An activist of the public association Crimean Solidarity is praying near the Crimean Garrison Military Court, during a session on a “Hizb ut-Tahrir” case. Photo: Taras Ibragimov. All rights reserved.
In December 2018, Russia’s parliament approved a bill, proposed by President Putin, that would partially decriminalise the infamous Article 282 of its Criminal Code. But law enforcement in Crimea are in no hurry to implement it.
Article 282 provides criminal liability for incitement to hatred or social hostility, but it has become notorious as a tool for punishing Russian citizens for reposting on social media. Rights campaigners have been criticising the article’s “elasticity” for four years now, since it began to include online materials – it was previously only used against people making statements in public or the media – and imposed stiffer penalties (prison sentences from two to five years, up from the previous four year maximum).
This change in legislation has meant that any internet or social media user is at risk of prosecution. According to the latest figures from the international We are Social agency, which specialises in social media research, nearly half of all Russian citizens (47%) are active social network users and 85% go online every day. Practically every user posts content that the local law enforcers might count as extreme and report for “neutralisation”.
Article 282 is the main driver of convictions for cases of “extremist propaganda”. The official statistics available show that the number of people convicted under it have been growing year on year: in 2016 there were 502; in 2017, 571 and in the first half of 2018 the figure rose to 381, including 29 underage offenders. And the overwhelming majority of sentences – 96% in 2017, according to the Sova research and information centre – were imposed for materials posted online, and for reposts rather than original material.
“A law against incitement to hatred is necessary, and similar legislation exists in most European countries,” says Sova specialist Maria Kravchenko. “But we don’t need to use it for any old insults: it should be mainly reserved for incitement to violence or discrimination against people of different genders, races, ethnicities or religions. In every case, law enforcement need to weigh up the level of danger to the public that a statement, including one posted online, might provoke. But our law enforcers are often governed by other criteria.”
Russian law enforcement agencies, while paying lip service to official reporting systems, often bring charges verging on the absurd. And since there is a consensus between them and the judges, such cases are not thrown out by the courts.
Take, for example, a sentence of 15 months in an open prison for Maxim Kormelitsky, for reposting a photo of people “insulting religious believers” by bathing in a water-hole; five months of community service for Pavel Volkov for reposting a video showing an arson attack on a Jewish restaurant, and two and a half years in an open prison for Alexander Kruze for reposting four photos on social media that showed “signs of incitement to totally violent activity” against communists, Jews, people from the Caucasus, Asians and members of power structures (Kruze claimed that the reposts were part of a survey he was carrying out for his graduation project).
These kind of cases led to ever more frequent and louder calls for the decriminalisation of Russia’s anti-extremist legislation. By autumn last year, even quite unexpected figures and structures – the Russian Orthodox Church’s Synodal public relations department; the Mail.Ru social media group (which owns VKontakte); Valentina Matviyenko, the speaker of the Federation Council, as well as numerous human rights organisations and the Presidential Human Rights Council – were proposing a relaxation of the law.
“Anything and everything could be seen as extremist, and lack of legislative clarity could lead to abuse of power”, said the Council’s head Mikhail Fedotov.
In September last year, a Plenary Session of Russia’s Supreme Court passed amendments to the law, clarifying how extremism cases should be treated. Judges, for example, were given a recommendation to discover whether a defendant had deliberately incited hatred and hostility, and to assess the level of danger to the public arising from the posts in question. In other words, they should take into account the context and the comments made by the poster, whether they were posting or reposting, the number of hits and audience reactions to the post and indeed the entire content of the defendant’s online home page. There was also a recommendation on the part of judges to take into account other known information about the poster – whether, for example, they belonged to some radical ideology, were members of extremist groups or had been charged with administrative or criminal offences for extremist activity. “Just posting or reposting extremist material or even some ‘likes’ can’t in itself be grounds for criminal proceedings,” said the Deputy Chair of Russia’s Supreme Court Vladimir Davydov.
Immediately after these amendments were passed, prosecutions under Article 282 began to decrease. But a real surge in closed investigations came after the passing of a presidential law on partial decriminalisation. New amendments ensure a criminal offence if an individual has faced administrative charges for similar activities in the previous 12 months.
Crimea is different
At the same time, Russian law enforcement has been slow to close cases where members of any political opposition group are being prosecuted. In annexed Crimea, human rights campaigners and lawyers have noticed that this process is being drawn out, and on occasion – signs of blatant sabotage.
Since Russia annexed the peninsula in 2014, the number of cases tried in Crimea under Article 282 has reached double figures, with the defendants mainly either Crimean Tatars or activists opposed to the politics of the local government. High profile cases include those of the pro-Ukrainian activist Larisa Kitayskaya, who was given a suspended sentence of 10 months for “spreading Russophobic ideas on the internet”; Gulsum Aliyeva, daughter of a defendant in the notorious Hizb ut-Tahrir case in Yalta, who was accused of reposting a non-existent quotation from Russian philosopher Ivan Ilyin on Facebook; and pro-Russian activists from Sudak, Dmitry Djigalov and Oleg Semyonov, who were fined 300,000 and 50,000 roubles respectively after an official accusation of “insulting the dignity of Bulgarians” on a YouTube video – in fact it was for uncovering the local authorities’ corrupt practices. The stiffest punishment was reserved for Emil Minasov, a Crimean Tatar from Sevastopol – 15 months in prison “for the repeated distribution of extremist material on social media”.
Alexey Ladin, a lawyer. Photo: Alina Smutko. All rights reserved.
“The main thing for the system is to observe the formalities,” says Alexey Ladin, a lawyer with the Agora international human rights NGO. “The law enforcement agencies are still, unfortunately, accountable in terms of their quotas (the “stick system”). Their results are judged by the number of criminal cases sent to court and ensuing guilty verdicts. In other words, the entire might of Russia’s law enforcement system is concentrated on churning out as many criminal trials as possible, including those connected with terrorist and extremist groups. Which is why their number goes on increasing year on year. This, of course, logically suggests that either the police are fabricating criminal cases, or the number of extremists and terrorists in Russia is rising in an arithmetical, or possibly even geometric progression.”
In Crimea, Ladin is defending six Article 282 cases over social media publications. In the second half of January 2019 alone he succeeded in halting a criminal prosecution of four of his defendants.
But this success was preceded by numerous rejections of legal applications, requests and complaints to investigators and in court. According to Ladin, this is to do with the specific situation in Crimea: the need to refuse defence counsel on something, to block its work if it’s humanly possible. The case of farmer Ismail Ramazanov is a good example of this situation.
The case of Ismail Ramazanov
At about four am on 23 January 2018, FSB officers began a search at the house of farmer Ismail Ramazanov in the village of Novy Mir, near Simferopol. After carrying it out they drove Ramazanov away to an unknown destination.
Ramazanov was only able to see family members and his lawyer the following evening after Irina Kirillova, a judge in the Simferopol district court, transferred him to a pre-trial detention centre. This was when I, attending the court, learned that the police suspected Ramazanov of making extremist statements against “a group of ethnic Russians” on the Zello internet radio app. (Roskomnadzor, Russia’s media watchdog, blocked the app after it had become the main means of coordination for long distance truckers during their nationwide strike against the introduction of the “Plato” road tax in 2017).
Ramazanov not only pleaded his innocence, but told the court that during the search law enforcement officers had planted rifle cartridges on him, beaten him up and tried to strangle him with a towel, demanding he give evidence against himself. They then continued to beat him in the van that they drove him away in. They also refused him food and drink right up to the court sitting (over 35 hours after his arrest).
“They lifted me up off the floor (in handcuffs) and sat me in a chair,” Ramazanov told me later. “I was just in my underpants. There were three or four men in the room: Shambazov (Artur Shambazov, a former Ukrainian SBU officer who joined the FSB, its Russian equivalent after the annexation and who has been frequently accused of beating other Crimean political prisoners) was open about who he was, whereas Maksimenko (Alexander, a police officer, probable instigator and main witness in the case) wore a mask. There were several more cops in masks and camouflage gear with FSB chevrons. They started to question me – I didn’t answer. One of them went round the back of my chair, stood behind it, threw a towel round my neck and started strangling me. Meanwhile, two other guys beat me in the kidneys and stomach. I started screaming and Shambazov and Maksimenko stuffed a jacket in my mouth. The door to the living room was closed – my mother, father, brother and other FSB people were on the other side.”
Ismail Ramazanov at his home in the village of Novy Mir, in the room where he was tortured by law enforcement officers. Photo: Taras Ibragimov. All rights reserved.
In court, Ramazanov was in such a bad way that he couldn’t stand. Ladin, his lawyer, asked for an ambulance to take him to hospital for a medical examination, but the prosecuting council objected and the judge supported his decision. She also refused him house arrest and sent him to pre-trial detention in Simferopol for a month.
For six months after this, Ramazanov’s detention was extended every month without any explanation. At each hearing, Alisa Glukhova, the investigator, claimed that arrest was necessary in order to carry out some investigations, but after five months nothing had happened. Ladin assailed the prosecution with statements and requests for tests on the cartridges (to prove that they had been planted); identification of, and direct confrontation with the law enforcement officers who had searched Ramazanov’s house (to identity his assailants) and the main witness in the case (to uncover him as an FSB officer), as well as lodging complaints against the court for its inactivity and investigative red tape, not to mention the falsification of evidence by a new investigator, Dmitry Kosyakin. But the lawyer’s requests were all refused.
Six months after his arrest, Ramazanov’s fortitude and Ladin’s perseverance began to bring results. On 12 July the court didn’t extend Ramazanov’s arrest, replacing it with a written undertaking not to leave town and on 16 July he left the detention centre. In early August, the case was sent back to the prosecutor’s office for further investigation and three months later, the charge against Ramazanov (of illegal possession of cartridges) was lifted for lack of evidence (effectively an admission that they had been planted during the search).
Ismail Ramazanov, his father and lawyer Alexey Ladin (left to right) congratulate each other upon learning of the closure of the second criminal case against Ramazanov. Photo: Alina Smutko. All rights reserved.
After the passing of the Russian Supreme Court’s amendments, Ladin requested that the case against Ramazanov be closed and an Article 282 case, on the grounds of a lack of direct intention and insignificance. But prosecutor Kosyakin refused. After the partial decriminalisation of Article 282 the lawyer made a second request for the closure of the case, but Timofey Piven, the new investigator assigned to the Ramazanov case, stubbornly refused to talk about it. In the end, Ladin gave up waiting for an answer and made an official complaint to the court on the grounds of its inactivity. And it was only at a court sitting on 16 January this year that Piven finally appeared with an order confirming a successful outcome for the defence.
All the charges against Ramazanov, who endured torture and six months in detention, have been lifted. Ladin is planning to bring a lawsuit demanding that his charge of illegal arms possession be lifted and he be given an official letter of apology from the prosecutor’s office. “This is an important point and we will insist on it. The procurator must apologise, in the name of the state, for the police having illegally and groundlessly engaged in Ismail’s persecution,” he says.
The case of Evgeny Karakashev
The case of another of Ladin’s clients, an anarchist from Yevpatoriya called Evgeny Karakashev, has much in common with the criminal prosecution of Ismail Ramazanov.
On the morning of 1 February last year, the FSB carried out a forcible search of Karakashev’s parents’ house: people without any insignia of any kind broke into the house without identifying themselves, flung Evgeny to the floor, manhandled and handcuffed him. After the search, he was driven away in an unknown direction and it was only in the evening that they allowed him to call a friend to ask him to find a lawyer.
In court the next day, police investigator Algiz Abushayev stated that he couldn’t remember how long Karakashev had been handcuffed (“it could have been five minutes or three hours”) and “suggested” that he go with him to the police station, to which Karakashev “voluntarily agreed”. Meanwhile he was confined in a cage in the courtroom, with an enormous bruise adorning his forehead.
The parents of Evgeny Karakashev listen to the explanations of the lawyer Alexey Ladin after the meeting of the Yevpatoriya city court on the case of their son. Photo: Taras Ibragimov. All rights reserved.
Like Ramazanov, Karakashev was charged under two articles of the Russian Criminal Code: the infamous Article 282 (“incitement to hatred and hostility”) and Article 205.2 (“public calls for terrorist activity”). According to the investigators, he had posted a video calling for terrorism on his VKontakte page in late 2014, and in January 2017 he had posted, in a chat room of 35 people, a text containing signs of “propaganda of an ideology of violence” and “calls for instigating terrorist activity”.
As with Ramazanov, the main proofs of Karakashev’s guilt were evidence given by a partisan witness who was under law enforcement control and the conclusion of a dodgy linguistic expert who had figured in other politically motivated cases in Crimea. The investigator on the case had, for example, initially sent only half of Evgeny’s chat room conversation for expert evaluation, having first deleted “inconvenient” statements made by the activist, such as “But I’m not asking anyone to do anything”. And it was only on Ladin’s insistence that the dialogue was examined in its entirety.
“Law enforcement and the courts had worked out simple and quick scheme to fulfil their quotas. What’s absurd is the fact that the law enforcement agencies have begun to forget that they are supposed to be working for the public good, rather than the public needing to help them earn more stars on their epaulettes, prizes, gratitude and so on,” says Ladin.
Karakashev has not confessed to the charges against him, and considers the case against him a result of his civic activity. He had actively campaigned against property development near Yevpatoriya, and participated in protests against police misconduct in Crimea, after which he had been invited several times for a “chat” with law enforcement.
Likewise, since January 2018, Russian left-wing activists and anti-fascists have been under pressure, with a string of cases against them.
Karakashev has been in pre-trial detention since 2 February 2018. On 25 January, the North Caucasus district military court in Rostov-on-Don carried out a preliminary hearing of his case. On the prosecutor’s initiative, the jury dropped his Article 282 indictment, since that particular charge had been decriminalised. His lawyer had previously lodged a request that his criminal prosecution be dropped for want of evidence of a crime, but investigator Abushayev turned him down, claiming that there was enough evidence to show that Karakashev “was pursuing the aim of inciting a non-specific group of persons to commit negative actions designed to arouse social discord related to his calls for violence”. The charge of public incitement to terrorist action still stands, and the activist could be sentenced to up to seven years behind bars. The first actual court session will take place on 8 February.
The case of the “Russian Spring” supporters
It is not only Crimean Tatars and pro-Ukrainian activists that are facing prosecution under the steamroller of Russia’s anti-extremism legislation: in principle, anyone who disagrees with the regime is at risk.
A good example is the case of the pro-Russian activists from Sudak, Dmitry Djigalov and Oleg Semyonov. They, as members of the “Anticorruption Bureau of the Republic of Crimea” civic organisation, spent a long time keeping tabs on the unscrupulous activities of the regional authorities. As a result, in July 2017 they were subject to a house search and charged with “insulting a group of people of Bulgarian ethnicity” in a video they posted on YouTube in August 2016.
Pro-Russian activists Dmitry Djigalov (center) and Oleg Semyonov (right), convicted under Part 1 of Art. 282 of the Criminal Code. Djigalov is wearing the chest medal "For the liberation of the Crimea". Photo: Taras Ibragimov. All rights reserved.
On the video Semyonov, sitting in the office of United Russia Crimean MP Ivan Shonus, criticises the Bulgarian government for its failure to invite a Russian delegation to a celebration of its national holiday, which marks the liberation of the country from Ottoman rule in the Russo-Turkish war of 1877-1878. In the course of his remarks he uses a derogatory term. Djigalov recorded the whole scene and posted it on his social network channel. The activists didn’t admit any guilt over the incident, but the main witnesses, people connected with local senior officials, told the court that they had watched the “Bulgarian” video and “were very offended by the way they had been humiliated”.
The court found Djigalov and Semyonov guilty and fined them 300,000 and 50,000 roubles (£3523 and £587) respectively. Semyonov also spent six months in a pre-trial detention centre in Simferopol for allegedly breaking the travel restrictions he was subject to. Afterwards, and until the end of the court proceedings, he was kept under house arrest.
The Crimean Tatars who “insulted” Russians
In January 2018, two other Article 282 cases were also closed. The defendants were two young Crimean Tatar women, Elina Mamedova and Gulsum Aliyeva. Mamedova was accused of inciting hostility and “insulting a group of people of Russian ethnicity” for three reposts in VKontakte in 2014-2015. On 13 June 2018, the FSB conducted a search of her parents’ house in the village of Chekhovo, near Yalta. Elina herself was arrested and questioned, but released on undertaking not to leave the area.
During Mamedova’s first police interview, the investigator recorded her responses in her words, not Elina’s. When the young woman asked why her answers weren’t being written down verbatim, the officer replied that it was difficult to write everything down word for word and that it wasn’t important anyway. The lawyer assigned to Mamedova by the court, present at the interview, remained silent.
“That first interview was recorded in phrases straight out of Article 282,” says Alexey Ladin. “Mamedova allegedly said, ‘I incited hostility and hatred’, ‘deliberately, conscious of the public risk of my actions’, ‘with the aim of insulting Russians’ and so forth. A person who wasn’t a legal professional wouldn’t even know these expressions.”
The lawyer made two requests to the court to drop the charges against Mamedova, on the grounds both of lack of criminal intent and insignificance and of the decriminalisation of Article 282. The first time round, the request was denied by investigator Astemir Agzagov, but the second time it was satisfied, and the case against Mamedova was closed on 11 January.
The case against Gulsum Aliyeva has however been pursued more thoroughly through the courts. Gulsum is a Crimean Tatar activist and the daughter of Muslim Aliyev, a defendant in the Yalta Hizb Ut-Tahrir case. Since her father’s arrest, Gulsum has been an active human rights campaigner and journalist.
On 19 July last year, the FSB carried out an inspection”of the Aliyevs’ house in the village of Verkhnyaya Kutuzovka, near Alushta on the southern coast of Crimea. It was more like a search. The whole house was turned upside down in a search for a mobile phone used by Gulsum to access social media, and furniture and sanitary fixtures and fittings were smashed. Witnesses brought by the police attempted to carry out body searches of family members, and in response to remarks made by Nadjiya Aliyeva, the young woman’s mother, admitted that they were also police officers.
Najiye (left) and Gulsum Aliyeva, the spouse and daughter of the person involved in the Yalta “Hizb ut-Tahrir” Muslim Aliyev, after being searched in their home. Photo: Taras Ibragimov. All rights reserved.
In the end, Gulsum was subjected to a preliminary examination, and on 10 August she was charged with reposting a photo of the Russian philosopher Ivan Ilyin together with his non-existent quotation, which supposedly begins with the words, “Russia is the most odious, wretched to the point of nausea country in the whole of global history” and ends with the slogan, “Death to the Russian occupiers”, which was the thing that grabbed the officers’ attention most closely.
“This statement was reposted by 50 or so people. So why did they come for Gulsum, rather than me?” asks lawyer Lilya Gemedji, who was present at the investigative activities at the Aliyev house. Crimean Tatars generally believe that the criminal case against Gulsum was intended as a means of putting pressure on the “Crimean Solidarity” organisation and its activists, who report on all politically or religiously motivated court cases on the peninsula.
On 25 January, during a court inquiry into a complaint from Ladin about the inactivity of the investigator Anton Guliy (who was ignoring a request for the case to be closed because of the decriminalisation of Article 282) the investigator announced that he had dropped Aliyeva’s prosecution under that article. At the same time, however, Guliy sent the case papers to the Alushta prosecutor’s office for a decision on whether to charge the activist with an offence under Article 20.3.1 of the Administrative Code. So Gulsum will probably be the first person in Crimea to be tried under the new code.
The results of decriminalisation
The president’s relaxation of Article 282 is arousing mixed feelings among human rights campaigners. On the one hand, the availability of an administrative charge is better than nothing. There is a clear directive: a first offence will only attract a penalty under the Administrative Code: a fine of up to 20,000 roubles (£235), up to 100 hours of community service or two weeks detention. But legal specialists are now expecting a surge in administrative incitement cases.
“This measure will allow people charged with inciting hatred to avoid harsh punishment and a criminal record,” say the experts at Sova. “But we need to bear in mind that the procedures for charging people with administrative offences and establishing proof at their hearings are significantly less complex than for criminal cases, so we may expect a considerable rise in the number of cases of incitement to hatred.”
The vagueness of the criteria for “incitement to hatred or hostility” is also still with us: they are now the responsibility of a motley crew of linguistic experts around the country. And then there is the phrase “any social group”, which the human rights people insisted on outlawing. In some cases, the “social group” boiled down to members of law enforcement, police service employees, government officials and so on. Another downside is that with administrative offences, the publication date is irrelevant (a six year statute of limitation operates in criminal cases such as those covered by Article 282). Someone can be charged on the basis of something posted in the early 2000s, since the action limitation period – one year – is counted from the moment of publication. And the Administrative Code now also covers legal entities as well as individuals: the authorities can bring charges against websites and media editorial staff.
Kyiv district court of Simferopol, as defendants in one of the “Hizb Ut-Tahrir case” enter the courthouse. Photo: Taras Ibragimov. All rights reserved.
It’s also worth remembering that no one has outlawed criminal prosecution for “extremist” online posts linked to another article of the Criminal Code, Article 280, which covers public calls for extreme actions, attracts prison sentences of up to five years and is just as often used by Russian law enforcement agencies against internet users.
Improvements include the fact that people previously convicted of offences under the first part of Article 282 can now ask for a review of their sentences, and alleged offenders’ names can be removed from Rosfinmonitoring’s list of terrorists and extremists, which could lead to significant financial problems for defendants, whatever the decisions reached by the judges. On 23 January, for example, Yalta’s municipal court exonerated pro-Ukrainian activist Larisa Kitayskaya, who had been given a 22 month suspended sentence for “spreading Russophobic ideas” on the internet. The initiative for reviewing the sentence was, moreover taken by the prison service’s Yalta department and Kitayskaya was totally baffled by the decision.
In any case, the use made of the new legislation will depend not only on the law enforcement agencies but also on the views of civil society and the way lawyers will work with it.
“The legislation is still to be ‘rolled out’ across the country,” says Alexey Ladin. “How effective the law enforcement agencies will be in using the new article of the Administrative Code to protect public interests and their own as well (to fulfil quotas for cases and convictions) will depend to a large extent on NGOs, peoples’ moods, the work of my colleagues in law. I just hope law enforcement will hear the government’s message – that there should no longer be any absurd cases brought under Article 282 – and use it in administrative cases as well.”