27 january, 2014
A new anti-terror
Author: Maxim Grigoriev, no comments
There is no secret that terrorists actively exploit the internet for organization of terrorist attacks. Due to this, a set of bills targeted a tightening anti-terrorist laws was submitted to the State Duma.
In the end of 2013, two terrorist attacks took place in Volgograd. An explosion in a trolleybus on the 15A route killed 15 people; 18 people, including two children of 11 and 12 years, were killed because of a train station bombing. Two more children were orphaned. A part of the victims are still staying in hospitals in the cities of Moscow, Volgograd, and Volzhsky.
These tragic events expedited State Duma’s work on much overdue anti-terrorist laws. Representatives of all political parties had proposed their amendments to the laws: deputies I. Yarovaya, O. Denisenko, A. Lugovoi, and L. Levin.
Both the proposals per say and their concordance with the national law and actual practices of other countries are worth of a detailed analysis.
One of the first deputies’ proposals was stipulated by liquidation of an embarrassing gap in the legal provision for anti-terrorist activities. Readers might be interested to know that in accordance with the present ar. 27.7 of the RF Code on Administrative Violations, “personal inspections and inspections of belongings in persons’ possession” could be carried out, depending on specific situations, by officials from quite a broad list of structures.
Presently this list includes: MI, interior troops, departmental and non-departmental security services, military transport inspection, border control structures, customs offices, institutions of the penal system, court bailiffs and “agencies authorized with supervision and control on following the law in the sphere of environmental protection, forest law, and the animal world law.”
A thoughtful reader must have asked why the Federal Security Service is missing in this list, while it must counter terrorism. The amendment proposed by the deputies to p. 13 of the Law “On the Federal Security Service” will allow its officers carry out “personal inspection and inspection of belongings in person’s possession” should there be a good reason to suspect the person in committing crimes.”
We have only to ask: why this had not been done earlier?
It is broadly known that terrorist organizations use the internet as one of communication channels for coordination of their activities. Having spent some little time, any reader can see examples of how the internet could be used as an advocating tool for appeals to commit terrorist actions or public palliation of terrorism (ar. 205.2 RF Criminal Code).
Law enforcement agencies’ practices in such countries as the U.S., Great Britain, Sweden and others is to pick up messages and freely analyze all accessible information, both inside the countries and abroad.
For example, mass media claim that the U.S. National Security Agency provides for receiving and keeping of so-called metadata on telephone calls and information transferred through the internet for five years. Do we need to mention that this is done automatically and without any court sanctions?
The idea of the Russian deputies is to make “organizers of data distribution and exchange in the internet” be responsible for “storage of the data received and transmitted, delivery and processing of voice message, written texts, images, sounds or any other actions committed by users in the course of information sharing and/or data exchange for six consequent months after the end of such actions and provision of the indicated information to authorized state agencies carrying out investigative activities.”
De-facto, we are speaking about to subjects: information publicly placed by the user and the metadata.
In the first case, regulations on the access to this information are of no relevance: the used had already placed the information for everybody’s access. In the second case, “organizers of data distribution and exchange” provide for information and data storage; however, law enforcement agencies’ access to it is regulated by the Law “On Investigative Activities.”
According to this law, access should be carried out on the basis of motivated court decisions and only in urgent cases with notification of the judge and duty to receive the same permission within 48 hours.
Let me remind you that the actual foreign practice provides for such access automatically. This difference between the deputies’ proposal and foreign practices is cardinal.
At the same time, coordination of the essential public goal of countering terrorism with concerns to load business with additional financial burden is a crucial issue for an immediate discussion. This is reflected in deputies’ amendments to the law which say that the “amount of the information subject to storage should specified by the government.”
The third important amendment is connected with anonymous payments. Deputies proposed to give up anonymous “trans-boundary payments” and restrict similar internal payments to one thousand rubles per day and 15 thousand rubles per month.
In the recent time, a version has already emerged in the Russian mass media that this amendment is linked to the authority’s desire to restrict financing election campaigns of oppositional candidates. This idea has no sense for the mere reason that such financing of candidates is prohibited by law.
Foreign financing is prohibited by the election laws in the majority of democratic countries including Russia. A similar situation has place in regards with anonymous donations: in accordance with 2002 law on the major guarantees of election rights, anonymous donors “are prohibited to donate money to candidates’ election funds” (ar. 57, p. ‘n’).
Concerns and fears of the companies using anonymous payments for shifting away from taxes are clear. They will have to start to abide the law.
With that we can agree with concerns of the Qiwi System owners. However, they officially stated that they understood the need in countering terrorism and hope that “the option of various remote and simplified ways of user identification will be considered.”
By the way, experts have already proposed various options of quick and easy for users identification mechanisms based on affiliation of a Qiwi account with passport data and a mobile telephone SIM-card.
The true reason for the amendments is that not only this kind of measures on countering terrorism corresponds the international standards, but they are essential in accordance with recommendations of the Group for development of financial measures on money laundering (FATF).
The group itself was established back in 1989 by a G8 resolution; presently, 34 states and two international organizations including the European Commission are its members. Recommendations developed by the Group have ultimate and clear character.
For example, according to the 2012 version, recommendations №10 and №11 require that financial organizations “should provide identification and identity confirmation of a client through using reliable and independent primary documents and keep all the necessary records on the operations for at least five years after termination of contacts with the client.”
With that it is necessary to assume measures of such sort not only in case of exceeding the limit of a particular amount of a single operation, as many experts mistakenly assume, but decline operations in case of “accounts set in clearly feigned names” and verify clients in case of “any doubts on the sufficiency of personal data.” Clearly, any anonymous operation is an example of insufficient data.
In case of trans-boundary transfers, recommendation №16 directly prescribes the countries to “provide for financial institutions to include the required and accurate information on senders and required information on recipients in electronic transfers, and make it so that this information accompanied electronic transactions or the messages sent along the whole payment chain.”
More than that, UN Resolution №1617 prescribes all UN member states abide with all forty FATF’s recommendations regarding money laundering and nine special recommendations concerning financial support to terrorism.
In regards to the measures proposed by the deputies the only question is why this sort of measures had not been adopted earlier, and if the proposed amendments would be sufficient to fulfill recommendations listed in the U.S. resolution.
However, the most important deputies’ proposals were: annulations of the period of limitation and toughening of punishment for such crimes as commitment of terrorist attacks and sponsoring terrorism.
Unfortunately, both international and Russian practices show that terrorist activities more and more often become the mode of life for some people; despite the term of severity of imprisonment, these people tend to go back to it.
For example, in 2006, Americans let out of the Guantanamo prison a citizen of Morocco Mohammed al-Alami. Seven years later he was killed in Syria: he participated in combat operations on the terrorists’ side. There is reliable information about another former inmate of the prison, i.e., Muhammad Mazvaz, who is currently engaged in terrorist activities in Syria under the nick Mazhar Abou El Ezz.
We have more homely us examples. For example, Ruslan Odizhev, who departed Nalchik in 1993 for the Saudi Arabia and then moved to Afghanistan. Detained with a group of Talibs, Americans placed him to Guantanamo.
After his handover to Russian authorities in 2004 and due to lack of evidence of his guilt, he was dismissed. He told at his meetings with Moscow human rights activists that he “went to Afghanistan to get spiritual education.”
Later on, he took part in the attack on Nalchik in 2005. In 2007, he was shot dead in the course of a special operation next to a cathedral mosque in Kabardino-Balkaria. He had three improvised explosive devices on his body in addition to guns, grenades, and city maps in his car.
A similar situation took place with Ravil Gumarov and Timur Ishmuratov. According to the law enforcement agencies’ information, in 2000, Ishmuratov went to Tajikistan, lived there with local militants, and later went with them to Afghanistan.
Captured by Americans, they were placed in Guantanamo; after their handover to Russian authorities, they were also released due to lack of evidence of their guilt. After that, starting with 2004, they were engaged in what they referred to in their interviews to Moscow journalists as “charitable activities and assistance to Muslims.”
With that the majority of targets of their “charitable activities” were imprisoned activists of the terrorist organization Hizb ut-Tahrir al-Islami.
In 2005, he organized an explosion on a gas pipeline together with Fanis Shaikhutdinov, who never made a secret of his trips to Chechnya and relations with Shamil Basayev and Zelimkhan Yandarbiyev.
Gumarov and Ishmuratov were convicted to nine and eight years for “Terrorism” and “Illicit possession of weapons and explosives.” The readers would be interested to know that the first of those has already been released, while the second one is to be released next year.
According to deputies’ proposals, the ultimate measure of punishment for committing a terrorist attack will be imprisonment for a term of 15 to 20 years or a life term.
To compare: ar. 2332b “Acts of terrorism committed with crossing state borders,” Title 18 of the U.S. Code of Laws, presumes the following ultimate punishment: death penalty or life imprisonment in case of actions which had caused death of a person; life imprisonment for kidnapping; imprisonment for up to 35 years for causing injuries; imprisonment for up to 30 years for an attack with life endangering weapons; imprisonment for up to 25 years for causing material damages.
In the dominating majority of cases the real punishment has noticeably graver character. As the matter of fact, the American Law, unlike the Russian one, has the norm of total cumulative sentence. Because of this, often the real terms under the “Terrorism” article de-facto are life imprisonments.
For example, in 2004, Palestinian Z. Safarini was convicted for 160 years of imprisonment for a hijacking attempt; in 2008, Columbian X. Pineda, 56, was sentenced for 60 years of imprisonment for pre-arrangements of a kidnapping of American citizens.
To put it straight, the American legal system de-facto believes that “there is no such thing as former terrorists” and does its best to “lock” them forever with no sentiments whatsoever.
In all fairness, let us remind about the broad-scale practice of extrajudicial murders of terrorist suspects with the help of pilotless planes. It is interesting to point out that presently there exists a norm of detention for an arbitrary period of time of anyone suspected in “committing a hostile act” without any judicial safeguards.
This exactly wording is contained in the 2011 Law on National Defense signed by Nobel Prize Winner B. Obama. According to ar. 1021, in regards of anyone suspected in “hostile activities,” continuous “detention without judicial safeguards” is allowed, for example, in Guantanamo.
If we assess amendments to the anti-terrorist law proposed by the deputies, there is doubt that those are not only pending but are many years overdue.
It is also clear that the list of measures proposed is a lot more shy and severity lower that it is foreseen in the international legal practice. It is also absolutely clear that a number of amendments proposed by the deputies need detailing and higher degree of specification.
And the most important thing is to make sure that further work on improvements of the anti-terrorist law had systematic character and would not depend upon tragic events.
Business newspaper VZGLYAD, 21.01.2014
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