CAZUS BURDUKOVA: A person confident in the legality of his actions can become a criminal

Lawyer Dmitry Sotnikov tells how the courts, retroactively bringing people to administrative responsibility under an article on violations at public events, create prerequisites for the establishment of criminal cases. As an example, administrative affairs are given on the Tula activist Igor Burdukov for single pickets.

Do not be surprised! It will again be about article 212.1 of the Criminal Code. A very controversial article is “repeated violation of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picket”.

It is a note to the note to this article, a violation of the established procedure for the organization or the meeting, rally, demonstration, procession or picket, an committed person repeatedly, a violation of the established procedure for organizing or conducting a meeting, rally, demonstration, procession or picket, if this person was previously brought to administrative responsibility for the commission of article 20.2 of the Code of Administrative More than two times for one hundred eighty days.

The very wording of this article already raises many questions to the legislator. So, in the “Dadin case”, the Constitutional Court indicated that:

• If a violation of the established procedure for the organization or a public event by a person who had previously been brought to administrative liability before 180 days, did not entail causing harm or the real threat of harm, but, in fact, unlawful formally, such a violation can not be considered as a criminal public danger and criminal liability.
• A prerequisite for the application of Article 212.1 of the Criminal Code is a requirement that at the time of violation of the established procedure for the organization or a public event, which is the basis of criminal liability, the commission of at least three offenses under Article 20.2 of the Code of Administrative Offenses was confirmed by the court rulings on the imposition of administrative punishment.
• To prosecute criminal liability under Art. 212.1 of the Criminal Code, the court must also prove the presence of an intent on a violation of the established procedure for the organization or conducting peaceful public events.
• Since each type of legal proceedings has its own tasks and procedures, it is precedence (in the procedural right to accept the facts that were previously established by the court decision or sentencing in some other case- the OVD-info ) on the preceding facts of bringing to administrative liability cannot have an irrefutable nature in the criminal legal proceedings. This means that the facts of administrative offenses established during the consideration of cases of administrative offenses cannot have unconditional recognition in criminal proceedings, which does not exempt the court from their complete and comprehensive research in the proceedings of the criminal case.

From this explanation it is clear that nothing is clear. For example, let us dwell on such a legal category as “it was, in fact, anti -corneal purely formally” - what is it about? Here in Art. 14 of the Criminal Code, there is a concept of insignificance. Is it being discussed here? Obviously not. The point is that among the picketers and demonstrators there are “their own” and there are “strangers”. And the law of Russia is not the same for everyone when it comes to politics and criticism of power. I am more than sure that any pro-government, festive, “approving” mass event will be “essentially unlawful purely formally”, even if several thousand people participated there, and any single picketer-opposition will pose a real threat of harm to [Putin’s political system].

Here is another pearl from the position of the Constitutional Court: "The preuditiality of judicial acts about the previous facts of bringing to administrative responsibility cannot have an irrefutable character in criminal proceedings." If so, then the question arises, are all these judicial acts canceled in the event of an excuse sentence? How, by considering a criminal case in the first instance, will verify the legality of judicial acts in cases of administrative offense, which have entered into legal force? Should he even rely on them? And if it should not, then what legal meaning is concluded in whether they entered into legal force or not?

How did our domestic legal thought come to the point that systematically committed administrative offenses give in the amount of one criminal? After all, the public danger of each administrative offense from their quantity does not increase, and the attracted person is redeemed by every time, fulfilling the measure of administrative responsibility determined by law. That is, roughly speaking, if today Masha, tomorrow Sasha, the after -the -way Petya arrange an illegal picket, then they do not carry public danger, but if Masha is arranged today, tomorrow and the day after tomorrow, then her deeds are damn dangerous.

Now let's talk about what I call “Igor Burdukov’s incident”! I consider this topic very important because the “Igor Burdukov’s incident” enables the authorities to immediately bring activists to criminal liability! Bypassing criminal and administrative legislation and overcoming the position of the Constitutional Court! And in the place of Igor Burdukov, a member of the Yabloko party, there may be any other activist.

The scheme is as follows:

1. In order not to frighten off, the activist is not brought to administrative responsibility (for participating in protests- OTD-info ) neither for the first nor the second time.

2. The activist relaxes, it seems to him that he, as a single picketer, does everything within the law, if he was detained the first two times, but nothing was presented. He goes to a single picket for the third time.

3. After the third time he is brought to administrative responsibility.

4. And then they are held accountable twice, for those previous detentions.

And here he is, the moment of truth! A person confident in the legality of his actions immediately becomes a “criminal”!

12/30/2017 was issued, and on 09/09/2018 the decision was entered into force on the attraction of I.N. Burdukov To administrative responsibility. The court considered that on December 30, 2017, at 12 hours 30 minutes at the address: Tula, Lenin Avenue, 129a, stop "Voznesensky", I. Burdukov He conducted a single public event “Picket”, violating the established procedure for its holding, namely: he held a picket that was not agreed in the manner prescribed by law, using the rapidly vested collective design with the inscription “Help establish the identity of the provocateur” (a participant in the special draft for the detention and bringing to judicial responsibility of 17 innocent citizens on June 12 on Lenin Square), while the actions of the picket participant of the picket They entailed the creation of pedestrians and access to citizens to the object of transport infrastructure, in violation of the requirements of Part 5 of Article 5 of the Federal Law of June 19, 2014 No. 54-ФЗ “On Meetings, Raits, Demonstrations, Processions and Pickets”.

And on 01/31/2018, a similar resolution in relation to I. Burdukov Burdukov was brought into legal force, but already for the episode on November 04, 2017

That is, a later decree for an earlier act! The argument that law enforcement agencies are trying to artificially create evidence in retroactively in order to bring the activist to criminal liability, the judge of the Tula regional court A. Bashkirov (namely, he “scored” both decisions) was not taken into account.

"Well, what about the deadlines for drawing up a protocol on an administrative offense?" - you ask with amazement. Oh, gentlemen, not only the Constitutional Court is strong in the formulation of frankly controversial positions, but also the Supreme Court, and even to a greater extent. So in paragraph 4 of the Decree of the Plenum of the Supreme Court of March 24, 2005 N 5 “On some issues arising from the courts when applying the Code of the Russian Federation on administrative offenses” states that it is stated that

The violation of the deadlines for drawing up a protocol on an administrative offense and the direction of the protocol for consideration by the judge, since these terms are not suppressive.

Here, in fact, lawlessness is waiting for us in the coming years.

Meanwhile, there are already two complaints of activists about the decisions of the Tula regional judge Bashkirov A.A.: 79982/17 Vlasov v. Russia; No. 80593/17 kondakov v. Russia (we are talking about the participants in the opposition’s walks on March 26, 2017, fined by the court decision- ATS-info ).

In addition, the courts, returning to the case of I. Burdukov, also neither in the first nor in the second case did not study the legal aspects of the case, namely:

Burdukova was accused of violating part 1 of Article 7 of the Federal Law “On Meetings, Raits, Demonstrations, Processions and Pickets” dated 06/19/2004 N 54-ФЗ, namely, that he did not notify the picket carried out by one participant, carried out by one participant using the rapidly produced colleague design, which creates obstacles to the movement of pedestrians and the movement of pedestrians and pickers and vehicles. That is, the hypothesis of this article (and the structure of any article that is known not only to judges, but also to any citizens with higher legal education, consists of hypothesis, dispositions and sanctions) has two signs: 1) the design should relate to the rapidly-distinguished collective-clearance; 2) the design should create obstacles to the movement of pedestrians and vehicles. Only if there are two of these signs of the hypothesis, a disposition arises in the form of a notification of authorized bodies. And only in the case when the hypothesis came, and the actions prescribed by the disposition have not been carried out, there is a sanction in the form of bringing to administrative responsibility. Moreover, administrative liability for this violation does not occur in part 2 of article 20.2. The Code of Administrative Offenses, according to which Burdukov was attracted, and part 6.1. Articles 20.2. Administrative Code. Otherwise, if specified in Part 6.1. Articles 20.2. Administrative Code of the Code of Administrative Offenses in the form of interference with the movement of pedestrians and (or) vehicles will not be proved, then part 2 of article 20.2. The Code of Administrative Offenses is also not applicable, since a single picketer does not have the need for part 1 of Article 7 of the Law “On Meetings, Raits, Demonstrations, Processions and Pickets” dated 06/19/2004 N 54-FZ to notify the authorized body. The petition for the appointment of a forensic construction examination of the structure was denied by the courts. The photo captures just a controversial design.

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