"Within competence"

New criminal article

Legislators introduced a criminal article for “repeated” (that is, “previously... more than twice within 180 days ” ) prosecution under Article 20.2 of the Code of Administrative Offenses. So how many times must a court find a person guilty of a violation at a rally in order for a criminal case to be opened against him?

Ministry of Internal Affairs : The crime has a formal structure and is considered completed from the moment of violation of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picketing, or violation by a participant of a public event of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picketing, provided that Previously, the person was brought to administrative responsibility three times for offenses committed under Article 20.2 of the Code of Administrative Offenses. Administrative arrest and criminal charges: how it was done in the USSR

In other words: a criminal case can be opened after the fourth time. It is curious that the Ministry of Internal Affairs separates the holding and participation in the event: there is no such division in the text of the law, and not a word is said about possible criminal liability for participation.

Should all convictions be made after the law comes into force (July 22, 2014)? Or does this only apply to the last, fourth time?

Ministry of Internal Affairs : According to Article 9 of the Criminal Code, the criminality and punishability of an act is determined by the criminal law in force at the time the act was committed. A criminal law that establishes the criminality of an act, increases punishment or otherwise worsens a person’s position does not have retroactive effect (10 of the Criminal Code).

In other words: the Ministry of Internal Affairs agreed that the law does not have retroactive force, but decided not to directly answer the question of whether this, in fact, concerns only the last, fourth sentence or all of them and whether the prosecution can appeal to the fact that if a person received three decisions under 20.2 before the law came into force, then he still has the opportunity not to make the fourth.

Comments

Natalya Zvyagina , expert on freedom of assembly of the Moscow Helsinki Group:

Despite all the repressiveness of this norm, which was created precisely to frighten activists in the first place, there is such a thing as criminal justice. It is very different from the administrative one, because there are different terms, and a different punishment, and a different process, and it seems to me that judges and investigators should refrain from such things. It seems to me that such an incident [initiation of a criminal case for a fourth offense, if three previous court decisions were made before the law came into force - OVD-Info ], which was possible at the level of administrative legislation, will not happen so easily at the criminal level. Then you will come and say: “But my citizen did not think that he would commit a criminal offense in this way, because it was not a criminal offense.” And it seems to me that the case will fall apart, because intent, which is required as part of a criminal offense, will fall apart. In administrative cases it is not necessary, but in criminal cases it is mandatory, therefore, it seems to me that such cases will fall apart in any court; they are impossible on legal grounds. Even someone will go too far and try to initiate such a case, according to the standards that exist at the moment, the case should fall apart. I understand everything about political will, but technically it is not as easy for excesses as in the situation with administrative norms and rules. Another question - and this is the most important thing that I want to say about all this - you understand that we are talking about legislation that makes it so difficult in principle to implement freedom of assembly that it is difficult to look for these legal positions, to discuss some then the minimal possible disagreements in the assessment of this or that point are like a poultice for the dead. On the path to perfection We are dealing with such a strictly regulated space, such unenforceable legislation at the moment, that it is easier for any person, a simple person on the street, faced with such a problem, to circumvent this legislation through some corrupt means, or take advantage of other possible forms of expressing their position than a meeting, rally, picket or procession. The purpose of this legislation was initially to limit, to make this particular area of ​​public activity minimally pleasant, minimally in demand. What we are arguing about now is, of course, great, it’s such a narrow legal get-together, such a pleasant conversation.

Tatyana Glushkova , lawyer of the non-profit organization “Lawyers for Constitutional Rights and Freedoms” (“YURICS”):

The Ministry of Internal Affairs sees the prospect of applying this law in a way that is friendly to the protesters. If we interpret this answer literally, then criminal prosecution is possible only after being held administratively liable four times and only for offenses committed after the amendments entered into force. That is, all offenses that were committed up to this point, regardless of when a court ruling was made on them, will not be taken into account when bringing criminal charges. This is already good compared to the options we were afraid of. As good as possible with the legislation and the practice of its application that we have.

Repeated violations under 19.3 and 20.2 of the Code of Administrative Offenses

Amendments to the law on assemblies introduce a new, eighth, part of Article 20.2 of the Code of Administrative Offenses, which provides for punishment for “ repeated ” violations under parts 1–6.1. Is a violation considered “ repeated ” if the previous violation was committed under another part of this article?

Ministry of Internal Affairs: No answer

Comments

Natalya Zvyagina : From a formal point of view, this is logical. I won’t say that this is right, that this is fair, but it can be regarded as such. It is not necessary to violate 20.2 Part 5 twice and only then will it work.

Tatyana Glushkova : It seems to me that if a person was brought to justice once under any part of Article 20.2, then the second time he will be brought under part eight, regardless of whether the acts he committed are similar or not. The wording of the law presupposes precisely this scenario. In principle, in court it will be possible to argue with such an interpretation and demand reclassification if, for example, a situation arises that the first time a person was held accountable as a participant in an event, and the second time he is charged with the organization. But I wouldn’t count on success. True, the question is whether such situations will arise in principle, because as far as I can remember, not a single part of the updated Article 20.2, except for the fifth, has been applied.

In the case of a “ repeated ” violation under Part 3 of 20.2 of the Code of Administrative Offences, is the citizen liable under both Part 3 and Part 8 of Article 20.2 of the Code of Administrative Offenses or only one of them?

Ministry of Internal Affairs : Subparagraph “e” of paragraph 4 of Article 3 of the Federal Law of the Code of Administrative Offenses is supplemented by Part 8 of Article 20.2 of the Code of Administrative Offenses, establishing liability for the repeated commission of an administrative offense provided for in parts 1–6.1 of Article 20.2 of the Code of Administrative Offenses, if this action does not contain a criminal offense. A literal interpretation of Part 8 of Article 20.2 of the Code of Administrative Offenses allows us to consider that the “repetition” of administrative offenses, the list of which is specified in the disposition of the article, is not a circumstance aggravating administrative liability, but a mandatory qualifying feature of a special administrative offense.

Comments

Tatyana Glushkova : What the Ministry of Internal Affairs is talking about are issues that relate to the general theory of criminal and administrative law. An aggravating circumstance is a circumstance that does not transfer the act to another part of the article or another article. This is simply a sign that must be taken into account when sentencing. A qualifying feature of a special composition is that feature, in the presence of which the same act, but with this additional feature, will be qualified under another article or part of the article. This is the difference. That is, in our country, for example, one of the circumstances aggravating administrative liability is the commission of an administrative offense by a group of persons. This means that if an act is committed by a group of people, then this fact must be taken into account when choosing a punishment. But the commission of an act by a group of persons does not lead to reclassification of the act. And the repeated commission of an offense provided for by any of the parts of Article 20.2, on the contrary, entails reclassification of this act from, for example, part 5 to part 8 of this article. But, naturally, part 8 will be charged on its own, and not in addition to any other part.

Natalya Zvyagina : I look at the practice that exists in the courts, and I see that judges are already confused in these parts and law enforcement officers themselves are confused in all these parts. I see processes when they are qualified under 20.2 part 5: they come to court, and the judge tells them “you have classified everything incorrectly, there should be 20.2 part 2, take your protocols, we close the case due to the absence of a violation event” or there “we will reclassify as 20.2 part 2, but since it worsens the position of the suspect’s face, we cannot apply it.” “Protest on the brakes”: arrests at public events from January 2013 to April 2014 I see that the system itself is beginning to get confused in this number of subparagraphs. Cunning legislators tried to impose taxes from all sides, but law enforcement officers can no longer cope with this. It's so over-regulated that it simply stops working. I have not seen the use of 20.2 of Part 8 , it has never been used before, as far as I know, and, frankly, I doubt that it can be somehow adequately applied.

Is a violation considered “ repeat ” if the previous conviction under 20.2 was made before the law came into force?

Ministry of Internal Affairs : A person who has committed an administrative offense is subject to liability on the basis of the law in force at the time the administrative offense was committed (Part 1 of Article 1.7 of the Administrative Code). A law that establishes or aggravates administrative liability for an administrative offense or otherwise worsens a person’s position does not have retroactive effect (Part 2 of Article 1.7 of the Administrative Code).

In the case of a “ repeated ” violation under Article 20.2 of the Code of Administrative Offenses, does the citizen bear both administrative and criminal liability for the last violation?

Ministry of Internal Affairs: There is no answer.

New sanctions for violations at public events

Police actions in connection with changes to the law on rallies

After the introduction of sanctions for repeated offenses at public events into the Code of Administrative Offenses, the police must take into account previous court decisions against the detainee when drawing up a protocol and choosing an administrative article. Do police officers have access to the database of court decisions?

Ministry of Internal Affairs : In accordance with Article 17 of the Federal Law “On the Police”, the police create and maintain data banks on citizens necessary to fulfill their duties, including on persons who have committed administrative offenses. According to Part 2 of Article 29.11 of the Code of Administrative Offences, a copy of the decision made by the judge in the case of an administrative offense is sent to the official who drew up the protocol on the administrative offense within three days from the date of the said decision.

Comments

Tatyana Glushkova : Yes, such a practice certainly exists. This period of three days is, of course, not observed. But sooner or later (the specific period depends on the speed of work of various divisions of the court), the resolution must be sent to the department of internal affairs that compiled the protocol on the administrative offense. There is a database of persons brought to administrative responsibility. And any material about an administrative offense that is sent to court includes an extract from this database. This extract contains information about all cases of bringing a person to administrative responsibility since the creation of this database (2011, as far as I know). It includes not only cases of “rally” offenses, but also all others (for example, traffic violations). It is worth noting that information about the offense is not deleted from the database, even if the order has already been executed (for example, a fine has been paid) and a year has passed since the execution.

When a person enters the police department, they take his documents and run them through this database, and a printout is included in the case file. Therefore, there will be no problems finding out whether a person is brought to justice again or not. Previously, before the legislation on rallies was tightened, there were cases when the police were too lazy to search a person’s database and sent materials to the court without extracts from it. And then the person appeared as being brought to justice for the first time, and the resolution stated “there is no reliable information about bringing to administrative responsibility during the last year.” Sometimes it was even funny, especially in situations where we were talking about an activist who, on average, appears before this judge once every month or two . But recently, the police have stopped being lazy and diligently include printouts from the database in all materials. Apparently, they were given such an instruction from above.

The court has the obligation to send a decision on an administrative offense to the body that compiled the protocol within three days. But the period for appealing this decision is much longer - 10 days, and not from the moment the decision was issued, but from the moment of receiving its copy, which may still take a lot of time. And after a complaint is filed, it can be considered in the subject’s court for another two months. And here there are two important points. Firstly , let’s assume that a person’s complaint lies, say, in the Moscow City Court and is waiting in the wings. The resolution on administrative liability has not entered into force, and the person has not been held accountable. But theoretically, it may turn out that it will be sent to the police department and entered into the database. And, accordingly, when detained again, the database will show that the person has already been brought to justice, although the first resolution has not yet entered into force. I say theoretically, because in practice such a situation is very unlikely: this whole system is extremely slow and the courts, of course, do not send their decisions to the police department within 3 days. And the second problem is this. Why is it so late? If by some miracle the court of the subject cancels the decision on an administrative offense and terminates the proceedings and, accordingly, the person is considered not to be held accountable, then this information is not sent anywhere. The court does not have an obligation to forward this decision to the body that compiled the protocol on the administrative offense - Article 30.8 of the Code of Administrative Offenses does not provide for this. And, accordingly, the person will remain “hanging” in the database as held accountable. I was faced with such a situation when one of my clients was detained, in respect of whom a previously issued decision in a case of an administrative offense was canceled. His extract from the database indicated that he was brought to administrative responsibility - and there was no information that the resolution was canceled and never came into force.

Since decisions are canceled extremely rarely, it is very difficult to verify whether this is a mass phenomenon or just this particular person was unlucky. To do this, we need to look at at least a few cases, but we don’t have this opportunity. True, I am still inclined to believe that this is a systemic problem, and not an individual one, because in our country no government bodies will exchange information once again to ensure the observance of human rights. Therefore, I have recently been telling everyone that if you encounter a similar situation, that is, you are held accountable and subsequently acquitted, then take with you to rallies a copy of the court decision that you were acquitted. And if something happens, you can say that this decision against you has been canceled and you will not be held accountable again.

Parts 1 and 5 of Article 20.2 of the Code of Administrative Offenses still do not provide for the possibility of administrative arrest, however, arrest is possible in case of repeated violation of other parts of this article. As a result, the choice of a specific part will determine how long a detainee can be left in the police department - up to three hours or up to two days (it is known that the court often reclassifies the charge chosen by police officers under another part of 20.2, for example, replacing the second part to the fifth). In addition, the length of detention will depend on whether the alleged offense was committed for the first time or repeatedly - just clarifying this fact can take a lot of time. Considering all this, is it legal to leave a person detained under parts 1 and 5 in the police department for more than three hours?

Ministry of Internal Affairs: According to general rules, the period of administrative arrest should not exceed three hours, with the exception of cases provided for in parts 2 and 3 of Article 27.5 of the Code of Administrative Offenses. A person against whom proceedings are being conducted for an administrative offense may be subjected to administrative detention for a period of no more than 48 hours, if such proceedings entail administrative arrest as one of the administrative penalties (Part 3), and also if necessary to establish identity or to clarify the circumstances of an administrative offense (part 2).

Paragraph 3 of Article 3 of this law introduces administrative arrest for up to 30 days for “ repeated ” violations under Article 19.3 of the Administrative Code. Meanwhile, the period of administrative arrest in most cases cannot exceed 15 days, and all exceptions to this rule are listed in Article 3.9 of the Administrative Code, which does not say anything about 19.3. How will this provision of the new law be applied if Article 3.9 of the Code of Administrative Offenses does not provide for arrest under Article 19.3 for more than 15 days?

Ministry of Internal Affairs : The procedure for organizing and holding public events is regulated by Federal Law of June 19, 2004 No. 54-FZ “On meetings, rallies, demonstrations, processions and pickets.” Article 5 of the said Federal Law establishes the responsibilities of the organizer of a public event, including fulfilling the legal requirements of authorized persons (representatives of internal affairs bodies). The obligations of a participant in public events related to the fulfillment of the legal requirements of authorized persons (representatives of internal affairs bodies) are provided for in Article 6 of the said Federal Law. Thus, failure by an organizer or participant in public events to comply with the legal requirements of an authorized official is a violation of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picketing, and the period of administrative arrest of up to thirty days, provided for by the sanction of Part 6 of Article 19.3 of the Code of Administrative Offenses, corresponds to the general provisions on administrative arrest established in part 1 of article 3.9 of the Code of Administrative Offences.

Comments

Natalya Zvyagina : These rules were invented by people who are not as theoretically savvy as the author of the letter we are talking about. It is obvious here that we are talking about bringing the practice that has developed over the past 8–10 years on the territory of the Russian Federation into a certain legal sphere. This does not agree with anything; it does not agree with the principles of the Constitution, according to which acts cannot be adopted that worsen the existing legal situation or reduce rights in any way. And this provision directly contradicts the Constitution, and I believe that in the first case of applying this practice, you can go to the Constitutional Court to appeal this norm.

Tatyana Glushkova: In simple words, I am not able to comprehend this part of the response from the Ministry of Internal Affairs. The point is clear: an unfinished bill was submitted to the State Duma, it was adopted, and now the Ministry of Internal Affairs needs to somehow wriggle out of its interpretation of this law in order to pretend that there are no internal contradictions in it, and so it has decided to interpret it in this way. Of course, they are absolutely right that the Federal Law “On Meetings, Rallies, Demonstrations, Processions and Pickets” establishes, among other things, the obligations of organizers and participants of public events to fulfill the legal requirements of an authorized police officer. It would be strange if there were no such obligation. And, naturally, failure to comply with the legal request of an authorized police officer by the organizer or participant of a public event is a violation of the established procedure for holding a public event, that is, a violation of Article 20.2. One of the types of such violation. Last time about the law The difference from Article 19.3 is that it implies liability for failure to fulfill any legal demand of a police officer. This, let’s say, is an article for all occasions, because there can be a huge number of legal demands of a police officer - it could be a demand to stop using obscene language, to move away from the edge of the subway platform - and no law can provide for all the requirements that can come from police officers in all life situations. In the case of Article 20.2, we are again dealing with the same qualifying feature, that is, if a person does not fulfill not just an abstract demand of a police officer in an abstract situation, but a demand of a police officer addressed to him as an organizer or participant in a public event, then, Of course, the actions of such a person must be qualified under 20.2, but not under 19.3.

Of course, the practice of applying Article 19.3 is such that no one except participants in public events is involved in it - at least in Moscow. But, firstly , there is a response from the Prosecutor General’s Office from 2012, which directly states that bringing a person to justice under Article 19.3 (in addition to 20.2) is possible only if he violated not only the legislation on rallies, but also other norms regulating public order. That is, the Prosecutor General’s Office does not in any way relate Article 19.3 to the legislation on public events. Secondly , let's pay attention to the wording of Article 3.9 of the Administrative Code. It absolutely specifically names those offenses for which an arrest for up to 30 days can be imposed, and it gives not generic, but specific names of offenses, that is, the names of not chapters, but specific articles of the Code of Administrative Offences. Articles 19.3 and 20.2 are not just different articles, they are different chapters of the Administrative Code. That is, these offenses have a different generic object of encroachment. The 19th chapter of the Code of Administrative Offenses is entitled “Offences against the order of government”, and the 20th - “Offences that infringe on public order and public safety”. And from the response of the Ministry of Internal Affairs it follows that Article 19.3 either belongs to both chapters at once, or simply migrated to Chapter 20, which contradicts both the theory of administrative law and the very logic of the construction of the Code of Administrative Offences. The Ministry of Internal Affairs actually arbitrarily says that in fact Article 19.3 also refers to another section, not to the one in which it is included, but to another, that is, it seems to be included in both sections at once. This is just something incredible.