On May 27, 2002, Tatyana Sapunova became a Russian national hero for taking a stand against anti-Semitism, a move that literally blew up in her face. When she removed a sign reading "Death to Yids," a hidden bomb exploded, severely wounding her legs, hands, and face.1 Similar acts of terrorism soon followed.2
In recent years, social tensions in Russia have ripened into alarming trends of violence, ranging from street attacks by groups of "skinheads," to riots by soccer fans during Japan's televised defeat of Russia in the 2002 World Cup, to the recent capture of seven hundred hostages by Chechen rebels at a Moscow theater.3
In response to the escalating problem of ethnic and nationalist violence, the Russian Federation enacted the Federal Law On Counteracting Extremist Activity ("Extremism Law").4 The Extremism Law codifies a definition of "extremism," prohibits advocacy of extreme political positions, and imposes liability on organizations that do not disavow the "extremist" statements of their members. The law also allows government authorities to suspend, without court order, social and religious organizations and political parties; and creates incentives for local authorities to employ greater scrutiny in the registration and initiation of liquidation proceedings against organizations which the state deems undesirable.
This Comment provides a comparison of the Extremism Law and its amendments to existing legislation. Part II reviews several recent trends motivating the passage of anti-extremism legislation. Part III provides an article-by-article overview of the law and a discussion of its unique provisions. Part IV.A discusses the adequacy of existing laws and prevalent tendencies of inadequate and arbitrary enforcement. Part IV.B discusses the likely impact of the Extremism Law on the freedoms of expression, association, and conscience. It predicts a particularly harsh impact on nonprofit organizations, new religious movements, and religious organizations that have not traditionally maintained a presence in Russia. Part IV.C surveys the potential for perverse application of the law, drawing on actual scenarios that suggest the law may exacerbate the very tensions it seeks to quell. Part V provides a brief conclusion.
II. FACTORS MOTIVATING ANTI-EXTREMISM LEGISLATION
Fragmentation and integration of the Soviet Union into the world community has created new ethnic, political, and social tensions.5 The increasing prevalence of racism, nationalism, and concerns about dangerous religious "sects" and "cults" has contributed to a perceived need for additional legislation to combat these phenomena.
It is no coincidence that the Extremism Law was adopted shortly after the widespread appearance of booby-trapped anti-Semitic signs.6 The increasing ranks of nationalist, fascist, and other intolerant groups that attribute Russia's present economic and social ills to ethnic and national minorities became a primary motivation behind anti-extremism legislation.7 Draft anti-extremism legislation gained additional momentum following the June 2002 soccer riots in Moscow that ended in massive disorder, vandalism of cars and Japanese restaurants, and racial violence, including assaults on five Japanese students.8
Russia's Muslims have also become targets of persecution following increased military efforts in Chechnya, the September 11, 2001, terrorist attacks on the United States, and the October 2002 Moscow theater siege.9 There is a growing tendency, even within the Muslim community, to marginalize minority Muslim groups as extremists and terrorists.10 Although Russia has traditionally maintained good relations with Islam, the increased exposure of the predominately Muslim, former Soviet states of Central Asia to Middle-Eastern fundamentalist influences has created new concerns in Russian national security policy.11 These increased tensions represent one motivation for the Extremism Law.
Legislators have also identified religious organizations as particularly prone to exhibit extremist characteristics.12 The antagonism of Russian legislators toward foreign religious organizations follows in part from Russia's slow acceptance of concepts underlying Western religious pluralism.13 The appearance of financially-robust foreign religious groups during the liberalized period of the early 1990s contributed to embittered perceptions by the financially-ailing Russian Orthodox Church and its followers that foreign groups were "purchasing souls" at the expense of Russian culture.14 Consequently, many perceive religious pluralism as a betrayal of "Russian-ness" and the Orthodox Church's "spiritual rights to Russia."15
On a more general level, there are widespread perceptions that foreign religious organizations and new religious movements defraud the spiritually feeble, brainwash vulnerable youth, weaken family affections, discourage fulfillment of citizens' responsibilities, and, in some cases, even use religion as a cover for espionage. Most of these perceptions are remnants of deeply engrained stereotypes that stigmatize unfamiliar religious traditions as "cults" and "sects."16 The understandable response of closely monitoring socially dangerous groups has unfortunately led to broad restrictions that tend to adversely affect many legitimate religious organizations that are not traditionally Russian.
Nationalist populist movements, ethnic minorities, and nontraditional religious organizations all represent potential victims as well as alleged culprits of "extremism." Although extremism is a blurry concept, many would agree with a definition forwarded by one Russian scholar: "Extremism, as it is well known, is characterized in the most general sense by adherence to extreme views and actions which radically diverge from social norms and rules."17 More specifically, recent events have given rise to notions of "religious-political extremism," which entails "religiously motivated or religiously camouflaged activity, directed at the forceful alteration of the political system or the forceful seizure of power, violation of the sovereignty and territorial integrity of the state, or incitement of religious animosity and hate with these goals in mind."18
Russia, of course, is not alone in its struggle against extremist groups.19 Nor is Russia alone in responding to terrorism by enacting legislation that has drawn criticism from proponents of freedom of association and expression. In discussing Russia's Extremism Law, it is important to note that many criticisms contained in this analysis also apply to other countries. Russia's anti-extremism law provides a timely reminder of the complexities of regulating speech, association, and religion, where restrictions can easily transform good intentions into a proverbial "two-edged sword."20
III. THE LAW "ON COUNTERACTING EXTREMIST ACTIVITY"
The preamble to the Extremism Law declares the law's purpose to be the "protection of the rights and freedoms of persons and citizens, the principles of the constitutional system, and the integrity and security of the Russian Federation."21 To accomplish these goals, the Extremism Law codifies an official definition of "extremism," extends several provisions of the Criminal Code to reach the preparatory stages of extremist activities and organizations whose members make extremist statements, and requires local and regional authorities to prevent and suppress the activities of extremist groups.
A. Artide-by-Article Overview
Articles 1 through 5 of the Extremism Law deal with the general framework of the law and its goals. Article 1 proposes a definition of extremism that focuses on four areas: (1) activities of social, religious, or other organizations; (2) promotion of Nazi, or Nazi-like paraphernalia; (3) public incitement to participation in extremist activities; and (4) financing the previously mentioned activities.22
Article 2 affirms the principles of observance and protection of the rights of citizens and legal organizations, the law, openness, national security, prevention of extremist activity, cooperation with social and religious organizations and citizens, and punishment for commission of extremist acts.23 Based on these principles, Article 3 states that counteraction of extremist activity will occur through adoption of preventive measures and disclosure, prevention, and suppression of extremist activity of public and religious associations.24
Article 4 subjects federal and local bodies of the Russian Federation to the present law.25 Article 5 requires the bodies to take preventive measures, including educational and propagandistic measures, aimed at counteracting extremism.26
Articles 6 through 8 deal with the issuance of official warning letters concerning the "inadmissibility of extremist activity" to organizations or persons found to be in violation of the law. Article 6 authorizes the Procurator-General of the Russian Federation or his subordinate to issue a written warning to the head or leader of any organization based on confirmed information regarding an organization's preparation to conduct "wrongful acts . . . containing signs of extremist activity," even if such acts lack sufficient grounds for criminal liability.27 The letter will indicate the impermissibility of the activity and the grounds for issuance of the warning, as well as requirements for correcting the violations.28 The warning may be appealed in a court of law, but if the conditions and requirements contained in the warning letter are not fulfilled, the recipient of the letter may face administrative and/or criminal liability.29
Article 7 establishes a two-month deadline for removal of the violations indicated in a warning letter.30 If an organization appeals the warning letter and a court finds the activities are legal, the organization may resume its activities. However, if the organization does not correct the violations indicated in the warning letter within the allotted time, or if during twelve months from the issuance of the warning "new facts [are] revealed testifying to signs of extremism in their activities," the organization will be subject to liquidation and its activities will be banned.31 Article 8 applies similar procedures to mass media, threatening termination for failure to correct violations noted in the warning letter.32
Articles 9 and 10 deal with liability, liquidation, and suspension of social and religious organizations. Article 9 allows liquidation of social and religious organizations in cases involving "violations of the rights and freedoms of man and citizen, infliction of damage to the personality and health of individuals, the environment, public order, public security, property and economic interests of natural and juridical persons, society and the state, or that poses a real threat of inflicting such damage."33 Groups without legal entity status may be banned by court decision.34 Article 10 allows the state to suspend the activities of a social or religious organization while liquidation proceedings on the decision to ban the organization are still pending.35
Articles 11 through 13 deal with the dissemination of extremist materials through the mass media, public communication networks, and publication and other means of distribution. Article 11 allows the government to shut down a mass media outlet through court order in cases of extremist activity on the same grounds as indicated in Article 9, where the stated harm is caused through extremist activity utilizing the press, television, or radio broadcasting mediums.36 Additionally, Article 11 allows a court of law to suspend the sale or circulation of printed editions or radio or video recordings of these unauthorized uses of media, as well as to seize unsold publications or productions containing extremist material from inventories and wholesale and retail outlets.37
Article 12 bans the use of public communication networks to conduct extremist activity.38 Article 13 prohibits the spread of printed, audio, video, or other materials containing any of the characteristics of extremism, including official materials of extremist organizations or material authored by persons previously convicted in accordance with "international legal acts for crimes against peace and humanity."39 An organization that publishes extremist materials twice within twelve months will be deprived of publishing rights.40 Article 13 also establishes a federal list of extremist materials that may not be distributed in the Russian Federation and establishes administrative or criminal liability for persons who manufacture or store such materials.41
Articles 14 and 15 establish liability for government officials and other natural persons. Article 14 imposes liability on a government official or employee for statements suggesting "the need for admissibility, possibility, or desirability of extremist activity made in public or in the discharge of their official duties, or with an indication of the post held."42 This article also imposes liability for an official's failure to adopt measures within his or her sphere of jurisdiction to suppress extremist activity.43 Article 15 imposes administrative and criminal liability on all persons who conduct extremist activity and requires public or religious organizations to publicly denounce extremist statements made by representatives of the organization within five days in order to avoid imputed respondeat superior liability. Article 15 also restricts people who have participated in extremist activities from participation in government or military service and from working in educational institutions or detective or security agencies.44
Article 16 prohibits extremist activity during meetings, rallies, demonstrations, street processions, and pickets. Organizers of large events are responsible to see that extremist activity does not occur during those events and to suppress in a timely manner extremist activities that may arise.45 Article 17 applies all the foregoing provisions to public, religious, and other non-profit organizations of foreign states by banning any such organization whose activities are determined to be extremist. The ban entails cancellation of registration and prohibition on creating successor organizations in any form.46
B. Unique Provisions of the Extremism Law
Although many of the provisions of the Extremism Law restate provisions of existing laws, consolidation of scattered legal provisions into a single law that addresses an increasingly prevalent need serves a valuable purpose and facilitates application and enforcement. In making this consolidation, these changes actually expand the scope of behavior characterized as extremist.
Specifically, the Extremism Law codifies an official definition of extremism, expands liability for subversive activities and actions that incite racial tensions to include "planning, organizing, and preparing,"47 holds organizations accountable for extremist statements of their members, requires local and regional government officials to prevent extremism, empowers local and federal officials to suspend organizations without a court order, and amends the Criminal Code to prohibit organization of, and participation in, extremist organizations.
1. Codified definition of extremism
The provisions included in this definition are unique only to the extent that Article 1 categorizes these activities within the formal definition of "extremism."48 Although the practical effect of this formalization is unclear,49 a quick perusal of existing law reveals that these activities are already prohibited by the Constitution, the Criminal Code, and other laws governing applicable forms of noncommercial association.50 In most cases, legislation accompanying the Extremism Law replaces the language of other laws-laws that previously dealt with behaviors now characterized as extremism-with references to the Extremism Law. For example, Article 16 of the law On Public Associations ("Association Law"),51 Article 14 of the law On Freedom of Conscience and Religious Associations ("Religion Law"),52 Article 9 of the law On Political Parties,53 and Article 4 of the law On Mass Media54 all previously prohibited organization of public and religious organizations that advocate forceful alteration of the constitutional order of the Russian Federation, and many of the other of the actions included in Article 1 of the Extremism Law. Although amendments to existing legislation enacted in connection with the Extremism Law appear to merely substitute the language describing extremist behavior with reference to the Extremism Law, thereby consolidating and streamlining Russian law, these changes actually do much more.
For example, the Association Law forbids the creation of public associations whose "goals are aimed at a forcible violation of the foundations of the constitutional system and a violation of the integrity of the Russian Federation."55 This provision focuses on the goals of the organization at the time of its creation. In addition to prohibiting these actions in the activity and goals of an organization, the Extremism Law additionally includes planning, organizing, and preparing to perform these acts in its definition of extremist activity.56
Additionally, the prohibition of "propaganda of exclusion, advocating either supremacy or inferiority of citizens on the basis of religion, social, racial, national, religious or linguistic affiliation" is a substantive expansion of grounds for liquidation or denial of registration.57 For example, Article 282 of the Criminal Code prohibits "[a]ctions aimed at the incitement of national, racial, or religious enmity, abasement of human dignity, and also propaganda of the exceptionality, superiority, or inferiority of individuals by reason of their attitude to religion, national, or racial affiliation."58 Article 282 only applies to public and religious associations if the prohibited actions are committed in public or with the use of mass media,59 whereas the Extremism Law does not limit its prohibition to these circumstances.60
This expansion is problematic, especially with respect to religious organizations, because many religions distinguish themselves by claiming exclusive truth based on some superior doctrinal basis. A religious group may face extremism accusations based on private doctrinal discussions during regular worship services.61
2. Expansion of inchoate liability
The Extremism Law empowers the Procurator-General to issue a warning to an organization if he or she perceives characteristics of extremism in the organization's activities, even "in the absence of grounds for criminal liability."62 If the organization does not comply with the requirements of the warning, the Procurator-General may then file suit against the organization.63
It is not clear whether "in the absence of grounds for criminal liability" refers to a missing element of corpus delecti or merely to inadequate evidentiary grounds for establishing probable cause. On the one hand, this provision deserves credit for providing a creative approach to a difficult problem. While people and organizations are potentially liable for extremism, a concept not easily defined, the law provides notice, opportunity to comply, and judicial review of the warning.
On the other hand, this provision may be subject to abuse by low-level officials, who may use the warning letter to harass or coax organizations into compliance with their demands based on the threat of further proceedings. Additionally, there is some ambiguity in the translation: while the English version states that failure to comply with the warning letter may be grounds for holding the organization or individual criminally liable, the Russian version does not explicitly mention criminal liability in case of failure to comply with the warning.
Lack of clarity on this provision may serve as a loophole for local prosecutors to threaten criminal proceedings against persons or organizations which have not technically committed criminal offenses. The possible use of intimidation tactics by regional authorities may be sufficient to control extremist tendencies but might also be used to burden legitimate organizations which do not have the means to challenge state actions in court.
3. Expansion of vicarious liability
The Extremism Law establishes several situations in which vicarious liability may be imposed on organizations for the extremist activities of other persons. Social or religious organizations may be held liable for extremist statements or activities of leaders or members of their governing bodies and subject to a finding that the organization is an extremist organization if the organization does not officially denounce the extremist statement or activity within five days.64 Similarly, organizers of large public events may be held liable for failing to ensure the event does not attract extremists, invoking the use of symbols or attributes or spread of extremist materials, or failing to timely suppress extremism.65
The provisions relating to statements made by leaders or representatives of an organization represent a beneficial approach to uprooting extremist tendencies in the accused organizations because the warning puts the organization on notice that the state has perceived extremist tendencies in the actions of its members or representatives and allows them opportunities to correct the alleged misconduct within five days. If the organization disagrees with the allegation it may choose to adopt the statement of its representative by default and then appeal the warning in court.66 Similarly, the potential liability of event organizers will put them on notice that they must take proper security precautions to prevent outbursts of violence or other dangerous situations. This will encourage organizations and organizers of public events to be more conscious of their affiliations and of the probable consequences of their activities.
4. Fighting extremism on the local level
The Extremism Law requires local authorities to participate in the battle against extremism by requiring them to take preventive measures. Articles 4 and 5 call on all governmental organs of the Russian Federation to become involved in the prevention and suppression of extremism. Article 4 reads, "The federal bodies of state power, the bodies of state power of the subjects of the Russian Federation, and the local self-government bodies shall take part in the counteraction of the extremist activity within their jurisdiction."67 Article 5 requires these same bodies to take preventive measures including "educational and propagandistic measures aimed at the prevention of extremist activity."68
These provisions serve as a potent reminder for local authorities to be more vigilant in reviewing registration applications. Additionally, the law establishes liability for government officials for "non-adoption . . . within [their] sphere of jurisdiction of measures to suppress extremist activity."69 The provision imposing liability on government officials for inaction has the potential to promote better efforts on the local level where laws are often unenforced.70 However, in the absence of federal guidelines and accountability, this may produce disparate regional outcomes driven by local politics.71
5. Suspension of organizational rights
While judicial proceedings for liquidation or determination that the organization is extremist are pending, the government organ that issued the warning and initiated liquidation proceedings may suspend the activities of the organization on the basis of a statement by the Procurator-General or his subordinate without a judicial order.72 Previously, only a court could issue a final decision restricting the rights conferred by legal entity status.73 Although suspension may be appealed in court, the presumption of valid suspension based on the prosecutor's discretion represents a significant expansion of existing law.
Similarly, publication or distribution of extremist materials may result in suspension of an organization's publishing rights. Extremist materials include specific references to works that are by the law's definition extremist, such as materials from the National Socialist Workers' Party of Germany or the Fascist Party of Italy, or other works which call for the commission of extremist activity, justify national or racial supremacy, or encourage the commission of crimes directed at social, ethnic, racial, or religious groups.74
Once a court declares that certain materials are extremist in nature, those materials will be included in a federal list that will be published periodically in the media.75 Organizations whose materials are included in the list of extremist materials twice during the course of twelve months will lose the right of conducting publishing activities.76
6. Amendments to the Criminal Code
The Extremism Law adds two new articles to the Criminal Code.77 Articles 282.1 ("Organizing an Extremist Community") and 282.2 ("Organizing the Activity of an Extremist Community") make the creation of, or participation in, extremist organizations a criminally punishable offense.78 Article 1 of the Extremism Law defines an extremist organization as one for which a court has issued a decision on liquidation because of the organization's involvement in extremist activity.79 Persons who are affiliated with an organization found to be extremist by a court of law may therefore be found criminally liable by mere association with the organization.
The definition of extremist activity attempted in Article 1 of the Extremism Law, although detailed and ostensibly well intentioned, remains somewhat vague and unpredictable in its foreseeable application. The Extremism Law significantly expands the police power of the state and creates opportunities for potentially mischievous application, especially on the local level where enforcement tends to be arbitrary and self-serving, a fact that suggests a strong potential for negative impact on legitimate expression, association, and religious practice. Prior to discussing this impact, this section addresses the problem of selective enforcement.
A. Adequacy of Existing Laws and Inadequate Enforcement
Critics of the Extremism Law note that the problem of proliferating acts of ethnic and nationalist violence lies in the lack of enforcement, rather than in the inadequacy of existing laws.80 The Criminal Code and other laws address the concerns and dangers outlined in the Extremism Law's definition of extremism.81 The Criminal Code also imposes aggravated liability for crimes committed by groups and organizations,82 and higher sentences for crimes motivated by racial, ethnic, or religious hatred.83
Notwithstanding existing laws that allow prosecution of the actions targeted by the Extremism Law, there are foreseeable benefits from the consolidation of scattered provisions into one law, such as ease of application and greater attention to grounds for regulating extremist behavior. It may also simply provide a greater psychological impulse to regulate more strictly social, political, and religious organizations.
These benefits, however, may not overcome the problem of selective and seemingly arbitrary enforcement. Ironically, while the rise in neo-Nazi violence served as the most visible justification for the adoption of the Extremism Law, law enforcement appears to have partnered up with members of such nationalist movements in certain instances in order to fight other groups which are arguably extremists.
One explanation for lax enforcement of existing laws in relation to ultra-nationalist groups appears to be that law-enforcement authorities benefit from their antics. When a skinhead assaulted a black U.S. Marine in 1999, it took international publicity of the case to prompt an investigation, an arrest, and legal action against the skinhead.84 Less prominent victims have had greater difficulty in obtaining redress. This and similar instances have given rise to accusations of police sympathy toward the skinhead cause.85
On the one hand, enforcement is precisely what the Extremism Law ensures by requiring action by local government officials,86 as well as potentially prohibiting, through court decision, persons who have engaged in extremist activity in the past from participating in government, municipal or military service, or employment in the police force or in private security companies.87
On the other hand, the lack of enforcement guidelines and a strong potential that the law may be applied arbitrarily to serve political interests-a practice that is readily apparent in authorities' dealings with social and religious groups and political parties-both suggest that authorities are using the law to restrict expression and burden undesirable organizations. Reports so far suggest that the Extremism Law has had little effect on the efforts of law enforcement officials, who have continued to dismiss racially motivated violence as "hooliganism" and who "deny that there is a racial component."88 Meanwhile, there is evidence that the Extremism Law is already being used to discriminate against religious believers and human rights organizations.89
B. Impact of the Extremism Law on Fundamental Freedoms
The fact that legal grounds exist but are not enforced suggests other motivations for enacting anti-extremism legislation. Some critics have suggested that "the law is a 'club' to be wielded against political parties and nongovernmental organizations"90 and to be used by special services in taking revenge against "unfavorable" organizations.91 In light of potential abuses, this section considers the effect of the Extremism Law on the fundamental freedoms of expression, association, and conscience.
1. Freedom of expression
The Extremism Law imposes restrictions that narrow the range of permissible expression. Russia's international human rights obligations require some restrictions on expression that incites racial, national, or religious animosity. However, broad restrictions on expression, especially in a climate where the mass media is largely state-controlled, suggest a potential for repressive and mischievous application.
The Russian Federation Constitution guarantees "freedom of ideas and speech" to everyone and prohibits forced expression or rejection of convictions.92 Article 13 prohibits the establishment of an official state ideology and affirms the commitment to protecting ideological diversity.93 The broad language of Article 29 protects freedom of the press: "Everyone shall have the right to freely look for, receive, transmit, produce, and distribute information by any legal way."94 Similarly, the constitution guarantees the right to mass communication and prohibits censorship.95 These freedoms are also protected by international norms.96
Although American arguments for free speech are worth noting, Russia tends to side with the European approach to restrictions on expression that affords greater protection to dignity and honor.97 Even some American scholars recognize that "each society must decide for itself where to draw the line between freedom of expression and the demands of public order and security."98
Article 1 of the Extremism Law identifies several expression-related components of extremism. These include incitement of social, racial, nationalistic, or religious animosity; debasement of national dignity; propaganda of exclusion; advocacy of supremacy or inferiority based on religious, social, racial, national, or linguistic affiliation; propaganda and public demonstration of Nazi or Nazi-like paraphernalia; and public summons to other illegal activities, such as overthrow of the constitutional order or subversion against national security.99
As a preliminary matter, the restrictions on hate speech provided in the Extremism Law may actually be required by international human rights norms.100 Article 20(2) of the ICCPR reads, "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."101 Exercise of the right to freedom of expression "carries with it special duties and responsibilities . . . [and] may therefore be subject to certain restrictions . . . ."102 The corresponding general comment further explains that "these required prohibitions are fully compatible with the right of freedom of expression[,] . . . the exercise of which carries with it special duties and responsibilities."103
The United Nations Human Rights Committee concludes the comment by stating that in order for ICCPR Article 20 "to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation."104 However, because freedom of expression is crucial to a democratic society, attempts to suppress even the most insidious forms of expression should be scrutinized under the European Convention's "necessary in a democratic society" test.105 Although Russia may derogate from its commitment to freedom of expression in times of public emergency in order "to ensure the safety of citizens and the protection of the constitutional system,"106 this is only permissible for limited durations in time of emergency.
Several justifications exist for the regulation of expression, particularly racist or hate speech. Racist speech often serves as a precursor to direct violence or psychological injury against minorities.107 Hate speech may also result in indirect harms to minorities "by affecting the way others perceive minority groups, making it more likely that those exposed to racist propaganda will engage in acts of discrimination and even violence against minorities."108 Some have re-characterized hate speech as a "mechanism of subordination" rather than a form of communication, therefore affording it a lower level of protection.109
If the purpose of public discourse in democratic societies is to form public consensus, then this presupposes "community" and "civility rules" in order to function and flourish.110 Thus, restrictions on hate speech primarily aim to preserve "individual dignity" and a "civil tone" in society, rather than actually reducing the level of violence associated with such speech.111 This justification for speech restrictions demonstrates one important difference between the American and European approaches: the American approach tends to prohibit hate speech only where there is an imminent danger of illegal harm, whereas the European approach seeks to prevent hate speech much sooner in order to preserve individual and group dignity and promote open civil discourse.112 Free speech that contributes to the public discourse presupposes at least a minimum level of mutual respect, which racist speech undermines by silencing minorities, making the very object of democracy unattainable.
Although principles of dignity and civility seem to justify the Extremism Law's restrictions on inflammatory hate speech, there may be reason for concern about potential politically-motivated misapplication or selective application to moderate groups or even to the very groups that the restrictions were designed to protect. This is especially problematic in Russia's case for two reasons: First, the Extremism Law gives added incentive to local authorities to err on the side of cautiousness, a policy that would tend to declare marginal groups extremist because failure to take adequate measures to prevent extremism may entail liability of the responsible state official. Second, the Extremism Law forwards an overly broad definition of extremism.
Both features suggest that the law may be misapplied and selectively enforced. Ultimately, an objective court of law will determine whether an organization is extremist. However, while that determination is pending, local registration officials have considerable discretion to restrict organizations through suspension of legal entity rights. Broad definitions of extremism, which regional officials are disposed to apply selectively, will likely lead to a chilling effect on legitimate democratic and political expression.
Broad restrictions on expression also risk the possibility that the attitudes underlying denied expression will reemerge in more extreme forms as a result of "martyring extremists."113 As a practical matter, the publicity surrounding prosecutions for hate speech may produce the same-or even more effective-result of inciting hate mongers to violence.114 Germany has faced this problem in its attempts to regulate Holocaust denials and Nazi paraphernalia, where neo-Nazi sentiment has moved into larger mainstream audiences.115 Apparently this is already occurring in Russia to some extent, as the Russian Communist Party has attempted to form alliances with Russian National Unity, a neo-Nazi party.116
Furthermore, speech restrictions in an atmosphere of state controlled mass media increases the ability of the state to exert pressure on marginal groups by influencing popular opinion. The Organization for Security and Cooperation in Europe has recently expressed concern about Russia's media restrictions, noting "very serious concerns regarding Russia's commitment to freedom of expression."117 Generally, attempts to control information in post-Soviet Russia have resulted in reassertion of authoritarian, rather than popular, control-a result that further stifles democratic development.118
At the extremes, prohibitions against hate speech do not seem unreasonable. However, given the potential for broad interpretation of extremism, it is not clear who will benefit and who will suffer from the Extremism Law. The uncertainty surrounding the definition of a difficult concept like extremism paired with regional variation in extremism problems and increased incentives for government officials to crack down on extremism suggests that enforcement of the Extremism Law may result in disparate and paradoxical outcomes.119
2. Freedom of association
The Extremism Law creates several potential threats to freedom of association for social and religious organizations, as well as for political parties. First, the Extremism Law permits the suspension of social and religious organizations for an indefinite period of time without judicial proceedings, pending determination by a court of law as to whether the organization is extremist. Second, as a practical matter, the Extremism Law creates incentives for local authorities to regulate more strictly the registration of such organizations, which will increase the instances of violation of freedom of association already being experienced by social and religious organizations. Because the law poses certain, unique challenges for religious organizations, those organizations will be treated separately in the next section.120 This section focuses primarily on nongovernmental organizations, public associations, and political parties.
The Russian Federation Constitution guarantees freedom of association. This guarantee extends to all social spheres and includes the right to freely associate with public or social organizations, religious organizations, and political parties.121 A "public association" is a voluntary, self-governing, non-profit formation organized by individuals united by common interests through the legal entity structure of a public association.122 The right to association includes the right to establish associations for the protection of common interests, the achievement of common goals, and the realization of the rights and lawful interests of individuals.123 Public associations are equal before the law.124 Freedom of association is protected by international norms.125
The state does not require associations to register in order to enjoy associational rights. However, to acquire the additional rights afforded by legal entity status, such as the right to enter into transactions in the name of the association or to invite foreign persons to the Russian Federation, the Russian Civil Code requires social organizations to register with the local departments of justice.126 Although registration may be denied if the documents submitted for registration do not comply with the requirements of law, registering authorities cannot deny registration merely because the authorities consider the goals of the organization socially undesirable.127 The Association Law accords organizations the broad power to determine their internal structure, purposes, and activities.128
As applied to public associations and religious groups, the Extremism Law potentially runs afoul of Article 6 of the European Convention, which guarantees "a fair and public hearing within a reasonable time by an independent and impartial tribunal" in the determination of an individual's civil rights, obligations, or of any criminal charge.129 Article 10 of the Extremism Law empowers government organs of registration to suspend social and religious groups pending examination by a court of law of the alleged extremist statements or activities for which the Procurator-General seeks liquidation or a permanent ban.130 This suspension entails a complete cessation of activities, including organizing or holding meetings and maintaining bank deposit accounts.131
Although the provision of a right to appeal the suspension is a mitigating feature of Article 10, it does not fully redeem the provision from tension with Article 6 of the European Convention, which requires that the impartial tribunal take place "within a reasonable time."132 The absence of any limitation on the duration of the suspension exacerbates the potential lack of due process and creates the potential for undue delay in determination of organizational rights. The absence of such a limitation may easily become a strategic weapon of delay for prosecutors who may not be able to succeed in obtaining a decision for liquidation, but who may find it desirable to "wait out" undesirable organizations.
Moreover, the Extremism Law provides additional psychological stimulus to regional and local authorities to deal more harshly with religious and social organizations, a feature which compounds the concerns over suspension noted above. Consider the incentives that the Extremism Law provides: the law specifically requires local and regional authorities to become involved in the battle against extremism,133 while at the same time establishing liability for local and regional authorities who do not take sufficient measures within their sphere of jurisdiction to prevent and suppress extremist activity. Although the law is vague on the nature of this liability, it is not difficult to see that in order to avoid potential penalties, local authorities will tend to overcompensate to avoid liability for not preventing extremism. This will likely lead to further tightening of registration procedures and a greater frequency of liquidation proceedings.
Additionally, because of the effect the law will have on regional registration authorities in creating incentives to become more strict in registration procedures, it will tend to exacerbate the existing problem with the registration procedures for social and religious organizations. Specifically, legitimate organizations who comply with the procedures will be subject to delays, threats of judicial proceedings, and burdensome requests, while illegitimate organizations may attempt to circumvent the registration procedures and operate illegally.
An illustrative series of cases resulted from the re-registration campaign following the enactment of the Association Law in 1995. The Association Law affirms the right of individuals to form public associations "on a voluntary basis for the protection of the common interests and the achievement of common goals."134 The Association Law likewise ensures that registration cannot be denied on the mere judgment of the state registration body that creation of the organization is not expedient.135 At the time of its enactment, the Association Law also imposed a requirement that organizations previously registered must re-register.
Although authorities cannot deny registration on the ground that an organization does not serve a valuable purpose, regional and local administrators have taken advantage of the re-registration requirement to eliminate "undesirable" organizations.136 According to a reported statement by one official, the requirement for nongovernmental organizations to re-register was "aimed at reducing the number of organizations with a strong political focus and aspirations to get on the ballot before the State Duma election, and at isolating radical and extremist political groups . . . for the sake of the public good."137 Although this was the stated purpose of the Association Law's re-registration requirement, the Association Law actually "affected those who, in reality, promote public interests, such as human rights, environmental and other organizations."138
The re-registration requirement presented a number of difficulties to organizations that were already registered. However, local and regional authorities have reportedly used several responses to further complicate this process. These responses include making unreasonable requests from parties seeking registration beyond the requirements imposed by the Association Law, failing to provide explanations of the grounds for denial of registration, failing to provide reasonable explanations or clarification on the proper form of documents required by the region, and failing to provide notice of deficiencies in the submission forms soon enough to allow for timely correction and resubmission.139 The arbitrary variation of registration procedures and interpretations of registration laws has resulted in what one former insider admittedly calls "crushing . . . organizations one after another . . . ."140
Russian authorities appear skeptical of the prospects of a privately-controlled, nonprofit sector acquiring functions previously administered by the state. One explanation for this may be the state's fear of losing influence over economic and social development, even when the state is clearly incapable of performing necessary social functions. Another explanation may be fear of political competition.141 Incumbent politicians apparently recognized the political advantage of restricting the number of political parties that may compete for votes in upcoming elections.142
Authorities explained the re-registration campaign of 1996-1999 as an attempt to rid the landscape of radical and extremist groups for the public good; however, practical application of the law led to a much more expansive campaign imposing significant difficulties on legitimate, non-radical, non-extremist organizations as well. The Violations Report concludes that "[i]llegitimate, and sometimes insulting demands made by officials of justice departments to human rights groups and other [nongovernmental organizations] applying for re-registration, were so common that they suggest a conscious policy directed against nongovernmental organizations," a policy that "threatens the development of civil society in Russia."143 Evaluating this result in light of the stated policy-elimination of radical and extremist groups-it appears that application of the Association Law was misguided, allowing problems of extremism to persist while denying non-extremist groups re-registration due to mere technicalities and arbitrary requirements.
The experience of the Association Law and reported statements by officials indicate that eliminating extremism was not the sole aim of the Association Law's re-registration requirement; as noted previously, elimination of political competition, retention of state authority, and other political motivations have lead to denials of registration.144 And if the same tendency of local and regional authorities to employ varying and arbitrary requirements in reviewing registration submissions continues, there is little guarantee that organizations will be shielded from similar difficulties under the Extremism Law. The practical effect of these alterations is an expansion of state power under the Association Law to liquidate and suspend public associations and nongovernmental organizations.
3. Freedom of conscience
The Extremism Law's provisions on suspension and increased involvement of local authorities will affect religious organizations at least to the same extent as they will affect social organizations and political parties. Religious organizations are presently subject to a registration scheme very similar to that described in the previous section in connection with the Association Law. And religious organizations have encountered the same difficulties in obtaining registration. However, religious organizations, as explicit targets of the Extremism Law, deserve a separate discussion because religious association, which entails freedom of conscience, expression, and belief, receives a higher level of protection under international norms.145
The Russian Federation Constitution guarantees freedom of religion, conscience, and belief. Article 13 ensures political and ideological diversity, while declaring that the state may not establish an obligatory ideology.146 Article 14 declares that Russia is a "secular state," prohibits the establishment by the state of an obligatory state religion, and declares all religious associations equal before the law and separate from the state.147 Article 28 guarantees to every person "freedom of conscience, freedom of religion, including the right to profess individually or together with others any religion or to profess no religion at all, to freely choose, possess and disseminate religious and other views and act according to them."148 International norms also protect freedom of conscience and religion.149 The European Court of Human Rights, in a well-developed series of cases, has continuously held that freedom of conscience entails more than the mere right to hold a personal belief, strongly suggesting that the right to legal entity status is included in the right to freedom of conscience.150
First in 1990 and then again in 1997, the Russian government enacted legislation governing the practice of religious organizations. The 1990 law created a fairly liberal regime that promoted the growth of foreign religious organizations and, in some instances, led to a rise in religion-related abuses. A concern over the spiritual security of the country led to the enactment of the 1997 Religion Law, which provided a stricter registration regime intent on mitigating the activities of dangerous "sects" and "cults."151
The registration provisions of the 1997 Religion Law, which grant privileged status based on the religion's duration of presence in Russia, are the most controversial parts of the law because they discriminate between "traditional" religions, new religious movements, and foreign religions.152 In spite of declaring all religions equal before the law, the registration provisions of the Religion Law undermine equal treatment. The annual re-registration procedure for organizations that have not reached a fifteen-year threshold of existence on Russian soil conflicts with the constitutional protection against retroactivity,153 with international norms,154 and with decisions of the Russian Constitutional Court, which have generally upheld the requirement but have allowed a grandfather provision for organizations registered prior to 1997.155 Accounts of difficulty in acquiring legal entity status through registration are plentiful.156 Of course, without legal entity status many religious organizations are unable to fully function because they lack the legal ability to rent meetinghouses, purchase property, and hold bank accounts. As noted earlier, several features of the Extremism Law increase the likelihood that local authorities will use the law to discriminate against non-traditional religious groups by further complicating the registration process.
Legislators who think the Religion Law's restrictions do not go far enough in countering extremism and curbing the proliferation of nontraditional religions have proposed a series of draft laws that would strengthen the Religion Law's grasp. In 2002, Alexander Chuyev, Deputy Chairman of the Committee for Public Associations and Religious Organizations, introduced a draft law-"On Traditional Religious Organizations"-which would raise the fifteen-year requirement to eighty years to obtain the most privileged level of legal entity status.157 In early 2003, such proposals continued to circulate in the Duma.158
At an initial level, the Extremism Law will affect religious organizations in much the same way as it will affect social organizations and political parties as discussed in the previous section (i.e., through a tightening of registration and liquidation procedures as well as the potential for arbitrary application and pretextual use to achieve political goals).159 Several religious groups have expressed concern about the Extremism Law's vague definition of extremism and its potential for mischief.160
Moreover, there is an additional concern that implicates freedom of expression, association, and conscience. One definition of extremism in Article 1 includes "propaganda of exclusivity, advocating either supremacy or inferiority of citizens on the basis of religion, social, racial, national, religious or linguistic affiliation."161 This definition is problematic for several reasons. First, most religious doctrines claim to have a superior grounding in truth. This definition would even affect the Russian Orthodox Church, which regards itself as the exclusive claimant to Russian spirituality.162 Second, regulation of how a religious organization perceives doctrinal matters risks an impermissible overreach by state authorities into essentially internal matters. One Moscow lawyer notes the potential implication of this provision: "Any religious organization considers its doctrine to be the true one, and a state official might find incitement to religious discord in that."163 Fearing these possibilities, social and religious groups, as well as individuals, might withdraw from the public discourse as a result of a chilling effect on free speech and the open discussion of religious ideas necessary for a pluralistic, democratic society.
Moreover, such a prohibition, if taken literally, will result in a declaration that all proselytizing religious groups are extremist organizations subject to arbitrary suspension, liquidation, or a complete ban-a result that would be even more oppressive than the Religion Law's fifteen-year provision. For many religious organizations, proselytism is an integral part of religious belief and practice and this right has repeatedly been upheld by the European Court of Human Rights.164 This hypothetical possibility demonstrates the potential for arbitrary application. Although seemingly tenuous in the abstract, this element of "extremism" may serve as grounds for denial of registration or liquidation of religious organizations if a local administration is intent on eliminating a particular social, religious, or political organization.
C. Potential for Arbitrary Discretion and Perverse Application
One obstacle to the enforcement of existing laws has been the absence of a sufficient definition of extremism. The Extremism Law, while fairly clear in its foreseeable application to truly reprehensible behaviors, fails to provide the needed guidance in the less obvious cases. Instead, criticisms abound that the law's definition of extremist activity is excessively broad.165 A vague, overly-broad definition fails as a prior restraint to provide notice by which parties can shape their behavior and frame their speech and risks ultimately leading to dubious application, if not blatant abuse.
Several critical hypothetical scenarios have explored the potential of the definition of extremism provided in the Extremism Law. One commentator has argued that the law seeks "to create a uniform person tolerant of every belief . . . . This is secularized totalitarianism, we will have to be tolerant of all scoundrels."166 Although admittedly far-fetched, another commentator notes the contextual nature of the definition of extremism: "[I]f someone says that 'capitalists are greedy' or even that 'skinheads are no good,' one cannot but perceive it as 'extremist propaganda.'"167 The same commentator suggests a more realistic application: "To forbid 'the propaganda of exclusiveness' of religious communities is to impose an extremely harsh constraint on the preaching of all the main religions."168 Another possibility for potential abuse that follows from these examples is that the state will befriend certain groups based on their ability to assist in marginalizing others.
Two actual scenarios indicate that the present legislation has already been invoked in ways that raise the question of who the Extremism Law is designed to protect. The first scenario involves a nongovernmental organization, the Novorossiisk Committee for Human Rights, which felt the early brunt of the law when the regional deputy governor told the organization's leader: "[W]e will test the new law on extremism on your organization."169 The Novorossiisk Committee represents a group of Meshketian Turks in the Krasnodar Krai who have endured intense discrimination at the hands of government authorities.170 The Meshketian Turks are a "Turkish-speaking Muslim ethnic group deported in 1944 from Southern Georgia to Central Asia," and "about 290,000 Meshketians live within the borders of the former U.S.S.R."171 Krasnodar authorities have discriminately refused to grant the Turks a registered place of residence, effectively depriving them of recognition as Russian citizens, access to higher education, and social services.172
The deputy governor's statement accusing the Novorossiisk Committee for Human Rights of extremist activity came after the committee was accused on local television of "helping extremists with foreign money" and "grossly interfering with the affairs of the krai."173 With a backdrop of state-imposed media restrictions, the potential for biased spread of news coverage may tend to result in politicized media campaigns against undesirable groups the state wishes to eliminate, as this situation seems to demonstrate. The Meshketian Turks' situation also demonstrates that it is not obvious which group the Extremism Law will protect and whom it will indict: the Meshketians, the human rights nongovernmental organization advocating social justice for the Meshketians (or undermining regional security, depending on how the facts are spun), or the government. The Extremism Law provides grounds for holding any of the three groups liable, but it is apparently not enough-in Krasnodar-that regional administration policy openly discriminates against refugee groups on the grounds of racial and national hostility.174
What is an admittedly complicated situation demonstrates a rather simple point: despite the publicized motivations for anti-extremism legislation portraying victims of racially-motivated violence and discrimination as the ultimate benefactors of the law, the law may actually be applied by the state in ways that exacerbate, rather than heal, ethnic tensions and divisions. Depending on regional politics and the nature of regional-federal relations, the regional administration could face either liability for its own extremist policies or applause for preventing and uprooting extremist developments in the population.
The second scenario, involving Russia's Muslim community, demonstrates how the law's vague definition of extremism may result in dubious application. Racist and nationalist groups that persecute Muslims may clearly be found guilty of impermissible racist or nationalistic speech and/or incitement of racial violence, if not subject to outright criminal liability under the Extremism Law and the Criminal Code. However, Islamic groups may also themselves be targeted by state authorities as potential extremists. The Federal Security Service is apparently cracking down on Islamic groups and has recently compiled a blacklist of Islamic organizations which the Supreme Court is presently reviewing for terrorist connections.175
An interesting variation of this development is the preparation of a similar blacklist by Muslim groups which includes "politicians, officials, and journalists who 'have a bad attitude toward Islam.'"176 One official in the Karelia region found himself on the list for opposing the construction of a mosque: "He believes that drawing up such lists and publishing them in the press incites religious enmity, which is punishable under the Criminal Code."177
How the law affects Muslims may depend on politics within the Muslim community. Ideological divides between Russia's Muslim communities have resulted in perpetual accusations that all other Islamic minorities are "Wahhabi extremists."178 Although Islam does not have a hierarchical organization, the Russian state has informal relations with two "official" Muslim leaders who serve as the spiritual leaders of Russia's European and Asian Muslims.179
As this article goes to press, the dust is settling from a recent threat of prosecution against one of Russia's Muslim leaders. As a U.S.-led invasion of Iraq became imminent, Supreme Mufti Talgat Tadzhuddin, leader of the Russian Spiritual Board of Muslims, called for a holy war against the United States and advocated "set[ting] up a fund from donations and us[ing] the money to buy weapons to fight America and food for the people of Iraq."180
In response, the Russian Prosecutor General's office threatened the organization with prosecution for "inciting ethnic and religious discord" if he repeated the call to arms.181 Tadzhuddin's Spiritual Board of Muslims responded to this warning by recanting its statement. Instead of promoting a jihad, the Board voiced support for President Putin's policy "calling for settlement of the Iraq crisis through peaceful means" and advocated for a less extreme course of action, stating: "We are praying to God to make the anti-Iraq coalition's leaders and soldiers repent."182
This recent incident demonstrates the effectiveness of the Extremism Law in re-channeling protest in appropriate directions; in this case, legitimate expression of indignation and calls to religious believers to pray for a peaceful outcome replaced calls to citizens to take up arms against the U.S. It also demonstrates the potential for various factions of Russian Islam to marginalize competing factions. In response to Tadzhuddin's statement, the Russian Council of Muftis, under the direction of Ravil Gaynutdin, denounced the leadership of Tadzhuddin and refused to endorse the jihad.183 By denouncing Tadzhuddin and taking a moderate approach on the pending invasion of Iraq, Gaynutdin effectively aligned himself and the Council of Muftis with official Kremlin policies.
The Extremism Law may be used by the state to force a consolidation of the two hierarchies into one central Islamic organization, with the aim of creating "a single hierarchical Muslim organization, like the 'Muslim Patriarchate' that existed in Tsarist and Soviet Russia"-a policy that would "greatly facilitate state control at the expense of religious freedom."184 The prospect of official endorsement of a moderate form of Islam by the state explains the enthusiasm of some Muslim leaders for the Extremism Law.185 However, Muslim minority communities will likely resist such attempts based on beliefs of doctrinal purity. The European Court of Human Rights has addressed this issue in three pertinent cases holding that alleviating social tension among competing factions within a religious community does not justify encroachments on the religious autonomy of a religious community.186 Critics, however, suggest this is "the likeliest outcome of Russia's war on extremism."187
Attempts to control Islamic fundamentalism by treating all Muslims alike-especially like "Islamic Extremists"-are likely to further engender discord among Russia's various Islamic communities.188 The prospect of forced reconciliation of Russia's two largest Muslim communities by "[e]xerting pressure on any particular group of believers can lead to negative results: forcing them to go underground really means nudging them towards terrorism."189 However, as Tadzhuddin's recent voluntary recant of the call for jihad against the United States demonstrates, the law may effectively achieve the opposite, positive effect of deterrence.
As government officials attempt to prevent and referee potential conflicts, they too may face penalties for taking action against the wrong group. While it has been noted that the potential liability for inaction on the part of responsible state officials increases officials' incentive to act, the difficulty of determining which organization to target creates incentives to implement the law in arbitrary, politically motivated ways.
The Extremism Law is part of President Vladimir Putin's plan to restore Russia to a state of law and order as he pledged in 2000: to rein in power from the regional elites and oligarchs and establish a "dictatorship of the law" to strengthen the Russian state.190 Putin's tough stance on extremism reflects a commitment to counter escalating tensions that threaten the safety and security of the Russian Federation and its citizens.
While the Extremism Law may result in more effective law enforcement, increased monitoring of the registration of organizations, and prevention of truly dangerous tendencies, the law also vests considerable power and discretion in local administrators who have demonstrated a tendency to act capriciously in relation to social and religious groups and who may use the law to marginalize political opponents. A broad definition of extremism coupled with incentives for authorities to overcompensate in preventing extremist tendencies will likely result in greater difficulties for legitimate, law-abiding foreign social and religious organizations, a result that appears to be another underlying purpose of the Extremism Law.
J. Brian Gross*
J. Brian Gross*
* The author wishes to thank W. Cole Durham, Jr. and Elizabeth A. Sewell of the BYU International Center for Law and Religion Studies for comments and guidance, Sergei Chugunov and Tatyana Tomaeva of the Slavic Legal Center for preliminary versions of the Extremism draft law and other legal materials, and the editorial staff of the BYU Law Review.…