A Unique Reform
In January 2019, an amendment to Article 282 of the Criminal Code (incitement of hatred or humiliation of dignity based on group characteristics) came into effect. This amendment stipulates that in the absence of aggravating circumstances, a first-time offense of this kind will be treated as an administrative misdemeanor, not as a crime. Only a repeat offense committed within a year would be classified as a crime.
In the period since the adoption of the anti-extremist legislation, this amendment has become well known as a unique case of the softening of the Putin administration’s repressive policies. Indeed, such softening is so unusual that this case demands a thoughtful interpretation.
The amendment discussed here has already generated debate among Russian human rights activists. Before the modification of the amendment to Article 282, developments had been so grim that some experts had begun talking of a “re-Stalinization of repressive policy,” as did Alexandra Krylenkova on the basis of her analysis of pertinent statistics.
On the one hand, the modification in question inspires cautious optimism. But on the other hand, the procedure detailed in this amendment fuels fears of a shift toward larger-scale repressions. Lev Ponomaryov has already expressed concern about such an eventuality in light of existing enforcement practices for other “politicized” articles of the Criminal Code that prescribe a similar procedure (a softer punishment for a first-time offense and a harsher one for a repeat offense). Of course, one should also keep in mind that the current softening applies only to a single element of the anti-extremist legislation and by no means undermines the law’s general “repressive” quality.
The anti-extremist policy as designed back in 2002-2007 has been a powerful instrument for counteracting three main activities:
♦ ideologically motivated violence, ranging from racist to anti-government acts (formally, this also includes terrorism, but in fact the Russian law provides for special anti-terrorism measures);
♦ broad-range instigation of agitation; in practice, one can observe a special focus on certain ideological segments, first and foremost the ultra-right and secondarily radical Islamists; and
♦ large or small organizations and groups engaged in the above-listed activities, whether practicing large-scale violence or restricted to regular gatherings.
All three policy goals are generally in accord with the constitution. In my earlier article on anti-extremist policy, I argued that, in effect, the anti-extremist policy mostly targets essentially unconstitutional activities ranging from the very dangerous to the insignificant, but is also used to curb certain activities that should theoretically be protected by the constitution.
The anti-extremist legislation has introduced progressive elements, such as the concept of hate crime, but at the same time it has created the enabling conditions for essentially archaic persecution of religious minorities. On the whole, the anti-extremist legislation is a fairly broad, flexible toolkit well adapted to legal abuse; it is a striking example of what, early in Putin’s tenure, was referred to as the “dictatorship of the law.”All three policy goals are generally in accord with the constitution. In my earlier article on anti-extremist policy, I argued that, in effect, the anti-extremist policy mostly targets essentially unconstitutional activities ranging from the very dangerous to the insignificant, but is also used to curb certain activities that should theoretically be protected by the constitution.
The current modification is the result of an unexpectedly frank discussion of the abuse of anti-extremist legislation that unfolded in the Duma and other official venues in the second half of 2018. However, the suggestions made by the Presidential Council on Civil Society and Human Rights—which were much more substantive, but still not radical—were rejected.
This raises the question of why the current modification was made at all. As I wrote earlier, I believe that the main reason was that the enforcement of Article 282 failed to serve as a political deterrent. More specifically, it did not make it clear—either to Russian citizens or to oppositionists of varying degrees of radicalism—what kind of activities the government would not tolerate.
Firstly, historically, anti-extremist policy was directed primarily against nationalists—or rather, against radical Russian nationalists—but that movement has been declining rapidly since the beginning of the war in Ukraine. Secondly, from a public perspective, Article 282 has merged with the very concept of anti-extremism; the campaign against this article was originally staged by the ultra-right (their rhyming slogan was “To Russians, a Russian Moscow. Cancel 282!” (Russkim russkaia Moskva/Otmenit’ dva vosem’ dva!), which was later adopted by the liberal opposition). Eventually, even pro-Kremlin activists came to reject this article, creating an amazing consensus that was hard to ignore. It is possible that other, nonpolitical causes also played a role. For instance, the European Court for Human Rights recently delivered its first, highly critical verdicts on anti-extremist cases.
Criminal Prosecution of Public Speech
Figure 1, based on Supreme Court records, shows an unprecedented decline from mid-2017 in the number of sentences in two out of the three main categories of “crimes of extremist nature” (the third category, hate crimes, showed a slight rise after many years of decline).
In this figure, “speech” crimes include such offenses as incitement of hatred (Article 282); calls for extremism (280), terrorist acts (205.2), separatism (280.1), revisions of history (354.1), and offense of religious feelings (148.1 and 148.2). “Group participation” includes participation with extremist (282.1) or terrorist (205.4) groups and continuing the activities of a banned extremist (282.2) or terrorist (205.5) organization. Only the primary charge—that is, the gravest of the charges brought against the accused—is taken into account.
Figure 1. Decline in the number of sentences for “crimes of extremist nature”
In early 2019, the decline was even more pronounced. The General Procuracy statistics on the number of “extremist crimes” for which proceedings were opened and of those that were sent to court confirm this trend. In 2017, about 127 such cases were opened per month, in 2018 this number decreased to 105, and in each of the first two months of 2019, it stood at 41.
In 2017, 92 cases were sent to court each month. In 2018, this number declined to 80, and in January-February 2019 it was just 29 per month. Considering that the investigation process in Russia usually takes a long time, it can be suggested that the decline registered in the first six months of 2018 in fact implies that essential decisions had been made to scale back prosecutions as far back as fall 2017, or even before that—although relevant discussions did not enter the public sphere until Putin publicly agreed, in his call-in show in June 2018, that overzealous prosecution “for speech” was “absurd.”
That statement was followed by a presidential bill and a highly positive Supreme Court ruling issued on September 20, 2018, related to the practical enforcement of Article 282. The law-enforcement bodies correctly understood this “signal from above.” These days, in his report to the Federation Council, the Prosecutor General brags about the decline in the number of “extremist speech cases” cases, not about the rise thereof.
However, not all prosecutions of “extremist crimes” have gone down. In particular, there has been a rise in prosecutions under two of the articles regulating “speech”: Articles 205.2 and 282.2. At this point, it is not so easy to explain the contrast in these dynamics.
A noticeable rise in the number of prosecutions based on 205.2 is probably explicable by the fact that proceedings have been instigated more frequently against inmates engaged in radical Islamist agitation. Indeed, that prosecutions under these two articles have risen at the same time as prosecutions under Article 282 as a whole have noticeably declined may also suggest another interpretation: that in terms of inter-agency competition, the FSB has outstripped the Anti-Extremism Centers of the Interior Ministry. Yet there has been also a decline in prosections based on Article 280 (public calls for extremist activities), which has historically been the domain of the FSB. Another important observation is that the number of sentences under Article 280 decreased only during the first six months of 2018, which may confirm the hypothesis that cases that would previously have been prosecuted under Article 282 were reclassified to 280 (and perhaps also to 205.2) in advance of the discussed decriminalization.
Prosecution of “Extremist Groups”
In recent years, and especially in recent months, the prosecution of organizations that the authorities deem dangerous has become noticeably more frequent. The primary role of the FSB in this trend is beyond dispute. In terms of sheer numbers, cases related to participation in organizations that have been banned are the most numerous (Criminal Code Article 205.5 for terrorist organizations and Article 282.2 for extremist ones).
The nationwide campaign against Jehovah’s Witnesses, who have been labeled as extremists and banned, is also shocking in its scale. Since April 2018, when prosecution became truly systematic, more than 170 individuals have been accused or suspected of participating in a banned organization. A founding member of the Jehovah’s Witnesses in Russia has been sentenced to a six-year jail term, a grim prospect for those currently under investigation.At the SOVA Center, we have also long monitored cases against banned Muslim movements ranging from terrorist organizations to innocuous but “non-traditional” religious groups. Recently, new prosecutions of the radical Islamist party Hizb ut-Tahrir have appeared in law enforcement statistics. The latter, earlier mistakenly banned as a terrorist organization, has long been the primary target of prosecutions under Articles 282.2 and 205.5 (since the latter was added to the Criminal Code). In recent years, it has faced especially massive cases (20+ defendants) and increasingly harsh sentences (up to 24 years in jail).
Sentences harsher than in the past have also been handed down to followers of Tablighi Jamaat and the adherents of the teachings of Said Nursi—but as they are prosecuted less often, the cases barely attract public attention.
Meanwhile, the prosecution of two small political groups—Novoe Velichie (The New Greatness), with vague political leanings, and the anarchist Set’ (Network)—has raised serious public concerns. Both have been charged with planning violent anti-government acts; in both cases, it is fair to say that the charges are not entirely baseless but are certainly largely overblown.
The cases against both groups were opened immediately following the emergence of a much larger-scale movement, Artpodgotovka, the nationwide fan club of Vyacheslav Maltsev, a national populist who called for staging a revolution on November 5, 2017. Ahead of the scheduled revolution, the government banned Artpodgotovka; Maltsev fled to France but continued to incite the movement’s members from there, remaining vague on whether or not he was calling for violent action. In the end, of course, no revolution materialized. What ensued instead was a range of criminal cases based on more or less credible instances of activists storing or using weapons or Molotov cocktails. Some elements of provocation are also likely to have been present in these cases, and overall they are undoubtedly based on an exaggerated threat. (The cases of various groups belonging to Artpodgotovka, The New Greatness, and Network have not yet been concluded. This may explain the absence of detailed publications offering a balanced analysis of these groups’ activities.)The New Greatness is noteworthy because this small group (about a dozen members) has been infiltrated by at least three agents from three different law-enforcement agencies (the FSB, the police Anti-Extremist Unit, and Rosgvardia). Without those agents’ operation, the group would have likely fallen apart. The prosecution of Network members has been especially shocking because of the unconcealed use of torture against almost all those under investigation, which also implies that the prosecution found itself facing an acute shortage of substantial evidence.
It might have been expected that the large-scale Artpodgotovka affair would generate prosecution of smaller-scale groups. After all, there have always been and will always be groups of people who like to chat about revolution and even dabble in “underground” activities. The Russian government authorities are always on high alert with respect to even remotely potential threats; they cannot ignore them, especially after Maltsev’s activities. But it is also true that up until recently law enforcement used to avoid opening criminal proceedings, instead resorting to various ways of nipping such groups in the bud.
Apparently, the government grew gravely concerned after the Maidan protest in Kiev, and these fears were exacerbated by two factors. The first had to do with the return home of thousands of Russians after fighting in the Donetsk and Luhansk “people’s republics” and their disappointment with the course and results of the war. The other factor had to do with the mass, if unstructured, protests organized by Aleksey Navalny.
The cases of The New Greatness and Network could have been the beginning of a long series of similar prosecutions. However, this did not come to pass. The triumph of the provocateurs’ operation in the case of The New Greatness was not replicated elsewhere; law enforcement showed restraint.
Under most circumstances, the Network case, too, would not have been replicated. Yet on October 31, anarchist Mikhail Zhlobitsky blew up himself in the outer office of the FSB’s building in Arkhangelsk. This episode gave rise to a series of prosecutions of anarchists across Russia.
It is hard to say at this point how far such prosecutions may go, but the FSB appears to be geared up for large-scale results, even though anarchists’ militant activity peaked during the early stages of the 2012 mass protests and has been on the decline ever since. Today, it is impossible to predict how active the FSB will be in exposing (or “constructing”) and prosecuting revolution-minded groups, but there is no doubt that such investigations will continue.
Soft Measures or “Prevention”
Another trend in anti-extremist policy is also worth noting: administrative measures taken against a range of misdemeanors, from minor administrative offenses classified as “extremist” or “extremism-related” to increasingly harsh regulations of the Internet. On the whole, the government regards these measures as preventive rather than repressive. It is essential that they target a far broader set of actors than just banned or underground groups and “extremist” offenders.
Figure 2 shows the dynamics of the two types of prosecutions. Those under the two major anti-extremist articles of the administrative code are in red (it is impossible to single out anti-extremist cases based on other administrative articles, but the number of such cases is insignificant). Those that are criminal prosecutions for extremist speech (counting each substantive or secondary charge individually) are in blue.
Figure 2. Comparative dynamics of administrative and criminal enforcement
One can see that the numbers differ by an order of magnitude, and last year the trends in administrative and criminal prosecution were diametrically opposed. Not to mention that the increasingly harsh constraints on Internet browsing are affecting everyone. It is true that the increase in administrative penalties has not been very significant in the past two years; this has to do with the less frequent enforcement of the scandalous Article 20.3 on banned symbols; the abuse of that article, which was applied regardless of the context in which banned symbols were used, caused exasperation and even derision among the general public. On the whole, administrative penalties have been noticeably fewer in the second half of 2018 than in the first half.
It should be emphasized that the “Klishas’ laws” are the first ones in Russia to impose punishment for speech online. One of them provides for the imposition of fines and other penalties for expressing disrespect in “indecent form” toward the state and its symbols, as well as toward government agencies and society as a whole; the other makes it a punishable offense to disseminate false rumors that might lead to unrest or other grave consequences.It would be premature, however, to talk about a turning point in law enforcement. The reform of Article 282—that is, the emergence of its “younger sister,” Article 20.3.1. of the Administrative Code—is sure to lead to a rising number of administrative penalties. In addition to anti-extremist norms, the Duma passed two new pieces of legislation (commonly referred to as “Klishas’ laws”) to create new administrative offenses that directly constrained criticism of the government.
It is hard to say how broadly these new legal norms will be enforced, but there is no doubt that they will be enforced, and their vague language will allow for very broad enforcement.
Diversification of Repressive Policy
We have outlined three types of repressive policy based on the use of anti-extremist and related norms, each of which has its own dynamic. Let us recap them in descending order of the frequency with which they are applied.
Administrative measures are used most frequently. They can target basically any active citizen and also, of course, random individuals. Today, such violations typically carry small fines (under 3,000 rubles—roughly $50), but may also reach tens of thousands of rubles, as in the case of the “Klishas’ laws.” The associated penalties also include restrictions on future actions, such as a temporary ban on participation in elections.
As such, the mechanism that softens punishment for a first-time offense and makes only a repeat violation a criminal offense will prevent the expansion of criminal repressions under Article 282. Criminal prosecution for public speech will thus undoubtedly decline.These repressive measures are applied fairly broadly, although the total number of cases has largely stabilized. The government’s goal here is likely to pressure all opposition-minded circles except for the core of activists and radical groups that are unlikely to be deterred by these measures.
It cannot be ruled out, however, that some public speech that previously fell under Article 282 will be reclassified under the above-mentioned Articles 205.2, 280 or 148.1 (“offense of religious believers’ feelings”), thereby compensating for the abrupt decline that we have witnessed in recent months in the number of proceedings opened (see the General Procuracy records cited above).
The enforcement of these legal instruments may bring us back to the situation observed about five years ago, when they were used against a range of genuine activists, mostly radical ones, and not on a random basis, such as against opposition-minded authors of social network posts.
Since the actual Criminal Code articles remain unchanged, they are unlikely to be extended to other political targets. This means that pressure will primarily be applied to nationalists and Islamists. It should be noted, however, that the former group has been all but destroyed, and the latter has been the target of harsher measures under articles other than 282. Left-wing and liberal opposition and non-political movements will continue to be repressed, but these repressions will rely on instruments other than the anti-extremist legislation.
From a political perspective, as opposed to a legal one, such an approach may look rational: finally, the government seems to be explicitly indicating the “red line” beyond which violators will face not just problems but real troubles. Finally, the authorities will continue to pursue a harsh policy against groups and movements deemed to be dangerous and subversive. It is in this sphere that the government resorts to harsh antiterrorist articles to justify its actions and that reports of torture are more common. The government makes it clear that where it sees a real threat, rather than a potential one, the policy will aim at destruction, not deterrence.
The implementation of this rational choice, however, has turned out to be far from perfect. For instance, Hizb ut-Tahrir, which has been the target of the harshest persecution, may not enjoy universal affection among Muslims, but they nevertheless tend to be outraged by the fact that it has been unfairly labeled as “terrorist,” as well as by the absurdly harsh sentences handed down to its members.
Another example is Jehovah’s Witnesses. Russia has banned about 70 organizations deemed extremist—most of them comprised of radical nationalists—but more cases have been opened against the Jehovah’s Witnesses for continuing to operate while being a banned organization than have been opened against radical nationalist groups.
The above are just the most egregious examples of how crookedly this “true red line” is drawn. For its part, the government has been unwilling to correct its mistakes in this area—not just the most serious ones, such as the two mentioned above, but also less significant ones, such as the clearly fabricated New Greatness case, which lost in the court of public opinion.
What we see, however, is not a softening of antiextremist policy, but its diversification. From a legal perspective, this diversification—like the anti-extremist legislation as a whole—is questionable. From a political standpoint, as a tool of pressure against various opposition circles, it may be more effective than the practices of the past few years, though it is still too early to tell.It should be noted that the government will sometimes backtrack and soften its policy, as in the case of a 2018 crackdown against musicians popular among Russian youth: a large number of concerts were disrupted or banned, but eventually this senseless campaign was curbed.
It should be also noted that diversification is a challenge for the law-enforcement machine. It might simply fail to handle these diverse regulations, which would lead to confusion and destroy the complex message the government seeks to convey to the opposition segment of Russian society through the tripartite model described in this article. Finally, one should not forget that the government’s “repressive reflexes” have not gone away: the Kremlin stands ready to launch new repressive initiatives in response to any challenge, real or imagined. These initiatives are likely to undermine the newly designed policy.
