A. The Federal Law on Counteracting
Terrorism of 6 March 2006
1. The law targets
ideologies as well as practices by including them in the definition of
terrorism and terrorist activity.
The law defines
terrorism not only as “practices of influencing the decisions of government,
local self-government or international organizations by terrorizing the
population or through other forms of illegal violent action,” but also any “ideology of violence” (art. 3).
The definition of terrorist activity, which complements
the definition of terrorism, is even
broader. The new law includes the following in the definition of such activity:
propaganda of terrorist ideas; dissemination
of materials or information which call to terrorist activity, justify or support the need for such
activity, and also "informational
or other types of aiding and abetting
with regard to planning, preparation or implementation of a terrorist act"
(art. 3).
This definition can
easily be interpreted to include any “alien” or “offensive” ideology or
political agenda (e.g. communist), or dissent (e.g. opposition to the Russian
government’s policies in the
"Informational
aiding and abetting” liability may potentially hinder communication concerning
terror and specific terrorist acts. Broadcasting the demands of terrorists or disclosing
the actual number of hostages as opposed to officially quoted numbers can
easily be interpreted as terrorist activity making a conscientious reporter
criminally liable.
2. The law provides
for a special regime of counter-terrorist operations which will facilitate a
serious restriction of most civil rights and liberties.
The Russian
Constitution (art. 56) provides for certain restrictions of rights and
liberties in a state of emergency. The Federal constitutional Law on the State
of Emergency establishes a procedure of introducing the state of emergency (a
Presidential decree approved by the Federation Council, with notification of
the State Duma), liability for citizens and officials
in case of non-compliance, and immediate notification of the UN and the Council
of Europe Secretary Generals about temporary restrictions imposed on rights and
liberties, which constitute derogations from international instruments, the
scale of such derogations and the reasons. The introduction of the state of
emergency (or the state of war) is subject to numerous restraints and controls.
The International Covenant on Civil and Political Rights and the European
Convention permit derogations from civil rights and liberties only in time of
public emergency which is officially proclaimed.
The
counter-terrorist operation regime imposes the same restrictions, but without
proclaiming the state of emergency. Moreover, the counter-terrorist operation
regime is not limited in time or space, does not require accountability and is
free from parliamentary or international controls.
The former 1998 Law
on Combating Terrorism also provided for substantial restrictions of civil
rights and liberties and for special powers of officials in charge of
counter-terrorist operations. While the 1998 law was often criticized, it
contained an important clause allowing derogations only "in the area of
the counter-terrorist operation,” whereas the 2006 Law on Counteracting
Terrorism does not mention or define
“the area of counter-terrorist operation.”
The difference is
crucial. The 1998 law defined "counterterrorist
operation zone” as “particular areas of land or water, vehicle, building,
structure, installation, or premises and the adjoining territory or waters
within which the aforementioned operation is carried out.” This qualification
makes temporary restrictions legitimate (e.g. in the firefighting operation,
etc.).
However, the 1998
legal definition was too narrow for what the Russian authorities have described
for nearly eight years as a “counterterrorist operation” covering the entire
While declaring a
state of emergency would have been the only appropriate solution, the Russian authorities preferred to delete
the “zone of counter-terrorist operation”
from the law and provide for a possibility of counter-terrorist
operations in a ”territory with a substantial number of residents"
(article 12), without any special limits whatsoever. The area of counter-terrorist operation is determined at the discretion
of the official in charge appointed by some unknown (not mentioned in the
law) authority and accountable only to the FSB Chief. This unknown official will decide whether the
counterterrorist operation covers one apartment block or half of the Russian territory.
Whereas the
constitutional state of emergency may be introduced for a maximum of 30 days in
the entire country and for a maximum of 60 days in parts of the country, and
any extension is subject to a complicated procedure, the law does not limit the
“period of conducting” a
counter-terrorist operation (article 11).
Restrictions of human
rights and civil liberties during a counter-terrorist operation are virtually
the same as in a state of emergency.
The
counter-terrorist regime warrants:
ID checks;
blanket screening of
negotiations, letters and other communications, and also "conducting
searches of electric communication channels and the mail”;
suspension of companies and
enterprises;
cutting individuals or
entities from communications, communication networks and devices (i.e. total information blockade) - not allowed
even in a state of emergency;
restrictions on movement of
vehicles and pedestrians (i.e. slightly camouflaged curfew);
unhindered access by persons
conducting a counter-terrorist operation to private homes and land plots, and
to premises of all types of organizations for purposes of fighting terrorism;
checks and searches at
the entrance to locations covered by the security regime;
restrictions or ban on the sale
of certain goods, including alcohol.
A few items on this
list deserve a special mention: the
screening of negotiations and the “search of networks,” and also unhindered violations of privacy, i.e.
access to private homes.
The screening of
mail, phone conversations, telegraph and other communications may be allowed, according
to part 2, art. 23 of the Constitution, only through judicial
proceedings with regard to a specific individual or entity. Blanket
violations of privacy with regard to an unlimited number of persons cannot be
allowed even in a state of emergency.
As to privacy of the
home, the new law effectively strips it of any judicial protection, given that
a counter-terrorist operation regime can be instantly declared and terminated
in any community, at the door of any home or apartment.
On a positive note,
art. 11 of the new law requires immediate announcement of a decision to establish
a counter-terrorist operation regime, indicating the area, measures and
restrictions involved, and also a decision to terminate the regime. Although the
format and procedure of such announcements are not specified, the requirement
to announce a counter-terrorist operation can serve as partial protection from
arbitrariness, because in absence of such announcement the actions of “counter-terrorists”
will be illegal.
3. The Russian Army
is allowed to fight terrorism in and outside
The use of armed
forces to fight terrorism domestically was allowed by the 4 April 2005 amendment
of Article 10 of the Federal Law on Defense. The amendment provides for using
the Army for purposes other than defense of the country against aggression, i.e.
using the army as police.
The Law on
Counteracting Terrorism allows using the armed forces against terrorists
without any restrictions. In addition to individual units and detachments, the
President can mobilize entire armies against
terrorists (art. 9). In principle, the law does not rule out a
counter-terrorist operation covering the entire country.
Military force may also be used "to suppress international terrorist
activity outside the
Subsequent
amendments of 27 July 2006 of the Law on Counteracting Terrorism empower the Russian President to make
personal decisions concerning the use of security forces outside
4. Officials in
charge of counter-terrorist operations are not identified
The law fails to
explain how counteraction to terrorism must be organized. It only says that the
FSB Chief decides to launch a counter-terrorist operation or delegates the decision
to another official. Then someone is appointed in charge of the operation – the
law mentions this individual with enormous powers in just a few words: "a counter-terrorist operation shall
be led by the chief of the operation" (art. 13).
The law reflects the
practice: the name of the official responsible for the Beslan
counter-terrorist operation is still unknown to the public.
5. Collective liability
for family members
According
to art. 18 of the Federal Law, “there shall be no compensation for any damage to the health or property
of a person involved in a terrorist act, or for any damage caused by the death
of such person, where such damage results from lawful suppression of a
terrorist act.”
In the meaning of
article 49 of the Russian Constitution, anyone killed in a security operation must
be presumed innocent, while a survivor may be found guilty by court.
Where a suspected terrorist is killed, liability if effectively extended
to his/her family, including young children - a phenomenon well-known from the
Soviet history.