SOVA Center (29.05.2017) – –  The Constitutional Court turned down an appeal by Vladimir Sergienko, who challenged the provision about texts of sacred scriptures and the right of prosecutors to deny citizens who seek a prohibition of materials for extremism, while it provided an important explanation.

On 20 April 2017, the Russian Constitutional Court issued a determination on an appeal by Vladimir Sergienko, who challenged point 3 of part 1 of article 128 of the Code of Administrative Proceedings and article 3.1 of the federal law on combating extremist activity (prohibition of banning some sacred scriptures).

Sergienko, who is an adherent of the Jehovah’s Witnesses, apparently on the order of a legal experiment, addressed to a Belgorod city prosecutor’s office a request to file in court a lawsuit for finding a treatise by Joseph of Vologda, “The Enlightener” (late 15th, early 16th centuries), to be extremist, which was directed against the heresy of the Judaizers, because it contains calls for discrimination and violence on the basis of religious and national identity. However the prosecutor denied Sergienko, citing article 3.1 of the law on combating extremist activity, which, we recall, says the following: “The Bible, Quran, Tanakh, and Kangyur, their contents, and quotations from them may not be ruled to be extremist materials.” The prosecutor interpreted this article of the law in his own way and drew the following conclusion: since The Enlightener contains quotations from the Bible, it cannot be ruled to be an extremist book.

Sergienko subsequently challenged the prosecutor’s decision in two directions. First, he challenged the very possibility of denying a citizen his attempt to prohibit a book. Second, he specifically cast doubt on the contents of article 3.1 quoted above.

Sergienko filed an administrative lawsuit in the October district court of Belgorod in which he asked for the prosecutor’s refusal to be found illegal and that he be required to send the book for expert analysis. The district court did not accept the lawsuit and the provincial court confirmed this decision. At the same time, the provincial court pointed out that “the appeal of the applicant was considered by established procedure and he was sent an explanatory response on the merits of the questions posed,” and the court cannot require the prosecutor to change his decision, which “does not violate or in any other way affect the rights, liberties, and legal interests of the administrative plaintiff.”

After this Sergienko turned to the Constitutional Court, pointing out that article 3.1 of the federal law on combating extremist activity does not comport with articles 2 and 29 (part 2) of the constitution, because it permits refusing to find as extremist materials that contain calls for violence, merely because they contain quotations from the Bible. With regard to point 3 of part 1 of article 128 of the Codes of Administrative Proceedings, Sergienko’s appeal says that this standard does not comport with articles 2 and 46 (parts 1 and 2) of the constitution, because it does not permit one to appeal in court a prosecutor’s refusal to take measures for finding as extremist direct calls for violence with regard to groups of people who are united in religious or national identity.

The Constitutional Court refused to consider Sergienko’s appeal, but at the same time it provided substantial explanations on both points.

In its determination, the Constitutional Court noted that the prosecutor is independent in deciding a question about the necessity of appealing in court with lawsuits for finding materials to be extremist, and “in the event that a citizen suggests that by specific informational materials his rights, liberties, and legal interests are affected and violated, he has the right to use means to defend said rights provided by legislation.” We will explain: because the issue is the prohibition of a book in which the plaintiff is not mentioned, he cannot demand a prohibition nor use a civil lawsuit against the publisher, but if he considers himself to be hurt, he may address to law enforcement agencies a request to start an investigation of the criminal activity or administrative violation of law that he alleges.

With respect to the provision on sacred scriptures, the Constitutional Court referred to its own determination of 2 July 2013 and pointed out that the federal law on combating extremist activity “follows from the fact that the recognition of one or another informational material as extremist cannot be based on subjective perception of such informational material by individuals and that literary monuments may not be ruled to be extremist, which have become a part of the history and culture of one or another nation, having widespread distribution in the respective epoch and are the subject of numerous academic investigations and quotations and never are perceived to be the source of extremist ideology. This also pertains to article 3.1 of the federal law “On combating extremist activity,” which the plaintiff challenged and which forbids considering religious monuments to be extremist materials (including their contents and quotations from them), as foundational sources of the beliefs of traditional world religions—Christianity, Islam, Judaism, and Buddhism—which play a special role in Russia’s multiconfessional society.

From our point of view, Sergienko’s appeal clearly gives evidence that the laconic wording of article 3.1 of the law on combating extremist activity has engendered many questions as to how it should be applied, particularly whether it pertains to all paraphrases of sacred scriptures, and the Constitutional Court has not explained that matter.

However we would like to call special attention to the fact that the Constitutional Court considers that “literary monuments that are a part of the history and culture of one or another nation, having widespread distribution in the respective epoch” are not subject to prohibition. Taking account of the fact that in Russia authoritative Islamic texts, including medieval ones, have often been banned, and attempts to prohibit ancient texts cannot be ruled out in the future, the Constitutional Court’s position may serve as a substantial argument for the courts. (tr. by PDS, posted 31 May 2017)


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