MINELRES: SOVA: Three Years of Combating Extremism in Russia

[minelres@lists.microlink.lv]

Original sender: SOVA <mail@sova-center.ru>


Dear colleagues, 
Please find attached our report on "Three Years of Combating Extremism
in Russia"

Best regards,
SOVA Center for Information and Analysis, Moscow
----------------------------

Alexander Verkhovsky, Galina Kozhevnikova
Three Years of Combating Extremism in Russia

It has been three years since the enactment of the Federal Law on
Combating Extremist Activity (hereinafter - the 2002 Law), and the
initial experience of its application can be summarized. 

The definition of extremist activity obviously relates to certain legal
provisions, which are not directly mentioned to in the said law. These
provisions include Art. 282 of the Criminal Code and provisions on
various hate crimes. We will consider any offences treated under these
provisions as extremist activity in the meaning of Art. 1 of the 2002
Law (hereinafter we use the term 'extremism' and its derivatives in this
sense only). 

We will not consider here any terrorist acts or 'propaganda' type of
offences committed by, or in relation to, Chechen separatists. While
these offences fall under the definition of extremist activity (and the
term 'terrorism' is included in the broader notion of 'extremism' under
the same Art. 1 of the Law in question), but for political reasons, they
belong to a different sphere of law enforcement. Moreover,
anti-terrorist law belongs to an adjacent, but different legal sphere.

The Law on Combating Extremist Activity came into force on July 30,
2002. This paper looks at the practice of law enforcement agencies and
courts between that date and this writing (September 2005), only with
regard to offences committed after July 30, 2002, except cases under the
relevant Criminal Code articles unaffected by the 2002 Law (hereinafter
we will use this term to denote this law and pursuant changes in other
laws).

The review is structured by legal provisions applied to extremist
offences.

Unless stated otherwise, all information presented here has been
published by the SOVA Center in its reviews and news reports
(http://sova-center.ru). The key developments in 2004 and 2005 presented
here are described in reviews by Galina Kozhevnikova and in the authors'
other articles on the same subject  covering the 2002-2003 events, so we
will omit most of the details. 

Sanctions against organizations
An organization can be defined as extremist only if it has been
liquidated under the 2002 Law. There have been very few such cases that
we are aware of, although the Law should enable such liquidation, as it
was stated at the time of its adoption in 2002.

The first organization closed under the 2002 Law was the RNE (Russian
National Unity) chapter in Omsk City, and then in the Omsk Oblast. On 10
October, 2002, the Omsk Oblast court, following a petition by the Oblast
prosecutor, liquidated the RNE chapter for violating three federal laws,
namely the Law on Public [Non-governmental] Associations, the Law on
Combating Extremist Activity, and the Law on Commemorating the Victory
of the Soviet People in the Great Patriotic [Second World] War. The
prosecutor's action was based on the content of the organization's
Charter and on its use of Nazi-like symbols.

The Omsk judgment enabled a virtually automatic liquidation of other RNE
chapters that use the same Swastika symbol. Indeed, a number of regional
RNE chapters have been liquidated since, but we do not know whether
courts always referred to the 2002 Law or to legislation adopted
earlier. In particular, the use of Swastika was the argument against RNE
chapter in the Republic of Tatarstan, when the Supreme Court of the
Republic liquidated the group on May 21, 2003.
 
We are aware of at least one case where a religious group was liquidated
for attempts to promote racial discrimination and for the use of
Swastika as its symbol. On May 5, 2004, the Slavic Community of Perun
Veda Temple (or the so-called Inglings - Old Believers Church ) was
liquidated in Omsk; strictly speaking, the liquidation affected three
interrelated organizations. 

The use of symbols (especially various modifications of the ancient
Swastika symbol) as the single reason for sanctions against secular as
well as religious groups lends itself to abuse; however, we know of only
one case of related abuse, which was an attempt to sanction National
Bolsheviks (NBP) under Art. 20.3 of the Code of Administrative Offences.
A district court in Nizhni Novgorod found in July 2003 that the NBP flag
(the same as Nazi, but with a sickle and hammer symbol instead of a
Swastika) violated the 2002 Law; however, the case was appealed in the
Oblast court, which sent the case back, and on September 11, 2003, the
same district court dismissed the case.

That said, abuse can take other forms. Amendments to the Law on Public
Associations changed the procedure for liquidation and termination of
NGOs on any grounds, not limited to extremist activity.

In 2002, the Krasnodar Human Rights Center was suspended for six months.
In early June 2005, the Nizhny Novgorod Human Rights Society (NOPCh) was
also suspended. In both cases, the charges against human rights groups
were not those of extremist activity, but referred to a specific
context: in Krasnodar, local authorities publicly claimed that human
rights defenders were undermining local security, while NOPCh in Nizhny
Novgorod was sanctioned for its formal ties with the Russian Chechen
Friendship Society - a group charged initially under Art. 280 of the
Criminal Code, which was later re-qualified under Art. 282 of the
Criminal Code (see below).

As to those groups which engage (or which are suspected by law
enforcement agencies to engage) in extremist activity, they are often
liquidated for reasons having nothing to do with extremism. On many
occasions, such organizations have been liquidated for some sort of
general non-compliance with regulations, found by local departments of
justice in the course of blanket inspections, and any apparent
connection between their liquidation and the content of their messages
has been vigorously denied by authorities. 

In the same context, we can mention the liquidation, in 2003, of the
National Power Party of Russia (NDPR). It is widely believed that NDPR
was closed 'for extremism', but in fact, the Ministry of Justice never
challenged NDPR's anti-constitutional activity; instead, it revoked the
party's registration for 'not having enough regional branches', even
though the case was at the moment considered in a number of regional
courts. 

A specific situation is faced by organizations which are found to be
'terrorist'. They can be found to be 'terrorist' under the 1998 Law
against Terrorism, but they also fit the definition of 'extremist', with
all implications. Therefore, a list of 15 terrorist organizations
established by the Supreme Court ruling of 14 February, 2003, is part of
the extremist organizations list. Most of the 15 groups are hardly
represented in Russia, some of them are exclusively Chechen - by their
origin and location, and we do not consider them in this review. Only
one group of the 15 is represented, visible, and vocal in Russia -
Khizb-ut-Takhrir. But it is aware of the Supreme Court ruling and has
not attempted to register.

 Election Campaigning
We do not know much about instances of direct application of the
election legislation, such as petitions by election committees or others
to courts challenging violations of election campaigning rules
(specifically, violations of extremist nature).

We know of a suit against German Sterligov who ran for the Mayor of
Moscow in December 2003. Sterligov used free TV air time to call for a
deportation of all Azeri and other ethnicities, and even threatened to
shoot some of them. Remarkably, the Moscow city election committee said
they were planning to sue the candidate, and even sent the TV ads to be
reviewed by experts, but finally did not sue Sterligov; instead, he was
sued by another candidate, Alexander Lebedev. However, on 28 November
2003, the Moscow City Court dismissed the suit.

It is common for election committees to refuse to find xenophobic
propaganda, so cases are never taken to court. In 2004, we know of at
least two such cases: Alexey Mitrofanov running for Pskov governor, and
Evgenya Golubyatnikova, running for Volgograd governor (both from LDPR).

But on 8 April 2005, in Khanty-Mansiisky Autonomous District (KMAD), a
candidate running for the mayor of Megion - Alexander Kuzmin, winning
the majority of votes in the first round (49.53%), was banned before the
second round for incitation of interethnic hatred. Kuzmin was sued by
the Imam of the regional Moslem Religious Authority, and his runner-up
was the current mayor of Megion. On 29 June, the Supreme Court reversed
the ruling due to procedural deficiencies, rather than on the merits of
the case. A re-vote of the second round was scheduled for 11 September,
but stopped by the Supreme Court Collegium of Civil Suits as
inconsistent with the law on elections. 

Sanctions against media
Both government authorities and public prosecutors can warn mass media
allegedly engaging in extremis activity, and in most cases such warnings
are issued by the former. Before the administrative reform was launched
in 2004, warnings were issued by the Ministry of the Press and its
departments in federal districts, while currently this function is taken
over by the Federal Service for Supervision over Compliance in the
Sphere of Mass Communications and for Protection of Cultural Heritage
(often referred to as Ros-Okhran-Cultura). 

In 2003, a total of 30 such warnings were issued to media, including
'marginal' nationalist as well as 'normal' media outlets. In 2004 -
apparently due to the reorganization of government - the newly formed
Ros-Okhran-Cultura did not issue any warnings, but since 2005 they have
been increasingly active and warned a number of media.

Two newspapers were closed with specific reference to the Law in
question (some other media were closed for allegedly extremist activity
back in the second half of 2002, but the charges were based on older
incidents and on former legislation). One of the two newspapers - The
Russian Siberia (Russkaya Sibir) - was closed in 2003, and its
editor-in-chief, Igor Kolodezenko, was convicted under art. 282 of the
Criminal Code (and immediately released under a general amnesty). We
should clarify that the closure of the newspaper and the trial of the
editor-in-chief were based on different publications in the newspaper,
so the proceedings were separate and independent of each other. However,
Kolodezenko immediately registered his banned newspaper again under the
title of Our Native Siberia (Rodnaya Sibir), and distributed its copies
during trial sessions of the court, which, once again, convicted him
under art. 282 of the Criminal Code for older publications in The
Russian Siberia. The sentence, however, was probational, and the
convicted publisher was not banned from publishing. He registered
another paper and continued to distribute it. Another decision to banish
a newspaper was fairly recent. On 4 July 2005, a court of first instance
passed a decision to close NBP's [National Bolshevik Party's] The
General Line (Generalnaya Linia) newspaper, but as of this writing, the
ruling has not entered into force,  and even if does enter into force,
the newspaper, no doubt, will continue to be published - most likely,
under the same logo as Limonka banned in 2002.

Art. 8 of the 2002 Law established a very strict and virtually
irreversible procedure for banning media outlets: if the producers of a
publication, upon receipt of a warning, fail to challenge it in court -
or, alternatively, do challenge it in court, but lose the case, the
publication must be - rather than 'may be' - banned. This procedure has
never been applied, however - which is good, because the procedure
effectively equates warning a media outlet with banning it. All of the
above also applies to the 2002 Law procedure for liquidating
organizations.

We are not aware of any rational explanation of why prosecutors and
Ros-Khran-Cultura fail to use judicial proceedings to ban openly racist
publications, while it is permitted by law and has been suggested, on
many occasions, by top officials of these bodies. Apparently, they are
held back by the toughness of restrictions placed on the freedom of
expression - even The General Line, which was extremely disliked by
authorities, was not closed until it had received three warnings.  This
motive, however - or any other motive, for that matter - was never
voiced in public.

We do not have sufficient information to discuss government attempts to
restrict extremist activity in the Web. Art. 12 of the 2002 Law is
little more than a reference, while no one has yet succeeded in
designing technically and legally sound legislation regulating the Web
content; it is also unlikely that such legislation will be developed in
the nearest future, given the lack of successful international
experience in this sphere. There have been incidents of extremist sites
being closed, but their closure was achieved through pressure on
providers by the law enforcement or by the public, i.e. by informal,
rather than formal, means.

Judicial ban on extremist materials
The 2002 Law offers two different (!) definitions of materials which can
be subject to a judicial ban. According to Art. 13 of the Law, all
banned materials are entered in a federal list, which is made public on
a regular basis. 

No such list has ever been published, and we have good reasons to
believe that it does not even exist. Moreover, there have been very few
cases of any material being found extremist. Logically, every time an
individual is found guilty of extremist propaganda under Art. 280 of the
Criminal Code, the materials they have published to give grounds for
such a finding should be found extremist as well, but we cannot test
this assumption due to virtually no cases under Art. 280 (see below).
Similarly, we have not heard of any court finding extremist any
materials associated with organizations  or publications banned for
extremism.  

Consequently, art. 13 of the Law is hardly effective. For example, RNE,
after liquidation of their regional chapters, continues the
dissemination of the same materials as the liquidated groups. Art. 13
can be applied independently to books or Web publications, but such
cases are rare. 

For some reason, the concept of 'extremist materials', as it is
currently applied in Russia, is primarily associated with texts on faith
and religious doctrines, which are rather old. The first known ruling
which found a print publication to be extremist was passed in April
2004, when Savyolovsky district court of Moscow found to be extremist,
and thus outlawed the distribution of, a book written by the founder of
Vakhabism in the 18th century.    According to Art. 13 of the 2002 Law,
production and distribution of such materials make one liable under
criminal or administrative law. However, in September 2003, the Moscow
Prosecutor's Office dropped the criminal investigation against the
publisher of the said book under art. 282 of the Criminal Code, for want
of corpus delicti, and has never reviewed the case. Apparently, the
distribution of The Fundamentals of Tawheed is an administrative
violation, rather than crime; however, the Administrative Code does not
provide for liability in such cases, so there is no legal foundation for
sanctions.

Banning an ancient religious treatise is hardly relevant. Obviously,
requiring ancient religious texts to be tolerant would be asking too
much. Without going into a much more complicated matter of whether such
requirements may be applied to modern texts, we should admit that
freedom of conscience prohibits the authorities from forcing faith
communities to abandon their historical religious texts. People can only
be judged based on what they write and do now. In this respect, we can
understand the attempt to sanction the publisher of the books by Said
Nursi, a Turkish fundamentalist of the 20th century, but the court,
having considered opinions of knowledgeable theological experts, found
the books to be consistent with law, and in April 2005, Dzhambul
Issabayev charged with distribution of the books was found not guilty
under art. 282.

The ruling by the Savyolovsky court had some unfavorable consequences.
Moscow-based neo-heathens were the first to take advantage of the
precedent, and demanded that the Prosecutor General should outlaw the
Bible for intolerant statements about heathens, and 'review the Russian
Orthodox Church for extremism', because their faith is based on the
Bible. The Prosecutor's Office effectively ignored the complaint, but it
could not possibly ignore a similar application by five hundred (and
later - five thousand, followed by fifteen thousand) citizens, including
19 members of the Federal Duma, concerning the same type of measures to
be applied to the Jewish religious treatise Kitsur Shulkhan Arukh and
Jewish organizations. The said Kitsur Shulkhan Arukh published in late
19th century is a digest of the Shulkhan Arukh treatise written in the
16th century and based on Talmud and its mediaeval comments; assessing
it in terms of modern Russian law makes as much sense as similar
assessment of the Bible or The Fundamentals of Tawheed. No criminal
investigation was launched, contrary to the demands of 'the letter by
500' - nor any investigation into this explicitly anti-Semitic letter -
but the Prosecutor's Office admitted in the explanation of why it
refused to investigate that Kitsur Shulkhan Arukh did contain intolerant
and thus unlawful statements while the investigation was dropped for
want of criminal intent of the modern publishers. Obviously, this type
of litigation will continue and may be provoked by many other ancient
religious texts.

Criminal prosecutions
Article 282
Art. 282 of the Criminal Code is drafted in such a manner that it
defines 'propaganda' (i.e. hate speech) as crime in most cases, but
sometimes the definition also includes violence (part 2 para 'a').
Therefore, the application of art. 282 falls into two parts.

"Propaganda' of hatred (or hate speech) is a common public concern (we
do not need to describe here the multiple manifestations of this
phenomenon), and prosecutors receive a lot of complaints expressing this
concern. Generally, authorities refuse to prosecute. Nevertheless, each
year since 2002 there have been more than 80 criminal prosecutions under
art. 282. In 2003, a total of 8 such cases featuring 9 offenders went to
courts in Russia. In 2004, a total of 24 cases went before courts, with
charges brought against 40 individuals. For various reasons, many
investigations under this article were dropped and never reached the
court. In 2003, 15 investigations against 20 individuals were dropped,
while in 2004, 9 investigations were dropped (against 9 culprits).
Convictions are very few. In 2002, there were 4 convictions, 8
convictions in 2003, and 11 convictions in 2004 (according to the
Research Institute of the Prosecutor General's Office).

Apparently, most investigations are into 'hate propaganda'. These are
easily identified among the convictions (except in 2002).

In 2003, five individuals were convicted for 'hate propaganda', and we
know their names. Only one of them got a prison term, and was not
amnestied - Vitaly Sosnin, the founder of 'February 11' patriotic
association in Saratov was sentenced to two years in a prison colony for
organizing an anti-Semitic meeting to mark the 620th anniversary of
Kulikovsky Battle (his co-defendant, Yury Babikov, got a probational
sentence). Three persons were convicted for violent crimes under art.
282. 

Four persons were convicted for hate speech in 2004, namely: Kolodezenko
(mentioned above), Victor Korchagin in Moscow, Mikhail Trapeznikov in
Izhevsk (all have been released from punishment; Korchagin's case was
completed in 2005), and Pavel Ivanov in Novgorod was sentenced to a
fine.

None of these people, not even repeat offenders Kolodezenko and
Korchagin, were banned from publishing or journalism. Such a ban imposed
on Ivanov was later reversed by a higher instance and replaced by a
fine.

Between three and eight persons were convicted for violent offences
under this article in 2004. 
A special case was the conviction of Magomed Tagaev, an ideologist of
radical Islam in Dagestan. On 12 July, 2004, he was sentenced to 10
years of prison for a combination of crimes, including, alongside art.
282, illegal possession of weapons,  forgery, and banditry.

It is too early yet for any conclusions about 2005 (this paper covers
eight months), because the information often comes in after a long
delay. In nine trials, a total of 11 persons were convicted for hate
speech, three of whom (V. Korchagin in the second instance, and the NBP
activist A. Nikolaenko and the Web propagandist D. Chuprunov - see
below) were released from punishment due to the expiration of the
statute of limitations.  Three RNE members were punished in Novgorod
(see details about art. 2821 below),  two RNE members in Oryol, Rem
Latypov, NBP leader in Khabarovsk, E. Teplyashin, NNP leader in Kirov
(see below), another Web propagandist (see below) and a man who was
caught sticking propaganda ads in the streets of Novokuznetsk.  The
latter was sentenced to six months of correctional labor, Teplyashin was
sentenced to a fine, and the others received probational sentences.

Between January and August 2005, a total of 13 persons were sentenced
under art. 282 in four trials (in Tambov, Lipetsk, Surgut, and
Yekaterinburg), 11 of whom were sentenced to prison terms between one
and 9 years.

Article 282 was rarely applied to hate crime before, but has been
increasingly used since 2004 - which, in and of itself, is not
necessarily a positive thing.

The provisions of art. 282 deal with 'public propaganda' - i.e. hate
speech associated with violence.  During most attacks, such 'propaganda'
in the form of vocal statements heard by many people either does not
take place or cannot be proven. Sometimes the prosecutor refers to
neo-Nazi materials found on the accused as evidence of their motives,
but courts refuse to accept such evidence, because motives do not equal
actual propaganda, i.e. public action. For example, in April 2003 in
Kursk, a court convicted a group of teenagers who had beaten foreign
students of African and Asian origin in the streets of the city. Nazi
symbols and literature found in the youngsters' apartments gave rise to
prosecution under art. 282, alongside street violence ('hooliganism').
All defendants got between 10 months and 2 years of probation, but the
court did not find them guilty under art. 282, because, according to the
judge, "their actions were not of expressly public nature or addressing
a wide range of people with the purpose of inciting ethnic, racial and
religious hatred" .

It is unclear why the prosecutor and the court applied art. 282 of the
Criminal Code in the case of Surgut skinheads, who beat and killed
'aliens' in the streets - art. 111 of the Criminal Code under which they
were sentenced already contains the motive of racial hatred as an
aggravating circumstance, and its application would have been more
appropriate from the legal perspective. Besides, the use of art. 282 did
not affect the severity of punishment - the murderers were sentenced to
prison terms below the maximum allowed under art. 111.

Another specific application of art. 282 is associated with Web
publications. In February 2005, in Syktyvkar, a student got a
probational term for publishing porno and Nazi materials on his website.
See also (below) a Web-related prosecution in Kemerovo under art. 280
and 282. Such sentences are rare, but they are not new: back in
September 2002, A. Pitilimov in Vorkuta was sentenced to a RUR 9,000
fine under art. 282 part 2 for promotion of violence on the Web. .

Art. 282 can be applied inappropriately, where a certain text containing
a discussion of nationalism, ethnic or religious intolerance and hatred
is misinterpreted as incitation of such hatred. A dramatic example of
such misinterpretation took place in 2002, when Professor Victor
Avksentyev, who was at that time the head of Philosophy and Ethnology
Department of Stavropol University, was prosecuted under art. 282. The
charges against him were based on extracts from interviews with
residents of the region quoted in an extensive research paper analyzing
the situation in Stavropol region in the light of ethnic conflict
theory. It took months of judicial proceedings and a number of expert
reviews by prominent academic institutions for the court to find Victor
Avksentyev innocent; by that time, the professor had survived a heart
attack and lost his position at the University.

Another example was the verdict of guilty, on 28 March, 2005, concerning
two of the three defendants charged under art. 282 after the incident at
the "Beware Religion!" exhibition in Moscow (the court of second
instance supported the verdict). We believe that the prosecutor failed
to prove the allegation that the exhibits in question incited animosity
or hatred towards believers. Even if we agree that the exhibits incited
hatred towards the Orthodox Christian faith, article 282 does not
establish criminal liability for incitation of hatred against a religion
or for profanation of religious symbols (which is treated under art. 
5.26 of the Code of Administrative Offences).

Finally, at the moment of this writing, criminal investigation is in
progress against Stanislav Dmitrievsky, director of the Russian-Chechen
Friendship Society, who is charged under art. 282. Charges against
Dmitrievsky are based on his publication of Akhmed Zakaev's appeal to
the Russian people and Aslan Maskhadov's letter to the European
Parliament. It may be argued whether publishing such appeals is legal,
or the publications may be interpreted to contain an indirect call for
separatism or extremism, but the last thing you can find in the texts
and in the fact of their publication is incitation of religious or
ethnic hatred. However, a preliminary review commissioned by the FSB,
found an offence treated under art. 282, rather than art. 280, so the
investigation which had been opened under art. 280 was re-qualified.

Article 280
Following the adoption of the 2002 Law, provision of art. 280 of the
Criminal Code became as broad as the definition of extremism - rather
than deal with "calls for a forceful seizure of power or overthrow of
the current political regime," this article now covers any "calls for
extremist activity."  As a result, many people face prosecution under
this article, especially National-Bolsheviks. A number of investigations
under this article have been launched since its amendment, but most of
them have been closed or re-qualified.
Here is a typical example. In 2003, in Chuvashia, Kyrill Kornilov, a
National-Bolshevik was prosecuted under art. 280 for chanting slogans
during the 1st of May demonstration, including some potentially
offensive ones, such as "Yankees cannot rescue Vovka [diminutive of
Vladimir] - Putin's gang should face trial!" and "Let us cleanse
Ichkeria using the method of Beria! Let's wring the Chechens' necks
using the method of Yermolov!" But then the criminal investigation was
dropped, and Kornilov was sentenced to five days of administrative
arrest for misdemeanor ('petty hooliganism').

Of course, re-qualification from art. 280 was not limited to cases
involving National Bolsheviks. The same happened in Pekin et. al. case
(see below) in Novgorod, and in the aforementioned Russian-Chechen
Friendship Society case.
 
On 17 March, 2005, Zavodsky District court in Kemerovo convicted Denis
Chuprunov, a local resident and a law school student, under art. 280 of
the Criminal Code for publication of offensive materials on the Web site
of Russkoye Znamya. He was also found guilty under art. 282, but the
statute of limitations had expired.  It appears to be the first of the
three convictions under art. 280 in its current version that we know of.

Alexander Nikolaenko, NBP leader in Belovo, Kemerovo Oblast, was charged
- according to information on the NBP websites - with publishing a
number of texts in the local paper The Course (Kurs) stating in
particular that he "supported and justified the repression and
deportation of Gypsies," and, apparently, with making similar statements
during public rallies in 2004. Two criminal investigations were opened
against Nikolaenko, both under art. 280, part 2 and 282 part 1.

On 26 April, 2005, he was found guilty only under art. 280 part 2,
sentenced to two years' probation, and banned from journalistic activity
for the entire period of his sentence. (Apparently, charges under art.
282 were abandoned due to expiry of the statute of limitations, because
the episodes in question took place between 2000 and 2003). In the
second case based on incidents which took place in 2004, Nikolaenko was
sentenced on 6 July to six months in a prison colony, but we do not know
whether he was found guilty under both articles he was charged with.
(Interestingly, the Siberian Department of the Federal Service for
Supervision over Compliance in the Sphere of Mass Communications warned
The Course newspaper using a rare formula, namely "incitation of civic
hatred, animosity, calls to overthrow of the current constitutional
regime.").

However, in most cases of serious extremist agitation - namely, calls
for pogroms or organizing gangs for such crimes - art. 280 has not been
applied. As of today, only once a member of a really dangerous racist
organization has been convicted - in August 2005, Eugeny Teplyashin,
leader of the Popular National Party branch in Kirov was sentenced to a
fine of RUR 80,000 under art. 280 and 282. 

Article 2821
In early November 2003, in St. Petersburg, the first attempt was made to
apply the new art. 2821 of the Criminal Code ("organization of an
extremist community"). Together with articles 280, 150 (involvement of
minors in crime) and 213 (hooliganism), the offence treated under art.
2821 is incriminated to Dmitry Bobrov, leader and organizer of a
skinhead group named Schultz-88. However, the Bobrov trial is not over
yet, and we do not know whether art. 2821 will be part of the sentence.

Since then, offences under art. 2821 have been part of the criminal
charges a number of times, but the only conviction so far was passed on
31 May 2005, in conjunction with art. 282 part 2 (upheld by the court of
second instance on 26 July 2005). Three RNE members in Novgorod were
charged with writing and dissemination of Novgorodets newsletter found
to incite racial hatred. Therefore, the three offenders were found by
the investigators, and then by the court, to constitute an extremist
community, and their actions were treated under art. 282 part 2 and art.
2821: their leader, Mikhail Pekin, was convicted under part 1, and the
other two - under part 2. The sentence (four, three and two years of
prison, respectively) was probational, but all the three were banned by
court from distributing any mass media materials for three years, and
Pekin was banned from journalist activity for the same period.

We consider the sentence passed by the Novgorod court to be the best
ruling in a racial hatred case over recent years.

Article 2822
All caselaw under this provision concerns members of Khizb-ut-Takhrir -
an organization found by the Supreme Court to be terrorist.  This
finding makes it possible to bring charges against anyone suspected of
being a member. There are some other organizations banned under the 2002
Law provisions, but this article has not been used against their
members.

In January and in February 2005, four Khizb-ut-Takhrir members were
sentenced to fines. In April, five members were sentenced to one and two
years' probation, and in June two more were sentenced to a year of
probation. On 9 June 2005, three residents of Kazan were sentenced under
art. 2822 to actual incarceration, rather than probational terms - 4
years and 7 months each. However, more Khizb-ut-Takhrir members were
sentenced to probational terms later. The most recent sentence as of
this writing was passed on 8 September, and it was for 4.5 years
probation.

A number of Khizb-ut-Takhrir members were charged with illegal storage
of ammunition and involvement of others in terrorist activity (art. 2051
of the Criminal Code - this is the way any recruitment of new members is
treated in accordance with the Supreme Court ruling). But these charges
lie outside the scope of specific anti-extremist legislation and fall
under counter-terrorist laws, so we do not consider them here. In
particular, in some cases, courts have rejected charges under art. 2822,
while admitting charges under other articles; thus, on 2 June 2005, in
Kazan, Alisher Usmanov, a national of Uzbekistan, was found guilty under
art. 222 part 1 (illegal acquisition, transfer, sale, possession,
transportation or carrying of weapons, their main parts, ammunition,
explosive substances and devices) and sentenced to nine months of
prison, but then acquitted under art. 2051 and 2821.

It is worth noting another sentence - on 4 August, 2005, nine people
were sentenced in Ufa for terms between 3.5 and 8 years of imprisonment
(one of them got a probational term). Three people were found guilty of
possessing ammunition (art. 222 part 2 of the Criminal Code).
Interestingly, two of the convicted were found guilty of participation
in a banned organization - i.e. under art. 2822 part 2, while seven
others were found guilty of involving (the first two people?) in
terrorist activity. In addition, all the nine were convicted under art.
210 (organization of a criminal community). 

This conviction creates a dubious collision. In fact, art. 2822 was
included in the Criminal Code in the first place to complement art. 210,
which covers criminal organizing for the purpose of committing serious
and very serious crimes, while some of the offences mentioned in art. 
2822 do not fall under the category of serious or very serious - so is,
in fact, it is an 'anti-extremist extension' of art. 210. So applying
these two articles in conjunction is rather strange - although formally,
it is not against the law, as art. 210 protects public security, while
art. 2822 protects the constitutional regime and state security.

Moreover, art. 210 can be applied where the purpose of setting up an
organization is to commit serious and very serious crimes, covered by
part 2 of art. 222 and art 2051. But part 2 of art. 222 punishes for the
offence described in part 1 of the same article, if the offence is
committed by an organized group - there is duplication here.
Furthermore, if we compare art. 210 and the fact that art. 2051 punishes
the act of involving someone in Khizb-ut-Takhrir, we see that art. 210
has been applied to punish for the organization of involvement in an
organization.
Using racial hatred as an aggravating circumstance
The Criminal Code mentions the motives of ethnic, racial, and religious
hatred as an aggravating circumstance in a number of serious violent
crimes, and in art. 244 (abuse of corpses and burial places).

Our information on the use of this aggravating circumstance in art. 244
may be lacking, but we know of very few such cases. Thus, in November
2004, two participants of the Jewish cemetery abuse in Kaluga were
sentenced to two years probation. In August of the same year, in
Pyatigorsk, one vandal was sentenced to two years in a prison colony,
and two underage offenders were sentenced each to 18 months in a
correctional institution. In May 2005, three Chechens were sentenced to
18 months in a prison colony each for violation of graves motivated by
ethnic hatred in the village of Yandyki, Astrakhan Oblast. However, in
August, the court of second instance replaced incarceration by
probational sentences. This ruling was one of the causes of massive
clashes between Chechens and Kalmyks in Yandyki. following which, the
sentence was overruled, and the case was sent back to be re-considered.

With violent crimes, the use of hate as an aggravating circumstance in
sentencing is more visible. It is hardly possible to compare the
statistics of hate-motivated attacks and the sentencing statistics, as
most attacks remain unreported. It is clear, however, that hundreds of
such attacks take place. The number of sentences for hate-motivated
violent crimes is one order less (there is no reliable statistics).
However, there is a positive trend in the quality of sentencing.

We do not know of the hate motive having been used as an aggravating
circumstance between August and December 2002; it does not mean that no
one was sentenced for racist crimes, but racial hatred was not
considered as an aggravating circumstance, even in the case of major
violence in Tsaritsino Market in Moscow.  

Over the entire period of our research of this subject, we have not been
able to find a single sentence referring to racial hatred as an
aggravating circumstance under art. 63 par. 'e' of the Criminal Code.

In 2003, judging by the incomplete data available to us, courts used
art. 282 only in conjunction with the main article (murder, hooliganism,
etc.). There were only three such sentences, and, apparently, three
convicted offenders. 

In 2004, there were three or four sentences under art. 282 of the
Criminal Code for 'direct action' (attacks and the use of a dummy bomb -
between five and eight people were convicted), and in four or five
sentences the sentencing method was more appropriate - the judges
considered racial hatred as an aggravating circumstance for the main
crime (four murder cases qualified under part 2 par. 'l'; one case
unknown; between 27 and 30 people were sentenced, but probably, only a
few of them were sentenced with the right qualification).
To sum up, in 2004, the motive of racial hatred was considered and
influenced sentencing in eight cases. But, of course, in many cases
offenders were sentenced without consideration of the hate motive.

In the first eight months of 2005, the law enforcement have been visibly
more active in detecting and punishing violent hate crimes: by
incomplete data, up to 31 persons were sentenced in 10 trials, including
four murder cases where art. 105 part 2. p. 'l' was applied; four trials
where art. 282 part 2 was applied, and in two more trials the hate
motive was also considered, although we are not sure yet what article of
the Criminal Code was applied. 

Most importantly, we do not know of any trials to take place in the
first five months of 2005, where violent hate crimes would be qualified
by courts without consideration of the hate motive. There were a few
such cases in summer, but the overall trend remains positive.

It is important to remember (although we tend to forget about it) that
there are only three articles of the Criminal Code where the aggravating
circumstance can be used. For example, it is absent from art. 115
(intentional infliction of minor bodily harm) and art. 116 (beating).
Courts usually qualify such offences as hooliganism, because the
attackers almost always use some objects as weapons (such use is the
qualifying characteristic of hooliganism under art. 213). Given that
there are usually more than one attacker, part 2 of art. 213 is applied,
where the maximum sentence is seven years of incarceration, which is
even tougher than punishment for inflicting 'medium severity' bodily
harm under part 2 of art. 112 of the Criminal Code. It is a reasonable
solution from the perspective of the prosecutor wishing to impose as
tough a punishment as possible on the offender (for example, in the case
of criminal assault against Rabbis in January 2005). Very often, there
is no reason to add art. 282 to the charges (see above). However, from
the perspective of public interest in fighting racist violence, it would
be more important to recognize the hate motive as an aggravating
circumstance under art. 63 par. 'e' of the Criminal Code.

Conclusions
We can see that the growth of racially motivated violence is accompanied
by a corresponding growth in the number of criminal sanctions. However,
a proportional increase in prosecutions is not enough to effectively
curb the spread of hate crime.

The frequent application of art. 282 to punish violent crimes in 2004
suggests that prosecutors all across the country followed an unofficial
instruction 'from above'. Later, apparently, the application of art. 282
in such cases was found ineffective, so investigators and courts finally
started to refer to racial hatred as an aggravating circumstance, which
is exactly how it should be.

In order to build on this obvious success, it would be appropriate to
apply the hate motive as an aggravating circumstance in all relevant
Criminal Code provisions.

Arguably, the progress achieved so far in the application of legal
provisions was connected with the adoption of the 2002 Law - or, rather,
with attempts of the policy-makers and the public to make this
legislation work. However, the legal provisions applicable to violent
offences were not changed with the adoption of the 2002 Law, as they had
been in the Criminal Code since a long time.

The main targets of the 2002 Law - i.e. organizations and media that
pursue extremist, anti-constitutional goals - have not been affected. 

Virtually in all instances, organizations were liquidated either on
merely formal pretexts - the same way as back in the 90-ies, or for the
use of swastikas and similar symbols (RNE chapters and the Ingling
community) - again, Nazi symbols were banned back in 1995 by the Law on
Commemorating the Victory of the Soviet People in the Great Patriotic
[Second World] War in 1941-1945. Apparently, in recent years, the
Ministry of Justice agencies and the prosecutors have increased their
pressure against radical nationalist organizations, but it has almost
nothing to do with the 2002 Law. On the other hand, the law enables
authorities to use illegitimate pressure against their civil society
opponents, i.e. human rights groups.

As to extremist groups operating without registration, articles 2821 and
2822 were added to the Criminal Code to address this type of problem.
Art. 2821 is a potentially powerful instrument which can be used against
skinheads and similar gangs.  But, as we can see, this provision has
only been used once, and the other one - art. 2822 - has been first used
this year, and only with regard to Khizb-ut-Takhrir, which can be
described as anti-terrorist,  rather than anti-extremist action.

The amendment of the Law on Political Parties has drastically limited
the growth opportunities for radical nationalists. However, in other
respects, their organizations are not subjected to any substantial
pressure by the state.

Since the 2002 Law provisions have been applied, mass media that engage
in hate speech are closed even less often than immediately before the
law. An overview of sentencing under art. 282 for hate speech shows
clearly that sentences hardly ever restrict such 'propaganda' (the only
exception being the Pekin group case in Novgorod), and we need to
remember that even more cases have not reached the sentencing stage due
to inadequate investigation and red tape both before and during the
trial. However, art. 282 has already been used for inappropriate
prosecutions.

It can be said that the 2002 Law has not in any way helped to combat
hate speech in Russia.

Therefore, the Law on Combating Extremist Activity has not been really
useful. Successes achieved in combating radical nationalism were based
in the old legal framework, whereas the new provisions, due to the
overall poor quality of the legislation, are confusing and sometimes
even worse than the former ones; even those which are better than others
are hardly ever used, even though it has been three years since their
enactment.

---------------------------------------------
This message was sent using Endymion MailMan.
http://www.endymion.com/products/mailman/ http://www.microlink.com/