Speech by the SOVA Center at the press conference "Artistic protest - a right or a crime?" in the case of the group "War"

We offer your attention to the text of the speech representative of the "SOVA" center press conference on the topic "Artistic prostest - a right or a crime?", held in St. Petersburg at the Institute regional press December 13, 2010. The press conference was dedicated persecution for criticizing the government, in particular - to the case of the Voina group. Among the speakers were Oleg Vorotnikov's lawyer Anastasia Yekimovskaya, lawyer of the human rights association "Agora" Ramil Akhmetgaliev, director of the "Human Rights" program of the Smolny Institute Dmitry Dubrovsky, representative of the artistic community Elena Kostyleva.

Information and analytical the SOVA center was initially engaged in and deals with the far-right radicalism in Russia. Mainly, we monitor the number of violent hate crimes and how the state deals with these crimes. For some time now we have become also note cases where the state inadequately or simply misunderstands laws framed anti-extremist, which leads to violation of the rights of individuals, the media and organizations. What we call misuse of anti-extremist legislation, became the subject our special attention when found that the number of such cases is growing steadily. In particular, the adoption amendments in 2007 to the Criminal Code expanded the possibilities for arbitrary interpretation and use anti-extremist law in order to suppression of freedom of expression.

We we want to emphasize that we do not possible to evaluate (positively whether, negatively) actually itself creativity of the group "War" in categories art, nor try to prove them special position under the law. Before everyone is equal by law, and the offense, even as an artistic act, must qualify as such.

But we think that in this case the law is both formulated and enforced wrong, and this is public danger, and does not affect only those who are accused of this case.

For began on the shortcomings of the law.

How it is known that the War group is accused of hooliganism motivated by hate (para. ″b″, part 1 of article 213 of the Criminal Code of the Russian Federation (hooliganism based on political, ideological, racial, national or religious hatred or enmity, or for reasons hatred or enmity towards any social group). Next we for simplicity, we will call this motif just a ″hate motive″.

IN our legislation is hooliganism is of two types:

First - subject to the Criminal Code: gross violation of public order, expressing a clear disrespect for society. Its subspecies are hooliganism with using a weapon or an object, its substitute, or hooliganism based on hatred (part one of article 213), and also hooliganism committed organized group, by agreement, or resisting employees law enforcement agencies (part second article).

Second — falling under the Code of Administrative offenses: petty hooliganism, that is a breach of public order, expressing clear disrespect for society, accompanied by foul language in public places, offensive pestering citizens, as well as destroying or damaging someone else's property. There is also a provision for resistance.

Criminal the code provides for maximum punishment in the form of imprisonment for up to seven years, administrative - in form of arrest up to 15 days.

motive hatred in Article 213 of the Criminal Code appeared after amendments in 2007. Before the qualification hooligan act under the Criminal Code or the Code of Administrative Offenses was made, to simplify, in depending on whether it was applied weapon. After 2007, any, even completely a petty act previously covered by Administrative Code, became criminally punishable if present hate motive.

IN the current version of the Criminal Code since 2007 it turns out that point ″b″ of the first part Article 213 describes non-violent hooligan acts committed by motive of racial and other hatred. This contradicts the logic of the Russian criminal law. It turns out that some an act that is not criminal in itself that is, not described in any article CC, it becomes a crime because it happened at the same time for two motives - hooligan and motive hate. Yes, the criminal's motivation can be an aggravating circumstance (for example, in case of injury person). But the motive itself cannot make a non-criminal act criminal. We see here an error in the Criminal Code, which must be fix.

Any crime, in fact, violates public order and is considered as expressing clear disrespect for society. The specifics of such a crime like hooliganism in that its purpose is public order disturbance, committed for the purpose of violating public order (other purposes, if any, secondary). Let us remember how in the famous Soviet film young lawyer girl saved Mimino from more heavy accusation, proving not hooligan, but a personal motive in the attack.

How only a clear motive appears, and the motive hatred is as bright as, for example, motive of self-interest, violation of public order ceases to be an end in itself and, hence the action ceases to be hooliganism in the sense of Art.213. That's why the very use of the motive of hatred in this article is inappropriate. Although with others crimes, these two motives can, in Basically, match.

Now - about the applicability of the hooligan motive and motive of hatred for the actions of the "Voina" group.

Absolutely it is obvious that everything committed by the "War" group, including the action "Palace coup" was not an aimless violation public order. Your goals performers of actions clearly and unambiguously communicated to the public in their reports.

First our statement: band members ″War″ did not commit crimes, which can be qualified as hooliganism. And Article 213 of the Criminal Code is incorrect the qualifications of their actions.

Now Let us turn to the motive of hatred.

Let's say our words will be heard, and the consequence will try to qualify the inflicted during the action damage for some other, more specific article of the Criminal Code, leaving this is the motive of hatred towards the social group "militia".

Note what we basically think is wrong the presence in the criminal code of a social motive, political or ideological hate as an aggravating circumstance for not serious crimes, especially - not related to personal violence or calls for violence. (Let's say vandals destroyed the monument. But hardly the damage to the monument is greater if the inflicted some kind of hostile slogan on him political party.)

Special claims are subject to application in law concept of hostility to the "social group". The term "social group" in the law not defined in any way, in ordinary language and even in science, it also does not have an unambiguous understanding, resulting in interpretation arbitrarily. The most frequent groups protection of which - in accordance with anti-extremist legislation - the Russian law enforcement got up the system is employees of various law enforcement and officials (sometimes specific, sometimes as entire professional group). We We think this is absurd for two reasons. First, even in the absence of a generally accepted definitions of "social group", it is incorrect to consider as such any professional group. Note that we do not know any clear arguments in favor of employees police, for example, is a social group. This is usually presented as a fact. But even if we accept this fact, we We believe that the concept of "hate motive" designed to protect the vulnerable discriminated against group, should be used to protect representatives of power and authority structures, already sufficiently protected by other laws.

So, incorrectly used in qualifying this action "War" motive of hatred. Hence our second assertion: the Voina group did nothing that could be persecute as part of the anti-extremist legislation.

On this is our claim to qualification the offense charged members of the ″War″ group are ending. Our third and final thesis is the measure curb artists chosen disproportionately their danger to society. After all, if It's not about bullying, it's public danger of those arrested not such that it was necessary to deprive them freedom before trial.

We would also like to take the opportunity and turn to Petersburg law enforcement officers with the question: why in city ​​becomes a regular practice choosing a measure of restraint in the form of a subscription on travel ban for people, suspects and accused of violent hate crimes, Is it just in serious crimes? Case Study: A person who is detained in November on suspicion of beating citizen of Cameroon this summer, was presented exactly the same article, as the group ″War″ (hooliganism according to motive of hatred), but he was released under recognizance not to leave.

Sources

• Message from the organizers of the press conference. 2010. December 13.