The Armed Forces of the Russian Federation allowed the courts to terminate the cases of reposts in the absence of criminal intent

The person against whom the criminal case has been instituted for posts on the Internet has the right to appeal the decision on its excitement, the Supreme Court says.

The question of the presence of a crime should be considered at the stage of initiating a criminal case, and not when considering it on the merits - the courts should not be loaded with such cases, said the chairman of the Supreme Court of the Russian Federation (RF Armed Forces) Vyacheslav Lebedev, commenting on the latest clarifications on the application of the legislation on “repost cases”.

With these clarifications, the Supreme Court of the Russian Federation supplemented the resolution of the Plenum “On Judicial Practice in Criminal Affairs of Extremist Crimes” of June 28, 2011.

“In the appropriate resolution of the Plenum, we said, among other things, that the issue of the corpus delicti should be considered at the very early stage. Not only when it is considered on the merits, having entered the court, with an indictment, namely at an early stage, when the case was initiated and when the person in respect of whom the case was instituted has the right to appeal the decision to initiate the case, ”said Lebedev.

According to him, the courts were instructed that they check whether there is a crime or not. If there is no direct intent to commit a crime under Article 282 of the Criminal Code of the Russian Federation, the case must be terminated, a meaningless investigation should not be carried out on it, it should not be sent to the court.

Lebedev also stated that the number of criminal cases of extremism in social networks over the past three years has grown several times. “There are few cases in Russia, in comparison with other categories. There are more than 500 of them, however, the growth dynamics are obvious, ”he said. Two years ago, according to the head of the Armed Forces of the Russian Federation, “more than a hundred” of cases on the initiation of hatred or enmity on the Internet were registered.

The information and analytical center “Owl”, which will monitor the situation with persecution for publications on the Internet and whose human rights activists are included in the Human Rights Council under the President of the Russian Federation, gave comments on the decision of the Plenum of the Armed Forces, since there are both advantages and disadvantages.

The Supreme Court is much more details than in 2016, when the previous amendments were made, explained how to evaluate the context of a public statement in order to make a decision on the motive of the accused in anti -ethnic articles, human rights activists say.

“Owl” also emphasizes the importance of the fact that this explanation is given in connection with the possibility of appealing in court a decision to initiate a criminal case:

“As you know, to terminate the case at the investigation, especially at its beginning, easier than to achieve an acquittal. If the lawyer can convincingly submit the data on the context of the sane statement showing that there are no sufficient - or at all - there are no reason to think that the accused really had a criminal motive, the case may be discontinued. And if there are enough such decisions, operatives and investigators as a whole will become much more attentive to the context of statements. ”

Important, according to Owls, is also an assessment of the degree of public danger of the statement indicated by the Supreme Court, where not only its content is important, but also the quantitative and qualitative composition of the alleged audience. “Until now, the fact that the number of people barely different from zero got acquainted with the statement did not serve as an obstacle to criminal prosecution. Now, in such cases, it is recommended to terminate the case due to the insignificance of the act, ”said the experts of the NAC“ OVA ”.

True, they immediately expressed fears that the judges would not understand how to assess the size of the audience in the case when it comes to statements on the Internet, and here certain clarifications of a technical nature are needed. “When resolving this issue, constructive cooperation of the administrations of social networks and law enforcement agencies would be appropriate,” Owl believes.

Human rights activists emphasized the importance of the clause specified by the court, which indicates that the main freedoms can be limited only in extreme cases, in accordance with the Constitution and international law. “Of course, this is only a general indication,” says “owl”, “but from this it does not become less relevant.”

Among the shortcomings of the decision of the Armed Forces of the Russian Federation on likes and reposts "owl" the following amendments were noted:

Explanations about the need to take into account the purpose, context and nature of the audience of the statement, as well as evaluate the degree of its public danger, are made in relation only to Art. 282 of the Criminal Code. “In fact,” experts believe, “they must be applicable to other articles of the Criminal Code of public statements, but the Supreme Court did not make an appropriate indication, and this creates the risk that the judges will not apply these explanations to other such articles (Articles 280, 280.1, partly 354.1 of the Criminal Code).”
The clarification of the paragraph about the use of the examination is only cosmetic. The Armed Forces indicated that the expert opinion does not have a pre -established force and does not have an advantage over other evidence, and the question of evaluating certain public statements for the presence of the composition of anti -exploration articles is exclusively to the competence of the court. “But essential,” “Owl” insists, “to change the vicious practice of applying the examination in cases of extremist crimes, there could be an indication that any expert conclusions in which legal issues are posed should be rejected as unacceptable evidence (this formulation was offered by the Human Rights under the President).”

True, as we already wrote earlier, a number of human rights activists, journalists and social activists have a very skeptical attitude to the decision of the Plenum of the Supreme Court of the Russian Federation, especially taking into account the previously published statistics on an increase in the number of convicts for extremism.

“The Supreme Court, clarifying the article on extremism, immediately gave a hint of investigators,” writes Sergey Smirnov in his Telegram channel. - In the case, there should be an intent to spread extremist material and the audience should be taken into account. Further in business for reposts, we will read approximately the following: “I made a repost in order to spread an extremist content as wide as possible.” The courts will be enough. The ingenious clarification of the Supreme Court (no). "

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