A. Verkhovsky. "Public justification of terrorism" could become a new criminal offense

. April A seemingly technical draft law "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law 'On Ratification of the Council of Europe Convention on the Prevention of Terrorism' and the Federal Law 'On Combating Terrorism'" has been submitted to the State Duma and is scheduled for consideration in

Without discussing the bill as a whole here, we note that the bill creates new and dangerous uncertainties in the restrictions on freedom of speech. We are talking about an amendment to the law on the media and a new article in the Criminal Code.

Although on April 6, 2006, the Duma Committee on Security suggested that the authors make corrections to the draft law in accordance with the comments of the Government and the Supreme Court, most likely they will not refer specifically to restrictions on freedom of speech.

The bill proposes to amend Art. 4 of the law on the media in such a way as to replace the ban on the use of the media "to carry out extremist activities" with the ban on their use "to distribute materials calling for terrorism or substantiating or justifying terrorism, other extremist materials."

Firstly, this amendment clearly proceeds from the fact that for the media "carrying out extremist activities" and "distributing extremist materials" are one and the same. Yes, the confused 2002 law "On Counteracting Extremist Activity" can be understood in this way. But the same law says that the material is recognized as "extremist" only by a court decision. Thus, the norm proposed now can also be understood in such a way that it is forbidden to publish materials that have already been banned by the court (so far there are negligibly few of them). Will all journalists and even lawyers understand these subtleties? Indeed, until now, the majority of both those and others remember (if they remember at all) Art. 4 of the media law in the wording that existed before 2002, and the new amendments will only add to the confusion.

Second, the amendment specifically prohibits "justifying" or "justifying" terrorism. The motive for making such an amendment is clear and does not need to be discussed. The use of these terms is questionable.

The term "justification" clearly means some kind of proof of the necessity or necessity of an action, that is, justification is, in fact, a form of incitement to terrorism, albeit somewhat indirect. It is unlikely that anyone will argue that such forms of calls for terrorism should not be allowed in the media.

But the term "justification" does not have such a definite meaning. If a journalist wrote that terrorist N carried out his attack because he had a difficult childhood, or because he was poor, or because he was morally depressed by the process of globalization, or, let's not forget, because his relatives were killed by the police or soldiers - all these are descriptions of reasons that can be considered as mitigating circumstances in the moral sense of the word (and some of the listed circumstances, by the way, can be recognized as such by the court). Such descriptions fit the concept of "justification", since the description of the reasons is often perceived in the spirit of the saying "to understand is to forgive."

This premise is fundamentally wrong. Often a journalist describing the causes of terrorism has no intention at all of "forgiving" the terrorist, present or future, but he may be understood in this way by some readers. One can say for sure that any argument about the causes of this or that terrorism will seem to someone as its justification, even if the journalist in the same text writes that he himself is categorically against terror. And if so, it will be difficult to avoid subjectivity when considering lawsuits against the media under this paragraph of the law.

Just in case, I will make a reservation myself - I do not approve of any justification for political violence in general, and terrorism in particular. But a categorical prohibition of this kind in the law seems redundant and dangerous for a free discussion about the causes of terrorism and ways to eradicate it - precisely because of the inevitable chaos and arbitrariness in law enforcement. Cases of describing the causes of terrorism that actually contain, albeit indirectly, a call to terror, always fit the concept of "justification", so this concept should be limited in the law.

More serious objections are raised by the proposed new article in the Criminal Code - "Public calls for terrorism and public justification of terrorism" (see full text below).

"Public calls for terrorism" are already fully contained in Art. 280 of the Criminal Code on calls for extremist activities, since terrorism is included in such. (The sanctions in the proposed article are about the same.) Doubling the essence of the law is simply a deterioration of the legal act.

The "public justification of terrorism" has just been mentioned. But if the administrative ban in the mass media law raises doubts, then the possibility of imprisonment for up to four or even five years with a very indefinite corpus delicti is simply unacceptable.

Judicial practice also does not give any evidence for the introduction of a new article. Even cases under Art. 280 of the Criminal Code are extremely rare, obviously, it is difficult to apply. But the introduction of a new article will by no means make the task easier. If there are publications or speeches that, albeit in a veiled form, contain calls for terrorist activities, cases should be initiated and investigated under Art. 280 of the Criminal Code.

And the addition of the proposed article is, according to both elements of the crime described in it, completely redundant and even harmful.

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EXTRACTS FROM THE BILL:

Article 1

Include in Article 4 of the Law of the Russian Federation of December 27, 1991 No. 2124-I "On the Mass Media" (Bulletin of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation, 1992, No. 7, Article 300; Collection of Legislation of the Russian Federation, 1995 , No. 30, item 2870; 2000, No. 26, item 2737; 2002, No. 30, item 3029) the following changes:

1) in part one, the words "to carry out extremist activities, as well as to distribute programs promoting pornography, a cult of violence and cruelty" shall be replaced by the words "to distribute materials calling for terrorism or substantiating or justifying terrorism, other extremist materials, as well as materials, promoting pornography, the cult of violence and cruelty";

Article 3

Include in the Criminal Code of the Russian Federation (Collected Legislation of the Russian Federation, 1996, No. 25, Art. 2954; 1998, No. 22, Art. 2332; No. 26, Art. 3012; 1999, No. 7, Art. 873; 2001, No. 26 2587; 2002, No. 11, Article 1021; No. 19, Article 1793; No. 30, Article 3020; 2003, No. 50, Article 4848; 2004, No. 30, Article 3091, 3092) the following changes : <...>

8) supplement [CC] with Article 205-2 as follows:

"Article 205-2. Public calls for terrorism and public justification of terrorism

1. Public calls for terrorism or public justification of terrorism -

shall be punishable by a fine in the amount up to 300 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to three years, or by deprivation of liberty for a term up to four years.

1. The same acts committed with the use of mass media -

shall be punishable by a fine in the amount of 100 thousand to 500 thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to four years, or by deprivation of liberty for a term of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. ."