Lawmaking : The Practice of the European Court of Human Rights : Criminal Prosecution : Other Prosecution

The following brief review covers the most important legislative innovations and the law enforcement statistics in the period from January to August 2018. 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.

Lawmaking

In February 2018, the Supreme Court of Russia introduced in the State Duma a bill to amend the procedural codes; it has been adopted in the first reading in July. The bill includes changes to the procedures pertaining to the court cases on recognizing materials as extremist or recognizing information as banned. According to the Supreme Court’s proposal, these cases should be transferred from the civil to the administrative jurisdiction. The bill establishes a clear procedure for considering such cases. When considering a prosecutorial claim to recognize materials as extremist, a court is expected to involve persons, whose rights and legitimate interests may be affected by the court decision, in the proceedings. In addition, “in the event that a person, whose actions served as the reason for filing an administrative claim, has been identified,” the court will involve such a person as a defendant in the case and hold them responsible for the legal costs. If such a person has not been identified, the bill proposes involving an ombudsman – of the RF or of the subject of the Federation – “for giving an opinion” in the case. In addition, the court will be able to initiate “preliminary protective measures in the form of restricting access to extremist materials” in the course of the proceedings, and, if the claim is satisfied, the decision to ban these materials would go into effect immediately. Cases related to recognizing information as banned are to be treated in a similar way, but with mandatory participation from Roskomnadzor. This change will put an end to bans enacted without adversarial process.

In mid-February, Federation Council member Anton Belyakov introduced in the State Duma a draft law seeking to amend Article 20.3 of the Administrative Code, which covers propaganda and display of Nazi symbols and symbols of banned organizations. The bill proposes changing the title and wording of the article, so that it only pertains to public demonstration of Nazi symbols intended as propaganda prohibited by federal laws; it further proposes supplementing the article with a commentary worded in accordance with the prior proposal by the Ministry of Communications: “The provisions of this article do not apply to cases, in which Nazi attributes or symbols, or attributes or symbols similar to Nazi attributes or symbols to the degree of confusion, or attributes or symbols of extremist organizations, or other paraphernalia or symbols, for which propaganda is prohibited by the federal law, are used in works of science, literature or art, or for informational, training and educational purposes in the absence of signs of propaganda and/or justification of extremism.” SOVA Center repeatedly pointed out that the ban against any display of Nazi symbols, regardless of the context, was absurd and lead to inappropriate prosecution of citizens. Therefore, we welcome legislative initiatives that could potentially change the situation.

A new version of the legislative proposal by Deputies Sergei Boyarsky and Andrei Alshevskikh (United Russia) on combating illegal content on social networks was introduced in the State Duma in April and adopted in the first reading. The bill introduces a new concept of “public network owner.” Its insufficiently precise definition leaves room for interpretation – such networks can be understood to include not only social networks, but any network platform where users can leave comments and generally exchange messages – extending even to instant messengers, e-mail services, online games, and so on. The bill requires the owners of such “public networks,” whose audience in Russia exceeds one hundred thousand users, to open their representative offices on the Russian territory in order to address user complaints about illegal content (including materials aimed at promoting war or inciting hatred) and remove such content within 24 hours. In addition, “public networks” would be required to abstain from participation in dissemination of any legally protected secrets, extremist materials, propaganda of violence and cruelty, pornography, false information of social importance (the proposal never clarifies this concept), or even materials containing obscene language. The public networks would also have to observe restrictions stipulated by the legislation on elections and referendums. The network owners would have to provide Roskomnadzor with access to incoming complaints. The agency will thus be able to identify illegal information and require that the network owner eliminate violations within 24 hours; it can also order the illegal content removed upon request from authorized state agencies. If a network owner refuses to comply with these requests, Roskomnadzor will initiate blocking of the content in question, and, if the court determines that a “public network” refrained from blocking illegal content on two separate occasions, the network itself would also be blocked. In addition, the amendments to the Code of Administrative Offenses, adopted in the first reading, specify multimillion-dollar fines for non-compliance with the requirements of the proposed law. In our opinion, the Boyarsky and Alshevskikh amendments entail a total extension of the extra-judicial mechanism for blocking online information, impose on the owners of “public networks” an obligation to perform judicial functions and, de-facto, aim to use the owners as instruments of state censorship.

In late June, the president signed a law establishing the search engines’ responsibility for failure to fulfill their obligations to stop resolving the links to banned websites and for failure to connect to the information system containing data on blocked sites. The law introduces into the Code of Administrative Offenses a corresponding article (Article 13.40), which stipulates a fine of 5 thousand rubles for citizens who operate the offending search engines, 50 thousand rubles for officials, and 500 to 700 thousand rubles for legal entities. In addition, the article in the Code of Administrative Offences that covers failure to submit information to Roskomnadzor was augmented with a new part, which punishes hosting providers for failure to submit to Roskomnadzor, in a timely manner, the information identifying their clients who own anonymizing websites or VPN-services. A fine of 30 to 50 thousand rubles has been established for individuals, and of 50 to 300 thousand rubles for legal entities.

In early August, the Ministry of Communications issued for public discussion a draft amendment to the Federal Law on Information. The department proposes adding the information that contains “justification of and excuse for extremist and/or terrorist activities” to the types of information listed in the law as subject to extra-judicial blocking upon request of the Prosecutor General's Office. The proposed changes, in our opinion, can lead to further increase in abuses related to restricting freedom of speech. While “public justification of terrorism” is defined in the relevant Article 205.2 of the Criminal Code (as a public statement recognizing the ideology or practices of terrorism as correct, and in need of support and following), the concept of “justification of and excuse for extremist activity” is not defined in Russian legislation, opening the way for arbitrary interpretations. The Communication and Information Technologies Working Group of the Expert Council of the government of Russia, having reviewed the project, also expressed their concern with regard to its vague wording.

In June, Deputies Sergei Shargunov and Alexei Zhuravlyov introduced in the State Duma a package of two bills providing for decriminalization of some acts falling under the provisions of Article 282 Part 1 of the Criminal Code. The Deputies propose moving Part 1 of Article 282 (“actions aimed at incitement of hatred or enmity, as well as abasement of dignity of a person or a group of persons on the basis of sex, race, nationality, language, origin, attitude to religion, as well as affiliation to any social group, if these acts have been committed in public or with the use of mass media or information and telecommunication networks, including the Internet”) from the Criminal to the Administrative Code; for these purposes they suggest adding a new article to impose on citizens an administrative fine in the amount of 10 to 20 thousand rubles, or up to 100 hours of community service, or up to fifteen days of administrative arrest. The Criminal Code is assumed to retain only the second part of Article 282 (“the same actions committed with the use of violence or with the threat of its use and (or) by a person using their official position or by an organized group”); the punishment under it remains the same (up to six years of imprisonment). The government and the Supreme Court have responded negatively to the proposals by Shargunov and Zhuravlyov. In particular, the parliamentarians were informed of the formal inconsistency of their legislative proposal with the existing legislation and of the fact that their proposed wording of Article 282 in the Criminal Code omits the criteria of publicity and use of the Internet, thus leading to an “extension of the scope of the proposed criminal norm.” The probability of an approval for this bill is extremely low.

It should be noted, however, that the introduction of this bill has elicited some important consequences. In an effort to draw attention to his initiative, Deputy Shargunov raised the question of the absurdity of mass prosecution under Article 282 of the Criminal Code for posts on the Internet during the Direct Line with Vladimir Putin (an annual television program that gives an opportunity to address the President directly) in early June. In response, Putin instructed the All-Russia People’s Front to submit a report on the problem and said that the Supreme Court should be brought in to resolve it. This episode triggered a sharp increase in attention of the press and society toward the shortcomings of anti-extremist legislation and the abuses in the course of its enforcement. Proposals for the possible reforms of the relevant norms were heard during the consultations at the All-Russia People’s Front; they were expected to be presented to the president on September 15. In addition, the Presidential Human Rights Council prepared its own draft amendments. The Supreme Court, responding to Putin's statement, promised to come up with the new enforcement recommendations in this area, and kept its promise – already in September, that is, outside of our review period (our commentary on the new Supreme Court ruling can be found here).

It is not known whether all these actions and discussions could lead to a real change in anti-extremist policies, or its results would be limited to insignificant innovations for the purpose of “letting off steam” in the society. So far, we can only note that the growth in the number of criminal sentences for extremist statements has already slowed down significantly this year. The official Supreme Court data is not yet available, but our monitoring (admittedly incomplete) confirms this trend; the data from the Prosecutor General's Office also shows that growth of the overall numbers of those accused of crimes of extremist nature has stopped – although the latter category is wider than “extremist statements.” If the above is true, we can assume that the official discussion, which has begun in the summer, stems from a certain set of previously made decisions.

The Practice of the European Court of Human Rights

In 2018, the European Court of Human Rights continued to review complaints by Russian citizens against the application of anti-extremist laws and related legal norms. In the current situation, when the reform of this legislation came to the forefront, the decisions of the Strasbourg court could serve as a reference point for the implementation of reforms, change in law enforcement practices, and revision of certain previous court rulings.

The Court found Russia in violation of Article 10 of the European Convention on Human Rights on the right to freedom of expression in the following cases: the case of 24 National Bolsheviks who participated in the protest rally in the presidential administration in Moscow on December 14, 2004, and were subsequently convicted under Article 212 Part 2 of the Criminal Code for participating in a mass riot; the case of Boris Stomakhin, a journalist and publisher of the Radical Politics bulletin, convicted in 2006 under Articles 280 and 282 of the Criminal Code (appeals for extremist activities and incitement to hatred); the case of members of the Pussy Riot punk collective found guilty of hooliganism motivated by hatred under Article 213 Part 2 of the Criminal Code for their action in the Cathedral of Christ the Savior; the 2008 case of blogger Savva Terentyev, convicted under Article 282 for incitement to hatred towards the social group “police” on the basis of a LiveJournal post. According to ECHR, the Russian courts also violated Article 10 when considering the claims related to prohibition of peaceful Islamic literature – the works of Turkish theologian Said Nursi. In addition, the Court communicated at least 12 complaints related to using anti-extremist articles of the Criminal Code and of the Code of Administrative Offenses and to banning the organizations (in particular the local communities of Jehovah's Witnesses) as extremist. The ECHR issued a number of very relevant remarks concerning the methods of proof in these cases, use of expert opinions, determination of the proportionality of repressive measures, etc.

Criminal Prosecution

Now we shall proceed to review the enforcement of anti-extremist legislation and the cases of unjustified or insufficiently justified criminal prosecution which we learned about in the first 8 months of 2018.

We regard four verdicts against five people under Article 282 of the Criminal Code (incitement to hatred) as inappropriate. As a matter of clarification, this count does not include convictions for publication of xenophobic materials that did not lead to their mass distribution and thus can be regarded as minor acts presenting no significant danger for society and not meriting criminal prosecution. According to our estimates, such non-dangerous xenophobic propaganda accounts for at least half of all sentences handed down under Article 282, that is, for hundreds of court decisions per year. In this report, however, we focus only on the reported cases, in which the content of materials, in our opinion, did not correspond to the composition of Article 282, or for which this article was applicable only due to obvious flaws in its wording.

For example, in May 2018, the Sudak City Court sentenced activists Dmitry Dzhigalov and Oleg Semenov, who had fought against landfills and illegal construction in Crimea, to fines for humiliation of dignity of the Bulgarians (notably, Semenov had also spent six months in pre-trial detention). The prosecution was based on the fact of publication by Dzhigalov on his YouTube channel of a video, in which Semenov accused the Bulgarians of ingratitude toward the Russians for failing to invite a Russian delegation to their celebration of the anniversary of the country’s liberation from the Ottoman yoke during the Russian-Turkish war of 1877-1878. Obviously, the authorities were able to prosecute the social activists due to the fact that the Сriminal Сode included such a minor act as humiliation of dignity.

In April, student Mikhail Larionov from Velikiye Luki, received a 2-year suspended sentence for posting on Twitch.com a clip from a live stream of the multiplayer game World of Tanks. According to the investigation, in this video titled “Disrespect toward the Ukrainian people!” he “incited the public to aggressive actions against the Russians.” The gamer was de-facto punished for aggressive trolling of his adversaries in the game, typical among players. In this case, the court failed to take into account the very specific context of the statement, which, in fact, precluded the possibility of actual violence.

Five out of six defendants inappropriately convicted under Article 282 received sentences not related to real loss of liberty; the sixth one was sentenced to incarceration based on the aggregation of the charges brought against him under various articles of the Criminal Code.

In the period under review, the cases of two individuals, inappropriately charged under Article 282 of the Criminal Code, were terminated at the stage of investigation; one case was discontinued by the court due to the expiry of the period of limitation. However, at the same time, at least nine new cases against nine people were initiated without compelling reasons.

According to our data, no inappropriate sentences were issued under Article 354.1 (rehabilitation of Nazism) during the first eight months of 2018, and no new cases were arbitrarily initiated.

During the period under review, we also recorded no inappropriate sentences under Article 213 (hooliganism) or Article 214 (vandalism) motivated by hatred. However, a case under Article 213 (hooliganism motivated by political hatred) was inappropriately opened following the oppositional action “He Is Not Our Tsar” in Chelyabinsk on May 5, 2018.

We know of one verdict issued in 2018 under Article 148 Part 1 of the Criminal Code for insulting feelings of believers. Anton Usachev was convicted in Naberezhnye Chelny for leaving insulting inscriptions on the church fence. The criminal prosecution of an eighteen-year-old youth for publishing photographs of an orthodox icon with an offensive comment on a social network was discontinued in Kurgan; the case ended with issuing a court fine. However, at least four new cases against four people were initiated under the same part of the article (two of them were additionally charged under Article 282 of the Criminal Code for incitement to religious hatred). We oppose such prosecutions because we believe that the term “insulting the religious feelings of believers” has no clear legal meaning and should not be present in the legislation of a secular state.

According to our data, one inappropriate sentence was issued under Article 280 of the Criminal Code (public incitement to extremist activity) during the period under review. Activist Vladimir Egorov received a two-year suspended sentence in Toropets of the Tver Region for his aggressive but abstract anti-government statement on a social network. At least four new cases under this article were initiated without due grounds.

One doubtful verdict was issued under Article 280.1 of the Criminal Code (incitement to separatism) – a resident of Severomorsk received a suspended sentence of one and a half years for calling for a referendum on the separation of the Murmansk Region from Russia. We also know of one new case initiated under this article – for calls for a nonviolent struggle in order to gain independence for the Urals region.

According to our data, the courts delivered no inappropriate verdicts under Article 282.1 (organizing and participating in an extremist community) in January–August 2018, but at least two new cases against 13 people were opened on dubious legal grounds. In particular, we need to mention the resonant case of the New Greatness (Novoe Velichie) activist group in Moscow; the law enforcement agencies failed to provide convincing grounds for their charges of organized activities aimed at achieving a clearly defined criminal goal of an extremist character against the group's participants. Nevertheless, ten people were arrested; four of them remain in the detention center, the others are under house arrest (including two young women who spent several months in the pre-trial detention as well).

In the first eight months of 2018, at least eight sentences against 22 individuals were issued inappropriately under Article 282.2 of the Criminal Code (organizing of or participating in an extremist organization), including four sentences against four people for continuing the activity of the forbidden religious organization Nurcular (in fact, for studying the books by Said Nursi); the remaining cases had to do with involvement in the banned non-violent Islamic missionary movement Tablighi Jamaat. It should be noted that 20 out of 22 convicted offenders received real prison terms up to eight years; we see a clear increase in severity of repressions against these two Islamic movements. In one case the criminal proceedings against a Novosibirsk resident for his involvement in Tablighi Jamaat were terminated with levying of a fine.

Between January and August 2018, a record number of cases related to continuing the activities of extremist organizations – at least 31 – were inappropriately initiated, and all of them pertained to involvement in banned religious associations. 29 such cases, involving at least 63 individuals (24 of whom are in pre-trial detention at the time of publication of this report) were initiated in connection with continuing the activities of the Jehovah's Witnesses communities, banned in Russia in 2017. Two other cases were opened in Tatarstan – five people were charged with involvement in the forbidden Muslim Faizrakhmanist community, and two people – with participation in Tablighi Jamaat.

Separately, without including it in the general statistics, we would like to point out nine sentences against 36 followers of Hizb ut-Tahrir, who were brought to justice as members of a terrorist organization under Article 205.5 of the Criminal Code (in conjunction with other criminal articles in a number of cases). The believers were convicted in Tatarstan, Bashkortostan, St. Petersburg, Moscow and Chelyabinsk. We regard these verdicts as inappropriate, because we believe that Hizb ut-Tahrir is a radical Islamist organization but not a terrorist organization. Meanwhile, the penalties for Hizb ut-Tahrir followers keep increasing in their severity – thus, the longest prison term faced by the organizers of the Ufa cell was 24 years. In January–August 2018, at least four new criminal cases (two of them in Crimea) were initiated against at least 22 persons, representing a considerable drop in comparison with the same period a year earlier (20 cases against 42 individuals).

We know of no inappropriate sentences under Article the 205.2 of the Criminal Code (public justification of terrorism) issued during the review period in 2018; however, one new case opened under this article raises our doubts, since it is not clear whether in this case statements, justifying terrorist activity, were made publicly.

Thus, at least 15 inappropriate sentences were imposed on 30 people in anti-extremist (not anti-terrorist) criminal cases in January–August 2018 (we recorded 18 sentences against 37 people in the same period of 2017). At the same time, we know about 52 criminal cases against at least 100 people inappropriately initiated during this period (all the numbers above do not include Hizb ut-Tahrir cases) – these figures are more than twice as high as last year's, when we had information on about two dozen cases against four dozen people during the comparable time period. This phenomenon has a simple explanation – the lion's share of unlawful persecution in 2018 was comprised of the criminal cases against Jehovah's Witnesses. The mass criminal prosecution against them started a year after the total ban of their organizations.

Other Prosecution

Our data on the use of the articles of the Code of Administrative Offenses (CAO) 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 greatest number of abuses pertained to the application of Article 20.3 – propaganda and demonstration of forbidden (mostly Nazi) symbols. We view prosecutions for demonstration of symbols not intended to promote extremist ideology as inappropriate, and we have recorded 20 such cases. Interestingly, opposition activists faced responsibility in 16 of them; this category of citizens is still prosecuted under various contrived pretexts on the dates of oppositional events. The sanctions affected 18 people, but higher courts overturned the decisions of the first instance in two cases. Fines were imposed in most cases and administrative arrests – in four cases.

We know about nine cases of prosecution under Article 20.29 of the CAO for mass distribution – or storage with intent to distribute – of extremist materials that, in our opinion, were banned inappropriately. Fines were imposed in eight cases; one more case involved an arrest. In half of the cases the penalties were issued for distribution of religious literature. We also recorded at least four instances of fines imposed under Articles 16.2 and 16.3 for the importation of religious materials inappropriately recognized as extremist into Russia.

The growth rate of the Federal List of Extremist Materials continues to slow down, albeit not very significantly. While the list grew by 185 entries in the corresponding period of 2017, it added 158 entries (4346 through 4503) in 2018. On the other hand, the percentage of inappropriate bans has increased again: over 35 entries were added inappropriately in January–August 2018 (vs. about 20 in the same time period of 2017). These included, among other items, Islamic religious literature, Jehovah's Witnesses’ brochures, parody songs by the band Ensemble of Christ the Savior and the Crude Mother Earth, and articles on the history of the Banderite movement in the Novaya Gazeta. Thus, in the period under review, inappropriate bans against materials applied primarily to religious literature; it was also the case in the corresponding period of the preceding year.

Both the Unified Register of Banned Websites blocked by court decisions, and the list of sites extra-judicially blocked by the Prosecutor General’s Office under “Lugovoy’s Law” (i.e. for incitement to extremist activities or unauthorized public actions, as well as for providing information from organizations deemed undesirable in Russia) has continued to grow. Manyfold difference between our data on additions of both lists and the real numbers should be assumed. According to our information, the first Register added approximately 197 entries, thus exceeding our number for the corresponding period in 2017 (114 entries). As in the past year, about two dozen of these entries are inappropriately banned websites and webpages, most of which contain Islamic religious materials and materials from Ukrainian sites that criticize Russian politics, but do not incite hatred towards the Russians. We know only of approximately 250 new items added to “Lugovoy’s List” in January–August; we had information on the inclusion of 800 new items in the comparable period of the preceding year. As in 2017, very few pages were blocked clearly inappropriately. However, it should be noted that Hizb ut-Tahrir materials – blocked simply by association with a banned organization, without any consideration of whether they indeed contained dangerous propaganda – comprise at least one fifth of the new items.