An interview with presidential representative Alexander Kotenkov

Alexander Kotenkov: “Accusing a state official of engaging in extremist activity doesn’t only insult the person in question – it also undermines trust in the state. That is extremism. And so, my dear journalists, you’ll now have to think before you speak.”

Some amendments to the law on countering extremist activity, significantly expanding the definition of extremism, were delivered to President Vladimir Putin last week to be signed into law. Alexander Kotenkov, presidential representative in the Federation Council, explains that contrary to expectations, the new legislation won’t infringe the opposition’s rights at all.

Question: The Federation Council did pass this bill, but quite a lot of criticism was heard at the meeting. For example, Federation Council members didn’t like the way the new legislation essentially makes it impossible to publicly criticize state officials.

Alexander Kotenkov: The bill makes no mention of “criticism” – the term it uses is “defamation.” That’s different. Regrettably, most Federation Council members don’t have law degrees. And they don’t always bother to read the bills they are discussing. So they end up raising questions which the media then interpret as some sort of hidden traps in this legislation: on the grounds that if Federation Council members are questioning it, there must be something wrong. But most of the questions come from people who simply haven’t read the bill.

Yes, Federation Council members asked this question: since we already have a general law setting out penalties for defamation, why do they have to be specified in another law? But you need to read the wording carefully. It refers to public defamation of a statesman or state official, accusing the individual of actions covered by the law in question – that is, extremism. Only defamation including accusations of extremism, and only if confirmed by a court ruling! In other words, if a regional leader is publicly accused of engaging in extremist activity, and a court confirms that public defamation has taken place, the defamer’s actions can be considered as constituting extremist activity. What’s so unclear about that?

Question: The important point is what will be defined as extremist activity. Many are saying that the new definition is too broad.

Alexander Kotenkov: Well, for example, establishing unlawful armed formations – that’s extremist activity. If a regional leader is accused of establishing an unlawful armed formation, and a court confirms that the accusation is defamatory, then the person considered guilty of extremist activity will be the regional leader’s accuser, not the regional leader.

Question: And what if a regional leader tacitly supports separatist guerrillas, for example, and arranges for them to receive medical treatment?

Alexander Kotenkov: There would need to be proof of that.

Question: So until it’s proven in court, no one’s allowed to talk about it at all?

Alexander Kotenkov: Why not? If you know of evidence to that effect, and talk about it publicly as a journalist, then either you go to court to confirm that you’re right, or the regional leader attempts to disprove your words – also in court. So let’s say a court confirms that some guerrillas did receive treatment in a hospital located close to Chechnya, apparently with a regional leader’s approval. Then the regional leader will face criminal charges of extremism, and the journalist’s actions in reporting it will be recognized as lawful. But if the court finds that no guerrillas were treated at the hospital, or that the regional leader didn’t know about it, that would be defamation.

Question: So before you can say anything, you have to go to court.

Alexander Kotenkov: That’s logical. If it hasn’t been proven, why talk about it? Otherwise, disclose the name of your source in your report and let the court sort it out. Then, if it turns out that the information was untrue, but the court establishes that it was given to you by a certain person, that person will be held accountable – not you. But if your report only says there are “rumors” that a regional leader is sheltering terrorists, that’s defamation. Unless the rumors are upheld in court, of course.

Question: So journalists won’t be allowed to make such assumptions?

Alexander Kotenkov: There cannot be any assumptions in the media about state officials. A regional leader cannot engage in extremism, a priori. He enjoys the presumption of innocence, like any other citizen. But accusing a state official of engaging in extremist activity doesn’t only insult the person in question – it also undermines trust in the state. That is extremism. And so, my dear journalists, you’ll now have to think before you speak – think about what you’re saying, and your grounds for saying it. If you say that a regional leader is being unfaithful to his wife, that might be defamatory, but it’s not extremism. But if you say that a regional leader is providing money for unlawful armed formations, you’ll be held accountable for that if you’re unable to prove it in court.

Question: Critics of this legislation maintain that its expanded definition of extremism, combined with other amendments – passed by the Duma in the first reading – about disqualifying parties that permit extremist statements in election campaigns, will be used by the United Russia party against the opposition.

Alexander Kotenkov: Mud-slinging has always been used, and it always will be part of campaign techniques, unfortunately. The question is how extensively it will be used – and that depends on this law, in part. It is intended to minimize the scope for mud-slinging with reference to extremist activity. But let’s distinguish between individuals and organizations engaging in extremism. With individuals, we can only talk of their personal actions. If some member of a party makes a statement that’s obviously of an extremist nature, but the statement is not upheld by the party’s leadership bodies, then the individual who made the statement will be held accountable.

Question: And what if that individual is on the party’s list of candidates? Would the whole list be disqualified, or only the individual?

Alexander Kotenkov: The individual would be disqualified. But that’s up to the courts. In other words, if a particular candidate is charged with making extremist statements, the party can dissociate itself from him, saying that such ideas aren’t part of its ideology or official decisions, and that individual will be removed from its list of candidates.

Question: But parties might add such “extremist campaigners” to their candidate lists deliberately, in order to remove them later and get away with it. Let’s say a list has five candidates who do their job – making shocking statements in order to draw the attention of voters – and then withdraw.

Alexander Kotenkov: They would be damaging their own credibility and their parties. Extremism isn’t the kind of ideology that gets public support in our country. Remember the notorious watermelon-rind campaign ads in last year’s Moscow municipal election: did they enhance the credibility of the party in question? Did they attract any extra votes?

Question: They must have attracted some extra votes – in certain circles.

Alexander Kotenkov: I don’t think so. But let’s get back to the law. Can a party be disqualified from an election because of extremist statements made by one of its activists? Even if the statements have been provoked by rivals? Well, an organization is recognized as extremist only if, as it says in the legislation, “it has been shut down or banned for engaging in extremist activity, by a court decision on grounds specified by law, and the decision has come into legal force.” In other words, if we’re talking about a party which a court has declared to be extremist, it certainly would be disqualified from an election campaign.

Question: But the party probably wouldn’t have time to appeal against that decision and have its disqualification reversed before the campaign is over.

Alexander Kotenkov: If a party is declared to be extremist, it can challenge that decision. An election could be invalidated on those grounds – if a higher court overturns a lower court’s decision to shut down or ban a particular organization on the grounds of extremism. But no such cases have happened in practice as yet.

Question: You are actively defending the new legislation – but when the Federation Council passed the bill, it also instructed two of its committees to develop some further amendments and submit them to the Duma this autumn. Do you disagree with that initiative?

Alexander Kotenkov: In this case, I agree entirely with the instruction to the committees. Some points in the legislation are indeed unclear. But the bill has been passed, approved, and needs to be put into effect – no doubt about that. Just think of the dispute that’s been under way since the early 1990s about the concepts of “pornography” and “erotica.” There still aren’t any prohibition measures against pornography, and our current laws make it impossible for any court to decide how pornography differs from erotica. But with regard to extremist activity, we can’t get involved in this kind of dispute about theory – because extremism and pornography are at different orders of magnitude in terms of their moral impact on society. The consequences are very different. So any delay in passing the extremism legislation is unacceptable, but I’m sure it will continue to be improved.