Настоящий материал (информация) произведен и (или) распространен иностранным агентом РОО Центр «Сова» либо касается деятельности иностранного агента РОО Центр «Сова».
The verdict in Moscow on 12 July convicting Yury Samodurov
and Andrei Yerofeev for organising the Forbidden Art 2006 exhibition has not
yet come into force, so there is still hope that it could be overturned on
appeal. But – given the similar verdict in an earlier case over the Danger,
Religion! exhibition – this hope is very weak. The case is the most
high-profile symptom of the problems which have flowed from the 2002 Extremism
Law and the uses to which it has been put. Previously the law has been used to
target religious groups such as Jehovah's Witnesses and Muslim readers of the
works of Said Nursi.
Free and open discussion, including criticism, of religious and non-religious
views is an inalienable part of a free society. This is one of the areas in
which the unbreakable link between freedom of religion or belief and other
fundamental freedoms such as freedom of expression is most obvious. Yet today,
this open discussion is more and more attracting repression. We are not talking
about isolated instances which could be attributed to particular circumstances
– this is a system. A very large – and growing – proportion of the cases of the
unlawful use of anti-extremism legislation in Russia today are connected in
some way with religion. And only society's general indifference to religion prevents
the majority of people who are worried by restrictions on freedom of speech
from noticing this.
At the same time, the universality of the anti-extremist legislation as a
repressive mechanism has an ever wider impact on society. While one person
might be spurred to protest, another is overwhelmed by fear. And this fear is
seen ever more widely, including in the activity of religious communities.
Defence of "tolerance" used to attack fundamental freedoms
To the ordinary public, the Samodurov and Yerofeev verdict has several distinct
aspects. These include: pressure against Samodurov as a well-known human rights
defender (even if he left the Sakharov Museum over a year ago); pressure from
the Russian Orthodox Church, although leading figures in the Moscow
Patriarchate came to differing views over the prosecutor's demands that
Samodurov and Yerofeev be imprisoned (the widespread impression that the Moscow
Patriarchate initiated the prosecution is mistaken); and heightened tensions
between the Orthodox Church and secularists, which noticeably got in the way of
a public debate on the role of the Orthodox Church in society and the state.
Yet one aspect of the verdict is perhaps the most important: the way in which
defence of an undefined "tolerance" is being used to attack freedom
of religion or belief and so also other fundamental freedoms. How far freedom
of expression in general and freedom of artistic creativity in particular can
be limited is a subject of much debate. In this instance, I believe the particular
to be less important than the general: for contemporary art, gesture (or
expression) is in itself an artistic act. But, let us move beyond artistic
expression and look at freedom of expression in all its forms.
Dangers of loosely defined law
Religious tolerance is not – and cannot be – prescribed as a legal requirement.
Russian law bans certain forms of intolerance. The key piece of legislation is
the 2002 Law on Fighting Extremism, and Article 282 of the Criminal Code, which
is linked to it (see F18News 27 April 2009 http://www.forum18.org/Archive.php?article_id=1287
The 2002 Extremism Law bans, among other things, "incitement .. of
religious discord [religioznaya rozn]"; "propaganda of the
exclusivity, superiority or lack of equal worth of an individual on the basis
of their .. religious .. adherence or attitude to religion"; and "the
violation of the rights, freedoms and legal interests of an individual and
citizen depending on their .. religious .. adherence or attitude to
Such actions could lead to a ban on an organisation, publications and meetings,
without the actions being in themselves a crime.
Criminal Code Article 282 defines the associated crime: "actions directed
at the incitement of hatred [nenavist] or enmity [vrazhda], as well as the
humiliation of an individual or group of persons on the basis of .. attitude to
religion, .. conducted publicly or through the media".
Like any restriction on freedom of speech, these definitions can be criticised
and can be (and are) misused, but mostly they are not unusual compared with
restrictions in other European countries – with the exception of the concept of
"incitement of religious discord [religioznaya rozn]".
The word 'rozn' in Russian could mean "hostility", as well as
"discord" or refusal to accept another person's views. This last
meaning can hardly represent something illegal, otherwise nothing would be left
of freedom to share religious or non-religious views.
However, despite the use of two narrower terms - 'nenavist' (hatred) and
'vrazhda' (enmity) - in the description of extremist crimes in Criminal Code
Article 282, many legal specialists, prosecutors and judges go instead by the
Extremism Law's catch-all term, 'rozn'. Thus, while the Criminal Code speaks of
inciting hatred to people on the basis of a religion, strong criticism of the
religious or non-religious views that people may hold is seen as practically
the same thing.
Criminalisation of "offending feelings"
Hatred of people and hatred of their views is clearly not the same thing. But
in Russia criticising any views connected with religion can be a crime, even
though criticism of other views is not a crime under Russian laws.
Likewise, offending religious feelings is equated with humiliating people on
the basis of their religion. But "offending feelings" and deliberate
humiliation of a person or persons are clearly not identical concepts. Any form
of offence, whether personal or group, must be the subject not of criminal but
civil proceedings (unless we are talking about slander, though this is a
controversial issue). The criminalisation of "offending feelings" is
helped by the way Russian law is poorly adapted for civil suits relating to
In the case of Samodurov and Yerofeev, the prosecutor and the judge's arguments
against the exhibition were exclusively based on whether the exhibition
insulted the feelings of Christians and desecrated what Orthodox consider holy.
And even if it is beyond doubt that the exhibits were offensive and
sacrilegious to many Christians (and to some other faiths), not all insult of a
faith should be automatically legally interpreted as incitement of hatred
against believers themselves.
Incitement to hatred against people must be proved in court. But the prosecutor
failed to do this, perhaps because he did not understand that he needed to do
so. But possibly because he could find no legal proof of incitement to hatred.
Interestingly, in his closing speech to the court the prosecutor considered it
necessary to refer to the 1994 European Court of Human Rights (ECtHR) decision
in the Otto Preminger Institute v. Austria case. But the two cases are
fundamentally different. In Austria the issue was banning a film - not convicting
the organisers personally of a crime. Had the Russian Prosecutor's Office
indeed banned the exhibition it is likely that Russia could have subsequently
won a case at the ECtHR in Strasbourg. However, in the Samodurov and Yerofeev
case it is likely that Russia would lose a case brought before the ECtHR.
Ironically enough, an administrative ban on the exhibition would have fully
satisfied the Russian Orthodox Church's leadership.
Alleged "dangerous ideas" prosecuted
But the authorities followed a more brutal tactic. This choice was a result of
the use of anti-extremist legislation to resist "intolerance" (or,
more accurately, what is incorrectly labelled as such) by equating it with
terrorism and hate crimes. Alas, it is impossible to say that only a few
officials support this approach. The idea is widely spread in society that
"dangerous ideas" – even if not accompanied by any incitement to
hatred or violence against people – must be prosecuted no less harshly than
crimes which are, or are thought without proof to be, linked with these ideas.
This approach is fully realised in moves against various Muslim groups which
are not part of the state-recognised Islamic structures. Several of these
groups were genuinely involved in violent crimes, several others promoted
religiously motivated violence. Other groups could not provably be linked with
violence, but it is understandable why the security agencies were suspicious of
But there are also cases where Muslim groups and movements were persecuted which
clearly do not engage in or call for any violent activity, and are completely
unconnected to terrorism. A good example are the Russian followers of the
approach to Islam of the Turkish theologian Said Nursi, many of whose books are
banned in their Russian translation (see eg. F18News 7 July 2010 http://www.forum18.org/Archive.php?article_id=1464
Often the only complaint against these books was that Nursi spoke
disapprovingly of several other views, including some Islamic views (see
F18News 28 January 2010 http://www.forum18.org/Archive.php?article_id=1400
Exactly the same happened later with the ban on many Jehovah's Witness
publications. The only major basis for the ban was the criticism they contained
of other faiths. Many of the texts did not even contain such criticism, which
merely reveals the apparently low qualifications of the prosecutors. On this
basis one Jehovah's Witness community was banned (see F18News 8 December 2009 http://www.forum18.org/Archive.php?article_id=1385
Persecution of Jehovah's Witnesses using criminal law has now begun (see eg.
F18News 7 July 2010 http://www.forum18.org/Archive.php?article_id=1464
Authorities sometimes distinguish
One cannot say that the authorities as a whole and the security agencies in
particular never distinguish between acceptable – even if unpleasant – polemics
and criminal activity. The Moscow Prosecutor's Office repeatedly refused to
launch a criminal case under Article 282 against the Russian Orthodox priest Fr
Daniil Sysoev, who harshly criticised Islam. But he did not make insulting
remarks about Muslims themselves, let alone incite violence against them. In
full accord with the law, appeals by Muslim activists for him to face a
criminal case were not accepted. (Fr Daniil was shot dead in his own church in
November 2009, and security agencies subsequently stated that his murderer had
been killed in a shoot-out.)
Another case was much more like that of Samodurov and Yerofeev. In 2006,
several Russian newspapers republished, in full or in part, the infamous Danish
caricatures of the Muslim prophet Mohammed. Two publications received an
official warning over this from Rosokhrankultura, the government agency which
then monitored the media, while another newspaper editor in Vologda faced a
criminal case. The Vologda paper was closed by its owner after that, while the
editor, Anna Smirnova, was found guilty under Criminal Code Article 282 and
fined. On appeal her conviction was overturned and she was fully acquitted.
These examples give some grounds for hope in the Samodurov and Yerofeev case –
even if there is no evidence yet for hope in the cases involving Jehovah's
Witnesses and Muslim readers of Said Nursi's works. Prosecutors and judges were
able to distinguish between clearly criminal incitement to violence and
criticism of religious and other worldviews, even if some argued – on grounds
which are impossible to legally prove – that they could be seen as
"religious discord [rozn]", legally defined as extremism.
Key issue little understood
Most politicians, officials and commentators dealing with the Samodurov and
Yerofeev case do not understand the crucial distinction that must be made
between criticism of views and incitement to hatred and violence against
particular people. This is vital to understanding the far less publicised but
far more widespread and serious attacks on the freedoms of Jehovah's Witnesses
and Muslim readers of Said Nursi's works – and perhaps in the future yet more
Russians with "dangerous ideas".
This is clear even from the language used by almost all commentators: both
supporters and opponents of the verdict state that Samodurov and Yerofeev have
been convicted of "inciting religious discord [rozn]" - but ignore
the dangerous lack of clarity of the word 'rozn', with its possible meaning of
refusal to accept another person's views. This vital point is in no sense a
minor legal quibble.
For fundamental freedoms to be defended, there must be a re-examination of
anti-extremism legislation or, at the very least a clear and legally defensible
explanation from the Supreme Court which conforms to international human rights
The number of cases in which anti-extremism legislation is misused has not
grown overall in the past two years. But the proportion of such cases related
to freedom of religion or belief has jumped. The reasons for this ominous
development are many, but one is indisputable: concern about poorly defined
"intolerance" combined with a lack of desire or ability to consider
this issue carefully and thoughtfully. Sadly, there is no reason to think this
will change soon. (END)
- Alexander Verkhovsky, Director of the Moscow-based SOVA Center for
Information and Analysis http://www.sova-center.ru
contributed this commentary to Forum 18 News Service http://www.forum18.org
. Commentaries are
personal views and do not necessarily represent the views of F18News or Forum
Analysis of the background to Russian policy on "religious extremism"
is available in two articles: - 'How the battle with "religious
extremism" began' (F18News 27 April 2009 http://www.forum18.org/Archive.php?article_id=1287
- and - 'The battle with "religious extremism" - a return to past
methods?' (F18News 28 April 2009 http://www.forum18.org/Archive.php?article_id=1288
For more background, see Forum 18's Russia religious freedom survey at http://www.forum18.org/Archive.php?article_id=1196
Reports on freedom of thought, conscience and belief in Russia can be found at http://www.forum18.org/Archive.php?query=&religion=all&country=10
A compilation of Organisation for Security and Co-operation in Europe (OSCE)
freedom of religion or belief commitments can be found at http://www.forum18.org/Archive.php?article_id=1351
A printer-friendly map of Russia is available at http://www.nationalgeographic.com/xpeditions/atlas/index.html?Parent=europe&Rootmap=russi
Alexander Verkhovsky, SOVA Center for Information and
Analysis, contributed this comment to Forum 18
News Service. Commentaries are personal views and do not necessarily represent
the views of F18News or Forum 18.