Hate Speech, Indecency / Obscenity
Pussy Riot v. Russia
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The Kurgan Regional Court in Russia upheld a decision to acquit a former imam, Mr. Ali Yakupov, of charges of inciting hatred towards “Chinese communists.” The Prosecutor General alleged that, in November 2015, Mr. Yakupov left a comment on social media under a story about the prohibition on wearing hijabs in China in which he stated that Chinese communists would receive “divine punishment” for the prohibition. The Prosecutor General charged Mr. Yakupov with incitement of hatred toward a social group. Several courts acquitted Mr. Yakupov on the grounds that (i) calling on God to act could not be considered incitement, and (ii) the Prosecutor had failed to provide sufficient evidence of incitement to hatred or enmity.
Global FoE could not identify official legal and government records on the case and information on the case was derived from secondary sources. Global FoE notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.
On November 5, 2015, Ali Yakupov, a former imam, allegedly left a comment under a story published on VKontakte, Russia’s Facebook equivalent, about the prohibition on wearing hijabs in China. The comment predicted that divine punishment shall befall “Chinese communists” for imposing the hijab prohibition.
In January 2016, law enforcement searched Mr. Yakupov’s apartment, and confiscated his computer and several books. Some of these books were on the federal registry of banned extremist materials in Russia.
On January 19, 2016, Mr. Yakupov was charged with incitement of hatred or enmity, as well as abasement of dignity of a person or a group of persons, on the basis of their belonging to a social group (Article 282(1) of the Russian Criminal Code). According to Russian law enforcement, Mr. Yakupov incited hatred and enmity against the “Chinese Communists,” which was a social group.
Mr. Yakupov denied that he wrote the comment, and blamed unknown hackers for it.
On November 22, 2016, the Kurgan Prosecutor’s office submitted the case against Mr. Yakupov to court. The trial began in January 2017. As evidence, the Prosecutor provided testimony from the head of regional office of the Communist Party of Russia, Mr. Vasiliy Kislitsyn, who agreed that Mr. Yakupov’s comment incited hatred.
On April 25, 2017, the Kurgan City Court acquitted Mr. Yakupov. The City Court explained that “God is not a civic entity, and appeal to him can’t be considered a call for acts of enmity.” The Prosecutor appealed the decision.
On Jun 22, 2017, the Kurgan Regional Court reversed the decision to acquit and sent the case to the Kurgan City Court for re-trail. On November 27, 2017, the Kurgan City Court once again acquitted Mr. Yakupov. The City Court explained that some witnesses for the prosecution showed bias against Mr. Yakupov and, therefore, their testimonies could not be considered credible. Additionally, the Prosecutor did not offer evidence that Mr. Yakupov shared extremist or nationalistic views. Lastly, the City Court found that expert witnesses for the prosecution did not possess the necessary credentials to comment on the case at hand.
The Prosecutor once again appealed the decision. In its appeal, the Prosecutor’s office requested that the Regional Court to order a linguistic analysis of Mr. Yakupov’s alleged comment to determine whether it contained elements of extremism. On January 30, 2018, the Court rejected the request, finding that all needed analyses of the comment had been conducted at the first instance trial. Thus, the Kurgan Regional Court upheld the decision to acquit Mr. Yakupov.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression to the extent that it recognizes that the burden was on the State to demonstrate that a statement actually amounted to incitement to hatred or violence. The UN Human Rights Committee has stated that “[w]hen a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.” (General Comment 34, para. 35) In this case, the Prosecutor had failed to demonstrate that there had been any public incitement caused by the statement. Nonetheless, this approach is not always adopted by the Russian courts in cases concerning alleged incitement or extremism (see, for example, LLC SIBFM v. Roskomnadzor). Furthermore, the law that was applied in this case (Article 282(1) of the Russian Criminal Code) remains vague and imprecise, and is open to being arbitrarily abused by Russian law enforcement.
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