Brief Report on Misuse of Anti-Extremist Legislation in January–August 2019
The following brief review covers the most important legislative innovations and the law enforcement statistics in the period from January to August 2019. Our review is limited only to the part of the legislation and law enforcement practice that we see as leading to an excessive restriction of civil liberties.
In July 2019, Russia ratified the Convention of Shanghai Cooperation Organization (SCO) on Countering Extremism, signed in Astana in 2017. The Convention expands the definition of extremism previously adopted at the SCO level. While the definition of extremism in the Shanghai Convention of 2001 was tied to violence, the new definition also came to include “other unconstitutional actions.” In addition, it introduces a list of “extremist acts,” largely corresponding to the definition of extremism used in the Russian Law “On Combating Extremist Activity.” Moreover, this list includes incitement to political enmity, which is absent in the Russian definition. The document provides for close cooperation among law enforcement agencies in their investigations of extremist cases, which includes dispatching staff members to attend operational search activities in the territory of other participating states. The Convention also mandates that all those involved in extremist crimes be denied refugee status. This type of strengthened cooperation is a cause for concern, since it may lead to further deterioration of the already problematic situation of dissidents in the SCO countries.
The number of legal norms restricting the rights of people whom the authorities consider to be involved in terrorism and extremism keeps growing. These include two laws signed in March, one of which requires lawyers and accountants to freeze the funds of their clients, if the latter were placed on the Federal Financial Monitoring Service (Rosfinmonitoring) List of Extremists and Terrorists, while the other one prohibits persons included on this list from working at nuclear facilities. A law signed in July prohibits those included on the Rosfinmonitoring List from operating railroad trains. In August, the Russian president signed a law on crowdinvesting, which prohibits persons included on the same List from owning crowdinvesting platforms or using them to solicit funds. In addition, the government submitted to the State Duma a draft bill extending the ban on establishing or membership in non-profit organizations to include individuals whose funds were frozen by the Interdepartmental Commission on Countering the Financing of Terrorism. We would like to remind that the Rosfinmonitoring List includes convicted offenders, as well as individuals accused or suspected of involvement in extremist and terrorist activities.
In late June, the State Duma approved in the first reading a draft legislation included in the package of bills, submitted by a group of deputies led by Yelena Yampolskaya along with a proposal to amend Article 20.3 of the Code of Administrative Offenses (propaganda or public display of Nazi symbols or symbols of extremist organizations). The bill seeks to rescind the absolute nature of the ban on demonstrating Nazi symbols currently contained in the Federal Law “On Immortalization of the Victory of the Soviet people in the Great Patriotic War of 1941-1945,” and to amend the Federal Law “On Combating Extremist Activity” accordingly. We view the initiative to soften the total ban on displaying Nazi symbols as necessary, however, in our opinion, the “Yampolskaya package” will not fully take the context of such displays into account. The proposal is to limit the ban by providing a list of situations, in which Nazi propaganda is absent; however, the list suggested by Yampolskaya is not exhaustive. In our opinion, the legislation should be amended with a clause to state that the ban on displaying the symbols of banned organizations and the corresponding sanctions apply only if this display is intended to promote the relevant ideology.
Creation of new norms that are not directly related to the fight against extremism but also significantly restrict the freedom of expression for reasons of state security should be noted as well. A package of laws signed in March 2019, which came to be known under the name of one of its initiators, Senator Alexander Klishas, targeted fake news and online insults against the society, the state and public officials.
First, Roskomnadzor, upon request of the Prosecutor General’s Office, was instructed to block inaccurate socially significant information disseminated under the guise of reliable messages,” which presents a threat to citizens, public order, etc. Administrative responsibility for disseminating “deliberately inaccurate” information was imposed under Article 13.15 of the Code of Administrative Offenses (abuse of freedom of mass media, new Parts 9-11) in the form of large fines differentiated depending on the degree of the alleged or actual harm and reaching up to 1.5 million rubles for legal entities. At the same time, registered online media outlets were given the opportunity to promptly delete such messages upon notification from Roskomnadzor in order to avoid being blocked.
Next, the “Klishas Laws” provide for extrajudicial blocking of “information expressing in indecent form that offends human dignity and public morality” obvious disrespect for society, the state, the state symbols, and the agencies exercising state power. Website owners are required to delete such information within 24 hours after receiving a notification. Citizens face administrative penalties for its distribution in the form of fines and arrests of up to 15 days, in accordance with the new Part 3 of Article 20.1 of the Code of Administrative Offenses (petty hooliganism).
In our opinion, these laws operate with nebulous concepts, introduce redundant norms and suggest unreasonable interference with the right of Russian citizens to freedom of expression, clearly aimed at suppressing criticism of the authorities.
At the time of the publication of this review, we have recorded 44 cases of prosecution for expressing disrespect online. 26 people faced punishment - a fine in 25 cases and an administrative arrest in one case; 14 cases were closed, and in four cases we don’t know the outcome. Most frequently, the cases pertained to obscene statements about the president, but some statements targeted other government officials, including local officials, judges, and law enforcement representatives. According to our records, two people were held accountable for publishing fake news. According to the Roskomnadzor report, 21 pages “with information expressing disrespect for the authorities” were added to the Unified Register of Banned Websites in the first half of 2019. Meanwhile, in late September, Head of Roskomnadzor Alexander Zharov said that, from the moment the law came into force, the Office has received 36 requests by the Prosecutor General regarding violations in 62 materials that contained information expressing disrespect for the authorities; 58 such materials were deleted, and four were blocked. Obviously, such an increase in the number of blocked materials during the third semester is associated with targeted searches for information expressing disrespect for the state symbols of the Russian Federation. According to Roskomnadzor, 61 pages with "inaccurate socially significant information" were added to the Unified Register of Banned Websites in the first half of the year.
A package of bills, introduced in the State Duma in mid-May, seeks to ban dissemination of information that can facilitate the imposition of sanctions against the Russian state, citizens or organizations. Its author, Deputy Mikhail Yemelyanov (A Just Russia), proposed banning collection, transmission and dissemination of information that might lead to the introduction of sanctions against Russia and Russians, as well as information on their non-compliance with the sanctions. Criminal liability is introduced for disseminating, in mass media or on the Internet, secrets protected by law or any other information that contributes to the imposition of sanctions. The author stipulates punishment of up to five years of imprisonment with a fine of up to five million rubles and a ban on certain activities for up to five or ten years, depending on the circumstances. In addition, Yemelyanov proposes augmenting Article 128.1 of the Criminal Code (libel) with a new part that will impose a fine of up to 5 million rubles or imprisonment for up to five years for libel directed against persons subjected to sanctions or libel that becomes a basis for imposing sanctions. In our opinion, Yemelyanov’s proposals pertaining to dissemination of information, which does not contain personal data or secrets specifically protected by law, directly contradict Article 29 of the Constitution of the Russian Federation, which guarantees freedom of speech and mass information. The proposed legislation also opens the possibility of criminal prosecution for acts committed without criminal intent. Furthermore, it is unclear what methods are suggested for establishing the fact that dissemination or transmission of the information has really contributed to the imposition of sanctions.
The Practice of the European Court of Human Rights
During the period under review, the European Court of Human Rights (ECHR) continued to receive and communicate complaints from Russian citizens regarding the use of anti-extremist legal norms. At least two important decisions were made.
In July, the ECHR examined the case of Zhdanov and Others v. Russia, which combined three complaints on the refusal of the Russian authorities to register the following LGBT organizations: the Rainbow House, the Pride House in Sochi and the autonomous non-profit organization Movement for Marriage Equality. The Russian authorities attempted to justify the refusals by citing the need to protect morality, family, national security (due to a hypothetical decrease in the population) and to protect the rights and freedoms of others (from encountering manifestations of same-sex relationships, promoting LGBT rights and the very idea of equality of opposite-sex and same-sex relationships), as well as the need to prevent the incitement to social and religious hatred and hostility, which can lead to manifestations of violence. Thus, according to the authorities, the activities of LGBT organizations manifested signs of extremism. The ECHR decided that the Russian authorities should have enabled the LGBT organizations to function without disturbance by the means of, for instance making public statements to advocate, without any ambiguity, a tolerant, conciliatory stance, as well as warning potential aggressors of possible sanctions. Instead, they decided to remove the cause of tension and avert a risk of disorder by restricting the applicants’ freedom of association. According to the European Court, the interference of the Russian authorities in this right was not necessary in a democratic society. Consequently, the Russian authorities violated Article 11 of the Convention guaranteeing freedom of assembly and association and (since the case involves the LGBT rights) Article 14 of the Convention prohibiting discrimination and, under one of the complaints, also Article 6 of the Convention, which pertains to the right to a fair trial.
The second decision is only partially related to anti-extremist law enforcement inasmuch as it pertains to the Lugovoy Law on blocking online information, which originated as anti-extremist legislation. In April, the ECHR issued a ruling with regard to the complaints by Syktyvkar activist Grigory Kablis regarding the refusal to authorize a picket-style protest, extrajudicial blocking of three posts on the 7x7 website and blocking his VKontakte account. In 2015, Kablis filed a picket notice and posted about it on his blog. After the refusal of the city administration to grant a permit for his picket, he published two more posts on the blog announcing a people’s gathering, as well as one post on VKontakte. After that, his social network account was blocked at the request of the Prosecutor General, and then the 7x7 portal was forced to delete his blog posts under the threat of blocking.
According to the ECHR, Article 15.3 of the Federal Law "On Information" contains an excessively broad formula of the prohibition to disseminate information about events held in violation of the law. As a result, even the most insignificant, procedural violation in this area can trigger extrajudicial blocking of posts, and the breadth of the Prosecutor General's discretion with respect to such blocking measures makes their judicial review practically impossible. Thus, Article 15.3 of the Federal Law "On Information" lacks the necessary guarantees against abuse. The ECHR recognized the very mechanism of extrajudicial blocking of information under the so-called Lugovoy Law, reflected in this Article, as non-compliant with the Convention
The ECHR decided that the blocking of Kablis’ account and posts constituted an interference by a state body in its right to express opinions, an integral part of which is the freedom to receive and disseminate information and ideas. The blocking in this case was aimed solely at enforcement of rules governing public assemblies, which, according to the ECHR practice, cannot become an end in itself. The blocking could have pursued the legitimate aim of protecting the rights of others, but the Russian courts did not establish whether Kablis’ actions had really encroached on these rights. The ECHR noted that only two of the four posts contained calls to participate in the public event planned by him. It should be borne in mind that the authorities must demonstrate a certain level of tolerance in relation to peaceful assemblies held in violation of the law. The reasons for blocking the other two posts were not at all clear, and, in addition, the posts discussed the matters of public interest, and such statements are subject to special protection. Thus, in this case there was no pressing social need to block access to the information. The court found that Russia had violated Article 10, 11 and 13 of the European Convention on Human Rights that guarantee freedom of expression, freedom of assembly and the right to an effective remedy and ordered Russia to pay Kablis for non-pecuniary damage and legal expenses.
Only one guilty verdict that we regard as inappropriate was passed in the first eight months of 2019 under the articles on public statements, which are of interest to us. In March, the Volgograd Regional Court fined Alexei Volkov – the coordinator of Alexei Navalny’s headquarters in Volgograd – 200 thousand rubles under Article 354.1 Part 3 of the Criminal Code (public desecration of the symbols of Russia's military glory). After the green dye attack against Navalny in 2017, Volkov published in the Volgograd VKontakte community of Navalny’s supporters a collage of the Motherland Calls statue covered with green dye. We view Volkov’s sentence as inappropriate. The creators and distributors of the collage, obviously, did not intend to express disrespect for the monument and contribute to the rehabilitation of Nazism. Moreover, from a legal viewpoint, it is not entirely obvious whether distribution of such an image can be considered a desecration of a monument. In addition, the legislation never defines the concept of “symbols of Russia's military glory.”
Due to partial decriminalization of Article 282 of the Criminal Code, a number of criminal cases under this article, which we regarded as either wholly without merit or partially inappropriate, were terminated in January-August 2019.
Criminal cases against three Barnaul residents were discontinued in January. Andrei Shasherin and Maria Motuznaya had been charged under Article 148 Part 1 of the Criminal Code (insulting the feelings of believers) and Article 282 Part 1 of the Criminal Code (incitement of hatred) for publishing atheistic and xenophobic images; Daniil Markin had been charged with abasement of dignity of Christians under Article 282 Part 1 for publishing anti-Christian memes. Charges under Part 1 of Article 282 were also dismissed in the case of Alexei Mironov, an opposition activist from Cheboksary brought to responsibility for his statement asserting the need for the extermination of Muslims. As a result, Mironov was released from the penal colony, where he was serving a sentence under the aggregation of Articles 282 and 280 (incitement to extremist activity; we regard this latter charge as inappropriate). The prosecution of Ufa resident Amin Shayakhmetov, who had published six texts about Islam on the website of the Shura of Muslims of the Republic of Bashkortostan, was discontinued (out of four incriminating texts available to us, we found only one to contain incitement to discrimination).
The case of Lyubov Kalugina, a radical feminist charged with inciting hatred on the basis of gender for her social network publications about men, was closed in February in Omsk. In Sevastopol, the court discontinued the criminal prosecution under Article 282 against Valery Bolshakov, the secretary of the Sevastopol branch of the Russian United Labor Front Party (ROT FRONT). The charge was related to negative assessments of the Terek Cossacks made by the activist in his social network publications, and we believed that the Terek Cossacks did not constitute a vulnerable social group in need of protection under the anti-extremist articles of the Criminal Code. In June, Bolshakov received a suspended sentence of two and a half years under Article 280 Parts 1 and 2 of the Criminal Code for incitement to overthrowing the “Putin’s regime” and establishing the “dictatorship of the proletariat,” but already in August the case was returned to the prosecutor’s office “for additional investigation, elimination of formal flaws and concretization of the charges.”
“Pokémon catcher” Ruslan Sokolovsky convicted under Part 1 of Article 282, Part 1 of Article 148 and Article 138.1 (illegal trafficking of special technical equipment intended for secretly obtaining information) of the Criminal Code was released from prison in May. In addition, nationalist Vladimir Timoshenko, previously convicted of inciting hatred towards the social group “employees of government institutions and agencies,” had his conviction expunged.
Moreover, we recorded only six cases of inappropriate prosecution under the new Article 20.3.1 of the Code of Administrative Offences on incitement to hatred. A fine was imposed in three cases; one case resulted in an administrative arrest; in yet another case the proceedings were terminated. It is worth reminding that, as a result of partial decriminalization of Article 282 of the Criminal Code, this administrative article is now used for bringing to justice those who committed only one such act in the course of a year.
Unfortunately, in the period under review, the authorities continued to open criminal cases for oppositional statements without due justification.
The story of Svetlana Prokopieva’s fall 2018 radio show continued in Pskov in February. The program was dedicated to the causes of an explosion at the FSB office lobby in Arkhangelsk, and Roskomnadzor found it to contain the signs of justification of terrorism. The magistrate court fined the editors of Echo of Moscow radio station in Pskov and of the Pskovskaya Lenta Novostei [Pskov News Feed] under Article 13.15 Part 6 of the Administrative Code (mass media production or publication containing public calls for terrorist activities or materials publicly justifying terrorism) in the respective amounts of 150 and 200 thousand rubles for publishing the audio record and its transcript respectively. Prokopieva personally became а suspect under Article 205.2 Part 2 of the Criminal Code (public justification of terrorism in the media), and was formally charged under these articles in September 2019. In our view, the prosecution against the journalist and the media outlet is inappropriate, since the program never indicated that the ideology or practice of terrorism was correct and deserves to be emulated, and never spoke of their attractiveness or acceptability.
In March, activist of the Bashkir national movement Airat Dilmukhametov was arrested in Ufa. He has been charged under three articles of the Criminal Code. We regard as inappropriate the charges against him for publishing on the Internet calls to violate the territorial integrity of the Russian Federation (Article 280.1 Part 2 of the Criminal Code). The law enforcement objections pertain to Dilmukhametov’s video address, in which he declared his intention to win the elections for the Head of Bashkortostan and then initiate the renegotiation of the federal agreement between the subjects of the Russian Federation on new terms; the address contained no calls for separating any regions from Russia with the use of violence. We also view the charge brought against him under Article 205.2 of the Criminal Code as inappropriate, since, according to the available information, it is related to Dilmukhametov’s video about the Hizb ut-Tahrir religious party banned in Russia. Far from any advocacy or justification of terrorist activities, Dilmukhametov did not even agree with the Hizb ut-Tahrir ideology in his video – he merely stated that this organization did not resort to terrorist methods of struggle. As for the charges under Article 280 of the Criminal Code, we cannot evaluate the extent of their appropriateness due to our lack of information on the content of incriminating statements.
We found out in April that a new criminal case against oppositional blogger Konstantin Ishutov from Chuvashia was instituted under Article 354.1 Part 1 of the Criminal Code (rehabilitation of Nazism) The prosecution was based on two posts, in which we found no signs of justifying Nazism.
In the same month a criminal case was initiated in Novy Urengoy (Yamalo-Nenets Autonomous District) under Article 205.2 Part 2 of the Criminal Code (justification of terrorism on the Internet) against Dmitry Chernomorchenko, the creator and editor-in-chief of the Voice of Islam online portal. The prosecution was triggered by the article Aleppo Fell: Lessons and Conclusions, published by the Voice of Islam on December 13, 2016. The case was based on the conclusion by an expert, who discovered signs of justifying the activities of the banned Islamic State in the author’s assertion that blaming this organization for Aleppo’s fall was meaningless, because, during the hostilities, the Islamic State fighters had, in fact, supported an “unspoken truce” with Assad. In our opinion, the expert’s interpretation is hardly reasonable, especially since the author criticizes all parties to the conflict, including the Islamic State, and does not call for any violence, let alone terrorism.
It became known in June that Oksana Yeremina and Yuri Vashurin, participants in the oppositional action “He is Not Our Tsar” in Chelyabinsk in 2018, were charged under Article 213 Part 2 of the Criminal Code (hooliganism, motivated by political hatred committed by an organized group). The investigators regard Mikhail Takhirov and I. Tyschenko as Yeremina’s accomplices. The case against Boris Zolotarevsky was dismissed – the investigation found that, although Zolotarevsky served as the action’s organizer, he had been detained prior to its beginning, and therefore was not involved in the crime. In our opinion, neither chanting slogans that call for a non-violent change in the state and regional leadership nor filling any square or intersection with participants during a mass event constitute hooliganism in and of themselves.
While only one unjustified criminal sentence was imposed for oppositional statements, 14 inappropriate sentences against 62 people were issued for involvement in banned organizations.
These sentences include six verdicts under Article 205.5 of the Criminal Code (organizing or participation in a terrorist organization) pertained to participation in Hizb ut-Tahrir, an Islamic religious party banned in Russia as terrorist, despite the fact that it was never known to be involved in terrorist activities. 38 people in Moscow, Bashkortostan, Samara, Tatarstan and Crimea were sentenced to long prison terms, ranging from seven to 17 years.
The remaining eight sentences against 24 people were imposed for involvement in extremist organizations.
Two sentences under Article 282.2 of the Criminal Code (organizing or participation in an extremist organization) were issued to followers of the Tablighi Jamaat, a peaceful movement of Islamic preachers recognized as extremist in Russia. 14 people in Orenburg and Crimea faced punishments ranging from suspended sentences to a real prison term of six and a half years. (Outside of our review period, in September 2019, three supporters of the movement in Tatarstan received the verdicts ranging from two to six years in a penal colony.)
Members of the Muslim Faizrakhmanist community were sentenced in Tatarstan. Five people were convicted under Article 282.2 and Article 282.3 of the Criminal Code (financing activity of an extremist organization) and received from five to seven years in prison. The community led an insulated but not aggressive way of life; therefore we believe that there were no grounds for recognizing it as extremist and prosecuting its members under corresponding articles.
In addition, four Jehovah's Witnesses were convicted under Article 282.2 of the Criminal Code in the first eight months of 2019 – two in Oryol, one in Perm and one in Khabarovsk. Two people were sentenced to fines and another one to community service; the most severe verdict was faced by Dennis Christensen, a Danish citizen who was sentenced in Oryol to six years in a minimum security colony. (It is also worth noting that in September, outside of our review period, six believers in Saratov received sentences ranging from two to three and a half years in prison.)
Based on the Jehovah's Witnesses data as of mid-August, we can say that, after the total ban of 2017, the number of their co-religionists prosecuted in Russia for continuing their activities and financing their banned organizations (under Articles 282.2 and 282.3 of the Criminal Code) exceeded 250 people by the fall of 2019; nearly three dozens of them were in pre-trial detention.
Separately, it is important to note the increase in the number of prosecutions under Article 205.2 of the Criminal Code for the promotion of terrorism in places of incarceration. In custodial settings – not only in Russia – some prisoners adopt and occasionally begin to advocate ideas that are directly related to terrorist activities, including prisoners previously convicted of ordinary crimes. At the same time, the appropriateness of such charges is often questionable, both due to the possible fabrication of evidence of prisoners’ guilt, and because it is unclear whether the extent of public danger of the act in these cases is duly taken into account, since the number of people, comprising the audience of a problematic statement is usually not specified, and, accordingly, it is not clear whether the statement can truly be considered public. We know of at least three sentences in 2019 (offenders received from 2.5 to 3.5 years behind bars) and of five new criminal cases initiated this year under Article 205.2 of the Criminal Code against incarcerated individuals.
Our data on the use of the articles of the Code of Administrative Offenses aimed at combating extremism is so incomplete as to differ from the real one by an order of magnitude, but to some extent it still allows us to observe the general trends.
In the period under review, the largest number of abuses occurred in the application of Article 20.3 of the Code of Administrative Offenses, which deals with propaganda and display of prohibited (most often Nazi) symbols. We view prosecutions for the display of symbols not aimed at advocating extremist ideology as inappropriate, and we recorded 16 such cases. In half of them, the individuals, who faced responsibility, were activists of the opposition. Sanctions were imposed on 14 people – mainly fines, but there also was one case of an administrative arrest.
We know of 47 cases of prosecution under Article 20.29 of the Code of Administrative Offenses for mass distribution or for possession with intent to distribute of extremist materials, which, in our opinion, were banned without proper justification. Fines were imposed in 39 cases and an arrest in one case. The majority of the distribution charges pertained not to religious literature, as was typical in prior cases, but to the materials critical of the Russian authorities.
We know at least six cases of prosecution under Articles 16.2 and 16.3 of the Code of Administrative Offenses for importing materials inappropriately recognized as extremist into Russia; all of them pertain to religious literature.
The growth rate of the Federal List of Extremist Materials continues to decline. While the List added 158 entries in the corresponding period in 2018, it increased by 138 entries (from 4812 to 4949) during our review period of 2019. At the same time, the share of inappropriate bans in January-August 2018 comprised about 35 entries, while we recorded only five such entries in 2019.
The Unified Register of Banned Websites, which lists online resources recognized as extremist by court decisions, continued to grow. According to Roskomnadzor’s report, in the first half of the year, the Unified Register added 67,153 links to Internet resources containing information recognized by the court as prohibited or extremist, including 27,701 web mirrors. The agency does not report the percentage comprised by pages blocked due to the presence of extremist materials. The register of information blocked extra-judicially upon request of the Prosecutor General’s Office also continued to grow; resources can be blocked for calls for extremist activity or unpermitted public actions, disrespect for the society and the state, publication of fake news that could lead to dangerous consequences, as well as for information from organizations recognized in Russia as undesirable. In the first half of 2019, the agency received 60 requests from the Prosecutor General's Office to restrict access to illegal information on 243 Internet resources. Roskomnadzor itself is engaged in blocking web mirrors that contain banned information, which previously appeared in prosecutorial requests. It discovered 38,428 such pages in the first half of 2019, 38,370 of which were part of websites calling for extremist actions. It should be noted that over 10,000 of them contained Hizb ut-Tahrir information, which is blocked regardless of whether it contains party propaganda or reports of persecution against its members. According to Roskomnadzor, forbidden information was deleted from 27,092 sites; the remaining ones were blocked.