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Bulletin 7:14 - Special Issue: SOVA Inappropriate Anti-Extremism Report '11

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  • Andreas Umland
    THE RUSSIAN NATIONALISM BULLETIN A Biweekly Newsletter of Current Affairs Vol. 7, No. 14(202) - Special Issue, 30 July 2013 Inappropriate Enforcement of
    Message 1 of 1 , Jul 30 4:04 AM
      A Biweekly Newsletter of Current Affairs
      Vol. 7, No. 14(202) - Special Issue, 30 July 2013
      "Inappropriate Enforcement of Anti-Extremist Legislation in 2011"
      Alexander Verkhovsky
      SOVA Reports and Analyses, 27 April 2013
      Formatted for RNB by Parikrama Gupta




      MAJOR TRENDS IN 2011
      "Excessive Vigilance"
      The Internet and Anti-Extremism
      Incidental Victims of Inappropriate Anti-Extremism

      Religious Groups
      Political and Civic Activists
      Media Topics




      With the eruption of the protest movement in winter of 2011-2012, the issue of political repressions became one of the most hotly discussed subjects, thus bringing attention to the anti-extremist legislation in general, and to the Criminal Code Article 282 in particular. In the past uncompromising defenders of free speech were this legislation's primarily opponents; however, in 2011 the right-wing circles became quite unified and vocal in their criticism of it. Their obvious purpose was to defend their associates, convicted not only for incitement of various kinds, but for violent hate crimes as well. Vladimir Zhirinovsky even introduced several bills to repeal the law "On Countering Extremist Activity" and Article 282; however the obvious lack of coherence in his proposals revealed their true purpose - not to change the law, but to make a political gesture. Young ultra-nationalists expressed the same sentiment more bluntly in their chants, "Russian Moscow for the Russians; repeal two-eight-two" (Russkim russkaia Moskva, otmenit' dva-vosem'-dva).
      The purpose of ultra-nationalists is clear, and an informative discussion of laws and their enforcement is not in their best interests; nevertheless the non-radical opposition and civic activists should have paid greater attention to this issue is well. Unfortunately, the protests against "inappropriate anti-extremism" lack well-formulated demands, and protesters are often unable to tell apart different articles of the Criminal Code (e.g. 280, 282 and 2822). A careful analysis of this legislation and its enforcement, based on clear and non-political criteria, is a prerequisite for any attempts to improve the legislation and stop its misuse.
      Anti-extremist legislation has been criticized repeatedly and in much detail,[1] so this paper will only focus on analyzing the major law enforcement trends of 2011. The report is divided into four parts. The first part provides an overview of the legal innovations. The second one analyzes the trends most pronounced during this past year. The third one presents our traditional breakdown and review of the groups that tend to become principal targets for "inappropriate anti-extremism." The fourth part, newly added this year, represents our attempt at statistical analysis of repressive practices in this area.
      Within the phenomenon of excessive anti-extremism we can identify two levels of violations. The first level represents restrictions of fundamental rights and freedoms to a significantly greater degree than prescribed by international law. The second level refers to abuses of current, already rather repressive, legal statutes of the Russian Federation.[2]
      As in all previous years, the most severe persecution was directed toward particular religious groups; nevertheless certain categories of political and civic activists also became targets for "inappropriate anti-extremism." Media outlets suffered to a lesser extent than in previous years; however, the internet-related inappropriate enforcement of the anti-extremist laws has been on the increase.
      In general, we see that measures against extremism, in the form they took under the influence of repressive legislation and repressive campaigns, generate more and more "side effects." Anti-extremist legislation was initially seen as a kind of "enforced tolerance," and its interpretations to this effect have become increasingly arbitrary, threatening prosecution for controversial statements that represent a very minor potential threat to society. Organizations, such as a libraries or Internet providers, which accidentally cross paths with "fighters against extremism," come under increasing pressure. The number of clearly incidental, even completely accidental, victims of this campaign is growing. Finally, we have recorded a rising level of abuse perpetrated by specialized anti-extremist units.
      The solution to these problems requires a fundamental reform of anti-extremist legislation. Various aspects of this reform can and should be subject to a serious discussion, which does not fit into the format of this report. We can only indicate its several key provisions:
      - Redefining the object of counter-action as a set of criminal acts, directly or indirectly related to ideologically motivated violence;
      - Decriminalizing all other acts, currently qualified as extremist;
      - Repealing some clearly discredited legal mechanisms, particularly, the ban on informational materials, and the mandatory examination requirement for the "extremism-related" cases;
      - Revision of prior judicial decisions to ban organizations as extremist, as well as of criminal convictions, at least under Articles 280 and 282, since the reform will change the content of these articles to adopt more narrow definitions.


      The majority of developments in the field of rule-making in 2011 were positive. It seems that the political leadership, the leadership of law enforcement agencies (always involved in lawmaking in this area), and especially the Supreme Court of the Russian Federation felt the need to eliminate at least the most egregious inconsistencies and abuses arising in the field of "anti-extremism." Of course, the developments never reached the level of full-scale reforms; rejection by the Presidential Administration of a draft reform of the anti-extremist legislation, submitted by the Human Rights Council,[3] is symptomatic of the situation. However, even partial reforms are not only important in themselves, but also denote the beginning of a new trend; previously the authorities had simply ignored the problems resulting from "inappropriate anti-extremism."

      Major developments in this field were previously described in the SOVA Center report on counteracting xenophobia and radical nationalism;[4] here we shall present only the extended quotes from this report, covering important developments and initiatives.

      "The most important and positive development of the year was neither a law nor a legislative proposal; it was Resolution No. 11 of the plenary meeting of the Supreme Court of the Russian Federation "Concerning Judicial Practice in Criminal Cases Regarding Crimes of Extremism" adopted on June 28, 2011,[5] already cited in this report on several occasions.
      The Court clarified a number of controversial issues regarding the distinctions that determine different qualifications of alleged extremist acts.

      First, it confirmed that mass distribution of prohibited materials could be considered a criminal offense under Article 282, if the prosecution proves direct intention of inciting hatred.

      Second, the court found the application of Article 282 to violent crimes, if they were aimed at inciting hate in third parties, to be appropriate; for example, through public and provocative ideologically motivated attack. Various acts of vandalism, when they result in a public message, such as, for example, a graffiti inciting hate, should be considered under the aggregation of the relevant articles (i.e. Articles 214 and 244) and Article 282.

      Third, the court stated that in order to find a person guilty of involvement in an extremist group (Article 2821 of the Criminal Code) any form of participation was sufficient, even if no other crimes were committed.

      The ruling also contained a number of important points, which had been raised by experts and human rights advocates for many years, and were needed primarily in order to eliminate inappropriate law enforcement.

      First, the court stated that criticism of officials and politicians should not qualify under Article 282, since, in this respect, they cannot be held equal to ordinary citizens.

      Second (and this is even more important in the context of Article 282), the criticism of political, religious and ideological beliefs and associations, as well as national and religious customs in and of itself does not constitute hate speech.

      Third, the ruling prohibited asking experts (linguists, psychologists, and others) any questions related to legal evaluation of the offense. For example, an examiner cannot be asked whether the materials under review were intended for inciting national hatred. Thereby, the Supreme Court merely restated a founding principle of the criminal procedure legislation - the legal issues should always remain the responsibility of the investigation and the court.

      However, the Resolution did not eliminate all the blind spots in anti-extremist legislation. In particular, it gave no clarification regarding the kinds of groups that enjoyed protected status under the anti-extremist legislation, in the context of the hate motive toward a social group. The essence of the Criminal Code Article 2822 ("organization of an extremist group") received no clarification as well; for example, the Court never explained whether activities, conducted under a different name and logo, but by the same persons and for the same purpose, could be considered as continuation of the activity by a banned organization.

      Finally, based on experience, we don't expect the courts to accept unusual Supreme Court clarifications quickly. Nevertheless, we already saw some cases, where the verdicts clearly reflected these clarifications.

      The presidential bill, expanding the use of "professional restrictions" under some "extremist" articles of the Criminal Code, went into force on July 26.

      It reformed Articles 280 ("public incitement to extremist activity"), 2821 ("organization of an extremist community") and 2822 ("organization of an extremist group"). In some cases the punishment in the form of ban on occupying certain positions or engaging in certain activities was newly introduced, and in other cases its use was expanded to include longer time periods for the restrictions.

      In this case we support more stringent "bans on professional activity,"[6] as well as the fact that prison sentences were not increased; we believe that a prison term is not an appropriate punishment for "mere words."

      The presidential bill presenting extensive humanization of the Penal Code (including "crimes related to extremism") went into force on December 7, 2011. Under this legislation, custodial sentences will be less frequently imposed for offenses under Part 1 of Article 280, Part 1 of Article 282, Part 2 of 2821 and Parts 1 and 2 of Article 2822 of the Criminal Code, as these crimes will now be considered minor offenses, to which custodial sentences shall not apply in the absence of aggravating circumstances. We welcome this initiative, since it relates to sentences for offences that involve "mere words" or simple membership in a group.
      Amendments will indirectly affect the practice of giving suspended sentences for these crimes. A suspended sentence is usually given in lieu of a prison term, and, since such custodial sentences are now expected to become rare, the number of suspended sentences should decrease as well. We welcome these changes, because we believe that an ideologically-motivated offender tends to perceive a suspended sentence as, essentially, a non-punishment.

      In addition, in 2011 two seriously problematic pieces of anti-extremist legislation were introduced.

      On August 4 the government sent a bill to the Duma that dealt with financing extremist activities and propaganda of extremism on the Internet. It provides:

      - Introduction of a new article of the Criminal Code, 2823 ("funding of extremist activity"), with penalty ranging from a fine to up to 6 years' imprisonment;
      - Inclusion of valuables intended to finance extremist activity into the list of confiscated property;
      - Giving the Internet the media status in relation to Articles 280 and 282;
      - Setting procedural deadlines associated with the recognition of extremist materials. The judgment should be sent to the Ministry of Justice within three days, and the Ministry of Justice should add the decision to the Federal List within 30 days.

      We believe that the introduction of article on financing extremist activities serves no useful purpose, since the Criminal Code already assumes that providing funds for the commission of a crime is a form of participation (Article 33 of the Criminal Code). However, the addition of this article is not expected to cause any harm.

      As for treating the Internet equally to mass media, this initiative seems to us very ill-conceived. First, not all material posted on the Internet is publicly accessible; it can be hidden behind a password and accessible only to a narrow range of users, making this arrangement no different from a group e-mail. Second, in any propaganda crimes the degree of publicity is critical. While the extent of public exposure is sufficiently clear when applied to the media, for the statements made online exposure can vary greatly - from a broadcast, exceeding the circulation of most newspapers, to a smaller resonance than a conversation in a crowded room.

      The proposed bill encourages serious prosecution (especially under Article 280) for Internet remarks, even when public danger is only negligible because of the small audience size. The amendment essentially does not change the disposition of Article 282, which simply mentions the Internet, along with other types of media after the word "including," when giving examples of public statements. In case of Article 280, however, utilizing the media (and, according to the proposed bill, the Internet as well) constitutes a qualifying clause, so that any call to extremist activity on the Internet would have to be punished under this article by nothing less than imprisonment for up to five years. The motivation for such a harsh innovation is not clear. Even now, nothing prevents the prosecution from filing charges based on illicit statements posted on the Internet, and a considerable case base (of both legitimate and inappropriate application of the law) has been accumulated.

      The bill shows no signs of advancing through the Duma, and, considering the growing resistance, might never pass in its current format.

      On October 11, 2011 President Dmitry Medvedev submitted to the State Duma a draft federal law Concerning the Introduction of Amendments to Article 22.1 of the Federal Law "Concerning the State Registration of Legal Entities and Private Entrepreneurs" and articles 331 and 351.1 of the Labor Code of the Russian Federation."

      The bill concerns the restrictions on working with juveniles. Now it is prohibited to everyone, who have been convicted or charged (and never acquitted) under a good half of the Criminal Code articles. The bill proposes to add crimes against the foundations of the constitutional order (Chapter 29 of the Criminal Code) to the list, including offences under Articles 280, 282, 2821 and 2822.

      We have no objections against the law itself, but would like to emphasize a considerable amount of wrongful convictions imposed under these articles of the Criminal Code. This means that victims of anti-extremist legislation misuse would face an even greater deprivation of rights, if this bill passes."

      As you can see, not all the changes last year were for the better. In particular, the situation with the Internet regulation has only deteriorated (see "The Internet and Anti-Extremism" section below). Let us, however, dwell on one more encouraging episode, which shows that the Supreme Court is not the only organization concerned about the most obvious excesses of anti-extremist law enforcement.

      We have already written about the fact that Russian law mandates an absolute ban on public use of Nazi and similar symbols. This context-independent ban is obviously absurd, and, of course, has never been systematically applied. A case of meaningless persecution finally attracted attention beyond the circle of human rights activists and the media.

      Vadim Gromyko, a son of the Krasnodar Kray vice-governor Eugene Gromyko, decided to make a comic movie with himself playing the role of Stirlitz[7] , and rented SS uniform for this purpose. As a result, the Krasnodar Kray Prosecutor's Office opened a case under the Administrative Code Article. 20.03 (propaganda and demonstration of Nazi symbols) against the woman, who posted online the photograph of V. Gromyko, wearing this uniform, and demanded that all the media outlets, covering the video (which scandalized the region) removed these images from their publications. Charges were also brought against the police, the president of the university, attended by V. Gromyko, and the director of the recreation center, where Gromyko rented the uniform.

      This absurd story could have been forgotten, like many other ones before it, but the Zhivaia Kuban' web portal found the claims of the prosecutor's office to be unfounded, since the materials were never intended to promote Nazism, and went to court.

      In substance, the editorial board was, of course, right, but not according to the letter of the law. The old law "On Immortalizing the Soviet People's Victory in the Great Patriotic War of 1941-1945" contained an unconditional prohibition, and the later law "On Counteracting Extremist Activity" prohibits "propaganda and demonstration," and the interpretation of the conjunction "and," contained in this prohibition is not clear; the logic of Russian grammar implies that each activity is separately forbidden; however the tradition of the legal usage dictates using a different conjunction "either" (libo), when referring to banning both one and the other. Thus, the legal norms set by the law "On Immortalizing..." effectively have not been invalidated.

      In September Sergey Sitnikov, the head of Roskomnadzor, grasped the situation with Zhivaia Kuban' and declared that his department would send a request to the Regional Prosecutor's Office to withdraw their demands to the media outlets and, most importantly, would initiate a discussion regarding possible revision of the relevant legal norms. On October 5, 2011 the Public Council of the Roskomnadzor supported Sitnikov's position that the media should not be held responsible for the publication of images of Nazi symbols or paraphernalia or symbols or attributes, similar to Nazi, if the publication had no purpose of promoting the ideas of Nazism.

      It is difficult to say when this legislative change would occur, but at least Roskomnadzor's position on the issue underwent a radical transformation.

      Decisions of the European Court of Human Rights exert substantial influence the legal climate in Russia. Needless to say, Russia, despite its obligations as the Council of Europe member, is not very eager to implement the recommendations of the ECHR. Yet, in many cases, these recommendations do not go unnoticed.

      On June 21, 2011 the ECHR ruled that the "Watchdog control" (Storozhevoi kontrol') databases, used by Russian law enforcement agencies to keep activists under surveillance as part of the anti-extremism campaign, and the practice of "preventive" detention violates the right to respect for private life. The decision was taken based on the complaint filed by Sergei Shimovolos, the human rights activist from Nizhny Novgorod.

      As we mentioned before, the existence of the police database of people, who have become targets of operational work, is completely natural. The ECHR has no objections against such a database. The court also has no doubt that any secret surveillance interferes with the privacy rights, and the only question is the ground and rules for such an intervention. The Strasbourg Court insisted that the basis, on which a person can be included in the database for secret surveillance, had to be clearly stated in a public legal act, giving every citizen an opportunity to avoid such observation. The "Watchdog Control" surveillance database functioned on the basis of an unpublished order; the legislation provided no clear explanations regarding the inclusion criteria for this database (due, in particular, to the exceedingly vague definition of extremist activity) and did not describe an appeal procedure. Thus, the existing mechanism in Russia was deemed not "in accordance with the law" in terms of interference with the personal privacy rights.[8]

      In February 2012 the District Court of Nizhny Novgorod had to resume deliberations regarding Shimovolos' complaint. The full implementation of the ECHR decision requires clarifying the definition of extremist activity and publishing an open act that defines functioning of the "Watchdog Control" according to the relevant European standards.

      MAJOR TRENDS IN 2011

      SOVA Center has been monitoring abuses in the application of anti-extremist legislation for a number of years and issued numerous annual reports on the subject. [9] Over the years, law enforcement has developed routines, along with corresponding routine abuses. Our analysis of these routines is forthcoming in the next section of this report. Now, however, we would like to focus on significant trends of 2011.

      "Excessive Vigilance"

      Anti-extremist legislation is directed primarily against conduct, motivated by a particular intolerance, and cultivating, advocating and implementing this intolerance in practice (including grave crimes against an individual). We agree with legislators and the majority of citizens that intolerance is harmful both ethically and socially, and, even if not detrimental per se, can produce bad consequences. This is true even for such forms of intolerance as, for example, morally justifiable indignation directed at someone's harmful and dangerous actions. Therefore, in discussing the enforcement of anti-extremist legislation and its level of appropriateness, we must bear in mind that socially dangerous behavior, to which law enforcement agencies are bound to respond, could easily be related to the world outlook, which is not reprehensible per se, for example to certain religious or political views.
      At the same time, we believe that in many cases society should not compel its citizens to behave tolerantly, especially since no government can always be trusted to enforce such tolerance. Only in extreme cases the moral and other kinds of social self-regulation can be replaced by government intervention. This remains true even in the situations, where the worldviews of some citizens are not well-tolerated by the majority (the examples of such religious and political views abound). This is true, even if some other proponents of such views committed ideologically-motivated crimes - after all, people are only responsible for their own statements and actions (aside from exceptions, such as a leader or a parent). This last point must be borne in mind, when discussing public statements of people, who share extremely xenophobic views of any kind.

      However, all these considerations clearly have not been taken into account, when the current anti-extremist legislation was designed, and, worse, are not taken into account in its enforcement, despite vast accumulated experience that should inspire reflection.
      Anti-extremist measures were often applied in cases where a statement (in the form of speeches, articles, videos, etc.) was certainly intolerant to one or another (usually ethnic) group, but contained no inflammatory appeals. It is particularly outrageous, when such cases lead to criminal prosecution; the police either misinterpret or explicitly ignore such necessary component of any offense as its level of public danger.[10]

      The two most problematic legal statements in this respect are the element of the "extremist activity" definition, which defines it as an assertion of the inferiority or superiority of any group, and related disposition of the Article 282, dedicated to the abasement of human dignity, as it relates to a person's group membership. It seems that such statements do not represent significant danger to society, since, in essence, they are similar to such acts as defamation or insult, decriminalized in December 2011. We believe that an adequate solution to the problem would be to delete the "abasement of human dignity" clause from Article 282.
      Currently the "abasement of dignity" appears in a number of cases, and we believe that, while it may correspond to the letter of the law, it reflects neither the spirit of today's Russian criminal legislation nor (to even greater extent) the boundaries for freedom of speech, set the by European Convention on Human Rights and Fundamental Freedoms according to its practical interpretation by the European Court of Human Rights.

      For example, at the end of December, the Kabardino-Balkaria Prosecutor's Office requested that the court to ban extremist as the article, "Balkaria for Balkars… and Moscow for them, darlings, as well" (Balkaria dlia balkartsev…i Moskva dlia nikh zhe, rodimykh), which contains only stabs at backwardness of the Balkar People, and their widespread hostility to the Kabardians and the Russians (the criminal case under Article 282 was initiated right after the New Year).

      In April 2011 a new case was filed concerning Yuri Mukhin, the leader of the banned Army of People's Will (Armiya voli Naroda, AVN) and the editor of the banned Duel newspaper (in the meantime, the To the Stand ("K barieru") newspaper, which replaced the Duel, was banned as well, and now is being published as the True Names ("Svoimi imenami")). In this case Mukhin, a known anti-Semite, was clearly inappropriately accused of anti-Semitism under Article 282. His controversial article "I also have an advice" (Est' i u menia sovet) expresses hostility toward Jews, but the worst accusation, levied against them in the article, is that they first created and then destroyed the USSR. Mukhin also was accused of quoting Hitler, which, in itself, does not constitute a crime.
      Even more famous example is the criminal case under the same article against the well-known nationalist activist Konstantin Krylov for his speech at the "Stop feeding the Caucasus!" rally. His speech contained hints that people from the Caucasus kill Russians and corrupt the police, but no incitement to illegal activities.

      While in the above examples we can still expect the cases not to reach the court, or the defendants to be acquitted (and, contrary to popular opinion, both of these outcomes are possible in Article 282 cases), the Kaliningrad publisher Boris Obraztsov was already convicted on September 19, 2011 under Part 1 of Article 282 to a fine of 110,000 rubles for his attacks on the Russian Orthodox Church in print. Obraztsov also made pronouncements about religious people in general, but even the strongest sentence in the article - "A religion is a combination of suckers, who are being fooled, and the scum that heads any religious organization" - is obviously not so aggressive as to merit criminal prosecution.

      In our opinion, at least three issues need to be considered in this case. First, the article contained no incitement of any kind, and "abasement of human dignity" in itself constitutes a rather weak and doubtful corpus delicti in the context of criminal law, especially since acts, such as insults and slander, were decriminalized in December 2011. Second, the position of the Supreme Court was not adequately taken into account; its judgment of June 2001 stipulates that "criticism of religious communities ... religious beliefs,…or religious practices ... in and of itself does not constitute an act aimed at inciting hatred or hostility," although here the Supreme Court does not mention abasement of human dignity. Third, the extent of the act's social danger, critical for establishing its criminal nature in accordance with Part 2 of the Criminal Code Article 14, was clearly never taken into account. Obraztsov's statement, quite typical for an anti-Church rhetoric, was unlikely to hurt many people's feelings.

      The story does not end there. In mid-November someone reproduced Obraztsov's text online (in fact, it was partially posted on many sites), and this became the basis for the second round of criminal proceedings for the fact of re-publication. So far, however, it is unclear how the prosecution is planning to prove that the online publication was carried out by Obraztsov. On December 5 his place was searched, and on December 13 the Bureau of the Kaliningrad Regional Court ordered the Leningrad District court in Kaliningrad to consider the Prosecutor's application to recognize the ill-fated text as extremist.[11] Incidentally, an interesting procedural dispute arose in this case; both district and regional courts had previously refused to consider the case, since they considered it inappropriate to decide on an administrative action regarding the text simultaneously with the related criminal proceedings. However, the Bureau of the Regional Court decided otherwise.

      We have already stated on several occasions that assertion of superiority and exclusivity of one's religious faith should never be the ground for prosecution, either criminal or administrative. Although our laws can, unfortunately, be interpreted to classify such speech as criminal, even plain common sense dictates that the claim of exclusivity of one's own faith (one's religion or one's personal interpretation of religion) constitutes a natural and almost universal feature of religion as such. Of course, crimes can be inspired by what is commonly referred to as "fanatical faith," but this should not be used as the reason to prohibit manifestations of such faith, when they are not criminal in any other way.

      2011 brought new cases of prosecution based solely on this shaky foundation (see examples in the next section of this report). Of course, such prosecution is extremely selective, since systematic persecution for claims of religious exclusivity is simply not possible.
      The assertion of exclusivity of political views has also been used as the ground for prosecution, despite the fact that such charges contradict anti-extremist legislation, even in its present form. Political and ideological enmity is, according to the Criminal Code, an aggravating circumstance for any crime on a par with hatred of race, religion, etc. However, Article 282, which criminalizes public statements aimed at inciting various kinds of enmity, excludes the political and ideological enmity. Simply put, incitement of enmity between political or ideological opponents is not a crime. Apparently, some people view such an exception to "forced tolerance" as unreasonable, and found a way to circumvent it.
      On June 24, 2011 the Public Prosecutor's Office of the Republic of Tatarstan delivered a warning about the impermissibility of extremist activity to Roman Ilyin, the user of the social network VKontakte, and the administrator of the group Autonomous Action (Avtonomnoe deistvie) (Kazan). According to the prosecutors, the content of a manifesto of libertarian communism (the ideological platform of the Autonomous Action), "determines" social hostility between the groups of supporters and non-supporters of this movement. Thus, the prosecution is actually prepared to qualify the actions of Kazan's activists as an incitement of hate toward a "social group" of their political opponents. Apart from yet another obvious abuse of the "social group" concept, here we observe an attempt to criminalize the expression of political views (albeit, in this case, certainly radical) as such.

      The Internet and Anti-Extremism

      There is no doubt that everything forbidden offline is also forbidden online. A very substantial case history of enforcing anti-extremist legislation in relation to the statements, made on the Internet, already exists. This enforcement had some degree of success (primarily quantitative), as well as serious problems, which we have mentioned repeatedly, but which, far from disappearing, instead appear more often. They exist even when we exclude from consideration all the cases of clearly inappropriate bans for online material.

      First, the prosecution and the court customarily don't recognize the degree of publicity as an important criterion of the statement's danger to society. It is not taken into account at all in cases, relating to the Internet speech, where the degree of publicity is, indeed, difficult to assess.[12]

      Second, the problem of removing material from the cyberspace continues to exist. Simply removing the materials upon request from a law enforcement agency is a voluntary choice, since such requests have no binding force. Often site owners or hosting providers agree that a certain item should be deleted as likely violating the law and their own rules (and responsible hosting service providers usually have their own very reasonable set of restrictions for posted materials). Problems begin if the material is not being removed voluntarily.

      There are two legal mechanisms for implementing prohibition of an item published on the Internet. The first is a targeted court judgment of removal, which is mandatory for local hosts and site owners (or social networks account owners, etc.), but it is seldom used, since it actually requires two decisions: to recognize an item as extremist, and to make a decision regarding its specific location. The second mechanism is a judgment about blocking access to illegal material, addressed to one or more access providers.

      In both mechanisms the court judgment is often replaced by a simple request from law enforcement agencies, which, as we believe, should not be sufficient, since usually the situation also involves a disagreement, which should be resolved in court. The problem is that the law "On Communications" mandates to fulfill "motivated requests" from the law enforcement, but, currently, there is no common understanding on what kind of "motivation" is expected for "extremist content"- related cases.

      Meanwhile, a new law "On police," which entered into force on March 1, 2011, introduced an additional theme. Unlike the previous law "On Militia," this law states that the police notions of "eliminating the causes and conditions that contribute to security threats to citizens and public safety, commission of crimes and administrative offenses" are considered mandatory. So far, this development did not manifest itself in the field of anti-extremism, but it certainly will.

      In 2011 we observed a number of judicial and extrajudicial cases of blocking the Internet sites, usually due to presence of just one or two previously banned materials (although specific reasons for blocking are frequently not published). There are some doubts that in each case the police had first asked the site owners or hosting provider to remove these materials. The increasingly used method of blocking is also fraught with problems, which we have discussed in our earlier publications.[13]

      Internet service providers insisted on many occasions that they could not be held responsible for materials that are read, watched and listened to by their customers, and, moreover, an attempt to influence them would constitute a breach of contractual obligations, or even a censorship attempt. In cases, when the dispute went to court, providers more often lost than won. As a rule, such cases are related to blocking access to specific sites of Jehovah's Witnesses or National Bolsheviks, and sites with banned Muslim or nationalist materials. Sometimes blocking requests were more ambitious in nature; in Togliatti, the prosecutor ordered a number of local service providers to block access to 100 sites at once, and the court approved the request for 80 of them.

      Clearly disproportionate decisions to block sites, because of a few items posted on them, cause the greatest damage. Disparity and injustice of such a solution is obvious in cases where certain materials prohibited by the court are clearly not typical for a given site. The most striking example was an absurd decision in the Khabarovsk Kray (later repealed) to ban YouTube and several other world-wide services because of certain materials posted there. Another absurd decision, which was not canceled and entered into force, was made by one of the courts in the city of Ulyanovsk regarding the prohibition of the popular service liveinternet.ru and the popular Tatar portal tatarlar.ru because of several nationalist materials.
      A ban on several National Bolshevik web sites in Khabarovsk manifested a clearly oppressive bias, characteristic for the Internet anti-extremist security measures. Even more importantly, this case has set an important precedent.

      In the case of blocking access to the NBP sites, initiated at the request of Khabarovsk prosecutors back in 2009, the Central District Court of Khabarovsk on February 2, 2010 (followed by the regional court on April 28, 2010) took the side of the provider, since the prosecution did not have explicit legal ground. Indeed, the National Bolshevik Party was banned, but not its sites, and no law suggested that one implies the other (even in legal practice, materials of a proscribed organization are banned in a separate judgment). In addition, the Khabarovsk courts decided that the access provider was not engaged in distribution of materials.
      However, the Prosecutor General's Office appealed this decision to the Supreme Court; the Judicial Panel of the Supreme Court for Civil Affairs returned the case for retrial, and, incidentally, on May 10, 2011, adopted a Decision # 58 Vpr11-2,[14] which also has wider implications.

      In this Decision the Supreme Court states that, when providing access to forbidden information, the provider becomes complicit in its distribution, since the provider has technical ability to block it. Moreover, the Supreme Court decided that blocking access should be carried out without a court order, purely on the basis of a motivated request from law enforcement agencies, providing no clarification on determining sufficiency of a motivation (precisely the problematic issue.)

      Unfortunately, such is the current outcome of the blocking dispute. Apparently, it will remain in effect until the matter is resolved otherwise at the legislative level. In the wake of the Supreme Court decision blocking access to sites in Khabarovsk Kray have met almost no further resistance.

      The theme of blocking access as a way to enforce the ban on materials is related to the theme of blocking websites as an independent measure.

      In some cases, the court approved requests to block access to the site on the grounds of the site ownership by a banned organization. In June, the Sovetsky District Court of Rostov-on-Don ordered a number of local Internet providers to block access to sites, "used by the leader of the banned Army of People's Will inter-regional public movement," and courts in Kirov and Astrakhan made similar requests regarding the NBP sites. In November and December there were several notifications about blocking access to Jehovah's Witnesses web sites in different cities; it was not always clear whether the court judgment existed in each case, or whether the service providers simply complied with requests from law enforcement agencies (as well as what particular law enforcement agencies were involved). On May 18 the Krasnoflotsky District Court in Khabarovsk approved the request to block access to the web sites of NBP, Jehovah's Witnesses, and the Slavic Union (Slavyansky soiuz, SS), evidently, because they were associated with the organizations banned as extremist. The degree of legal justification for prohibiting these organizations, varies greatly, from an obviously inappropriate ban on two regional Jehovah's Witnesses organizations to a legitimate and quite appropriate ban on the neo-Nazi SS. In any case, blocking entire sites without any court rulings about their ban cannot be considered legitimate. Notably, the site nbp-info.ru was banned as extremist in Kirov, but it happened a month after the court decision to block access, not prior to it. The other sites on the list have not been officially banned at this time.

      In some cases, prosecutors have successfully sought to block sites not for hosting any prohibited materials, but because of allegedly extremist content found on these sites by the prosecutor's office. In 2011 the courts in Togliatti and Khabarovsk made judicial decisions about blocking access to dozens of sites at once. It does not seem realistic that the court gave serious consideration to the content of all these sites at once. In fact, in such cases, a court decision to block access serves as a substitute for actually banning the materials, at least on the local level. In any case, regardless of public safety and other justifications for such measures, it should be recognized that the law "On Countering Extremist Activity" does not authorize site blocking without the court ban. However, this new restraining mechanism has emerged de facto and is increasingly utilized. The situation is not yet close to anything like the "Great Chinese Firewall," but law enforcement agencies naturally drift in this direction.
      Certain organizations that simply have nothing to do with "extremist materials" on the Internet and are not in position to reduce the real risks associated with these materials, also become subjects of persecution. We are talking about organizations that provide citizens with access to the Internet, such as thousands of schools, libraries, and other similar places.

      According to the law enforcement, these institutions, just like Internet access providers, are required to block "extremist content." Meanwhile, no legislation stipulates specific steps they should follow.

      This obligation practically means that schools and libraries are required to install filtering software that prevents the user from accessing the "extremist materials" (and other problematic content, such as pornography). If such user protection fails to function properly, prosecutors issue a warning to directors and insist on disciplinary measures against responsible parties. The schools received a standard Internet filtering software package, but were left responsible for periodic updates to filtering databases, and often have neither money nor personnel to deal with this task. Libraries never received any filters at all, and, obviously, have no budget for installing them locally.

      Furthermore, the presence of filters does not prevent institutions, such as schools, from running into problems with the prosecutor's office. After all, no filter can guarantee that the user will be unable to access the site containing prohibited materials. The usual way of "filtering the internet for extremism," that is, blocking access to sites, directly specified in the Federal List of Extremist Materials, is clearly insufficient. The filter is usually tested by searching for certain keywords, and the prosecutor's office staff immediately gains access to numerous pages either very similar to the banned ones, or simply containing clearly inflammatory content, promptly classified as "extremist." The question of whether filters work at all in terms of shielding children from undesirable materials is still unresolved (even more so for adults), but their existence turns institutions, such as schools and libraries, into convenient targets for "beefing up the numbers" for anti-extremist activity.

      The number of inspections and various acts of prosecutorial response grew accordingly, often with disciplinary consequences for employees. According to our most conservative estimates, [15] the total of 171 sanctions had been issued prior to 2011, while in 2011 their number reached 192.

      Incidental Victims of Inappropriate Anti-Extremism

      As we mentioned earlier, people and organizations that are clearly not related to "suspected extremists," but simply happened to attract attention of law enforcement agencies and presented an easy target, increasingly become the victims of inappropriate or simply irrational enforcement of anti-extremist legislation. [16]

      We have written more than once about the plight of libraries, caught between the law "On Librarianship," requiring them to provide unfettered reader access to collections, and anti-extremist legislation forbidding mass distribution of prohibited materials.[17]

      Below is our summary of this anti-library campaign. The prosecutor's offices in various jurisdictions charged libraries with a variety of offences, starting with presence of banned materials (usually books) in their collections - despite the fact that libraries have no legal ground for de-accessioning these materials. The following charges were used as the ground for sanctions:

      - Absence of printed Federal List of Extremist Materials or its updated version (this charge is absurd even on a technical level, given the List's size);
      - absence of regular shelf reading to indentify materials from the Federal List, or even absence of plan for such a shelf reading;
      - absence of the standard clause regarding "the prohibition of extremist literature distribution" in the library by-laws;
      - absence of subscription to the Rossiyskaya Gazeta newspaper, which publishes the list (despite the fact that the list also appears on the Ministry of Justice web site far in advance of Rossiyskaya Gazeta);
      - absence of access restrictions in relation to the books, featured on the List (although no regulation exists to provide a procedure for such restrictions);
      - absence of effective (or any other kind of) Internet filtering of "extremist content" (see above for more information).

      In 2011 the campaign continued on a larger scale. According to our definitely incomplete data, in the period from mid-2008 through the end of 2010 at least 170 cases of inappropriate sanctions against the libraries' leadership took place (including school libraries); in 2011 we recorded at least 138 such cases in a single year. [18]

      Sanctions became tougher. Whereas previously they were limited to warnings and disciplinary measures, in 2011 the courts began to impose sentences under the Administrative Code Article 20.29 for storage of extremist materials with intent to distribute. Several library directors were, essentially, fined for carrying out their duties.

      For example, on July 4, 2011 the magistrate's court in Yekaterinburg handed down a guilty verdict to Galina Kudryashova, the director of the Ural Federal University Zonal Research Library. She was sentenced to a fine for the following items found in her collection: Fascism and the Russian emigration, by A. Okorokov, and the "Chechen Republic" article from the Terra Publishers' Great Encyclopedia (inside the entire encyclopedia volume). Okorokov's book is a scientific publication that (whether good or bad) cannot be removed from a university research library. The same argument is even more relevant in case of an entire encyclopedia volume, regardless of whether banning the "Chechen Republic" article was reasonable.

      In January, the Moscow Library of Ukrainian Literature faced criminal charges under Article 282 for storing Ukrainian Nationalist books and pamphlets, which, of course, contained anti-Russian statements. Fortunately, the case was closed in summer due to lack of corpus delicti.
      It remains to be added that the prosecutor's office, while finding fault with libraries, is not generally inclined to wage a "war to the bitter end." Back in 2009 the Ministry of Culture and the General Prosecutor's Office developed quite practical and non-burdensome procedures for accessing extremist material, based on the set of instructions previously introduced in major metropolitan libraries. Although the relevant normative act has never been adopted (through the fault of the Ministry of Justice), the existence of established procedures could well protect the library. [19]

      For example, on June 2, 2011 the Omsk Regional Prosecutor's Office filed a lawsuit against the Pushkin library of Omsk for its refusal to withdraw six books, recognized as extremist, from the library collection and destroy them. In July the case was dropped, due to the development of special regulatory documents for libraries by the Regional Ministry of Culture.

      Of course, the "innocent bystanders" suffer from the anti-extremist activity primarily because many law enforcement officers tend to imitate such activity.

      A striking 2011 example of such imitation was a case of closing the site of writer Leonid Kaganov. Kaganov, outraged by the very fact of injunction against the texts, cited one poem, already prohibited as anti-Semitic, as an example. More than a year later the FSB notified a hosting provider, who, in turn, notified Kaganov, who replaced the poem with an acrostic parody of his own writing, where the first letters spelled "What is the problem, not the same verse" (V chem problema, stikh ne tot). For some reason, this did not satisfy the authorities, and, upon the FSB's request, Zenon Hosting Company shut down Kaganov's site (the site, of course, simply moved to another domain).

      Numerous cases of penalties for display of Nazi symbols (outside the context of a neo-Nazi or nationalistic propaganda) [20] constitute another common method of imitation fight against extremism. For example, a student in Omsk was fined for drawing swastikas on the American flag and pictures of George W. Bush as a sign of protest.

      The very possibility of punishment for displaying swastikas and similar items outside of the specific propaganda context constitutes an obvious defect in the law, and the ensuing rules simply cannot be applied consistently (just think of the Great Patriotic War movies). In practice, however, the courts sometimes resolve the dispute in favor of the defendant, as in the case of Lipetsk antiquarian Konstantin Kuzmin, who managed to prove that he traded Nazi German medals, without publicly exhibiting them.

      Finally, we would like to mention two criminal cases involving violence that, nevertheless, deserve to be mentioned in this section. In both cases an "extremist motive" was attributed to the defendants, clearly without sufficient reason. It is even difficult to construct a reasonable explanation of such an ascription.

      Both cases were fairly well-publicized. The first one was the fistfight between two big businessmen, Alexander Lebedev and Sergei Polonsky, that took place live during the NTV show on September 16. The Investigative Committee filed charges under Part 1 paragraph "b" of the Criminal Code Article 213, that is, for disorderly conduct motivated by hatred. It is impossible to guess what kind of hatred, penalized in the Criminal Code - political, ideological, racial, national, or social - was implied in this charge. Despite such outlandish qualifications, in December the court rejected the cassational appeal against this judgement.
      The investigation also found signs of extremism in the famous bandit attack on a Miass rock festival in 2010. The attackers severely beat and injured dozens of people. The subsequent investigation for 13 of them was completed in the summer of 2011 (the fate of the remaining perpetrators is unknown), and they were charged with parts 1 and 2 of the Criminal Code Article 212 ("organization and participation in mass disorders"); three of them were also charged with Part 2 paragraphs "a" and "c" of Article 282 ("inciting hatred of a social group, committed with use of violence, by an organized group"). In this case, the whole issue turns around the peculiar interpretation of the term "social group. The prosecution believes that the crime was directed against the "informal social group having such common values and interests as a passion for rock music." We do not see a reason for the prosecutor's decision to additionally qualify this assault under Article 282.


      Creation of so-called "E"-Centers, the specialized Interior Ministry units to combat extremism, has brought many benefits, but also gave rise to some very legitimate criticism, which has only intensified over time. Improved quality of police work relating to hate-motivated violent crimes and overall investigations of truly dangerous groups became their main positive outcome. [21]

      The negative consequences, in our opinion, include the following: first, the staff of the "E"-Centers, transferred from the Department for Combating Organized Crime, brought with them their brutal methods of operative work, and, second, the very existence of a separate structure with its own line of accountability contributed to the phenomenon of inflating the activity reports with minor or even imaginary crimes and offenses.

      "E"-Centers face three additional major criticisms: a large number of various procedural irregularities, "pro-fascist" sympathies of some staff members, and conducting purely "political surveillance" that is, surveillance of political, civil and religious activists for reasons, unrelated to the ordinary criminal law. These claims are also quite justified, but they are not specific to this particular structure.

      Unfortunately, our law enforcement in general is prone to frequent procedural violations, and "E"-Centers are not exceptional in this regard. As for the employees' political and ideological preferences, xenophobic prejudices are common among the police to the same degree as among the society in general. In addition, constant work with political radicals is bound to have a radicalizing impact on at least some employees (such psychological shifts are well known in other instances).

      The reasons to discuss "political surveillance" inevitably arise, when an agency conducts operational work associated with ideologically motivated crimes. The scope of operational work inevitably includes keeping track of the suspect's environment, which features a lot of activists of all kinds, not harboring any criminal designs. This is true for every country. In modern Russia, this problem is exacerbated by the excessively broad definition of "extremism." This problem, however, is not caused by the existence of "E"-Centers. Prior to their emergence, other police units had performed the same functions. Expanding the scope of anti-extremist prosecution led to more extensive operational activities, so these deficiencies in police work have simply become more visible.

      At the same time, the above problems can become more pronounced within a large specialized structure due to inevitable "inflated reporting" and mutual influence of employees, so the Chief Directorate for Countering Extremism and its regional centers require a greater degree of social monitoring.

      We need to specifically address "E"-Centers in this report, since the accounts of their misconduct became noticeably more frequent in 2011. Likely, this change is related to a greater overall level of political activity during the election year, and many of the episodes are directly related to the election.
      Entire print runs of newspapers (e.g., Izvestia Kaliningrada, or the KPRF Pora newspaper in Irkutsk) were arrested upon the orders from "E"-Centers or with their direct involvement, ostensibly for expert examinations, despite obvious inappropriateness of this practice. The seizure of PARNAS party election leaflets in Ulyanovsk was allegedly motivated by campaign finance violations, so the reason for the "E"-Center's involvement is not clear to begin with.

      It has to be noted that "E"-Centers frequently perform actions outside of their mandate. For example, they take part in raids on immigration regime violators. One could assume that they are searching among the "illegals" for someone involved in extremist crimes, but since we have no data on any such cases, we believe that in these cases the "E"-Center employees are simply "lending a hand."

      However, actions outside of their mandate are often only a cover-up for increasing pressure on activists, who angered in some way either someone in authority or an individual head of the anti-extremist unit. The prosecution of Philip Kostenko, a staff member of the St. Petersburg Memorial Anti-Discrimination Center, provides a striking example. He repeatedly complained about receiving threats from the "E"-Center employees. In December 2011 Kostenko was twice sentenced under administrative charges to 15 days in custody, which in itself was typical for the December events; however, it is noteworthy that "E"-Center employees were present on both trials initiated for offences outside the purview of their department. In the first trial they even played an active role, when the court admitted their "note" on Kostenko as evidence (this fact was later successfully appealed). Literally on the day of Kostenko's release from a month-long custody another trial took place; he was charged with vandalism, and the prosecution requested that he remained in custody. The court refused, but the attempt to keep an activist behind bars was obvious. (Since then, in early 2012, Kostenko was severely beaten by unknown assailants, but at the time of writing no criminal case has been filed).

      All divisions of the Russian police use clearly illegal pressure methods, and this subject is outside the scope of our work. However, methods of moral pressure practiced during the "E"-Center interrogations - not necessarily of suspects, often simply individuals called in for a conversations - even when not explicitly illegal, have often been highly questionable. For example, in Saratov the "E"-Center employees tried to force an anti-fascist activist, arrested when distributing anti-Nazi leaflets during the "Russian march," to testify against other left-wing activists by threatening him with punishment for distribution of "Nazi symbols" - meaning the crossed-out swastikas on his anti-Nazi leaflets.


      Religious Groups

      Freedom of conscience suffers from inappropriate enforcement of anti-extremist legislation at least as much as the other civil liberties. Inappropriate (or at least clearly excessive) prosecution of various religious groups quantitatively exceeds wrongful prosecution of political and civic activists, although the latter is more noticeable to the public.

      Here we have to start from various Muslim groups and movements, including purely religious ones (such as followers of Said Nursi), the ones combining religion and politics (such as a non-violent Hizb ut-Tahrir party, and militarized factions in the North Caucasus).

      Traditionally, the most dangerous groups and the movements actually associated with violence (either practicing it or calling for it), are prosecuted under anti-terrorism legislation, without involving anti-extremist Criminal Code articles;[22] however, occasionally, these articles were used as well.[23]

      The anti-extremist legislation was applied, first and foremost, to the Hizb ut-Tahrir party, which had been banned as terrorist. We believe this solution to be inappropriate, since Hizb ut-Tahrir does not practice violence and does not call for it (with several minor exceptions). The extent of public danger, presented by Hizb ut-Tahrir propaganda is worth studying,[24] and it is possible that certain measures against the organization are, indeed, justified.

      However, at this time people, accused of participating in Hizb ut-Tahrir, are most often charged only under the Criminal Code Article 2822 for membership in a banned organization; we consider them wrongly convicted, since the ban on the organization was inappropriate. According to Elena Ryabinina of the Human Rights Institute, about two-thirds of 35 jailed Muslim activists, whom she knows to be improperly or excessively harshly convicted, were convicted on the Hizb ut-Tahrir membership charges.

      The prohibition of various Hizb ut-Tahrir materials continues, and it seems that nobody is actually interested in their content, since the texts in question frequently, in and of themselves, contain nothing that fits the definition of extremism. It follows that the materials, in clear departure from the law, have been routinely banned based solely on the fact of their connection to the prohibited party. If the legislators regarded all materials produced by banned organizations as extremist by definition, they would have reflected this understanding in their legal definition.

      As was noted before, the peak of the campaign against Hizb ut-Tahrir is clearly over. It should be noted that its prosecution have been very geographically uneven. The Volga region, primarily Tatarstan and Bashkortostan, account for most of these verdicts. In 2011 we only know about convictions in these two republics and in Moscow for a total of 19 offenders (four of them received suspended sentences and the rest got prison sentences for periods ranging from 6 months to 2.5 years), all of them just for being members of the organization (the Criminal Code Article 2822), not for the content of their propaganda. Nevertheless, Hizb ut-Tahrir is spread much wider geographically, and, according to some reports, is even starting to emerge from hiding. This indicates that some central and regional authorities, without formally denouncing the ban, try to pursue a more flexible policy in this case. Obviously, such informal "indulgences" are not the best way to resolve the problem.

      Other religious and political Muslim organizations are prosecuted much less frequently in the context of the anti-extremist campaign; some of them, as mentioned above, are usually considered under anti-terrorism legislation, while others are simply far less common. To be precise, we have no prosecution-related information regarding the majority of the banned Islamic organizations (possibly these organizations undertake no activities in Russia). We know of persecution against Tablighi Jamaat, which had also been banned without proper justification. In 2011 two people in Ulan-Ude were given suspended sentences of 10 and 12 months for participating in this movement; some cases of administrative pressure against Muslim groups in possession of the texts associated with Tablighi Jamaat, are also known.
      In 2011 repressions against the followers of Said Nursi stepped up sharply, despite the fact that it is hard to find a reasonable justification for prosecution of this movement. Nine people, including a group of six in Nizhny Novgorod, were convicted of membership in a non-existent, but, nevertheless, banned Nurcular[25] organization - de facto, for spreading the Nursi teachings. Moreover, four out of nine defendants received actual prison terms from 8 months to 1.5 years.[26] New criminal cases were opened as well. In particular, the charge under the Criminal Code Article 2822, against two imams, Ilkhom Merazhov and Camil Odilov,[27] received a great deal of attention. At this point, we can say that the followers of Nursi are persecuted more often than people of other faiths.

      For this reason the total number of wrongfully convicted Muslim activists in 2011 reached 30 people, compared to 14 people for the two preceding years.

      The case of Aydar Khabibullin, director of the Garden (Sad) publishing group and Edward Gabdrakhmanov, who had previously served a term under Article 282[28] caused even greater resonance. Both were arrested in October 2010 and accused of possession of ammunition and distribution of leaflets inciting to hatred, It is difficult to evaluate the charge on the merits, because we know neither the contents of the leaflets, nor whether one or both defendants were involved in distribution. We also cannot assess the credibility of the allegations by the defense that the ammunition had been planted. We can only say that a well-known publishing activity of A. Khabibullin does not seem very compatible with storing grenades in his house. The charges against the Garden publishing group are based on the findings of experts, who discerned the signs of extremism in calls to live according to Sharia, contained within the medieval treatise, and in abundance of violence in the military history book. Alexander Torshin, the first vice-speaker of the Federation Council, stated immediately after the arrest that Khabibullin is a "leader" of Nurcular organization, who had been engaged in training suicide bombers via hypnosis.[29] It is hard to shake the feeling that essential parts of case, which entered the court in September 2011, have been fabricated.[30]

      However, even very serious charges are sometimes impossible to prove in court. For example, on May 31 the court in New Urengoy refused to ban the Muslim community Nur Islam on the basis of unconvincing evidence of spreading illicit texts and undocum<br/><br/>(Message over 64 KB, truncated)
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