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How ‘separatists' are prosecuted in Russia Independent lawyers on one of Russia’s most controversial statutes

Meduza
16:11, 21 september 2016

An Anti-Maidan poster marking the anniversary of the March 2015 Crimean referendum.

Photo: Evgeny Feldman / Novaya Gazeta

Russia’s Supreme Court is preparing a ruling to clarify one of the Russian Criminal Code’s most controversial statutes: Article 280.1 (on public calls to action for the violation of the territorial integrity of the Russian Federation). The article entered the Criminal Code in May 2014, and has, so far, been applied in 15 cases (the majority of which concern Crimea). In addition, there have been five convictions for statements on social networks and publications, in particular. Since this article has no precedence in Russian law, Meduza asked the head of the international human rights group Agora Pavel Chikov and its lawyer Ramil Akhmetgaliev for their thoughts.

After the parade of sovereignties

The issue of Russia’s territories has garnered a lot of discussion in recent years in terms of how and who can join the Federation and whether someone can leave. A consensus has formed in public opinion both on a measure of autonomy and a right to self-determination and – concurrently with the appearance of article 280.1 in the Criminal Code – about being held liable for calls to action to violate Russia’s territorial integrity.

Article 280.1 went into effect on May 9, 2014, and a relevant case appeared almost immediately, with the first sentences being handed down in 2015. Though the lawyers confirmed that investigators were and are cautious in applying this law: in two years, there have been 15 cases, five convictions, and one forced hospitalization. All of these defendants were found guilty: three were given prison terms and one was sent to a psychiatric hospital.

So what is so wrong with convicted citizens getting sentenced to prison?

To understand the situation, perhaps, it stands to briefly recall the Russian Constitution, which guarantees the right to peoples’ self-determination (Article 5). The Constitution also includes an entire chapter on Federation (chapter 3). But there is one small detail: the Constitution only addresses the question of being admitting to the Russian Federation. There is not a single line about the possibility, or even the right, to secede from it.

Well, then what about sovereignty? Yes, republics have a right to sovereignty, but in no way does this imply the right to secede from the Federation. This is the official explanation and interpretation of the constitutional provisions the Constitutional Court gave in the late 1990s and early 2000s (for example, the decision № 10-P of 7 June, 2000).

We will not bore you with legalese like "contractual federation" or "constitutional federation." Put simply, the Constitutional Court’s positions are as follows: all subjects of the Russian Federation are inalienable and constitutive parts of the Federation and do not have the right to secede from the Russian Federation. The Constitutional Court made these rulings after the so-called "parade of sovereignties" and infamous events in the North Caucasus in the 1990s. It turns out that the subjects of the Russian Federation misinterpreted the term "sovereignty". In reality, the term had several different meanings that the subjects did not understand.

One can argue over whether these findings are valid or not, but today the situation should be taken as a given, since the Constitutional Court is the only authority that has the right to officially interpret the Constitution’s provisions and its decisions cannot be appealed. Hence, the government’s official position is: it is possible to join the Russian Federation, but impossible to secede from it. All of this is clear in the words of the anthem “the age-old union of fraternal peoples,” or its Soviet equivalent “forever united.2 It seems like freedom, but is really an eternal union.

The Politics of Separatism

Québécois Party protest in Canada for the independence of Quebec
Photo: Peter Jones / Reuters / Scanpix / LETA

Increasingly, the word "separatism" has a negative, illegitimate meaning. In reality, separatism does not mean something prohibited and illegal in all cases. Separatism is a policy and practice based on peoples’ right to self-determination and secession in order to create a new state or become a part of another state.

We can identify two main ways to realize secession: peaceful and violent. Currently, there are legal separatist political parties: there’s the Québécois Party in Canada and the Scottish National Party in Scotland. There have been official referendums on independence held in these countries: in Scotland, just recently, in 2014, and in Quebec in 1995.

The most famous example of a violent solution to territorial issues was that of Irish Republican Army, a paramilitary organization whose goal was to achieve full independence for Northern Ireland (In 2005, the IRA leadership announced a transition to a political settlement of the conflict). It is likely that defined legal regulations in the West in regards to independence referendums are intended to limit such violence. This position is also held by the European Court of Human Rights. The Shanghai Cooperation Organization (SCO), in which Russia plays an important role, shares this position as well. In particular, the Shanghai Convention on Combating Terrorism, Separatism and Extremism (of June 15, 2001 and ratified by Russia in 2003) mentions criminal prosecution for separatism carried out exclusively through the use of force.

Russian lawmakers introduced a new article into the Criminal Code prohibiting calls for the violation of territorial integrity in 2014. We will not speculate on the real motives of law’s authors or try to find a connection between these innovations and infamous events in Russia and Ukraine in spring of 2014. The draft amendments to the Criminal Code were developed and adopted in 2013, long before those events. Today this is not so important. What is more crucial is to understand how investigators and courts interpret and apply these laws, and even more importantly, against whom.

There is another important detail. As we have said, the amendments to the Criminal Code went into effect on May 9, 2014, but after two and a half months (that is on July 21, 2014), revisions were adopted. The maximum penalty of three years of imprisonment was increased to four. Crimes that were initially treated as minor offenses were now more serious crimes.
As a rule, amendments to sentencing in the Criminal Code occur in large blocks (that is of amendments to numerous laws pertaining to various categories of offenses simultaneously), but, in this case, amendments were introduced for this single article only, which is something that had never happened before. Why all the attention? It is very simple: the code practically prohibited sentencing for minor offenses and only then punished people mainly with probation, as opposed to real imprisonment. A “legitimate” reason is necessary to arrest and sentence someone to real time in prison.

Provocative Statements

The leaders of Russia, China, Kazakhstan, Tajikistan, and Uzbekistan after the signing of the Shanghai Cooperation Organization in June 2002.
Photo: Sergey Maximishin / PhotoXPress

As of today, there have been 15 criminal cases tried on the basis of Article 280.1, all in the period of 2015-2016. According to official Supreme Court data, no one was sentenced under the article in 2014.

In 2015, sentences were handed to Rafis Kashapov, Yuri Avdoshkin, Darya Poliudova, Vladimir Zavarkin, Alexei Moroshkin, and Alexei Z. Kashapov pleaded innocent and he was sentenced to three years in a penal colony. Polyudova pleaded innocent and got two years in a settlement colony; Moroshkin was sent to compulsory mental treatment. Zavarkin pleaded innocent and was fined. Alexei Z. pleaded innocent and received probation. Criminal cases have been initiated and investigated against three more: leader of the Crimean Tatar national movement Refat Chubarov, Crimean businessman Lenur Islyamov, and Crimean journalist Anna Andriyevskaya.

In 2016, Alexei Bubeev pleaded innocent and was sentenced to two years and three months in a penal colony. Ilmi Umerov, Nikolai Semena, Vladimir Khagdaev, and Andrei Piontkovsky are currently being investigated under Article 280.1. Piontkovsky fled Russia, Umerov is in custody, and Semena and Khagdaev are under house arrest. In Kaliningrad, there also a case that the FSB initiated in August 2016.

Current affairs commentators Andrey Piontkovsky (on the right) in Moscow's Basmanny Court which declared several of his writings "extremist".
Photo: Dmitry Lekai / Kommersant

The statements of the accused pertained to status of Crimea (eight cases), Karelia, Siberia, and the Urals, as well as a unified Mongolia, Chechnya, the Republic of Komi, the Kuban Region, and the Kaliningrad region.

The statistics are strange. Do only those who have threatened Russia’s integrity fall under Article 280.1? Why has one statute caused so much fuss? Who are these “villains” who call for Russia’s disintegration? Where are their weapons, recruits, plans to seize telephones, railway stations, etc.? Where are their calls to violence? In reality, there is no evidence of such menacing uses of force, nor the court actually need them, the lawyers say. Nothing but words are necessary for both prosecution and conviction. The numbers do not tell the whole story about these people and their dealings. Therefore, we focus on those who have already been convicted.

Avdoshkin, aka Yuri Stop, a known co-chairman of the nationalist organization "Northern Frontier" and the chairman of the group "Russians" in the Komi Republic, "acted on separatist sympathies deliberately kept texts on his computer that appealed to the public for the secession of the Komi Republic from the Russian Federation with the purpose of provoking an indefinite number of people to carry out illegal acts aimed at violating the territorial integrity of the state”. The court did not mention any calls for violence in its sentence. In reality, Avdoshkin had posted a comment to a certain article online. The defendant plead guilty and the court past judgement without examining the evidence.

Alex Bubeev, an electrical engineer from Tver with no prior convictions, a wife, and two young children, is an active Internet user. A Tver court found him guilty of posting another author's article titled "Crimea is Ukraine!” on his social network page. According to an expert from the FSB’s Institute of Criminology Center of Special Technology, Bubeev "had called on an anonymous group of persons . . . [to] violate the integrity of the Russian Federation." There was no incitement to violence or armed formation (the only appeal was to make banners) in the text. In March 2016, human rights activists from Memorial declared Budeev a political prisoner, noting that "the text’s tone may have been excessively abusive and aggressive, but that that is not a sufficient reason for persecution."

On May 20, 2015, there was a rally calling for the resignation of Alexander Khudilainen, the governor of Karelia in Petrozavodsk. Deputies from the Legislative Assembly were among the speakers. At the end of the rally, protesters appealed to the President with a request for the governor's resignation due to his involvement in worsening the region’s socio-economic situation and the supporting political repression. In response to the authorities’ inaction, deputy of the Council of the Suojärvi urban settlement Vladimir Zavarkin suggested in an emotional speech that a referendum be held on Karelia’s secession from Russia.

The basis for his sentence was the fact that "statements of a motivational character calling for the secession of the Republic of Karelia from the Russian Federation couched in ambiguous set of proposals" were identified in his speech.

A Petrovsk-Zabaikal City Court in the Zabaikal region sentenced local eighteen-year-old resident and follower of the Right Sector, an extremist organization banned in Russia, to prison for two and a half years. Prosecutors argued that he "deliberately created a group on a social network page in January 2015 and posted and endorsed a picture containing insults against Russians . . . and edited image with an inscription calling for violence against anyone who supports Crimea’s incorporation into Russia."

In the case of Rafis Kashapov, Tatarstan’s Naberezhnochelny City Court found that he had used "textual and visual materials … to form a negative attitude toward Russia’s actions in Crimea in 2014 . . . through claims about the "occupation" of Crimea and violations of international law. His allegations were too found to be aimed at violating of Russian Federation’s territorial integrity through the dissemination of ideas Russia’s “illegal” in “occupying” Crimea. The defendant and his lawyers argued that his criticisms of the Russian authorities’ actions were his opinion and that he was merely exercising his freedom of speech. No calls to commit violence were identified in Kashapov’s rhetoric.

The brothers Rafis and Nafis Kashapov are activists in the Tatar national movement. Nafis emigrated from Russia in 2005. Rafis Kashapov is the chairman of the Tatar Public Center and lives in Naberezhnye Chelny. In 2009, the latter was convicted under Section 1 of Article 282 of the Criminal Code for making a few blog posts against forced Russification and Christianization. In May 2015, Memorial declared the Kashapov brothers political prisoners.

Moroshkin, a resident of the Russian city of Chelyabinsk and a native of Ukraine, was diagnosed, during the court’s investigation, with "chronic mental illness”. The court concluded that he was “unaware of the actual nature of his actions [when he distributed] printed materials.” In these materials, Moroshkin expressed his opinion on the current situation between Russia and Ukraine and on the need for political reform in Russia. He also spoke of the need to establish an an independent Ural State. In his opinion, Ukraine had fallen out of Russia’s political influence, so he proposed the creation of an independent state in the Urals in light of Ukraine’s experience. This position was the result of his religious beliefs, concluded the court, as, in 2012, he became the head of the Church of the Chelyabinsk Meteorite.

Moroshkin received involuntary psychiatric treatment in a mental hospital.

Aleksei Moroshkin
Photo: Open Russia / YouTube

Daria Polyudova is civic activist and blogger from the Krasnodar Territory. The Court found that Polyudova had published texts on social networks (namely, Kuban: the ethnic Ukrainians of Kuban ask Ukraine and the world community to protect them from harassment and Russian chauvinism. Kuban requires reunification with Ukraine—its historic homeland!") that violated Section 2, Article 280.1 of the Russian Criminal Code. The court established that the motive for Polyudova’s crime was her hatred for the current political regime in the Russian Federation.

No right to leave

Territorial subjects in the Russian Federation have no right to withdraw their membership. Even if Russia recognizes the subject’s right to self-determination at the time of accession, the subjects will irrevocably lose these rights thereafter. It is illegal to even pose such questions on succession and one cannot hold referendums. It is illegal to speak and or to call for secession from the Federation, even by peaceful means. It is impossible to discuss, much less criticize (i. e. to question the legitimacy of decisions made by Russian authorities) or appeal a decision by a legislator or a head of state. Based on current practice, the actual degree of threat pose by a citizen’s actions or statements against Russian sovereignty does not actually matter. Nor does the question of whether the citizen has used or incited violence. The courts do not take freedom of speech into consideration.

Territorial disputes between states are some of the most pressing issues that concern various societies. Russian courts and law enforcement agencies are absolutely unnecessary when there is public and political debate on territorial issues from time to time, and people express a variety of views, even radical ones, in these discussions. The police and courts, of course, may not like the supporters of opposing views. However, such discussions are well within the scope of freedom of expression. However, the courts’ position on freedom of expression in regard to the particular issue of succession is very clearly reflected in its rulings.

Any citizen discussing any issue related to the loss of Russia’s territory risks criminal prosecution. But it is not all that bad. You can quite safely discuss issues about the incorporation of new territories without fear of being persecuted, at least not by Russian law enforcement officers. You can easily croon about “darling Alaska” and its future “return” to Russia.

A petition against giving China the Tarbarov and Big Ussuriisk Islands. Khabarovsk, October 2008.
Photo: Yury Zolotarev / TASS

The collection of signatues against giving China the Tarbarov and Big Ussuriisk Islands. Khabarovsk, October 2008.

So that is where things stand for ordinary citizens; Gods may do what cattle may not. In both international and Russian law there are such terms as delimitation, demarcation, rectification of borders, and so on. We will not go into legal technicalities. Anyway, procedures exist for certain territories to join neighboring countries, as opposed to Russia. This is not separatism.

Here are a few examples. In 2008, Russia gave China the Tarabarov island and part of Big Ussuriysk island. In 2010, Russia handed over the Norwegian part of the Barents Sea Shelf, an area of about 175 thousand square kilometers. Norway subsequently discovered natural gas deposits worth $30 billion in this territory. In 2009 and 2011, Azerbaijan received half of the Samut river in addition to three villages and three meadows. All these territorial issues have been resolved through bilateral agreements.

As you can see, the review and resolution of territorial disputes in Russia is contradictory and ambiguous, and Article 280.1 of the Russia Criminal Code does not correspond to the general principles of law.

Now the Plenum of Russia’s Supreme Court is preparing revisions to its rulings on judicial procedural procedures on extremist cases. We hope that the Plenum will clarify its position and will comply with the general principles of law. Any attempts to circumvent this issue will inevitably lead to complications and the need to bring this issue before the Constitutional Court and the European Court of Justice. In fact, the first complaint against this the Article (the Kashapov case) is already being reviewed by the European Court of Justice.

History shows that the highest national courts are the quickest and most effective way to fix judicial errors. There was a time when British courts also did not want to recognize such things are torture, violence, and murder in the actions of Irish Republican Army supporters. As a result, today the ECHR’s main policies are based on its decisions in those cases. I would not like for Russia to have to face such judgement, as well.

This text was translated from Russian by Sean Guillory.