On April 5, 2022, journalist Mikhail Afanasyev, the chief editor of the online magazine “New Focus,” published an article about 11 National Guard officers from the Republic of Khakassia who refused to participate in combat operations in Ukraine. According to Afanasyev, the officers demanded to be sent back home after their colleagues’ convoy was ambushed near Kyiv. The author noted that the Khakassian officers were officially dispatched to Belarus for training exercises on riot control, but on February 24, they were ordered to move towards Kyiv without any support. Eleven officers refused to follow this order and were subsequently sent back to Khakassia, where they were decided to be “dismissed for negative reasons.” After its publication, this information was declared “deliberately false,” and its author, Mikhail Afanasyev, was sentenced to 5.5 years in a general-regime colony. He became the first Russian journalist to be prosecuted under a new law for spreading “fake news” about the Russian Armed Forces “using his professional position.”

This story will be examined from three perspectives: Pro, Contra, In fact

PRO

Experts’ Opinion
Experts question the legitimacy of the charges. At the time of the article’s publication in “New Focus,” the National Guard’s OMON was not part of the Russian Armed Forces. “In modern Russian language, only those who are on active military service in a state military organization, which forms the basis of the country’s defense, are considered military personnel of the Armed Forces,” explained linguist Elizaveta Koltunova in her court statement. Afanasyev did not write about such military personnel, the expert asserted.

“There is no corpus delicti under Article 207.3 of the Criminal Code of the Russian Federation in this case,” claimed one of Afanasyev’s lawyers, Vladimir Vasin. This defense position is based on the fact that almost all the information in the journalist’s article about the OMON officers was later officially confirmed.

The Defendant’s Last Word
In his final statement, the editor-in-chief of “New Focus” stated that he did not intend to “discredit” the OMON officers with his material but merely highlighted longstanding issues within the law enforcement structure. Afanasyev also noted that “a journalist cannot (and should not) be perfectly competent and impeccably accurate legally in their work.”

“By prosecuting for speaking out in defense of a neighbor in my articles, they seem to be trying to teach me that manifestations of arbitrariness, tyranny, lawlessness, indifference, and sometimes murderous stupidity of officials are none of my business. No, it is precisely my business. I care about everything in Khakassia because I am a journalist, and every person is my neighbor. I came to journalism not to turn a blind eye to injustice and the sores on the body of society,” said Afanasyev in his final statement.

CONTRA

Afanasyev was charged with “public dissemination under the guise of credible reports of deliberately false information about the use of the Russian Armed Forces” (part 2 of Article 207.3 of the Criminal Code of the Russian Federation). According to the indictment, Afanasyev “provided false information about the number of dead, missing, and wounded, about inadequate material support, and about the inadequate performance of duties by the leadership,” which falls under the “fake news” law.

The prosecutor repeatedly asked the journalist to name the specific OMON officers who contacted him, but Afanasyev maintained their anonymity, as he had promised them, and did not reveal anyone’s identity until the end. The prosecution insisted that Afanasyev’s guilt should be classified under the “fake news” article since, in their view, the National Guard is part of the Armed Forces, as stated in the law “On Defense,” which allows the National Guard to be involved in defense tasks. The prosecutors also referred to the law on the National Guard, which provides for it to have “other tasks.”

The case materials indicate* that a certain lieutenant, even before the case was initiated, noted in his report that “the motive for Afanasyev’s actions is a negative attitude towards the Russian Armed Forces’ special military operation.” The case materials also include testimonies from two witnesses, Alexander Val and Sergey Serikov, who were asked identical questions about where and when they read Afanasyev’s article. Val and Serikov’s answers were similar: they had a “negative impression of the text,” and the publication “negatively affected public consciousness” as the information “did not find confirmation in official sources.”

The investigation claimed that Afanasyev had a “direct criminal intent to publicly disseminate under the guise of credible reports deliberately false information” about the army “during the period from 00:00 on March 4, 2022,” when Article 207.3 of the Criminal Code of the Russian Federation came into force. The method of such precise determination of “criminal intent” was not disclosed.

Court Decision
During the trial, the prosecutor requested** a 6-year prison sentence for the defendant. On September 7, 2023, Judge Evgeny Glushchak sentenced the journalist to 5.5 years in a general-regime colony, with a subsequent ban on practicing journalism for 2.5 years.

IN FACT

Discrepancies in the publication and the testimonies of the interviewees were purely quantitative. “The movement of the unit was carried out with other National Guard units, which were deployed in the field with us. The number of people was more than 1,000,” said one of the OMON officers in court, contradicting M. Afanasyev’s claim that their unit moved without any support. Not all interviewees confirmed Afanasyev’s accusations against the military leadership regarding “poor provision and living conditions.” Not all information about the dead and wounded mentioned in the article corresponded with the official data from the General Staff of the Armed Forces.

The European Court of Human Rights considers the use of exaggeration by journalists permissible. This is particularly mentioned in one of the key decisions of the European Court of Human Rights: in the case of “Prager and Oberschlick v. Austria” (1995), the ECHR clarified that “journalistic freedom also includes the possibility of resorting to a certain degree of exaggeration or even provocation.” If exaggeration helps people to pay attention to an issue of public interest.

Mikhail Afanasyev drew attention to an issue that undoubtedly represents public interest: the use of National Guard troops not for their intended purpose, which, according to the Law on the National Guard Troops, is “ensuring state and public security, protecting the rights and freedoms of individuals and citizens.”

The independent human rights project “Support for Political Prisoners. Memorial***” recognized Mikhail Afanasyev as a political prisoner based on Article 19 of the International Covenant on Civil and Political Rights (everyone has the right to hold opinions without interference, the right to freedom of expression, and the right to seek and disseminate information and ideas).

*, **, *** – recognized as “foreign agents” on the territory of the Russian Federation.