4 May 2021
by Aleksandr Verkhovsky is the director of the information-analytical Sova Centre. He is a member of the Human Rights Council of the Russian President, and laureate of the Moscow Helsinki Group.
The Prosecutor’s Office brings more charges to make the case appear ‘more serious’
Aleksei Navalny’s lawyers discovered something unexpected in the documents relating to the lawsuit to outlaw the organisations of Navalny’ supporters: as early as 4 February, criminal cases were opened against Navalny himself, against the director of the Anti-Corruption Foundation (FBK) Ivan Zhdanov, and against the (now former) head of Navalny’s headquarters, Leonid Volkov. These cite Article 239.1 of the Criminal Code, which relates to the creation and / or leadership of an institution whose activities include violence against citizens or causing other forms of harm to their health.
In the initial reaction to this news, Article 239 was dubbed ‘anti-sectarian’ and surprise was expressed that such a strange accusation had been made against a political opposition.
The same article, but with a different title
Formally, this article of the Criminal Code is not ‘anti-sectarian,’ just as the word ‘sect’ is itself absent from Russian law. The word is, of course, used in political jargon, and many people have probably heard the members of Navalny’s team being accused of ‘political sectarianism’ — whatever that means — but that is not what this is about.
The colloquial name for Article 239 of the Criminal Code is not accidental. Both in its origin and in the way in which it is applied in practice, this article relates specifically to those who should be precisely defined as new religious movements and who are popularly called ‘sects.’ These include any unusual religious communities, some of which do indeed represent a danger for their members.
In the Khrushchev and Brezhnev eras, Article 227 of the Criminal Code of the RSFSR officially related to such communities, and defined the crime as: ‘An encroachment on the personality and the rights of citizens under the guise of performing religious rites.’ And how many people were prosecuted for that! Hundreds of believers were sent to penal camps, ranging from the now entirely legal Pentecostals and members of the Hare Krishna movement to Jehovah’s Witnesses who then too were outlawed as extremists. The article deservedly enjoyed the reputation of a tool of ideological repression — along with the better known Articles 70 and 190.1 of the RSFSR Criminal Code — but related specifically to ‘religious people.’ For that reason, in 1991 the article was simply removed from the Criminal Code.
In the new Criminal Code, adopted in 1996, Article 239 appeared with more neutral wording: ‘Creation of a non-profit organisation that infringes upon the personality and rights of citizens.’ Indeed, there is no doubt that such dangerous organisations, whether religious or secular, do exist and that their activities should be prevented. Punishment is up to four years in prison for the leaders of such activities and up to two years for those who take part, though softer sentences may also be handed down.
In practice, the focus of the new article has again been on religious communities. For example, Vissarion and his followers are now among the accused, as is Father Sergiy (Eduard Ageev), leader of a group of ‘non-remembering‘ Orthodox believers from Pskov Region (who have broken off relations with Patriarch Kirill of Moscow). Others convicted under Article 239 last year were:
- First, the leader of the Russian cell of Aum Shinrikyo (also indicted under Articles 205.4 and 205.5 of the Criminal Code, since Aum Shinrikyo is categorised as a terrorist organisation).
- Second, the leader of the Orenburg cell of the Allya Ayat organization, known for its unusual methods of “healing” and banned for that reason in a number of Russian regions.
- Third, four individuals were convicted under Article 239.3, that is, for being ordinary members of Allya Ayat and of the Urals religious group Disciples of Christ, which practises, among other things, active exorcism.
In recent years, similar individuals have been accused under this article. These include Andrei Popov, known as ‘god Kuzya,’ Pyotr Kuznetsov, leader of the Penza Hermits, members of another ‘healing’ group called either ‘the Horde‘ or ‘the Path of the Ancestors,’ and a couple of groups practising ‘cult’ sex with minors, among others.
An important common feature of these cases – brought under the accusation of ‘violence against citizens or other harm to their health’ – is that the alleged offences were carried out not against ordinary citizens, but against members of the organisations or people who interacted with them voluntarily, for example, in order to receive some kind of ‘healing.’ This is doubtless the distinction between Article 239 and Article 282.1 of the Criminal Code, which sees an ‘extremist community’ as a group created to commit a certain kind of crime against third parties.
With regard to the case being brought to ban the FBK and others as extremist organisations, the mention of Article 239 of the Criminal Code indicates that the Prosecutor’s Office intends to prove that they harmed both others and their own members.
Faith as a disorder
It must be admitted that, although all of the religious groups listed above are fairly esoteric, the harm they allegedly inflict on their own participants can be as considerable as it is controversial. In particular, cases of psychological disorder – which might be caused by something quite other than belonging to the religious community – have been considered to fall under this heading. As was the case in Soviet times, Article 239 clearly tends to be used to criminalise things that deviate a long way from the mainstream rather than being dangerous. In 2018, for example, Article 239 was used as the basis for proceedings against the Evangelical Christian pastor Nikolai Kuznetsov, and the expert opinion upon which the court’s ruling was based said that the statements by parishioners testifying to their feelings of oneness with God could be regarded as evidence of a psychological disorder.
A new repressive mechanism
We could of course make conjectures at this point about the atypical behaviours exhibited by Navalny’s supporters that might be regarded as being so harmful for them that the organisers responsible should be criminally prosecuted. Perhaps the calls for them to attend unauthorised protests might qualify, since as we all know these protests are fraught with unpleasantness for those participating in them? Or fundraising for some kind of “beautiful Russia of the future”?
But we might as well face it – we could never outdo the imaginative flair of the Investigative Committee’s experts.
On the other hand, there is something else we should remember; Navalny and his allies are not the first to face proceedings under Article 239 of the Criminal Code in connection with political rather than religious activities. A trial is under way right now in Nazran against seven organisers of large-scale protests in Ingushetia in 2018 and 2019. This trial is similar in many points, albeit not in points of formal law, to the pending trial concerning the ban on organisations in support of Navalny; the seven are accused of organising disturbances and violence against the police and of setting up an extremist association. Proceedings have however also been brought against two of them under Article 239 of the Criminal Code. Malsag Uzhakhov, the head of the Ingush Council of Teips, is also being tried under the first part of Article 239 – the part under which Navalny is facing proceedings – although the Council of Teips was liquidated last year on the grounds of a collection of formal claims, and not on the grounds that harm had been caused to citizens or on the grounds of extremist activities.
It would of course be ill-advised to draw direct legal parallels, but it certainly looks like the political application of Article 239 is first being trialled in Ingushetia before the same is attempted in Moscow. It won’t be the first time that repressive practices are imported from the North Caucasus to other parts of the country, and so it is impossible to rule out the possibility that a new repressive mechanism is emerging. There is nevertheless still hope that its absurdity will stand in the way of its widespread use; equating political leaders with the founders of new belief systems has poor optics, even in propaganda terms.
So why are the authorities pressing ahead with this approach, at least in the case of Navalny’s supporters? Off the top of my head, here are two suggestions.
- Firstly, according to the law signed in May 2020, Article 239 of the Criminal Code is now included in the list of provisions that prohibit individuals sentenced under them from standing for election anywhere for five years after their criminal record has been cleared, or in other words for a very long time. Attempts may therefore later be made to sentence not only the leaders, but also the members of the movement under Article 239.
- Secondly, it is very difficult to identify anything in the activities of those currently awaiting a ban on the organisation that might correspond to our relatively broad legal understanding of extremism. Perhaps the ‘inciting of social discord between social groups’ against representatives of the government, the United Russia party or even the ‘crooks and thieves.’
Well aware of the weakness of its position, the public prosecutor’s office is quite simply trying to amass as long a list of grievances as possible. There can be no doubt that a court in this country of ours would have accepted a much shorter one, but it was necessary for the publicly cited grounds for a major repressive campaign to appear more substantial.
NB All links except for that to ‘Vissarion’ have been added by Rights in Russia.