Aidar Sultanov: The legal nature of cases on recognition of information materials as extremist from the point of view of civil proceedings

We bring to the attention of readers an article by Aidar Sultanov, published in the journal "Lawyer" (No. 1 for 2012).

In this article the author considered some of the problems that arose with the advent of a new kind of cases - cases on recognition of information materials as extremist. According to the author In order to properly resolve these problems, it is necessary to correctly identify the legal nature of this type of case. The analysis carried out raises serious doubts about the possibility of their existence in civil proceedings.

Keywords: extremism, recognition extremist information materials, sanction, civil judiciary, European Court of Human Rights.

Legal Nature of Cases Concerned With Recognition of Information Materials as Extremist from the Civil Procedure Perspective

In this article the author refers to the problems associated with the emergence of a new kind of cases – recognition of information materials as extremist. In the author’s opinion in order to resolve these problems properly it is necessary to identify correctly the legal nature of such cases. The results of performed analysis give rise to strong doubts about possibility of their existence in civil procedure.  

Key words: extremism, recognition of information materials as extremist, sanction, civil procedure, European Court of Human Rights. 

The relevance of research

Over the past few years, the number civil cases considered by courts of general jurisdiction, on the recognition extremist information materials has risen sharply.

However, courts in various regions Russia has a different approach to resolving this kind of cases. It's kind of due to the fact that there is no mention of this category of cases in the Code of Civil Procedure of the Russian Federation, as well as the uncertainty of the Federal Law "On countering extremist activities”, which only mentions that cases of recognition as extremist initiated at the request of the prosecutor. Code of Civil Procedure of the Russian Federation contains a mention of the term “representation of the prosecutor”, only as an appeal to a higher court, and the law "On the Prosecutor's Office of the Russian Federation" by submission means an appeal to the body or to an official who is authorized to eliminate the committed violations, and who subject to immediate consideration (Article 24 of the Federal Law "On the Prosecutor's Office of the Russian Federation").

Accordingly, in this situation, the courts receive various types of procedural appeals of the prosecutor's office. So the prosecutor's office of St. Petersburg apply to the court with applications for recognition of materials as extremist, indicating as procedural grounds of Art. 245 Code of Civil Procedure of the Russian Federation, which is supported by the St. Petersburg Court (Definitions dated September 28, 2009 No. 12780, dated September 28, 2009 No. 12783 No. 4460 dated 10.03.2011, etc.). This approach leaves the impression of a logical one, since, of course, this is a dispute from public legal relations, however, section III of the Code of Civil Procedure of the Russian Federation, which regulates proceedings on cases from public legal relations, is absolutely not adapted to this kind of cases. In the form in which this section of the Code of Civil Procedure of the Russian Federation exists, it is obvious that it was intended only for this kind of disputes, where the requirements are directed to government agencies, and not vice versa. Procedural guarantees established for citizens and their associations, available in this section, are formulated precisely in such a way that they only apply in a situation where the applicants are citizens….

In the Krasnodar Territory, trying to solve this problem, the Krasnodar Regional Court and the Prosecutor's Office of the Krasnodar Territory issued a joint information letter dated 11/20/2007 “On the procedure consideration by the courts of cases provided for by the Federal Law “On Counteracting extremist activity." This letter states that the Federal law "On counteracting extremist activity does not contain clarifications in which procedural order cases should be considered, provided for in Articles 6-9, 13 of this law and provides clarifications that we we consider it appropriate to partially reproduce: “...when considering cases on termination activities of the mass media carrying out extremist activities, on the prohibition (liquidation) of a public (religious) association, carrying out extremist activities, and on the recognition of information extremist materials, it is necessary to apply the following procedural order:

- resolution of cases is carried out according to the rules of action proceedings;

• burden of proof for the parties distributed in accordance with the requirements of paragraph 1 of Art. 56 Code of Civil Procedure of the Russian Federation: each party must prove the circumstances to which she refers as the basis their claims and objections;

- granting and claiming evidence during the consideration of cases is carried out in a general manner, provided for by Art. 57 Code of Civil Procedure of the Russian Federation.

This approach seems to be quite logical, however, there are other approaches. For example, when the prosecutor applied to the court for recognition of the information material extremist in one of the district courts of Omsk, the court left him without movement. In the ruling of the court, the prosecutor was asked to issue statement of claim, indicating in it the name of the defendant, his location. But this Determination was canceled by the Determination of the Judicial Collegium on civil cases of the Omsk Regional Court [1] for presentation by the prosecutor.

In the submission, the prosecutor requested cancel the court ruling, citing the fact that the application was drawn up in accordance with with the current legislation, the requirement for recognition of information extremist material is not subject to consideration in the order of claim production.

Revoking the ruling of the court, and directing material to the district court to resolve the issue of accepting the application for production, the judicial board of the regional court proceeded from the following.

“In accordance with paragraph 1 of part 1 of Art. 262 Code of Civil Procedure of the Russian Federation court considers cases in the order of special proceedings, including the establishment of facts of legal significance. By virtue of h. 1 Article. 264 Code of Civil Procedure of the Russian Federation court establishes the facts on which the emergence, change, termination personal or property rights of citizens, organizations.

List of facts having legal the value established h. 2 Article. 264 Code of Civil Procedure of the Russian Federation, is not exhaustive. In accordance with paragraph 10, part 2 of Art. 264 Code of Civil Procedure of the Russian Federation by the court other facts of legal significance may be established.

So, in accordance with Part 2 of Art. 13 of the Federal Law dated July 25, 2002 N 114-FZ "On countering extremist activities" (with the latest amendments and additions) information materials are recognized extremist federal court at the place of their discovery, distribution or location of the organization that produced such materials, on based on the presentation of the prosecutor or in the proceedings on the relevant case about an administrative offense, civil or criminal case.

In the prosecutor's declaration of recognition extremist information material raises the question of establishing the legal status of the information material, which in the future may have legal significance, including not only for attracting persons to responsibility for the distribution, production or storage of the corresponding information material, but also for the removal, further prevention dissemination of material by others. Such an application is subject to civil proceedings under the rules of special proceedings.

On the inadmissibility of considering cases of recognition of information materials as extremist in a special proceeding, we already wrote earlier, analyzing the very procedure of special proceedings [2] and drawing attention to the inadmissibility of considering this type of cases in an indisputable procedure. However, the majority of cases on the recognition of information extremist materials still takes place in an indisputable procedure – special production.

We believe that there are different approaches courts that allow, among other things, the consideration of such cases in a special production, is caused, first of all, by the fact that, unfortunately, the procedural doctrine did not pay attention to this kind of cases and, accordingly, did not develop answer about the legal nature of this type of cases.

Correct Definition due process depends on the correct definition of the legal nature cases on recognition of information materials as extremist.

At first glance, the claim prosecutor in this type of cases, as well as in other cases of recognition referred only to the court. But the fact that the claim is directed only to the court is not can serve as a qualifying sign that could help us in determining the legal nature of this type of cases. Moreover, the direction claims of the prosecutor only to the court, upon careful consideration, it turns out in doubt, because simultaneously with the decision on the recognition of information extremist materials, the court must decide on the confiscation of such materials, i.e., terminate the ownership rights of a particular owner of the data materials. Of course, in this case the claim is directed against owner.

Recognition of materials as extremist is a public law sanction.

From the title of Art. 13 of the Federal Law "On countering extremist activity”, which provides for the recognition of information extremist materials, we can see that in this article we are talking about liability for the dissemination of extremist materials.

Certainly the responsibility distribution of extremist materials is a public law form responsibility.

It should be noted that the norm which establishes responsibility for the dissemination of public materials is complex. So the hypothesis of this norm is located in different articles of the Federal Law "On countering extremist activity", in Art. 280, Art. 282, 282.1 of the Criminal Code of the Russian Federation and Article 20.29 of the Code of Administrative Offenses of the Russian Federation [3] . The main sanctions are also found in the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation, in the Federal Law "On countering extremist activity” there are only additional sanctions, such as recognizing materials as extremist and publishing on the federal list of extremist materials, as well as confiscation materials recognized as such [4] .

Although it should be noted that the inclusion of materials in the federal list of extremist materials is not only a sanction, but also the hypothesis of the norm on bringing to administrative responsibility established in Article 20.29 of the Code of Administrative Offenses of the Russian Federation. In the absence of inclusion materials to the federal list of extremist materials of the administrative responsibility does not come. That is, the recognition of information materials extremist is the establishment of one of the elements administrative and legal composition, without which there is no administrative and legal responsibility ... That is, in fact, it can be recognized that that the legislator, formulating provisions on administrative responsibility, agreed that the description of extremist activity is so broad and uncertain that bringing to administrative responsibility is possible only when this or that material will be on the federal list extremist materials. Of course, this raises questions about compliance with legislation on countering extremist activity principle of legal certainty, which requires, among other things, that the legal norm was clear and unambiguous (see: Decrees of the Constitutional Court of the Russian Federation of April 25, 1995 N 3-P; July 15, 1999 N 11-P; dated November 11, 2003 N 16-P, dated December 13, 2001 N 16-P, Resolution of June 17, 2004 N 12-P), formulated in this way, so that the addressee of the norm can understand what actions or omissions can be grounds for bringing him to justice (Judgment of the ECtHR in the case Coem v. Belgium, paras 145-146; in the case of OAO Oil Company Yukos v. RF "p. 567). However, discussion of these issues requires a separate article, in In the same article, we confine ourselves to consideration of questions about the legal nature of cases of recognition of information materials as extremist.

We believe that in the light of the above our assertion that the recognition of materials as extremist is sanction, needs to be considered in more detail, since there is a point view that by recognizing materials as extremist, the court only “establishes legal status of materials”. Thus, in the decision of the Judicial Board on Civil Cases of the Sverdlovsk Regional Court dated January 10, 2008 (case N 33-91 / 2008) the following position was expressed "In the submission prosecutor of the Verkh-Isetsky district of Yekaterinburg on recognition extremist information materials contained in the book "A", there is no question of bringing any person to administrative or criminal liability. In fact, the prosecutor in the submission asks establish the legal status of the information materials set out in the specified book, which in the future may have legal significance, including only to hold persons liable for the distribution, production or storage of such information materials, but also for their withdrawal, further preventing their distribution by other persons, which is allowed in civil proceedings under the rules of special proceedings".

However, information materials it is not a thing that exists by itself - it is always the result of someone actions, they always have an author. We think it appropriate to ask in this regard questions: What are the legal consequences for the author of information materials due to the recognition of information materials created by him extremist? Is it possible to consider the issue of recognition of materials extremist without the involvement of the author?

In accordance with Art. 15 FZ "On countering extremist activity" author of printed, audio, audiovisual and other materials (works) intended for public use and containing at least one of the signs, provided for in Article 1 of this Federal Law, is recognized as a person engaged in extremist activities, and is responsible for in accordance with the procedure established by the legislation of the Russian Federation. Confession information materials as extremist is the recognition that they are intended to be made public and call for the implementation of extremist activities or justify or justify the need for such activities (Part 3, Article 1 of the Federal Law “On countering extremist activity”), while extremist activity is the actions named in Part 1  Article 1 of the Federal Law "On counteracting extremist activity."

Therefore, recognition information materials can take place only when this material was intended for distribution and not for personal use. In the same time, From the above norms, it follows unequivocally that the recognition extremist information materials is always the establishment of a fact the commission by the author of this material of extremist activity. Confession extremist information materials - is an establishment illegality of the author's actions and is a condemnation, censure of the author and is at the same time a restriction on his freedom of expression, since such recognition is at the same time a ban on the dissemination of information materials.

In Art. 13 of the Federal Law "On countering extremist activities” the legislator indicated as a general prohibition: “On territory of the Russian Federation, the spread of extremist materials, as well as their production or storage for the purpose of distribution.

Further, the legislator specifically stipulated, that the production, storage or distribution of extremist materials is an offense and entails liability, only in cases provided by the legislation of the Russian Federation. This disclaimer raises the question: violation of the general ban on the production, storage and distribution of extremist materials is not always a crime? Only in strictly defined cases? Then why was it necessary to formulate a general ban?

We believe that the legislator here he simply used an unsuccessful legal technique and, intending to make reference to administrative and criminal legislation, accidentally placed under questioned the general ban on production, storage and distribution extremist materials.

However, in public law, in that parts where the question of responsibility is raised, the text of the norm should be formulated in a strictly defined manner, excluding arbitrary interpretation, and the law enforcer is bound by the literal writing of the norm and is not entitled to apply rules on liability by analogy or trying to broadly interpret the rules rights.

Accordingly, it can be argued the legislator, establishing that “Information materials are recognized extremist federal court at the place of their discovery, distribution or location of the organization that produced such materials, on based on the presentation of the prosecutor or in the proceedings on the relevant case on an administrative offense, civil or criminal case", in fact created a rule that provides for the recognition of extremist materials only in the presence of cases specially established in substantive law, when production, storage and distribution of extremist materials is an offense .

Recognition of information materials extremist and their confiscation

Mention in Art. 13 FZ "On countering extremist activity”, which “simultaneously with the decision on recognition of information materials as extremist, a decision is made by the court on their confiscation”, in our opinion, is also a confirmation that recognition of materials as extremist is a measure of public law, applied concurrently with another public law measure. Of course, confiscation is public law measure, and not civil law, since it is not compensatory rather than punitive.

Although the chapter of the Civil Code of the Russian Federation devoted to termination of ownership, there is an article on confiscation, but this article (Article 243 of the Civil Code of the Russian Federation) is not a regulation of the sanction. Rather she is a civil law reflection of the application of sanctions for committing crime or other offense in criminal procedure or administrative procedure. We believe that this article included in the Civil Code of the Russian Federation, since the legislator adopted the Civil Code of the Russian Federation while still unfinished codification of administrative legislation, which consisted of time from numerous by-laws, including departmental acts. Accordingly, Art. 243 of the Civil Code of the Russian Federation, some guarantees were fixed that that confiscation would be possible only on the basis of laws and that the decision to confiscate, taken administratively may be subsequently challenged in judicial order. To date, these guarantees in the Civil Code of the Russian Federation in connection with codification of administrative legislation is simply unnecessary - Art. 3.7 The Code of Administrative Offenses of the Russian Federation provides that confiscation is appointed only by a judge [5] . In accordance with the Code of Administrative Offenses of the Russian Federation, confiscation is recognized as both the main and additional administrative punishment (part 2 of article 3.3 of the Code of Administrative Offenses of the Russian Federation).

It should be noted that the confiscation the procedure for its application has been repeatedly considered by the Constitutional Court of the Russian Federation.

In a recent ruling of the Constitutional Court of the Russian Federation of April 25, 2011 N 6-P "In the case of verification constitutionality of part 1 of article 3.7 and part 2 of article 8. 28 of the Code of the Russian Federation of Administrative Offenses in connection with the complaint of the company with Limited Liability Company "StroyKomplekt" reflected that “... The Civil Code of the Russian Federation establishes that in cases where provided by law, the property may be confiscated from the owner free of charge by a court decision in the form of a sanction for the commission of a crime or other offenses (article 243, paragraph 1). On the same understanding of confiscation property - as a special measure of public responsibility for an act that, according to as a general rule, committed by the owner of this property, are also oriented by the norms criminal and criminal procedure legislation (part two of Article 2 and clause "d" of the first part of article 104.1 of the Criminal Code of the Russian Federation, clause 1 part three of Article 81 of the Code of Criminal Procedure of the Russian Federation).

Addressing a number of their decisions (Decrees of the Constitutional Court of the Russian Federation of January 25, 2001 N 1-P, of 27 April 2001 N 7-P, dated July 17, 2002 N 13-P, determinations dated April 9 2003 N 172-O, dated December 7, 2010 N 1570-O-O, etc.) to the question of the resulting from the Constitution of the Russian Federation general principles of legal responsibility, which in their essence relate to the foundations of the rule of law, The Constitutional Court of the Russian Federation came to the following conclusions:

As follows from article 54 (part 2) of the Constitution of the Russian Federation, legal liability may arise only for those acts which, by law in force at the time they were committed, are recognized as offences. The existence of an offense is such way, the necessary basis for all types of legal liability; at This is the signs of the composition of the offense, primarily in the public law sphere, as well as the content of specific elements of offenses must be consistent with constitutional principles of a democratic constitutional state, including the demand for justice, in its relationship with physical and legal persons as subjects of legal responsibility. On the other hand, guilt as an element of the subjective side of the offense - a generally recognized principle bringing to legal responsibility in all branches of law, and any an exception to it must be expressed directly and unambiguously, i.e. fixed directly in the law.

So Thus, in order to confiscate information materials, one must establish the guilt of the person who created them for the purpose of distribution, or distributed extremist materials, or produced or stored them for the purpose of distribution.

That is, creation, production, storage of extremist materials shall entail liability only if there is intent to spread extremist materials.

This is probably the correct approach that solves the problem possession for personal purposes of materials recognized as extremist, in particular, ownership for scientific purposes.

Law enforcement realities

Consider whether the described above approach in practice. For analysis, take the case of confiscation described on the Jehovah's Witnesses website [6] , This case is convenient for consideration because, in addition to describing the situation on The site contains a judicial act that contains the information necessary for analysis.

In October 2010, Senior Assistant the prosecutor of the Zavolzhsky district of Tver, having appeared at the house of 71-year-old Valentina Fomushkina, without her consent seized all the spiritual literature she had—and this is 471 the name of brochures, magazines and books, including the Bible.

Guess what's rude interference with the right to property and freedom of religion was to have very good reasons. However, a woman who, for health reasons, is not could leave the house, was deprived of the only opportunity to access liturgical texts, not due to the fact that she prepared this literature for distribution and not in connection with the fact that she was engaged in extremist activity, and in connection with an attempt by the prosecutor to attract another pensioner for "mass distribution of extremist materials". The seized literature presented by the prosecutor as material evidence in a case against another pensioner, Lyubov Belimova. He pointed out that she "spread" all this Fomushkina's literature, and within a few months. World judge decided to impose a fine of 1,000 rubles on Belimova, and all the seized liturgical literature - including the Bible! — confiscate and destroy.

This decision was appealed. The complaint was partially upheld [7] , among other things, the federal judge agreed with the correctness of the adoption confiscation measures, indicating that “by virtue of Art. 3.7 Administrative Code of the Russian Federation, Resolutions and Determinations of the Constitutional Court of the Russian Federation, which allow for committing administrative offense confiscation of tools or objects not belonging to the infringer on the property right, the magistrate came to correct conclusion about the confiscation of literature, since simultaneously with the decision on the recognition of information materials as extremist, the court accepts decision to confiscate them.

That is, the court understood that the property was confiscated not of the offender, but the property of a person not involved to administrative responsibility and not being a participant administrative business. Apparently, the court was still aware of the problem confiscation of property not belonging to the violator and the problem of issuing a court decision on the rights and obligations of a person not involved in the case, and therefore, he made a reference to the Decree and Determination of the Constitutional Court of the Russian Federation. IN the same time, the court did not indicate the details of the decisions of the Constitutional Court of the Russian Federation, throughout appearances, realizing that the decisions of the Constitutional Court of the Russian Federation coinciding in the plot no case. Apparently, the court had in mind the Resolution of the Constitutional Court RF dated May 14, 1999 N 8-P "On the case of checking the constitutionality of the provisions part one of Article 131 and part one of Article 380 of the Customs Code of the Russian Federation in connection with the complaint of the closed joint-stock company "Siberian agency "Express" and citizen S.I. Tenenev, as well as a complaint from the company "Y.& G. Reliable Services, Inc." and Definition of the Constitutional of the Court of the Russian Federation of November 27, 2001 N 202-O "On official clarification Resolutions of the Constitutional Court of the Russian Federation dated May 14, 1999 on the case on the verification of the constitutionality of the provisions of the first part of Article 131 and part the first article 380 of the Customs Code of the Russian Federation", which, although and does not completely coincide with the plot of the case, but was also used by other courts for justification for the confiscation of weapons or objects not belonging to the offender on ownership [8] . Although, in our opinion, the position of the Federal Arbitration court of the Far Eastern District, which in Resolution of May 12, 2003 N F03-A51 / 03-1 / 968 indicated that the Resolution of the Constitutional Court of the Russian Federation of May 14 1999 N 8-P is not applicable to relations not regulated by Art. 29 Administrative Code RSFSR, as well as paragraph 2 of Art. 235 and Art. 243 of the Civil Code of the Russian Federation with part 1 of Art. 380 Customs Code Russian Federation on cases of customs offenses, since the application   administrative responsibility by analogy is prohibited. In this Decree The Federal Arbitration Court of the Far Eastern District upheld the exclusion from the act of inventory of the confiscated property, due to the fact that the plaintiff, who is the owner of the property, did not commit an administrative offense, in fact which issued a decision of the Petropavlovsk City Court of Kamchatka area dated 04/13/2001, and which made a decision on confiscation.

It should be noted that the resolution of the Constitutional Court of the Russian Federation of April 25, 2011 N 6-P "In the case of verification constitutionality of part 1 of article 3.7 and part 2 of article 8.28 of the Code of the Russian Federation of Administrative Offenses in connection with the complaint of the company with limited liability "StroyKomplekt" also refers to legal position set out in the Resolution of the Constitutional Court of the Russian Federation of May 14 1999 N 8-P cannot automatically apply to the entire area administrative and tort relations.

Certainly we cannot reproach the court for not applying the legal positions set out in the Resolution of the Constitutional Court of the Russian Federation of April 25, 2011 N 6-P "On the case on the review of the constitutionality of part 1 of Article 3.7 and part 2 of Article 8.28 Code of the Russian Federation on Administrative Offenses in connection with complaint of a limited liability company "StroyKomplekt", because it was announced more than a month after the hearing of the case federal judge.

At the same time, we cannot fail to point out - in of this Resolution, the Constitutional Court of the Russian Federation indicated that the provisions of Part 2 Article 8.28 of the Code of Administrative Offenses of the Russian Federation - to the extent that they relationship with part 1 of Article 3.7 of this Code, contrary to the requirements articles 46 (part 1) and 54 (part 2) of the Constitution of the Russian Federations allow confiscation of weapons as an administrative punishment committing an administrative offense at the owner of this property, not brought to administrative responsibility and not recognized as legal procedure guilty of committing this administrative offense - in violation of article 55 (part 3) of the Constitution of the Russian Federation disproportionately restrict the right to private property guaranteed by Article 35 (parts 1 and 3) of the Constitution of the Russian Federation.

Moreover, if this decision of the Constitutional Court of the Russian Federation was announced after the adoption of the judicial act, then legal positions that reveal the content of the constitutional the right to judicial protection, formulated, in particular, by the Decrees of 3 May 1995 N 4-P in the case of checking the constitutionality of articles 220.1 and 220.2 of the Code of Criminal Procedure of the RSFSR, dated March 16, 1998 N 9-P in the case of verification constitutionality of Article 44 of the Code of Criminal Procedure of the RSFSR and Article 123 of the Code of Civil Procedure of the RSFSR, dated 17 November 2005 N 11-P in the case of constitutional review part 3 of article 292 of the APC of the Russian Federation, should have been known court.

In these Regulations The Constitutional Court of the Russian Federation explained that “The right to judicial protection refers to fundamental inalienable rights and freedoms and at the same time acts as a guarantee all other rights and freedoms, by virtue of Article 56 (part 3) of the Constitution of the Russian Federation, it cannot be restricted under any circumstances. Right to judicial protection implies specific guarantees of effective restoration in rights through justice that meets the requirements of fairness; from Article 46 of the Constitution of the Russian Federation in conjunction with its articles 19 (part 1), 47 (part 1) and 123 (part 3), fixing the equality of all before the law and the courts, the right of everyone to consideration of his case in that court and by the judge to whose jurisdiction it is referred law, and the principle of conducting judicial proceedings on the basis of adversarial and equality of the parties, it follows that the constitutional right to judicial protection is not only the right to apply to the court, but also the possibility of obtaining real judicial protection in the form of restoration of violated rights and freedoms in accordance with legislatively fixed criteria, which in the normative form (in the form general rule) predetermine in which court and in which procedure consideration of a specific case, which allows the court (judge), the parties, others participants in the process, as well as other interested parties to avoid legal uncertainties in this matter.

Constitutional Court of the Russian Federation from the data legal positions and based on the interrelated provisions of Articles 1, 2, 18, 45 and 118 of the Constitution of the Russian Federation, in Resolutions of the Russian Federation N 1-P of February 20 2006 "In the case of the review of the constitutionality of the provisions of Article 336 of the Civil Procedure Code of the Russian Federation in connection with complaints citizens K.A. Ineshina, N.S. Nikonov and open joint stock company "Nizhnekamskneftekhim" and dated April 21, 2010 N 10-P "On the case on the verification of the constitutionality of the first part of Article 320, the second part of Article 327 and Article 328 of the Civil Procedure Code of the Russian Federation in connection with the complaints of citizen E.V. Aleinikova and Limited Liability Company responsibility of "Three K" and inquiries of the Norilsk City Court Krasnoyarsk Territory and the Central District Court of the city of Chita "indicated the obligation The Russian Federation as a legal state to create an effective system of guaranteeing protection rights and freedoms of man and citizen through justice, inalienable element of the normative content of the right to judicial protection, which has universal character, is the competence of interested parties, including not involved in the case, to apply to the court for the protection of their rights and freedoms violated by unjust judgment . Permission court of the issue of the rights and obligations of persons not involved in the case, not allows us to consider the trial fair, ensuring everyone in the event of a dispute about his civil rights and obligations, the fixed article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the right to a fair and public hearing within a reasonable time by an independent and impartial court. A person not involved in the case, in respect of who has received a judgment violating his or her rights and freedoms, or placing additional burdens on him, in any case should have effective means of restoring their violated rights, as this is required by article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights proceeds from this in its practice, which repeatedly pointed out that this article guarantees accessibility on national level remedies for exercising substantive rights and the freedoms set forth in the Convention, whatever form they take provided in the national legal system; remedies should be "effective" in the sense that they must prevent the alleged infringement or to terminate it, as well as to provide adequate compensation for the violation already occurred (decrees of 26 October 2000 in Kudla v. Poland, 30 November 2004 in the case of Klyakhin v. Russian Federation, etc.).

Of course, these legal positions could be applied in the situation in question, since the decision to confiscate property of a person not involved in the consideration of the case will be an act issued on rights and obligations of a person not involved in the consideration of the case.

But by the decision of the judge of the Central district court of Tver on March 18, 2011, the decision of the magistrate did not was canceled, but was only changed indicating that of the 471 copies seized literature, only 38 copies of printed materials were recognized as extremist and included in the federal list.

Federal judge left on the list subject to confiscation and destruction of literature only informational materials, on the federal list of extremist materials, as well as leaving force of punishment in the form of a fine.

Disagreeing with the rulings Belimova filed a supervisory appeal. Tverskoy Regional Court in the Resolution dated 10/18/2011 the canceled the decision that came into force on the involvement of Lyubov Belimova, professing the religion of Jehovah's Witnesses, liable under Article 20.29 of the Code of Administrative Offenses of the Russian Federation, the proceedings were terminated due to the lack of action Belimova L.P. composition of an administrative offense. In the same time, the confiscation decision was upheld.

From the text of the Decree of the Chairman of the Tver Regional Court dated 10/18/2011 shows how the court solved the problem of confiscation information materials from a person, not to involve in the consideration of the case - the court simply indicated that the literature had been confiscated from the person involved in responsibility - with Belimova, i.e. just changed the circumstances of the case...Here Perhaps comments are unnecessary. At the same time, the very fact of confiscation informational materials, despite the fact that the case of an administrative offense discontinued raises questions about the legality of such confiscation. It's obvious that the absence of corpus delicti is a right-preventing legal a fact that does not allow the application of a confiscation sanction.

Apparently the court “somewhat” confused the confiscation with something else. For example, withdrawal from illegal possession of a person who has committed an administrative offense, tools commission or the subject of an administrative offense withdrawn from circulation and on this basis subject to conversion into the ownership of the state or destruction is not confiscation (clause 3, article 3.7 of the Code of Administrative Offenses of the Russian Federation). Attribution of literature to extremist materials, of course, means limiting such materials in circulation and a ban on transactions with them, however, the law does not their withdrawal is provided when the person owning them does not intend them for distribution and does not commit related offenses.

We believe that, nevertheless, the legislator in The Federal Law "On counteracting extremist activity" reasonably established confiscation as a sanction to the offender, which is fully consistent provisions h.3 Article. 55 of the Constitution of the Russian Federation that the rights and freedoms of man and citizen may be limited by federal law only to the extent that necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and state security.

The law enforcement officer is definitely not may go beyond the limits of liability and broadly interpret them, replacing the legislator.

The above analysis, although carried out on the example of an administrative case, however, we do not see any reasons so that when considering issues of confiscation when considering civil cases, other approaches have been taken. Confiscation and in civil case does not cease to be a sanction applicable only to the guilty person, “personally committed an offense ... legal liability is a consequence offenses" [10] .

Due process depends on on the judicial procedure in which the issue of confiscation is considered, and on its legal nature, as a measure of public liability.

The purpose of recognizing information materials as extremist and the tasks civil litigation

Of course, civil procedure the form cannot be used to extract evidence committing public offenses for which administrative and criminal liability, under the guise of "establishing the legal status information materials". We will not find such a task in the Code of Civil Procedure of the Russian Federation, this is certainly contradicts the basic provisions of the Code of Criminal Procedure of the Russian Federation and the Code of Civil Procedure of the Russian Federation.

In the Resolution of the Plenum of the Supreme of the Court of the Russian Federation of June 28, 2011 N 11 "On judicial practice in criminal cases on extremist crimes" was given the following clarification that “when considering criminal cases on crimes of extremist direction, the courts should ensure, on the one hand, the protection of public interests (foundations of the constitutional system, integrity and security of the Russian Federation), and on the other hand, the protection of those guaranteed by the Constitution of the Russian Federation of Rights and Freedoms of Man and Citizen - freedom of conscience and religion, freedom of thought, speech, mass media, the right to freely seek, receive, transmit, produce and disseminate information by any legal way."

Accordingly, this task is in courts and when considering cases on the recognition of materials as extremist. Availability this problem shows that when considering cases on the recognition of materials extremists always have a dispute about the right.

The dispute about the right to freely search, receive, transmit, produce and distribute information by any lawful way to freely study religious books, exercising the right to freedom of conscience and religion.

We cannot fail to note that recognition of information materials as extremist is not intended to protect private interest, but is aimed at preventing the spread extremist materials - that is, a ban, a ban.

The lawsuit for prohibition was known Roman law, under the name of the prohibition claim (actio prohibitoria), whose purpose was to oblige (prohibit) the defendant not to interfere with the freedom of the owner ^[eleven] .

Although in the Russian procedural science has not been given much attention to injunction claims [12] , for any proceduralist it is known that a requirement aimed at compelling the defendant to refrain from doing something prohibition) is a claim for award and, more precisely, claims for award to inaction (in cases where the plaintiff requires the defendant to refrain from certain actions) [13] .

Where the subject of the action for the award is a substantive claim of the plaintiff against the defendant, compulsory which the plaintiff is seeking. Grounds for an action for coercion constitute legal facts indicating that the right has been violated ..., those. the same circumstances (facts) that create, modify or extinguish rights and obligations of the parties or prevent the emergence of rights and obligations [14] .

Accordingly, the claim for prohibition, the prohibition must have an addressee to whom this prohibition is addressed. We can “suggest” that on the basis of a court decision on the recognition of information extremist materials, these materials are placed on the federal list extremist materials, which is a ban for an indefinite circle of persons moreover, by prohibiting not only distribution, but actually restricting the right to receive these information materials. Of course it is, but as we already wrote, "informational material" is always the fruit of someone's creation, they always have an author who, with the recognition of information materials extremist, becomes a person engaged in extremist activities.

Therefore, the requirement for recognition extremist materials in some cases is a claim for prohibition to to an indefinite circle of persons and at the same time a “claim” for bringing to public liability of the author, as well as the owner of information materials intended to distribute them. At least the gist of the claims prosecutor and the legal nature of the recognition of information materials extremist is precisely this, although often the presence of claims to the author in we may not see the requirements of the prosecutor. What indicates a mismatch such requirements to the provisions of Article 131 of the Code of Civil Procedure of the Russian Federation.

We believe that consideration of such types of cases in civil proceedings, can hardly provide that level of legal guarantees, which is necessary in terms of international standards fair justice, which, when considering this type of cases, require compliance with the procedural guarantees provided in criminal prosecution.

Legal positions of the ECtHR.

Although at the time of this writing articles of the judgments of the European Court of Human Rights (hereinafter "ECtHR"), there are no cases handed down in cases against Russia in this type of cases yet, available applications to the ECtHR are still at the admissibility stage, nothing deprives us of the opportunity to learn from the mistakes of others.

It should be noted that at administrative cases and even civil cases in some cases with the purpose of the need to comply with the European Convention on Human Rights and fundamental freedoms (hereinafter referred to as the "Conventions"), the Russian law enforcer must comply with the guarantees established by art. 6 of the Convention, as if in these individuals were subjected to “criminal charges”.  That is, in a number of cases, the principles of criminal procedure must be observed when civil case ^[15] , since the need for such an approach is due to the fact that the concept of “criminal charge”, applied by the ECtHR, is autonomous from the qualification of the national rights ^[16] .

For example, the ECtHR in its judgment of 4 November 2008 Balsyte-Lideikiene v. Lithuania Lithuania] (N 72596/01) found that in the case of prosecution for a publication inciting ethnic hatred, the guarantees of Art. 6 of the Convention, provided for criminal charges. In this case, the ECtHR found a violation of Art. 6 of the Convention due to the fact that the charge that controversial publication incited ethnic hatred was based on expert opinions, and the courts, in finding the applicant guilty, widely cited expert opinions which played a key role in the proceedings brought against her proceedings, but she was not given the opportunity to question experts from for the purpose of challenging the credibility of their conclusions. The ECtHR has done in this Ruling that the refusal to grant her request for questioning experts in open court did not meet the requirements of Article 6 conventions.

We consider it possible to consider here in more detail the judgment of the ECtHR, since the legal positions set out in this judgment may be useful for understanding the attribution of the ECtHR to this or that other kinds of cases to criminal and, accordingly, the applicability of the provisions of Art. 6 Convention on Procedural Guarantees in Criminal Charges. But first let's remind them:

"2. Each person accused of committing of a criminal offense is considered innocent until his guilt is not will be established by law.

1. Each person accused of committing criminal offense has at least the following rights:

a) be prompt and detailed informed in a language he understands of the nature and basis of the accusations;

b) have sufficient time and opportunities to prepare their defense;

c) defend himself personally or through through a lawyer of his own choosing or, if he lacks the means to payment for the services of a defense lawyer, to use the services of a lawyer assigned to him free of charge when the interests of justice so require;

d) interrogate those testifying against his witnesses or have the right to have those witnesses examined, and have the right to call and examine witnesses in his favor under the same conditions as for witnesses testifying against him;

e) enjoy free help an interpreter if he does not understand the language used in court or does not speak this language."

Accordingly, these procedural guarantees must be provided even if national law the case may not be classified as criminal ... Of course, this fact obliges us be attentive to the approaches of the ECtHR, since ignoring them may lead to violation of the rights and freedoms of citizens and to the next losses in the ECtHR.

So, in the Balsite-Lideikiene case v. Lithuania, the ECtHR questioned whether the proceedings were criminal in exclusive understanding of Article 6 of the Convention and thus falls under guarantees provided in this regard by Art. 6 of the Convention under consideration the fact that the applicant was sanctioned in the form of an administrative warnings and confiscation of unsold copies of the Lithuanian Calendar 2000.

First of all, the ECtHR pointed out that when determining whether an offense should be considered a criminal offense, three criteria: legal qualification of the offense in the national legislation, the nature of the violation and the nature and severity of the possible punishment (see, inter alia, Engel et al., cited above, § 82, and the case of Lauko v. Slovakia, judgment of 2 September 1998, "Messages on resolutions and decisions", 1998-VI, p. 2504, § 56).

Having considered the first criterion, the ECtHR stated, that, in accordance with national law, the Code of Administrative offenses is not characterized as “criminal”, however, indicators observable in the law of the respondent State, have only a relative meaning (see Oztürk v. Germany, judgment of 21 February 1984 of the year, series A No. 73, p. 19, § 52).

The ECtHR also recalled that according to his established practice, the second and third criteria are alternative and not necessarily cumulative: for Article 6 to be considered applicable, it is sufficient that the offense in question be considered “criminal” from the point of view of terms of the Convention or that the offense puts a person at risk application of a sanction which, by its nature and severity, was generally to the criminal sphere (see Ezeh and Connors v. Great Britain (Large Chamber), nos. 39665/98 and 40086/98, § 86, ECtHR 2003-X). This does not exclude application of the cumulative approach in cases where separate analysis of each criterion does not allow reaching an unambiguous conclusion regarding the presence “criminal charge” (see Lauko, § 57).

As for character offense committed by the applicant, the ECtHR recalled that she had a sanction was applied for the production and distribution of the "Lithuanian calendar 2000" in accordance with articles 301 and 21412 of the Code of Administrative offenses. The latter concerns administrative offenses against the established procedure for administration (Administraciniai teisės pažeidimai, kuriais kėsinamasi į nustatytą valdymo tvarką). Therefore, this the legal norm is addressed to all citizens, and not to a certain group that has special status. The general nature of the legal norm under consideration further is confirmed by Chapter 1 of the Code of Administrative Offences, which establishes that all citizens must ensure respect for legal rules and rights other citizens, as well as Article 9 of the Code, which defines administrative offense as an unlawful act that represents a threat to the rule of law, the rights of citizens, or the established order administration. It follows that the law in question is general and therefore falls under the second criterion in the Engel case (Lauko case § 58).

The ECtHR went on to consider the third criterion: the nature and degree of severity of punishment. The national courts have found that the applicant is guilty of an offense under section 21412 Code of Administrative Offenses, which establishes a fine from LTL 1,000 to LTL 10,000, although, taking into account extenuating circumstances, the fine was replaced by a warning in accordance with Article 301 of the Code.

As for character punishment, the ECtHR drew particular attention to Article 20 of the Code of administrative offenses, which states that the purpose administrative punishment - to punish violators and force them to abstain from repeated violations. The ECHR noted here that retribution is a common distinctive feature of criminal punishment (see the aforementioned ruling on Ozturk case, § 53).

As for the degree of severity punishment, the ECtHR recalled that the real punishment imposed on the applicant, refers to discretion, but cannot reduce the original alternatives (see Ezeh and Connors § 120, and the legislation cited in the case).

Thus, although in the present case, the domestic courts issued only a warning under Article 301 of the Code of Administrative Offences, the applicant was punished under in accordance with Article 21412, which provides for a fine of 1,000 to 10,000 lit. The ECtHR has also drawn particular attention to the fact that if a fine is not is paid, in accordance with Article 314 of the Code, the fine can be replaced administrative arrest for up to 30 days and indicated that in addition to issued a warning, printed and unsold copies were confiscated calendar, and confiscation is often seen as a criminal sanction.

Based on the above analysis, The ECtHR concluded that “In sum, the general nature of the legal norm violated by the applicant, together with the purpose of punishment, which is deterrence and retribution, as well as the degree of severity of punishment that could be subjected to the applicant are sufficient to demonstrate that the offense in question had, within the meaning of Article 6 of the Convention, a criminal character". The ECtHR therefore considered that Article 6 § 3 (d) was applicable in the case Balsite-Lideikiene v. Lithuania.

Extrapolating the approaches of the ECtHR to cases of recognition of information materials as extremist, it is possible to a large extent the likelihood of asserting that cases of this type can be classified by the ECtHR as cases criminal charge.

As a summary, we can express the opinion that the situation with this category of disputes is such that legislative resolution of the problem is required [17] , since the problem was born precisely by the legislator, who actually established a new kind of cases without a proper analysis of their legal nature and procedural law, to be applied in this type of case. Establishing due legal procedure is the constitutional duty of the legislator, including arising from Russia's participation in the Convention.

However, in our place it would be it is erroneous to assert that the establishment of due process for recognition extremist information materials can solve the whole problem. Although, in In this article, we considered the problem only from the side of the legal procedure, However, the problem is not only and perhaps not so much in the legal procedure, but also in the very sanction for ideas, not actions. This sanction is interference with freedom of thought. “After the ability to think, the ability to communicate their thoughts to their neighbors is the most amazing quality that distinguishes human from animal. It is at the same time a sign of the immortal calling a person to a social state, a connecting principle, a soul, an instrument society, the only way to improve the latter, to achieve that the degree of power, knowledge and happiness that is available to a person” [18] . A law that punishes a way of thinking is not a law issued by the state for its citizens [19] .

Sultanov Aidar Rustemovich, Head of the Legal Department of OAO Nizhnekamskneftekhim, member of the Association for improving life and education

Published in Advocate magazine No. 1, 2012

[1]   Bulletin of judicial practice of the Omsk Regional Court N 1(42) 2010 .

[2] Sultanov A.R. Application of European standards in civil proceedings on an example extremist cases. No. 8. Advocate. 2010

[3] Although Russian classics of the theory of law taught us that to break the rule of prescription into multiple articles is not possible. See Alekseev S.S. The main questions of the theory of general theory of socialist law//Alekseev S.S. Collected works. T.3. S. 223.

[4] Although, in In principle, these sanctions can be basic.

[5] Sultanov A.R. On the codification of legislation on administrative offenses and antitrust laws. Law. No. 7. 2007. S. 141-148.

[6] URL: http://www.jw-russia.org/news/tver/courtdoc20111018_u.pdf (date appeals 11.12.11)

[7] URL: http://centralny.twr.sudrf.ru/modules.php?name=bsr&op=show_text&srv_num=1&id=69600401103301021401961000106358 (date appeals 11.12.11)

[8] Decision Arbitration Court of the Sverdlovsk Region dated May 19, 2010 N A60-13600/2010; Resolution of the Ninth Arbitration Court of Appeal dated November 3, 2010 N А40-101210/10-130-584 and others.

[9] URL: http://www.jw-russia.org/news/tver/courtdoc20111018_u.pdf (date appeals 11.12.11)

[10] Baranov V.M. The theory of legal responsibility. N. Novgorod. C.9.

[11] Garcia Garrido M.H. Roman private law: incidents, lawsuits, institutions / Ed. ed. L.L. Kofanov. M. 2005. S. 333.

[12] Gordon V.M. Prohibition claim. SPb. 1913.

[13] Lawsuit in civil proceedings: Collection / O.V. Isaenkova, A.A. Demichev, T.V. Solovieva and others; ed. O.V. Isaenkova. M. 2009.

[14] Arbitration process: A textbook. otv. ed. Valeev D.H., Chelyshev M.Yu., author § 1 ch. 8 Farkhtdinov Y.F. and Fetyukhin M.V. M. 2010

[15] Neshataeva T.N. Lessons from Judicial Practice on Human Rights: European and Russian Experience. M. 2007. S. 80

[16] See more details: Klepitsky I.A. Crime, administrative offense and punishment in Russia in the light of the European Convention on Human Rights. State and right. N 3. 2000.

[17] Kushnarev T.V. Recognition of information materials as extremist // Legitimacy. 2011. N 4. pp. 53 - 55.

[18] Robespierre M. On freedom of the press - A speech on freedom of the press was delivered by Robespierre in the Society of Friends Constitution in May 1791 and then issued by the National Printing House, 23 pp. in-8, under the title - "Discours sur la liberie de la presse, prononce a la Societe des Amis de la Constitution le 11 mai 1791 par Mximilien Robespierre, Depute a L'Assemblie Nationale et Membre de cette Societe" . Translation made from the "Works of M. Robespierre", vol. VII., "Discours (II partie) Janvier - septembre 1791". Robespierre's pamphlet was translated into Russian in 1906. URL: http://www.twirpx.com/file/647450/ (date appeals 12.12.2011)

[19] Marx K. Notes on the latest Prussian censorship instruction URL: http://oldcsu.csu.ru/files/history/%D0%9C%D0%B0%D1%80%D0%BA%D1%81.pdf   (accessed 12.12.2011)

Sources

• Aidar Sultanov: The legal nature of cases on the recognition of information materials as extremist from the point of view of civil procedure // Slavic Legal Center. 2012. January 27.