Commentary by "Sova" on the resolution of the plenum of the Supreme Court on extremist and terrorist crimes

November 3, 2016 Plenum of the Supreme Court of the Russian Federation issued a new resolution on the use of anti-terrorist and anti-extremist articles of the Criminal Code ("On Amendments to the Decrees Plenum of the Supreme Court of the Russian Federation dated February 9, 2012 No. 1 "O some issues of judicial practice in criminal cases on crimes terrorist orientation" and dated June 28, 2011 No. 11 "On judicial practice in criminal cases on crimes of extremist directions").

It is about clarifying a number of issues, faced by Russian courts when applying the norms of the law, aimed at combating extremism and terrorism. rely on these explanations The courts must when deciding on relevant articles of the Criminal Code. Let's take a look at some of the most important changes that were included in the 2011 and 2012 rulings (see our summary of the highlights of the 2011 and 2012 rulings). 2011).

With regard to the application of the articles aimed at combating terrorism:

1. SC interprets public appeals to terrorist activities (Article 205.2 of the Criminal Code) as calls to commit crimes under articles 205-206 (possibly with the exception of the new Art. 205.6 (failure to report a crime)), 208, 211, 220, 221, 277, 278, 279, 360, 361 of the Criminal Code. Thus, according to the SC, as calls for terrorist activity should also be regarded as calls for the overthrow of the system (Article 278 of the Criminal Code) and rebellion (Article 279 of the Criminal Code).

2. The crime that falls under effect of Art. 205.2, carried out by mass mailing messages on mobile communication or via the Internet, from the point of view of the Armed Forces, should be considered completed "with the moment of placement of applications in the specified public networks (for example, on websites, forums or blogs), sending messages to others". Thus, once again the question of how widely and to what extent this message was spread to the audience.

3. The sun indicates that a person may be prosecuted for crimes under article 205.5 of the Criminal Code (organization of the activities of a terrorist organization or participation in it) if they were committed after the official publication on the FSB website information on the recognition by the court of the relevant organization of a terrorist and prohibition of its activities on the territory of the Russian Federation, and not immediately after the entry into force of the decision court in force.

With regard to the application of the articles aimed at combating extremism:

1. The SC draws attention to that when applying Art. 280.1 of the Criminal Code (public calls for action, aimed at violating the territorial integrity of the Russian Federation) should be distinguished such appeals from incitement to crimes aimed at violating territorial integrity of the Russian Federation, since "calls should not be aimed at inducing certain individuals to commit specific criminal punishable acts". In other words, a rather severe "anti-separatist" article of the Criminal Code should be applied precisely in those cases where the accused did not call for illegal actions to achieve goals.

2. From the clarification regarding scope of Art. 282 of the Criminal Code, the mention of "other groups of persons" in end of the list of potential objects of hate speech, now this provision looks like this: "under the actions, aimed at inciting hatred or enmity, it should be understood that in particular, statements substantiating and (or) affirming the need genocide, mass repressions, deportations, other illegal actions, including the use of violence, against representatives of any nation, race, adherents of one religion or another .

This is the most important clarification of the Plenum 2011, establishing that incitement to hatred is not any negative statements, namely calls for the most dangerous illegal actions, following the example listed. Unfortunately, this clarification is often ignored by the courts.

Now sun is implicit indicates that the scope of the concept of "incitement to hatred" is be limited by the criteria of nation, race and religion. In particular, this can be understood as a proposal not to resort to the vague notion of "social group". But, of course, the decision of the Supreme Court cannot exclude this concept from composition of the article of the Criminal Code.

1. An important clarification concerns question about the evaluation of publications in the network: "When deciding the direction of the actions of the person who posted any information or who expressed his attitude to it on the Internet or other information and telecommunications network, to incite hatred or enmity, as well as humiliation of the dignity of a person or a group of persons should be based on the totality of all the circumstances of the offense and take into account, in particular, the context, the form and content of the posted information, the presence and content of comments or any other expression of relation to it .

Accounting for these criteria when dealing with cases of public statements has always been a weak point of the Russian law enforcement. This is especially true for statements on the Internet, and not only under Art. 282. The SC's comment is perfectly fair, but clearly more clarification is needed as to which context should be taken into account (speech should go both about the historical context, and the local in time and in space), how exactly comments should be taken into account (they cannot be imputed to the accused himself, but show understanding by the audience of his statements), which should be understood as the form of statements (for example, the court must learn to understand in which cases the statement was ironic). In addition, it is necessary to take into account the quantitative and qualitative composition of the real the target group of the statement and the authority of the author of the statement for this groups.

1. Attention should also be paid to a provision on extremist propaganda, similar to the aforementioned one on appeals to terrorism: when making public calls for the implementation of extremist activities by mass mailing of messages via mobile communications or through Internet, a crime, from the point of view of the Armed Forces, should be considered completed " with the moment of placement of applications in the specified public networks (for example, on websites, forums or blogs), sending messages to others ".

So far, law enforcement were guided by the fact that while the publication remains online, there is ongoing crime, even if it is several years old and the publisher himself and his readers long forgotten about its existence. If this clarification of the Supreme Court is taken for weapons, the approach to determining the statute of limitations for bringing to criminal liability for statements on the network.

1. The Supreme Court has previously pointed out that in those cases where violent crimes are committed not simply for the motive hatred, but for the purpose of inciting hatred or humiliating dignity group characteristics, they must be qualified simultaneously and according to the corresponding article on violence (indicating the motive of hatred), and under Art. 282 of the Criminal Code. However now this requirement has been specified: "Intentional infliction of grievous bodily harm to the victim during committing a crime under Article 282 of the Criminal Code of the Russian Federation, qualify on the basis of the totality of crimes - according to paragraph "a" of part 2 Article 282 of the Criminal Code of the Russian Federation and paragraph "e" of Part 2 of Article 111 of the Criminal Code of the Russian Federation in the absence of other qualifying signs provided for in the named articles. Excitation hatred or enmity, as well as the humiliation of human dignity, associated with murder, should be qualified by the totality of crimes, provided for in paragraph "a" of part 2 of Article 282 of the Criminal Code of the Russian Federation and paragraph "l" of part 2 article 105 of the Criminal Code of the Russian Federation, in the absence of other qualifying features" .

At the same time, other types of violence of the Armed Forces proposes to qualify only under Art. 282 of the Criminal Code: "Actions aimed at inciting hatred or enmity, as well as the humiliation of human dignity, associated with the application beatings, committing other violent acts related to causing the victim of physical pain or with restriction of his freedom (for example, tying hands, handcuffing, leaving indoors etc.), as well as with the intentional infliction of light or moderate harm health are covered by point "a" of part 2 of article 282 of the Criminal Code of the Russian Federation" (inciting hatred with the use of violence or the threat of its use).

1. By analogy with the indication relating to terrorist organizations, the SC explains that a person may be prosecuted for crimes under article 282.2 of the Criminal Code (organization of the activities of an extremist organization or participation in it), if they are committed after the official publication of information on recognition by the court of the relevant extremist organization and the prohibition of its activities on territory of the Russian Federation, and not immediately after the entry into force of the court decision. In this case official publication is a publication on the website of the Ministry of Justice or in "Rossiyskaya Gazeta".

Sources

• Oleg Sivozhelezov. The Supreme Court urged to be more attentive to reposts when considering cases under 282 of the Criminal Code of the Russian Federation // RAPSI. 2016. November 3.
• Inc. inf.
• Decree of the Plenum of the Supreme Court of the Russian Federation of November 3, 2016 N 41 Moscow "On Amendments to the Resolutions of the Plenum of the Supreme Court of the Russian Federation of February 9, 2012 N 1 "On Certain Issues of Judicial Practice in Criminal Cases of Terrorist Offenses" and dated June 28, 2011 N 11 "On judicial practice in criminal cases on crimes of extremist orientation" // Website of the Supreme Court of the Russian Federation. November 16, 2016