Special proceedings for extremist cases?

Of course, the consideration of cases on the recognition of information extremist materials is a difficult category of cases. Such cases sometimes cause serious consequences for an unlimited number of people. Currently in the Russian Federation, the practice of considering this category of cases in special proceedings has developed [1] .

Of course, it is convenient for the prosecutor's office to consider such cases without involving a wide range of persons entitled to present evidence and make complaints. This allows the prosecution to easily achieve the desired result. - but is it legal?

As practice shows, often the prosecutor who submits statement on the recognition of literature as extremist, the content of this literature; at best, he is familiar with the text of the examination, in which conclusion about its extremist character. Although it can hardly be called the best case, when the prosecutor forms his opinion on secondary, sometimes highly distorted sources.

Accordingly, in an open trial, the prosecutor it is difficult to substantiate one's claims, since these requirements are often formed only on the basis of incompetent conclusions of various kinds of "specialists", sometimes biased and dishonest. In our opinion, non-recognition of extremist literature that is not such is a much greater blessing than the recognition its extremist only due to procedural tricks that did not allow stakeholder process. Badly earned points in an imaginary fight with extremism do much more harm because they undermine the credibility of court, to the state and can give rise to the radicalization of various ideological directions. Injustice always provokes protest. The closed courts always allow to assume their injustice - otherwise why hide them from public?

Providing all interested parties with the right to judicial protection of their interests, including the right to appeal, also serves the benefit of Russia: allows you to eliminate errors and restore violated rights. Unfortunately, momentary interests give rise to a desire to consider such cases behind closed doors mode, without involving defendants, without the need to prove anything. The current Judicial practice of considering such cases in special proceedings shows that the only evidence of the extremist orientation of literature was extra-procedural opinion in which the "specialist" answered the legal questions and which was accepted by the court without critical evaluation.

In fact, there was no litigation in these cases, but there was only an imitation of the trial to create the appearance of legality when restriction of fundamental freedoms and legitimization of arbitrariness.

First of all, we point out that the initiation by prosecutors this category of cases, it is in special proceedings that the General Prosecutor's Office of the Russian Federation. Thus, the Prosecutor General's Office of the Russian Federation in an information letter dated 19 March 2009 “On the results of the generalization of practice and on measures for further improvement of work on the use by prosecutors of the powers provided for Art. 13 of the Federal Law “On counteracting extremist activity”, indicates that the consideration of the presentation of the prosecutor in accordance with Art. 13 FZ No. 114 very similar to the proceedings on the establishment of facts having legal significance, - in the order of special proceedings [2] . We have not been able to get acquainted with the text of this summary, because in its the grant was refused, but in a letter No. 27-35-2012 dated July 18, 2012. The Prosecutor General’s Office of the Russian Federation confirmed that “according to the established judicial practice of the case on the recognition of materials as extremist are considered by the courts in a special order production” [3] .

However, this practice was formed by the courts precisely at the suggestion prosecutors who apply to the courts for recognition extremist information materials and insisting on their consideration in special production.

Unfortunately, the judicial acts of the Supreme Court of the Russian Federation, issued in this type of cases, we almost did not find it in the public domain, therefore further analysis is mainly carried out according to the Definition of the Supreme Court of the Russian Federation dated August 20, 2012, issued on a cassation appeal against the decision on recognition of materials as extremist in a special production.

In this ruling, the judge of the Supreme Court of the Russian Federation stated:

"Article 13 Federal Law “On Counteracting Extremist Activity”, providing for the recognition of information materials as extremist materials, of course, is a public-legal form of liability.

According to Article 15 of the Federal Law "On countering extremist activity" author of printed, audio, audiovisual and other materials (works), intended for public use and containing at least one of signs provided for in Article 1 of the said 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.

Of the above norms follows an unambiguous conclusion that the recognition of information materials extremist materials is always the establishment of the fact that they were committed the author of extremist activity, a statement of the illegality of actions author. Such recognition is a condemnation, censure of the activities of the author and at the same time, by restricting his freedom of expression, since such recognition also means a ban on the dissemination of information materials. The recognition of materials as extremist materials is a measure of public law, applied simultaneously with another public law measure - confiscation as sanction to the offender" [4] .

After such an analysis of the applicable legislation, our view, it can be expected that the court, seeing that the case was considered in a special proceedings for the application of a public measure, which is always a dispute over law, submit the cassation complaint for consideration of the case on the merits in Judicial Collegium of the Supreme Court of the Russian Federation.

However, the judge of the Supreme Court of the Russian Federation considered it lawful to consider cases in special proceedings, indicating that “the norms Civil Procedure Code of the Russian Federation, Criminal Code procedural code of the Russian Federation, as well as the Code of the Russian Federation of Administrative Offenses, no procedure for This category of cases is not specifically considered. Recognition of materials as extremist pursues strictly public goals , the consideration of the case is initiated only state body, its other participants are precisely “interested persons” rather than “defendants” and “third parties”, and the dispute itself, in essence, is extremely specific; All this determines the special nature of the consideration cases by the court, that is, the existence of rules that are different from the general rules of action production. In fact, the prosecutor in the application expresses a request to the court for establishing the legal status of information materials, which, meanwhile, in the future may have legal significance, including not only for holding persons liable for the distribution, production or possession 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" .

Well, there is obviously a contradiction in the reasoning of the judicial act. First, the judge recognizes that the recognition of informational materials is condemnation, censure of the author's activities and, at the same time, restriction of his freedom of expression, since such recognition also means a ban dissemination of information materials, that this is a measure of public law, applied simultaneously with another public law measure - confiscation as sanction to the offender - and then claims that the court, at the request of the prosecutor, motivated by public goals, only establishes the "legal status".

An obvious mistake, because in order to define "legal state”, the court must apply the rules of law and give a legal assessment, and not establish facts. You can play pranks and say: why not in a special proceedings not to establish the "legal status" of the contract as contrary to Art. 169 of the Civil Code of the Russian Federation, and confiscate everything on it in favor of the state. Or, for example, establish the "legal status" of the taxpayer's account and, recognizing in a special arrears caused by misstatement of reporting, collect money from him in state revenue ... All this is nothing more than amusing but misguided use of fundamental civil terms rights.

The term "legal status" does not apply to objects of law, but only to subjects of law [5] . Establishment legal status is the establishment of the state of the legal relationship, the participant which are subjects of law, not objects of law.

Legal terms are a generic name legal concepts that have a precise, definite, meaning, and differ semantic uniqueness, functional stability [6] . Distortion and "playing" with terms does not change the essence of the prosecutor's demand. IN civil proceedings, it is not allowed to initiate a process by the prosecutor to establish evidence in special proceedings for bringing to public liability.

The presence of public purposes does not allow the application public law measures in the form of the recognition of books as extremist in an undeniable special production and is not a basis for ignoring the requirements procedural law, established in Part. 3 Article. 263 Code of Civil Procedure of the Russian Federation and Art. 2 Constitutions RF.

Public purposes and public interests declared for that initiation consideration of the case in the simplified indisputable procedure, in our opinion, still do not prevail over the obligation to provide everyone with effective remedies in due course legal procedure (Articles 45, 46 of the Constitution of the Russian Federation, Articles 6, 13 of the Convention).

We believe it possible to say that in this kind of cases public interest is to protect the interests of society and prevent violation of each private legitimate interest.

The fact that there is currently law enforcement practice that allows consideration of cases on recognition extremist materials in special production, in our opinion, is still not means the legitimacy of such consideration in Russia. Erroneous Judgments even with their mass character, they remain only erroneous decisions.

Consideration of cases on the recognition of information materials extremist in special proceedings is contrary to the requirement of implementation activities of the court only in the procedural form established by law.

Exit of the court for the established procedural form of departure justice makes it unlawful, since the court will be lawful, not only created on the basis of law, but also acting on the basis of a procedural form, established by law [7] .

We believe that the current practice of considering cases of recognition of literature as extremist in special proceedings is not due process to restrict fundamental human rights and freedoms.

Lack of transparency in the consideration of this category of cases in special proceedings [8] , simplified indisputable procedure testify that there is only an imitation of a legal procedure, legalization of state sanctions, sometimes legalization of arbitrariness.

In our opinion, the very fact of the prosecutor's appeal to the courts recognition of materials as extremist in the order of special proceedings is at the same time an attempt to shift the burden of proof to ... the court. In a statement about establishing a fact of legal significance, it should only be indicated for what purpose does the applicant need to establish this fact (Article 267 of the Code of Civil Procedure of the Russian Federation).

In special production as a procedure that does not provide for consideration of disputes on the law, no distribution of the burden of proof is provided between the parties (however, in special proceedings there are no parties). IN in indisputable proceedings, the courts perform rather administrative functions [9] , than judicial ones. In countries where the courts "address" undisputed (non-disputed) cases, the functions of the courts in such cases are more or less administrative [10] and not resolve disputes on the restriction of rights and freedoms.

Of course, consideration of cases on restriction of distribution and obtaining information in special proceedings is the consideration of the case in improper legal process. What would seem to be the arguments in favor of such consideration not put forward - in the long run, it may turn into another losing at the ECtHR. But the most important thing is not even this: unjust judicial acts undermine confidence in the courts and the state itself. Illegal acts widespread to a wide indefinite circle of people, cause much more harm than an erroneous judgment in a dispute between two citizens, because such decision undermines faith in fair justice and trust in the court and the state is no longer one person. We believe that with this must be reckoned with, because " trust can be fair to assess as the highest legal value " [11] .

Commissioner for Human Rights in the Russian Federation at the beginning of January 2013 year also drew attention to the fact that " today cases on the recognition of religious literature as extremist are considered by the courts in order of special proceedings on the proposal of the prosecutor's office. According to him opinion, this practice needs to be reconsidered, “because it is inconsistent with basic principles of the rule of law": such court cases should to be dealt with in a general action “when the basic principles of legal proceedings: competitiveness of the trial and equality of the parties ” [12] .

We believe that the time has come for real protection of the rights and human freedoms guaranteed in Art. 2 of the Constitution of the Russian Federation. In legal state, which Russia has proclaimed itself to be, it is unacceptable to restrict the rights and freedoms in the absence of due process of law guaranteeing everyone interested person a real opportunity to defend their interests in court in in full compliance with the principles of fair justice.

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[1] Read more see: Sultanov A.R. Consideration of cases on restriction of freedom of distribution opinions and beliefs and the prohibition of literature in a special production - the return simplified undemocratic punitive practices? // Legislation and economy. 2012. No. 12 ( http://sutyajnik.ru/documents/4405.pdf ).

[2] This letter has not been officially published and is not in the public domain; we provide a link to the interpretation under the article of the senior prosecutor of the department for supervision of the legality of legal acts of the prosecutor's office of the Khabarovsk Territory. See: Kushnareva T.V. Recognition of information materials as extremist // Legitimacy. 2011. No. 4. pp. 53–55.

[3] Author's archive.

[4] In fact, the court agreed with our approach: Sultanov A.R. Legal nature cases on the recognition of information materials as extremist in terms of civil process // Lawyer. 2012. No. 1. P. 14–17.

[5] Gruzdev V.V. Theory of the legal state of the individual: author. dis. … doc. legal Sciences. N. Novgorod, 2012; Gruzdev V.V. Man and law: historical, general theoretical and civilistic essays. Kostroma, 2010; Novikova Yu.S. Legal status as a category of law: Ph.D. diss. … cand. legal Sciences. Yekaterinburg, 2005; Parfenov A.V. Legal status. Dis. ... cand. legal Sciences. N. Novgorod, 2002; Kaigorodov V.D. Judicial establishment of legal status citizens. Yekaterinburg, 1992.

[6] The language of the law. M. 1990. S. 65.

[7] Sultanov A.R. Formalism of civil process and standards of fair justice // Bulletin of civil procedure. 2012. No. 3.

[8] Sultanov A.R. Publicity justice - the trust of society // Ezh-Lawyer. 2012. No. 43.

[9] Kazantsev P.G. The concept of the legal process and its features. Arbitration and civil process. 2008. No. 12; Eliseikin P.F. The subject of judicial activity and competence of the court in special proceedings on Soviet civil procedural law // Scientific notes of the Far Eastern State university (legal sciences). 1968. V. 14. S. 29–30; Bonner A.T. Some problems of socialist justice // Proceedings of VYUZI. 1971. T. 17. S. 194; Butnev V.V. Problems of improving civil justice as a form protection of subjective civil rights //   Abstracts of reports of the republican conference September 17, 1987 Tartu, 1987. V. 1. S. 118–119.

[10] Uzelach A. Purposes of civil proceedings. Keynote // Civil process in intercultural dialogue: the Eurasian context. World Conference on procedural law. M., 2012. S. 151; Koller K. Austrian National report // Civil process in intercultural dialogue: Eurasian context. World Conference on Procedural Law. M., 2012. S. 176; van Re R. Netherlands national report with additional information on Belgium and France // Civil process in intercultural dialogue: the Eurasian context. World Conference on procedural law. M., 2012. S. 242; Silvestre E. Italian National report // Civil process in intercultural dialogue: Eurasian context. World Conference on Procedural Law. M., 2012. S. 231.

[eleven] Presentation by prof. Kokotova A.N. at a reader's conference held in Omsk State University F.M. Dostoevsky. Cit. By: State and right. 2006. No. 3. S. 105.

[12] Ombudsman people in Russia about manifestations of clericalization, excesses in the fight against extremism and the protection of believers // NG-Religions. 2013. January 16 ( http://religion.ng.ru/society/2013-01-16/6_rights.html ).