Russia’s Criminal Code has more than doubled in length in the 25 years since it was first enacted. The Code of Administrative Offenses, adopted in 2001, has almost quadrupled. New laws are often added in response to political and cultural developments and public protests, rather than pressure from the public or practical necessity. The authors of this article have studied the introduction of repressive laws over the past ten years and write about the most dramatic examples of legislative “resourcefulness.”
In February 2012, Pussy Riot staged a performance-art protest titled “Mother of God, Drive Putin Away!” inside Moscow’s Cathedral of Christ the Savior. Four members of the group donned colorful balaclavas, climbed the steps to the iconostasis, and began dancing in front of it. A minute later the women were led away by security guards. Footage from the performance was used as part of a video that a court later designated “extremism.” In August 2012, three participants in the performance – Nadezhda Tolokonnikova, Maria Alyokhina, and Yekaterina Samutsevich – were convicted of “hooliganism” and given two-year sentences. Samutsevich’s sentence was later suspended.
This high-profile criminal case prompted amendments to Criminal Code Article 148. Before 2013, “offending the feelings of the faithful” entailed administrative penalties, and Article 148 was applied only in cases of interference in the performance of religious observances or in the activities of religious organizations. After the Pussy Riot trial, the article was almost entirely rewritten to cover publicly “offending the feelings of the faithful,” which became punishable by up to three years’ imprisonment.
An explanatory memorandum accompanying the draft amendments stated that “these sorts of infringements are socially dangerous insofar as they go against the traditional and religious norms that society has developed over many centuries – its moral principles contradict morality, entail grave consequences, and are starkly antisocial in their orientation.”
The revised article has not been extensively applied. According to the Supreme Court’s Judicial Department, as of the end of 2020, only 32 people had been charged under it, one of whom was even acquitted: a soldier who attempted to destroy a cross worn by one of his fellow soldiers “by melting it on a gas burner, breaking it apart with an axe, and flattening it with a hammer.” No one has received an actual prison sentence under this article: judges have either sentenced people to community service or imposed fines.
Those charged with “offending the feelings of the faithful” have included, for example, a teenager who smoked in a cathedral; the blogger Ruslan Sokolovsky, who shot a video in a church; and a security guard charged for a social-media post about the Virgin Mary. The most recent well-known instance of the article’s application involved the use of icons for a TikTok video.
Article 282, best known for the fact that it can be used to put someone in a penal colony for a repost, a meme, or a comment on social media, was partially decriminalized in 2018. A draft bill, which had already been given an affirmative determination by the Supreme Court and government, was introduced into the State Duma by the president. Now, first-time perpetrators of “hatemongering” are subject to a fine or arrest under Administrative Code Article 20.3.1, with criminal charges applying only after a repeat offense within the same year.
In 2018, the trial of Maria Motuznaya, a young woman who found herself in legal trouble after posting a meme on the popular social media site VKontakte, prompted a fresh round of outrage over this provision. The court sent the case back to prosecutors several days after the president introduced a proposal to relax this prohibition.
Up to that point, the statistics associated with Article 282 were disturbing: the number of cases had been constantly rising, and reports of people getting into legal trouble after posting incautious comments became depressingly common. In 2019, there was a tenfold decrease in the number of convictions.
However, the reform brought with it a rather unexpected consequence: the reduction in cases based on Article 282 was accompanied by an increase in cases based on other articles penalizing statements on the internet – those covering public calls for extremism and public justification of terrorism. A year before Article 282 was decriminalized, a third punishable act was added to Criminal Code Article 205.2: “public calls for terrorism” and “public justification of terrorism” was joined by “propaganda promoting terrorism.”
All these changes were followed by a sharp rise in convictions. While before 2014 convictions based on Article 205.2 had been hovering around one per year, after the changes passed in 2017, that number skyrocketed: convictions reached 15 per year, and by 2020, two years after Article 282 was decriminalized, that figure rose to 122. Many convictions came in the aftermath of the terrorist act committed by Mikhail Zhlobitsky, who blew himself up inside Federal Security Service headquarters in Arkhangelsk. Social media comments on this incident resulted in dozens of cases.
A similar trend could be seen in regard to Criminal Code Article 280 (Public Calls to Engage in Extremist Activities). In 2014, wording was added to provide for use of the internet to encourage extremism, which caused a spike in convictions that grew by a further 17 percent after the changes to Article 282.
The overall number of convictions for statements made on the internet rose significantly, first and foremost for administrative offenses, insofar as run-of-the-mill “incitement of hatred” had been reclassified from a criminal to an administrative infraction.
Over the past ten years, defamation has gone from being decriminalized (reclassified as an administrative offense) to being moved back into the Criminal Code. In 2021, the punishment for this crime was made more severe, with potential penalties now including imprisonment in a penal colony. Furthermore, while the law had previously been applied exclusively to questionable statements targeting a specific individual, now the law can be applied to defamation of a vaguely defined group of people.
The law was amended in response to Alexei Navalny’s supposed defamation of the veteran Ignat Artemenko. This was after Navalny made comments about a propaganda video promoting amendments to the Russian Constitution that featured both celebrities and ordinary people, among them Artemenko. Navalny called those appearing in the video “a bunch of corrupt hacks,” “the country’s shame,” “people with no conscience,” and “traitors.”
The Investigative Committee found that these words constituted defamation of a veteran, ignoring the fact that Navalny did not mention Artemenko by name (even though the law as written at the time required this). This shortcoming has since been “fixed,” and it is now possible to prosecute defamation of a vague circle of individuals, greatly expanding the article’s applicability. Furthermore, wording was added to specifically cover statements made on the internet – Navalny had published his comments on Twitter.
When Navalny was charged under this article it did not yet provide for imprisonment. This flaw has also since been remedied: now penalties include correctional labor or imprisonment in a penal colony. Maximum sentences in some cases can now reach five years’ imprisonment – a term applied in cases of kidnapping, money laundering, or violence against a member of the police.
The political scientist Ekaterina Schulmann, who specializes in legislative processes, sees this disproportionality as reflective of the historical development of Russian law:
Our criminal law bears the indelible stamp of the Soviet legal mindset, which sees a crime against a person as forgivable, while ideological crimes and “crimes against the state” are more grievous. Who cared if the proletariat wanted to punch each other in the face or even kill one another? One more, one less – no threat to the system. The system is threatened when someone tells a joke or sells their friend a pair of jeans.
Evidence of this attitude can be seen in the current Criminal Code, with its moderate penalties for violent crime and extremely harsh ones for “justification,” “calls for,” and other forms of public speech, as well as for the extremely broad understanding of fraud (what used to be called “speculation”) and “misuse of property” (formerly, “theft of socialist property”). All this has to change. Penalties for crimes against an individual have to be made more severe, while everything having to do with words, writing, the drafting of documents and other conceptual materials must be made less so.
Navalny was fined 850,000 rubles – close to the maximum penalty. This is almost triple the highest fine that Russian judges had ever handed down for defamation – 300,000 rubles – and more than 40 times the average fine. As a result, Navalny alone was supposed to contribute to the treasury twice as much as all fines based on this article over the previous three years put together.
Navalny’s “corrupt hacks” trial led to changes to yet another article: now defamation or any insult to a veteran is treated as tantamount to rehabilitating Nazism (Criminal Code Article 354.1). And “diminishing the honor and dignity of a veteran of the Great Patriotic War” on the internet is now punishable by up to five years’ imprisonment.
Public attention toward elections and violations associated with them – the blocking of candidates, ballot-stuffing, falsification of results – has led to frequent updates to election laws. All these changes, however, are merely cosmetic in nature: no real reforms are being undertaken, and the number of criminal convictions, which never exceeded 50 during peak years, is gradually declining.
Penalties for election-related violations were stiffened after the 2011-13 protests: fines were increased and correctional labor was added. Meanwhile, the actual prison sentences handed down under the harshest of these articles remained unchanged. In the lead-up to the 2018 presidential elections, the State Duma promised to institute tougher penalties for this sort of violation, but no bill was produced. At the same time, Article 142.2 (Illegal Distribution and Receiving of Electoral Ballots or Referendum Ballots) was enacted.
Administrative election-related laws have been amended with greater frequency. The latest changes, in 2021, increased the fines for illegal campaigning, which now top out at 500,000 rubles. Overall, within the past ten-plus years, election-related penalties not involving a prison term have been made approximately twice as harsh, and administrative fines have been increased five- to thirteenfold.
According to the Supreme Court’s Judicial Department, over the past eleven years, approximately 300 people have been found criminally liable under election laws, but only two have been imprisoned (in 2011).
Convictions reached their peak during the 2011 Bolotnaya Square protests and the 2018 presidential elections.
However, Criminal Code Article 141.1 (Campaign Finance Violations) has not been used at all: over the past 12 years, not a single sentence has been handed down based on it.
If we consider not only convictions but all election-related cases that reached the courts, it turns out that a significant proportion of them have been dismissed: over the past three years, such instances outnumbered convictions. In a year of protests surrounding elections to the Moscow City Duma, three-quarters of all cases never went to trial.
In March 2017, Alexei Navalny’s Anti-Corruption Foundation released a documentary titled Он вам не Димон (Don’t Call Him “Dimon”). The film spelled out the findings of investigations implicating Prime Minister Dmitry Medvedev in corruption. The report triggered demonstrations across Russia.
There were multiple legal attempts to stop the documentary from being shown, however it is still available on YouTube and has had more than 45 million views. By July of 2017, the State Duma introduced revisions to the law “Concerning the State Guard.” The federal guard service was given the right to protect the personal information of officials and their families. Now, anyone under state protection must give personal consent before their information can be accessed.
According to Ilya Shumanov, general director of Transparency International-Russia:
The revisions mean that any information about the president, prime minister, prosecutor general, members of the Investigative Committee, both houses of parliament, the Supreme and Constitutional Courts, and their family members can be kept out of the public records of the State Traffic Safety Inspectorate, the Russian State Register, the Russian Commercial Register, the Federal Bailiff Service, and the Federal Tax Service, among other databases. The term “family member” is not defined at the legislative level, which means that the law can be applied arbitrarily, extending as far as an official’s first cousin once removed.
The law has greatly hindered anti-corruption investigations – journalists increasingly find themselves running into a faceless “Russian Federation” when trying to track down who owns a piece of property. But the placing of roadblocks to prevent access to information about security personnel and officials did not end there.
Three years later, on December 14, 2020, journalists representing several publications came out with an investigative report naming the people allegedly behind the poisoning of Alexei Navalny. The journalists implicated eight members of a secret group working under cover of the Federal Security Bureau’s Institute of Criminal Law.
Just a week later, on December 22, the State Duma passed a bill shielding the personal information of state security personnel, judges, prosecutors, and their relatives. Previously, such information was protected only in cases where there was a real threat to life and property. An accompanying memorandum on the purpose of the legislation explained: “There is currently an increase in the unsanctioned publication on informational and telecommunication networks of information relating to the details and events as well as the private lives of members of law enforcement, regulatory bodies, and the military, which has a negative effect on the exercise of their authority.”
In June of 2021, the president signed a law increasing penalties for the disclosure of personal information about security personnel and their relatives. Criminal Code Article 320 was revised, with the new version eliminating the provision specifying that only disclosures “for the purpose of hindering official activities” were prohibited. The law’s authors believed that “Such actions often have motives other than hindering the official activities of members of law enforcement (such as greed, revenge, or PR).” Now, having such “other motives” can be penalized by 480 hours of community service, and, in the case of “grave consequences,” up to five years’ incarceration.
In July 2021, the president signed another law permitting the suppression of information: Roskomnadzor (the Federal Service for Oversight of Communications, Information Technology, and Mass Media) would no longer need a court order to block information that the state considered inaccurate.
The Voronezh-based Mass Media Defense Center described these revisions as “killing journalistic, blogger, and public investigations down to their roots.” As Galina Arapova, the center’s director (profiled in the Sep/Oct 2017 issue of Russian Life), explained, they even allow for the removal of past investigations:
All someone has to do is petition the public prosecutor saying “they’ve written here that I’m corrupt, even though I haven’t been charged with a single criminal offense.” The prosecutor is given ten days to investigate this information, evaluating only the evidence presented by the “offended party”... If the publication refuses to remove the investigative report, the page it is on or the entire site can be blocked. So now anyone who wants can remove any report from the internet, so long as none of those involved have been prosecuted.
Punishment for “fakes” appeared in Russian law in 2019. Back then, it was justified based on the tragedy at the Winter Cherry mall in the Siberian city of Kemerovo, where 60 people died after a fire broke out, 37 of them children. After the fire, rumors spread that the true number of victims was much higher.
One source of these rumors was the Ukrainian prankster Yevgeny Volnov: he had called the morgue pretending to represent the Emergency Ministry and asked that preparations be made to receive 300 bodies. In Russia, the prankster was convicted in absentia on charges of calling for terrorism and promoting hatred. “The Rubicon beyond which it became clear that regulations were needed was the Winter Cherry tragedy, when talk of several hundred bodies in Kemerovo morgues was being thrown around,” State Duma member Leonid Levin, head of the committee on informational policies, said during debate over the anti-fakes law.
Provisions for punishing the dissemination of “inaccurate socially significant information” entered the Code of Administrative Law a year later, as part of a set of legislation that included a law against dishonoring the authorities. At first, the article was almost never applied, according to a report by the Agora human rights group, but cases based on it rose sharply once the coronavirus pandemic began.
From that point on, the “fakes” article has undergone numerous expansions. Amendments were made in response to the coronavirus, news coverage of protests, new “foreign agents” provisions, and the trial of Alexei Navalny. Penalties for disrespecting “commemorations of military glory” were even added.
On April 1, 2020, almost immediately after the first coronavirus restrictions were introduced in Russia, two new articles were added to the Criminal Code: 207.1 and 207.2, occupying a place between terrorism and organized crime.
The initial draft of this coronavirus bill mentioned only Criminal Code Article 236 (Violation of Public Health-Epidemiological Regulations), which was to be made more stringent. But by the second reading, both new articles concerning “fakes” had appeared. The State Duma passed the amendments in one day, on March 31, immediately in their second and third readings. The Federation Council approved them that same day, and the following day the bill was signed by the president.
These Criminal Code articles differ very little from the corresponding articles in the Administrative Code, and their implementation is left largely to police discretion.
“The lines between criminal and administrative violations remain extremely blurry, and past experience shows that one and the same act can be unpredictably classified as pertaining to either the Criminal Code or the Code of Administrative Law,” according to Agora.
The first criminal case under the new Article 207.1 was brought two days after it came into effect. The occasion was a public post on a news site for the town of Sestroretsk stating that a patient infected with coronavirus had left a clinic on public transportation. According to figures from the Supreme Court’s Judicial Department, for all of 2020 there were six convictions based on this article, with another five people receiving fines. No sentences were handed down based on 207.2.
Natalya Zvyagina, Amnesty International’s director for Russia, believes that laws targeting disinformation have a devastating effect on freedom of speech: “The bill was drafted and adopted with lightning speed, without any public debate and legal analysis. Beside the fact that it conflicts with laws on freedom of expression, it comes with absolutely no restraining mechanisms, time limitations, and public oversight. It’s essentially an extreme overreaction capable of ending freedom of speech in the country.”
Over the past ten years, it is laws governing protest rallies that have undergone the most dramatic changes. The first revisions were adopted after numerous reports of falsifications during the Moscow City Duma elections in December of 2011 sparked massive street protests extending into 2013. There was also talk of violations after the presidential elections in March 2012. On May 6, 2012, one day before Vladimir Putin’s third inauguration as president, the March of Millions protest and rally ended in clashes with police on Bolotnaya Square. The brutal dispersion of the crowds, including hundreds of detentions, was followed by criminal charges against more than 30 people.
This marked the beginning of a legislative crackdown on protest rallies that continues to this day.
Before 2012, Administrative Code Article 20.2 had three parts – now there are 12. The first changes were introduced immediately after the May 6 Bolotnaya Square demonstrations. The bill was hurriedly adopted: it was put before the State Duma on May 10, and just a month later it was signed by the president. Federation Council legislators spent just 50 minutes discussing it.
The article was extensively expanded that year, with four new parts added. Lawmakers justified the harsher penalties by citing laws governing protest rallies in the United States, France, Sweden, Switzerland, and Germany: “The legal systems of all of the world’s developed democracies provide for criminal liability for citizens who abuse the right to free assembly, including monetary fines and imprisonment.”
Guided by “the principles of humanism,” Russia at first decided to limit changes to an increase in the amount of fines and the introduction of community service as an alternative to arrest. The maximum fine for organizing or conducting a demonstration skyrocketed, and later, beginning in 2014, maximum prison sentences were increased to 30 days.
Article 20.2.2 was added to the Administrative Code to cover “mass simultaneous presence,” establishing liability for those street events that could not be formally categorized as rallies.
As Yelena Lipatova, a lawyer for the human-rights and legal-aid group OVD-Info explains:
The article is craftily worded – it deals with an action that isn’t a public event and isn’t regulated by the law on rallies. At the same time, if you consider the Constitutional Court’s definition, it’s also any event that is open and accessible to anyone and whose participants are pursuing a common goal. Which is essentially the sort of public event Article 20.2 deals with.
Lipatova sees that as intentional: people can be charged with participation in a peaceful public event but for some reason penalized under a different article.
Back in early June of 2012, the political scientist Gleb Pavlovsky noted: “The paradox is that this law was prepared as a sort of situational measure to prevent a June 12 protest rally that probably wouldn’t have been the most significant demonstration of that sort. And the effect of adopting this law for this occasion will make dialogue between public groups and the government impossible for a long time to come.”
Article 20.2 was again made more severe in 2014, when a provision for “repeat” violations at a rally was added, along with one for interfering with vehicle or pedestrian traffic: the maximum fine was increased to one million rubles and almost all parts of the article now featured options for arrest. Separately, a prohibition against demonstrations near a court building was inserted.
In 2018, as part of a campaign titled “He’s Not Our Tsar,” an unexpectedly large number of young people came out to protest Vladimir Putin’s fourth inauguration as president. On inauguration day, May 5, human rights groups calculated that 158 minors (233 according to the Ministry of Internal Affairs) were detained. By May 10, the State Duma had already introduced a draft bill aimed at punishing anyone who involved minors in unsanctioned demonstrations. The amendment was added to that same Article 20.2.
In late 2020 and early 2021, during a wave of protests after the poisoning and arrest of Alexei Navalny, the article was again amended, including by adding penalties for violating the rules governing the collection and spending of money on organizing protest rallies and the illegal use of any “symbol (or sign) identifying a member of the media.”
As a result, over the past ten years Administrative Article 20.2 has grown almost eight times longer.
The total amount taken in through fines also grew, first and foremost due to the constant increasing of their size rather than the number of fines imposed. In 2019 – a year of protests in the leadup to Moscow City Duma elections – judges imposed 58 million rubles (nearly a million dollars at the time) in fines. This is almost five times more than the amount collected in 2012, although the number of those fined did not substantially change.
Ekaterina Schulmann does not see these changes as situational, but rather as “a systemic reaction by a political machine sensing a threat.”
This is repressive legislation that, you could say, patches holes as they form. When tears appear in the fabric of political reality, first here, then there – be they danger from large-scale demonstrations, or from the press, or from youth. There’s trouble everywhere you look, and every variety of problem requires its own administrative and criminal sanction. I would call this a very systemic [phenomenon].
Criminal Code Article 212.1 appeared in 2014 in response to protests during the “Bolotnaya Affair” trials and during antiwar demonstrations relating to military actions in Ukraine. It was part of a set of legislation concerning public events. The bill’s authors specifically used detentions on the day of the first Bolotnaya convictions to justify the need for the new article: “On February 24, 2014, of the 681 people detained in Moscow’s Manezhnaya Square and outside the Zamoskvoretsky District Court, 49 citizens had previous administrative charges under Article 20.2, and three of them had more than 10, while 11 had at least two.”
Once Article 212.1 came into effect, protesters with three Article 20.2 violations within a six-month period became criminally liable and faced maximum sentences of five years’ imprisonment.
The first conviction came in 2015: the activist Ildar Dadin was sentenced to three years in a penal colony. In February 2017, the Constitutional Court ruled that the article was constitutional but that it could only be applied when violations of public assembly rules caused real harm. The Supreme Court Presidium soon canceled Dadin’s sentence. Prior to his release, Dadin was allegedly tortured during his imprisonment in Karelia.
The article was not applied again until 2019, when it was used in three convictions. In 2021, after protests calling for the release of Alexei Navalny from prison, the article began to again be widely applied: at least eight criminal cases were launched across Russia – in Novosibirsk, Khabarovsk, Chelyabinsk, Krasnoyarsk, Barnaul, and Kaliningrad. Alexei Vorsin, a Khabarovsk activist, was given a three-year suspended sentence.
As the lawyer Maria Eismont put it: “It would have been strange if, after hanging so many guns on the wall,* cleaning them even with the help of the Constitutional Court, and clearing the way for this practice with the Kotov case, they [hadn’t started targeting protesters] – the practice has been established. It’s ready to reap [protesters]. It was evidently a political objective to reanimate this article.”
Amendments enabling Criminal Code Article 267 to be used against demonstrators, apparently prompted by the 2020 protests in Khabarovsk after the local governor, Sergei Furgal, was arrested, came into force in January 2021. Residents marched by the thousands through the city center, and most of those detained were charged with interfering with the functioning of transportation and pedestrian infrastructure.
“If this law had been adopted a few months ago, let’s say, just how many people, in your opinion, would it have been proper to criminally prosecute in the Hero City of Khabarovsk?” Oleg Shein, a Duma member from the A Just Russia party asked the bill’s author Dmitry Vyatkin.
“If we’re talking about intentional interference that entailed inflicting harm to health, these are two completely different things. What do protest rallies have to do with it?” Vyatkin replied.
The amendments were quickly passed, despite the fact that the Supreme Court had criticized the bill, noting that it lacked any reasonable grounds and “any objective evidence attesting to insufficient existing legal regulation.” Human rights groups believe that the passage of this article has created legal ambiguity making it impossible to find the line between administrative and criminal violations.
From 2009 through 2020 there were only 16 convictions under Article 267, and they all had to do with traffic accidents, such as train derailments or trucks damaging overpasses. In the wake of the January 2021 protests against Navalny’s arrest, the article was used against more than 20 protesters in several different regions, according to OVD-Info.
The criminalization of “fakes” was not the only legal innovation resulting from the coronavirus pandemic. In late March 2020, a bill amending Criminal Code Article 236 was introduced in the State Duma, and by April 1 the amendment had already come into effect. Now the law penalizes not only violations of public health norms that result in mass illness (as was previously the case) but also creating “the threat of such consequences.”
“Threat” is a vague term. The Supreme Court indicated that for criminal liability to apply, the threat must be “real,” and the situation must be such that mass infection had not occurred only due to “timely measures by governmental authorities [...] aimed at preventing the spread of disease.”
The toughening of the law was designed to prevent large-scale public assembly and violations of “self-isolation” rules. The penalties associated with the article were also increased: correctional labor and prison sentences of up to seven years were added. That is the same term given for violent theft or organizing a narcotics den.
More people were convicted based on this article in 2020 than in any other year since 2011: 16 (an additional 12 had their cases dismissed on non-exculpatory grounds). That year (2020) was also the first time in ten years that someone convicted under Article 236 (a patient in the far-northern city of Labytnangi with a confirmed coronavirus case who escaped from the hospital) had to serve real time.
Then, the article suddenly started being applied to protesters: criminal charges were brought against 14 people participating in demonstrations in Moscow and Nizhny Novgorod on January 23, 2021, in the immediate aftermath of Navalny’s arrest. Many of the accused included Navalny’s close associates, such as his press secretary Kira Yarmysh, Navalny’s brother Oleg, and the politician Lyubov Sobol. Almost all were given sentences (as a rule, they were sentenced to “Restricted Liberty,” meaning that restrictions were placed on their movements). The press and public were barred from the court for this “public health case” under the pretext of coronavirus restrictions.
When asked how “ordinary” articles are transformed into political ones, Ekaterina Schulmann commented:
This is a case of so-called soldierly resourcefulness, of law enforcement using its imagination. The art of fitting any life phenomenon to a legal provision has long been practiced by investigators and it is greatly valued in that environment. In healthy legal systems, such imaginativeness comes up against lawyers, the adversarial nature of judicial process, and an independent judiciary. An investigator can come up with whatever he wants, but if he brings it to court, to at least get authorization for a search or an arrest, a good judge will tell him: “You, my dear sir, have come up with some sort of nonsense. You’re going to be a laughingstock.” At that point, what he thought up becomes nothing more than his own personal work of fiction. But when courts satisfy, as our statistics indicate, more than 95 percent of requests from investigative agencies, then it becomes very difficult to rein in that imagination; there’s nothing to rein it in with.
Kirill Titayev, who teaches the sociology of law at St. Petersburg’s European University, sees no problem with the laws being passed in response to current events per se. The problem is that legislators do not seem to know how to design them based on actual evidence:
Russian criminal policy, which has never been particularly evidence-based – meaning it makes no effort to rely on data and research about how a criminal situation actually looks – is becoming even worse, because from the start we are dealing with an often-distorted picture in the legislator’s mind. When we read the accompanying memoranda and look at the debates, we don’t see any analysis of the context. Instead, the legislator performs certain rituals in response to what’s on the news rather than the substance of the matter. Of course, the fire at the Winter Berry mall was horrific. But to immediately change the law before it’s clear whether Winter Cherry was an isolated case of criminal negligence or a systemic problem is rather foolish, or probably even harmful.
Ekaterina Schulmann traces the roots of such lawmaking to the particular features of the Russian legal system, which was built on laws and codes (unlike Anglo-Saxon ones, which are based on legal precedent), as well as to the political situation that has taken shape in Russia:
The more the ruling bureaucracy tries to regulate everything that moves, the more it will have to create and amend laws. A second reason for this is the political system. Anywhere there is a parliament, it will try to somehow react to what’s happening in the news. A third reason is the political situation. In electoral democracies, high-profile events lead to personnel changes. For example, if there’s a human-caused disaster or an act of terrorism, the responsible minister, mayor, or regional chief will be gone. Changes in the external reality are accompanied by changes in the political reality. But we can’t allow such changes because we have stability. If we can’t change the people, let’s at least change the rules. We wind up with personnel stability but constantly changing laws.
Schulmann sees language as an important problem for Russian law: legislation often features editorializing and judgmental formulations:
If you look at our political and some of our economic criminal articles, you’ll find judgmental terminology that can be applied ad libitum, at the discretion of the law enforcer. Take, for instance, the hooliganism article. “Crude violation of public order expressing an overt lack of respect for society” – what does that mean? What is an overt lack of respect, or a covert one? How is respect or lack of respect generally expressed? This is all very vague and leaves the investigator or the judge a lot of room for creativity. Or take the articles about extremism or justifying terrorism – we see a lot of that sort of language. There is the language of editorializing and the language of the law. In law, you shouldn’t use words or expressions allowing for a variety of interpretations.
The day the Russian president announced a “special military operation,” most independent and opposition Russian media reported the news featuring headlines containing the word “war.” Just several hours later, media watchdog Roskomnadzor started requiring that the situation in Ukraine and the Russian Army be described based exclusively on information released by official Russian sources. Violators risked a fine of up to 5 million rubles (approximately $50,000 at the time) and having their websites blocked.
A few days later, Roskomnadzor made a very specific demand of 10 independent media outlets, including Novaya Gazeta, Mediazona, TVRain, and The New York Times: they were required to delete any publications in which the word “war” was used in reference to what was happening in Ukraine or be blocked. As of May 5, more than 3,000 sites had been blocked (according to RosKomSvoboda (roskomsvoboda.org), which describes itself as “the first Russian public organization operating in the field of digital rights protection and digital empowerment” and maintains a register of websites blocked by the Russian authorities that grows longer by the day). Many media outlets were forced to shut down or stop covering the fighting in Ukraine. By early June, more than 16,000 protesters had been detained across Russia for demonstrating against the war.
One week after military operations were launched, a number of onerous censorship laws came into effect prohibiting “disparagement of the Russian Army” or calling for sanctions. These were added to the Administrative Code. In parallel, “clone” articles were added to the Criminal Code: repeat violators of prohibitions against calling for sanctions or “disparagement” now face up to five- and three-year prison sentences respectively. (As of this writing, the criminal article banning “calling for the introduction of measures of a restrictive nature in regard to the Russian Federation, citizens of the Russian Federation, or Russian legal entities” has yet to be applied and the administrative one has been used in five cases.) As with the notorious “Dadin Article,” depending on the number of violations, offenders could face additional, much more severe punishment, meaning that defendants wind up being punished twice for the same action.
A separate article appeared in the Criminal Code providing for up to 15 years’ imprisonment for spreading “fakes” about the Russian Army. Soon, this became one of the most frequently used tools against opponents of the war.
The officially stated purpose of the “false information” article – better known as the “fakes” article – is to penalize Russians who disseminate information that conflicts with state sources. In practice, however, even saying that the Z symbol is “the swastika of the new Russia – synonymous with aggression, death, pain, and shameless manipulation” can bring charges under 207.3, as happened in the case of the Ingush journalist Izabella Yevloyeva. As of late May, criminal charges under this article had been brought against 53 people.
A number of cases based on 207.3 have involved the dissemination of information about war casualties, the murder of civilians, and the shelling of Ukrainian cities. One example is the St. Petersburg artist Aleksandra Skochilenko, who replaced the pricing labels affixed to supermarket shelves with labels including information about the shelling of Mariupol’s Donetsk Regional Drama Theater and the death of civilians sheltering there. Law enforcement alleged that she was motivated by “political hatred toward the Russian Federation.” She was sent to a detention facility despite suffering from celiac disease. Vladimir Zavyalov of Smolensk was charged with “political hatred” for similar actions.
There have been several prominent cases of teachers being criminally charged with spreading “fakes” after being denounced by their students. Irina Gen, a teacher from Penza, expressed her position on the war after being asked by students why they would not be going to Europe as part of a competition. One student sent a recording of her response to law enforcement. Gen was then forced to sign a pledge not to travel.
Even a personal telephone conversation can bring charges under this article, as in the case of Sergei Klokov. The technician, who worked at Moscow’s police headquarters, was charged after he shared information about the war in Ukraine with police colleagues during a telephone call: he said that Russia was deflating its casualty numbers and evacuating the wounded to Belarus, that Russian soldiers were killing Ukrainian civilians, and that Ukraine was not being governed by “Nazis.” He was arrested.
It has also been used when the news report in question had nothing to do with the Russian Army per se. Mikhail Afanasyev, a journalist from the Siberian Republic of Khakassia, reported that 11 members of OMON – which is part of the National Guard Forces and separate from the Russian Army – had refused to go fight in Ukraine. He was arrested and the outlet that published his article was blocked.
Criminal charges under the “fakes” article have also been brought against a number of prominent public figures, including: Ilya Krasilshchik, the former publisher of Meduza; Ruslan Leviev, founder of the Conflict Intelligence Team, an organization that started out reporting on the war in Syria but now focuses on Ukraine; Michael Naki, a popular YouTuber; Vladimir Kara-Murza, an outspoken politician; and Alexander Nevzorov, a television personality and journalist.
It was the Administrative Code article against “disparagement of the Russian Army” that proved to be the most frequently applied instrument used against antiwar activists and opponents of government policies. By early June, 2,365 cases had been brought under this article.
In contrast with the “anti-fakes” law, which has to do with the spreading of actual information, the “disparagement” law has to do with the expression of opinions or any other form of antiwar protest, whether by a sole picketer holding a “No to War” sign (or even one with eight asterisks standing in for the Russian letters in that phrase) or a blue and yellow food-delivery uniform, or a social media post with a photograph of protesters against the Vietnam War featuring a woman holding a sign that reads “Bombing for peace is like f***ing for virginity,” or jogging in blue and yellow running shoes, or tying a green ribbon to a bag – something described in a police report as “tacit support” for protest. All these actions risk a fine of up to 100,000 rubles for an individual or up to 1 million for a legal entity (approximately $1800 and $18,000 respectively).
Repeat disparagement offenses can trigger a criminal case. There were four such cases as of the end of May. The first involved Zaurbek Zhambekov of Nalchik, capital of the Kabardin-Balkar Republic. According to the police report, Zhambekov told his 12-year-old daughter to remove a sticker with the Z symbol from a car parked in a parking lot that, as it turned out, belonged to a female police employee. Zhambekov had already been fined once under the administrative disparagement article. He now faces five years in a penal colony.
At first Vladimir Latypov, a businessman from Kemerovo, was fined several times after he repeatedly displayed a sign protesting the war. Now he faces criminal charges.
The very first day of the war, Vladislav Nikitenko, an activist from the Far Eastern city of Blagoveshchensk, filed complaints with all the local offices of Russia’s Investigative Committee and the Russian Federation’s Prosecutor General against Vladimir Putin and the members of Russia’s Security Council for unleashing war in Ukraine. In March, he was fined for submitting a petition to the police demanding that charges be brought against the governor of Amur Oblast for his support of the war in Ukraine. In May, Nikitenko was arrested and given a 15-day sentence under an article banning the exhibition of extremist symbols based on a video he had posted five years earlier. He attributed his arrest to his antiwar position: “That’s why the police are looking for any nonsense in my old publications and launching cases.” He finally earned himself criminal charges after he allegedly published 10 social-media posts “disparaging” the Russian Army. He is currently under house arrest.
Details about the case facing Vladimir Yefimov, a 68-year-old journalist and head of the Yabloko Party in Kamchatka, are still unknown. He had previously been fined twice under the administrative disparagement article and now faces criminal charges and pre-trial restrictions.
In the words of Grigory Durnovo, an analyst for OVD-Info:
There is military censorship, although with certain nuances, because the ban on the word “war” is not, in the end, universal. Interviews are coming out where people call the war a war and nothing happens to them.
Meanwhile, thousands of news sources have been blocked within Russia. Major independent media outlets – Echo of Moscow, TVRain, Novaya Gazeta – either suspended operations or shut down entirely. Activists and opponents of the war are being charged with both criminal and administrative violations. The numbers are staggering. Compared with recent years, the scale of repression is unprecedented, but it still can’t be called total.
Still, the crackdown has had an effect: it has become difficult to access independent information and large-scale demonstrations have ceased, although individual acts of protest take place every day across Russia.
Compared to 1968, when across the entire country seven people came out to protest the entry of Soviet troops into Czechoslovakia, you could say that protest has been rather robust. After all, every day, in the most diverse cities, including small towns, people are expressing their position in various ways.
A summary of administrative and legislative changes designed to patch the holes and stamp out democratic movements.
Admin. Code Article 20.2
Addition of liability for “disrupting traffic” and steep increases in fine amounts.
Admin. Code Article 20.2.2
Introduction of liability for the “large-scale assembly of people” not considered a mass protest.
Introduction of “administrative arrest”
Admin. Code Articles 20.2 and 20.2.2
Addition of liability for repeat violations of public assembly regulations.
The Dadin Article
Appearance of Criminal Code Article 212.1, criminalizing three violations of Administrative Code Article 20.2 within six months
Addition of penalties for involving a minor in a protest event
Criminal Code “Public Health” Article 236
Introduction of harsher penalties for violating public health norms. Transformation from a public health provision to an anti-protest one.
Criminal Code “Transportation” Article 267
Increased penalties for “blocking transportation routes”.
Introduction of liability for violating rules on funding large-scale protests.
Introduction of liability for improperly using signs and symbols identifying the press.
Criminal Code 207.3, 280.3 Admin. Code 20.3.3
Articles penalizing persons for spreading information about the armed forces that varies with state information (the “fakes” law”), and for discrediting the army.
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