BELIEVERS' FEELINGS MAY BE CHECKED WITH CONSTITUTION
Atheist blogger's attorney requests removal of punishment for offense from Criminal Code
by Grigory Tumanov
Kommersant has learned that an appeal against article 148 of the Criminal Code of the RF (offending believers' feelings) has been sent to the Constitutional Court. The defense attorney of Stavropol blogger Viktor Krasnov, who is on trial for making comments in an Internet debate that two of his Orthodox opponents considered to be offensive, requested that the article be found unconstitutional. The offense to the feelings of believers was made punishable as a crime in 2013 on the wave of the uproar over the action of the Pussy Riot group in the church of Christ the Savior, but according to information of the Supreme Court, in all the time of the existence of this rule only one sentence has been issued. The authors of the appeal and rights advocates think the rule is superfluous and restrictive of freedom of speech.
The first appeal against article 148 of the Criminal Code in the Constitutional Court was filed by the attorney of Stavropol blogger Viktor Krasnov, Andrei Sabinin. The document, which Kommersant has in its possession, says that Mr. Sabinin's client is accused of offending believers' feelings on the basis of his comments on one of the social networks. In 2014, Mr. Krasnov got into an argument about religion with two users of the network. In arguing for his position, the blogger called the Bible a "collection of Jewish fairy tales" and he also added: "There is no God." In reply, his Internet opponents wrote to law enforcement agencies a statement against Mr. Krasnov. In February of this year a consideration of his criminal case, that had been opened on the basis of article 148, was begun in Stavropol.
In his appeal to the Constitutional Court, attorney Savinin writes that he thinks his client's statements are primarily polemical. "The style and tone of the statements correlates to the style and tone of my client's opponents. In other words, he responded to their harsh criticism of him in the same style," the appeal says. The attorney thinks that the current version of article 148 violates the right to freedom of speech, which is guaranteed by the Russian constitution, inasmuch as the concept of "offense" is not spelled out therein. "For example, for some believers denial of religion and God is, in and of itself, already offensive," Mr. Sabinin notes. His appeal introduces a reference to ruling N11 of a plenum of the Supreme Court on 28 June 2011 "On judicial practice in criminal cases of crimes of extremist nature." It says that criticism of political or religious organizations in and of itself cannot be viewed as action "intended to incite hatred or strife." On the basis of the aforesaid, Mr. Sabinin requests that the article about offending believers' feelings be found to be not consistent with the constitution.
Lawmakers became concerned with criminalization of offending believers' feelings in 2012 when the uproar over the action of the Pussy Riot group in the church of Christ the Savior occurred. At the time, the "punk prayer service" of the protesters, who subsequently were sentenced to two years in a prison colony, was categorized as hooliganism, although many famous lawyers did not agree with this. For example, attorney Genri Reznik said that dances on the pulpit do not constitute the crime of article 213 of the Criminal Code (hooliganism). "The stretch in the categorization on the basis of this article was obvious for everybody," recalls Pavel Chikov, a member of the presidential Council for Human Rights. However about 20 deputies in the State Duma from all parliamentary fractions worked out a draft law on criminalization of offending believers' feelings. "The Council for Human Rights tried to suggest a milder version, but in the end an extremely general formulation was still adopted. It is not clear how to distinguish demeaning the dignity of believers that falls simultaneously under article 148 and article 282," Mr. Chikov says.
Law enforcement officers do not have a single approach to article 148. In the time of its existence, according to information of the judicial department of the Supreme Court, the only sentence based on it was issued in 2014. In a report "Illegal application of anti-extremist legislation in 2015," the SOVA analytical center notes criminal cases based on article 148 are seldom opened. In addition to the case of Stavropol blogger Krasnov, it knows of the referal to a court of the case of Anton Simakov from Ekaterinburg, who calls himself "master of voodoo magic." Mr. Simakov produced and photographed a voodoo ritual intended, he said, "to influence Ukrainian authorities," but investigators regarded it as an offense to Christians.
One of the co-authors of the law on offending believers' feelings, the head of the State Duma Committee on Affairs of Public Associations and Religious Organizations, Yaroslav Nilov, does not dispute that law enforcement practice is still difficult. "It is not for sure. But it seems to me that in the first place this article is a deterrent. There is the ordinary understanding of hurting feelings, and there is legal terminology which needs to be separated out," the lawmaker is sure. He gave an example of the caricatures of the prophet Muhammed by the French magazine Charlie Hebdo, which, in his opinion, provoked the terrorist attacks in Paris in January and November 2015. "An offense from a legal point of view is not thinking or reasoning but cursing or a vulgar form of expression, and deliberate publicity," the law's co-author thinks. "For example, as a believer I am offended when a drunken priest gets into an accident with human casualties, but my feelings here lie outside the bounds of the law," Mr. Nilov added.
Now the authors of the appeal to the Constitutional Court must wait to see whether it is registered and accepted for review. (tr. by PDS, posted 14 March 2016)
INTERVIEW: PRESIDENT OF RUSSIAN GUILD OF EXPERTS ON RELIGION AND LAW ROMAN LUNKIN
Portal-credo.ru, 11 March 2016
--Vladimir Oivin, Portal-credo.ru: In Stavropol, a Russian citizen is on trial for saying "There is no God." This was taken as a criminal act—offending believers' feelings. How could you comment on this situation?
--Roman Lunkin: I think that this trial shows very well all the negative aspects of judicial proceedings as they now are in Russia. These are proceedings often directed against people who are expressing some opinion against religious organizations, that is, these are judicial proceedings that occur for ideological reasons.
Today all such cases are viewed as if they are ordinary, as something usual, although it is completely obvious that if a person is being tried for some ideas or statements that are not connected overtly or covertly with calls for some crime or aggression, this is a violation of human rights and common sense as a whole. We have maneuvered ourselves into this ideological trap of the persecution of people and religious organizations for ideological reasons and causes. Within the framework of this trap there also arise all these rather absurd contradictions that are now being discussed widely in the press. These contradictions are connected with charges by the prosecutor's office and with the conduct of expert analysis within the framework of this case that is producing a completely absurd conclusion: it is necessary to try a person simply for the statement that "There is no God."
Here there is another interesting point: the head of the duma committee, Yaroslav Nilov, immediately outlined his position that one should not be tried for the statement that "There is no God," but the blogger is supposedly not being tried for his statements but for the fact that these statements were accompanied by foul language. Actually if that had been so, then this would have been some kind of administrative violation of law, but we see that the trial has a criminal tone—it is intended to try the blogger for "offending religious feelings."
--Why did such a situation develop? What goal are the investigators and plaintiffs pursuing?
--This is rather interesting. There is no accident in what is happening, because the development of legislation and the judicial system logically led to this, which has been going on in the last decades, but especially actively since 2012, after the Pussy Riot case arose, which also was connected with offense to religious feelings and led to the appearance of a new article according to which one may be tried for offending religious feelings; that is, people found out that they have religious feelings.
A second point: this is a struggle with extremism and what rights advocates call an illegal anti-extremism activity. Because representatives of the prosecutor's office did not simply dream up the category. They look at the law where offending religious feelings also is a rather broad concept of extremism stated in the law on extremist activity.
--Do these concepts not have legal definition?
--Yes, and in this case it is again completely obvious that here all of the fault cannot be laid on the offices of the prosecutor. In the case of a ban on excerpts from the Quran, the decision on the ban was made by the South Sakhalinsk court. And in the narrow legal, juridical sense, the judge was correct in principle since the expert analysis had drawn the conclusion that in the excerpts there is propaganda of the superiority of one religion over another and of one ideology over another. The judge simply looked at the definition of extremism in the law about extremist activity and she rendered her decision. The same thing is happening here, also. That is, here some Pandora's box is being opened for an enlarged prosecution of citizens for ideological causes and reasons.
--The Russian constitution says that we do not have a single common ideology.
--In this case the legislation permits prosecution regardless whether the state has an ideology or not. It turns out that this is prosecution in a vacuum. There is no doubt that there is a certain number of cases connected with the conviction of extremists, real terrorists, or members of organizations that are prohibited in the RF. But as regards such cases that are not connected directly with extremism and are absolutely ideological, then a question arises that I am not able to answer: whom and which ideology does the prosecutor's office protect? It could be said that this is the protection of Orthodoxy and the Orthodox Church, but there is no special need for such protection of Orthodoxy. After all, the church demanded to protect it from some blogger who wrote "There is no God." There is no logic and no sense here. And I do not even want to look for some sense in such cases.
Here it seems to me such ideological phantoms are being created apart from the desire of federal leadership and apart from the desire of the church leadership. That is, such ideological phantoms and contradictions which in essence divide society and lead to the appearance of ever greater numbers of cases connected with discrimination of both religious minorities and individual citizens who make such incautious statements.
--Is the statement "There is no God" really incautious?
--It is a harmless statement and it would have remained harmless if a lawsuit and some kind of expert analysis had not arisen and if this flywheel of a judicial prosecution had not spun off and if it had not been made so that such judicial proceedings occurred rather smoothly and people could be tried on this basis.
Such situations and phantoms arise because both the church and the government at some moment simply decided that Russian society essentially does not need a democratic system and it does not need democratic values. At such a time—it seems to me that this happened after 2012—the church and government together lost the remnants of confidence in society and therefore they treated citizens unworthily, wishing to punish everybody who tries somehow to raise his head or make some clearly incautious statement. (tr. by PDS, posted 15 March 2016)
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