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04.10.2006 | Y. Zakharov

THE TARAS ZELENYAK CASE: AN ATTEMPT AT ANALYSIS

   

A person is being tried in Russia for insulting Russians on the forum of a Ukrainian website. This news sent shockwaves through the Russian and Ukrainian Internet, sparked off a huge number of commentaries and animated discussions on forums of Ukrainian and Russian websites, as well as publications in the Ukrainian and Russian press. We will endeavour here to understand what in fact happened and what prompted such heated arguments. Unfortunately what follows can be based only on publications. I have no access as yet to the prosecution’s conclusion and other material of the case. Many details remain unclear meaning that it would be difficult to make any definite assertion. Nonetheless even where information is incomplete certain conclusions can be made.

The story

36-year-old resident of Novosibirsk, Taras Zelenyak, an ethnic Ukrainian and son of the well-known scientist Tadyei Zelenyak, originally from Lviv, is charged with committing a crime punishable under Article 282 of the Criminal Code of the Russian Federation “Inciting ethnic, racial or religious enmity”. The sentence which Zelenyak could face is deprivation of liberty for a maximum of two years.  The chosen preventive measure is a signed undertaking to not leave the area.  The first hearing took place on 11 September in the Sovyetsky District Court in Novosibirsk, however a second was set for 4 October because witnesses for the prosecution had not appeared.

According to the prosecution, Taras Zelenyak commented on various events in social and political life in Russia and Ukraine on the forum of the Ukrainian website www.proua.com under the username novosibirsk-2.  The prosecutor considers that these commentaries propagate hatred towards Russians, assert “the superiority of the Ukrainian nation over the Russian”, and are also full of the offensive terms “moskal” and “katsap”[1] . As the prosecution’s conclusion states, the accused used words, expressions, comparisons and assessments of a provocative nature, not allowing any ambiguity in interpretation, and aimed at offending the national sensitivities of Russian people”.

(http://www.gazeta.ru/2006/09/11/oa_215536.shtml).

What exactly were the expressions which the prosecutor is accusing Zelenyak of?  It is difficult to give an exact answer to that question without seeing the case material. However all the reports which quote the prosecution conclusion (for example:  http://www.rg.ru/2006/09/12/zelenyak.html –  “We’ll resettle all the ruskies [katsapy] on new land, and I’d even be ready to give them a kick up the arse on their way”.http://www.kommersant.ru/region/novosibirsk/page.htm?year=2006&issue=169&id=177948§ion=3712 – “Who will tolerate Russian swinishness in a Muslim republic?” and others) are basically quotes from a discussion about the conflict in Chechnya on the Ukrainian forum www.proua.com.  This discussion began on 26 January 2005 (the topic “And once again about the Republic of Ichkeria”). It lasted four days, was dynamic, occupied six pages on the forum and almost immediately turned into an exchange of insults from Russian and Chechen supporters. The emotions provoked by the discussion were anything but mild, as the six pages on the Internet (in Russian) show:

http://phorum.proua.com/archive/read.php?1,139460,page=1
http://phorum.proua.com/archive/read.php?1,139460,page=2
http://phorum.proua.com/archive/read.php?1,139460,page=3
http://phorum.proua.com/archive/read.php?1,139460,page=4
http://phorum.proua.com/archive/read.php?1,139460,page=5
http://phorum.proua.com/archive/read.php?1,139460,page=6

By 1 February already on the Novosibirsk Akademgorodok forum, a person with the username ringo, outraged by Zelenyak’s texts on the ProUA forum suggests finding the author (“Please look into the identity of the person going by the username novosibirsk-2”).  Ringo copied the IR address of novosibirsk-2 and established that one of the users of the Novosibirsk provider “First Mile” had the same IR address. He directly quotes this IR-address and the email address of novosibirsk-2 from the Novosibirsk provider. With this information it’s now quite simple to find the owner of the computer. The network details for novosibirsk-2 stood on the Akademgorodok forum for just under an hour before being removed by the moderator as being against the rules of the forum to disclose network details of users.

Criminal proceedings against Zelenyak were launched only a year later. According to numerous publications, the director of the company “First Mile” allegedly approached the department of the Federal Security Service [FSB] for the Novosibirsk region (sic!) with a complaint about the comments of one of its clients, and the prosecutor launched a criminal investigation under paragraph one of Article 282 of the RF Criminal Code.  Zelenyak’s computer was removed and all novosibirsk-2’s forum commentaries were found. A linguistic assessment confirmed that the expressions allegedly used by Zelenyak demonstrate a contemptuous attitude to Russians, although there are virtually no obscene words. In addition the accused was given a psychiatric examination which found him sane, but experiencing “a permanent feeling of being isolated and his desire to show how original he was”.

Who is the author?

At the first court hearing on 11 September Taras Zelenyak denied having written the texts he is charged with and said that he would prove his innocence during the court investigation. His defence lawyer asserted that the question of who wrote the texts could only be established by removing the server of the proUA portal  however the court refused to allow this application.

And yet in fact it is no easy matter to prove that Zelenyak was the author. There have been no official appeals from Russia to the administration of the Ukrainian site. It will be interesting to see what evidence the prosecution produces. 

One may attempt to fathom the prosecution’s logic as follows. The IR-address of novosibirsk-2 on the Ukrainian website forum and the IR-address of Zelenyak’s computer registered by the provider “First Mile” are the same (this can be confirmed by the user “ringo” and a representative of the provider summoned as witnesses).  All commentaries under the username novosibirsk-2 were found on the hard disk of Zelenyak’s computer, therefore Zelenyak was also the writer of the commentaries. However this logic is faulty! In order to assert that he was the author of a message on a forum, one needs to compare the outgoing information of his provider with the incoming data on the forum, and the investigators have not done this.

In fact a completely different person could have written on the proUA forum under the username novosibirsk-2.  Before registration on the forum, the IR address is open and can be used by anybody in order to write supposedly as novosibirsk-2 using his IR-address. After registration the last three digits of the IR-address are confidential and can only be discovered by the forum administration. Nonetheless, through a simple operation – studying the open incoming data in the messages of novosibirsk-2 – one obtains a staggering result: at least two people wrote under this username – the registered user and someone not registered!

Incidentally Zelenyak back at the end of 2004 complained on the forum that somebody had nicked his name (i.e. registered under his username). If one compares the early messages of the unregistered user “Novosibirsk-2” with the later messages of the registered user, a difference in style can be observed. Here the messages of specifically the registered user which are quoted in all publications, in particular, those from the discussion on Chechnya, were deemed to be Zelenyak’s.

One has the impression that after Zelenyak’s username was appropriated, Zelenyak did not write at all on the proUA forum. However messages appeared on the forum both from the registered, and an unregistered user. As can easily be verified, this third “Novosibirsk-2” was a client of a Moscow provider!

It would thus seem that Taras Zelenyak was not the author of the texts attributed to him.. The court could resolve this issue by approaching the administration of the proUA site and organizing an expert author analysis in order to establish whether the texts placed on the proUA forum under the username novosibirsk-2 were all written by one author. I believe that the results of this analysis would prove Zelenyak’s innocence.

The problem of jurisdiction

Let us leave the question of authorship and pose another question: is criminal prosecution in this case of a citizen of the Russian Federation for opinions expressed on the forum of a Ukrainian website lawful? Russian criminal law applies a principle of citizenship which makes citizens of the Russian Federation criminally liable for crimes committed beyond its territory. (Article 12 § 1 of the Criminal Code of the RSFSR).  The action must though be recognized as a crime in the country where it was committed.  Yet in Ukraine nobody considers Zelenyak’s remarks to constitute a crime (just as there is no crime in citizens of Ukraine making offensive remarks about Ukrainians on the forums of any Russian or Ukrainian websites).  Why then were criminal proceedings launched?  Evidently because in Russia they consider the place of the crime to have been Zelenyak’s flat where he allegedly typed the texts deemed by the prosecution to be offensive on the keyboard of his computer.

I would note that this is a controversial question which is not regulated by the law. Since we are speaking about the circulation of offensive texts than it would be natural to consider the place where the crime was committed to be precisely that place where the texts were circulated. However the forum of a Ukrainian website is open for all users, Russian and Ukrainian. If one draws an analogy with defamation suits, then one should after all regard Ukraine as the place where the crime was committed, after all suits in defence of honour and dignity against journalists and the media are always lodged according to the legal address of the editorial office (or owner) of the media outlet. Yet the Russian law enforcement agencies have not approached either the owners or the administration of the proUA site at all.

In world practice there is no unambiguous solution to the issue of jurisdiction. It is known that the USA assert that their legislation takes precedence over the laws of any other country. Thus the Supreme Court of New York State, where gambling is prohibited, at the end of July 1999 delivered its verdict in the case of “The People v. World Interactive Gaming Corp. The respondent, registered in the State of Delaware, organized an Internet casino on servers located in Antigua, where it also licensed its gambling activities.  Nonetheless, the ruling was passed in favour of the claimant. The Court noted in its ruling that for the case in point the fact that the respondent had not violated the local laws of Antigua where such activities are permitted was not of importance. What was important was that the actual participation in the gambling was occurring in New York State and that work with the servers in Antigua was being carried out from the sovereign territory of the State. Yet in the case of the Canadian company Braintech Inc., which carried out its activities in the State of Texas, versus John Kostyuk, the Canadian appeal court involved in spring of 1999 refused to recognize a court ruling from the State of Texas in a defamation suit, and declared that US jurisdiction did not cover Canada’s information realm where the resource of the respondent was organized.

It is therefore impossible to unambiguously state that the jurisdiction defined by the Russian law enforcement agencies is correct. Yet can one consider that criminal prosecution is well-founded?  In other words,

Is Article 282 of the Russian Federation Criminal Code applicable in this case?

This is by no means an idle question. Pursuant to Article 282 § 1:

“Actions aimed at inciting ethnic, racial or religious enmity, denigrating national dignity, or propagating ideas of uniqueness, superiority or inferiority of citizens on the grounds of sex, race, nationality, language, origin, attitude to religion, as well as affiliation to any social group, if these acts have been committed in public or with the use of mass media,

– shall be punishable by a fine from 100 to 300 times the minimum wage, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to two years, or by deprivation of the right to hold specified offices or to engage in specified activities for a term of up to three years, or by compulsory works for a term of up to 180 hours, or by corrective work for a term of up to one year, or by deprivation of liberty for a term of up to two years”

In criminal law actions may be considered to be aimed at achieving a criminal objective only where there was direct intent. Thus the author of the texts who identified himself as novosibirsk-2 had to be aware of committing the actions identified in Article 282 and wish to do so. He needed to have the aim of denigrating the national dignity of the Russian people. If this direct intent and conscious purpose are lacking, then liability may be linked to the result which followed.

I would like to see how the prosecution will try to prove the direct intent and purpose of the author of the texts, whoever he may be. I fail to see either purpose or direct intent, let alone consequences of the circulation via the forum of the texts which the defendant stands accused of having written. Therefore, in my opinion, Article 282 of the Criminal Code of the RF is not applicable.

From the point of view of human rights

This case is a typical example of the clash between freedom of expression and the struggle of the state against hate speech. The clash has been resolved in an obvious fashion in favour of the struggle against hate speech, and through means of criminal prosecution. Such prosecution is a serious restriction of the constitutional right to freedom of expression. Is the intervention of the state in the given case that which is “necessary in a democratic society” and “proportional”?  In my opinion, it is not, meaning that it represents a violation of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  One of the fundamental principles which forms the basis for judgments of the European Court of Human Rights on Article 10 of the Convention and which has on many occasions been reiterated by the Court is as follows.

Freedom of expression is one of the inalienable principles of a democratic society and one of the basic conditions for its progress and the self-fulfilment of each individual.  It is not only information or ideas which are received favourably, or considered harmless, or perceived neutrally that are acceptable, but also those which offend, shock and irritate. These are the demands of pluralism, tolerance and broadmindedness without which there can be no democratic society.

If all the Russian judicial bodies find Zelenyak guilty, and he chooses to appeal to the European Court, in my opinion he will have a very good chance of winning his case.

I am not even talking of Voltaire’s “I disapprove of what you say but I will defend to the death your right to say it”. Unfortunately in today’s Russia these words are being forgotten.

I personally find the Russophobic texts of novosibirsk-2 distasteful, although I can see that they were written in the heat of a discussion in response to no less aggressive and insulting remarks (the prosecution, it would seem, is entirely disregarding this). However I understand quite clearly that one cannot be prosecuted for angry words. The judge of the US Supreme Court who had learned much from experience Judge Blake said that the best remedy against abuse of freedom of speech was even more freedom of speech. I believe that he was correct.

Parallels

The Taras Zelenyak case is extraordinarily reminiscent of the dissident cases under Article 190 of the Criminal Code of the RSFSR where “for disseminating untrue stories which defame the Soviet State and social order”, as well as for preparing and disseminating works with such content”, people usually got sentences of three years deprivation of liberty. The KGB found untrue stories defaming the system in samizdat and tamizdat [works written in the USSR, but published abroad] – in books and articles which the assessment labelled as anti-Soviet. I am not aware of a single case where the fact of defamation, that is, of a deliberate lie was proven. During the period of perestroika all these books ceased to be “anti-Soviet” and were published.

If one remembers that the Internet is the modern equivalent to samizdat and replaces “the Russian nation” for “the Soviet State and social order”, then what we have is a case which is painfully familiar.

The same denunciation from someone outraged by a compatriot’s anti-state behaviour, the same expert assessment, the same disregard by the prosecutor for details in the evidence regarding the fact of circulation, the same … one would like to be wrong and not have to write “the same trial”.

Just over forty years ago the writers Andrei Sinyavsky and Yuli Daniel were declared particularly dangerous state criminals and sentenced to 7 and 5 years deprivation of liberty for having published their works abroad under the pseudonyms Abram Terz and Nikolai Arzhak. Is it not all very similar to the story with Zelenyak and novosibirsk-2?  After all the texts on the forum are like literary works, their authors in this way express and affirm themselves, and losing themselves play, adopting different roles and personae.

In history what begins as tragedy ends as farce.

“Looking at their ugly face”

Let’s leave all juridical and legal arguments and look at the Taras Zelenyak case from the position of simple commonsense. The more you think about it, the more you see that it’s quite transparent and far-fetched, in fact totally fabricated. One remembers the plot of the film “Remember the poor hussar” – in type this is the same situation. 

The selective nature of the case is staggering. The Russian Internet is full of xenophobic texts – anti-Ukrainian, anti-Semitic, anti-Chechen, anti-Muslim, anti-Georgian…. Why did they need to pull out this “hate speech”, and from the forum of a Ukrainian website to boot?”  Were the Russian sites not enough?

Anti-Ukrainian texts became particularly common in 2005-2006.  Just the titles of articles by Mikhail Leontiev, Mikhail Smolin and Alexei Orlov  say it all: “Ukraine  was always caked in shit and has stayed so”; “The idea of looking for idiots who’ll for some reason save Ukraine is in itself stupid”, “the Ukrainian regime is lolling about on the pavement”; “Ukraine is not Russia. Ukraine is a disease” (cf. www.km.ru). And then there are also the articles of the chief editor of the group of business journals “I.D. Rodionov” Georgy Vovt: “War with khokhly[2]”  and “Khokhly as force for progress”  (www.gazeta.ru), the article from the regional information agency “New region”: “What is nothing to a Siberian, to a khokhol is death” (www.nr2.ru). The civic organization “Local National-Cultural Autonomy of Ukrainians of the city of Novosibirsk” published an open letter with regard to such displays of anti-Ukrainian chauvinism and violations of journalist ethics, suggesting that a campaign of civic censure be launched. Forget it!  Yet it took just one user of the Akademgorodok forum to express indignation over the texts of Novosibirsk-2 on the forum of a Ukrainian website, for the provider “First Mile” to write a complaint to FSB.

The behaviour of the Novosibirsk provider seems strange. If the participants in a forum argue with each other and somebody doesn’t like various radical or offensives comments made by their opponents the providers never complain to somebody about it - they deal with it themselves. They can block the client’s access to the forum or, at the end of the day, can refuse to provide him or her with Internet services if there are consistent complaints about the person. But to write a complaint to the law enforcement agencies over comments made an outside forum, and to the FSB at that!  This strange behaviour of the provider can, I think, be explained in only one way – the initiative came from the FSB which showed an interest in the case.

Yet why did the FSB need this case? What threat to the national security of the Russian Federation can be created by burble on a forum, and on not a Russian site at that, but on a Ukrainian?  Why specifically a criminal case, instead of confining themselves to preventive measures?  And why only a year later? 

I think the answer to these questions lies in the following. Firstly, the direction of this case is entirely in keeping with the logic of the Russian form of “managed democracy”, narrowing the zone of freedom of speech like shagreen leather. Secondly, the FSB is unambiguously demonstrating through this case that it intends to control the Russian Internet and put an end to the present free-for-all (see, for example, the publication on 29 April 2005 at: http://www.babr.ru/news/print.php?IDE=21420 )

Representative of the FSB Centre for Information Security Dmitry Frolov has stated that the powers of the Russian services controlling communication systems and the Internet need to be widened.

It should be remembered that at the present time Internet providers are already under the partial control of the security services, via the notorious system SORM-2 [System of Operative Investigative Activities].

According to Frolov, the FSB is suggesting that new requirements be drawn up for provider companies “in order to prevent the dissemination via the Internet of extremist ideas, to record illegal network activity and also to have the ability to receive databases and registration of telephone subscriptions with an indication of their Internet address, both static and dynamic.”

In addition, the FSB is proposing to heighten control over operators of mobile communications as regards possibilities of access to the Internet via mobile telephones.

At the same time the FSB representative recognized that in Russia at present there is no legislative base in accordance with which the security service could carry out the entire complex of actions planned.

Thirdly, I see this case as demonstrating the will to heighten an atmosphere of mutual distrust in Russian and Ukrainian society, to fuel still further anti-Russian and anti-Ukrainian sentiments. I am prompted to think this way by the reaction to this case in Russia and in Ukraine. I would be delighted to be proven wrong, but can see no other logical answer.

The Ukrainian response

The news about the Zelenyak case elicited strong reaction in Ukraine. The case has been discussed on the forum pages of all popular websites, numerous letters have been written to international and Ukrainian human rights organizations. The participants in forum discussions do not mince words either.

On the proUA forum participants organized a mass flash-mob to the Russian provider “First mile” (cf. http://phorum.proua.com/list.php?1, the forum participants call it the “Last mile”) for writing a complaint about Taras Zelenyak to the FSB, assuming (in my opinion wrongly) that the provider is illicitly reading the private traffic of its clients.  They were supported by many participants of the “Maidan” forum.

On the “Ukrainska Pravda” forum, together with the standard buttons to press (“answer”, “quote”) it was decided to add the button “denunciation to the FSB”. Almost 90% of those voting supported this idea. (http://forum.pravda.com.ua/read.php?2,1350444,page=1).

On the “Maidan” site www.maidan.org.ua [3] a button was established for “We are collecting signatures for a petition to the Human Rights Ombudsperson of the Russian Federation which redirected people to the electronic petition form (http://www.petition.org.ua/?action=view&id=21) where they could add their signatures. Hundreds of people signed the petition to V.:L. Lukin.

On 19 September the All-Ukrainian Association “Svoboda” [“Liberty”] held pickets outside the Russian embassy in Kyiv and the RF consulates in Lviv, Odessa, Simferopol and Kharkiv. The picketers demanded the release of Zelenyak (obviously not realizing that he was at liberty on a written undertaking not to abscond), and passed on a letter addressed to the President of the Russian Federation Vladimir Putin, in which they described the selective arrest of Zelenyak as evidence of discrimination on ethnic grounds and flagrant acts aimed at further inciting hatred towards Ukrainians which was already unlimited. The letter finished with the following words: “Stop playing doctors curing “xenophobia”. Cure yourselves! Moskali [Ruskies]! Hands off Zelenyak!”  The letter was written, in my view, in the same style as the Russian texts which insult Ukrainians.

I do not believe that either Taras Zelenyak or Ukrainians need defence in the form presented by the association “Svoboda”. On the contrary, it is no worthy response to such insults to take part in arguments on the same level. Becoming entangled in discussion with such a tone is merely playing into the hands of the provocateurs who organized all of this,

One must not muddle the Russian state and the Russian people who are, nonetheless, different. There is, after all, another Russia. And such reactions among us to the Zelenyak case as the pickets of Russian embassies by the association “Svoboda” and insulting Russians on forum sites are precisely what those who have ordered this case are counting on. This reaction in fact helps the Russian authorities and works against that other Russia.  I cannot resist digressing here and quoting an excellent address given by Sergei Kovalyov on 10 May 2006 at the conference marking the thirtieth anniversary of the founding of the Moscow Helsinki Group (MHG), particularly since the speech has not been published.

The MHG is often associated with certain discoveries. For example, discovering that one needs to record human rights violations and turn to the world community with them. However that is not quite the case. It was the “Khronika tekushchykh sobytiy” [’Chronicle of Current Events’] which first started systematically recording violations, and Larissa Bogoraz and Pavel Litvinov who first turned to the world community in 1966, then it was the regular practice of the Initiative Group for Human Rights.

So how was the MHG first?  It was first in the fact that it first consciously and purposefully began to seek to have political impact on political processes. And the most amazing thing is that in all of this it retained its ideological values which were discovered by legal amateurs – dissidents, human rights activists. That was the main thing that the MHG did.

This achievement of the MHG has been lost. Yesterday at dinner I said something rude, and now self-respect is worth nothing. It was rude, but it was the truth. Earlier for self-respect you had to pay more.

It is for this reason – that self-respect is worth nothing – that our authorities don’t need either the GULAG or Glavlit[4].  They’ll decide everything without them.

There can be no equal partnership between the authorities and society. They behave like they’re the head of the household. But it’s not them who are the heads, but us.

Maintaining a tradition of conscientious opposition to the present authorities must include the following.  Yes, we are involved in politics. We are seeking power, but not for ourselves, but for the law. The banner of the rule of law must not be hypocrisy, but must be directly implemented. We have a main political priority – and this lies in making sure that the occupation of the Kremlin by the KGB is stopped. We are ready to talk conscientiously and seriously, and even for a long time, but we are not concealing the fact that our main priority is that you leave. We do not believe your hypocritical assurances that you want democracy, the rule of law and observance of human rights.

Conclusions

In my opinion, there are no elements of a crime in the actions of Taras Zelenyak. There is no convincing proof that he is the author of the texts he is charged with, while on the contrary, there are serious grounds for considering that the author of these texts was another person. Article 282 of the Criminal Code of the RF cannot be applied since the author of the remarks which Zelenyak stands accused of had no direct intent to insult the Russian nation, nor an accordingly conscious purpose. Criminal prosecution for such remarks on the forum of an Internet website are a violation of the constitutional right of freedom of expression and of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.


[1] Neither of these two words are in themselves especially offensive, one coming from the word for “Moscow”, and the other having historical roots.  Both are dismissive terms these days for Russians.  [translator’s note]

[2]  Everything said in the previous footnote applies in equal measure to the word “khokhly”, only this term is a derogatory term used by Russians about Ukrainians  (translator’s note)

[3]  The petition was explained and could be accessed in English at http://khpg.org/en/index.php?id=1158697005 [translator’s note]

[4]  Glavlit - Main Administration for Literary and Publishing Affairs – despite the innocuous title, this was in fact the main body organizing censorship in Soviet times (translator’s note)

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