The Case of Sheikh Ali Salman [Bahrain]
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The Supreme Court of Russia upheld orders from lower courts and found a standup comedian, guilty of inciting national hatred. The comedian had been sentenced to ten-days’ administrative arrest by the Tagansky Court of Moscow which had found that the statements he had made during one of his standup shows had incited hatred and enmity toward individuals of Russian nationality. The comedian had maintained that the questions had been taken out of context and had sought to ridicule xenophobia. The Court held that the Russian constitutional and legal framework permitted prohibition of speech that incited hatred, and that the lower courts had correctly adjudged the evidence in finding that the comedian had committed the administrative offense.
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
Idrak Mirzalizade is a standup comedian of Azerbaijani origin and a citizen of Belarus. According to Kommersant, in March 2021, the YouTube channel “Stand-Up Club #1” released the 32nd episode of their show “Razgony,” in which Mirzalizade was one of the participants. Addressing Russians with his jokes, he talked about the difficulties that “non-Slavic” people faced during their apartment search in Russia and his own experience of xenophobia. Mirzalizade shared that, together with his brother, he had thrown a dirty mattress left by ethnic Russians in the apartment he had started renting. The SOVA Center reports that the YouTube video of Mirzalizade was later picked up by conservative TV channel “Tsargrad,” founder of patriarchal and nationalist Russian men’s movement “Male State” Vladislav Pozdnyakov, as well as by Vladimir Solovyov, a Russian television presenter and propagandist, who insulted Mirzalizade publicly and questioned why the comedian had not yet been convicted for incitement of hatred. As Ria.ru described it, the joke in question had been about “Russians and feces,” which, according to Mirzalizade, had intended to ridicule xenophobia but had been taken out of context.. On June 23, 2021, Mirzalizade was physically attacked in Moscow, and he shared that he had become a target of frequent online abuse.
On June 28, 2021, during an online social network inspection, an employee of the Center for Countering Extremism of the Department of Internal Affairs for the Central Administrative District of Moscow detected a video of Mirzalizade’s performance, in which Mirzalizade “made statements that incited hatred, enmity toward an indefinite number of individuals united on the basis of their relation to the Russian nationality, degrading the human dignity of an indefinite number of individuals united on the same basis” [p. 2]. Subsequently, experts of the Center for Socio-Cultural Expertise, a non-profit organization, carried out a study of the detected video and determined that Mirzalizade’s statements had included “linguistic and psychological signs of humiliation of representatives of a group of individuals identified on the basis of [their] nationality […], as well as propaganda of the inferiority of a group of individuals identified on the same basis” [pp. 2-3]. On July 30, 2021, under the order of the First Deputy Prosecutor of the Central Administrative District of Moscow, the Prosecutor’s Office compiled an administrative protocol against Mirzalizade under Article 20.3.1 of the Code of Administrative Offenses (the Administrative Code).
Article 20.3.1 of the Administrative Code, titled “Incitement of Hatred or Enmity, as well as Humiliation of Human Dignity”, was put into effect by Federal Law No. 521-FZ, dated December 27, 2018, as part of the partial decriminalization of Article 282 of the Criminal Code. Art. 20.3.1 concerns actions committed publicly (including on the Internet) aimed at “inciting hatred or enmity, as well as at humiliating the dignity of a person or a group of persons on the grounds of sex, race, nationality, language, origin, attitude to religion, as well as membership in any social group […] if these actions do not contain a criminally punishable act.” The article imposes sanctions against individuals ranging from a fine of up to 20 thousand roubles to compulsory labor of up to 100 hours to an administrative arrest of up to 15 days; against legal entities – a fine of up to 500 thousand roubles.
On August 9, 2021, the Tagansky District Court of Moscow found Mirzalizade guilty of inciting national hatred under Article 20.3.1 of the Administrative Code and sentenced him to a ten-day administrative arrest. According to the SOVA Center, Mirzalizade did not plead guilty but apologized to those who misunderstood him and those who only “saw passages taken out of context because it sounded inappropriate to them.” Mirzalizade appealed, and on August 11, 2021 the Moscow City Court upheld the Lower Court’s order. On October 20, 2021, the Second Court of Cassation also upheld the verdict.
Mirzalizade then appealed to the Supreme Court – the Court of Final Appeal.
Judge Nikiforov S.B. delivered the Court’s decision. The main issue before the Court was whether the rulings of lower courts – the Tagansky District Court of Moscow, the Moscow City Court, and the Second Court of Cassation – had corresponded to the circumstances and all the available evidence of the case and so whether Mirzalizade was guilty of publicly disseminating information that had incited hatred on the basis of one’s nationality.
Mirzalizade argued that the lower courts’ orders should be revoked, and challenged the methods and conclusions of experts in their analysis of his statements, which had preceded the compilation of the protocol against him.
The Court cited Part 2 of Article 29 of the Constitution of the Russian Federation that bans “the propaganda or agitation instigating social, racial, national or religious hatred and strife” [p. 2]. The article also prohibits “the propaganda of social, racial, national, religious or linguistic supremacy” [p. 2]. The Court referred to Federal Law No. 114-FZ “On Countering Extremist Activity,” dated July 25, 2002, specifically Part 2 of Article 13, “Responsibility for the Distribution of Extremist Materials,” which prohibits dissemination, production, and storage of extremist materials on the territory of Russia and stated that individuals were legally liable for such acts. The Court also referred to Article 10 of the Federal Law No. 149-FZ “On Information, Information Technology, and Information Protection,” dated July 27, 2006, on “Dissemination of Information or Provision of Information.” The Court cited Part 6 of the article, which imposes a ban on spreading the information “aimed at propaganda of war, incitement of national, racial or religious hatred and enmity, as well as other information, the dissemination of which provided for criminal or administrative liability” [p. 2].
Having analyzed the lower courts’ decisions, the Court determined that, in accordance with Article 26.11 of the Administrative Code, the evidence gathered corresponded to the principles of “admissibility, reliability, and sufficiency” and proved that the administrative offense in question had taken place [p. 3]. The Court found that the earlier courts’ rulings, which concluded that Mirzalizade’s act had contained an administrative offense, “corresponded to the actual circumstances of the case and the available evidence” [p. 3]. The Court maintained that the lower courts followed Article 24.1 and 26.1 of the Administrative Code in their analysis of the evidence gathered and the establishment of “all legally significant circumstances” of the case, and held that the lower courts had reached “the right conclusion” in issuing the guilty verdict against Mirzalizade [p. 3].
The Court stated that the findings of the expert of the Forensic Expert Agency, an autonomous non-profit organization, presented by Mirzalizade’s representative had been assessed by the District Court (First Instance) following Article 26.11 of the Administrative Code. The Court dismissed Mirzalizade’s disagreement with the methods and conclusions of the research certificate No. 267/21 dated July 7, 2021, stating such disagreement “did not entail the cancellation of judicial acts” [p. 4]. The Court also dismissed other arguments of the defense as they all “came down to challenging the factual circumstances of the case established by the Court and the applicant’s disagreement with the assessment of evidence” [p. 4].
Accordingly, the Court held that the administrative sanction imposed on Mirzalizade – ten days of administrative arrest – remained within the stated sanction limits of the law. The Court did not identify any circumstances that could have led to a change or cancellation of the judiciary acts following Article 30.17 of the Administrative Code. The Court ordered the lower courts’ decisions to remain unchanged, rejecting the final appeal of Mirzalizade and finding that he had been guilty of inciting national hatred.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision contracts expression in Russia. The Court failed to examine the context of Mirzalizade’s statements, which spoke to the broader context of xenophobia in Russia – an issue widely faced by non-Russians, particularly in the rental markets of Moscow and other cities. As Zone.Media reports, citing “Pravozashchita Otkrytki [Human Rights Defense of Otkrytka],” an independent community of human rights lawyers, who represented Mirzalizade, the Prosecutor’s Office had not examined the full original version of Mirzalizade’s show as it had only inspected a fragment of his show posted in a group on the social network Vkontakte. Soon after the First Instance Court issued a verdict against Mirzalizade, the comedian was banned from entering Russia. On August 30, 2021, the Ministry of Internal Affairs (MVD) issued a statement that declared Mirzalizade’s presence in Russia as “undesirable” for life, which meant an absolute ban on entering the country. MVD stated: “In his public speech, Idrak Mirzalizade allowed for expressions that incited hatred and enmity toward individuals of Russian nationality, degrading their human dignity. In this regard, his presence on the territory of the Russian Federation was recognized as threatening public order, the rights, and legitimate interests of other individuals.” Mirzalizade filed a lawsuit against the decision of MVD. On October 5, 2021, the Zamoskvoretsky District Court of Moscow ordered MVD to impose a “reasonable” term of “the undesirability of Mirzalizade’s stay in the Russian Federation,” and on December 9, 2021, the Moscow City Court upheld the Lower Court’s order. On February 3, 2022, MVD changed the term’s length to 14 years – until August 27, 2035. Mirzalizade filed another lawsuit against MVD’s decision, and on March 21, 2022, the Zamoskvoretsky District Court of Moscow rejected his complaint.
A similar case, in which a ban on Russia’s entry accompanied a judicial procedure on incitement of hatred, preceded Mirzalizade’s. On July 3, 2019, in a retrial, the Norilsk City Court of the Krasnoyarsk region determined that there had been no composition of an administrative offense under Art. 20.3.1 of the Administrative Code in the case of Eva Repina, a citizen of Uzbekistan. According to the SOVA Center, the Federal Security Service (FSB) compiled a protocol against Repina after she herself had filed a complaint to the agency about xenophobic posts and comments against non-Muslims and Russians on the Internet. Repina’s complaint was based on her collection of screenshots of such posts and comments on the social network VKontakte, and she had been directing those screenshots to the social network’s administrators. The SOVA Center also reported that, before the Court’s ruling, on February 5, 2019, the FSB issued a ban on Repina’s entry to Russia until December 31, 2038 and subsequently, MVD canceled her temporary residence permit. Repina took the Ministry’s order to court, and the Norilsk City Court, the Krasnoyarsk Regional Court, and the Eighth Cassation Court of General Jurisdiction in Kemerovo recognized the Ministry’s decision as legal.
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