B: Amendment of certain Federal Laws pursuant to the Ratification of the
Council of Europe Convention on the Prevention of Terrorism and the Adoption of
the Federal Law on Counteracting Terrorism (of 27 July 2006)
The fight against
terrorism is used as a pretext to restrict freedom of expression, privacy,
judicial protection, adversarity of parties in court,
and division of powers.
1. Amendment of the Federal Law on Mass Media
Mass media are banned
from “disseminating materials which contain public calls to terrorist activity
or publicly justify terrorism, and
other extremist materials” (amended art. 4).
The prohibition to
“justify” terrorism encourages arbitrary restrictions of the freedom of
expression as well as editorial self-censorship. Where is the boundary between
national liberation movements and terrorism? Are journalists allowed to justify Hamas
and Hezbollah? What about Robespierre with his “revolutionary terror”?
The Council of
Europe Convention allegedly underlying the amendment says nothing about
“justification of terrorism.” What the Convention recognizes is "public provocation to commit a terrorist
offence" meaning “the distribution, or otherwise making available, of a
message to the public, with the intent to incite the commission of a terrorist
offence, where such conduct, whether or not directly advocating terrorist
offences, causes a danger that one or more such offences may be committed.” It
is emphasized that the Convention is not intended to affect established
principles relating to freedom of expression.
The same art. 4 of
the Russian law additionally provides that
"procedures for gathering information by journalists in the territory
(site) of a counter-terrorist operation shall be determined by the chief of the
counterterrorist operation." In fact,
it means censorship, because only sanctioned publications will be allowed.
2. Amendment of the Federal Law on the State
Security Service
Counteracting terrorism may
require military-style operations - which is understandable were their purpose
is to suppress a terrorist attack. However, the Russian law does not rule out military-style operations undertaken with
the purpose of “gathering intelligence on events or actions which create a
terrorist threat" (amended art. 91). It means that any
military-style operation can be explained by "gathering
intelligence." The same article contains another expedient provision:
military-style operations may be undertaken “to identify individuals involved in preparation and carrying out of a
terrorist attack.” This provision effectively legalizes the common practice
of shelling apartment blocks on suspicion that terrorists may be hiding in an
apartment.
The same tradition of taking
homes by assault is legitimized in a provision whereby FSB agents do not need a
court warrant to enter private homes “in cases of urgency” – which include, in
particular, pursuit of individuals suspected of terrorist involvement. This
provision is similar, but not identical, to art. 11 of the
Federal Law on Police whereby police may forcefully enter a private home in
pursuit of a criminal suspect. The difference is between a criminal
suspect and someone “suspected of involvement” – the latter can mean anyone, especially
in the absence of distinction between actual perpetrators and those who
allegedly “justify” or “encourage” terrorism. Apprehending someone “suspected
of involvement” is not the same as apprehending a perpetrator who may be
dangerous to other people. Moreover, law enforcement agents hardly need the
power to enter private homes without a court warrant – they can keep watch or
block exits from the building, and in the meanwhile obtain a judicial warrant
if needed.
The law allows using FSB
security forces against terrorists or
their bases outside the Russian territory to suppress any security threat
to
3. Amendment of the Civil Procedure Code
The Criminal Code
is amended by art. 2052 “Public calls to terrorist activity or
public justification of terrorism” punishable by up to four years of prison (up
to five years if mass media are used). The vagueness of the phrase
“justification of terrorism” is partially set off by a clarification whereby
“public justification of terrorism shall be understood as public statements which
recognize the terrorist ideology and practice as legitimate (“right”), deserving
to be supported and emulated.” There is a risk, however, that
politically-motivated enforcement authorities may interpret this provision
broadly by hiring philologists and psycholinguists to produce opinions which
reveal any “hidden meaning.”
4. Amendment of the Criminal Procedure Code
Art. 247 and others are amended to allow prosecution in absentia in
exceptional cases if the defendant is outside
No guidelines are offered as to what makes a case exceptional. It is clear that
the judgment will be politically motivated.
Trials in absentia are
unconstitutional, because they violate the principle of adversarity
(art. 123, part 3), art. 24 - the right to acquaint
oneself with materials affecting one’s rights and liberties, art. 45 - the right to self-defense, art 47 - the right to a jury
trial, art.48 - the right to a defense counsel, the right to know what one is
tried for, art. 55 - prohibition to adopt laws that
deny or diminish human rights, and art. 56 - prohibition
to restrict the right to a jury trial and the right to a defense counsel.
5. Amendment of the Federal Law on
Communication
The amendment gives
security agents extensive control over means of communication, enabling them to
invade privacy and restrict information exchange.
Art. 64 of the law which used to regulate the responsibilities of
network operators in the context of search and investigation and allowed
restrictions of the users’ rights only in defined circumstances, now applies to
any type of state security measures,
meaning that the FSB can establish binding requirements with regard to communication
networks and facilities, and operators must cooperate and comply.