Attacks on the Press 2007: Europe Analysis

Rewriting the Law to Make Journalism a Crime
By Nina Ognianova
In its 17 years on the air, Moscow-based Ekho Moskvy Radio has enjoyed, by Russian standards, extraordinary editorial independence. Nearly alone among Russian broadcasters in its critical approach, the station employs some of the country’s most outspoken journalists, who produce in-depth reporting on the most sensitive issues of the day. But in the run-up to the March 2008 presidential election, even the unshakable Ekho has begun to feel a shudder of apprehension.

Ekho received a series of letters in midyear–15 in all–from Moscow prosecutors, the Federal Security Service, the prosecutor general’s office, and the state media regulator Rosokhrankultura, after the station gave airtime to Garry Kasparov and Eduard Limonov, leaders of the Other Russia coalition and organizers of the so-called Dissenters’ Marches in several major cities. In the letters, authorities informed Ekho that its April programs featuring Kasparov and Limonov were being investigated for carrying “public calls to extremism.” The authorities demanded the station provide transcripts of the programs and said that host Yuliya Latynina, one of Russia’s sharpest political commentators, had been placed under investigation as well.

“Extremism” is an evolving and expanding term in Russian law. In successive years, parliament has sharply contracted the boundaries of acceptable reporting by redefining laws against extremism. Criticizing public officials and covering dissenting views are now outside the limits of permissible journalism. In pursuing this tactic–rewriting laws to restrict critical commentary–Russia has taken a regrettable lead in the region. Uzbekistan has rewritten laws to drastically limit the activities of foreign media, while Tajikistan has taken aim at Internet commentary by making much of it illegal.

The trend began in 2006, when the Russian parliament passed a measure broadening the definition of extremism to include media criticism of public officials. The measure, which President Vladimir Putin signed into law over the objections of media and human rights groups, said extremist activity includes “public slander directed toward figures fulfilling the state duties of the Russian Federation”–the sort of catchall terminology used by the Soviets to prosecute critics in the past.

In 2007, parliament approved a series of amendments to the criminal code that were ostensibly designed to counter the growing nationalist and neo-Nazi movements. The amendment package, also signed into law by Putin, classifies “public justification of terrorism” as extremism and gives law enforcement officials broad authority to suspend noncompliant media outlets. The new law pointedly avoids defining “justification,” leaving critics to say that it will be interpreted very broadly.

“This law I compare to a surgical scalpel,” said Karen Nersisian, a prominent Russian lawyer known for defending journalists’ rights. “It is only to be used against those who criticize–inconvenient individuals, inconvenient politicians, and, particularly, inconvenient journalists. The moment a journalist makes the decision to pick up a pen and write about a sensitive issue, he will be already at risk. This is why today, journalists are more and more cautious to write about hot subjects.”

Masha Lipman, editor of the Carnegie Moscow Center journal Pro et
, called the extremism legislation one more tool in the Kremlin’s now-bulging tool kit. Its greatest threat to press freedom, she said, lies not in its actual use but in its contribution to an existing climate of self-censorship. “The law is designed to contribute to an environment in which every writer, every editor, every [media] owner would not forget that we can only exercise our freedom of expression because the Kremlin is permissive,” Lipman told CPJ. “The more instruments there are, the more authors would weigh it up, thinking, ‘Maybe I should be more cautious, maybe I should censor myself.’ That is the point.”

Several details in the 2007 amendments are of particular concern. One requires media to label as “extremist” in their reports any organization that the government has banned as such. Another bans the production and distribution of “extremist” material but does not specify what constitutes such material, even as it introduces new penalties for journalists, media outlets, and printers found guilty of the offense. The measure also expands the definition of extremism as a crime motivated by “hatred or hostility toward a certain social group” without clarifying the term “social group.” This purposely vague language is expected to have a chilling effect on the coverage of public officials, businesspeople, and law enforcement officials.

“The effect of the new amendments could be compared to a cold shower on political journalism,” said Andrei Richter, director of the Moscow-based Media Law and Policy Institute. Since the extremism laws were first adopted in 2002, Richter said, the list of concepts that fall under its definition has grown long. And if a “cold shower” were not enough, authorities emphasized the point by moving quickly to initiate criminal proceedings against Kremlin critics. In September, state prosecutors brought charges against prominent political analyst Andrei Piontkovsky over statements in his 2006 book Unloved Country, a collection of political essays critical of Putin and his policies. The prosecutor in Piontkovsky’s case, who spoke briefly to The Washington Post after the hearing but refused to elaborate or give her name, said Unloved Country incited “inferiority among people of Jewish, American, Russian, and other nationalities.”

On September 25, the court ordered that Unloved Country be subjected to a linguistic analysis to determine whether it contains extremist content. Piontkovsky and his lawyers said the accusations were utterly baseless. “There are no calls to extremism in my political diary,” Piontkovsky told CPJ. “Absolutely none. This book is very critical of Putin, yes, but the accusations against me are a laughing matter.” But Piontkovsky, who is now a visiting scholar at the conservative Washington-based Hudson Institute, is pessimistic about the potential verdict. “The court sent my book to undergo a linguistic [analysis] at the Institute of the Ministry of Justice. So you can imagine how ‘independent’ the expertise will be. … It will be independent only of sound logic.”

Piontkovsky’s case is the first to be tried under the newly amended law on fighting extremism. He faces up to five years in prison if convicted.

“In the world, as a rule, the concept of extremism is linked to terrorism. But in Russia, it is used to describe critics of the powerful,” said Oleg Panfilov, director of the Moscow-based media watchdog Center for Journalism in Extreme Situations.

Russia has been unmoved by Western criticism of its backsliding on press freedom and democracy; instead, authorities have warned against what they call “foreign meddling” in their country’s internal affairs. Emboldened by the defiant attitude of their strong neighbor, authorities in the former Soviet states of Uzbekistan and Tajikistan have broadened their own restrictions against reporters. In other ex-Soviet countries–such as Azerbaijan–authorities have employed existing laws with new creativity and fresh vigor.

“I don’t think anyone can imitate what Russia is doing exactly because no one is as sophisticated as the Kremlin,” said Lipman, who also noted that Russia still allows greater press freedom than most other former Soviet states.

Still, Lipman said, Russia is clearly pulling former Soviet states back into its orbit of influence through political initiatives such as the Shanghai Cooperation Organization–a regional security alliance that includes China, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. “And there is no doubt,” she said, “that these countries feel more secure having Russia by their side.” The regime of Uzbek President Islam Karimov, after all, might not have survived international outrage over the mass killings in the city of Andijan in May 2005 had it not been for the Kremlin’s public support.

A year after the killings–in which government troops fired on civilian demonstrators–Uzbek authorities further restricted the small independent press by passing a new law regulating the work of journalists for international media. With domestic media entirely under state control, international broadcasters such as the U.S. government-funded Radio Free Europe/Radio Liberty, the BBC, and the German public broadcaster Deutsche Welle–all of which support local-language services–have served as important alternatives for independent news. International broadcasters lost their bureau accreditations and were forced to leave Uzbekistan in the months immediately after Andijan, but they retained informal networks of local stringers who continued to contribute to them at the risk of official harassment. Since the passage of the 2006 law, however, not only has reporting for international outlets become risky–it has also become illegal.

The new regulations give the Uzbek Ministry of Foreign Affairs wide discretion to issue formal warnings to foreign correspondents, revoke their accreditation and visas, and expel them. Among other vaguely worded bans, foreign correspondents were barred from “interfering in the internal affairs of the Republic of Uzbekistan, harming the honor and dignity of citizens of the Republic of Uzbekistan, interfering in their private lives, and committing other actions that provide for legal accountability.” The broad language of the measure does not define what constitutes interference in Uzbekistan’s internal affairs or in the private lives of citizens, nor does it specify “other actions” that are prohibited.

Interpretation of this law, like the Russian antiextremist measures, is left to state agencies. And, as in Russia, the law spreads and sustains a climate of fear and self-censorship. “The sense is that you can be attacked at any moment and placed under criminal investigation,” said Galima Bukharbaeva, a prominent exiled Uzbek journalist and 2005 recipient of CPJ’s International Press Freedom Award. “Any journalism but that of state media is outlawed.”

Putting the new regulations to immediate use, the Uzbek Foreign Ministry issued official reprimands to several Deutsche Welle correspondents, forcing one to quit journalism and another to flee Uzbekistan to escape legal threats.

In Tajikistan, authorities are expanding restrictions to the Internet. In July, the Tajik parliament passed amendments to the country’s Criminal Code that broaden defamation provisions to include Internet publications. The bill, which President Emomali Rahmon signed into law in October, effectively criminalizes critical reporting and commentary online, and extends existing penalties for criminal insult and defamation to the Internet. Penalties include fines and prison terms of up to two years.

The Internet-specific amendments are significant for Tajikistan, where no daily newspapers circulate, independent weeklies are suppressed, and foreign broadcasters are barred from the airwaves. With the scarcity of available independent information, Central Asia news Web sites such as Ferghana and Centrasia,
as well as Tajikistan-specific opposition sites such as Charogiruz and Tajikistan Times, have grown popular. The new amendments are expected to cause wide self-censorship among Web site contributors, according to CPJ sources in the region.
Mukhtor Bokizoda, director of the Dushanbe-based press freedom group Foundation for the Memory and Protection of Journalists, told CPJ that officials tend to interpret criticism as libel, and that a politicized court system invariably sides with the government.

This is a common refrain. In Russia and other former Soviet states, journalists have little confidence in the independence of their justice systems. “State agencies create a myth of a formal procedure,” Russian lawyer Nersisian told CPJ. “They choose the opponent, they put together a case, and the law acts as a guided missile against him.”

Said Panfilov: “Russian authorities are setting an example for those governments who want to re-create Soviet authoritarianism.”

One such country is Azerbaijan, where, in the words of Emin Huseynov, director of the Baku-based Institute for Reporters’ Freedom and Safety (IRFS), authorities are following “a Russian scenario” in regard to critics. “Azeri authorities are now moving away from using defamation charges and [toward] more serious articles of the criminal code, such as terrorism,” he told CPJ. Because terrorism is such a grave charge, the crime is less likely to be challenged by the public, Huseynov said. “In Russia, few journalists report on the Chechen war,” he said, “because that could be assessed as a support of terrorism.”

Now Azerbaijani authorities are starting to use a similar approach, he told CPJ. Huseynov noted the October 30 conviction of Eynulla Fatullayev, the embattled editor of two popular independent newspapers that were forced to shut down after authorities imprisoned him in April. Fatullayev, convicted of terrorism and incitement of ethnic and religious hatred, was sentenced to eight and a half years in jail because of a critical piece on President Ilham Aliyev’s foreign policy regarding Iran. Authorities are growing more inventive, Huseynov said. “Today, it’s terrorism charges. Tomorrow, it will be revealing state secrets or extremism. … It’s no longer only defamation.
The practice is shifting.”

The climate is changing in the region, too. Aleksei Simonov, head of the Moscow-based Glasnost Defense Foundation, said Russian journalists have not yet been marginalized as dangerous dissidents. “Not yet, not yet, not yet,” he said. “But the climate is changing very rapidly.”

Toward what? He paused and said: “Toward winter.”