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Savva Terentjev's case: Violations Of Freedom of Speech Online in Russian Federation
choiceocracy
Freedom of Speech Online: Analysis of the Case of Savva Terentyev (Russia)

by: contactglorev@gmail.com
Course paper in: Human Rights – An Interdisciplinary Approach
December 2008 – January 2009

The freedoms of speech and thought, being both basic human rights and key political freedoms, are often violated by undemocratic political regimes – cases reported by Reporters Without Borders and Amnesty International in contemporary China, Uzbekistan, Belarus, and cases from history of the USSR outline this tendency.
The working definition of freedom of speech can be provided as follows: “The [basic human] right to hold opinions without interference [e.g. censorship or limitation]. Everyone shall have the right to freedom of expression.” (described in UDHR Article 19; ICCPR Articles 18 and 19 (points 1 and 2)). This “negative” freedom of speech implies that everyone can express one’s opinions about any subjects without hindrance or punishment – both in interpersonal communication and publicly (also through mass-media). At the same time, in certain cases freedom of speech needs to be limited, when speech is used to humiliate other individual’s dignity, agitates for discrimination and violent actions (“hate speech”). This principle is secured by point 3 of Article 19 and point 2 of Article 20 of ICCPR.
This demarcation line between the freedom to express opinions and protection of individuals and groups from offence and discrimination is rather vague and ambiguous as numerous cases from all over the world show. Examples: a religious leader expressing one’s negative attitude on homosexual persons in front of believers; neo-nazi organizations spreading nationalist brochures and calls for discriminatory action against immigrants in schools and student dormitories; abusive sexist, ethnic and religious jokes spread on TV and over the Internet etc. The goal of this case analysis is to investigate different sides of a case of abuse (or violation) of freedom of speech online including “hate speech”, where a State serves as an accuser.
When the principle of freedom of speech was introduced by the UDHR and ICCPR, it concerned verbal speech, publishing, TV and radio broadcasting. However, after Internet appeared and became popular in many world countries, the definition was expected to become broader – so it includes other forms of information, like Internet blogs and multimedia. In undemocratic countries Internet is often the only source of unbiased politics- and human rights violations-related information, this is why it became the new field of freedom of speech struggles (Human Rights Watch). The laws controlling and securing freedom of speech online are still being developed and introduced, and the case of Savva Terentyev (Russia) can serve as an example of a complicated situation around freedom of speech online.

Legal background of the case:
- Russia ratified the UDHR in 1991; ICCPR on 01.10.1991; European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) on 10.03.1998.

- The Russian Basic Law (Constitution) mentions that freedom of speech is universal in Russia, but it does not provide a legal definition of freedom of speech. Also, it has developed an extensive definition of ‘extremist statements and actions’ which serve as exclusions from freedom of speech (report of Amnesty International, 2008)

- Mass-media Federal Law of Russia has a special article “Necessity to Prevent Abuse of the Mass-media”, whereas Internet resources are included into the term ‘mass-media’ and the forms of punishable “extremism in mass-media” are defined (was adopted in 2006).

Laws and Human Rights Conventions operated in the case:
Russian Criminal Law: Article 282 (1)
(A local legislation rooted in ICCPR’s articles 19(3) and 20 (2). Specifies that “initiating hatred or hostility against or insulting dignity of an individual or a group on the basis of one’s (their) sex, race, nationality, language, origins, religious relation, or belonging to a certain social group publicly or through mass-media is punishable with imprisonment and/or monetary fine”.)

The Mass-media Law of Russia: Article 14:
(Specifies that ‘mass-media’ includes Internet resources.)

ICCPR: Article 14.
(Savva’s appeal for a fair, transparent and competent investigation. Besides, his lawyer was not informed on time about two expertises the prosecutor conducted (psycholinguistic analysis of the abusive comment’s text and a sociohumanitarian expertise: local philosophy, linguistics and history scholars found out that police can be considered a ‘social group’ and that Savva’s statements were indeed abusive.) Kosnyrev and “Memorial” considered this a violation of court procedures guaranteed by the Basic Law of Russia.)

ECHR: Article 10.
(Some precedents in the EU similar to Savva’s case were resolved in favor of the accused on the basis of interpretation of this article).

Actors:
Savva Terentyev, a blogger: accused; his lawyer Vladislav Kosnyrev: defender;
Prosecutor General’s Office of Syktyvkar (Republic of Komi, Russian Federation): accuser, law enforcer;
“Memorial International” human rights NGO (Komi office): legal assistance, monitoring, Internet and mass-media lobbying.

Pretext: Police Savva posted a comment on LiveJournal insulting the Russian police and calling for action against it.

Sequence of events and reactions:
(according to “Memorial (Komi)” human rights NGO’s press-release)
1. February 14 2007: Police conducts a search of the “Iskra” oppositional newspaper’s office and confiscates all computer hard drives. Official reason: search for illegal “pirate” software. A negative post about this appears in LiveJournal.
2. February 15 2007: a LiveJournal user with nickname ‘terentyev’ leaves an emotional strongly negative comment to this post. Shortly after, the comment was removed.
3. August 9 2007, then February 22 2008: Savva is charged in the court for “initiating hatred, enmity and offending dignity of a social group [in this case, police] using the mass-media” (Russian Criminal Law, Article 282, point 1).
4. March 31 – April 23 2008: In the course of defense, Savva accused the Prosecutor General’s Office for violating his civil right for a just and open court investigation. The appeal is rejected. Savva’s lawyer puts forward a well-grounded set of arguments based on international laws (e.g. European Convention) and Russia’s basic laws specifying several violations of investigation procedures by the court. The defense arguments are ignored.
5. July 7 2008: Savva is sentenced for 1 year of imprisonment, suspended (conditional). Currently, Savva is appealing to Strasbourg European Human Rights Court.

Similar cases in the Russian Federation: D. Tashlykov (19.01.07), E.S. Savel’ev (01.01.08), Dmitriy Solov’ev (11.08.08). All charged for offending dignity and/or calling for action against the police and/or state officials in Internet blog comments. A. Morozov (17.06.08) was convicted to correctional colony term for other crimes, his blog comments considered “hooliganism”.

Similar cases in the EU: “Torgerson vs. Iceland” – the defendant was justified. The case was raised because of similar abusive statements about Icelandic police which defendant published in a newspaper; “Handyside vs. the United Kingdom” – the defendant was justified.

Case analysis
The case of Savva did not have precedents in Russia, and a ready legal framework required for processing such cases is still being formed by the government. This is why the prosecutor needed to combine several local laws to accuse Savva and lacked consistency. According to Memorial’s press-release, the initial charges against Savva included “offending the dignity of survivors of World War II who went through Nazi concentration camps” (in his comment Savva mentioned the “ovens of Auschwitz”), “a call for extremist action in mass-media” (an idea of punishing the corrupt police officers through death mentioned in the comment), and finally “offending dignity and initiating hostility against a social group”.

These charges could also have been derived from ICCPR’s articles 19(3) and 20 (2), but the prosecutor did not mention the human rights violation dimension of the case focusing on the very top of the legislation iceberg, which is simple and immediate Criminal and Mass-media laws. It was not questioned what lies beyond these laws and what they are needed for in a state. On both the Russian segment and global Internet one can find thousands of posts gravely insulting all kinds of social groups, and the prosecutor had to stick to this particular case to advance it: it was not explained why exclusively Savva’s comment was picked among other comments and resources offending the dignity of policemen. Even the original LiveJournal post which Savva commented on contained negative statements about the “club-based repressive policeman mentality”, “police being the serving hounds of the regime”.
Savva publicly apologized for mentioning Auschwitz and added that he did not intend to insult its victims and survivors and stated that he simply exaggerated the need for punishing only corrupted police officers, not generalizing this offence to all policemen. However, the proceedings went on: the prosecutor was considering the case much more serious than mere hooliganism. The Komi office of Russia’s “Memorial International” human rights NGO joined the case and added the human rights and Russian Basic Law arguments to the case. First, the court procedures and expertise results notification of the lawyer were procrastinated by one week and were not transparent enough, which is not acceptable both by the Russian legislation’s court procedural regulations and by Article 14, points 3:B and C of ICCPR. Consequently, the main argument (“police” considered a “social group) was obtained in a faulty manner.
Second, the defendant accused the plaintiff (state officials, in this case) in violating Savva’s freedom of speech, which is secured by Article 10 of ECHR (ratified by the Russian government in 1998): “Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” From this perspective, Savva has the freedom to believe that “policemen are like street thugs, with extremely low education” and impart this point of view, since “freedom of expression is required for maintaining pluralism, tolerance and liberalism necessary for a democratic society” (quoting the UK court’s decision about a similar (and even more shocking for public morality) case “Handyside vs. the United Kingdom”.
If the source ICCPR’s Articles 19 and 20 (the international norms) were used in this case by the prosecutor (“[freedom of speech] may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals.), Savva’s comment would hardly be considered applicable for described restrictions: 1. the blog comment was scarcely read by more than a thousand people and was quickly removed, therefore its public impact was minimal (comparing to, for example, popular Russian action movies or detective stories where dozens of policemen are pictured as corrupt and are ruthlessly murdered by criminals); 2. reputation and public health aspects: according to a survey poll held by Levada social research Center in 2004, 80% of Russians dislike policemen and consider them corrupt; therefore, in his blog comment Savva expressed a common attitude peculiar to his society, emotionally exaggerating it; 3.the moral side of the comment can also be negated because Savva publicly made excuses for mentioning Auschwitz and specified that he only meant to offend the corrupted police officers.
This way or another, in Savva’s case the prosecutor did not use international human rights terminology, preferring the vague and broad term or “extremism”, which is often used in today’s Russia to sentence people opposing its authoritarian regime (Human Rights Watch, 2008). Overall, although the courts of Central Russia are being gradually reformed to implement ECHR’s norms, the courts of Russian periphery like Komi are still alien to international conventions (V. Sperling, 2008). At the same time when Savva’s court decision was made, on June 17 2008 Andrei Morozov, a right-wing radical movement activist was only charged for online “hooliganism” by a Moscow court for the same (and systematic) online activity – in his case police was not considered a “social group”. Besides this, both in LiveJournal and in the Russian-language Internet one can find active neo-nazi communities, which plan their actions of violence using Internet and distribute shocking racist materials (“Times” newspaper online) – not a single case is known about the state’s charges against these Internet users on the basis of their online activities.

Recently, new “extremist” blog comment cases similar to Savva’s one were issued in different courts of Russia – some organizations (AI, RWB, HRW, HRO, Memorial) consider this to be the next step the Russian government makes to establish control over the Internet freedom of speech and access to information and to repress opposition-minded citizens. At the same, in 2008 the new President D. Medvedev suggested new Mass-media and Internet laws that would provide all users with compulsory easily traceable digital IDs. The official pretext is – again – fighting software piracy. As the legislation of Russia can be correspondingly modified to charge “online extremists” in a more consistent way, human rights activists and organizations will only be able to refer to international conventions Russia ratified (like ECHR and ICCPR) to protect their freedom of expression and access to information.

It is also predictable that Savva’s appeal to the European Court on Human Rights will be satisfied: the sentence he got is evidently disproportionate, because his blog comment is not half as threatening to other’s rights as the penalty he got. Still, strong international freedom of speech lobbying is required to prevent such and worse cases of freedom of speech violations in Russia. Meanwhile, the case of Dmitriy Solov’ev from Kemerovo is following exactly the same scenario.


References:

- Criminal Law, Mass-media Law and Basic Law of Russia
- Amnesty International: periodic report “Russian Federation: Freedom limited - the right to freedom of expression in the Russian Federation” (published in March 2008)
http://www.amnesty.org/en/library/info/EUR46/008/2008 (accessed Dec 21 2008)
- BBC: “Free speech online 'under threat'” (published on October 27 2006)
http://news.bbc.co.uk/2/hi/technology/6090448.stm (accessed Dec 21 2008)
- Human Rights Online portal (Russia): “Will Russian Judicial System Ever Be Based On Precedents?” – Andrey Morozov’s case (published on June 30 2008)
http://hro1.org/node/2681 (accessed Dec 21 2008)
- Human Rights Watch “Criticism=Extremism” (published on July 13 2008)
http://hrw.org/english/docs/2008/07/14/russia19346.htm (accessed Dec 21 2008)
- Levada Center social research summary “Attitude to Policemen in the Cities of Russia” (published in 2005):
http://www.levada.ru/milicia04.html (accessed Dec 21 2008)
- Official press-release by “Memorial (Komi)” human rights NGO (published on March 19 2008): http://mezak.livejournal.com/113795.html?thread=1011843 (accessed Dec 21 2008)
- Reporters Without Borders: “Russia: one-year suspended prison sentence for blog post critical of police” (published on June 16 2008)
http://www.rsf.org/article.php3?id_article=27848 (accessed Dec 21 2008)
- The New York Times online: “Back to the USSR: Putin Turns to Thought Control” (published on April 22 2007)
http://www.smh.com.au/news/world/back-to-the-ussr-putin-turns-to-thought-control/2007/04/22/1177180484916.html (accessed Dec 21 2008)
- The Rainbow Report Blog: “Neo-nazi admits distributing execution video” (quoted from “Times” newspaper online, published on August 15 2007)
http://therainbowreport.blogspot.com/2007/08/neo-nazi-admits-distributing-execution.html (accessed Dec 21 2008)
- WebPlanet: “The Case Of Solov’ev: It Is Useful to Read the Basic Law” by Pavel Protasov, lawer and journalist (published on August 25 2008)
http://www.webplanet.ru/knowhow/law/protasov/2008/08/25/state.html (accessed Dec 21 2008)
- M. Freeman “Human Rights: An Interdisciplinary Approach.”, 2005: Polity Press, Cambridge.
- V. Sperling, "Russia and the European Court of Human Rights", 2008-08-28. Paper presented at the annual meeting of the APSA 2008 Annual Meeting, Hynes Convention Center, Boston, Massachusetts Online: http://www.allacademic.com/meta/p278691_index.html (accessed Dec 21 2008)
- R.Smith “Textbook on International Human Rights”, 2004, Oxford University Press

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http://www.gazeta.ru/news/lenta/2009/01/27/n_1321980.shtml

Медведев поручил доработать поправки в закон о госизмене

Президент России Дмитрий Медведев дал поручение своей администрации дополнительно проработать вопрос о внесении поправок в Уголовный и Уголовно-процессуальный кодексы в части, касающейся гостайны, госизмены и шпионажа.
«Глава государства внимательно отнесся к мнениям, которые были высказаны по этому поводу в СМИ и обществе в целом», – сообщил журналистам первый заместитель руководителя администрации президента Владислав Сурков.
По его словам, «возможно, существует риск расширительного толкования понятий «государственная тайна», «госизмена» и «шпионаж». Президент в связи с этим поручил администрации дополнительно проработать вопрос, отметил первый замглавы администрации.
«Закон будет доработан», – сказал Сурков. ИТАР-ТАСС

Медведев поручил правоохранительным органам уделять повышенное внимание борьбе с экстремизмом.

«Это исключительно большая опасность, особенно в период кризиса. Такие преступления способны расшатать любое, даже самое стабильное и благополучное общество, — сказал президент. — Рассчитываю, что этот вопрос будет в зоне внимания и МВД, и ФСБ, и прокуратуры».


http://news.mail.ru/politics/2356078/

Ещё материалы по случаю Терентьева.

http://hroniki.info/?page=news&id=611 - заключение "комиссии" относительно того, являются ли "менты" социальной группой.

Татарстан: в тюрьму за книгу
http://www.grani.ru/Politics/Russia/Regions/m.146417.html

Расширенная интерпретация экстремизма
http://zavtra.ru/cgi//veil//data/zavtra/09/808/61.html

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