article by Mukhin that was deemed anti-Semitic. Anti-Semitism was certainly present in it, but not in inflammatory form at all (for information on the related criminal case see above).
Meanwhile, Mukhin’s newspapers could have faced some real, much more substantial, charges. The Svoimi imenami (True Names) newspaper, founded by Mukhin to replace K Barieru, have already received two warnings for unambiguous incitement to armed uprising, and Roskomnadzor is already asking the court to close it down.
Journalists and editors occasionally face criminal liability, most frequently under the Criminal Code Article 282. However, this pressure mechanism does not automatically achieve the desired effect. The most significant and well-known example is the fact that on July 5, 2011 the Supreme Court of Dagestan confirmed the acquittal of the journalists from the Chernovik (Draft) newspaper. No less important was the dismissed case of journalists from the Evening Tyumen newspaper.[43]
We cannot name any cases of journalists wrongfully convicted under Article 282, besides the above-described case of Boris Obraztsov, but a number of cases are still in progress. The trial against the management of the Vecherniaya Ryazan (Evening Ryazan) newspaper; in this case the charges include incitement of hatred not only toward the police, but also toward the Jews. The outlook of this trial is still unclear.
Anti-extremist legislation is applied in recent years on quite a large scale. In 2010 297 people were convicted for violent hate-motivated crimes, 78 for very real hate propaganda, and 21 for ideologically-motivated vandalism. In 2011 the figures were slightly lower, that is, 189, 75 and 12, respectively. The number of verdicts we consider inappropriate is rather small in comparison, so we usually make no attempt to present statistics. However, at this time we would like to attempt a quantitative analysis of the data, presented in the report above.
3 or 4 people were inappropriately convicted under Article 282: B. Obraztsov and I. Dedyukhova (the latter was fined for crudely anti-Semitic texts that contained no specific incitement), as well as a follower of Said Nursi (in conjunction with Art. 2822 Criminal Code). The conviction of Dmitry Lebedev, mentioned above, was, most likely, inappropriate as well.
3 people were wrongfully convicted under Article 280: A. Kutuzov and two young men in Kemerovo (for anti-police leaflets; their content is unknown; nevertheless protecting the police as a "social group" is not acceptable).
Traditionally, a large number of verdicts we regard as inappropriate are made under Article 2822. In 2011 not a single National Bolshevik was convicted under it (or other "extremist" articles). At the same time, this Criminal Code article accounts for many sentences for "alleged" membership in the banned Muslim organizations; such sentences were handed down to 9 followers of Said Nursi, two members of the "Tablighi Jamaat" and 19 members of "Hizb ut-Tahrir."
Finally, we believe the sentence to four St. Petersburg anti-fascists for their attack on neo-Nazis to be partially inappropriate, since the object of attack was described as a "social group."
Despite the general tendency to give non-custodial sentences for non-violent "extremist" crimes (most often suspended sentences or fines), there are exceptions. [44] Two activists from Kemerovo were sentenced to 8 months of imprisonment; three out of six Nursi followers in Nizhny Novgorod, and another one in Orenburg received non-trivial prison terms (the latter was released in January 2012, as his sentence was commuted to a fine). For the Hizb ut-Tahrir membership all 10 defendants in Tatarstan, two in Moscow and three out of seven in Bashkortostan went to prison.
While our data on enforcement of criminal legislation is, likely, complete or close to complete, the utilization of "anti-extremist" articles of the Administrative Code is much less known. Here is the data we do have (excluding the decisions reversed by a higher court in 2012).
Nine people, including five librarians, were inappropriately fined for mass distribution of extremist materials or for storage with intent to distribute, i.e. under the Administrative Code Article 20.29. A fine was also levied onto at least one legal entity – the colony, where the Jehovah's Witnesses book was found in a library. In most cases, no mass distribution ever took place, and extremist materials, properly speaking, often never existed as well. On several occasions, the Court even sided with defense on these issues. For example, two courts in Perm confirmed that a quote from Hitler, in and of itself, does not constitute extremist material.
Six people, including four antiques dealers were inappropriately fined for public demonstration of Nazi or similar symbols, i.e., under the Administrative Code Article 20.3.
In 2011 the Federal List of Extremist Materials increased by 318 points. Evaluating the appropriateness level of a ban is sometimes problematic, since we are frequently not familiar with materials in question. In some cases the material was clearly banned simply due to its association with a banned organization, for example with Hizb ut-Tahrir, but the court was unlikely to have seriously analyzed the actual texts that were being banned.
We know that over the past year the new inappropriate additions included 16 items by Jehovah's Witnesses, 4 articles condemning Russia for its oppression of small northern peoples, taken from a single (no longer functioning) web site, a book by Said Nursi, 2 T-shirts with slogans "Russia for the Russians" and "Orthodoxy or Death!," 2 large Internet portals (www.liveinternet.ru and www.tatarlar.ru) and 2 web sites – www.limonka.nbp-info.ru and www.nbp-info.ru. The total comes to 27 points.
It is more difficult to make an unambiguous assessment regarding a number of religious, especially Islamic, publications, which clearly and fairly aggressively incite the reader against the infidels, but whose texts contain no direct incitement to illegal acts. In principle, one can consider such texts as an incitement to hatred against the Gentiles, so they are not mentioned in the preceding paragraphs.
Overall, we consider bans of 56 Muslim materials, including the Hizb ut-Tahrir materials, to be questionable. Some of these items are known to contain nothing of social danger (such as two old issues of the Caliphate magazine, banned in Moscow); however, some others are likely to be of inflammatory nature.
Some other prohibitions, such as the ban on The Last Will of a Russian Fascist by Konstantin Rodzaevsky, which by now has a purely historical value, are also dubious. Once again, many other cases, where the content of materials is unknown, may prove to be questionable as well.
The report was made possible by support from the Open Society Institute Assistance Foundation and National Endowment for Democracy.
[1]See for example: Lev Levinson, S ekstremizmom budut borotsya po-stalinski [Fight Against Extremism Will Use Stalin’s Methods] // Rossiiskii byulleten’ po pravam cheloveka, 2002, no. 16; A. Verkhovsky, Gosudarstvo protiv radikal’nogo natsionalizma. Chto delat’ i chego ne delat’? [The State Against Ultra-Nationalism. What’s to Be Done and What’s Not to Be Done?]. Moskva: Panorama, 2002, pp. 105-118; and Anti-Extremist Legislation, Its Use and Misuse // SOVA Center. 2008. 5 July (http://www.sova-center.ru/en/xenophobia/reports-analyses/2008/07/d13739/).
[2]Our interpretation of this concept is examined in detail in the Preface to: A. Verkhovsky, Inappropriate enforcement of the anti-extremist legislation in Russia in 2009 // SOVA Center 2010. 13 April (http://www.sova-center.ru/en/misuse/reports-analyses/2010/04/d18482/).
[3]SOVA Center played an active role in developing this project, handed to the President during his July 5 meeting with councilmember Valentin Gefter. President Medvedev even agreed that the legislation is a subject for concern. In September, however, Gefter received an answer from the Legal Department of the Administration completely rejecting the project.
[4]Vera Alperovich, Alexander Verkhovsky, Natalia Yudina, Between Manezhnaya and Bolotnaya: Xenophobia and Radical Nationalism in Russia, and Efforts to Counteract Them in 2011 // SOVA Center. 2012. 5 April (http://www.sova-center.ru/en/xenophobia/reports-analyses/2012/04/d24088/).
[5]The text of Resolution No. 11 of the plenary meeting of the Supreme Court of the Russian Federation O sudebnoi praktike po ugolovnym delam o prestupleniyakh ekstremistskoi napravlennosti [Concerning Judicial Practice in Criminal Cases Regarding Crimes of Extremism] adopted on June 28, 2011 // Web site of the Supreme Court of the Russian Federation. 29 June (http://www.supcourt.ru/Show_pdf.php?Id=7315). See also: Kommentarii ‘SOVY’ na Postanovlenie Plenuma Verkhovnogo suda ob ekstremizme [SOVA commentary on the Resolution of the Supreme Court plenary meeting regarding extremism] // SOVA Center. 2011. 1 July (http://sova-center.ru/misuse/publications/2011/07/d22010/).
[6]Please keep in mind that inappropriate verdicts are being handed down under Articles 280 и 2822 as well.
[7]The main character of a well-known Soviet TV film series "Seventeen Moments of Spring" (on the life of a Soviet spy in Nazi Germany).
[8]The text of the ECHR decision is available at the site of the Perm Human Rights Commissioner (http://ombudsman.perm.ru/_res/fs/file979.doc).
[9]The last one is: M. Rozalskaya, Inappropriate enforcement of anti-extremist legislation in Russia in 2010 // SOVA Center. 2011. 11 April (http://www.sova-center.ru/en/misuse/reports-analyses/2011/04/d21360/).
[10]Part 2 of the Criminal Code Article 14 states, "The commission of an act, or an inaction, although formally containing the indicia of any act provided for by this Code, but which, by reason of its insignificance, does not represent a social danger that is, which caused no harm and has not created a treat of damage to a person, society, or the state, shall not be deemed a crime."
[11]As far as we know, a sudden burst of activity regarding this case in December 2011, had no continuation during the first month and a half of 2012, despite the fact that Obraztsov was taking an active part in the protest movement.
[12]For more information see V. Alperovich, A. Verkhovsky, N. Yudina, Between Manezhnaya and Bolotnaya.
[13]See: M. Rozalskaya. Inappropriate enforcement of anti-extremist legislation in Russia in 2010.
[14]The Supreme Court. Decision No. 58-Vpr11-2 // The Supreme Court of the Russian Federation Web Site. 2011. 10 May (http://www.vsrf.ru/print_page.php?id=7647).
[15]Most likely, we never encounter information about the majority of such inspections. We often learn about an inspection campaign, but not about the number of warnings and other prosecutorial response actions, resulting from this campaign. In such cases we counted an entire campaign as a single case for statistical purposes.
[16]See: M. Rozalskaya. Misuse of Anti-Extremism Legislation in the First Half of 2011. // SOVA Center. 2011. 17 October (http://www.sova-center.ru/en/misuse/reports-analyses/2011/10/d22796/).
[17]For more details see a brochure, published by State Historical Public Library of Russia with the participation of SOVA Center: Rabota bibliotek s ‘Federal’nym spiskom ekstremistskikh materialov’ [Libraries Working with the Federal List of Extremist Materials], Moscow: State Historical Public Library, 2011.
[18]We used the same conservative methods of calculations as described above with regard to internet filtering inspections.
[19]For templates of relevant documents see: Rabota bibliotek s ‘Federal’nym spiskom ekstremistskikh materialov’.
[20]We stated this on numerous occasions. See for example: M. Rozalskaya. Misuse of Anti-Extremism Legislation in the First Half of 2011.
[21]See: V. Alperovich, A. Verkhovsky, N. Yudina, Between Manezhnaya and Bolotnaya.
[22]Law enforcement agencies often undertake inappropriate or at list controversial measures in this area, but this is out of scope for this report.
[23]For example, one propagandist of military jihad was appropriately convicted under articles 280 и 2052, that is, for public calls to extremist and terrorist activity.
[24]A. Verkhovsky. Is Hizb ut-Tahrir an Extremist Organization? // SOVA Center. 2005. 6 February (http://www.sova-center.ru/en/xenophobia/reports-analyses/2006/02/d7187/).
[25]This Turkish word simply means follower of Nursi’s teachings. Such followers indeed exist in Russia, they have web sites and a degree of influence among Muslims, but there is no information regarding any integrated network or an organization, as well as regarding any kind of illegal activities.
[26]However, the most severe sentence of one and a half years' imprisonment, imposed on Asylzhan Kelmukhambetov in Orenburg was reduced to a fine in the course of the appeal in January 2012 (an unprecedented case in this area) and he was released.
[27]At the time of writing, the suspects have not been arrested. The investigation continues; the campaign in their defense continues as well.
[28]Gabdrakhmanov was convicted in 2007 for disseminating Hizb ut-Tahrir leaflets and there is good reason to believe that the leaflets had been planted. Earlier, in 2005, Gabdrakhmanov was charged in Bashkortostan with weapon possession, but the case was closed, and his right to rehabilitation was recognized.
[29]V Podmoskov’e zaderzhan lider rossiiskogo kryla psevdosufiiskoi sekty ‘Nurcular’ Khabibullin. Gotovil smertnikov gipnozom [Khabibullin, the leader of the pseudo-Sufi Nurcular organization has been detained in Moscow Region. He trained suicide bombers via hypnosis // TsentrAsia. 2010. 18 October (http://www.centrasia.ru/newsA.php?st=1287424140).
[30]On January 31, 2012 Gabdrakhmanov and Khabibullin were each convicted to four years of penal settlement-colony for possession of ammunition and incitement of hatred (part 1 of Article 222 and part 1 of Article 282). The verdict has been appealed.
[31]See: Olga Sibireva. Freedom of conscience in Russia: Restrictions and challenges in 2011 // SOVA Center . 2012. 16 April (http://www.sova-center.ru/en/religion/publications/2012/04/d24196/).
[32]The term "new religious movements (NRM)" is used here in a neutral meaning, accepted in the field of Religious Studies. Since the term has been in use for quite a while, some NRM, such as Jehovah’s Witnesses or Scientology are, strictly speaking, not "new" any more.
[33]See: M. Rozalskaya. Inappropriate enforcement of anti-extremist legislation in Russia in 2010.
[34]This slogan was used by monks of the Esphigmenou Monastery, who refused to recognize the transition to the Gregorian calendar and, for that reason, refused to obey the Ecumenical Patriarch. A black flag with the words "Orthodoxy or Death!" was raised above the monastery, besieged the Greek police. In Russia, the slogan was taken up in the early 2000s by the fundamentalist movement (oppositional to the ROC) against the "satanic" bar codes, tax identification numbers and other similar symbols. Since many of the Russian Orthodox fundamentalists are also Russian nationalists, t-shirt with the slogan was sold together with another t-shirt carrying the slogan "Russia for the Russians!" (Rossiya dlya russkikh). The case for banning both of them was started back in 2010.
[35]In this case we have not seen the original texts by Lebedev and take our information from the statements, made by the law enforcement agencies, so we cannot be completely sure, that Lebedev had not incited hatred to the followers of the Russian Orthodox Church as a group. However, if his harsh criticism referred only to the clergy, then the verdict does not correspond to the content of Article 282.
[36]After being repealed on formalities, the verdict have been approved by the court on December 20, 2011.
[37]A. Verkhovsky. Anti-Extremist Legislation, its Use and Misuse // SOVA Center. 2008. 5 July (http://www.sova-center.ru/en/xenophobia/reports-analyses/2008/07/d13739/).
[38]Lukin was under house arrest for violating the terms of his suspended sentence. He had been convicted twice before, under Article 214 and under articles 282 и 2822.
[39]The case was reopened once again in February 2012 upon request from the Prosecutor’s Office.
[40]He claimed that he had only acted in self-defense in this fistfight, but we were unable to verify this claim.
[41]The law outlines several versions of closing down a media outlet, with and without warnings, but most of these versions are never utilized.
[42]It succeeded on the second attempt; the first one took place in 2010.
[43]Surprisingly, this case, closed in May 2011, was opened again on January 19, 2012, and closed once again of February 6.
[44]At the time of writing, at least 30 offenders, appropriately or inappropriately convicted under the "extremist" articles, were in custody for crimes, unrelated to violence. For more details see: A. Verkhovsky. Kak otlichit’ uznika sovesti ot ekstremista [How to tell apart a prisoner of conscience and an extremist] // Vedomosti. 2012. 16 March (http://www.vedomosti.ru/opinion/news/1538712/kandidaty_v_politzaklyuchennye); Spisok zaklyuchennykh ‘ekstremizmov’ [The list of "extremists" in custody] // SOVA Center. 2012. 16 March (http://www.sova-center.ru/misuse/publications/2012/03/d23900/).
