|
English Language Page The authors’ inexperience was even more strikingly evident in a draft presented (but not submitted to the State Duma officially) by the Ministry of Justice in January 2002. That draft was withdrawn and than replaced by another, the one that was officially submitted by the RF President on April 29, 2002. The latter draft did not, for the most part, preserve continuity with the earlier draft and copied the language of the earlier draft only in certain articles. During editing by the State Duma’s Legislation Committee, certain incongruities were removed (in particular, the unthinkable mechanism of regulating the Internet, i.e., which thus far has been free from practically any legal regulation in Russia and is very weakly regulated in the West). On the whole however, this tinkering did not result in the draft law’s amendment. On June 6, it passed its first reading in the State Duma and on June 27 it had already passed its third. Some amendments improved the draft bill while others made it worse. On July 10, the bill was endorsed by the Federation Council. As there are no grounds to assume that it could be vetoed by the President, we may expect the new Law “On Countering Extremist Activities” to come into force as soon as July-August 2002. Many human rights activists and some political extremism experts have opposed and continue to oppose the adoption of a special anti-extremism law. They justify their position by arguing that existing legislation is sufficient to fight extremism whereas a special counter-extremism bill appears in a variety of ways to be, deliberately, ideologically repressive (1). Opponents have argued that the law could have been used to improve a number of legislative acts and stimulate law-enforcement agencies to suppress the activities of truly dangerous extremist groups (2). The most adamant champions of this bill argue that the increased danger to the public from extremist, primarily radical-nationalist groups, makes necessary tough, one might even exaggerate by saying, emergency measures. But it was always presumed that such tough measures must clearly target only extremist groups. It was because of this that so many disputes took place over the legal definitions of “fascism” and “extremism.” But authors of the bill took a principally different route. On the one hand, they included in the anti-extremism bill a range of previously unintended amendments toughening existing legislative acts. On the other hand, they defined the notion of extremism in the broadest possible fashion. In short, in the current political atmosphere there is no justification for such tough measures even if extremism were defined in the narrowest possible way. And so, such a broad definition of extremism has absolutely no positive connotations at all and would be inappropriate when matched with even the softest of sanctions. In addition to terrorism, preparation of a mutiny, and other obviously extreme actions, the definition of extremism contains such items as: Activities of public and religious associations or other organizations, mass media outlets or natural persons involving the planning, organization, preparation and implementation of actions meant to: 2) Propaganda or public display of Nazi paraphernalia or symbolism or paraphernalia and symbolism similar to Nazi paraphernalia or symbolism to the extent they may be confused; 4) Funding of specified activities or rendering other kinds of assistance contributing to the realization or commission of specified acts, including the provision of financial means, property, educational and printed materials, technical means, telephone, facsimile and other types of communication, information services, and other material and technical means.” It is striking that: Many of the noted absurdities occur because the definition says nothing of the danger that these or other actions pose to the public while this criterion, though hardly definite, separates criminal offences from analogous administrative violations. What happens is that actions that do not qualify as criminal offences and are not even listed in the Administrative Code are viewed as extremist and are subject to extremely serious repressive measures. Repressive measures, according to the new law and amendments to existing legislation, can be applied to organizations, mass media outlets and natural persons. In our view, certain novel features of the law would have been fully justifiable, i.e. the requirement that an organization dissociate itself from extremist declarations made by its managing members (4), broadening the “forbidden occupations” list for members of extremist associations, and regulating the conduct of public actions, had these norms not been corrupted by a senselessly broad definition of extremism. However, the majority of the bill’s novel features (5) look problematic even if applied to very extreme groups (at least, since we are not talking about a state of emergency). Liquidation of organizations has been maximally simplified. The prosecutor or a registering authority forwards a warning citing certain facts and demanding that the situation be rectified. Should rectification not take place, i.e., should something similar to that which prompted the warning happen again, a liquidation suit is filed. But such a suit can be filed even if the organization had simply failed to appeal the initial warning “according to established rules!” Although it is true that the prosecutor would have to prove the extremist nature of certain actions (including, of course, oral statements) in court, this — see the definition for extremism, above — is rather simple. Should it be proven that the actions at issue actually resulted in some damage or could have resulted in damage, no warning of liquidation is needed. In addition to liquidation there is an easier way to halt an organization’s activities, i.e., suspension of operations. This may occur only if a liquidation suit has been filed based on damage caused or the threat of such damage being inflicted, but suspension may result from a decision of the prosecutor or an organ of justice. The suspension can be appealed in court, but court proceedings may not necessarily begin right away and during that time the organization cannot legally operate — for a period of up to six months (6), regardless of the motivation for the suit. The rules governing suspension extend to entities other than political parties. The procedure for closing mass media outlets is analogous to the procedure for organizations. In addition, mass media outlets can be issued a warning not only for extremist activities as such but also for publication of extremist materials, i.e., primarily those that “call for the extremist action or justify or excuse taking such action.” For example, justifying the utilization of a swastika for religious purposes or simply quoting fascist texts even with anti-fascist purposes; there are no limitations in the law. On the other hand, only a court may suspend the operations of a mass media outlet. The simplest is prosecution of publishing houses. Publication of “extremist materials” twice a year is sufficient grounds to suspend a publishing license. New and edited articles of the Criminal and Administrative Codes have been preserved for application to a select group of individuals. The worst example of this is that the previous version of Article 280 of the Criminal Code, actually dealing with the crime of calling for a mutiny, now deals with calling for the “implementation of extremist action.” Remembering the definition of extremism, one may easily say that now one careless statement in a newspaper article (7) is “worth” up to five years in prison. Article 282I of the Criminal Code provides for liability for setting up an “extremist society,” i.e., a formal or informal “organized group of individuals aiming to prepare to commit or commit criminal offenses founded on ideological, racial, national or religious hatred or enmity, as well as hatred or enmity with respect to a certain social group, as provided for in Articles 148, 149, Sections I and II of Article 213, Articles 214, 243, 244, 280 and 282” of the Criminal Code, or for the membership in such a society. Penalties for conviction are up to four years in prison for leaders and up to two years — for individual members. This article would have been more or less acceptable had it not included the “amended” Article 280. Article 282II treats as a criminal offense the leadership of or participation in an extremist organization, i.e., one that has been liquidated or forbidden (8) by a court. Penalties for conviction are up to three years and up to two years respectively. In essence, the new article is simply an unjustified expansion of an already existing (albeit not enforced) law, i.e., Article 136 of the Criminal Code, “Organization of an association infringing upon the rights of individuals and citizens.” Continuation of the same activity following a ban is treated only as an administrative violation according to the new Article 20.2I of the Administrative Code. This is not the only inconsistency: calls for the demonstration of Nazi symbols fall within Article 280 of the Criminal Code, whereas the demonstration of such symbols is only an administrative violation under Article 20.3 of the Administrative Code. One of the oddest provisions of the law is the responsibility of the authorities (represented, it seems, by the Ministry of Justice) to put together and publish a registry of “extremist materials.” Bearing in mind that such a registry would include not only documents of organizations banned for extremism but also any texts “containing characteristics falling within” the extensive definition of extremism, it would comprise thousands of items at least. In addition, the production and distribution of materials included in the registry are subject to prosecution. This example alone demonstrates that the law is dysfunctional. Many expect that the law will at least provide an impetus to officials to struggle against truly extremist groups. The law even has an article setting forth penalties for officials who do not take necessary action. But how can it be applied, if extremism — as defined by the law — is to be found everywhere, including among officials themselves? Undoubtedly, the passage of the law will result in yet another of the numerous campaigns that have already ensued and quickly faded away. The law however, will be incapable of having an impact on the system because it does not direct the attention of the law-enforcement authorities to any particular objective. We do not deem it appropriate to discuss here the political mechanism that resulted in the development of such a draft law. It is hard to believe that someone is planning the total repression made possible by the new law. If such is desired by the authorities, this law may result in the liquidation or suspension of the operations of all public and political mass media outlets and all organizations more or less associated with work on national, religious, or even ideological issues, as well as the activists of such outlets and organizations being sent to prison. In practice, it means that federal and local law-enforcement agencies and, through them, the government authorities have obtained a universal mechanism of oppressing “undesirable” elements of society. In addition, owing to the “assistance” provision, a new possibility for extortion with respect to commercial structures has been created. Lastly, one final but important problem, i.e., specialists, journalists, and human rights activists will no longer be able to discuss issues related not only extremism, but also to any form of xenophobia, since such discussions may become, on one hand, a deliberate denunciation of essentially innocent people, and on the other hand, correspondingly, a cause for endless lawsuits based on defamation and false accusations of serious offenses. In sum, the effect of the new counter-extremism legislation can be evaluated as solely negative both with respect to extreme manifestations of nationalism and the situation in the country in general. (1) See: L. Levinson, “Extremists — Us.” Legislative Process in the State Duma: Human Rights Analysis (2002, ¹41). (2) This issue is discussed in detail in a book by the “Panorama” Center that is currently being prepared for publication. For information on the issue, including news, book texts, etc., see: http://www.panorama.ru/works/part/ govpol. (3) It must be admitted, though, that this ban has already appeared in Law “On Freedom of Conscience and Religious Associations.” (4) Several experts (L. Levinson, N. Belayeva, etc.) believe that such a law is unacceptable in principle. For justification of their position, they rely on Article 29 of the RF Constitution, which provides that citizens shall not be forced to express their opinions. In our view, the law concerns organizations and not natural persons, but even more importantly, the Constitution also contains Article 55, Section 3 which provides: “The rights and freedoms of an individual and a citizen may be limited by federal laws only to the extent necessary to protect fundamental constitutional norms, morality, health, rights and legal interests of other individuals, and to guarantee the defense of the nation and the security of the state.” If the matter concerned actual extremist and dangerous political activities, Article 55’s limitation of Article 29 may be regarded as justified. (5) The mechanisms listed below are incorporated in Laws “On Public Associations,” “On Mass Media,” “On Freedom of Conscience and Religious Associations,” “On Parties,” and “On Trade Unions, their Rights and Guarantees of Operation.” Most importantly, lists of forbidden activities previously set forth in these laws, had more or less been precisely correlated with constitutional restrictions in Article 13, Section 5, and Article 29, Section 2. These have now been replaced with “extremist activities,” referring to the definition of such in the new law. It must be born in mind that changes in the legislation described herein are related to the laws listed in the Appendix, in the capacity of a normative base. (6) Further, there is a certain vagueness in the revised version of Article 42 of Law “On Public Associations.” (7) What in this book, in the chapter on “Nationalism, Racism and Xenophobia in Russian Media,” is called “soft” hate speech. (8) The notion of liquidation is applied to registered public and religious associations, and that of a ban — only to unregistered organizations. While the meaning of liquidation is quite fully described in the law, the meaning and consequences of a ban remain unclear. Back |
Íàøà êíîïêà  |
|