ICNL logo

The International Journal
of Not-for-Profit Law

Volume 6, Issue 1, September 2003

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Religion and NGOs

Introductory Letter from the Guest Editors
W. Cole Durham, Jr. and Elizabeth A. Sewell

A Bend in the Road to Civil Society: The Effect of Russian Anti-Extremism Legislation on Not-for-Profit Organizations
Brian Gross

A Practical Comparison of the Laws of Religion of Colombia and Chile
Scott E. Isaacson

Faith-Based NGOs in Bosnia and Herzegovina
Mojca Leban

Refah Partisi (The Welfare Party) and Others v. Turkey
Christian Moe

The Impact of the New Czech Law on Churches
Petr Pajas

Comments on the 2002 Belarusian Law "On the Introduction of Changes and Amendments to the Law of the Republic of Belarus 'On Religious Freedom and Religious Organizations'"
Melinda R. Porter

Russian Federation Constitutional Court Decisions on Russia's 1997 Law "On Freedom of Conscience and Religious Associations"
Marina Thomas

God and Caesar: Personal Reflections on Politics and Religion
Shirley Williams

Articles

Should Foundations Exist in Perpetuity?
Robert O. Bothwell

The Prohibition of Nigerian Civil Servants From Political Activities: A Necessary Derogation from Freedom of Association
Emeka Iheme

The Charity/Business Duet: Harmony or Discord?
Andrew Phillips (Lord Phillips of Sudbury)

From Benin to Baltimore: Civil Society and Its Limits
Sally J. Scott, Ph.D.

Reviews

Global Civil Society: An Overview
By Lester M. Salamon, S. Wojciech Sokolowski, and Regina List
Reviewed by Jonathan Nelms

The Changing and Unchanging Face of U.S. Civil Society
By Marcella Ridlen Ray

Civil Society: The American Model and Third World Development
By Howard J. Wiarda

Freedom in the World 2003: The Annual Survey of Political Rights and Civil Liberties
By Freedom House

Religion Returns to the Public Square: Faith and Policy in America
Edited by Hugh Heclo and Wilfred M. McClay

The State of Nonprofit America
Edited by Lester M. Salamon

Terrorism and Development: Using Social and Economic Development to Inhibit a Resurgence of Terrorism
By Kim Cragin and Peter Chalk

- - - - - - - - - -

Editorial Board

A Bend in the Road to Civil Society: The Effect of Russian Anti-Extremism Legislation on Not-for-Profit Organizations

By Brian Gross*

I. Introduction

For more than a decade the states of the Former Soviet Union have struggled to find a new national identity as they travel along the road of emerging market-based democratic societies. Naturally, this transition has experienced its fair share of growing pains. In Russia, for example, economic pressures and social tensions have ripened into alarming trends of violence, ranging from bomb-rigged anti-Semitic signs [1] to street attacks by groups of “skinheads” [2] and massive riots by soccer fans during Japan’s televised defeat of Russia in the 2002 World Cup. [3] More recently, Moscow was terrorized by Chechen rebels who captured seven hundred hostages by at a Moscow theater. [4]  

In response to the growing strength of “extremist” elements in Russian society, the Russian Duma enacted the Federal Law On Counteracting Extremist Activity. [5] But as with much of the legislation to emerge around the world in the wake of recent threats of terrorism, the Extremism Law has provisions that threaten legitimate, law-abiding nonprofit organizations. The Extremism Law prohibits advocacy of extreme political positions, imposes liability on organizations that do not disavow the “extremist” statements of their members, and allows government authorities to suspend, without court order, social and religious organizations and political parties.

While the Extremism Law provides a greater impetus for enforcement, it also encourages local authorities to employ greater scrutiny in the registration and initiation of liquidation proceedings against organizations which the state deems undesirable. This article highlights several of the key provisions of the Extremism Law and discusses the potential for ill effects on charitable, civic, political, and religious organizations.

Section II discusses several features which the Extremism Law adds to existing Russian legislation. Section III details how the law will likely affect not-for-profit organizations. Section IV highlights the potential for perverse application and arbitrary enforcement. Section V concludes with the concession that many of the social problems currently plaguing Russia need to be addressed; however the Extremism Law is likely to have little effect on truly dangerous groups offset by a large potential threat to legitimate organizations and activities. 

II. Key Features of the Extremism Law

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.” [6] To accomplish these goals, the Extremism Law codifies an official definition of “extremism,” extends provisions of existing laws 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. Perhaps the most threatening provision of the Extremism Law lies in the grant of power to local authorities to suspend organizational rights without court order and before a court has determined that the organization engages in “extremist activities.”

A. Codified Definition of Extremism 

The Extremism Law defines “extremist activity” as activities of organizations aimed at forceful change of the fundamental constitutional structure and destruction of the integrity of the Russian Federation; undermining the security of the Russian Federation; seizure or appropriation of commanding authority; creation of illegal armed forces; carrying out terrorist activity; incitement of social, racial, nationalistic or religious animosity; debasement of national dignity; creation of massive disorder, hooligan activities, and acts of vandalism motivated by ideological, political, racial, nationalistic or religious hatred or hostility, or otherwise motivated by hatred or hostility toward a social group; and propaganda of exclusivity, advocating either superiority or inferiority of citizens on the basis of religion, social, racial, national, religious or linguistic affiliation. [7] Additionally, the Extremism Law specifically prohibits propaganda and public demonstration of Nazi paraphernalia, public advocacy or encouragement to commit extremist activities, and financing or encouraging extremist activities. [8]   As discussed later, this definition is excessively broad and opens the door for arbitrary enforcement.

B. Expansion of Inchoate Liability

The existing Law On Public Associations 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.” [9] 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. [10]

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.” [11] The organization has two months from issuance of the warning to correct the violations. [12] If the organization does not comply with the requirements of the warning, the Procurator-General may then file suit against the organization. [13]

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. While the possible use of intimidation tactics by regional authorities may be sufficient to control extremist tendencies it also threatens to burden legitimate organizations which do not have the means to challenge state actions in court.

C. 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. [14] Similarly, organizers of large public events may be held liable for failing to ensure the event does not attract extremists or involve the use of symbols or attributes of extremist groups or spread of extremist materials, as well as for failing to timely suppress extremism. [15]

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 statement of conduct qualifies as “extremist” and allows them five days to declare the position of the organization with respect to the statement by either accepting or denouncing the statement. 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. [16] 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. However, the possibility of liability for situations that are beyond the control of organizers of such event will undoubtedly create a chilling effect on legitimate expression and political demonstration—the hallmarks of citizen participation in democratic government.

D. 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 require 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.” [17] Article 5 requires these same bodies to take preventive measures, including “educational and propagandistic measures aimed at the prevention of extremist activity.” [18]

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.” [19] 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. However, in the absence of federal guidelines and accountability, this may produce disparate regional outcomes driven by local politics, and further encourage local discrimination against unpopular groups.

E. Suspension of Organizational Rights

While judicial proceedings for liquidation or determination that the organization has engaged in extremist activities 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. [20] Previously, only a court could issue a final decision restricting the rights conferred by legal entity status. [21] This suspension entails a complete cessation of activities, including organizing or holding meetings and maintaining bank deposit accounts. [22] 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. Legislators may use this provision of the Extremism Law to exterminate politically and socially active not-for-profit organizations which the state deems undesirable, a result that threatens freedom of association in Russia.

III. Effect of the Extremism Law on Not-for-Profit Organizations

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 interlocutory suspension of the organizational rights of social and religious organizations for an indefinite period of time without court order while determination by a court of law as to whether the organization engages in extremist activities is still pending. 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.

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. [23] 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. [24] 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. [25] Public associations are equal before the law. [26] Freedom of association is protected by international norms. [27]

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. [28] 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. [29] The Association Law accords organizations the broad power to determine their internal structure, purposes, and activities. [30]

As applied to public associations and religious groups, the Extremism Law’s provision allowing for suspension of organizational rights creates a tension with 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 or obligations, or of any criminal charge. [31] Article 10 of the Extremism Law empowers government organs of registration to suspend social and religious groups while an examination by a court of law of the alleged extremist statements or activities for which the Procurator-General seeks liquidation or a permanent ban is still pending. [32]

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.” [33] 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 useful 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 that 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, [34] 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.

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 that 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.” [35] 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. [36] 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. [37] 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.” [38] 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.” [39]

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 clarifications of 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. [40] The arbitrary variation of registration procedures and interpretations of registration laws has resulted in what one former insider calls “crushing . . . organizations one after another . . . .” [41]

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. [42] Incumbent politicians apparently recognized the political advantage of restricting the number of political parties that may compete for votes in upcoming elections. [43]

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.” [44] 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. [45] 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.

The Extremism Law will affect religious organizations in much the same way that it will affect social organizations and political parties as discussed above (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). [46] Moreover, there is an additional concern that implicates freedoms of expression and conscience, each of which enjoys heightened protection in the Constitution of the Russian Federation and international norms. [47]

 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.” [48] This definition is problematic for several reasons. First, most religious doctrines claim to have a superior grounding in truth. This definition would affect even the Russian Orthodox Church, which regards itself as the exclusive claimant to Russian spirituality. [49] 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.” [50] 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. [51] 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.  

IV. Potential for Arbitrary Discretion and Perverse Application

While application of the Extremism Law to truly reprehensible behaviors is fairly clear, the law fails to provide needed guidance in the less obvious cases. 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.” [52] 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.’” [53] 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. [54]

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. [55] The Criminal Code and other laws address the concerns and dangers outlined in the Extremism Law’s definition of extremism. [56] For example, Article 282, the Criminal Code’s key provision on hate crimes, 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.” [57] The Criminal Code also imposes aggravated liability for crimes committed by groups and organizations, [58] and higher sentences for crimes motivated by racial, ethnic, or religious hatred. [59] 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” [60] and to be used by special services in taking revenge against “unfavorable” organizations. [61]

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.” [62] Meanwhile, there is evidence that the Extremism Law is already being used to discriminate against religious believers and human rights organizations. [63]

One early “test-case” indicates that the Extremism Law has already been invoked in ways that raise the question of who it is designed to protect. The Novorossiisk Committee for Human Rights, a nongovernmental organization, 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.” [64] The Novorossiisk Committee represents a group of Meshketian Turks in the Krasnodar Krai (region) who are protesting intense discrimination at the hands of government authorities. [65] 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.” [66] The Novorossiisk Committee alleges that 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. [67]

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.” [68] 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. As this incident illustrates, excessive discretion allows local authorities to use the Extremism Law against the sort of groups that the law seems designed to protect. 

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. While it has been noted that the potential liability for inaction on the part of responsible state officials increases officials’ incentive to act, the vaguely defined and extensive powers and authority granted to them increase their opportunities to implement the law in arbitrary, politically motivated ways.

V. Conclusion

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. [69] Putin’s tough stance on extremism reflects a commitment to countering the 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 and creates opportunities for potentially mischievous application. 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. Impairing the development and contributions of such organizations will threaten the development of the private sector and stifle meaningful public participation in democratic institutions, the guideposts along the arduous road to civil society.

Copyright 2003 by Brian Gross

Notes

* Brian Gross was 2002 Summer Research Fellow at the Brigham Young University International Center for Law and Religion Studies.

[1] See Aleksandr Arkhangelsky & Yekaterina Grigoryeva, That Tatyana: Russia Doesn’t Have a Civil Society, But it Does Have True Citizens, Izvestiia, July 26, 2002, at 1, reprinted in Current Dig. Post-Soviet Press, Aug. 21, 2002, at 1.

[2] See, e.g., “Tsaritsyno Pogrom Won’t Be the Last”—So Says One Moscow Skinhead Leader, Noviye Izvestiia, Nov. 13, 2001, at 1, reprinted in Current Dig. Post-Soviet Press, Dec. 5, 2001, at 5; Viktor Khamrayev, Response to Skinheads: Vladimir Putin Submits Bill on Combating Extremism, Vremya Novostei, May 7, 2002, at 1, reprinted in Current Dig. Post-Soviet Press, June 5, 2002, at 9.

[3] See, e.g., Oleg Stulov & Sergei Ponomaryov, Soccer Riot: Fans Trash All of Downtown Moscow, Kommersant, June 10, 2002, at 1, reprinted in Current Dig. Post-Soviet Press, July 10, 2002, at 6.

[4] See Natalia Yefimova et al., Armed Chechens Seize Moscow Theater, Moscow Times, Oct. 24, 2002, LEXIS, News & Business.

[5] Fed. Law No. 114–FZ (July 25, 2002), Sobr. Zakonod. RF, 2002, No. 30, Item 3031, LEXIS, Int’l Law Libr., RFLAW File (GARANT 12027578) [hereinafter Extremism Law].

[6] Id., pmbl.

[7] Id. art. 1.

[8] Id.

[9] On Public Associations, Fed. Law No. 82–FZ (May 19, 1995), Sobr. Zakonod. RF, 1995, No. 21, Item 1930, LEXIS, Int’l Law Libr., RFLAW File (GARANT 10064186) [hereinafter Association Law], art. 16; cf. On Freedom of Conscience and Religious Associations, Fed. Law 125–FZ (Sept. 26, 1997), Ross. Gazeta, Oct. 1, 1997, LEXIS, Int’l Law Libr., RFLAW File (GARANT 71640) [hereinafter Religion Law], art. 14; On Political Parties, Fed. Law No. 95–FZ (July 11, 2001), Sobr. Zakonod. RF, 2001, No. 29, Item 2950, LEXIS, Int’l Law Libr., RFLAW File (GARANT 83523) [hereinafter On Political Parties], art. 9; On Mass Media, RF Law No. 2124–1 (Dec. 27, 1991), Ross. Gazeta, Feb. 8, 1992, LEXIS, Int’l Law Libr., RFLAW File (GARANT 10064247) [hereinafter Media Law], art. 4.

[10] Extremism Law, supra note 5, art. 1.

[11] Id. art. 6, para. 1. The warning must be in writing and indicate concrete grounds for the warning of inadmissibility of extremist activity and committed breaches. Id. art. 7. The warning to a social or religious organization may also be issued by federal executive justice bodies or regional justice agencies. Id. In all cases, the warning can be appealed in court. See id. art. 6, para. 3; id. art. 7, para. 3. The justice ministry can also institute criminal proceedings without issuing a warning if the activities of the organization already rise to an established level of criminality under the Criminal Code. See generally provisions of the Criminal Code discussed in J. Brian Gross, Russia’s War on Political and Religious Extremism: An Appraisal of the Law “On Counteracting Extremist Activity”, 2003 BYU L. Rev. 717, 733 n.81.

[12] Id. art. 7.

[13] Id. art. 6, para. 2.

[14] Id. art. 15.

[15] Id. art. 16.

[16] Id. art. 6.

[17] Id. art. 4.

[18] Id. art. 5.

[19] Id. art. 14.

[20] Extremism Law, supra note 5, art. 10, paras. 3, 4.

[21] See Association Law, supra note 9, art. 44; Religion Law, supra note 9, art. 14; On Political Parties, supra note 9, art. 39.

[22] Extremism Law, supra note 5, art. 10, para. 3. The organization may appeal the suspension in court; if the reviewing court ultimately finds in favor of the organization it may resume its activities. Id. art. 10, paras. 3, 4.

[23] See Konst. RF art. 30(1) (1993).

[24] Association Law, supra note 9, art. 5.

[25] Id. art. 3.

[26] Konst. RF art. 13(4) (1993).

[27] See, e.g., Universal Declaration of Human Rights, Dec. 10, 1948, art. 20, reprinted in Religion and Human Rights: Basic Documents 57 (Tad Stahnke & J. Paul Martin eds., 1998) [hereinafter UDHR] (“1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may be compelled to belong to an association.”); European Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1953, art. 11(1), reprinted in Religion and Human Rights, supra, [hereinafter ECHR] (“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”); International Covenant on Civil and Political Rights, Mar. 23, 1976, art. 22(1), reprinted in Religion and Human Rights, supra, [hereinafter ICCPR] (“Everyone shall have the right to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”).

[28] Grazhdanskii kodeks Rossiiskoi Federatsii [Civil code of the Russian Federation] art. 51(1), in Noviye zakoni Rossii [New laws of Russia] (Pravo i zhizn, 2002) [hereinafter GK RF].

[29] Id. art. 51(1), para. 2.

[30] Association Law, supra note 9, art. 15.

[31] ECHR, supra note 27, art. 6. For further discussion of the Russian Federation’s track record on due process, see Jeffrey Kahn, Russian Compliance with Articles Five and Six of the European Convention of Human Rights as a Barometer of Legal Reform and Human Rights in Russia, 35 U. Mich. J.L. Reform 641, 689–90 (2002) (“Struggling with its Soviet legacy, the Russian Federation is only gradually accumulating new conceptions of the role of the state, rights of individuals, and the rule of law. . . . But the ECHR is a start, and a step, in the right direction.”).

[32] Extremism Law, supra note 5, art. 10, para. 2.

[33] ECHR, supra note 27, art. 6.

[34] Extremism Law, supra note 5, art. 4.

[35] Association Law, supra note 9, art. 3.

[36] Id. art. 23.

[37] See Report on the Violations Committed in the Course of Registration and Re-registration of Public Associations in the Russian Federation in 1999, 2 Int’l J. Not-for-Profit L., (Feb. 15, 2000) [hereinafter Report on Violations] (noting that human rights and environmental organizations have been the most vulnerable).

[38] Id. (summarizing statement by Minister of Justice Pavel Krasheninnikov).

[39] Id.

[40] Id. Authorities often refuse to re-register organizations based on the organization’s support for unpopular regional political positions. Id. (noting several environmental organizations, including, among others, the Don Green Party, which was denied registration without explanation for opposing opening of the Rostov Atomic Power Plants); see also Irina Dementyeva & Ilya Medovoi, The Authorities Are Getting Rid of Society’s Rough Edges, Obshchaya Gazeta, May 2–15, 2002, at 15, reprinted in Current Dig. Post-Soviet Press, June 5, 2002, at 2.

[41] Dementyeva & Medovoi, supra note 40, para. 4 (statement of Yury Kostanov, lawyer and former director of the Moscow Justice Administration) (“[W]hen I was director[,] . . . if [a nongovernmental organization’s] charter wasn’t quite up to the mark, I could say, ‘Revise it and we’ll register you.’ . . . Now registration has to be denied outright; no corrections are allowed. And if you haven’t been re-registered, you’ll be destroyed.”).

[42] See Report on Violations, supra note 37. Governor of Ryazan, V.N. Lyubimov, argued against an extension of the re-registration deadline for the 1995 Association Law to allow more organizations to re-register because this would increase the number of political parties, of which, he considered, “there are far too many” already. Id.

[43] Jeremy Bransten, Putin Seeking New Legislation to Combat Extremism, RFE/RL Newsline, May 10, 2002, at http://www.rferl.org/nca/features/2002/05/10052002 083148.asp  (“[E]xperts express concern that Putin’s bill could be misused to shut down mainstream opposition parties.”). Political parties have already begun to feel the effects of the Extremism Law. See Pavel Aptekar, Berezovsky’s Party Denied Registration, Vremya Novostei, July 15, 2002, at 1, reprinted in Current Dig. Post-Soviet Press, Aug. 14, 2002, at 7; Party in Russian Enclave Warned About Extremism, BBC Monitoring, Aug. 30, 2002, 2002 WL 26566810.

[44] Report on Violations, supra note 37; see also Dementyeva & Medovoi, supra note 40, at 3.

[45] In fact, in some instances even the Office of the President of the Russian Federation has requested denial of certain registrations for political advantage. Valentin Kovalyov, former Minister of Justice (1995–1997) admits:

When I was . . . minister of justice, the president’s staff used to send me unambiguous directives to deny registration to various nongovernmental organizations for the purpose of, for example, limiting the number of participants in the electoral process as elections to the State Duma or other governmental structures drew nearer. I also got similar “orders” from the director of the FSB, the minister of internal affairs, the secretary of the Russian Federation Security Council and, what was even worse for me as a minister, from the chairman of the government. Attempts to use legal procedures to achieve political goals were made back then, and they are still being made today. . . . I say this openly, especially since I never followed those instructions.

Dementyeva & Medovi, supra note 40, at 3.

[46] For accounts of regional application of the Religion Law and supplementary local laws, see Lauren B. Homer & Lawrence A. Uzzell, Federal and Provincial Religious Freedom Laws in Russia: A Struggle For and Against Federalism and the Rule of Law, 12 Emory Int’l L. Rev. 247, 248 (1998) (noting that “repressive features [of the federal Religion Law] . . . ha[ve] led many regional administrations to conclude that they can act arbitrarily and with impunity in dealing with religious minorities”).

[47] The Russian Federation Constitution guarantees “freedom of ideas and speech” to everyone and prohibits forced expression or rejection of convictions. See Konst. RF art. 29(1), (3) (1993). 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.” Id. 29(4). Similarly, the Constitution guarantees the right to mass communication and prohibits censorship. Id. The Constitution prohibits the establishment of an official state ideology and affirms the commitment to protecting ideological diversity. Id. art. 13.

The Russian Federation Constitution 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,  id. art. 14, and 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.” Id. art. 28.

These freedoms are also protected by international norms. See, e.g., ECHR, supra note 27, arts. 9, 10(1); UDHR supra note 27, arts. 18, 19; ICCPR, supra note 27, arts. 18, 19(2), 27. 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. See Canea Catholic Church v. Greece, App. No. 25528/94, Eur. Ct. H.R. (1997), http://www.echr.coe.int (legal entity status protected); Hasan & Chuash v. Bulgaria, App. No. 30985/96, Eur. Ct. H.R. (2000), http://www.echr.coe.int (right to association subsumed in discussion of freedom of conscience); Sidiropoulos v. Greece, App. No. 26695/95, Eur. Ct. H.R. (1998), http://www.echr.coe.int (legal entity status is an integral part of association). See also Lance S. Lehnhof, Note, Freedom of Religious Association: The Right of Religious Organizations to Obtain Legal Entity Status Under the European Convention, 2002 BYU L. Rev. 561, 581 (arguing that “religious associations are entitled to at least the same, and probably a higher, level of protection under Article 11 than other types of associations”). One factor supporting this conclusion is the language of the ICCPR, supra note 27, art. 18, which parallels language in ECHR, supra note 27, art. 9, protecting freedom of conscience. The ICCPR specifically states that the protections provided in Article 18 may not be subject to derogation, even in times of emergency, while still allowing derogation from protections of freedom of association and expression. See ICCPR, supra note 27, art. 4(2); cf. Konst. RF art. 56(3) (1993) (“The rights envisioned in [Article 28 (freedom of conscience)] . . . shall not be liable to limitations.”).

[48] Extremism Law, supra note 5, art. 1.

[49] Geraldine Fagan & Tatyana Titova, Diverse Opposition to Measures Outlawing “Religious Extremism,” Keston News Serv., July 17, 2002, at http://www.keston.org (quoting Mikhail Kuznetsov, professor at the Russian Academy of Sciences, who raised the question: “We Orthodox are against ecumenism: but if we believe Orthodoxy is the only right faith, or if Muslims believe their faith to be the best, why prosecute them?”).

[50] Id. (quoting Moscow Professor and Lawyer, Lev Simkin).

[51] See Larissis v. Greece, App. Nos. 23372/94, 26377/94, 26378/94, Eur. Ct. H.R. (1998), available at http://www.echr.coe.int; Kokkinakis v. Greece, App. No. 14307/88, Eur. Ct. H.R. (1993), available at http://www.echr.coe.int.

[52] Fagan & Titova, supra note 49 (quoting Mikhail Kuznetzov, Professor, Russian Academy of State Sciences).

[53] Aleksander Verkhovsky, Taking Anti-Extremism to Extremes, Johnson’s Russia List (last visited Apr. 1, 2003).

[54] Id.

[55] See, e.g., Mikhail Vinogradov, State Duma Abolishes Skinheads: Deputies Pass Anti-Extremist Law, Izvestiia, June 7, 2002, at 1, reprinted in Current Dig. Post-Soviet Press, July 3, 2002, at 1–2 (“[T]he law isn’t as necessary as it seems—its main provisions are already included in the Criminal Code and the Code of Criminal Procedure. Granted, for some reason they aren’t being enforced.”); Extremism: Prophylaxis Best Defense, Moscow Times, June 6, 2002, at 8 (“[A] law on extremism is not required to fight [hate crimes]; existing laws are sufficient. The key is the political will to enforce them.”).

[56] For a detailed survey of existing legal provisions enforceable to counter the actions defined as “extremism” by the Extremism Law, see Gross, supra note 11, 733 n.81.  

[57] Criminal Code of the Russian Federation, No. 63–FZ (enacted June 13, 1996, effective Jan. 1, 1997), Sobr. Zakonod. RF, 1996, No. 25, Item 2954, LEXIS, Int’l Law Libr., RFLAW File (GARANT 10008000) [hereinafter UK RF], art. 282.

[58] See id., art. 205(2) (“Terrorism . . . committed: . . . by a group of persons in a preliminary conspiracy . . . shall be punishable by deprivation of liberty for a term of eight to fifteen years.”); id. art. 205(3) (“Deeds stipulated in the first or second part of this Article, if they have been committed by an organized group, . . . shall be punishable by deprivation of liberty for a term of ten to twenty years.”); id. art. 282(2)(c) (raising the sentence from two to four years to three to five years for incitement of national, racial, or religious enmity when “committed: (a) with the use of violence or with the threat of its use; (b) by a person through his official position; [or] (c) by an organized group”).

[59] See id., art. 63(1)(f) (describing circumstances aggravating punishment, including “commission of a crime by reason of national, racial, or religious hatred or enmity”); id. art. 105(2)(k) (raising the standard sentence by five years for murder); id. art. 111(2)(f) (raising the standard sentence by two years for intentional infliction of grave injury); id. art. 112(2)(f) (raising standard sentence by two years for intentional infliction of injury of average gravity to health); id. art. 117(2)(h) (raising standard sentence four years for torture); id. art. 244(2)(b) (raising the standard sentence from one month’s income or labor or three months imprisonment to restraint or deprivation of liberty for three years or imprisonment for three to six months for outrages upon bodies of the deceased and their burial places); id. art. 357 (making genocide punishable by deprivation of liberty for twelve to twenty years, capital punishment, or deprivation of liberty for life).

[60] Vinogradov, supra note 55, at 1.

[61] Antiekctremistckii zakon ogranichit deyatel’nost’ religioznikh organizatsii [Antiextremism legislation restricts the activity of religious organizations], Mir Religii, June 7, 2002, at http://www.religio.ru/arch/07Jun2002/news/3862_print.html.

[62] See Putin’s Anti-Extremism Drive Is Failing, Rights Group Charges, 3 Bigotry Monitor, Jan. 31, 2003 (reporting charges by the Moscow Helsinki Group).

[63] Id. (referring to a human rights group in Krasnodar, and disparate treatment of individuals whose religious requirements conflict with public policy).

[64] Aleksandr Verkhovskii, Who is Really Threatened by Russia’s Law on Extremism?, 3  RFE/RL (Un)Civil Societies, July 24, 2002.

[65] Id.

[66] Memorial Human Rights Center, Moscow, Compliance of the Russian Federation with the Convention on the Elimination of All Forms of Racial Discrimination (2000), at http://www.memo.ru/hr/discrim/ethnic/disce00.htm [hereinafter Compliance of the Russian Federation]; see also International Convention on the Elimination of All Forms of Racial Discrimination, Jan. 4, 1965, art. 4(c), reprinted in Religion and Human Rights, supra note 27, [hereinafter CERD].

[67] Compliance of the Russian Federation, supra note 66.

[68] Verkhovskii, supra note 64.

[69] Gregory Feifer, Putin’s Mask of Reform, Moscow Times, Nov. 9, 2000, LEXIS, News & Business.

 

Copyright © 2012 The International Center for Not-for-Profit Law (ICNL)
ISSN: 1556-5157