11 May 2020
By Lev Ponomarev, head of For Human Rights and a member of Moscow Helsinki Group
Article 205.2, Section 2, of the Russian Criminal Code provides for the punishment of “public justification of terrorism and the promotion of terrorism, committed by means of the internet” (up to seven years imprisonment). But it is being used more and more as an instrument of repression.
This publication is dedicated to one of the many victims of the FSB, Ivan Liubshin. On 5 March he was sentenced to five years and two months in a prison colony. A review of his appeal is due on 13 May.
On 31 October 2018, a 17-year-old anarchist from Arkhangelsk, Mikhail Zhlobitsky, blew himself up in the entrance to the local FSB headquarters. He himself died, and three FSB officers were injured. In a post on a social network before his death, Zhlobitsky explained his motive was to protest against the actions of the FSB, which, in his words, “fabricates cases and tortures people.” At that time the criminal investigation of the antifascists and anarchists in the Network case was unfolding, and stories about the torture of the defendants with electric shocks were appearing in the media [Network is recognised as a terrorist organisation; its operations are forbidden on the territory of the Russian Federation].
Zhlobitsky’s action was shocking and would inevitably elicit responses. On social networks reposts and comments from people of differing opinions appeared, and all of these came under the scrutiny of the FSB, becoming a hotbed for bringing criminal charges under Article 205.2 of the Russian Criminal Code.
Trapping “potential terrorists” on social networks continues even now, a year and a half later. To date, we know of more than a dozen criminal cases filed in connection with online discussions of the explosion that took place in 2018 at the FSB in Arkhangelsk.
Not all of these stories are well-known. Several of those charged with “justification of terrorism” were given fines or sentenced to a year in a prison colony. The most high-profile case brought under this article is the accusation of Pskov journalist, Svetlana Prokopieva for expressing on air the idea that the state itself is pushing young people towards radicalisation. For now, her case has been delayed thanks to wide publicity and support in the journalist community.
38-year-old Kaluga resident, Ivan Liubshin hasn’t had such powerful public support, although there was every reason he should have.
The case against him was brought in October 2019, a year after the explosion at Arkhangelsk FSB. He was charged with regard to two comments in which he called Zhlobitsky a hero, the man of the day, and the week. In the discussion on his page, he also responded to a comment from a stranger: “I’m not justifying terrorism, like this, of course, but…”
Ivan Liubshin was apprehended 15 October 2019 outside his home. According to his father, Viktor Liubshin, FSB operatives stuffed him into a minibus, drove him out to a strip of woods, and beat him while applying a taser, after which they handed him over to the investigative committee. On 16 October a court medical expert documented numerous hematomas and contusions on his body. Although the expert tried to minimize the damage to Liubshin’s health in his conclusion, photographs testify to the extremely cruel treatment of the detainee at the hands of law enforcement. However, the investigative committee refused to initiate proceedings on the beating.
While waiting for trial, Liubshin was at first kept under house arrest, and later was released on his own recognizance. The investigation was completed at the beginning of March 2020 and turned over to the court.
On the evening of 4 March 2020, I received a letter from Ivan Liubshin:
“My first hearing was set for today, 4 March 2020, by the Second Western Regional Military Court. The hearings were supposed to have taken place in the location of the court, in Moscow. However, an out-of-town hearing was set for Kaluga, in the building of the Kaluga garrison military court. In such situations, three military judges are brought into the site where the court is held. At first glance, it might appear to have been an accommodating gesture on the part of the court, but one must remember: the system doesn’t do anything just like that, and the transfer of a high-profile case from the capital to a province is like holding an opposition demonstration in Biriulevo [a Moscow suburb – translator’s note] rather than on Sakharov Avenue: few journalists or public figures are going to go out into such a backwoods.
“This is bad news. My lawyer cannot travel to Kaluga for the hearing.
“We’d made plans for my new attorney to file a request for a deferral of the hearing until 14 March for the purpose of her familiarizing herself with the case material. She arrived in Kaluga for the first time on 4 March, my father met her at the railway station, and they concluded an agreement for my legal representation. I couldn’t go to court, since I’d been staying home under doctor’s orders from 1 March, and I had a doctor’s appointment for 4 March. And so I haven’t even seen the new attorney yet.
“While in court, the lawyer filed the request for deferral to familiarize herself with the case, and also handed over a certificate on the state of my health which she’d received from my father. However, the judge, Grinyov, pointed out the absence of a medical conclusion from a physician that I was not fit to attend the hearing. I was given no such documentation at the polyclinic, since it is only granted at the court’s behest. The therapist gave me a certificate on the fact that I was undergoing treatment at that office, and extended my sick leave.
“The State Prosecutor requested a deferral of the session to March 14 and my appearance; my defence counsel also requested a postponement of the hearing, but without my personal appearance. After conferring, the court decided to postpone the hearing to the next day, March 5, 2020, at 10 a.m. As it turned out, the court made an even tougher decision than the prosecutor requested.”
In refusing to adjourn the hearing, the court actually outlined its intention to speed up the punishment. This is a violation of the gravest kind: the lawyer was not given time to familiarize themselves with the case, the defence did not manage to secure the appearance of witnesses, and the equality of the prosecution and defence sides was not assured.
On 5 March, the trial was held – swift and merciless. It lasted several hours, after which Ivan Liubshin was taken into custody in the courtroom.
As always, an assessment by experts played a key role. And, as often happens, it was entrusted to specialists with little experience of forensic examination. Their conclusion: “In the publications of Ivan Liubshin there are linguistic and psychological signs of direct and implicit justification of the action of a 17-year-old young man named Mikhail …” This conclusion led to the expected outcome of the investigation: Ivan Liubshin posted information on the VKontakte social media network about the explosion “in order to create circumstances and conditions for undermining the public order established by the Constitution of the Russian Federation, federal legislation and other regulatory acts, wishing to change the worldview of citizens regarding an outright […] act of terrorism …. “
The task of proving Liubshin’s direct approval of Mikhail Zhlobitsky’s action turned out to be impossible, so prosecution experts needed to use the term “implicitly (that is, in a concealed fashion) expressed approval”.
But if an opinion is expressed implicitly, then its interpretation remains with the participants of the chat. Anyone who is widely discussed in the news can be called the person or hero of the day, of the week. And the comment “I do not justify terrorism as such, but …” is generally open to interpretation. Prosecution experts saw approval of terrorism in that ellipsis, but if you approach the matter impartially, you can also perceive in the ellipsis sympathy for young people who see no other way to be heard, and condemnation of the action of the security forces in torturing people. At the hearing, in answer to the judge’s question, “Did you have any intention of justifying terrorism?” Liubshin replied: “No, I didn’t. I can’t approve of this lad’s actions, and I have nothing to do with him. He’s a left-wing anarchist, and I hold democratic views. ”
According to the logic of the court, the approval of terrorism was implicit, but the punishment for it is real. The defence ordered a review of the examination, which played a key role in the prosecution, by D.V.Dubrovsky, a specialist in the field of hate speech and hate crimes with 15 years of experience, and O.N. Bogoliubova, a PhD in psychology. After analyzing the scientific credentials of those who conducted the examination, Dubrovsky noted that one of them has a zero Hirsch coefficient (an indicator of the scientific authority of the author), and the second has neither scientific publications nor a scientific degree. And both have little experience in conducting such examinations.
According to Dubrovsky and Bogoliubova, the authors of the assessment “started from the false premise that textual practice on the Internet is equivalent to such formats of language activity as, for example, writing a book or an article…” while “communication on the Internet is closer to actual speech, so that it may be more spontaneous and less self- aware than carefully deliberated verbal usage. “
The court failed to recognise the important factor of Ivan Lubshin’s state of health. The court did not give due consideration to his chronic illness, moderate bronchial asthma, although it is on the “list of diseases which should prevent him from serving his sentence in custody”.
Let’s think about it: so why was the user of the VKontakte network sentenced to five years in prison? For calling for the carrying out of terrorist acts? For calling for violence? No, not even our court, the most humane in the world, did not read this into his words. There are just a few careless comments posted on Lubshin’s page which had already been deleted by him at the time of the initiation of the prosecution. What danger to society are posed by these comments and by Ivan Lubshin himself? In view of the limited readership exposed to Lubshin’s Internet posts, they are of little public significance. Even less are they “undermining public order as established by the Constitution of the Russian Federation,” as written in the conclusion of the investigation.
Using this as an example, what conclusion can we draw about Article 205.2 of the Criminal Code of the Russian Federation and its enforcement? In a police state where law enforcement officers are gaining more and more powers, this article has become another tool of repression. It is convenient to use it as a “deterrent” against oppositionists, and this is happening more and more often. In their use of it, the courts are destroying the lives of young people whose worldview is either at odds with the conventional one, or which has not yet been formed. It allows the security forces to easily earn approval for “the disclosure of crimes.” And, by flagrantly violating human rights, this increases the atmosphere of fear in the country.
As the expert Dubrovsky correctly noted in his review, communication on the internet has its own peculiarities. Most of all, it resembles everyday conversation. Such conversation may include, for example, the phrase, “I could kill him!” but no one would think that it was an incitement to murder or an endorsement of violence.
The task of civil society is to achieve radical change in the wording of Article 205.2 of the Criminal Code of the Russian Federation. And until this happens, we need to see a change in law enforcement practice which, as we can see, primarily depends on the quality of expert assessments. Only high-level experts specializing in this field should be allowed to give evidence in cases concerning articles of the Criminal Code that deal with the accusation of justifying terrorism.