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Natalya Kholmogorova's Talk

NATALYA KHOLMOGOROVA: To begin with, let’s deal with the terminology. The commonly accepted usage, formulated by Amnesty International in the 1960s, is as follows: political prisoner is any prisoner in whose case a significant political factor is present. Whether through his own actions, the

NATALYA KHOLMOGOROVA: To begin with, let’s deal with the terminology. The commonly accepted usage, formulated by Amnesty International in the 1960s, is as follows: political prisoner is any prisoner in whose case a significant political factor is present. Whether through his own actions, the motives for his actions or reasons for which the authorities felt impelled to put him behind bars. A “prisoner of conscience” requires more narrow understanding: a person deprived of his freedom because of his political, religious or other beliefs, otherwise for his inherent traits (ethnicity, gender, social status etc.).

The notions of “political prisoner” and “prisoner of conscience” are of no legal importance in Russia, since we are officially understood (as Putin again recently confirmed) to have no political prisoners. For there are no “political articles” in the Criminal Code, and all those who are in Russian prisons are serving a sentence for a “crime.”

However, this is not quite so. There are prisoners of conscience and political prisoners in the widest sense of the word in Russian prisons and detention centres, and quite a lot of them.

In my opinion, it makes sense to introduce one more criteria. Not all people persecuted for political reasons are in custody. Many of them receive suspended sentences, many are under investigation, house arrest, the inquest may go on for years. Some hide, fearing arrest. They are not in jail, but experiencing considerable difficulties and inconveniences while under the constant threat of ending up behind bars. Even the mildest of offences or provocations is sufficient to make a suspended sentence become reality. And all of this for reasons connected to their beliefs or state policy. That is why, in my opinion, it is necessary to speak not only of prisoners, but also of those persecuted on political grounds – and in relation to the latter, also demand their rehabilitation (if they have been sentenced) or a halt to proceedings.

Who are the prisoners of conscience in today’s Russia? First of all, according to us, these are people sentenced on the basis of articles collectively known as “ legislation on anti-extremism.” These are Articles 280 (“public calls for extremist activity”), 282 (“inciting hatred and hostility”), 282, part 1 and 282, part 2 (“organisation of extremist associations, participation in extremist associations”), as well as under Article 205, part 2 (“public calls for terrorism or justification of terrorism”) of the Criminal Code.

The very concept of “extremism” in Russian law does not correspond to international legal standards, it has been significantly broadened. The Shanghai Convention (signed by Russia) clearly states: “extremism” is “an act aimed at seizing or keeping power through the use of violence or changing violently the constitutional regime of a State, as well as a violent encroachment upon public security.” Thus, the basic qualifying attribute of extremism is violence of a fairly serious and “large scale” nature. In Russia, according to amendments made to the Law on Combating Extremist Activity in 2008, half a dozen of the most divergent acts have been added to the definition of extremism and the vast majority of them have nothing to do with violence; it is about what people are saying, writing, their display of symbols, their “distributing materials,” joining associations and so on. To put it simply, persecutions for their beliefs.

One may often hear: “anti-extremist laws articles are needed, otherwise people will be calling for crimes, organise associations for perpetrating crimes or be conducive to them, and none of this will be punished.” But it is not like this. Anti-extremist articles actually duplicate the ideas and standards of criminal law existing beforehand. In Article 33 of the Criminal Code of the Russian Federation, it is clearly explained who the suspect, perpetrator and accomplice are. Article 35 explains what a criminal group or community is. Articles 105, 111, 114 and others, dealing with violent crimes, all share a qualifying attribute: “for motives of political, ideological, racist, national or religious hatred or hostility, or hatred or hostility in regards to a particular social group.” The presence of such a motive is viewed as aggravating circumstances. This goes to say that the standards necessary for a conviction on the basis of specific “extremist crimes,” may already be found in the Criminal Code.

The difference lies in the fact that in the “classical,” pre-extremist criminal code, all these standards are tied to the offence. Where there has been no crime (or at least an effort to perpetrate one), there can be no incitement, criminal group nor “motive of hostility.” This is a basic principle of criminal law: prosecution and judgement for a specific crime. Such a principle is infringed upon in the “anti- extremist” articles; statements, symbolic gestures and actions may be considered a “crime.” In theory, according to the legislator, they may lead to a crime, even if in reality they never do.

“Anti-extremist” articles 280 and 282, above all, are formulated so vaguely that is possible to bring under them almost any “sharp” statement on social, national or religious themes. The authorities make wide use of this for dealing with political opponents. The examples are numerous.

Igor’ Artemov, leader of the political organisation RONS, is a long-term deputy of the Vladimir Region’s Legislature. Proceedings were initiated against him on the basis of article 282. The subject of the charges was the statement “Orthodoxy: the true religion...The sole path to salvation: a life by Christ.” If to say such things were seen as a crime, it would then be necessary put the entire Orthodox Church in prison! But judging by the fact that the Patriarch and his bishops are for now still free, we must assume that this is merely an excuse, while the real reason for the prosecution was the active political work of the accused.

Another example is that of Konstantin Krylov, a well-known social activist and publicist, leader of the Russian Public Movement. He is under investigation for a speech given at a rally, during which he said that the Caucasian republics do not produce anything, yet receive enormous subsidies from the federal budget. The law enforcement apparatus saw in this the “incitement of hatred and hostility” towards inhabitants of the Caucasus The very concept of a “social group,” with no clear legislated definition, opens up an unprecedented scope for political repression. Social groups of “officials,” “police officers,” “FSB officers,” “government functionaries” and even “members of the United Russia Party” have been inaugurated, none of whom may be subjected to criticism because criticism incites hatred and hostility, and for this one may be tried. What is this, if it is not political persecution?

So here is our position: Articles 280, 282 and others which I have named here must be revoked, those convicted under these articles must be rehabilitated, and all current proceedings under these articles must be stopped. These are political articles. As long as they have not been abolished, everyone judged under these articles must be considered a prisoner of conscience or having been persecuted for political motives.

You may often hear: “But if people really say horrible things, they should somehow be punished for it!” Perhaps this is no longer a legal issue, rather a more fundamental and worldly issue.

There is a principle that lies at the heart of our modern civilisation, the principle of freedom of speech, as brilliantly articulated by Voltaire: “I may not agree with what you say, but I will defend to the death your right to say it.”
If one says terrible things, you can argue with them, harshly judge them, show one’s opposition in every possible way, arrange a public boycott or bring pressure to bear upon them through any other means available to civil society. But one cannot call a policeman to grab him by the scruff of his neck and drag him to jail. Neither can one leave the state to decide upon which words may be said and which not. The state will always deal with this issue in its favour. It is much like inviting a pack of wolves to your village so they can eat the neighbour, a vile individual. Maybe they will be lunching on your neighbour, but later dining on you.

Therefore, only the abolition of Article 282, only the suspension of all cases and rehabilitation of all those convicted.

The second group of prisoners of conscience, while not large but important – these are people convicted for taking part in peaceful mass events or for their actions during these events. Most often this is for “insubordination” or “resistance to the police”, sometimes for “organisation of an unsanctioned mass event.” The best-known recent example is that of the five “Manezh prisoners.”

What can I say about this? First of all, and as a rule, such cases are rigged. In January of last year, we all remember how almost all the opposition leaders in Moscow spent the New Year celebrations in a special detention centre on Simferopol Boulevard. The “diagnosis” was the same for everyone: “resistance to the police.” In fact, none of them had shown resistance to the police, and this was known to all, even the policemen themselves and Judge Borovkova who carried out all those decisions.

The same may be said of the “Manezh prisoners.” It is possible that one of the five did actually fight with the OMON. But it is firstly clear, that the five of them could not physically “organise a Manezhka.” And secondly, they did nothing of the sort that the 15,000 others with them did not.

Second of all, and this is important, the very idea of “unsanctioned meetings” is illegal and unconstitutional. It directly contradicts Article 31 of the Constitution of the Russian Federation, concerning the freedom of assembly. Citizens have the right to peacefully gather, unarmed, there and then, when and where deemed necessary. The authorities do not have the right to ban peaceful mass events, nor disperse them with the help of the OMON and detain their participants. Yet if the authorities still do this, then the participants have the right to NOT OBEY illegal orders from the policemen and RESIST their illegal, forceful actions. The right to self-defence has not been revoked. Whether or not you are beaten by a thug in an alley with brass knuckles or a policeman with a truncheon on the square, it does not matter; you have the right to self-defence.

That is why our position is the following: all people convicted for their participation in “unsanctioned” mass events, for “insubordination” or “resistance” to the police during these events, are prisoners of conscience They must all be rehabilitated, the cases against them must be suspended.

The next group is much more complicated, “political prisoners in the broadest sense of the word.” Those who are charged with or convicted of “ordinary” criminal offences (under Articles 105, 159 etc.). But there are good grounds under which to question their guilt and consider these as cases fabricated for political reasons.

This is the most difficult situation, each case here should be dealt with individually and separately.

It is rarely possible to fully guarantee that a person is innocent. Some cases are more or less obvious; if someone such as Sergey Arakcheev was twice acquitted by two juries on the basis of a proven alibi, I believe this would constitute a strong argument in favour of innocence. But as a rule, there always remains unprovability, some element of doubt or faith. Which means sympathies, antipathies, convictions and prejudices all come into play and the “politics” begin; fairly convincing arguments for some human rights defenders, not so much for others...

A striking example is the case of Tikhonov and Khasis. We insist that they be included on lists of political prisoners, namely because the investigation and trial took place amid gross violations and the jury was pressured, all of which has been documented. Moreover, the provided evidence was very weak and practically the main argument for their convictions was that “they are nationalists, meaning they killed.” But for many left-wing and liberal opponents of Tikhonov and Khasis, these are terrible people, the embodiment of evil, and demanding their freedom is simply unthinkable for them. There are contradictory examples. Take Khodorkovsky, undoubtedly a “benchmark” political prisoner for liberals. But for many in the Left and Right camps, he is an odious figure, a living embodiment of those horrors and tragedies which took place in our country in the 90s. These people may even recognise that the reasons for his convictions were political, that both trials had little to do with the course of justice. While on the other hand, it is psychologically and emotionally impossible for them to defend him and demand his freedom.

This leads us to a blind alley. Is there a way out of it? I think so. Concerning controversial figures such as these, over whom we cannot reach an agreement, it is possible to put forward a compromised demand acceptable to all: the objective review of the case by an independent and open trial.

Human rights defenders must not, as one of my opponents noted, replace lawyers. That is true, but likewise neither replaces the prosecutors or judges. It is not a matter for the activist, whether to conduct a second investigation of the case or bring forth a verdict. Undoubtedly, while working on a particular criminal case, the activist will always hold a personal opinion as to whether the defendant is guilty or not; but this decision does not fall within his tasks, nor strictly speaking, his competences. His goal: the good of society as a whole, and in this case, the benefit lies in the existence of an independent and fair trial. So having found in the case serious violations, signs of political pressure on the court, the activist is bound to bring them to society's attention, and as a minimum, demand a new and independent judicial process.

Finally, the fourth group of political prisoners, perhaps the most contradictory, even paradoxical. These are people who have actually committed unlawful acts and are serving sentences for them, though punished more harshly than required by the meaning of the law and spirit of justice. This excessive severity is due to political reasons. Legally, this is done two ways; whether by artificially bolstering the case's qualification (for instance, an act truly constituting “disorderly conduct” is qualified as “terrorism,” with the appropriate consequences), or adding political articles to those under which the charges have been laid. Most frequently this is Article 282, thus automatically entailing a heavier punishment.

The addition of Article 282 often flies in the face of all logic and common sense, often drawing disbelief. I will cite a famous example, the Koptsev case. A young man bursts into a synagogue, brandishing a knife, wounds with little difficulty several people while shouting anti-Semitic slogans, and for this gets 16 years (!), 3 of which are due to the inclusion of Article 282 among the charges. The question arises: in whom did he “arouse hatred of Jews?” Surely not the Jews themselves? For nobody, aside from them, heard him. He seemingly felt hatred and so expressed it, but where was the “incitement?” Does it turn out, that the motive for the crime constitutes a separate offence? This is absurd.

This is after all standard practice, and the number of cases artificially bolstered this way amount to hundreds, if not thousands. It is obvious that this is also unacceptable and that such cases must be reviewed.

 

 

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