On the way to perfection

The Federal Law “On Amendments to 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” mass unrest, makes it possible to arrest and detain protest participants for two days, and introduces penalties (up to criminal) for “repeated” and “repeated” violations. The extremely vague wording of the document, which was not clarified by the last consideration in the Duma, raises many questions that the Russian courts will now have to answer.

OSCE. Guidelines on Freedom of Peaceful Assembly. “National legislation must contain clear definitions to ensure that the law remains easy to understand and apply, and to prevent attempts to regulate activities that should not be regulated. Therefore, definitions should be neither too detailed nor too general.”

If previously the police were allowed to cordon off an area only to suppress riots, now blocking is also allowed to “ prevent ” them . “Suppressing mass riots is stopping what has already begun, and “warning” gives the police the opportunity to act proactively ,” explains Tatyana Glushkova, senior lawyer of the autonomous non-profit organization “ Lawyers for Constitutional Rights and Freedoms ” (YURIKS). — Let's take some next high-profile case, a case - for example, Navalny will be imprisoned for a real term (which, of course, we would not want). People will want to go out into the street, but all the streets are already blocked because riots are being prevented. And there is nowhere to go. They wrote on social networks: we are gathering on Manezhnaya Square, and Manezhnaya, Tverskaya are blocked, traffic at Zamoskvoretsky or some other court is blocked in advance. In fact, such a practice already exists - for example, Manezhnaya is closed whenever there is a real possibility that many people will come to it. Now this practice will be legalized. I do not rule out that after the introduction of this law, Moscow will be blocked on a larger scale. The legislator actually admitted that he sees the threat of mass unrest in any gathering of people . ”

The introduction of administrative arrest for violations at rallies can fundamentally change law enforcement practice. Previously, punishment under Articles 20.2 (violation of the established procedure for organizing or holding an action) and 20.2.2 of the Code of Administrative Offenses (organization of simultaneous mass presence or movement in public places resulting in a violation of public order) was limited to large fines, and arrest was imposed only under Articles 19.3 (disobedience to a lawful order police officer) and 20.1 (petty hooliganism) - according to the experience of OVD-Info , the Moscow police usually issued arrest reports to individual detainees who refused to identify themselves, persistently demanded their rights, were beaten, or otherwise stood out from the rest. After all, only under administrative articles providing for arrest, a detainee can remain in the police department for more than three hours. Now, for participants and organizers of actions who are brought to administrative responsibility for the first time, arrests of up to ten and sometimes twenty days are introduced: for example, up to 15 days of arrest can be imposed for holding a public event without giving notice that interferes with pedestrians or motorists, for participating in such event or in a “simultaneous mass gathering”. Even higher penalties (a fine of 150 thousand rubles, arrest up to 20 days) are now imposed for “simultaneous stay” near the presidential residence, court buildings and places of imprisonment. Articles 20.2 and 20.2.2 of the Code of Administrative Offenses are included in the list of exceptional cases when administrative arrest can last more than 15 days - in the previous edition of the article on administrative arrest, these included violations of the counter-terrorist operation regime and the state of emergency. In addition, regardless of the court's decision, those detained at rallies can now easily be left at the police station overnight.

OSCE. Guidelines on Freedom of Peaceful Assembly. “Any public demonstration in any public place is likely to cause some degree of disruption to the normal course of life, including disruption to traffic, and where demonstrators are not engaging in acts of violence, it is important that authorities demonstrate a certain level of tolerance towards peaceful meetings so that the freedom of such meetings, guaranteed by Article 11 of the ECHR [European Convention for the Protection of Human Rights - OVD-Info ], does not lose its meaning.”

In addition, it is prohibited to transfer the consideration of cases of violations at public events to the place of residence: cases under 19.3, 20.2, 20.2.2 of the Code of Administrative Offenses will now be considered only at the place where the administrative violation was detected. Previously, the Supreme Court demanded that the transfer of a case be prohibited only in exceptional cases when this could harm justice, Glushkova notes. According to her, “they really don’t like to reschedule cases, because in those courts where “protest” cases are constantly considered, there are already special judges to consider these cases, and everything has been going on as usual for a long time. And in those courts where there are no such judges, some complications are possible. Now the legislator has cut off this possibility, and all requests for consideration of the case at the place of residence are completely meaningless.”

One of the key points of the law is the introduction of punishment for the very fact of participation in an uncoordinated action that led to a violation of public order (for example, disturbing pedestrians). The old version of the Code of Administrative Offenses provided for punishment only for participants “violating the established procedure for holding a meeting.” Now, it is enough for someone else to violate the “order” to receive a fine of ten to twenty thousand rubles or be under arrest for fifteen days. Given how broadly police officers define “disorderly conduct,” the chances of this happening are very high. And in any case, the police will now be able to keep those detained under this article in the police department for up to two days.

Part 6.1 of Article 20.2 of the Code of Administrative Offenses in the new edition. “Participation in an unauthorized meeting, meeting, demonstration, procession or picketing, resulting in interference with the functioning of vital support facilities, transport or social infrastructure, communications, the movement of pedestrians and (or) vehicles, or access of citizens to residential premises or transport or social infrastructure facilities, entails the imposition of an administrative fine on citizens in the amount of ten thousand to twenty thousand rubles, or compulsory labor for a term of up to one hundred hours, or administrative arrest for a term of up to fifteen days; for officials - from fifty thousand to one hundred thousand rubles; for legal entities - from two hundred thousand to three hundred thousand rubles.”

OSCE. Guidelines on Freedom of Peaceful Assembly . “ Individual participants in an assembly who did not personally commit any violent acts cannot be held accountable, even if other participants in the assembly resorted to violence and disrupted public order . ”

However, legislators did not stop there: at the same time they introduced penalties for repeated violations at public rallies. Now, for repeated participation in an event that was held with violations, a fine of 150 thousand rubles or arrest for up to 30 days is provided; for repeated participation in “ simultaneous mass stay or movement ” - a fine of 150 thousand rubles or arrest for up to 30 days; for repeated disobedience to a police officer by an organizer or participant in the action - a fine of 5 thousand rubles or, again, a month’s arrest. What exactly constitutes a “ repeated ” violation and how much time may separate it from the previous one is not explained in the law. Moreover, it is unclear how an arrest of more than 15 days can be imposed under Article 19.3, which is not included in the list of exceptional cases allowing such prolonged arrests.

Finally, repeated violations under Article 20.2 of the Code of Administrative Offenses (which, we remind you, now includes liability for the actions of other participants in the action) are considered a criminal offense as of this week. The corresponding article 212.1 of the Criminal Code, the investigation of which will be conducted by the Investigative Committee and the internal affairs bodies, prescribes punishment from a fine of 600 thousand rubles to five years in prison. A “ repeated ” violation is considered if the alleged violator “ was previously [prosecuted under Article 20.2 - OVD-Info ] more than twice within one hundred and eighty days . ”

The creation of a criminal article for participants in rallies is definitely the most provocative part of the law, all the more noticeable since it is mentioned in its very first article. However, it is formulated in such a way that neither a casual reader nor an experienced lawyer can say how it can or should be applied. It is impossible to answer the most obvious questions: does the third or fourth violation lead to criminal liability? Do they all have to happen after the law is passed, or is only the last one sufficient?

In accordance with the Constitution, only those bringing to administrative liability that will occur after the entry into force of this law should be taken into account: after all, the principle that the law does not have retroactive effect is that a person should have the opportunity to correct his behavior. However, it is impossible to say in advance how this will happen in practice, says Glushkova: “ There are people who, after the law comes into force, can be taken and immediately imprisoned for five years, because they no longer have more than three - more than ten attractions over the last 180 days. I hope this won't happen. But in this case, it is very difficult to predict how the machine of our justice will behave . ”

Article 54 of the Constitution of the Russian Federation . " The law establishing or aggravating liability does not have retroactive effect . "

Legislators are not confused by the fact that the rally participant is supposed to be tried twice for the same violation: first in an administrative case, and then in a criminal case. However, as lawyer Anton Burkov argues, “the more incomprehensible the law, the better it is for the official”: let the European Court interpret the unclear wording of the law as the absence of a law - before the cases reach the ECHR, it will take five to ten years, and the political order must be fulfilled now.

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

Confusion also arises with the six-month period referred to in the definition of the epithet “repeated”: the fact is that it is absolutely not necessary to commit all offenses during this period - it is enough for the court to bring a person to administrative responsibility several times in a row. What does this mean in reality? “We know that we have a very long period for proceedings under 20.2 - this is a whole year after the commission of the offense,” Glushkova emphasizes. — That is, a person goes out for an uncoordinated action, say, on July 8, then he goes out six months later, then another three months later. More than six months passed between the first and last act. But nothing prevents us from considering all these cases literally one after another, even within one day. Thus, the person will be brought to administrative responsibility three times within 180 days.”

It turns out that the presence or absence of a crime will depend not on the actions of the participant in the action, but on certain external circumstances, such as the speed of consideration of the administrative case in court. At the same time, the prosecution practically does not have to prove guilt in a criminal case, notes Glushkova: it is enough to show the decisions 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. “A violation of the established procedure for organizing or holding a meeting, meeting, demonstration, procession or picket, committed by a person repeatedly, is recognized as a violation of the established procedure for organizing or holding a meeting, meeting, demonstration, procession or picketing, if this person has previously been brought to administrative responsibility for committing administrative offenses provided for in Article 20.2 of the Code of the Russian Federation on Administrative Offences, more than twice within one hundred and eighty days.”

Although the imprecise wording raises many questions about the possibility of applying the new law, it itself fully fits into the Russian legislative practice of the last two years. Based on the text of the law, it is hardly possible to make predictions about its application in the future, but it clearly demonstrates the attitude of the Russian authorities towards public events, the right to freedom of assembly and the Constitution as a whole. It is also striking that legislators actually demonstratively refuse to listen to the decisions of the Constitutional Court and comply with its requirement to mitigate punishments under “rally articles.”

What does Parliament think the introduction of additional tough measures should change? The plot of the explanatory note to the law is approximately as follows: the right to peaceful assembly guaranteed by the fundamental law must be limited so as not to violate other constitutional rights and freedoms. The latter should be protected primarily from “unauthorized” actions (this concept is used in the document, although it does not in any way correspond to the norms on the notification procedure for approval) with the help of “preventive measures” against “repetition of offenses.” As an example, the authors of the document cite the action at the Zamoskvoretsky court on the day of the verdict in the Bolotnaya case and Strategy-6 .

However, one of the authors of the bill, United Russia deputy Alexander Sidyakin (the same one who oncetrampled a white ribbon on the Duma podium, introduced a bill on “foreign agents” and demanded tougher administrative penalties for “insulting the feelings of believers”) in At the end of March, he explained the essence of the new measures much more succinctly: “I don’t want the streets of Russian cities to turn into Grushevsky Street .” The law, thus, becomes a direct reaction to the clashes that occurred shortly before this in the center of Kyiv between protesters and the police and, in general, to the events in Ukraine that led to a change in the current government in the country.

Two years ago, it was Sidyakin who hastily initiated the emergence of a high-profile “law on rallies”: then multi-thousand-dollar fines for violations at rallies, administrative liability for “simultaneous mass presence” and other measures were introduced in response to the clashes on Bolotnaya Square and the protest walks and protests that followed. "Occupy". Then, as now, the deputy called the tightening of liability a necessary “preventive measure.” “If we had not done this, then everything would have developed further. We thought that once we could break through the riot police chain, we would have thought that we could go somewhere further. When a large number of people feel that it can be done, it becomes dangerous. In this regard, it is clear that we, as representatives of the ruling party, must defend the existing constitutional system and there is nothing illogical in this,” he said in an interview a month later. Now those measures seemed insufficient to the deputy.

The law consistently fits into the policy regarding political actions: official statements, the practice of selective approval of public events, regular detentions of participants in peaceful actions, carbon-copy court decisions in administrative cases, verdicts in the “Bolotnaya case” - all this has long been evidence of that any protest action is considered by the authorities as potential “mass riots.” In fact, legislative innovations legitimize an already established practice: both administrative arrests and criminal cases for participants in demonstrations existed before—other articles were simply used for this. How natural the new restrictions are perceived in society is clearly illustrated by the almost complete absence of protests during the three months of their discussion. In 2012, changes to the “law on rallies” met with opposition within parliament (the “A Just Russia” faction staged an “Italian strike” on the day the bill was considered) and was accompanied by street protests (a month later at rallies on Manezhnaya and Pushkinskaya squares, near the buildings of the State Duma and the Federation Council 98 people were detained). Two years later, new amendments - no less radical - were met with almost deathly silence.

It is debatable whether the new criminal article will be applied. Some lawyers hope that it will become “stillborn,” others believe that it will be used selectively against individual activists. Administrative arrest and a criminal article: how it was done in the USSR “I have a feeling that there will be an article and they will be happy to imprison,” says Alexander Daniel, a member of the board of the international society “Memorial,” referring to the Soviet experience : since 1966, when a criminal article was introduced for “organizing, as well as active participation in, group actions that grossly violate public order or involve obvious disobedience to the legal demands of government officials, or entail disruption of the work of transport, government institutions and enterprises,” more than 550 people were convicted under it, Moreover, the first accused appeared almost immediately, in January 1967.

Another thing is interesting: can such measures actually protect the country from mass unrest? By transferring responsibility for participation in uncoordinated actions to a criminal level, erasing the difference in punishment for a picket and, say, beating a police officer , the law on “improving legislation on public events” actually equates a peaceful protest with a non-peaceful one, and therefore significantly simplifies the transition from the first to second.