An Example of How the Kremlin Threatens Freedom of Speech

Government control of the information space is one of the main features that characterize underdeveloped democracies. Under this aspect, Russia is no exception: the tradition of government control over the media and public opinion is rooted in Russian history and culture. Over history, the tsarist and communist regimes strived to prevent political dissent from being diffused through the press, in order to maintain a strong grip on society. Even after the collapse of the USSR the situation did not change substantially, although Art. 29 of the Russian constitution upheld freedom of speech and information.[1] In parallel to the political transformations triggered by the collapse of the USSR, mass media were also evolving thanks to the rise of the internet. Russian intelligence services, stuck in a Soviet mindset and facing a highly volatile domestic political environment, understood the internet’s potential to diffuse information and felt the need to control it.[2] Simply put, the Kremlin’s control on mass media managed to keep pace with technological development, as it happened when television supplanted the press. As a result, in 2013 Russia ranked 148th out of 179 countries in the Press Freedom Index from Reporters Without Borders.[3]

Almost 28 years after the USSR’s collapse, Russian Government is still exerting a strong and comprehensive influence in the information space. With the pretext of preventing the diffusion of extremist rhetoric, the Russian administration misuses Article 280 and Article 282 of the Russian criminal code to curb political opposition. Not only this approach thwarts the development of Russian civil society, but in the long run it can also backfire against the Kremlin.

Article 280 and Article 282 of the Russian criminal code have been subject to a steady generalization of their applicability, providing the Kremlin with a legal tool to classify its political opponents as extremists. In 2002, the title of Article 280 changed from “Public Calls for a Violent Change of the Constitutional Order” to “Public Calls to Extremist Activity.” At the time, this wording was harshly criticized because it left ample space for arbitrary interpretation: most importantly, it excluded violence as a defining characteristic of extremism. While revising the law, the Venice Commission of the European Court of Justice noted that Article 1.1.1.3 of the Shangai Convention – undersigned by the Russian Federation – identified violence as an essential feature of extremism. Moreover, it argued that rather than defining extremism, the Russian criminal code just enumerated a series of “extremist activities” which did not entail the use of violence.[4] It is also worth noting that the 2002 law envisioned tougher punishments for acts committed through the use of mass media and telecommunications networks.

In December 2013 Article 280 was amended again, introducing a second part (Art. 280.1) titled “Public Calls for the Violation of the Territorial Integrity of the Russian Federation.”[5] Among the “extremist activities” mentioned above with regards to the 2002 law, the “violation of the territorial integrity of the Russian Federation” was considered extremism only when “forcible.”[6] However, Art. 280.1 deems as extremist not only the forcible violation of Russia’s territorial integrity but also the call for such a violation, even if not backed by any action. The timing of this amendment can explain its underlying rationale. Since it was signed just two months before the launch of the Crimean operation, the Russian government probably devised it as a tool to undermine the domestic dissent that the operation could spark. In other words, after Russia annexed Crimea, calling for the return of Crimea to Ukraine equaled calling for the violation of the integrity of the Russian Federation, and therefore committing a terrorist act. This discouraged any domestic opposition to the policy on Crimea and sent a clear signal to the citizens of other separatist regions within the Russian Federation, such as South Ossetia and Abkhazia.

Indeed, the Kremlin leveraged on Article 280 to frustrate its political opponents. The case of Ilmi Umerov, a leader of the Crimean Tatar activists, is emblematic. In a live broadcast of the Ukrainian TV channel ATR, Umerov advocated for the return of Crimea to Ukraine, not recognizing Russia’s annexation of the territory on which Tatars have lived for centuries.[7] Notwithstanding the dubious legality of Russia’s sovereignty over Crimea, a criminal case under article 280 of the Russian criminal code was opened against Umerov, who was eventually sentenced to two years in jail.[8] A similar instance involved Vladimir Zavarkin, a municipal deputy in Suoyarvi, a town located in Karelia.[9]  Unsatisfied with the scarce economic and administrative support from the Russian central government, Zavarkin put forth the option of staging a referendum for independence during a rally attended by roughly 2000 people.[10] A few days later, Zavarkin was put on trial under article 280.1 and eventually fined and stripped of his mandate.

The Russian-speaking media outlet Meduza reports that in 2014, in the immediate aftermath of the Crimean annexation, Art. 280.1 was applied in 15 cases.[11] It is also important to note that these criminal cases were opened because they violated article 280 of the Russian criminal code, though there are many other articles exploited by the Kremlin to obtain the same results. For example, those pertaining to the fight against the justification for terrorism (Art. 205.2), the insult of the feelings of religious believers (Art. 148) and the incitement of hatred (Art. 282) all contain widely interpretable language.

The repercussions of this inappropriate application of the Russian criminal code affect both Russian citizens and the government. Firstly, these repressive measures block the development of the traditionally weak Russian civil society.[12] Due to the misuse of the abovementioned laws, the circulation of ideas is limited and civil movements are dissuaded from expressing their disapproval of the government’s policies. To be fair, we must admit that these measures against freedom of speech and information are not enforced systematically. Rather, the tactic is to enforce them randomly to discourage the spread of political dissent.

Secondly, in the long run, this approach can backfire against the Russian government. The main risk is driving all the dissent underground - for example in the dark web - making it more difficult to control. Moreover, prolonged limitations to freedom of speech radicalize the political opposition and incentivize the adoption of violent methods.  Without a policy shift towards a more open and constructive dialogue with society, the Russian government will have no alternative but implementing stronger punishments and stricter controls to maintain the reformist forces in check. This will upset the moderate part of Russian society and further radicalize the political opposition, creating a dangerous vicious circle.

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[1] The full text of the Russian Constitution is available at: http://www.constitution.ru/en/10003000-01.htm Accessed on March 28, 2018

[2] Soldatov, A., & Borogan, I. (2017). The Red Web: The Kremlin's Wars on the Internet.

[3] The 2013 Press Freedom Index is available at: https://rsf.org/en/world-press-freedom-index-2013, Accessed on March 28, 2018

[4] “Revised Draft Opinion on the Federal Law on Combating Extremist Activity of the Russian Federation’, CDL (2012)011rev-e, 2 June 2012 Available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(2012)011rev-e Accessed on March 28, 2018

[5] The amendment to Article 280 is available at:  http://www.consultant.ru/document/cons_doc_LAW_156577/3d0cac60971a511280cbba229d9b6329c07731f7/ Accessed on March 28, 2018

[6] “Revised Draft Opinion on the Federal law on Combating Extremist Activity of the Russian Federation’, CDL(2012)011rev-e, point 28.1, June 2, 2012 Available at:  http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(2012)011rev-e Accessed on March 28, 2018

[7] Kravchenko M. (2017, April 21). Inappropriate Enforcement of Anti-Extremist Legislation in Russia in 2015 Available at: http://www.sova-center.ru/en/misuse/reports-analyses/2017/04/d36857/#_ftn1 Accessed on March 31, 2018

[8] Walker S. (2017, September 29). Crimean Tatar leader convicted of ‘separatism’ will not seek clemency Available at: https://www.theguardian.com/world/2017/sep/29/crimean-tatar-leader-ilmi-umerov-convicted-not-seek-clemency-russia Accessed on March 31, 2018

[9] Hartog E. (2015, October 27) Karelian Activist on Trial After Calling for Referendum on Secession From Russia Available at: https://themoscowtimes.com/news/karelian-activist-on-trial-after-calling-for-referendum-on-secession-from-russia-50497 Accessed on March 31, 2018

[10] Грани.Ру (2015, July 31). В Карелии на муниципального депутата заведено дело о сепаратизме [blog post] Available at: https://graniru.org/Society/Law/m.243294.html Accessed on March 31, 2018

[11] Translated from Russian by Sean Guillery (2016, September 21). How ‘separatists' are prosecuted in Russia Independent lawyers on one of Russia’s most controversial statutes Available at: https://meduza.io/en/feature/2016/09/21/how-separatists-are-prosecuted-in-russia Accessed on March 31, 2018

[12] Gel'Man, V. (2015). Political opposition in Russia: A troubled transformation. Europe-Asia Studies, 67(2), 177-191.