We planted all the world

Five months of the colony received Evgenia Chudnovets because with words of indignation a recognized video recognized as a pornographic video. In this decision, indifference, unprofessional and conjunctional considerations of many people played a large role

Evgenia Chudnovets saw a video, indignant, reposted him with a desire to understand history and received a term for the distribution of pornography. We tried to answer the question: could it happen that the teacher of the kindergarten Evgeny Chudnovets does not receive a real term.

1. Some of the users could click on the “complain” button over the video uploaded to the “My Video” section on the Valery Fox page. VKontakte could block the video before the Chudvets drew attention to him.

The rules for using VKontakte contain a list of actions prohibited by the user. In particular, it is forbidden to “download, store, publish, distribute and provide access or otherwise use any information that violates the rights of minors”. Theoretically, any video with the participation of a minor falls under this definition, and even more so the one in which the child is depicted in a naked form.

However, as the head of the VKontakte press service, Evgeny Krasnikov, says, the social network administrators cannot physically view all new videos downloaded by users. According to him, the moderators could respond to the appearance of unlawful video faster if one of the users pressed the “complain” button over the video loaded with Valery Fox (under this pseudonym, local entrepreneur Ernst Danlyan was hidden, there were no complaints about the law enforcement agencies). “We try to respond as quickly as possible to complaints about content and analyze them. This is done by a whole department of moderators, which also monitors the site, but it is impossible to manage everything, ”he explained.

2. The investigator could not initiate a criminal case against a Chudnovets, considering it sufficient to criminal prosecution only the teacher and the counselor.

Evgenia Chudnovets photo: from personal archive

Indeed, there was no need to initiate a criminal case against a Chudnovets, with the exception of personal benefit for the leadership of the Kataysky inter -district investigative department. According to the statistics of the Ministry of Internal Affairs, in 2016 in the Kataysky district where about 22 thousand people live, 368 crimes were registered, of which 32.6% are thefts of property investigated by the local Ministry of Internal Affairs. In such a situation, the Katai investigators of the SK simply remain without work - the main array of crimes falls on the police. “There is no crime in Kataysk, about 80 criminal cases are being considered here. Therefore, the only reason for the initiation of this case is to improve the quantitative indicators of the UK. Sometimes we cannot initiate the case for years, and this is at once, ”says lawyer Alexei Bushmakov, who entered into the case of a Chudelovets after the sentence.

Probably, the investigator himself was not sure that the initiation of the case against the Miraculous case was supported by the prosecutor’s office - all key investigative actions were carried out only after the conviction to the teacher and counselor. In anticipation of this decision, screenshots from the Reality Show Che KF group, which the operative Maxim Bethev managed to make, lay nine months in the safe. According to the lawyer Bushmakov, if the investigation department did not pursue the goal of improving quantitative indicators, the case could be closed under Article 14 of the Criminal Code, according to which “a crime is not an action that formally contains signs of any crime under the criminal code, but due to insignificance not pose a public danger”. “In her act, of course, there are no signs of public danger,” he says.

3. The judge could listen to the results of an independent examination, which did not recognize the video pornographic.

“An independent examination, of course, could affect. Judges usually agree with its results and motivate the sentence with them, ”says Bushmakov’s lawyer. But, unfortunately, he came into the case of a Chudnovets after the sentence, and before him - that is, from the moment of the initiation of the criminal case on May 23 until the announcement of the sentence on November 8 - her interests were represented by the Kurgan lawyer for their intended purpose Nikolai Kostousov.

According to the civil husband, Evgenia Alexei Myasnikov, this defender only created "visibility of activity." Looking at the materials of the case, one cannot disagree with him: Kostousov did not dispute the results of the examination that recognized the video as pornographic, or petition for an independent examination. Instead, he indicated to the investigator that the expert in his conclusion examined all three videos found on a flash card from the phone of the teacher, although the world-cream charged only one of them. The investigator refused to satisfy the complaint. “But, if you think about it, even if the investigator listened to this disagreement, then for Zhenya it would not have changed anything at all. We only then only realized that he did not work at all, but simply for a tick he made some remarks. We saw him several times in our life-before the trial meetings on the porch for 15 minutes, ”says Myasnikov. According to the decision on the reward of a lawyer for their intended purpose, Kostousov worked on the business of a Chuderovets for two full working days. For this he was paid 1265 rubles.

4. The judge could have sentenced the Chudvets by a conditional time, or to serving the punishment with a delay - for example, until the child reaches 14 years old.

With the current editorial office of the Code of Criminal Procedure and the Criminal Code, this could not happen. The relevant articles do not apply to persons who have committed a crime under Article 242.1 of the Criminal Code. Thus, Article 398 of the Code of Criminal Procedure (“Deadment of the execution of the sentence”) states that the execution of the sentence of convicts of the person to imprisonment may be delayed by the court for a certain period if the convicted young children have the age of fourteen of the age of fourteen. Article 73 of the Criminal Code gives Russian judges the right to impose a punishment of conditional imprisonment. However, not one of them applies to convicts under Article 242.1 of the Criminal Code, which, with the introduction of the latest amendments to it in 2012, was equated with the legislator by “crimes against sexual integrity of minors who have not reached the age of fourteen” - along with articles on the rape of a child or committing depraved actions in relation to him.

Articles 242 and 242.1 of the Criminal Code are the main tool for improving statistics for department “K”

5. The posted video became pornography at the moment when an expert recognized him with pornography. In theory, if the expert made a different decision, then the distributed video would be legal because of this?

Orientation photo: from personal archive

Absolutely true. “Now the trend is: you post a video on the network, it hangs a year or two, then it is recognized as porn or extremist, and the person is judged, although this video was not at the time of loading,” says lawyer Bushmakov. Many such stories can be found on legal forums, where users come in search of a free lawyer consultation. A typical one looks like this: the VKontakte user starts a page on VKontakte, on which he saves porno-rollers by adding to the “My Video” section, then operatives come to him and take the computer, and the user himself becomes a defendant in the criminal case under Article 242.1, since the examination on external signs determines one of the actors of pornographic videos by minor, although it is impossible to establish their individuals. Articles 242 and 242.1 of the Criminal Code are for the “K” department - the Office for Combating Crimes in the field of information technology - the main tool for improving statistics, and the relevant expert’s conclusions are the only way to disclose the case.

6. The number of likes and reposts could affect the final decision of the judge.

At the time when the operative Bethev made screenshots with a repost of the video from the page of Valery Lisa in the CHA KF group, the video collected 40 comments and not a single husky. “If 100 or 200 people would have made reposts, then the number of residents of Kataysk, of course, would hardly have been punished, although it is also not a fact,” says lawyer Bushmakov. On the other hand, the number of likes and reposts formally does not affect the solution to the investigator of the issue of the legality or illegality of the video - for this there are the foundations listed in the Code of Criminal Procedure, for example, the results of the examination.

7. Articles 242.1 in its current formulation could not be in the Russian Criminal Code at all.

Article 242.1 - “Production and circulation of materials or objects with pornographic images of minors” - appeared in Russian legislation along with large -scale reorganization of the Criminal Code in 2002. Then its second part provided for three points - the distribution of pornographic materials by a parent or teacher; in relation to a person who has not reached the fourteen year; A group of persons by prior conspiracy - and provided for three to eight years in prison. In 2012, on the wake of the state campaign for the struggle for morality, which led to the adoption of provisions on blocking prohibited Internet resources, another item was added to it: “using the media, including the Internet”, and the maximum term of punishment increased to 10 years. If this change did not appear four years ago, the wonderful man would have remained at large.

8. The law defines only the punishment for the distribution and manufacture of pornography. But he does not mean what to do with people who distribute pornography in protest against pornography. Why?

The lawyer Bushmakov calls this question rhetorical. In his opinion, the court considered that the physical parameters of a person shown in the video and his pose should have understood the wonderful, that what she sees on the screen is precisely children's pornography, which means that it is impossible to spread it. For example, an expert, who recognized the video as pornographic, saw the following there: “The whole video recording is devoted to the demonstration of the child in the room, which stands in front of the camera, bending down and turning the gluteal area where the pencil is inserted. Objects of an elongated or standing form often in art and psychoanalysis are interpreted as phallic symbols. In the context of the image itself (the orientation of this object in the area between the hips close to the buttocks), this object can be designated as a symbol of this kind. That is, the plot is the child performing sexual action (imitation of introduction into the sexual paths or an anus of a phallic object). ” The Chudnovets saw there only a mockery of the boy, but did not guess that even the distribution of information about this could violate the law.

How was it

On August 23, 2015, the 32-year-old Evgenia Chudnovets recently moved from Yekaterinburg to the Ural town of Kataysk, a message came from a friend. He advised to find Valery Lisa on VKontakte and pay attention to the video posted in the section “My videos”. In a three -second video, the girl saw a naked boy, between whose buttocks a pencil was sticking out.

Eugene from the courtroom brought in handcuffs photo: Screenshot from the video

A Chudnovets, who leads a video blog and teaches the residents of Kataysk to fight injustice (for example, with expired products in stores), was outraged and reposting this video in her closed group “Reality Show Che KF”. At that time, it consisted of 288 people. Users identified the toilet of the local children's camp "Red Eagles" in the video room captured in the video. The video sagged on the wall of the group for five hours, until the administrator, on the advice of a friend, removed him. The Chudnovets did not know that she was already late - among the subscribers was the operative Maxim Bethev, who managed to make several dozen screenshots from his mobile phone.

The director of the children's camp wrote a statement to the Investigative Committee. The result was a real term for two camp employees: 23-year-old Tatyana Kurcheva and 18-year-old counselor Danila Bezborodov. On June 29, 2016, the court sentenced them to six and three years of colony, respectively, found guilty of committing a sexual violence, the manufacture of materials with pornographic images in relation to the child, the use of a minor in order to make pornographic materials and the improper performance of the duties of minors. The main evidence was the testimony of a 10-year-old victim, in which he talked about bullying by the camp employees. To trust the testimony of the accused who said that the boy was strange and running around the camp naked, and the video was only a way to make him shame, the court did not.

A few months later, the Chuderovets learned that he was on a criminal investigation - after the sentence to Bezborodov and Curses, she became a defendant in the case on paragraphs “A” and “G” of Article 242.1 of the Criminal Code (“Distribution of pornographic materials using the Internet in relation to the child”). The Chudestovets and her civil husband himself believed that the maximum punishment that threatens the girl is a fine, and did not begin to hire a lawyer. As a result of November 8, 2016, she was sentenced to six months of a general regime colony. The decision was shocked not only by the defendant, but also by the leadership of the prosecutor's office and the Investigative Committee. Despite the fact that both departments petitioned for the revision of the sentence, the court reduced the deadline for a wonderful man by an appeal for only a month.