Bulletin 4:16 - Special Issue: SOVA 'Anti-Extremism' Report '09
- THE RUSSIAN NATIONALISM BULLETIN
A Biweekly Newsletter of Current Affairs
Vol. 4, No. 16(97), 24 April 2010 - Special Issue: SOVA 'Anti-Extremism' Report ´09
'Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2009'
By Alexander Verkhovsky
SOVA Reports and Analyses, 13 April 2010,
C o n t e n t s
2. MAIN THESES
3. ANTI-EXTREMIST LAW BASIS
4. PERSECUTION OF POLITICAL AND SOCIAL GROUPS
- Persecution of political groups
- Unjust bans of organizations and consequences
- 'Social group' as a doubtful term
- Pressure against human rights activists
- Limitation of freedom of conscience
-- Persecution of Muslim groups
-- Persecution of Jehovah's Witnesses
-- Persecution of Falun Dafa followers
-- Other cases of limitation of freedom of conscience
5. UNJUST PERSECUTION OF MEDIA
- Failed attempts to close newspapers
- Warnings to media and excessive vigilance
- Problems with law enforcement in the Web
6. CONCLUDING REMARKS
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This report,as well as the two previous ones , is an analytic review of inappropriate enforcement of the anti-extremist legislation during the last year (2009 in this case) 
There is already no need to prove the existence of the subject of analysis. But we faced criticism of our approach and the term `inappropriate anti-extremism' we use. That is why it is worth starting this report with brief considerations in order to outline the Sova center's approach to anti-extremism, that is to the development and use of the anti-extremist laws.
Our approach is being criticized from two sides. On one hand, we sometimes hear that one should not consider inappropriate the persecution of the activists who we (and our critics) think are socially harmful or even dangerous. Against this, we can only repeat the commonplace thesis that civil rights and the Russian legislation are in whole applied to everyone equally, regardless of one's views or even committed crimes . For instance, we think that neo-Nazis have the same right to march in the streets as others, even if some of them are fairly suspected of murders. Our legislation bans not one or another view or political affiliation but certain actions including racial, ethnic and religious hate incitement.
That is, not a rally is illegal but the content of slogans and speeches. So a rally can only be suppressed if the law is being violated during it. Another example: when Duel newspaper expressed its views that we strongly oppose and was persecuted for this, we were against this persecution. But when it was finally closed for evident violation of law we did not find it inappropriate. `Inappropriate anti-extremism' is bad not because `good' or `our' people are persecuted but because basic civil rights are violated.
On the other hand, consistent advocates of freedom of expression think that the anti-extremist legislation is inappropriate in principle, and so we should not subdivide anti-extremism into appropriate and inappropriate  one can even say that we thus discredit the human rights, contribute to the rise of xenophobia, etc.  Various arguments appear, more
or less profound. It is worth noting that some advocates of the cancellation of the anti-extremist legislation do not fully represent its contents. In particular, right there one can find the regulations directed against violent hate crimes .
It seems that the most substantial part of this dispute is dedicated to a single question: whether there should exist bans on the content of public speeches if they do not mean direct crime instigation (usually, there is no dispute around other essential moments concerning the anti-extremist legislation although it has many serious defects).
We will clarify our point of view concerning limitation of freedom of expression.
We respect the US approach set in the First Amendment to the United States Constitution (no matter if we agree with it or not) that presumes no such bans. But Russia both de facto and in a legal sense belongs to another tradition, the European one. In Europe (and in Russia all the more), the society relies less to the mechanism of self-regulation, more to the limitations set on behalf of democratic state and by force of it. This tradition is recorded in several obligatory international legal agreements including the European Convention of Human Rights that provides a possibility for limitation of freedom of expression in part 2 article 10:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
It is easy to see which sentences in this formula can be referred to counteraction to extremism. It is more complicated to understand what limitations and sanctions are really necessary for a democratic society to achieve the goals of such counteraction. Every country finds this balance of different social values in its own way, and the common balance for all of us country members of the Council of Europe is being created by the precedents of the European Court of Human Rights. One can argue over certain rulings of the Court or certain national laws but the necessity of such limitations is generally doubtless.
If Russia withdraws from relevant international agreements and cancels the element of state regulation providing limitations of instigating racial hate, the mechanism of social self-regulation similar to the US one will not work effectively enough. This is especially evident for today's Russia.
The move towards self-regulation should be more gradual (if not in a period of revolutionary changes). Therefore, it is inevitable to establish prohibitory legislation in Russia, as well as in the whole Europe.
We always said that the Federal Law on Combating Extremist Activity (and the regulations of other acts linked to it) was a poor repressive initiative from the very beginning. We never use the term `extremism' because a bad juridical definition hampered the term of the political language (however, we use the term `anti-extremism' because it determined the well observed and definitely identifiable practice). But those who protest against this law today should understand that many of its elements existed before and will remain even if the law is cancelled tomorrow. First of all, we mean the regulations of violent hate crimes but also the regulations limiting freedom of expression including the current content of articles 280 and 282 of the Criminal Code (`Public calls for extremist activity and hate incitement'). We should mention however that the content of these limitations must be thoroughly reviewed, namely narrowed and clarified.
Relying on this interpretation, we cannot say that the anti-extremist legislation is bad in every line (even if it is bad as a whole) and that any anti-extremist punishment (even for an expression) is unsuitable and all the more inappropriate.
But we can speak about two following expressions of inappropriate anti-extremism.
The first one is the lack of correspondence between the law regulations and the letter and, above all, the spirit of the Constitution and the aforementioned European Convention. This lack of correspondence is displayed particularly in the fact that limitations of freedom of expression are formulated in a way that they cannot be considered indispensable in the democratic society, as the Constitution presumes (for instance, the ban to state the religious superiority).
And certain anti-extremist bans are even hardly bearable in the democratic society (for example, the ban of `social hate incitement'). Some limitations are necessary but the punishment for violation is evidently excessive. In general, we are against deprivation of liberty for expressions not calling for violence.
Briefly speaking, the anti-extremist legislation excessively limits freedom of expression. And in some cases, these limitations contradict the spirit of the international law.
We condemn such inappropriate regulations of the law. But the current legislation is like this and it does not make sense to criticize judges or officials including those of law enforcement agencies only for its execution. We should note however that many poor regulations (for instance, the ban of any image of a swastika regardless of context) are applied very seldom which means that many officials decline to apply absurd regulations. On the other hand, many regulations have a very broad interpretation (like the `social hate incitement') and we found it reasonable to criticize the application of such regulations in cases without essential social threat or any danger at all.
The second expression of `inappropriate anti-extremism' has to do with law enforcement. Even poor law regulations can be either fulfilled or violated. In many cases, the application of anti-extremist legislation does not correspond with the legislation itself.
First, one gives the name `extremism' to something that is not defined by the law. Second, some items of the definition can be understood too broadly. (Other laws can be violated by anti-extremist activity too but this is not the subject of our analysis as a rule.)
The other cases of anti-extremist law enforcement can be considered appropriate. We do not use the term `appropriate anti-extremism' because those remaining cases can be doubtful concerning the Constitution and international legal obligations first of all. However, we see the importance of separating doubtful cases from the cases of legislators' or law enforcers' arbitrariness.
The report is based on the given definition of the term `inappropriate anti-extremism'. We do not present a mere list of facts related to inappropriate enforcement of the anti-extremist legislation one can look through them at the Sova center's website in the Inappropriate Anti-extremism section (http://xeno.sova-center.ru/89CCE27).
The report offers the analysis of the main directions of law enforcement in this field. Within these directions, it is divided into subsections following not causes célèbres but the tendencies mostly typical for 2009.
2. MAIN THESES
2009 saw no progress in the law base of the counteraction to extremism. In particular, the law enforcement based upon the federal list of extremist materials seems to be more and more neglected. However, the attempts to worsen the legislation were unsuccessful.
As the year before, inappropriate anti-extremist persecution was addressed mostly not against political opposition but against other targets, like social activists, mass media and religious minorities. Political groups that suffered the toughest inappropriate pressure include Russian, Tatar and Bashkir nationalists. As a rule, the authorities still prefer to persecute National Bolsheviks and radical political Islamist movements. Regardless of our personal attitudes to any of the groups mentioned above, in this report we denote the inappropriate nature of persecution against them.
Human rights organizations and activists can also become objects of inappropriate law enforcement but last year none of such cases ended by real sanctions.
The practice of persecution for `social hate' incitement broadens steadily, while `social groups' are defined according to current needs of the persecutors. This mechanism is obviously universal for almost all kinds of repressive activity.
Anti-extremist legislation became a very powerful instrument for limitation of freedom of conscience. Persecution of Muslim minorities continues, aiming particularly at those who have nothing to do with terrorism or other kinds of threatening activity.
An unusually vast campaign was unleashed against Jehovah's Witnesses. The attempts to persecute for blasphemy are also not forgotten. There are also other objects of `inappropriate anti-extremism', starting with Falun Gong.
Although there were no printed media closed in 2009 because of inappropriate claims of extremism, such claims in form of warnings are more and more frequent. They usually arise from evidently overestimated concern over intolerant expressions or mention of extremist organizations in the media. However, warnings are not always the limit. The example of the toughest pressure over the media was recorded in Dagestan where criminal proceedings were instigated against the journalists of the Chernovik newspaper.
Last year made the problem of law enforcement in the Web more distinct. We often see how the impunity of real criminals is combined with various forms of pressure over those whose activity should hardly attract the attention of law enforcement agencies.
The machine of the `struggle against extremism' accelerates steadily. It is very likely that many cases only appear due to the authorities' urge of showing their participation in the fight. This does not mean that one cannot oppose the machine. On the contrary, attempts to stop inappropriate law enforcement succeed not infrequently. Still, these cases remain to be exceptions in general.
The `struggle against extremism' involves not only more and more officials but also more and more ordinary citizens.
3. ANTI-EXTREMIST LAW BASIS
The low quality of the anti-extremist legislation as a whole can be improved or worsened through its radical review (as it was done in 2007 or even harsher) or through separate corrections or clarifications by supreme courts of Russia that have binding force for the whole law enforcement. During the last two years, there was absolutely no talk of a radical review but separate corrections were input in 2009, or at least such attempts were made.
First of all, it should be noted what was not done neither in 2009 nor before: there were no attempts to make the definition of `extremism' at least more comprehensible and less open to free interpretation.
Of course, regulations limiting freedom of expression are not absolutely clear in other countries as well. They leave a corridor to be narrowed by legal practice. But the law formulations must be clearer and not only copy the Constitution regulations as in some cases of defining `extremism'. The supreme courts can and must give necessary clarifications summing up and developing the law enforcement. However, nothing similar has been done yet.
Law enforcement agencies and courts solve the problem of the lack of clear definitions by inviting experts. This can be done on every stage of the case, from the prosecutor's examination to the court. Invitation of experts drags out cases (up to the expiration of the period of limitation), it also costs much, however the quality of their examinations has already become subject of anecdotes. But whereas the society often pays attention to the quality of examination, two essential problems remain unnoticed.
First, in most cases the questions are out of the experts' qualification. The experts are actually demanded to treat the actions from the legal point of view, not linguistic, historical or any other one. The questions are as follows: "Are there traits of extremism in...?", "Does this text incite hate? Towards whom?", etc. Experts have no right to answer such questions which lay beyond the framework of their professional competence.
Correspondingly, prosecutors, investigators and judges have no right to ask such questions. On the contrary, they must provide legal treatment themselves. Therefore, responsibility is passed to the experts whereas the decisions, strictly speaking, violate legal procedures. But violation has already become customary and participation of experts is considered by all sides an integral part of an extremist case.
By the way, neither the law, nor any standard acts indispensably require an expert opinion. Furthermore, in most cases involvement of experts contradicts the common sense.
If a public call (which is the point, as a rule) is to incite certain feelings or actions within a wide circle of people, this should be evident to the investigator or the judge with no help of academics. If the text intention can be only revealed with the help of advanced scientific analysis, then its propagandist potential is extremely low, such propaganda is inefficient and thus poses no considerable social threat. However, the considered text can also be addressed to a specific audience such as people belonging to a certain sect or subculture. This implies a special slang and conceptions unclear for an average citizen. But such cases are rather an exception.
The obscurity of the law and mutual interest of law enforcement officials and experts (who are by far not always incompetent but almost always have their personal interest) make the practice very stable . To change it, clear decisions should be made at a federal level (by the parliament, the Supreme Court, etc.). At least, the procedure of requesting the examination during the investigation should be made more complicated in order to impede the abuse from the part of law enforcement officials.
But so far, the problem of examination expansion has not even been discussed seriously.
The ruling of the Russian Supreme Court that discussed the appeal against the closure of the national patriotic newspaper Pamyat-Novosibirsk is very positive. The decision of the previous instance was cancelled because both warnings it was based upon were made for the materials published before the first of the warnings was issued. In this case it was impossible to say that the newspaper's editorial board had not mended after the first warning. The court proceeded from the premise that a warning is a preventive measure, which is not intended to facilitate liquidation of a media outlet, but rather to point out any deficiencies that the editors are presumed to ignore, and to discourage further violations. Now, according to the Supreme Court ruling, a reference to a warning will have its force only if a discussed material is published after this warning. So it becomes illegal to close media the way Novy Peterburg was closed, for instance. The paper received a couple of warnings for materials published before the first one was issued and then it was closed on the base of the complex of warnings.
In spring 2009, in the period of the new aggravation of the history politicization by the authorities, some projects appeared to change the legislation in this field.
The idea of Rustem Shiyanov, member of the Federation Council, to move the article on demonstrating Nazi symbols from the Offences Code (part 3 article 20) into the Criminal Code was rejected in autumn for formal reasons. Shiyanov's anti-Nazi initiative could aggravate the current practice of inappropriate persecution `for swastika' because neither the current law nor Shiyanov's bill specify what context makes the use of Nazi symbols illegal.
The amendments to the Criminal Code proposed on the eve of May 9 by a group of United Russia deputies led by the Duma speaker Boris Gryzlov had far more chances to be approved. The bill was to provide criminal responsibility for the `rehabilitation of Nazism'. The definition of the new corpus delicti was so vague that if the new article was included into the Criminal Code as the deputies proposed it would make any historic discussion of disputable issues of the war period almost impossible. It is enough to say that the deputies suggested criminalizing any statement on the Soviet Union's or its allies' crimes during the war .
However, this political campaign against `history falsifiers' failed and the bill did not reach its first reading. In January 2010, the government gave its negative resolution to the bill and the United Russia faction expressed willingness to prepare a project of a higher quality. But even if one removes the most odious elements from the project there will still be space for purely political debate on who should or should not be attributed to `Nazi accomplices'. Unfortunately, a certain level of history politicization is inevitable but criminalization of history is unacceptable and it is possible to avoid.
In 2009, as well as in previous years, some excessively repressive legislative initiatives were rejected or even did not reach its introduction to the Duma. On November 6, 2009, the State Duma rejected a bill providing amendments to the Federal Law on Combating Extremist Activity introduced in May 2008 by the Bashkortostan Republic Kurultay. The measures proposed in the bill aimed at regulating Web providers' activity were so unrealistic that the government gave its negative review to the bill in 2008 already.
A new project of amending the law On freedom of conscience prepared in the Justice Ministry has not (yet?) been introduced to the Duma (it was dedicated mostly to limitation of missionaries' activity). In October, it became known that the bill included a passage saying that `people convicted for inciting national and religious hate or other extremist crimes cannot be founders, members and participants of a religious organization'. Considering the vagueness of the term `member of a religious organization' and all the more `participant', this regulation could threaten all big religious organizations since it is impossible for their leaders not only to control all of the `participants' but even to know them all. As a result of the pressure from different sides, the ministry even removed the bill from its website.
We should also note the lack of progress in managing the federal list of extremist materials which is perhaps the most scandalous element of the anti-extremist legislation. The discussions on the necessity of modifying this instrument that have been taking place at least for two years on various levels have not yet developed into any real initiative.
However, the law enforcement related to the list gives more and more examples proving its nonfunctionality.
The idea of the list itself could be explained by reasonable and even humane considerations. The list establishes a mechanism which makes it possible in some cases not to persecute those who distributed extremist calls under articles 280 and 282 for it is almost always complicated and often too severe. It gives an opportunity to manage with administrative persecution for distributing materials on which it is known in advance (from the list) that its distribution is illegal. But good intentions have evidently not been fulfilled.
First, the definition of extremism contradicts the limits of freedom of expression stated in the Constitution and inappropriate use of this definition worsens the problem. That is why the list contains a lot of materials that cannot be considered socially dangerous.
Second, the inclusion of the material into the list limits its distribution insignificantly because a court only bans a certain material (a book, a leaflet, a song) that was presented to it but any new version of this material (e.g. a new edition of the book with another foreword like in Ezhaev case, see below) should be considered from the start. We really know rather few cases of persecution under part 29 article 20 of the Offences Code that provides responsibility for mass distribution of extremist materials. In 2009, only four of such court decisions were recorded (one more was cancelled because the ruling blacklisting the respective book as extremist was cancelled). There may be more but not much.
Third, materials are described in court decisions so improperly that it is often impossible to find out what edition or material is the matter. We do not mention the cases when courts ban entities that do not exist, such as already closed websites.
Fourth, a lot of technical and juridical problems with the list handling emerged .
The sum of these reasons led to the situation where the list simply cannot serve as an adequate legal instrument.
Its further functioning can only worsen the problem. It is enough to say that in the end of 2009, there were 467 items in the list which means that it grew one and a half times during the year, and the tempo does not tend to slow down: on March 1, 2010, there were 543 items in the list already. Such a long list of bans simply loses its functionality as a base for persecution for distributing materials known to be extremist.
The best solution seems to be the rejection of this inefficient instrument which has already been compromised. Or at least, the extention of the list should be stopped (for instance, by a Supreme Court ruling) until basic problems with its functioning are solved.
4. PERSECUTION OF POLITICAL AND SOCIAL GROUPS
Abuse of anti-extremist legislation more and more often attracts attention of the public at large, and this fact itself gives special significance to such cases. But for us their significance doesn't only depend on the degree of their publicity. No less important for the yet very unstable anti-extremist law enforcement are precedents and decisions that can entail new occasions of inappropriate persecution. This chapter describes or mentions the cases of 2009 that are the most significant concerning all these criteria.
Persecution of political groups
The anti-extremist legislation is often regarded as an instrument to suppress the peaceful political opposition that gives no reason to persecute it for real illegal activities. The last few years saw a considerable number of such examples. Any organizations of the opposition attract attention of law enforcement agencies, particularly the departments for counteraction to extremism. We should note that the focus and intensity of this attention as well as the percentage of inappropriate activities of the afore-mentioned agencies varies with region. As one can see below, their main objects of attention are various nationalist organizations.
On the country scale the amount of inappropriate activity against political organizations in 2009 decreased. It may due, on the one hand, to the almost total end of electoral struggle, and on the other hand, to the fact that the fear of something like `color' revolutions almost disappeared.
In comparison with the last two years, we recorded very few cases of withdrawal of prints `for examination' (as an exception, we can mention the withdrawal of copies of Konstantin Krylov's brochure `17 voprosov russkomu natsionalistu s otvetami' (17 Questions to a Russian Nationalist with Answers) on the eve of the presentation or the withdrawal of 250 copies of the leftist newspaper Ultimatum). The number of arbitrary detentions following lists of suspicious people reduced (in the end of 2009, the prosecutor's office showed interest towards the abuse of the police: the prosecutor's office of St. Petersburg Kalinin region made a representation to the regional police authorities demanding to remove violations while using one of those lists). There were also few cases of harsh persecution (and the case of Tyumen anarchists accused of drawing slogans on the walls of a military enlistment office instigated in 2008 was dismissed). Only National Bolsheviks are out of the tendency (see below). In all, the anti-extremist legislation with all its abuse in full swing obviously has not become the main means for the pressure against political opposition (except for certain radical movements that can be fairly subject to the legislation).
It is all the more important to mention here the case that is positively out of the common practice, perhaps due to the regional specificity of Bashkortostan Republic. Bashkir authorities that rule the republic severely were earlier well-known for their repressions against radical Islamists and opposed Bashkir nationalists. But there is a group in the republic opposed to both the authorities and the
two groups mentioned above. It is a circle around the Ufa Gubernskaya website that opposes the authorities from the positions of moderate Russian nationalism. These people may even not be regarded as political opposition at all but the regional authorities clearly treat them as such.
It may sound ironic but the reason for repression was the text of the circle's opponent published at the website. It was a fragment from the Bashkir nationalist and Islamist Airat Dilmukhametov's brochure `Warriors Against Bastards'. In May 2008, criminal proceedings were instigated under part 1 article 282 and part 2 article 280. The use of part 2 (calling for seizure of power or violent change of the constitutional system with the help of mass media) was inappropriate even formally because the website was not registered as media. On June 5 already, the Karmaskaly regional court of Bashkortostan designated the brochure itself as an extremist material.
We suppose the brochure being written from the point of view of a Bashkir nationalist and including explicit elements of hate speech. So its designation as an extremist material is disputable but there was surely no need to instigate criminal persecution against it. Dilmukhametov himself was given a suspended sentence under article 280 in 2006 already, and on June 25, 2008, he was convicted under the same article again (the sentence was suspended as well). The brochure became the reason to instigate criminal proceedings against him for the third time. (Under the forth criminal case, he was detained in April 2009, and in the end of the year, the case was sent to the court.) But not only him.
In May 2008 already, a group of activists and scientists linked to the Ufa Gubernskaya were searched but no one was charged. There were attempts to limit the access to the site on the territory of the republic but later local providers resumed access. The pressure campaign resumed in spring 2009.
On March 5, 2009, Kirovsky court of Ufa designated the whole website as an extremist material although there were no serious causes for that. It was really possible to find many examples of hate speech at the website but not in its materials but in the visitors' comments. Several days before that, criminal proceedings were instigated under article 282 against one of the website visitors: he was charged with writing a big amount of xenophobic comments (the hearing is not over yet). In April, local providers began to limit the access to the website on legal grounds already but outside the republic, the decision to ban the access to the website was not fulfilled. The website was renamed to Novosti Ufimskoi gubernii, it is accessible from another URL (http://www.ufagubnews.ru), there is a comment premoderation there this time but the number of harsh anti-Bashkir comments has not reduced.
If treating the anti-Bashkir rhetoric strictly, the authorities should have accelerated the criminal case investigation but instead, they decided to stop activity of the editorial staff. On August 4, five people including the website owner and editor-in-chief Nikolai Shvetsov were arrested. All of them were charged under part 2 article 280, point «c» part 2 article 282 (hate incitement and insult to human dignity committed by an organized group), part 2 article 2821 (participation in an extremist community), and Shvetsov personally was also charged under part 3 article 212 (calls for active contempt of legal demands of the authority representatives and for mass disorder, calls for violence against citizens). So far there has been no such a set of charges in Russia against people not involved in any violence. Charges under article 2821 have been very rare including the cases where it could be quite suitable.
Among those arrested was the senior staff scholar from the Ethnological Research Center of the Ufa Science Center of the Russian Academy of Sciences Ildar Gabdrafikov. He is the permanent correspondent of the Ethnological Monitoring Network led by Valery Tishkov, director of the Institute of Ethnology and Anthropology of the Russian Academy of Sciences. It is likely that the mediation at a high level saved the arrested at the moment. On August 13, according to the decision of the Republican Supreme Court four of them including Shevtsov and Gabdrafikov were released with a pledge not to leave (later, a ruling on home arrest was issued but then it was cancelled, too).
At the moment the report is being written, the case opened more than a year and a half ago has not reached the court yet, it is suspended like several other cases (see some of them below) that are extremely inappropriate if compared to the current anti-extremist law enforcement.
In April, the chairman of the Tatar social center in the neighboring Tatarstan Rafis Kashapov was found guilty under part 1 article 282 and given an eighteen-month suspended sentence. Kashapov was charged with writing and/or distributing several articles (in the Tatar social center blog in particular). Kashapov admitted authorship of only one of the articles, `No to Christianization!'. (Later, on September 4, all those texts were blacklisted by the court as extremist materials.)
Regardless of the authorship, we have found neither instigation calls nor ethnic or religious hate incitement in the articles mentioned in the sentence except for one. The author (or the authors) criticizes the Russian Orthodox Church, mainly the national and religious policy of the Russian state in different times but criticism like this cannot be subject to a criminal persecution.
The disputable issue could be the call of the editorial staff of the separatist website Ichkeria.info that was reproduced in the Tatar social center blog. This call itself includes appeal for fight for the separation of Caucasus from Russia, and in the context of Ichkeria.info this appeal read undoubtedly as a call for armed fight. The Tatar social center expressed solidarity with armed Chechen separatists (as it did earlier). It could be possible to consider whether this text reproduction is corpus delicti of article 280 (public calls for extremist activity) but there can be found no ethnic hate incitement, i.e. corpus delicti of article 282. The reproduction of the Chechen separatists' call was a dubious act from the law perspective. But convicting the head of the Tatar social center on this count of the indictment under article 282 did not contribute to the sentence's appropriateness.
By the end of October 2009, the case of another Tatar nationalist, editor of Chally yashlere (Youth of Naberezhnye Chelny) newspaper Damir Shaikhutdinov reached the court. He is convicted of point «b» part 2 article 282 (hate incitement and insult to human dignity committed with the help of mass media by a person using his or her official position) for publishing the article `Peter the Great's Secret Testament'. This article argues against the point that some territories including the modern Tatarstan `peacefully joined the Russian state'. From our point of view, it does not exceed the framework of common anti-colonialist rhetorics and includes nothing anyone should be prosecuted for. Nevertheless, on January 14, 2010, the city court of Naberezhnye Chelny gave Shaikhutdinov a eighteen-month suspended sentence with a two-year trial period.
The persecution of Shaikhutdinov is likely to be linked to the case of Milli Meclis, the basic organization of Tatar separatists in Tatarstan. The case was started on December 26, 2008 in response to the new declaration of Milli Meclis on the Tatarstan sovereignty approved in December 2008. The texts with which Milli Meclis is charged include no rhetorics that could be rated as extremist except the call for separation of Tatarstan from Russia (the authors even proclaimed the Tatar government in exile). Unfortunately, even a peaceful call for separatism can be interpreted as extremism as a result of a poor wording in the Constitution reproduced in the definition of extremism:`violent change of the foundations of the constitutional system and infringement on the Russian Federation's territorial integrity'. It is unclear in this phrase whether the word `violent' is referred to its first part or to the both parts.
It is worth noting that Milli Meclis activity met such reaction not only in Tatarstan. In January 2009 already, the Tatar national cultural autonomy of Magnitogorsk (Chelyabinsk region) `Tatar rukhy' received a warning after its namesake newspaper had published the aforementioned document. By June, a charge, so far the only one, was brought under the case of Milli Meclis against its leader Fauziya Bairamova. In November, the case went to the court, and on February 24, 2010, she was given a one-year suspended sentence under part 1 article 282.
The `essential' subject to anti-extremist arbitrariness could be any leftist group expressing its anti-capitalist pathos in which one can easily see social hate incitement.
However law enforcement agencies fortunately do not go this way (so far), likely in fear of a wide scope of persecution in perspective. But this does not mean that leftist groups are not subject to arbitrariness in general.
For instance, on August 28 in Tver, six leftist labor union leaflets with nothing but cartoons and calls for the establishment of `combatant labor unions' were designated as extremist materials.
In the end of June 2009, Khabarovsk local prosecutor's office instigated criminal proceedings under part 1 article 282 against Natalya Ignatyeva for a poem she recited at a rally on May 1, 2009. It was a satirical oeuvre written in the person of `oligarchs' and `officials' addressing the common people as `ivans' and `Papuans' deep in drug addiction and alcoholism. The prosecutor's office pretended not to notice the satirical device and charged Ignatyeva with "insult to human dignity of a group of people on account of their nationality" (the case is not over yet).
Unjust bans of organizations and consequences
The vastest campaign of anti-extremist persecution in 2009 was that against National Bolsheviks. It was based upon article 2822 that criminalizes the participation in activity of a banned organization. As a whole, in 2009 10 sentences were passed against 13 National Bolsheviks under article 2822 (sometimes in combination with other articles), five of them were sentenced to prison terms. Three sentences were passed against 14 activists of Hizb ut-Tahrir . Many other cases, mostly against National Bolsheviks, started in 2009 are not over yet.
We do not believe this article to contradict the law and we do not doubt that the National Bolshevik Party continues its activity. Finally, it was possible to file quite different appropriate claims against the party both before and after the ban.
But the decision to ban the party itself contradicted the letter of the anti-extremist legislation . That is why we are convinced that the ban should be reconsidered, maybe involving other episodes. Until that is done, bringing National Bolsheviks to trial only because of their participation in the party's activity is the continuing abuse of the anti-extremist legislation.
In part of the cases, the sentence is based on the only fact of the participation of NBP activity as it was for instance in the cause célèbre of Alexei Nikiforov, National Bolshevik from Yekaterinburg. In other cases, besides acting on behalf of NBP (article 2822), National Bolsheviks are charged with certain actions under other articles. This addition can be absolutely inessential as in the case of Darya Isaeva who was given a two-year suspended sentence on February 20, 2009. The girl was prosecuted for participation in an action at a Moscow restaurant Yolki-palki where two National Bolsheviks tried to palm off leaflets instead of money protesting against the price escalation. Qualification of this activity under part 2 article 165 (causing property damage to an owner or another holder of property by deception or abuse of confidence with the absence of signs of theft) is appropriate but the deed itself is so insignificant that there is no doubt that Isaeva was actually punished for her activity as a National Bolshevik.
So, although we believe the ban of the National Bolshevik Party to be inappropriate, one has to check certain activities that the accused are charged with. Unfortunately, in some cases we do not have enough information. In other cases, real activities of National Bolsheviks turn out to be illegal indeed. For instance, in the end of 2009, criminal proceedings were instigated against Mikhail Deev, National Bolshevik from Orel, under articles 282 and 2822. His allies have all rights to laugh at the examination that found a call for overthrow of power in the slogan `Down with autocracy and succession to the throne'. But these experts' reasons were not included into the resolution on the instigation of criminal proceedings. There are materials in Deev's case containing hate speech against Chinese but, from our point of view, they do not deserve criminal persecution. On the other hand, Deev is charged with direct calls for the armed rebellion and murder of representatives of the `capitalist' authorities (in an issue of Rabochaya bor'ba newspaper in December 2008). At the moment the report is being written, Deev's guilt is not proven.
For the same reason, we consider bringing activists of the Islamist organization Hizb ut-Tahrir to trial under article 2822 to be inappropriate because the Supreme Court's decision to ban it was absolutely groundless. This case should be reconsidered, too.
Persecution of Hizb ut-Tahrir members under article 2822 continues. We know about only three sentences in 2009. However, there were 12 convicted in one of the lawsuits (see above). Since we have no official data on the persecution of Hizb ut-Tahrir (as opposed to the previous year), it is hard to estimate the dynamics definitely. According to the data we dispose, the situation has not changed since 2008.
But a very important sentence from the legal point of view was passed on October 29 by the Supreme Court of the Tatarstan Republic. The court found 12 people to be members of Hizb ut-Tahrir and guilty under parts 1, 2 article 2822 (organization of an extremist community and participation in it), part 1 article 2051 (assistance to terrorist activity and recruitment), article 278 and 30 (attempt of a violent seizure of power). Seven people were sentenced to 4 to 8 years of colony of strict regime, four were given three-and-a-half-year to five-year suspended sentences and one was found mentally incompetent and was sent to compulsory medical treatment.
We do not know what were the grounds for the charge under article 2051 in this case, i.e. if all those people really attempted to involve someone in terrorist activity. But none of them was charged even with preparation of a terrorist attack in this case.
The charge with attempt at a violent seizure of power under articles 30 and 278 is far more remarkable. The defendants seem to have not made anything of the kind. No weapon was found. Article 278 in the sentence was only explained by the fact that the goal of Hizb ut-Tahrir was to build a world caliphate and since it is impossible to establish it in a democratic way (and the organization does not take part in elections on principle), the only way is a coup d'etat. None of the organization's documents we are familiar with contain anything like preparing a coup d'etat. (Hizb ut-Tahrir may expect that its Islamist propaganda though peaceful in content will force someone else to commit such actions, but all of this has nothing to do with Russia of course.)
So we see that persecution of Hizb ut-Tahrir activists who are not numerous is in progress. It is based on a decision made without proper grounds by the Supreme Court on February 14, 2003 already. The Supreme Court could dispose some information presented by special services, for instance, concerning the organization's involvement in terrorist activities. But the information was not taken into account by the court and so it is impossible not only to dispute in a legal sense but even to discuss.
However it is worth discussing because experts on radical Islamism agree that Hizb ut-Tahrir is not involved in terrorist activity.
The decision could be considered a mistake caused by the novelty of the procedure of banning organizations. But during the last two years, the Supreme Court only consolidated the practice of banning organizations without revealing its grounds properly. On April 10, 2008, the Nurcular movement was banned as extremist, on May 7, 2009 the Tablighi Jamaat movement was (on July 31, the appeal was dismissed). Both of these movements did not have real organizations in Russia but there are people in the country who can be called Nurcular or Tablighi Jamaat followers. And they already face problems.
The two movements differ very much according to their position in the modern Islam and their structure. Tablighi Jamaat is a real international organization whereas Nurcular is the name that various competing groups of followers of a Turkish theologian Said Nursi take (Surdi's books are banned in Russia since 2007 absolutely inappropriately). What these movements have in common is that many experts on radical Islamism consider both of them to be close to real terrorist structures. Tablighi Jamaat and almost all the groups that take the name Nurcular do not practice violence but their propaganda, especially the Tablighi Jamaat's sermons can surely lead some people to terrorism and really do so . Does this mean that the movements themselves are worth banning? The answer can only be found after a thorough investigation of their activity (expert estimates always vary considerably in such cases). The activity of the groups functioning under these names in Russia should be investigated as well. But since the Supreme Court did nothing like this its rulings should be considered inappropriate.
These decisions have evidently affected freedom of conscience of certain (not big) part of Russian Muslims. But the influence of the anti-extremist law enforcement on freedom of conscience as a whole will be examined below in a separate chapter.
There we will also consider one of the most significant events of inappropriate anti-extremist law enforcement in 2009, the campaign against Jehovah's Witnesses including the ban of organizations and materials.
`Social group' as a doubtful term
Perhaps the most celebrated anti-extremist sentence of the year was that of Irek Murtazin, political scientist and journalist, former press secretary of the Tatarstan president Mintimer Shaimiev. The criminal case was started in December 2008 and in January Murtazin who was already in opposition to Shaimiev for a long time was accused under three articles of the Criminal Code simultaneously: part 2 article 129 (libel), part 1 article 137 (violation of privacy), point «a» part 2 article 282 (social hate incitement with threat of violence). On November 26, 2009, Murtazin was found guilty of all charges and sentenced to one year and nine months of colony settlement (in January 2010, the Supreme Court of Tatarstan left the sentence in place ).
According to the court ruling, `libel' consisted in accusing Shaimiev of conniving at corruption, etc. as well as posting a false report on the president's death in Murtazin's LiveJournal.
The sentence against Murtazin under article 282 was based on hate incitement against a social group described as `representatives of Tatarstan Republic authorities'. The court found hate incitement in Murtazin's allegedly opposing the authorities to people and giving harsh opinions on the republican officials including Shaimiev in his book `Mintimer Shaimiev: The Last President of Tatarstan. Part 1' released in 2007 , in his blog and in the Kazanskie vesti newspaper.
There is no sense in disputing whether Murtazin's criticism of republican authorities was too sharp or not (to my mind, not too sharp) or whether there were false claims in his texts (this is the subject of article 129 in his sentence and we are not going to discuss it). One can also concede that the author aimed just at inciting hate against Tatarstan officialdom and had success. But it is impossible to agree with the statement that the republican authorities are a social group defended by article 282 (and the whole anti-extremist legislation), otherwise it would mean a full ban on criticism of the authorities and, even wider, of political opponents that contradicts the Constitution.
On the other hand, the law does not define the `social group' concept and Murtazin's sentence is only a copy of that of Vitaly Tanakov passed three years earlier. In his case, the authorities of Mari El.
This is why Murtazin's sentence should become a reason for the Constitutional Court to revise corresponding elements in article 282 and the anti-extremist legislation as a whole. We do not state that political criticism cannot be limited in any way (this would contradict both the Constitution and the European Convention of Human Rights). But we have no doubt that the right to criticism should be defended from the authorities' arbitrariness.
The ban of political criticism is not the only matter. The obscure term `social group' provokes other dubious collisions we wrote about more than once. In various criminal and civil cases investigated or checked in 2009, the real or potential social groups defended by the anti-extremist legislation were `law enforcement agencies officials', `military', `investigation services officials', `police officials', `state employees', `owners of domestic motor transport'.
In December, a court in Kostroma started hearing on distributing a leaflet `You have elected You are to judge!' that had been found extremist long before that and, from our point of view, inappropriately. The case was defined under part 1 article 282. The leaflet calls to hold a referendum on the amendment to the Constitution that would provide putting outside the law and executing officials who caused damage to the people. Although it is hard not to consider such proposal illegal and simply preposterous, the proposal to hold a referendum cannot be banned itself. Now the prosecutor's office is to prove in the court that Roman Zamuruev used this leaflet to incite hate towards such social groups as `people who did not join his movement' (the so called Army of People's Will), and `officials' as well.
Various social activists sent requests to the prosecutor's office to defend such social groups as `human rights activists', `media community' and even `SKA football team fans' (the latter demand was made by the fans themselves insulted by the fans of another team). Strange precedents are established during persecution of the Falun Gong movement (see below in the chapter devoted to freedom of conscience): its members have been charged in particular with incitement of hate towards such groups as the Communist Party and the government of China. On the other hand, a court in Tambov ruled on May 5, 2009 that homosexuals `cannot be treated as a separate and definite social group' in the sense provided by article 282.
In all these cases, different rulings are released. One cannot say that the law enforcement agencies and the court always held repressive positions. No case was started on the demand concerning the `SKA fans'. And on December 31, 2009, the criminal persecution against the blogger Dmitry Solovyov was stopped. He was accused under article 282 of inciting hate towards the officials of various law enforcement agencies including the Federal Security Service. However, there are enough repressive decisions to conclude the corresponding regulations of the anti-extremist legislation to be potentially repressive.
It is likely that applying the term `social groups' before an examination of respective regulations in the Constitutional Court or at least an explanation at a plenary session of the Supreme Court would be a profanation of the law and a total arbitrariness.
Pressure against human rights activists
The defamation and persecution campaign against human rights activists that started in the later 2000s was held with the use of various legal instruments and it was natural to expect that the anti-extremist legislation would be also brought into play. But it turned out that inappropriate anti-extremist law enforcement rather affected human rights activists in association with other objects. For instance, in this way Memorial received a warning for publishing mufti Nafigullah Ashirov's resolution on Hizb ut-Tahrir in 2006. Anti-extremism could only be used against human rights activists as a pretext to pressure though it had apparently nothing to do with them This happened to Memorial in St. Petersburg in December 2008, when a search in the center's office and the archive withdrawal were held on a barely groundless pretext of Memorial's connection with Novy Peterburg newspaper charged with publishing extremist materials. However, after several court hearings the search was found illegal and the withdrawn archive returned.
In some cases, anti-extremism is chosen as an instrument of pressure due to the law enforcement agencies' incompetence. For instance, in summer 2009, Dmitry Krayukhin, a well-known human rights activist from Orel, found out by chance that his photo was put in a police wanted list, in the section `Leaders of Orel extremist organizations'.
Direct attacks were rare. The sentence to the organizers of the `Caution! Religion' exhibition remains to be the most significant. Although the case is in the field of freedom of conscience first of all it was of no small importance that the exhibition took place in the Sakharov Center that is often a place for human activists' meetings.
The case of the `Caution! Religion' exhibition passed the button to the completely similar case of the `Forbidden Art-2006' exhibition. The hearing started in summer 2008 took far longer than expected and at the moment the report is being written they are definitely not over.
The head of Perm Civil Chamber Igor Averkiev was brought to court under article 280 for his material `Leaving Caucasus, we will become more free and strong' where one can see a call for the separation of the North Caucasus from Russia. At the same time, hearing started on designating the article as an extremist material .
The definition of extremism can be interpreted as including not only minorities' calls to separatism but also this kind of `inside out separatism'. This regulation is evidently an excessive limitation of freedom of speech (no matter how to treat separatism) and it is applied very selectively. The idea of separation of Chechnya and the whole North Caucasus has been discussed since the early 1990s and will be discussed in the future. The constitutional regulation of the indivisibility of Russia is not irreversible. The Constitution provides the possibility of its own change and consequently, one cannot forbid a discussion of amendments to the Constitution, whether the matter is Russia's integrity or, for instance, its republican system. However, this was not the only case when calls to change the Constitution were rated as extremist.
The case against Averkiev can be considered typical in another aspect. In order to persecute the activist, an article of his was chosen that is hard to defend. It includes too many insults of Chechens and other peoples of Caucasus.
It is a typical example of a hate speech built on stereotyping some true or not very true statements. But the degree of hate in this article is evidently not enough to designate it as an extremist material, let alone the criminal persecution.
However, the case on the article ban was suspended and the case against Averkiev came to a standstill because the prosecution could not receive a satisfying examination.
A very serious precedent could be the case on the closure of the Novorossiysk Human Rights Committee (NHRC) on the charge of extremism. This case is worth noting by the fact that the prosecutor's office in its demand to the court in August 2009 directly referred to clearly political claims against the NHRC. Those claims were borrowed from a complaint of the city authorities to the prosecutor's office. Aside from many various violations, the NHRC case got its `fame' because the prosecutor's office found the slogan `Freedom is not to give, it is to take' extremist . (The slogan was related to limitation of the adolescents in the streets in the evening.) The scandal around the NHRC case had considerable resonance which likely made the prosecutor's office withdraw its demand to the court in September 30.
But the city authorities did not retreat completely. The prosecutor's anti-extremist acts issued against the NHRC leadership in May 2009 remained in force. On December 10, Vadim Karastelev, one of the committee's leaders, was given a warning (that was wrong even from a formal point of view: he was given a `preduprezhdenie' whereas a citizen can only be given a `predosterezhenie') on extremist activity. The city police department only found extremism in Karastelev's attempts to attend the hearing on an ecological matter. In the warning, Karastelev was not even imputed of any violent acts. (We should also note that the police have no legal authority to issue anti-extremist warnings.) Thus, another anti-extremist act against the NHRC is completely illegal.
Limitation of freedom of conscience
- Persecution of Muslim groups
In a similar report a year ago, we mentioned that the anti-extremist legislation turned into a powerful instrument to limit freedom of conscience. We also wrote that the most famous victims of this arbitrariness are several Muslim groups but that Muslims are not the only targets for inappropriate anti-extremist law enforcement in the field of freedom of conscience. 2009 gave new, more convincing proofs that unfortunately this trend of law enforcement was noticed exactly.
The persecution of Hizb ut-Tahrir, Tablighi Jamaat and several other groups (see above) can not
be treated as limitation of freedom of conscience because those people are persecuted not for their religious views but for real and (more often) supposed links to the religiously motivated violent crimes. However, such judgments surely can not be definite enough. For instance, the membership in Hizb ut-Tahrir does not mean any special features in the religious doctrine that would let one consider this organization a separate Islamic trend (at least, I have never met such an opinion).
But Tablighi Jamaat is definitely such a trend. And although it is persecuted for supposed link to terrorist activity (most likely this persecution is inappropriate but not at all groundless) the ban limits a Muslim's religious choice exactly .
The persecution of Said Nursi's followers limits it even more. It is impossible to lay any substantial anti-extremist claim to them beside their statement on their belief's superiority, so the only claim against Nursists is based upon definite limitation of freedom of conscience . In December, searches in Nursists' homes were held in Daghestan.where local law enforcement agencies already have a real enemy, the armed Salafist underground.
The ban of Nurcular had bad consequences not only for Nursists. However, these consequences demonstrate again that those who persecute Nursists cannot find any believable explanation of this persecution.
On December 14, 2009, Moscow prosecutor's office reported on warnings about extremism given to the editor-in-chief of Izvestia newspaper and the director general of DA company for publishing an article by the Duma deputy Sergei Markov in February 2009.
In his article, Markov praised Fethullah Gülen, the informal leader of modern Nursists. The warnings are surprising concerning not only the people who received them but also the reasons. No matter what one thinks of Nurcular and Gülen, appreciating the latter's activity is not included in the term `extremism'. The law forbids only mentioning the banned organization without mentioning the ban itself (there was no such thing in the article) and approving terrorism. But Gülen and Nursists have nothing to do with terrorism.
A bit later, in January 2010, the same prosecutor's office gave a warning to Ravil Gainutdin, the chairman of the Council of Muftis only because in September 2009, an eighty-year-old Turkish citizen, disciple to Said Nursi, took part in a conference organized by the Council. It is impossible to understand why the prosecutor's office did not file any claims against the immigration office that gave visa to than man, or against Yuri Luzhkov, Moscow mayor who took part in the same conference.
The head of the Council's publishing house, Aslambek Ezhaev, managed to evade criminal persecution. In 2008, he was involved in the proceedings instigated under article 282 due to having published the book `Muslim's Personality' that was put in the federal list of extremist materials. Publishing the book, Ezhaev simply could not be informed that it had been banned in the remote Buguruslan for the book appeared in the list very late. But the charge with distributing extremist literature was dismissed not because of that. The reason of the charge dismissal was that the new edition was not identical to the banned version for there was another preface. Ezhaev as a person concerned failed to achieve that the term for the appeal of Buguruslan ruling (that has already become an example of incompetent ban) be restored. Moreover, on August 4, Uspensky court of Krasnodar territory banned `Muslim's Personality' again. Perhaps, it was another edition than that in Buguruslan but there is little ground to think that they differ considerably or that Uspensky court was informed of another ban.
But on the other hand, a no less preposterous case on banning the article (published as a brochure) `Novruz holiday and the Islamic doctrine' culminated in an almost complete triumph of justice. The article simply stated that the traditional Novruz holiday had non-Islamic roots. In April 2009, after a nine-month-long trial, Samarsky court in the city of Samara refused to satisfy the prosecutor's demand to designate both this brochure and the website `Islam as It Is' (islam.boom.ru) where the text was posted (among others) as extremist. On June 15, 2009, the court of Samara region approved this decision thus cancelling the ruling by the Samarsky court that banned the article. But the website was not restored.
As a whole, the number of cases connected with inappropriate persecution of activists of different Muslim trends did not change almost at all during the last two years . But the amount of violations of freedom of conscience on anti-extremist motives has grown this field was broadened.
- Persecution of Jehovah's Witnesses
The most impressive anti-extremist campaign in the religious field in 2009 was that against Jehovah's Witnesses. During the year, their religious communities became victims of very diverse forms of pressure , of which the most serious were the charges with extremism.
In October 2007 yet, Rostov region prosecutor's office issued two anti-extremist warnings to the chairman of a religious organization of Jehovah's Witnesses in the city of Taganrog. These warnings were based on intolerance towards other religions found by experts in the Witnesses' texts and behavior. The matter of claims to the Witnesses has not changed since then.
In November 2007, the same prosecutor's office issued a warning about extremism to a religious organization of Jehovah's Witnesses in the city of Salsk.
In 2008, the pressure against Jehovah's Witnesses stepped on a new level.
Similar warnings were issued in May 2008 to the Witnesses in Yekaterinburg and the city of Asbest (Sverdlovsk region). And although the court then refused to designate the Witnesses' materials presented by the prosecutor's office as extremist, criminal proceedings under part 1 article 282 were instigated in June (according to some reports, the case was closed but not earlier than in 2010).
On July 10, 2008, Rostov regional court began to investigate the Taganrog prosecutor's request to close down `Taganrog', the aforementioned local religious organization of Jehovah's Witnesses. One of the grounds for the request was the charge with extremism.
In the end of December, the prosecutor's office of Gorno-Altaysk demanded that the city court
blacklist 29 Witnesses' materials as extremist.
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