On the way to perfection

The Federal Law “On Amending Certain Legislative Acts of the Russian Federation regarding the improvement of legislation on public events” allows the police to cordon off the territory to “prevent” the riots, makes it possible to arrest and detain shares for two days, introduces punishments (up to criminal) for “repeated” and “repeated” violations. The extremely vague formulations of the document, which are not specified in the latest consideration in the Duma, cause many questions that Russian courts now have to answer.

OSCE. Guide principles for the freedom of peaceful assemblies. “National legislation must contain clear definitions so that the law remains simple for understanding and application, as well as to prevent attempts to regulate activities that should not be regulated. Therefore, the definitions should not be too detailed or too general. ”

If earlier the police were allowed to cordon the territory only when the mass riots are suppressed, now the blocking is also allowed for their “prevention”. “The suppression of mass riots is the cessation of what has already begun, and the“ warning ”gives the police the opportunity to act ahead of the lead,” explains Tatyana Glushkova, senior lawyer of an autonomous non -profit organization ”(Yuriks). -Take some next resonance business, the case-for example, Navalny will be imprisoned for a real term (which, of course, would not like to). People will want to go outside - and all the streets are already blocked, because they warn the mass riots. And nowhere to go. They wrote in social networks: we are going to Manezhnaya Square, and Manezhnaya, Tverskaya is blocked, traffic from Zamoskvoretsky or some other court is blocked in advance. In fact, such a practice already exists - for example, manezhnaya is blocked whenever there is a real probability that many people will come to it. Now this practice will be legalized. I do not exclude that after the introduction of this law, Moscow will become overlapping more. The legislator actually admitted that he sees the threat of mass riots in any accumulation of people. ”

The introduction of administrative arrest for violations on shares can fundamentally change law enforcement practice. Previously, the punishment under Articles 20.2 (violation of the established procedure for organizing or conducting the action) and 20.2.2 of the Code of Administrative Offenses (the organization of simultaneous mass stay or movement in public places that entailed a violation of public order) was limited to large fines, and the arrest was assigned only under Articles 19.3 (disobedience to the legal order of the police officer) and 20.1 (petty hooliganism) - according to experience in experience The OVD-Info, the Moscow police usually wrote out protocols on the “arrest” articles of individual detainees who refused to introduce themselves, persistently demanded compliance with their rights, were beaten or somehow distinguished among the rest. Indeed, only according to administrative articles providing for arrest can the detainee remain in the police department for more than three hours. Now, for the participants and organizers of the shares, for the first time brought to administrative responsibility, arrests of up to ten, and sometimes twenty days are introduced: for example, up to 15 days of arrest may threaten to carry out without a submission of a public event that prevented pedestrians or motorists, for participating in such an event or in “simultaneous mass stay”. Even higher punishments (a fine of 150 thousand rubles, arrest to 20 days) are now relying for the “simultaneous stay” next to the residence of the president, court buildings and places of imprisonment. Articles 20.2 and 20.2.2 of the Code of Administrative Offenses were included in the list of exceptional cases when administrative arrest may be more than 15 days - in the previous version of the article on administrative arrest, these included violation of the regime of a counter -terrorist operation and emergency. In addition, regardless of the court’s decision, detained at rallies can now easily be left in the police department at night.

OSCE. Guide principles for the freedom of peaceful assemblies. “Any public speech in any public place can lead to a certain violation of the usual flow of life, including impaired movement, and in cases where the demonstrators do not participate in the acts of violence, it is important that the authorities show a certain level of tolerance in relation to peaceful meetings, so that the freedom of such meetings, guaranteed by Article 11 of the ECCH [European Convention on Protection of Human Rights - OVD-Info], has not lost its meaning. "

In addition, it is forbidden to transfer the consideration of cases of violations at public events at the place of residence: cases according to 19.3, 20.2, 20.2.2 of the Code of Administrative Offenses will now be considered only at the place of identification of an administrative violation. Earlier, the Supreme Court demanded to prohibit the transfer of the case only in exceptional cases, when this could damage justice, Glushkova notes. According to her, “they really do not like to transfer things, because in those ships where they constantly consider“ rally ”cases, there are already special judges to consider these cases, and everything has been going on for a long time. And in those courts where there are no such judges, some complications are possible. Now, the legislator has chopped off this opportunity, and all petitions for the consideration of the case at the place of residence are completely meaningless. ”

One of the key paragraphs of the law is the introduction of punishment already for the very fact of participation in an inconsistent campaign, which led to a violation of public order (for example, that prevented pedestrians). The old edition of the Code of Administrative Offenses provided for the punishment only for participants "violating the established procedure for holding the meeting." Now it is enough for someone else to break the “order” to get a fine of ten to twenty thousand rubles or to be arrested for fifteen days. Given how widely, police officers interpret the “violation of order”, the chances of this are very high. And in any case, the police will now be able to hold for up to two days the detainees under this article in the police department.

Part 6.1 of Article 20.2 of the Code of Administrative Offenses in the new edition. “Participation in the unauthorized meeting, rally, demonstrations, processing or pickets that entailed the creation of interference to the functioning of life support objects, transport or social infrastructure, communications, the movement of pedestrians and (or) vehicles or access of citizens to residential premises or objects of transport or social infrastructure, entails the imposition of an administrative fine in citizens in the amount of citizens in the amount of from ten thousand to twenty thousand rubles, or compulsory work for up to a hundred hours, or administrative arrest for up to fifteen days; for officials - from fifty thousand to one hundred thousand rubles; on legal entities - from two hundred thousand to three hundred thousand rubles. ”
OSCE. Guide principles for the freedom of peaceful assemblies . »Individual participants in the meeting, who personally did not commit any violent actions, cannot be held accountable, even if other participants in the meeting resorted to violence and violated public order."

However, the lawmakers did not stop there: at the same time, they introduced a punishment for repeated violations on public actions. Now, a fine of 150 thousand rubles or arrest up to 30 days is provided for re -participation in the event held in violations; for repeated participation in "simultaneous mass stay or movement" - a fine of 150 thousand rubles or arrest to 30 days; For repeated disobedience to the police officer by the organizer or participant in the action - a fine of 5 thousand rubles or, again, a monthly arrest. What exactly is a “repeated” violation and how much time it can separate it from the previous one, the law is not explained. Moreover, it is unclear how the arrest can be imposed on Article 19.3 for more than 15 days, not included in the list of exceptional cases allowing such long arrests.

Finally, repeated violations under Article 20.2 of the Code of Administrative Offenses (which, recall, now includes responsibility for the actions of other participants in the action) from this week are considered a criminal offense. The corresponding article 212.1 of the Criminal Code, the investigation on which the SK and the internal affairs bodies are to be carried out, prescribes a punishment from a fine of 600 thousand rubles to five years in prison. Violation is considered “repeatedly” if the alleged violator “previously [was involved in article 20.2-ATS-Info] more than two times within one hundred eighty days”.

The creation of a criminal article for rallies participants is definitely the most provocative part of the law, all the more noticeable, which is stated in the first article. However, it is formulated in such a way that neither a curious reader, nor an experienced lawyer will be able to say, or how she can, or how should be applied. It is not possible to answer the most obvious questions: does the third or fourth violation leads to criminal liability? Should they all happen after the adoption of the law, or is it enough only the latter?

In accordance with the Constitution, only those bringing to administrative responsibility that will occur after the entry of this Law should be taken into account: after all, the principle that the law has no reverse strength is that a person should be able to adjust his behavior. However, how this will happen in practice, it is impossible to say in advance, Glushkov claims: “There are people who, after the law entry into force, can be taken and immediately planted for five years, because they have no more than three - more than ten attracts over the past 180 days. I hope this will not happen. But in this case, it is very difficult to predict how the car of our justice will behave. ”

Article 54 of the Constitution of the Russian Federation . "The law that establishes or aggravating liability does not have retroactive force."

The lawmakers are not embarrassed by the fact that the rally participant is supposed to be judged twice for the same violation: first - in the administrative case, and then - in the criminal case. However, as the lawyer Anton Burkov claims, “the more incomprehensible the law, the better the official”: let the European court interpret the fuzzy formulation of the law as the absence of the law-while the cases reach the ECHR, five to ten years will pass, and the political order must be fulfilled now.

Article 50 of the Constitution of the Russian Federation . "No one can be repeatedly convicted of the same crime."

The confusion also occurs with a half -year period, which is mentioned in the definition of the epithet “repeatedly”: the fact is that it is not at all necessary to commit all the offenses of the course of this period - the court is enough several times in a row to bring a person to administrative responsibility. What does this mean in reality? “We know that we have set a very long time for proceedings for 20.2 - this is a whole year after the offense,” Glushkov emphasizes. - That is, a person goes to an inconsistent action, say, July 8, then he leaves six months later, then three more months later. More than six months have passed between the first and last act. But nothing prevents you from considering all these matters literally one after another, even within one day. Thus, the person will be held administratively liable three times within 180 days. ”

It turns out that the presence or absence of the corpus delicti will depend not on the actions of the participant in the action, but on some external circumstances like the speed of consideration of an administrative case in court. At the same time, the party to the prosecution practically does not have to prove the guilt in the criminal case, Glushkov notes: it is enough to show a decision on an administrative offense that have entered into force - and this will be a sufficient evidence base for prosecution under a new criminal article.

Note to the new article 212.1 of the Criminal Code. “Violation of the established procedure for the organization or holding of a meeting, rally, demonstration, procession or picket, an committed person repeatedly, a violation of the established procedure for organizing or conducting a meeting, rally, demonstration, procession or pickets, if this person was previously brought to administrative responsibility for the commission of administrative offenses provided for in administrative criminal offenses, more Two times for one hundred eighty days. ”

Let inaccurate formulations raise many questions about the possibility of applying a new law - it itself completely fits into the Russian legislative practice of the last two years. In the text of the law, it is hardly possible to build forecasts about its application in the future, but he clearly demonstrates the attitude of the Russian authorities to public events, the right to freedom of assembly and the Constitution as a whole. It is also striking that legislators are actually defiantly refused to listen to the decisions of the Constitutional Court and comply with its requirement to mitigate the sentences under “rally articles”.

What, according to the parliament, should change the introduction of additional tough measures? The plot of the explanatory note to the law is approximately as follows: the right to peaceful meetings guaranteed by the Basic Law should be limited so as not to violate other constitutional rights and freedoms. The latter should be protected primarily from “unauthorized” shares (this concept is used in the document, although it does not comply with the norms on the notification procedure for coordination) using “preventive measures” against “repetition of the offenses”. As an example, the authors of the document give a promotion from the Zamoskvoretsky court on the day of the sentence in the “Swamp case” and “Strategy-6” .

However, one of the authors of the bill, the deputy from United Russia Alexander Sidyakin (the one who once stomped a white ribbon on the Duma rostrum, introduced a bill on “foreign agents” and demanded to tighten the administrative punishment for “fragmentation of the feelings of believers”) at the end of March explained the essence of new measures is much more concise: I do not want the streets of Russian cities to turn into the street to the street to turn into the street. Grushevsky . " The law, therefore, becomes a direct reaction to the clash that occurred shortly before this clash in the center of Kyiv between the protesters and the police and in general to the events in Ukraine, which led to the change of power in the country.

Two years ago, it was Sidyakin who urgently initiated the emergence of a resonant “rallies' law”: then thousands of fines for violations on shares, administrative responsibility for “simultaneous mass stay” and other measures were introduced in response to clashes on Bolotnaya Square and the subsequent protest walks and “Occupying”. Then, as now, the deputy called the tightening of responsibility by the necessary "preventive measure." “If we did not do this, then everything would have developed further. They thought that once you can break through the riot police chain, they would have thought that you can go anywhere next. When the feeling that this can be done arises in a large number of people, it becomes dangerous. In this regard, it is clear that we, as representatives of the power party, must protect the existing constitutional system and there is nothing illogical in this, ”he said in an interview a month later. Now, those measures seemed to the deputy not enough.

The law consistently fits into politics in relation to political actions: official statements, the practice of selective coordination of public events, regular detention of participants in civil shares, court decisions on administrative cases, sentences in the “swamp case” - all this has long indicated that any protest campaign is considered by the authorities as potential “mass relic”. In fact, legislative innovations are legitimizing the already fixed practice: administrative arrests and criminal cases for the participants in the demonstrations were even before - other articles were simply used for this. How regularly new restrictions are perceived in society, the almost complete absence of protests in three months of discussion clearly illustrates. In 2012, a change in the “Law on Raits” met the opposition within the parliament (the Fair Russia factionarranged on the day of consideration of the bill “Italian strike”) and was accompanied by street performances (for a month on promotions in Manezhnaya and Pushkin squares, 98 people were detained at the State Duma and the Federation Council). Два года спустя новые поправки — ничуть не менее радикальные- встречены почти гробовым молчанием.

Можно спорить о том, будет ли применяться новая уголовная статья. Одни юристы надеются, что она станет «мертворожденной», другие полагают, что ее будут использовать избирательно в отношении отдельных активистов. Административный арест и уголовная статья: как это делалось в СССР «У меня ощущение, что будет статья — и они с удовольствием будут сажать», — говорит член правления международного общества «Мемориал» Александр Даниэль, ссылаясь на советский опыт : с 1966 года, когда была введена уголовная статья за «организацию, а равно активное участие в групповых действиях, грубо нарушающих общественный порядок или сопряженных с явным неповиновением законным требованиям представителей власти, или повлекших нарушение работы транспорта, государственных учреждений и предприятий», по ней были осуждены более 550 человек, причем первые обвиняемые появились почти сразу, в январе 1967 года.

Интересно другое — смогут ли такие меры в действительности уберечь страну от массовых беспорядков? Переводя ответственность за участие в несогласованных акциях в уголовную плоскость, стирая разницу в наказании за пикет и, скажем, избиение полицейского , закон о «совершенствовании законодательства о публичных мероприятиях» фактически приравнивает мирный протест к немирному, а значит, существенно упрощает и переход от первого ко второму.