In defense of the 282nd

Continuation of the discussion about Russia after Putin: why do not cancel the 282nd article of the Criminal Code of the Russian Federation?

One of the most discussed topics in the Russian Internet after the New Year holidays remains a polemic around the publicist Oleg Kashin’s column on Radio Liberty, in which he criticizes Harry Kasparov’s programmatic performance about the future of Russia after Putin and the “sanitation of law” of the London political emigrant from Russia Vladimir Ashurkov.

The “reorganization of law” draws up a register of laws subject to cancellation after a change of power in Russia . Oleg Kashin-as, indeed, many other representatives of the Russian “liberal camp”-I do not agree with the activists of this project in their desire to preserve the notorious 282nd article in the Criminal Code of Russia, according to which “for the excitement of hatred or enmity, as well as humiliation of human dignity” many Russian political prisoners were convicted (we note that the article with the 282nd article is often mentioned and often mentioned and often mentioned The 280th, “public calls for extremist activity”-it is according to it that bloggers and activists are put in prison for likes and reposts on the Internet ).

A detailed answer to Kashin, one of the participants in the Sanctions of Law, the Sochi lawyer Mikhail Benyash , published in his blog, published in his blog. His story is of separate interest: at the end of 2011, Benyash was arrested and accused of extortion - as he believes, as a revenge for his participation in the case of judge Dmitry Novikov . Novikov was arrested in April 2010 on charges of fraud and deprived of a judicial status, which he managed to return only a year later. According to Benyash and his client, the criminal case of fraud appeared after Novikov’s opening fraud with land plots in which the judges of the Krasnodar Regional Court were involved. More recently, Dmitry Novikov again became the hero of the media-in published by Alexei Navalnaya Video, the judge told how he was not allowed into the temple in Sochi to celebrate Christmas because of the arrival of Artyom Tchaika and the prosecutor of the Krasnodar Territory Leonid Korzhinek, who several times ceased criminal cases against the leaders of the Bang of Terry.

Despite the fact that Mikhail Benyash, as follows from his at different times, was both a witness to judicial arbitrariness and his victim, he does not consider it necessary to cancel the 282nd article of the Criminal Code of the Russian Federation after a hypothetical change in the political regime in Russia. As examples, the lawyer cites pogroms against Armenians in Baku in 1990, the genocide in Rwanda and the public speeches of one of the ideologists of the "Russian world" Alexander Dugin. Mikhail Benyash set out his position in a detailed form in an interview with Radio Liberty:

-Why did I say that the 282nd article of the Criminal Code now definitely should not be canceled? There is a 29th article of the Constitution , which, on the one hand, prohibits censorship, guarantees freedom of speech, but at the same time prohibits the propaganda of genocide, repression, racial, national and religious growth. There is a constitutional norm. There is the norm of the Convention on the Protection of Human Rights, the 10th Article , it even more obviously gives a definition of freedom of speech and possible restrictions on the part of the state of this freedom. I agree that the 282nd article is clumsy, it must definitely be changed, but do not cancel it. Those who stubbornly say that it must be canceled, they may have encountered the law enforcement of this article and, "translating" their own feelings and resentments to it, refuse to think and reason.

There are interests protected by the state. Freedom of speech is a universal regulator of the state of society, and this is a very important regulator. On the other hand, the state must protect society, including, in some cases, from itself. In my post I posted several examples. The very first is the performance of Comrade Dugin, in which he calls for "killing, killing and killing." Is this normal at all? Imagine if a person comes to the square and starts to talk about it - I think this is abnormal.

His words can be qualified as incitement to murder, or as an excitement of hatred. We now see that all state media in the second year instill in the population hatred of a neighboring state. Then we had two more enemies - Türkiye and Syria. Someone can skip it past himself, and someone accumulates hatred, which, in the end, will get a way out. Therefore, the 282nd article did not just appear, it is not “traces of Putinism”, as Kashin says. She appeared long before Putin, and this article ensures the implementation of other norms-the 29th constitutional article and the 10th article of the Convention on Human Rights.

Russian state media have been instilled in the population with hatred of a neighboring state for two years

They say: let's cancel, cancel, these are all signs of Putinism! But what will we get? We will receive jihad preachers in the streets, our state State University will finally go crazy, there will be just chaos! Perhaps it should be canceled, but we must weigh everything well and think. I wrote that in the 282nd article there are two objects of criminal law protection: on the one hand, it is forbidden to incite hatred, propaganda of hatred, on the other hand, insulting faces on national, religious, some other soil. I always thought and I think that it is necessary to separate flies from cutlets. Religious, national and any other feelings of citizens can be perfectly protected within the framework of the administrative or civil process. This is a matter of private interest - the private person is offended and, please, let him go and defend itself. When we have public interest, when a person pours hatred to another group on a national or religious basis, this is a completely different question, and the consequences can be different.

They reproach me: good, let's put on likes! But we do not mean. They told me: you are for political repression! No, I am an opponent of political repression. In 2011, there was a resolution of the Plenum of the Supreme Court regarding the article on extremism. You just read, study the question. Many simply did not open the Criminal Code and did not read the 282nd. For them, the 282nd is Putin, and if you are for the 282nd-you are for Putin. Read this article, the resolution of the Plenum. I reason as a lawyer, lawyer, and everyone mainly goes into the sphere of emotions. So the Plenum clearly explained that criticism of politicians does not apply to extremism. An explanation is given what actions should be directly regarded as aimed at this very incitement of hatred. It says that it can be attributed to the propaganda of the genocide, the propaganda of mass repressions. By and large, the plenum stands for the opposition! Another question is that the courts of first instance do not look at this, and it would be worth talking about this.

Many simply did not open the Criminal Code and did not read the 282nd. For them, the 282nd is Putin, and if you are over the 282nd-you are for Putin

Usually, when you begin to discuss the details, people find such a veil in people, and they begin to say: you, lawyers, are talking about boring things, we are not interested, our goal-the 282nd must be canceled! In our country, as a state, everything is built to the absolute, and on the other hand, the comrades are worth it. No, there must be a certain balance. Therefore, I wrote this big post. Which, apparently, not everyone has read it to the end.

- If everything rests on an article by the Criminal Code and the issue of law enforcement practice: let's say, we leave the article, rewritten, and it is used as you say. But then some political changes occur, and it again begins to be applied in a repressive way. Maybe it’s really easier to remove this article at all, so that there is no tool for political repressions, but to consider other issues on the basis of other articles of the Criminal Code?

- Basically, there are no such articles in the Criminal Code. Well, you can fit some, but for the most part there are no such. On the other hand, you say that the political situation will change, that is, you assume that the power will change, and then it will again want to use this 282nd article. If the authorities are in the same format in which it exists now, it will simply accept the new Criminal Code or will rivet similar articles as it wants. Another question is that some guarantees for citizens, so that the ugliness that we now have with the use of the 282nd article does not happen to happen-these guarantees may be worth laying in some more higher regulatory act, perhaps in the Constitution, figuratively expressing themselves. Protecting mechanisms should be slightly different, in my opinion.

-If you return, for example with Alexander Dugin: it turns out that he should now sit on the 282nd, and the Russian political prisoners who are sitting under this article should not sit?

- No, I didn't say that. Moreover, I do not want to generalize, this is wrong. After listening to Dugin, I can say that the signs of the 282nd article are seen in his actions. In a normal country, he would have to interrogate him and find out what he had in mind, and then take procedural measures. Regarding the Russian political prisoners, I cannot say. Perhaps one of them, we will be objective, really sits on the composition of the 282nd article. But Article 282 was set to protect the other, higher norm of the law - directly Article 29 of the Constitution of the Russian Federation. This is a sanction for its violation. And I do not exclude that some political prisoners, among whom are liberal oppositions, neo -monetary, anti -fascists, there is a large bouquet; I do not exclude that one of them violated the article 29, if he called for violence on national or religious grounds, somehow spread hatred of religious, national, racial grounds. Guys, do you want to cancel article 282? Let’s then cancel Article 29 of the Constitution! It is necessary to somehow approach more reasonably. Perhaps it should be canceled, but after a deep analysis. Now there is no discussion or analysis.

Guys, do you want to cancel article 282? Let’s then cancel Article 29 of the Constitution!

-You mentioned political prisoners of different political directions, do you have any examples at hand or do you just assume their guilt?

- I do not want to give examples. I personally did not defend anyone under the 282nd article. Periodically, I look through business and I know that there is enough rich choice. People under this article were condemned in sufficient quantities, and I can assume that someone was deservedly put. Because our people are far from always educated and abstained and far from always gives a report to their actions. In Belgorod, the doctor scored a person to death , he wanted to kill? No. Yes, he did not even kill him, the reason is death by negligence. But not from a big mind, the doctor did it! So our sufferers according to the 282nd article-blurted out, and then he was no longer happy. Not from a big mind. Another question is that you do not need to plant. In some cases, the act that they commit does not carry a sufficient degree of public danger. And even more so, does not deserve to be deprived of freedom for him. In general, an extremely limited number of acts in the Criminal Code deserves to be deprived of their freedom. These are, first of all, acts directed against life and health, sexual integrity and associated with drug trafficking. Otherwise, I wouldn’t even touch people, I wouldn’t even plant corrupt officials, by and large. Sitting - no, I am against.

- And how to determine the line? Suppose a thousand people will look at Dugin’s video, and hundreds of thousands of people will hear someone’s call-in the first case, do not plant, but plant in the second?

-I say once again that the sanctions of the 282nd are inadequate misconduct! This is very important. In general, the entire Criminal Code of Russia is characterized by complete inadequacy now, both the Criminal Code and the Code of Criminal Procedure. I did not say - to plant, but a person who has access to the media, and now everyone has practically access to the Internet, must realize that he is entitled to a lot of responsibility, understand that his words, actions can cause consequences. I believe that there is the only condition under which according to the 282nd article can be deprived of freedom, this is if the actions of a person entailed grave consequences. So he expressed his speech, went to the square, called people to jihad or called for some excitement on national grounds, and there were sacrifices, pogroms, someone died. As in Rwanda, or as happened in Baku. In this case, he must be responsible! I want to say that according to the results of the Gaga Tribunal to punish war criminals in the former Yugoslavia, media workers who were engaged in state extremism, called people to murders, received some for 10 years, some for 5 years. And this is in tolerant, liberal Europe! In the current edition, the 282nd, 280th articles actually put equality between the repost and this call to Jihad. This is inadequate. This is understandable-the Criminal Code was written in the early 90s, but was adopted in 1996, when there was neither Facebook, nor social networks, and Putin was not there, he sat somewhere in St. Petersburg.

- And what is the difference between a call to jihad, addressed to an audience of 100 people, from the repost of this call to a person who has an audience, for example, 100 thousand? It turns out that there is a repost and should be punished.

- I'm trying to convey my position. The composition of the 282nd is formed as formal. That is, criminal liability occurs regardless of the severity of the consequences, regardless of the onset of the consequences, and from the very fact of distribution. I believe that if we want to protect our constitution, the 29th article, then we do not need to recklessly cancel everything.

-That is, you need to find first a person who will say: “I looked at such and such a video about jihad, because such and such a repost did, and went to perform jihad?

- In the production of preliminary investigation, such people will be sought, especially if there were serious consequences. If there were no grave consequences, perhaps administrative responsibility should occur, but definitely does not need to be planted. A person who calls for actions that may end with pogroms or mass violence must be aware of responsibility for his words. Read Article 10 of the Human Rights Convention. It clearly states that the state can impose restrictions and sanctions if it is necessary to protect democratic freedoms. 282th-this is the same restriction! The only thing I said and said: well, it is inadequate, like most of what we have in the Criminal Code. But the fact that sanctions and law enforcement does not mean that we should not in any way protect constitutional norms. They must be protected. Perhaps, not in criminal order, but in administrative, and if there are serious consequences, it must be provided that there is a criminal punishment. This is my position, and it seems to me quite reasonable. I have not yet heard and saw significant counterarguments, basically everyone goes into the category of emotions and accuse me of that I want political repressions. I do not want this, moreover, the law enforcer does not want this if you read the resolution of the Plenum.

- The question is for you as a participant in the Project "Sanctions of Law". What other articles of the Criminal Code, after the 282nd, seem to you the most odious, requiring adjustments or cancellation? You talked about the spread of drugs, but many human rights activists believe that this article is just the leader in Russian justice in fabricated cases that it must be decriminalized, somehow changed.

- The question of the distribution of drugs in the "reorganization of law" was not raised. I expressed my personal opinion, it is quite reasonable, and it boils down to the fact that, again, everything should not be built to the absolute. Just in case: I do not use drugs, so I am a disinterested person. But I defended these drug addicts in the courts and understand how they fall into the places of imprisonment. There is a decree of the Government of the Russian Federation, which regulates the list of prohibited funds, and in this list they are on the same shelf of heroin and marijuana. Most of the sites sit down either for finding them with a marijuana box, or that they sold it to each other. I think this is wrong and inadequate. Среди уголовных статей, которые рассматриваются "Санацией", есть 275-я в последней редакции – это "Госизмена", согласно которой любой контакт с иностранным лицом может быть квалифицирован как государственная измена, а также 212.1, где говорится об уголовной ответственности за неоднократные нарушения при проведении митингов. Это только то, что касается непосредственно "политических" статей, – говорит адвокат Михаил Беньяш .