Between Litigation and Freedom of Speech

21 November 2007

Leonid Raihman¹

Starting from 2002, in its reports and advocacy documents related to Roma rights matters in Russia, the European Roma Rights Centre (ERRC) emphasised that Russian media contributes to and often incites anti-Romani attitudes in society. However, before 2005, monitoring anti-Romani hate speech in the Russian media had not been conducted systematically and it did not show the true dimension of the problem. In rare cases, such human rights NGOs as the Information- Analytical Centre "SOVA" and the Northwest Centre for the Legal and Social Protection of Roma made attempts to raise the issue of anti- Romani hate speech. Romani NGOs such as the Federal National Cultural Autonomy and Roma Ural also contributed to the issue by sending a few letters of concern about hate speech appearing in newspaper articles and TV programmes.

Since 2005, the ERRC has implemented two projects on hate speech in the Russian media, which were supported by the British Government's Fund For Global Opportunities and the Netherlands Ministry of Foreign Affairs. Amongst other activities, the projects included media monitoring in different regions of the country. During the first phase of monitoring, the situation was a very disappointing one. Whether newspapers or television, the content of reports was the same everywhere: "Roma are stealing"; "Roma are performing hypnosis with the aim of tricking people out of money"; "Roma are drug dealers"; etc. An endless line of news article titles could be seen on the Internet: "Romani swindlers have cheated [...]", "A Romani gang has been arrested", etc. It created the impression that the number of anti-Romani publications and reports exceeded all possible expectations, and that even journalists already perceived Roma as people of a secondary category and, who voluntarily or not, were pushing others to hold such perceptions. There is no need to explain to what result such an attitude led in different times of history...

One of the results of rising interethnic tensions in Russia (also because of the perception of citizens of state representatives as the "fourth power") was that, without any anxiety, society accepted and even supported mass-scale evictions of Roma, for example in Kaliningrad and Arkhangelsk. The conduct of law enforcement operations with the obvious anti-Romani title "Tabor" received very little criticism from journalists.

A litigation component had also been built into both projects, given that strategic litigation is one of the core means via which the ERRC attempts to foster social change. As regards the litigation aspect of the projects, the ERRC encountered difficulties in challenging hate speech via legal means. Some norms, for example Article 152 of the Russian Federation's Civil Code, render activists from Romani and human rights NGOs unable to be fully involved in strategic litigation on hate speech. For example, a Romani activist can only apply for moral redress through a civil procedure if his/her name or name of the organisation is mentioned in the newspaper article or the TV programme. As it was seen from the monitoring, in their publications and programmes, Russian journalists did not mention specific names and simply referred to the whole community or the location of a Romani settlement.

This particular component of the law creates an enourmous obstacle for Roma and other persecuted minorities in Russia to protecting their dignity through legal means in the case of hate speech. In addition to this problem, the majority of Russian Roma, especially those who live in the suburbs and the outskirts or towns and cities do not read newspapers or use the Internet in their daily lives. In extreme instances of hate speech, when certain measures should be taken by Romani communities, Romani people felt rather reluctant to take action, refering to other problems and possible side effects, refusing to complain to judicial institutions. This is in stark contrast to the situation in neighbouring Ukraine where in cases of hate speech against, in particular, Roma, anyone may submit a complaint to the court asking for a public apology or seeking redress for moral damage on behalf of a local community, etc.

Under Russian criminal procedures, an NGO can submit a statement to the Prosecutor's Office requesting the initiation of a criminal investigation, for example, in a case of incitement to racial hatred in the Russian media. In partiucarly severe cases of hate speech, the ERRC has asked prosecutors to open a criminal investigation, as for example, in the case of the article "Keep money away from children!" published in the weekly "Nedelya Goroda" (Volzhskiy region) on 1 June 2006, wherein Romani women were repeatedly identified as thieves and swindlers. The article ended with the following announcement: "The Department of Interior calls upon local residents to inform [law enforcement officials] about places where people of Romani ethnicity live without permission." However, it can be seen that public prosecutors in the Russian Federation still hesitate to open criminal investigation under Article 282 (Incitement of National, Racial, or Religious Enmity) of the Russian Federation's Criminal Code in the context of hate speech, alleging the creation of enormous difficulties in proving racial motivation. Besides, the official opinion still prevails that a growing number of raciallymotivated crimes would undermine the State's image. It is important to bring international experience fighting racially-motivated crimes in various forms to Russia – by conducting seminars for the representatives of law enforcement bodies, by disseminating the relevant international law precedents to the judges, etc.

It should also be noted that the situation vis-à-vis freedom of speech in Russia has visibly worsened in the last few years. This consideration also influenced the ERRC policy of using more extrajudicial means in fighting anti-Romani speech in the Russian media rather than launching strategic litigation cases against journalists and media organs. In particular, advocacy actions against hate speech in the Russian media have been targeted simultaneously at the heads of both the media organ implicated as well as the Federal (or Regional) Service for Supervision of Law Observance in Mass Communications and Cultural Heritage Protection (hereafter "Rosohrancultura"), Russia's media oversight body. The ERRC sent a number of letters of concern to different media units with a copy sent to the Rosohrancultura because by its regulation,² it is authorised to exert soft pressure on the media to eliminate or amend certain practices. In its first response to an ERRC action, the Rosohrancultura denied the presence of hate speech in the articles to which the ERRC referred. However, later as in the case of the ERRC letter concerning articles published on the Russian Internet portal Regions.ru, the Rosohrancultura sent a warning to the editor-in-chief of the portal, in which it recommended that the portal be more careful in preparation of its materials, which can influence ethnic and racial questions.

Another opportunity to use legal means outside the field of criminal and civil law has included the Union of Russian Journalists. In 2005, the Union established a Public Collegium regarding Complaints against the Media. This independent structure works inside the Union and is authoritative amongst journalists. It accepts complaints from any person if the case has not been submitted to a court. In its decisions, the Collegium makes independent conclusions (which have tended to be negative towards the media), and asks the media to publish the decision in the newspaper, to discuss the decision during staff meetings, etc. In some cases, the Collegium informs the Rosohrancultura about its decision. The ERRC has filed complaints with this body and is currently awaiting the first decision of the Collegium in the case of anti-Romani hate speech (the complaint was filed against NTV, a mainstream TV channel in Russia).³

Returning to strategic litigation, which remains an effective way to turn public attention to a problem, even considering the complicated situation vis-à-vis freedom of expression in Russia, one proposal can be invoked here. In its country report, "In Search of Happy Gypsies: The Persecution of Pariah Minorities in Russia" issued in May 2005, the ERRC recommended that Russian authorities "amend legislation to enable public organisations to litigate cases in the public interest, i.e. widen the scope of representative actions to allow organisations to pursue cases on behalf of members or constituents whose rights are affected."⁴ It seems public discussion about such recommendations should be launched by NGOs in Russia.

Endnotes:

1. Leonid Raihman is the ERRC’s consultant on Roma rights projects in Russia.
2. Section 6 of the Governmental Regulation on Rosohrancultura (No. 301 from 17 June 2004) states: “Federal Service for Supervision of Law Observance in Mass Communications and Cultural Heritage Protection in purpose to realise its authority has the right: […] 6.4. to restrain violations of the Russian Federation legislation […] and to use measures of a restrictive, preventive, or prophylactic nature, directed at the prohibition and liquidation of the consequences of violations of requirements established in a certain sphere of activities.”
3. Details of the case are available on the Union’s website at: http://collegium.ruj.ru/delo_021/jaloba_001.html. A decision in this case was pending at the time of publication of this article.
4. European Roma Rights Centre. 2005. In Search of Happy Gypsies: Persecution of Pariah Minorities in Russia. Budapest, p. 228. Available online at: http://www.errc.org/cikk.php?cikk=2241.