1 June 2022
an interview with Aleksandr Baeva, a lawyer with OVD-Info
Since the end of February, more than 16,000 people have been detained for anti-war protests. Freedom of assembly in Russia has been more difficult since 2004, when the law on rallies was introduced, which obliges protesters to co-ordinate public events with authorities. The law was tightened in 2012, greatly increasing the risks for protesters. Since the start of the war, a new package of repressive laws has appeared, the main ones regarding discrediting the Armed Forces of the Russian Federation and spreading fake news. Taking advantage of the breadth of these concepts, the police act unpredictably and the courts make absurd decisions. Is it possible to at least partially protect yourself from prosecution? What has the practice been in the three months since the start of the war? We asked Alexandra Baeva, an OVD-Info lawyer.
Does any possibility remain for legal expressions of one’s political stance in today’s Russia?
I cannot give guidance on how to live in Russia and not go to jail. You should not think that if you do not take certain actions, then everything will be fine – this is fantastical thinking. The danger in the system lies everywhere. You may face harassment for your anti-war stance, or you may be slapped with a criminal offence after having drugs planted on you in the street. Every Russian runs the risk of going to jail or having a chat with the powers that be, whether you participate in the political life of your country or remain on the sidelines.
Since the beginning of the war, freedom of speech and freedom of expression have suffered further. On March 4, a package of repressive legal articles have been added to the Russian Criminal Code, increasing the risks for those who express their stance: Article 20.3.3 of the Russian Code of Adminisrative Offences on discrediting the Armed Forces of the Russian Federation also has its equivalent in the Russian Criminal Code. There is also an article for calling for sanctions – it is found in both codes (Article 20.3.4 of the Code of Administrative Offences and 284.2 of the Criminal Code). So far, I can’t think of any clear cases of the latter’s use; apparently it is waiting in the wings. The article on dissemination of false information (207.3) is only found in the Criminal Code.
Articles of the administrative and criminal codes regarding discrediting and spreading fake news started being used immediately after their adoption. They are formulated as broadly as possible, and lawyers have questions about absolutely every word of them. The main principle of law is the principle of legal certainty. There is an action that we classify as an offence, and there are certain penalties that provide for this. For example, murder: people understand that if a person kills another person, certain penalties will follow. But what does a person have to do for authorities to consider it ‘discrediting,’ and classify it as either an administrative or criminal offence? This is unclear. What is public action? Unclear. I would interpret this as any action outside the space of your head.
What is discrediting the Russian army? What do they mean by this notion?
It is also unclear. The word is found in the legislation, but there is no clear definition or commentary on the relevant articles of the Criminal Code. After a hearing in the DOXA editors’ trial, a girl laid flowers, tied with a yellow and blue ribbon. This was also found to be discrediting the Russian Armed Forces. The media wrote about a case where a woman was detained for having her nails manicured in the colours of the Ukrainian flag. Posts and words on the Internet are also actively prosecuted. A poster with the inscription “fascism will not pass” held by one of the detainees was considered by the police as discrediting the Armed Forces. Moreover, the court copied the same wording into its judgment, i.e. she was found guilty. This is a kind of surrealism that lawyers could not have imagined before 24 February.
Because of this, it is difficult to draw conclusions about what can be done and what should not. We try to put an unlawful situation into legal terms. But in reality the police and, unfortunately, the courts are guided by other ideas of law. In a placard with eight stars the police saw the phrase ‘no to war’ [Нет войне]. The man who had been holding it was found guilty of discrediting the Armed Forces. Although, in fact, the court should not second-guess the man’s actions.
Is the only safe strategy is to do nothing?
Not speaking out can also have consequences. Teachers who are given instructions can be punished for talking about the war. People who are threatened with losing their jobs come to OVD-Info for help.
Basically, it’s Russian roulette: some people go to the rallies and nothing happens to them, while others go to one and find themselves immediately facing criminal charges. And even people who simply walked past these protests find themselves being prosecuted. In a sense, the risk of a random passerby is even greater, because they are not expecting to be arrested. People who go to the rallies at least read the guidelines on how to conduct themselves and know the number of OVD-Info.
What does the level of danger of a particular statement depend on?
There are particular things that increase the level of risk. If a person goes out to a protest rally, he can be prosecuted as a participant in an unsanctioned assembly, as a person who discredits the Armed Forces, or for disobeying the demands of a police officer. If a person goes out to hold a solitary picket, writes posts with hashtags – this adds to the risks. If a person has a large audience on the Web, it adds to the risks. There is a case where a man asked a child to rip the letter Z from a car, and because of the child he was arrested. But before that, there were many instances where nothing happened to people who did the same thing.
The risks also increase when the action becomes popular on social media. For example, during the ‘Bucha-Moscow’ protest, when a man lay down on the road with his hands tied behind his back, no one detained him. They came to him later, when the protest had become better known online. Calculating the likelihood as to whether they will come and arrest you or not is difficult.
The new legislation also has an impact on freedom of speech online. According to our legislation, it’s an ongoing offence. That is say, if I wrote a post before 24 February that became illegal after that date, it doesn’t mean they won’t come and arrest me three months later.
If we were to rank ways of engaging in political activity from most to least dangerous, what would the distribution look like?
We have more work to do with freedom of assembly―when people physically go out to protest; we’ve totted up over 16,000 administrative cases underway as of now. On the other hand, there aren’t so many being brought for posting against the war on the internet: we’ve seen just shy of 2,000 charge sheets under the new Article 20.3.3. But if there were no protest activity on the streets, the number of prosecutions for internet posts would most likely grow and overtake the number of charge sheets for participation in rallies.
Solitary picketing is even more risky, because you’re on your own and you’re visible straightaway. But it does depend on where you’re standing. The risk is greater in Red Square, not so great in the Metro. It also depends on the size of the city―the risks are greater in the big cities. If there’s not a lot of protest activity in your town, the police don’t always know what to do with picketers.
Is it possible for us to know exactly when an offence will give rise to liability under which code―administrative or criminal?
A person who, in the course of a year, is twice cited under the administrative Article on defamation (‘discreditation’, 20.3.3 of the Code of Administrative Offences) will become liable to a criminal charge. There’s a second variation on this theme, namely if the action is of a ‘socially dangerous character’. And what that is, is highly subjective. It’s usually taken to mean actions resulting in death. For example: a person smokes a cigarette in a no smoking zone. That’s one offence. But if the cigarette falls and starts a fire, and people are killed or property is damaged, that might be classified as a criminal matter. The police then have to classify the action: is it of a ‘dangerous character’?
The case of Sasha Skochilenko is interesting in this regard. In itself, what she did with the price tags was not socially dangerous. It didn’t lead to the closure of the shop or to any damage to property. No one died of a heart attack. Why did the police classify it as a criminal offence? Why did they choose to hold her on remand before her trial? A question that arises in the minds of lawyers. The principle of legal certainty has been absolutely disregarded.
We don’t understand how the police choose which article to proceed under. For example, there’s a whole selection available for a person attending a meeting. There’s violating the procedures laid down for the conduct of the meeting (Article 20.2 of the Code of Administrative Offences and various of its clauses). Or refusing to comply with the lawful request of a police officer (Article 19.3 of the Code of Administrative Offences). Or you might be charged under either federal or local laws on covid restrictions, although we no longer have any covid restrictions of any kind. Or they might opt for the Article on ‘hooliganism’ (Article 20.1 of the Code of Administrative Offences), and put on the charge sheet that the person was swearing in public. The courts won’t turn that away.
There’s a problem with Articles that have administrative and criminal application, i.e. that appear in exactly the same form in both codes. The Article on ‘discreditation’ is not the first such case. There’s the so-called ‘Road Article’ (267 of the Criminal Code), not originally intended as a political Article, but it’s become one. It’s used if a person allegedly blocks the road or access to urban transport or infrastructure during a protest. The same Article, with exactly the same criteria, appears in the Administrative Code (Article 20.2 Clause 6.1 of the Code of Administrative Offences). We don’t know which one will be given to any particular detainee. That decision falls within the purview of the police department in question, the particular officer, even.
So we should be afraid of everything?
The scale of the repression is huge, the risks have increased. Last year, at rallies in support of Navalny, we counted 12,000 detainees. After our appeal, the UN Special Rapporteur on Freedom of Assembly wrote a letter to the Russian Federation asking for clarification of what had happened in January and February last year. Russia responded that everything was fine here, there was no repression: “We have simply detained 17,600 people.” So far, the number of detentions in these three months has not exceeded the figures of January and February 2021. So it certainly can’t be said that absolutely everyone is being persecuted.
There are also reverse cases — when people who go out to rallies in support of the war also find themselves being persecuted by police officers. It’s remarkable: in one police van there may be both people who are against the war and those who are in favour. Apparently, the authorities are afraid of any kind of public expression. A case in which a woman was arrested for a manicure made its way around the entire remaining Russian press. Such cases are perceived as an exception rather than as general practice. So far, it does not seem to me that for every conversation, for every iteration of the word “war”, for every attempt to express one’s opinion, a person is subjected to sanctions. We don’t have totalitarianism just yet.
Of course, there are people who cover themselves by using the Newspeak. But many do it ironically, with the opposite meaning. It’s not as bad as it might seem from abroad.
Now cases of denunciations have begun to appear, but it seems to me that the authorities want us to think that there are many individuals among the population who participate in political pressure. In fact, this is not quite true: police officers are managing this perfectly well just by themselves.
Are there any legal mechanisms left in Russia with which people can defend themselves?
Despite the fact that we will soon no longer have the European Court of Human Rights, cases can still be appealed at the national level. Yes, the courts of first and second instance are deaf to many administrative cases; they do not listen to the defence at all. But there is still the Constitutional Court, the Supreme Court — they are not yet saturated with large numbers of absurd cases. And often the courts make surprising decisions. In the case of people who are being persecuted for anti-war statements, I would not hesitate to go to higher authorities if they have the opportunity – the price for the state of appealing these cases will be higher. So things aren’t so bad yet, we aren’t back in 1937. Self-censorship is worse than censorship: if you have the courage to go to protest actions, you also need to have the courage to go to higher authorities. This sometimes plays an interesting role in Russian law and human rights.
It has been known for criminal charges brought under the new articles on discrediting and fake news to be dropped. Can it be said that imprecise wording in the law allows, on one hand, for anyone to be brought to justice, while on the other hand giving freedom to judges to make more fair decisions, relying upon this loose wording?
I don’t think that the courts know their own power. It would have cost them nothing to return all these cases in loads. Say one hundred cases came in, then all one hundred cases should be returned to the police department for revision. And they would be right to: police officers have become lazy. There are a lot of typos and breaches of procedures, the documents are crooked. The court has many non-political ways to express its position. Police officers have three months to redo these documents, and if they can’t manage that then the cases remain in the depths of the police station.
There are always a certain percentage of political cases won in courts, usually on breaches of procedure. For example, if the charge sheet shows the wrong name or date.
Now, it is bad form for a lawyer to refer to the Constitution but, despite this, there is nothing to prevent the courts from saying that bringing a person under this article violates their freedom of assembly or freedom of speech. The courts can and should do this, especially given the legal arguments with which police officers come to them. It seems to me that to consider these cases discredits the judges of the Russian Federation, and not the armed forces.
Is it just as dangerous to support political prisoners as it is to oppose the war or express one’s opinion on the political situation?
People who come to the courts to show their support for defendants are less likely to end up in a police station than those who go to protests. It is generally safe to write letters to political prisoners: I don’t remember a single instance of prosecution because of letters. If you are afraid to write a letter, then send a postcard. This will also be a huge contribution to the person’s fate. You can support the relatives of political prisoners by participating in fundraising. Those involved in the Moscow Case are collecting money for new political prisoners. You can send them money. You must take part in helping these people.
Sometimes members of the public are detained at the courts. When the guilty verdict was passed in the Network (Set) case in St Petersburg, for some reason they began to arrest those who had come to the court. Or the court bailiffs can overreact and stop photographs being taken in the corridors, although this is not prohibited by law. In that case you could be charged for the photographs under the article on failure to comply with a judge’s order (17.3 of the Code of Administrative Offences). But I don’t remember any cases where supporting activists led to any serious prosecution.
What are the main recommendations for those who live in Russia and want to express their civic position?
First of all, you need to know your rights. If a person knows the basic things, any encounter with the state can end peacefully. You need to understand how administrative paperwork and criminal paperwork are set up. What you have a right to and what you don’t. What authorities police officers have. This may sound complicated, but there are lots of resources that write about this simply. OVD-Info has a huge number of instructions that clarify all these things. You can look at the websites of other human rights organizations: Internet Freedoms, First Department, Agora International Human Rights Group and Apologia of Protest, Public Verdict, the Centre for Media Rights Defense. You can make yourself a memo and memorize the basic numbers of articles of the Constitution.
The majority of people don’t know their rights and land in trouble. For instance, police officers stop someone, and that person doesn’t know what they have a right to. The police can’t simply ask you to show your passport, they have to have specific grounds. People often show their passport, sometimes they even go along with them to the department. Or they come to search someone. You need to know that police officers are required to show authorization and have to conduct the search with witnesses and follow a specific procedure.
In this sense there is the model case of Ivan Golunov, who during the first minutes conducted himself very correctly and competently. For more than 24 hours he demanded they let him see a lawyer, refused to give testimony, told them to let him make a phone call, and asked them to wipe his hands to prove he hadn’t touched narcotics. That is, his competent behavior from the very first minutes led to the man being released and the criminal case being closed.
As a rule, these first minutes of an encounter with police officers determine the entire further strategy of the case’s movement in general: whether it will be administrative or criminal; there there will be documents there that cannot be withdrawn later. The confessions people often sign under pressure are later used in the trial like a red flag: whether or not you prove the confession was written or pressure, it’s still going to be the main argument for the trial.
If there’s been an encounter with the state, you absolutely must go to the courts, to the prosecutor’s office, to the human rights ombudsman, to the Presidential Human Rights Council, to members of the ONK [Public Oversight Commission]. You can ask municipal and local deputies to pay attention to your case. Well, and if nothing works at the national level, go to international bodies. Soon we won’t have the European Court, but there will be the UN Human Rights Committee.
One other basic recommendation: you should have an authorized representative. Someone who can come see you at the police department or special detention centre, the remand centre. If it’s someone very close to you, with comprehensive authority; if someone not very close, with legal authority. Have the telephone number of your lawyer. If it’s a criminal case, having a good lawyer at the very beginning will play an enormous role later. Keep your medical documents on you if you have a chronic disease. That is very important.