Minorities Under Siege: Hate Crimes and Intolerance in the Russian Federation

II. The Framework of Criminal and
Civil Law to Address Hate Crimes

The Russian Criminal Code, adopted in 1996 and amended in 2002, provides a legal framework for the prosecution of hate crimes, with a general provision for enhanced penalties when crimes are committed "with a motive of national, racial, religious hate or enmity…" (article 63) The article punishing incitement extends further, to bias founded upon "sex, race, nationality, language, origin, relationship to religion as well as the affiliation to any social group." Russian laws do not make express reference to animus on the basis of the victim's sexual orientation, or mental and physical disabilities, as factors to be taken into account in sentencing. No prominent cases involving hate crimes of this kind have emerged in recent years that have tested the reach of the laws on this point.

In the past year, there have been a number of high-profile hate crimes that have generated considerable attention in the Russian and international press. These included the murders of foreign students, a nine-year old girl, and an anti-racism activist – as well as the January 2006 knife attack on worshippers in a Moscow synagogue. Independent human rights activists and organizations have closely followed the investigation and prosecution of these cases, some of which are highlighted below. However, the vast majority of hate crimes generate limited press attention or official information, making the independent monitoring of the investigation and prosecution of most such cases difficult.

Criminal Code Provisions on Violent Crime with Qualifying Bias Motives

Article 63 of the Criminal Code is a general sentencing provision that identifies aggravating circumstances that give rise to more serious penalties, including under part (1)(f) "a motive of national, racial, religious hate or enmity…" in the commission of crimes. It does not set out the scope of these enhanced penalties. While article 63 would appear to provide a basis for enhanced penalties for bias attacks charged as common crime, including hooliganism (article 213 of the Code), a charge often brought for common assault, there is no evidence that prosecutors regularly seek or that courts hand down enhanced penalties under this part of article 63.

In one rare case – the October 2005 murder of a Peruvian student in the city of Voronezh – article 63 was cited in the charges.

On October 9, 2005, in Voronezh, Enrique Hurtado, a Peruvian student, and two students from Spain, were attacked by a group of 15 to 20 youths who beat them with metal poles and wooden stakes. Hurtado died as a result of his wounds and the two others suffered various injuries. Thirteen young men have been charged – one with murder motivated by "national, racial, religious hatred or enmity" and with hooliganism; three with robbery and with hooliganism; the others with hooliganism. Article 63(1)(f) has been cited in the charges. The court hearings began on March 9, 2006.[3]  

Other provisions of the Criminal Code provide for more severe, specific penalties when bias motivation is shown in particular crimes. Article 105 punishes murder with incarceration for from six to fifteen years. Article 105(2)(k) defines murder "with a motive of national, racial, religious hatred or enmity" as punishable "by incarceration for eight to twelve years, or by a life term of incarceration or by the death penalty."

A 13-year prison sentence for attempted murder, with a citation to article 105(2)(k), was recently handed down in the case of the January 2006 Moscow synagogue stabbings.

On January 11, 2006, Alexander Koptsev entered a Moscow synagogue shouting antisemitic epithets and attacked worshippers during evening prayer, leaving eight people seriously injured. He was subsequently detained and charged with attempted murder with a motive of national, racial, religious hatred or enmity (articles 30(3) together with 105(2)(a) and (k)), deliberate infliction of grievous bodily harm (article 111), and with inciting hatred (article 282). On March 27, 2006, a judge found Kopstev guilty of the first two charges, but acquitted him of inciting hatred. He was sentenced to 13 years in prison. [4]

Hate crimes also include attacks on those who speak out for the victims of racist violence and religious intolerance, with two murders in St. Petersburg having had particular resonance. The June 2004 murder of Nikolai Girenko, Russia's leading expert on ethnology and an expert witness in hate crimes cases, is still unresolved. In contrast, the November 2005 stabbing death of Timur Kacharava, a young man whose anti-racist activism took the form of music and non-violent protest, has led to arrests with charges pending. In both cases, the attacks appeared to be in direct retaliation for the victims' efforts to expose and confront racist violence: Girenko through his work within the criminal justice system, and Kacharava through his anti-racist activism. In light of an increasing number of attacks against critics of racist violence carried out by members of extreme nationalist and neo-Nazi groups, it is important that prosecutors take into account that attacks in retaliation for work to oppose racism and discrimination are also hate crimes motivated by racist and other discriminatory animus.

On June 19, 2004, Nikolai Girenko, a prominent ethnologist and expert on extremism and racist incitement in Russia, was shot dead at the door of his St. Petersburg apartment. Girenko was the head of the Minority Rights Commission at the St. Petersburg Scientific Union and had been called on as an expert in numerous court cases involving extremist groups. St. Petersburg authorities originally maintained that Girenko's killing may have been an act of "ordinary hooliganism," although it is widely believed that he was murdered in retaliation for his work. The governor of St. Petersburg said at the time that she had taken personal control of the investigation and that a significant number of law enforcement officers were deployed in the investigation immediately following the murder, yet for nearly two years nobody was arrested or charged. In late May 2006, police arrested five persons in connection with the April 2006 murder of African student Lampsar Samba. The St. Petersburg chief prosecutor Sergei Zaitsev said that these five are being investigated in connection with a number of high profile racist assaults, including Girenko's murder.[5]

On November 13, 2005, 20-year old student, musician, and anti-racist activist Timur Kacharava was attacked by a group of some ten young people and stabbed five times in the neck. He died shortly thereafter. A companion was also stabbed and seriously wounded. Kacharava was well known for his activism and took part in a number of actions aimed at combating xenophobia in Russia as well as support for the homeless. It is widely believed that he was targeted for this work. The St. Petersburg prosecutor's office initially acknowledged that the murder was possibly motivated by Kacharava's active involvement in activity to oppose the racist violence of neo-Nazi groups.[6] The preliminary charges brought in December 2005 against those detained in connection with his murder were under article 105(2)(a)(g) and (i) – murder by a group with a motive of hooliganism. The investigation is still underway and the case is expected to go to trial later in 2006.[7]

Other provisions of the Criminal Code that could be applied to violent hate crimes but are rarely cited by prosecutors include article 111 (Deliberate infliction of grievous bodily harm), article 112 (Deliberate infliction of moderate bodily harm), and article 117 (Torture), defined as "the causing of physical or psychological suffering through systematic beatings or other violent actions…" Higher penalties are established for each of these crimes when committed "with a motive of national, racial, religious hatred or enmity."[8]

The Criminal Code also provides in article 244 for more severe punishment for the desecration of cemeteries when motivated by racist or religious animus. While desecration of human remains or places of burial without the aggravating factor can be punished with up to three months imprisonment, prosecution as a hate crime can result in up to three years imprisonment.[9] No available data on the application of these norms is available.

Russian NGOs have reported that prosecutions under the special hate crimes provisions of the Criminal Code are on the rise, but still remain all too infrequent. There appears to be a strong tendency among law enforcement officers to downplay any bias motives of a crime, although this approach appears to be changing slowly. Proper training in dealing with racist violence could contribute to a more systematic application of hate crimes legislation. In its Third Report on the Russian Federation, the European Commission against Racism and Intolerance (ECRI) "recommends that the Russian authorities considerably strengthen their efforts to train police, prosecutors, judges, and judicial candidates on issues pertaining to the implementation of legislation concerning racist offenses."[10]

Other articles of the Criminal Code that deal with violent acts, such as article 115 (Deliberate infliction of mild bodily harm), article 116 (Assault), article 119 (Threatening murder or the deliberate infliction of grievous bodily harm), article 212 (Mass disturbances), and article 213 (Hooliganism), do not include express provisions to punish discriminatory bias as an aggravating circumstance. In practice, however, such bias has been a element of such crimes.[11]

Prosecutors often bring charges of hooliganism, defined in article 213 as the "gross violation of social order, expressed in clear disrespect for society, committed with the use of weapons or objects used as weapons," when arrests are made after racist attacks perpetrated by skinheads and members of other extremist groups. Some articles on violent assault, including murder, contain clauses dealing with "a motive of hooliganism," which is also commonly cited by prosecutors in such cases. However, unlike the Criminal Code provisions for the more serious crimes of murder or actual bodily harm, article 213 does not include a clause to enhance the punishment if an act of hooliganism is motivated by "national, racial, religious hatred or enmity."

There is a general perception by Russian human rights monitors and other sectors of the public that charges of hooliganism are routinely pressed by prosecution authorities as an alternative to more serious charges even when more serious bodily harm occurs. The March 2006 case of the murder of nine-year old Khursheda Sultonova was a recent such example.     

On February 9, 2004, Yusuf Sultonov, an ethnic Tajik, was returning home following a walk with his nine-year old daughter, Khursheda, and his nephew, Alabir. They were attacked by a group of teenagers armed with knives and shouting "Russia for Russians." Khursheda died shortly after the attack, having received 11 knife wounds. In connection with this attack, eight young men, four of them minors, were detained and charged with hooliganism (article 213). One of the eight was charged additionally with murder motivated by ethnic hatred (article 105(2)(k)). On March 22, 2006, a jury found seven of the defendants guilty of the hooliganism charges. The defendant charged with murder, who was among those found guilty of hooliganism, was acquitted of the murder charge. He was sentenced for hooliganism to a prison term of 5.5 years (the maximum for acts of hooliganism committed by a group being 7 years). The other defendants were sentenced to prison terms of between 18 months and 3 years. The prosecution has filed an appeal.[12]

The verdict in the trial of the killers of Khursheda Sultonov did not reflect the racist nature of the attack, nor did prosecutors request higher penalties under article 63(1)(f) that would have reflected the exceptional nature of the crime. The application of article 63 in this case would have accomplished both of those goals.

Criminal Code Article 282 - Incitement

Article 282. Inciting hatred or enmity, as well as demeaning human dignity

1. Actions, designed to incite hate or enmity as well as demean the dignity of a person or group of persons on the basis of sex, race, nationality, language, origin, relationship to religion as well as the affiliation to any social group, committed publicly or with the use of the mass media - are punishable by a fine in the amount of one hundred to three hundred thousand rubles or in the amount of the salary or other income of the perpetrator of one to two years, or in the loss of the right to occupy certain positions or engage in certain activities for a period of up to three years, or by mandatory work for a period of up to one hundred eighty hours, or by corrective work for a period up to one year, or by incarceration for a period of up to two years.

2. The same actions, committed:

a. with the use of violence or with the threat to use it

b. by a person using his/her official position

c. by an organized group

are publishable by a fine in the amount of one hundred to five hundred thousand rubles or in the amount of a salary or other income of the perpetrator for the period of one to three years, or by the loss of right to occupy certain positions or engage in certain activities for a period of up to five years or by mandatory work for the period of one hundred twenty to two hundred forty hours, or by corrective labor for a period of one to two years, or by incarceration for a period of up to five years.

Although article 282(2), on incitement, has been invoked in the prosecution of violent crimes motivated by hatred, this provision is more generally associated with "hate propaganda," such as verbal and written attacks in publications or in public statements. In some recent cases, charges have been brought under article 282(2) that might more appropriately have been prosecuted under Criminal Code provisions dealing with common crimes of violence with a bias motivation.

In December 2005, two St. Petersburg courts handed down sentences against members of neo-Nazi groups, Schultz-88 and Mad Crowd.

Ending a trial which lasted over two years, on December 9, 2005 a St. Petersburg court sentenced Dmitry Bobrov, the leader of a neo-Nazi group called Schultz-88, to six years imprisonment for violation of several articles of the Criminal Code, including article 282 on inciting hatred with the use of violence. Three other members of the group were given three-year suspended sentences and one person, a minor, was acquitted. Their crimes included attacks on a McDonald's restaurant, an assault on an Azeri man, an attack on two Chinese students, and two attacks against ethnic Armenians.[13] A few days later, on December 14, another St. Petersburg court sentenced five members of a neo-Nazi group calling itself Mad Crowd to sentences ranging from one year suspended to three years imprisonment for violation of article 282 on incitement. They were tried in connection with assaulting citizens of Armenia, Azerbaijan, and China in 2003.[14]

Incitement laws are applied infrequently as a tool to combat the regular stream of spoken and written attacks against Russia's minorities.[15] When charges have been initiated, investigations have often been long – in some cases so long that they then have to be dropped due to a two-year statute of limitations – and penalties handed down have generally been either suspended sentences or minor punishments. Administrative sanctions – through the issuance of warnings that can eventually lead to the closure of extremist organizations or publications – were pursued by prosecutors and government bodies in about a dozen cases in 2005.[16]

More often than not, however, no action is taken by prosecutors – or by political leaders in the form of condemnation – to stem the tide of verbal threats and physical attacks. Many prosecutors and law enforcement officials may have little appreciation for the larger societal importance of investigating and prosecuting hate crimes and related incitement as such, in the absence of firm and consistent signals to do so from the country's political leaders. Strong direction is required from the highest levels if police and prosecutors are to combat hate crimes as a priority using the laws in place, and if law enforcement officials are to be provided the resources they need to do so. In its Third Report on the Russian Federation, ECRI recommends that the Russian authorities "undertake special efforts to improve the methods of recording, classifying, investigating and prosecuting complaints of racist offense" and "monitor the implementation of criminal law provisions aimed at combating racist offenses in a more thorough and detailed manner."[17]

Despite apparent foot-dragging in addressing organized extreme nationalist and neo-Nazi violence, prosecutors have found the "political will" to move forward with incitement charges against a number of well-known non-violent critics of government human rights policies and practices. Ironically, a well-known independent human rights leader associated with the Andrei Sakharov Museum and Public Center in Moscow was among the relatively few prosecuted under the criminal law provision punishing incitement to religious, ethnic, or racial intolerance.

On March 28, 2005, a Moscow judge found Sakharov Museum director Yuri Samodurov and Ludmila Vasilovskaya, organizers of an exhibition there entitled "Caution, religion!" guilty of inciting religious hatred under article 282(2). They were each sentenced to pay a fine of 100,000 Russian rubles. Anna Mikhailchuk, an artist whose work was exhibited in the show, was acquitted. Prosecutors had asked that Samadurov be sentenced to three years imprisonment and that Vasilovskaya and Mikhailchuk be sentenced to two years imprisonment.[18] Lawyers for the defendants have appealed to the European Court of Human Rights in Strasbourg. The charges were brought after a group of young men dressed in black, acolytes from the Russian Orthodox Church of St. Nicholas in Pyzhi, attacked the exhibit on January 18, 2003, destroying art works and painting slogans charging blasphemy on the part of the exhibitors. The show included painting and other art examining – and parodying – the intersection of religion with commercial interests, corruption, politics, and popular culture. A Moscow court declined to proceed with charges of hooliganism brought against the attackers on the grounds that the exhibition had provoked their actions. The Sakharov Museum is a major human rights forum and has previously been criticized for such events as exhibitions concerning the human cost of the conflict in Chechnya.

Organizations that have undertaken monitoring and reporting of human rights abuses related to the conflict in Chechnya have also been targeted under criminal law articles punishing incitement of religious, ethnic, or racial hatred. They include the head of the Russian-Chechen Friendship Society (RCFS), who was prosecuted for articles published in the organization's newspaper.

On February 3, 2006, a court in Nizhny Novgorod found Stanislav Dmitrievsky, the managing director of the Russian-Chechen Friendship Society (RCFS) and editor of the newspaper Pravozaschita (Human Rights Defense), guilty of violating article 282(2)(b). He was sentenced to four years probation and given a two-year suspended prison sentence. He also faces potential additional restrictions that could limit his ability to change his place of residence, move within Russia, or leave the country during this time. Furthermore, under the law regulating NGOs in force since January 10, 2006, Dmitrievsky will no longer be allowed to manage the activities of the RCFS or to serve as editor-in-chief of Pravozaschita. On April 11, 2006 a higher court rejected his appeal. The criminal case, begun in September 2005, was based on two articles published in Pravozaschita in early 2004. The first was written by now-deceased separatist leader Aslan Maskhadov who, in the article, appealed to the European Parliament to classify the conflict in Chechnya as "genocide." The second was written by Akhmed Zakaev who encouraged the Russian public not to vote for President Putin during his re-election campaign. Prominent Russian and international human rights organizations regard the prosecution as politically motivated and consider that the verdict against Dmitriesvky is unlawful and aimed at suppressing freedom of speech in Russia. [19]

The verdicts in both of these cases have been challenged by local and international human rights groups and by Russia's official human rights institutions. On January 31, 2006, Vladimir Lukin, the Russian Human Rights Ombudsman, and Ella Pamfilova, the head of the Presidential Council on Developing Civil Society Institutions and Human Rights, sent a joint letter to the General Prosecutor, the Chairman of the Supreme Court and the Minister of Justice criticizing the use of counter-extremism legislation in the Sakharov Museum and RCFS cases.[20]

Related Laws on Combating Extremism

A new Law on Countering Extremism went into effect in August 2002. It defines "extremist activity" broadly to include violent actions against the state; any actions aimed at inciting national, racial, religious and social enmity in connection with violence or threats of violence; humiliation of national dignity; vandalism and mass disorders; propaganda of the exclusivity, superiority or inferiority of people on the ground of their social, racial, religious, national and linguistic group; propaganda and public demonstration of Nazi or similar symbols. The courts can suspend broadcasts or the distribution of printed materials by those facing charges of extremism during legal proceedings, and the Ministry of the Interior is required to maintain a list of banned materials. Under this law, nongovernmental organizations can also be suspended without a court decision and both NGOs and media outlets can be closed with relative ease.

Human rights defenders have criticized the 2002 law on the grounds that the broad definition of extremism could be applied at the discretion of prosecutors to restrict the actions of many lawful and nonviolent organizations, including the human rights organizations that take the lead in reporting on situations of racist and extremist violence – and even to shut them down entirely.

On the basis of an alleged violation of the Law on Countering Extremist Activities , the Moscow prosecutor's office issued a warning against the human rights organization Memorial on February 26, 2006. Memorial had posted on its website the analysis by an Islamic religious leader of four brochures of the banned Islamic organization Hizb-ut Tahrir. Memorial had commissioned the analysis in connection with its monitoring of dozens of criminal cases in which persons were accused of keeping, studying, or distributing materials of the Hizb-ut Tahrir. Memorial had noted that no religious expertise was drawn upon in any of the trials and thus commissioned a study of the brochures in question by a recognized expert. The study found that there was nothing in the brochures which incited violence or hatred.[21]

In July 2004, the prosecutor's office in Ingushetia brought a civil action against the Chechen Committee for National Salvation (CCNS) for violating the law "On Countering Extremist Activities." The primary goal of the organization is to distribute information about the human rights situation in the context of the second Chechen war, which began in 1999. Since then, the organization has put out a number of press releases and statements that describe serious human rights abuses committed by Russian government forces in the region. On October 25, the Nazran court found that CCNS had not violated the law and dismissed the case against the organization. The prosecutor's office appealed to the Supreme Court of Ingushetia. On February 10, the Supreme Court overturned the lower court's decision. On April 27, 2005, the CCNS was scheduled to begin a new set of hearings at the Nazran court. Following a series of postponements, the case was to go to trial on April 11, 2006.[22]

In January 2006, the Committee of the Russian State Duma on Civil, Criminal, Arbitrage and Procedural Legislation, chaired by Pavel Krasheninnikov, proposed changes and amendments to the 2002 Law on Countering Extremist Activities. Although it is still early in the legislative process to reach any definitive conclusions on this effort, independent experts have noted that the draft proposals do not address the main shortcoming in the law, namely the broad definition of "extremism." The draft proposals largely seek to toughen some of the sanctions, a move which has been criticized by independent experts on the grounds that the law in its current form has been used infrequently and few of the sentences handed down resulted in the maximum possible punishments. [23]

On May 16, the Committee of the State Duma on Security conducted a roundtable regarding legislation on countering extremism. Some participants echoed the need to toughen punishments for extremist activity. Also discussed was a proposal to amend article 213 (Hooliganism) to include increased penalties for acts of hooliganism committed with a racist motive – an initiative that could, if implemented, provide an important new tool to combat violent bias crimes in Russia.[24]