Some comments by Lev Levinson on anti-terrorist innovations

*We publish excerpts from Lev Levinson's extensive commentary on the law signed by the President "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"".

The full text under the heading "Cleansings in the Law" was published in issue 101 of the bulletin "The Legislative Process in the State Duma: Human Rights Analysis" (see the bulletin's archive ).

We have previously published a brief commentary on this law when it was still a bill.*

On April 19, the Federal Law (Draft N 282601-4) "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" was adopted in the first, July 5 - in the second and third readings, and of the Federal Law "On Combating Terrorism", introduced by members of the Federation Council Viktor Ozerov, Mikhail Sorokin, Alexei Alexandrov, Vasily Klyuchenok, Vladimir Melnikov, Alexei Shishkov, Valery Fedorov, Anatoly Lyskov, deputies Vladimir Abdualievich Vasiliev, Anatoly Kulikov, Vladimir Katrenko, Gennady Gudkov , Mikhail Grishankov, Mikhail Babich, Valery Dyatlenko, Alexander Gurov (ER), Sergei Abeltsev (LDPR). Signed by the President of the Russian Federation on July 27, 2006 (N 153-FZ).

Far from protecting the security of the individual and society, for the sake of which only the power functions of the state should be used, is provided by a new comprehensive law that changes, sometimes quite profoundly, 15 laws. The justification of arbitrariness, which receives legal indulgence, can be called with certainty its sign. In order to please the omnipotence of the special services, legal "conditions" that restrain it have been brought - on an extraordinary scale: freedom of speech, inviolability of private life, guarantees of judicial protection of rights and freedoms, adversarial legal proceedings, separation of powers, up to the sovereignty of other states.

Article 4 of the media law, beloved by various guardians, which describes cases of inadmissibility of abuse of freedom of the mass media, has undergone yet another addition dangerous to informational freedom.

The prohibition on the use of the media to carry out extremist activities, which appeared in Article 4 in 2002, has now been turned into a prohibition on "the dissemination of materials containing public calls for terrorist activities, or publicly justifying terrorism, or other extremist materials."

Extremist activity (extremism), according to the law "On counteracting extremist activity", already included public calls for terrorist activities. The law under consideration (Article 11) supplemented the definition of extremism with the "public justification of terrorism." So, from the formal point of view, the amendments to the media law do not add anything in this part. An addition to the anti-extremist law would be quite enough.

In terms of substance, whether legislators savor the favorite word "terrorism" in a media law or an extremism law, banning its justification in relation to the media gives the green light to arbitrary restrictions on freedom of speech and new political taboos of editorial self-censorship. Where does the national liberation movement end and terrorism begin? Can journalists "justify" Hamas and Hezbollah? Will the "justification" of the revolutionary terror of Robespierre or Savinkov be recognized as a violation?

The restrictive interpretation of "justification of terrorism" given in the note to article 205-2 of the Criminal Code of the Russian Federation ("public justification means a public statement recognizing the theory and practice of terrorism as correct, in need of support and imitation") is applicable only to the Criminal Code and does not apply to the law about the media.

The Council of Europe Convention, which the commented law allegedly interpolates into the media law, is in no way responsible for the prohibition of justifying terrorism. The Convention does not use the phrase "justification of terrorism". It is criminalized public incitement to terrorism, which is understood as "the dissemination or other presentation of any message to the public for the purpose of inciting the commission of a terrorist offense when such conduct, whether or not it directly promotes terrorist offenses, creates the risk of committing one or several such crimes. In addition, the Convention emphasizes that it is not intended to prejudice established principles regarding freedom of expression. So, when translating into the language of Russian legislation, the meaning of the Convention was somewhat distorted.

Article 205 of the Criminal Code has acquired greater accuracy and somewhat less capacity (which is fully redeemed by the new wording of Article 205-1 and the appeared Article 205-2 [see below for the full text of these three articles in new wording - ed. ]). The title of the article has been changed from "Terrorism" to "Terrorist act". The definition of this crime now excludes the goals of violating public safety and intimidating the population. Only such commission of an explosion, arson or other actions that frighten the population and create a danger of human death, causing significant property damage or other grave consequences, which is committed in order to influence the adoption of a decision by authorities or international organizations, is recognized as a terrorist act.

Article 205-1, called "Assistance to terrorist activities" under the new law (previously called "Engagement in the commission of crimes of a terrorist nature or other assistance in their commission"), has been brought into line with the Council of Europe Convention on the Prevention of Terrorism. But this is just a shell. The stuffing has nothing to do with the Convention. And it consists in the fact that the crimes envisaged by Articles 278 ("Forcible seizure of power or forcible retention of power") and 279 ("Armed rebellion") are classified as terrorist crimes. Thus, a dubious equal sign is placed between terrorism and revolution. The semantic acquisition of such a decision can only be considered the self-disclosure of power: the fight against terrorism is indistinguishable for it from the struggle for self-preservation. And all anti-terrorism, in fact, is just a justification for holding power by the ruling elites. In practice, the extension of the disposition of Article 2051 to actions prosecuted under Articles 278 and 279 means: assistance to what can be interpreted by the authorities themselves as their violent capture or armed rebellion will entail liability as a terrorist crime - from four to eight years in prison or, when using official position, from seven to fifteen.

The Code was supplemented with Article 205-2 "Public calls to carry out terrorist activities or public justification of terrorism" with a sanction of up to four years in prison (and up to five when using the media). A note that appeared before the second reading of the law somewhat reduces the vagueness of the concept: “In this article, public justification of terrorism is understood as a public statement recognizing the ideology and practice of terrorism as correct, requiring support and imitation. But how to read this note in practice, in application to specific cases? The restrictive reading that the defense would resort to would insist on a literal understanding of the norm: if one did not publish a text or make a statement that (verbatim) the ideology and practice of terrorism is correct and need to be supported and emulated, but simply speculated on the subject, then Article 205-2 should not apply to him, but the prosecution will interpret the article differently: to reveal, by resorting to philological and psycholinguistic examinations, the hidden meaning of what was said.

But no matter how you interpret the note, the criminal-ideological collection of the Criminal Code, which already includes articles 280, 282, 319, 329, has been supplemented with a new acquisition. In this case, a person is persecuted for words, regardless of whether there is a connection between them and any socially dangerous consequences.

The addition of Article 208, which entails responsibility for the creation of an armed group and its leadership, with an indication of the financing of this activity, gives rise to an unhealthy duplication of Article 205-1 specified by the same law. The latter already discloses the financing of terrorism as, in particular, the financing of crimes under Article 208. Under the first part of Article 205, you can get from four to eight years, under the first part of Article 208, for the same actions - from two to seven. The investigator will choose.

[Amendments to the Code of Criminal Procedure] for article 205-1 of the Criminal Code ("Assistance to terrorist activities"), previously attributed to the exclusive jurisdiction of the FSB, the alternative jurisdiction of the prosecutor's office is defined. Also, both bodies are entrusted with conducting investigations under Article 205-2 (“Public calls for the implementation of terrorist activities or public justification of terrorism”). It is assumed, probably, that there will be a lot of work on these articles, there will not be enough hands.

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For clarity, we present the updated text of the three articles of the Criminal Code:

Article 205. Terrorist act"

1. Committing an explosion, arson or other actions that frighten the population and create a danger of death, causing significant property damage or other grave consequences, in order to influence the adoption of a decision by authorities or international organizations, as well as the threat of committing these actions for the same purposes -

shall be punishable by imprisonment for a term of eight to twelve years.

1. The same acts committed:

a) by a group of persons by prior agreement;

b) (repealed)

c) with the use of firearms, -

shall be punishable by imprisonment for a term of ten to twenty years.

1. The acts provided for by paragraphs 1 or 2 of this article, if they are committed by an organized group, or if they negligently caused the death of a person or other grave consequences, and are equally associated with an encroachment on objects using atomic energy or with the use of nuclear materials, radioactive substances or sources of radioactive radiation, or poisonous, poisonous, toxic, dangerous chemical or biological substances -

shall be punishable by imprisonment for a term of fifteen to twenty years or life imprisonment.

Note. A person who participated in the preparation of an act of terrorism shall be released from criminal liability if he or she contributed to the prevention of the act of terrorism by timely warning of the authorities or otherwise, and if the actions of this person do not contain any other corpus delicti.

Article 205-1. Facilitating terrorist activities

1. Deceiving, recruiting or otherwise involving a person in the commission of at least one of the crimes provided for in Articles 205, 206, 208, 211, 277, 278, 279 and 360 of this Code, arming or training a person in order to commit at least one of these crimes, and as well as the financing of terrorism -

shall be punishable by imprisonment for a term of four to eight years.

1. The same acts committed by a person using his official position -

shall be punishable by deprivation of liberty for a term of seven to fifteen years, with or without a fine in the amount of up to one million rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to five years.

Notes. 1. Financing of terrorism in this Code means the provision or collection of funds or the provision of financial services with the knowledge that they are intended to finance the organization, preparation or commission of at least one of the crimes provided for in Articles 205, 2051, 2052, 206, 208, 211 , 277, 278, 279 and 360 of this Code, or to provide for an organized group, an illegal armed group, a criminal community (criminal organization) created or being created to commit at least one of these crimes.

1. A person who has committed a crime under this article shall be released from criminal liability if he, by timely reporting to the authorities or otherwise contributed to the prevention or suppression of the crime, which he financed and (or) assisted in committing, and if his actions do not contain other corpus delicti .

**Article 205-2. Public calls for terrorist activities

or public justification of terrorism**

1. Public calls for the implementation of terrorist activities 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 roubles, 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.

Note. In this article, the public justification of terrorism is understood as a public statement on the recognition of the ideology and practice of terrorism as correct, in need of support and imitation.

Bulletin "Legislative process in the State Duma: human rights analysis". N101. 2006. August 10 (review of the spring session of 2006, part 2)