For the NGO Bulletin Lawmaking in the State Duma: a Human Rights Analysis[1]

By the end of 2007, hardly anyone doubted that the Law on Combating Extremist Activity and pursuant regulations (hereinafter collectively referred to as anti-extremist legislation) are a serious threat to civil and political liberties in Russia. Many Russian oppositional politicians and independent commentators describe it as nothing less than a draconian law designed to suppress the remaining freedom of expression in the country. The critics' main argument is that the law allows the authorities to qualify anyone as extremist, thus warranting the toughest of possible repressive measures.

Reluctance to delve into complicated legal matters breeds exaggeration and misinterpretation. In particular, changes in the Federal Law on Combating Extremist Activity made in the summer of 2007 were misinterpreted to include many of the provisions which had been part of the law since 2006, and some which had been there to begin with, i.e. five years ago.

The purpose of this article is to clarify whether the alarmist perception of the anti-extremist legislation is justified, and in particular, to review the amendments introduced in 2007.

The Federal Law on Combating Extremist Activity first came under strong criticism back in 2002 when it was adopted[2]. The main identified defect of this law was its excessively broad and vague description (we even stop short of calling it a definition) of extremist activity (= extremism) in conjunction with tough punishments for such activity. The term extremism was used in the law to include various types of conduct ranging from serious crimes, such as terrorism, to acts which did not warrant even administrative, let alone criminal, liability under the Code of Administrative Offenses. Nevertheless, an NGO or a mass media outlet could easily be closed if found by court to be engaging in such activity, or suspended in an out-of-court procedure up to six years, whereas an individual faced up to five years of prison under art. 280 of the Criminal Code for publicly encouraging any type of extremist activity, even though the activity in question may not be a crime.

The authorities claimed in 2002 that the new legislation was necessary, in particular, to combat fascism, meaning the activity of racist and ultra-nationalist groups and organizations. The next several years revealed no substantial progress in suppressing such activity, and whenever it was effectively suppressed, the pre-existing Criminal Code provisions, rather than the anti-extremist novelties, had been applied. At the same time, the first cases of abusive anti-extremist enforcement were reported, where the new legislation was applied to impose unlawful restrictions on civil rights and liberties[3]. Since 2005, the latter trend was growing strong, and the amended definition of extremism introduced in the summer of 2006 confirmed its intended use primarily against political opposition[4].

Indeed, it was observed throughout 2006 and 2007 that the anti-extremist legislation was being enforced in a rather ambivalent manner: the occurrence of both legitimate and illegitimate enforcement was growing[5].

After the 2006 amendments, one could expect subsequent changes to be even worse and more dangerous. Indeed, in February, a legislative proposal was launched to toughen the anti-extremist legislation. The proposal was initiated on 28 February 2007 by a group of Duma members: Nikolay Kovalyov, Nikolay Bezborodov and Mikhail Yemelyanov of the United Russia Party, LDPR parliamentary leader Igor Lebedev, and Alexander Chuyev of Fair Russia Party. The following are the main components of their proposal.

The authors argued that the concept of hate crime should be expanded and broadly integrated in the Criminal Code. At the time of the proposal hate crime was defined as a criminal offence motivated by any of the three types of hatred: racial, ethnic, and religious. The draft law would add three more types of hatred to the definition, namely political, ideological and social hatred.

However, this sloppily written draft was not intended to broaden the definition of hate motives throughout the Criminal Code, but only add an extended list of motives to those articles which had not provided for this qualifying circumstance, and impose very tough punishments - long prison terms only - for aggravated offenses under those articles. They had proposed adding new clauses to articles 212 (riots; between 10 and 12 years of prison); 213 (:hooliganism;; increase maximum prison terms from 5 to 6 years under part 1, and from 7 to 10 years under part 2 for crimes involving a group and committed by prior agreement); 243 (causing destruction or damage to historical or cultural monuments; increase prison terms from 2 to 3 years under part 1; from 5 to 8 years under part 2). In art. 244 (abuse of corpses and burial places), which already included a hate motive (p. "b', part 2), the authors proposed increasing the maximum prison term for aggravated offenses from 3 to 5 years.

It is important to emphasize that the above proposal followed the trend observed back in end-2006, when the Duma adopted in two readings a draft law on adding the hate motive to art. 214 (vandalism) [6]. The adoption of this amendment stalled in early 2007, but in May the President signed it into law, and art. 214 was amended by a second part which read "the same acts involving a group or motivated by ideological, political, racial, ethnic, or religious hatred or animosity,; punishable by up to three years of prison. In the third reading, the above proposal to increase the maximum punishment under art. 244 part 2 of the Criminal Code was adopted as part of the said draft law.

It has also been proposed to amend the title of art 280 (public appeals to extremist activity) by adding :and public justification of such activity,; increasing the maximum punishment from 5 to 6 years. :Justification,; however, was understood in a narrow sense, namely: :In this article, public justification of extremist activity must be interpreted as a public statement to the effect that extremist activity is appropriate, deserves support and should be emulated; (similarly to the note on the "justification of terrorism" in the relevant article).

It had also been proposed to increase the maximum punishments under art. 282, part 2 of the Criminal Code (incitement to hatred and animosity as well as denial of human dignity) from 5 to 6 years of prison; under art. 282-1 (:organization of an extremist community;, but effectively also involvement in such a community) up to 8 years; under art. 282-2 ("organization of activities of an extremist organization,; i.e. involvement in a group which has been banned or liquidated for extremism) up to six years of prison.

Most of the above proposals to toughen maximum punishments made no sense, because Russian courts had never - before or after the proposals - meted out maximum sentences under the mentioned articles where they recognized the hate motive; in other words, they had never opted for the toughest punishment already available under the Criminal Code, therefore making even tougher punishments available to them made no sense (except, of course, self-promotion of the draft law authors). The same applied to the adopted amendment increasing the maximum punishment under art. 244: no offender has ever been sentenced to a long prison term for vandalizing monuments or graves.

The initiative to expand the definition of hate motives and apply them to articles 212 and (earlier) 214 had apparently been intended to discourage potential "street protesters" - who else would engage in riots and vandalism (such as sticking leaflets or painting graffiti on the walls of buildings) out of political or ideological hatred? Of course, tougher punishments could have been meted out to political activists of any other orientation (racist, leftist, rightist, whatever), and to street gangs involved in local riots, if the authorities recognized ethnic or ideological sentiments fueling such acts.

In fact, the draft had contained some reasonable proposals. (Unfortunately, it does happen that reasonable initiatives get lost among unreasonable ones and rejected together with the latter. This is what had happened a year before to a package of anti-extremist amendments, mainly designed to regulate the Internet and, luckily, rejected by the Duma, but containing a very useful idea to impose fines on mass media for extremist publications. In contrast, the effective system whereby a media outlet may only be closed for non-compliance, without any intermediate or lesser sanctions, appears to be rather unhealthy.)

The MPs who launched the draft pointed out a gap in the Law on Combating Extremist Activity, which had introduced a notion of extremist materials, but failed to establish liability for their dissemination. They proposed adding a relevant provision to the Code of Administrative Offenses, but only with regard to materials :which encourage serious or very serious offences." The draft law would also have made it mandatory to publish lists of organizations banned or liquidated for extremism. Indeed, the original law established liability for any collaboration with (not to mention participation in) such groups, but failed to make it clear how the lay public may know which groups are banned.

On 16 May, the Duma, despite the negative opinions of its Committee on Civil, Criminal, Commercial, and Procedural Law and its Legal Department, adopted the draft law in the first reading[7]. A month later, however, a scheduled second reading of the draft was suddenly canceled, and later the draft was reintroduced with modifications so extensive as to transform it into a new text altogether. Such a radical revision suggested that the aforementioned MPs had not been the real authors of the draft.

The new version of the draft was adopted in the second reading on 4 July; then, literally after a couple of days it passed the third reading, was promptly endorsed by the Federation Council, signed by the President, and came into force on 12 August.

To reiterate, the adopted law differs so much from the original version described above that it makes more sense to describe the changes it introduced regardless of the amendments proposed in the first reading as described above.

The main change made by the new law was a drastic reformulation of the :hate crime; definition. It was identified with the concept of :extremist crime; which emerged in 2002, but was not properly described in the law at the time. The anti-extremist legislation clearly targeted not only those offences which were motivated by racial, ethnic or religious hatred, but also politically-motivated ones in a very broad sense. But you could only infer it from the text of the law; it was not stated explicitly.

The authors of the (virtually) new draft law found a solution. They radically changed the definition of hate motives in the Criminal Code. In addition to :racial, ethnic or religious hatred or animosity,; they mentioned political, ideological, as well as hatred or animosity against a certain social group[8].; This wording is now present in art. 63 of the Criminal Code which lists the aggravating circumstances applicable to all crimes. The same wording is used in the articles where the hate motive is applied as an aggravating circumstance. And again, the same wording is used in the definition of :extremist crime; as explained in the added note to art. 282-1 of the Criminal Code.

It had been felt - and even discussed - for a long time that the list of hate motives should be expanded: for example, neo-Nazi murders of anti-fascists were clearly motivated by political or ideological hatred, but formerly there was no possibility to take this into account in meting out punishment; the same applied to :ideologically-motivated; killings of homeless people or attacks against gay men.

On the other hand, making political and ideological hatred an aggravating circumstance means tougher punishments even for minor offences committed during any political or other public events, because virtually any event has an opponent strongly disliked by the participants. Arguments in support of tougher punishments are not mentioned today - or if they are, such arguments are not convincing. On the contrary, in Russia today, the public and political spheres are not so much affected by politically motivated killings, robberies, hooliganism, riots and vandalism - deplorable as such incidents are - but rather by excessive administrative pressure and over-regulation.

The motive of hatred against a social group is particularly prone to abuse, because neither academics, nor lay citizens share a generally accepted idea of what is a social group, and the law does not provide a definition either. Since the end of 2003, the motive of hatred against members of any social group has been part of art. 282 of the Criminal Code, and the only two convictions taking into account this circumstance confirmed the worst expectations. In the case of Boris Stomakhin convicted on 20 November 2006[9] (in my opinion, his sentence was excessively tough, but legitimate, even though some people will disagree), the defendant was found guilty of incitement to hatred against the Russian Army as a social group. In the case of dissenting pagan priest of the Mari people Vitaly Tanakov, the social group in question was the :government of the Mari El Republic." A new indictment is now pending in the case of Savva Terentyev in Syktyvkar, where the :social group; in question is the police.

It is not clear yet how the new doctrine of hate crime will be applied in practice; the law enforcement system is slow in adopting such innovations. In any case, the expanded wording in art. 63 of the Criminal Code does not make a substantial difference in practice: so far, very few, if any, judgments have referred to this article in hate crime cases. The prosecutor refers to the hate motive de-facto only if it is a qualifying circumstance. Therefore, it is important to know which articles provide for this qualifying circumstance.

The amendments increased the number of such articles from 6 to 11. When the Russian Criminal Code came into effect in 1997, there were five such articles: art. 105 (murder), 111 (intentional infliction of serious damage to health), 112 (intentional infliction of moderate damage to health), 117 (torment), and 244 (abuse of corpses and burial places). As noted above, in 2007 a clause on hate motives was added to art. 214 (vandalism), where this motive was interpreted broadly to begin with. Currently, the hate motive has been added to five more articles: art. 115 (intentional infliction of minor damage to health), 116 (beating), 119 (threat to kill or to cause serious damage to health), 150 (involvement of minors in crime), and 213 (hooliganism).

The amended art. 213 deserves a special mention. Before the amendments, i.e. before August 2007, the Russian law recognized two clearly distinct types of :hooliganism.; The first included petty public order offenses punishable under art. 20.1 of the Russian Code of Administrative Offences: :Petty hooliganism, i. e. using obscene language in public places, street molestation, and other acts explicitly violating public order and security.; The second type is a serious offence punishable under the Criminal Code, i.e. public order offences committed :using weapons or objects employed as weapons.; [10] The new wording suggests that hooliganism either means such serious offences (p.'a') or :a gross violation of public order" without any weapons, but with the hate motive (p. "b'). Will there be any difference in treatment with regard to :gross violations of public order reflecting explicit disrespect of the public" punishable under the Criminal Code, and :actions explicitly violating public order and security; punishable under the Code of Administrative Offenses? We have doubts about it. Apparently, now a petty public order offence, as long as it is aggravated by political, etc. hatred, will potentially be punishable under art. 213 of the Criminal Code, and the punishment may be tough indeed: up to 5 years of prison, or up to 7 years, if a group or obstruction of police are involved.

The first thing that comes to mind is, of course, the fact that oppositional political actions can be easily interpreted as :gross violations of public order.; But individuals may be affected as well. We should emphasize that even though an individual offender uses obscene language in a public place or otherwise misbehaves out of some unconstitutional motive, including, e.g. racial hatred, the tough punishment provided for such offences will be disproportional to the public danger posed by his actions. It is unlikely that all :ideologically-motivated hooligans" will face equally tough punishments; therefore, the new wording of art. 213 of the Criminal Code creates a new instrument of selective enforcement.

The amendments have substantially changed the definition of extremist activity for the better, at least from the juridical and technical perspective.

Firstly, this definition now includes all hate crimes in a new, broader sense (as described in art. 63 of the Criminal Code). This development finally established on paper what had been intuitively felt since 2002, namely that the anti-extremist legislation was designed to suppress any crimes or offences of :ideological; nature, including, but not limited to those traditionally described as hate crime.

Secondly, a few elements were deleted from the definition. We can assume that some of them were found too vague, some others redundant, and still others related to other spheres of regulation. I can only add in brackets the main reasons why, I believe, they were deleted. The following are the elements deleted from the definition of extremism (some of them had been added just a year before):

- undermining the security of the Russian Federation (the wording had been too vague);

- seizure or usurpation of power (generally, such acts have nothing to do with political or other hatred; as to a hypothetical political insurgency, its participants, in all probability, will be punished in some other manner);

- debasement of national dignity (this lame wording referring to an undefined type of dignity was deleted from art. 282 of the Criminal Code a long time ago);

- implementation of riots, hooliganism and vandalism motivated by ideological, political, racial ethnic or religious hatred or animosity, and also motivated by hatred or animosity towards any social group (absorbed by the general definition of hate crimes);

- establishment of illegal armed formations (effectively treated under separate, anti-terrorist legislation);

- attempt at the life of a government official or public figure with the purpose of terminating this person's official or political activity, or as revenge for such activity (same as above);

- use of violence against a representative of government authority, or threats to use violence against a representative of government authority or his family in connection with his exercise of official duties (same as above; the absurd, but effective for a year before it was deleted, clause whereby any use of violence against any official or police officers under any circumstances had been considered extremism);

It is also of high importance that "justification or excuse of extremist activity; is no longer interpreted as extremism. A clause which potentially extended the definition of :extremist; to include anyone who tried to defend someone found to be an extremist, was also deleted.

There were some other improvements:

- the provision against unequal treatment was aligned even more with art. 136 of the Criminal Code ("discrimination"), even though it remains clearly redundant in the anti-extremist law;

- the provision on :hindrances to legitimate activity of government authorities; was extended to include :local self-government, ... voluntary and religious associations, and other organizations;; i.e. now this provision protects other people as well as government bureaucrats;

- extremism in the context of elections is not limited to interference with the election committees, but includes interference with lay citizens.

On the other hand, one of the vaguest elements of the definition concerning "incitement to hatred; against groups sharing certain characteristics lost a clause linking "incitement to social hatred" to the use or threat of violence. The excessive vagueness of the phrase may result in official abuse in the absence of this reservation.

However, incitement to political or ideological hatred was not included in the definition of extremism - just as they were not included in art. 282 of the Criminal Code - i.e. political and ideological criticism per se is not considered a crime, nor is it considered extremism.

A few other important changes are worth mentioning. To begin with negative ones, we would like to point out, firstly, the requirement, under threat of a fine (art. 13.15 of the Code of Administrative Offenses), to indicate that a certain organization has been found by court to be extremist every time such an organization is mentioned. Secondly, broader powers are given to authorities to tap phone conversations of people suspected of, or charged with, serious or very serious crimes, to include those suspected of moderately serious crimes (i.e. the majority of offences, including extremist offences). Notably, a similar provision in art. 8 of the Law on Detective Operations also allows tapping the phones of :persons who may possess information on the said crimes; - i. e. a very broad range of people.

On the other hand, provocation has been expressly forbidden in criminal investigation of extremist or any other cases. The law makes it obligatory to publish an official list of organizations banned or liquidated for extremist activity, but fails to indicate who is responsible for such publication, so no such lists have been published yet[11].

Dissemination of materials found by court to be extremist is now a punishable administrative offence (art. 20.29 of the Code of Administrative Offenses) only if such dissemination is :massive" - even though the Code of Administrative Offenses fails to explain what "massive" means. Incidentally, since July 2007, Rossiiskaya Gazeta has published a federal list of extremist materials, enabling the enforcement of this article. Formerly, it was difficult to prove that an individual may have been aware of the judicial ban on certain materials; currently a list of banned materials is relatively accessible (from Rossiiskaya Gazeta). The official publication is incomplete, but art. 20.29 of the Code of Administrative Offenses refers to the list published in the paper, rather than the actual list of judgments (so some of the bans are ineffective as long as they are unpublished[12]).

It is important to note that punishments for this offence, besides an arrest of up to 15 days, fine, and confiscation of equipment and materials, now also include a suspension of the organization for up to 90 days (of course, if the offender is an organization, rather than an individual). Apparently, a mass media outlet may be held liable as an organization (legal entity, as the law says).

This offence, alongside some others, also warrants a restriction of the passive electoral right by art. 4 of the Federal Law on Main Guarantees of Election Rights and the Right to Referendum in the Russian Federation (and similar articles of the laws on Presidential and State Duma elections), adding to the substantial restrictions imposed by the 2006 amendments[13].

Generally, the 2007 amendments have resulted in qualitative improvement of the :extremist activity; definition. Even though many inconsistencies and defects remain, now the law is much more applicable and contains fewer provisions likely to impose inappropriate restrictions on civil rights and liberties.

However, the notion of "extremism" has now completely absorbed and diluted the notion of :hate crime; which it was originally intended to complement. Given that until now the reliance on suppressing :extremism; has been associated mainly with abusive enforcement, after the 2007 amendments one can only expect more of the same.

But, of course, it is highly unlikely that the anti-extremist enforcement may be used for large-scale political repression. Firstly, the law enforcement system' inertia will prevent it; secondly, and more importantly, the anti-extremist legislation is designed for selective enforcement, and the experience reveals that it is likely be applied to intimidate, rather than to suppress[14].

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[1] Issue 110 (Special) 2007. 11 December. The project is implemented by the Center for the Development of Democracy and Human Rights (http://www.demokratia.ru/?content=archive) and the Human Rights Institute (http://www.hrights.ru/laws.htm). The newsletter editorial board: Valentin Gefter, Yury Dzhibladze, Lev Levinson, Project manager: Yevgenia Zusman.

[2] See earlier (and different) criticism of this law in: Lev Levinson. Extremism Will Be Fought in Stalin's Manner. The Russian Bulletin on Human Rights. 2002. № 16, A. Verkhovsky. The State vs. Radical Nationalism. Dos and Don'ts. M.: 2002. P. 105-118.

[3] Alexander Verkhovsky, Galina Kozhevnikova. Three years of opposition // Price of Hatred. Nationalism in Russia and efforts to counteract racist crime. M.: SOVA Center, 2005. P. 111-129.

[4] At the time, the amendments were criticized by human rights defenders even before oppositional politicians. The Russian human rights defenders express serious concern over the new and dangerous amendment of the anti-extremist legislation. // SOVA Center. Nationalism and Xenophobia. 2006. 29 June (http://xeno.sova-center.ru/29481C8/78BB347). See also: A. Verkhovsky The concept of :extremism; is dangerously expanded. // Ibid. 2007. 28 June (http://xeno.sova-center.ru/29481C8/78A4BA5); Same author. The anti-extremist amendments have been adopted in the third reading.

Little has changed // Ibid. 2007. 8 July (http://xeno.sova-center.ru/29481C8/7977935); Lev Levinson. On defamation of the political system // Lawmaking in the State Duma: a Human Rights Analysis. 2006. 10 November. № 104.

[5] See details of the legislation, its amendment and enforcement in: A. Verkhovsky. Anti-Extremist Legislation and Its Enforcement // SOVA Center. Nationalism and Xenophobia. 2007. 10 September (http://xeno.sova-center.ru/29481C8/9CCB151).

[6] See comment in: Lev Levinson. Concern for Young People // Lawmaking in the State Duma: a Human Rights Analysis. 2007. 23 January. № 107.

[7] The opinions are published in: State Duma members seek to toughen punishment for extremism // SOVA Center. Nationalism and Xenophobia. 2007. 16 May (http://xeno.sova-center.ru/45A2A1E/932B888).

[8] In the Anglo-Saxon legal tradition, hate crime is defined as a crime where the victim is targeted for his/her real or assumed association with a certain group: ethnic, religious, gender, etc. In contrast, in the Russian legal tradition, what matters is the offender's motive, rather than their choice of victim. The idea of broadening the scope of hate motives has been raised since a long time in debates about extremism, and finally this idea has materialized.

[9] Se the full text of his indictment and sentence in: Boris Stomakhin's Sentence // Ibid. 2006. 30 November (http://xeno.sova-center.ru/4DF39C9/85671E4).

[10] Since December 2003. Before that date, the wording of art.213 of the Criminal Code had been broader, but still included :use or threat of violence against individuals, as well as causing destruction or damage to another person's property.;

[11] See a list of known judgments in: A List of Organizations Found by Russian Courts to be Extremist // Ibid. 2007. 2 November (http://xeno.sova-center.ru/4DF39C9/A12DD8E).

[12] Apparently, due to forgetfulness, even though we cannot be sure. Fortunately, the published list does not yet contain the banned books by Turkish theologian Said Nursi.

[13] Suffice it to say that a candidate may be banned from elections for :extremist pronouncements; made up to four years before the elections (the rule applies only to statements made after the year 2006).

[14] See details in Excessive and Unfounded Actions against Extremism on SOVA Center's website (http://xeno.sova-center.ru/89CCE27). Of course, suppression is also possible. As an example, one may refer to massive confiscations of newspapers, leaflets and other materials on a mere suspicion of extremism (first, from The Other Russia, and then from SPS). But these incidents may be described as abuse of the law, rather than its enforcement.