INSTITUTE on Religion and Public Policy Report
Russian Federal Law N 136-FZ (“Blasphemy Law”) from 29 June 2013
By: Bill Walsh and Anna Sineva
On the 11th of June 2013 the Russian Parliament unanimously passed a bill introducing amendments to the Civil Code and Criminal Code and establishing civil and criminal sanctions for offensive actions against “feelings of religious believers.”
The bill was first introduced by deputies of the Russian Parliament in the aftermath of last year’s incident with the female punk rock group Pussy Riot, whose performance of a “punk prayer” inside a major Russian Orthodox cathedral in Moscow outraged the conservative-leaning social strata and was followed by a scandalous trial broadcasted by international media. The trial resulted in three members of the punk rock band being sentenced to two years in prison for “hooliganism motivated by religious hatred.”
Although the bill against blasphemy was ready for consideration last fall, it raised public dissent and so much concern among policy analysts that President Putin announced in November 2012 that consideration of the bill would be postponed until the spring of 2013.
In half a year, having gone through amendments worked out by the Human Rights Council of the Kremlin and the Public Chamber, the bill was passed in the third and final reading and was later signed by the President. The new law, now officially titled Federal Law N 136-FZ of 06/29/2013, on “Amending Article 148 of the Russian Criminal Code and Certain Legislative Acts of the Russian Federation in order to counter the actions offending religious beliefs and feelings of citizens," (hereinafter – Federal Law N 136-FZ) went into force on the 1st of July 2013.
Having been rehashed by the State Duma, the bill against blasphemy has not undergone any drastic changes. Penalties for blasphemous actions established by the final version of the law are milder, to a certain degree, than those proposed in the original draft (for instance, the maximum penalty for blasphemous actions committed in a place specially designated for religious worship would be three years of imprisonment instead of the original five).
Policy experts and rights activists fear that the Blasphemy Law will be applied selectively to protect exclusively “traditional” religions, which would spark more religious intolerance, discrimination and violence within the society and will be a basis for further repressive actions towards religious minorities.
The most blatant defect of the law is its ambiguous wording and failure of the legislative body to provide definitions for terms used in the law, which opens the door for arbitrary interpretations. For instance, “Religious feelings of citizens” is not a legal term of any kind and does not have any objective standard for it.
The earlier version of the bill, if implemented, would have included a new article number 243.1 into the Russian Criminal Code, which established criminal penalties for “public offence to or humiliation of worship services or other religious rites and ceremonies by religious associations professing religions constituting an integral part of the historical heritage of Russia's peoples,” as well as “public offence to the religious convictions and feelings of citizens.”
The final version of the bill, instead, introduces an amendment to the existing article of the Criminal Code, number 148, “Obstruction of the right to freedom of conscience and religion.”
Pursuant to the new Article 148, punishment for “public actions expressing obvious disrespect” and “aimed at offending religious feelings of believers” would vary from a fine up to 300 thousand rubles (which equals almost five and a half years’ minimum wage) to a year of imprisonment. If such blasphemous acts are committed “in a specially designated place of worship,” the punishment would be more severe, varying from a fine up to half a million rubles to three years of imprisonment.
Article 148 also stipulates that penalties for illegal obstruction of activities of religious organizations or religious rites and services shall vary from a fine of up to 300 thousand rubles to three months of imprisonment.
The punishment for actions named in the above paragraph, committed through abuse of one’s title or authority or with use of violence or threat of violence, will vary from a fine of up to 200 thousand rubles to one year of imprisonment with deprivation of one’s right to occupy certain positions or engage in certain activities for a period up to two years. The original draft did not contain provisions on punishment for malfeasance, this point must have been added through the last course of amendments.
Provisions of the Federal Law N 136-FZ amending the Civil Code establish penalties for obstruction of the right to freedom of conscience and freedom of religion, including the right to accept religious beliefs or deny them and including the right to join or leave a religious group. Punishment for such actions will vary from a fine of 10 thousand to 30 thousand rubles for individuals, and a fine of 50 thousand to 100 thousand for officials.
The law stipulates that “intentional public desecration of religious or theological literature, objects of religious veneration (pilgrimage), ideological signs or emblems and paraphernalia, or their damage or destruction” shall be punishable as follows: an administrative fine which varies from 30 to 50 thousand rubles or compulsory works for a period of up to 120 hours for individuals; a fine from 100 to 200 thousand for officials.
Commenting on the new legislation, Amnesty International released a statement calling it “a 'dark day' for freedom of expression in Russia,” and noting how the Russian authorities have been escalating their assault on freedom of expression in recent months.,
The Federal Law N 136-FZ is clearly a part of the repressive legislative trend alongside other laws passed by the Russian Parliament within the last few months, such as the repressive NGO law, the law on High Treason and other similar legislation, heavily criticized by rights activists and experts for being broad, vague and redundant, since the issues being addressed by some of the new laws, including the law against blasphemy, had already been covered by existing statutes. For instance, such offenses as insult, slander and vandalism are already covered by relevant articles of the Criminal Code.
As above, an obvious human rights defect of the Federal Law N 136-FZ is its ambiguous language which provides no definition for the key terms used in the law, rendering it imprecise and vague. The terms “worship” and “religious traditions and ceremonies” are so broad as to invite a whole specter of unlimited discretion in potential interpretations of the law based on which even non-hostile actions could arguably be classified as blasphemy, which inevitably leads to abuse and discrimination and potential arbitrary prosecutions by the State.
In 2012 the Russian Supreme Court issued a written assessment of the first draft, observing that the bill would be difficult to implement unless the above terms and other similar definitions were clarified.
As a note, the discriminatory provision regarding “religions constituting an integral part of the historical heritage of Russia’s peoples” which existed in the original draft has been excluded from the final version of the law. However, the rest of the language of the law remains vague and legally incompetent from the definitional standpoint, even after having been amended.
Seeking to regulate faith-based relations within the Russian society and establishing special punishment for anti-religious actions and views, the law undermines the principles of a secular state, established and recognized by the Constitution of the Russian Federation.
The new law is also incompatible with Article 28 of the Russian Constitution which guarantees freedom of religion or belief, including the right to practice any religion or not to practice any religion at all, to freely choose, possess and promote religious and other ideas and act in accordance to them. The right to change and renounce beliefs – including the right to criticize any and all beliefs – is an essential part of freedom of religion or belief.
The Russian Federation is a signatory to and has ratified the European Convention of Human Rights (ECHR). Russia is a member of the Council of Europe and is bound by certain obligations in regards to maintaining international standards of human rights in the area of its jurisdiction. The Russian Constitution recognizes that international law instruments take precedence over national legislation.
The Federal Law N 136-FZ clearly contradicts international human rights standards, as follows.
Article 10 of the ECHR establishes the right to freedom of expression, which includes the freedom to “receive and impart information and ideas without interference by public authority.” The new Federal Law with its undefined language would impose restrictions on the rights of individuals for expression of their ideas, as the lack of definitions in the Blasphemy bill provides a leeway for arbitrary accusations and prosecutions for alleged blasphemous actions.
Article 7 of the ECHR embodies the principle of legality, which requires that no one should be convicted or punished except for the breaching of an existing rule of law. Article 7 provides: “No one shall be held guilty of any criminal offense on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.” This requirement that application of the law to a given case must be precise, accessible and foreseeable to allow one to regulate conduct and to avoid arbitrary and discriminatory prosecution is summarized in the European Human Rights Commission decision in G. v. Federal Republic of Germany (6 March 1989, 60 DR 256):
Article 7, paragraph 1 of the Convention confirms the general principle that legal provisions which interfere with individual rights must be adequately accessible, and formulated with sufficient precision to enable the citizen to regulate his conduct…. Article 7 paragraph 1… prohibits in particular that existing offences be extended to cover facts which previously clearly did not constitute a criminal offence. This implies that constituent elements may not be essentially changed by the case law of the domestic courts. 
Decisions from the European Court of Human Rights require that the law is to define in specific, clear and foreseeable terms the various behaviors likely to bring prosecution in order to assure the need for accuracy and the need to avoid vagueness and arbitrary prosecution. This requirement to avoid arbitrary prosecution is designed to prevent courts from creating new charges or applying them using the principle of analogy. It has the purpose of ensuring that laws be written up in such a way that citizens may reasonably well predict the criminal consequences of their deeds or omissions.
The Federal Law N 136-FZ infringes on the principle of legality by failing to be foreseeable and precise, thereby infringing on all the rights and freedoms listed above.
Lawmakers have said the new law would promote tolerance toward various religious groups represented in Russia and prevent religious conflicts.
However, human rights activists consider that the new Blasphemy law is aimed at blunting criticism of the Kremlin and the Russian Orthodox Church, a major supporter of the Kremlin. The new law, through its indefinite language allowing for broad interpretation, could be used against any criticism expressed towards the “traditional” confessions, in particular the Russian Orthodox Church, or religious analysis by religious scholars, etc. Rights activists express concerns that the new law is likely to be used in a biased way, to discriminate religious minorities, intimidate rights activists or cause the political opposition to falter, and to further restrict free speech and other rights and freedoms.
 See the U.S. State Department International Religious Freedom Report for 2012, issued in May 2013. According to the report, the Russian government "targeted members of minority religious groups through the use of extremism charges to ban religious materials and restrict groups' right to assemble."
 This prohibition of extending offenses “to cover facts which previously clearly did not constitute a criminal offense” has been emphasized in numerous cases before the Strasbourg organs. See, e.g., X Ltd and Y v. UK (No. 8710/79, 22 DR 77 at 81 (1982)); Gerlach v. FRG (No. 1130/84, 43 DR 210 at 212 (1985)).
 Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A, p.19, para. 40; G v. France, A. 325-B, p.38; Baskaya and Okcuoglu v. Turkey, (8 July 1999, Applications Nos. 23536/94 and 24408/94, paragraphs 36 and 41-42); Cantoni v. France (15 November 1996, Application No. 17862/91, paragraphs 29, 31 and 34-36).