Incitement to recklessness

Criminal cases on the fact of the rally on January 23 are based on an absurd legal anecdote that no one notices

According to Lenin (State and Revolution), the law is "an instrument of the ruling class." Today it is difficult to disagree with this, but noting that the “tool” is still somewhat more complicated than a rubber stick, and requires knowledge of the rules for using the Criminal Code, Code of Criminal Procedure and the Code of Administrative Offenses of the Russian Federation (and in some cases also the Civil Code and Civil Procedure Code) and the corresponding skills of users.

The Main Directorate of the Ministry of Internal Affairs for Moscow announced the initiation of a case under Art. 236 of the Criminal Code of the Russian Federation, not only against potential carriers of the coronavirus for going to protests consisting of 19 people (according to Social Monitoring), but also for inciting them. Oleg Navalny, Lyubov Sobol, Kira Yarmysh, Maria Alyokhina, the head of the Alliance of Doctors Anastasia Vasilyeva, the head of Navalny's headquarters Oleg Stepanov and others have already been interrogated in the "sanitary case".

We read the disposition of Article 236 of the Criminal Code: “Violation of sanitary and epidemiological rules, which, through negligence, caused a mass disease or poisoning of people, or created a threat of such consequences.” The addition of a “threat” turns the composition into a formal one, that is, real consequences do not seem to be a necessary feature here.

However, the beauty of the idea, whose authorship we have not yet been able to establish, is spoiled by the sign of “carelessness”.

According to Art. 26 of the Criminal Code, careless crimes are committed either “through carelessness”, when the perpetrator foresaw the possibility of consequences, but hoped to prevent them, or “by negligence”, when the perpetrator did not foresee the consequences, although he was obliged and could foresee them. But where are the consequences? This is not Article 121 of the Criminal Code (infection with a venereal disease), using which cause and effect (and even then not always) can be traced. How will the prosecution prove the connection between the movements of carriers of the virus and the possible infection of some other, but no less specific persons? Is there such expertise?

Hypothetical causality is not good for a criminal charge. Meanwhile, apparently, the main participants from the point of view of the Central Internal Affairs Directorate are accused as “instigators” (specific “executors”), that is, of “inciting other persons to commit a crime by persuasion, bribery, threats or in any other way” (Article 33 of the Criminal Code ). Who specifically was "persuaded", for example, by Alyokhina, and as a result, will she prove violations of the isolation rules as a result of reading her tweet?

Incitement to an unintentional crime is generally an oxymoron, but the same questions arise in the “childish” case of involving minors in the commission of a crime “by promises, deceit, threats or in any other way” (Article 150 of the Criminal Code).

Firstly, going to a street action, even if “unauthorized”, is not a crime in itself,

and secondly,

if Navalny’s headquarters “promised” Russia without corruption to someone, how is the investigation going to prove that it was just a hoax?

These questions are obvious for lawyers - in order to immediately run into them, it is not necessary to be Professor Bastrykin (Zorkin, Klishas, ​​Krasheninnikov, etc.). By the way, the “analogy” that slipped through in the case of Navalny’s detention is also categorically not applied to criminal law, unlike civil law - on the contrary, the principle of nullum crimen sine lege applies here (there is no responsibility for what is not expressly prohibited by law).

the provision on “friends of the court” (amicus curiae) from the rules of procedure of the Constitutional Court almost went unnoticed Due to the legal efforts of the “siloviki”, the disappearance of . One of the experts who drew attention to this noted that “the court now has no friends, except for the National Guard and the presidential administration.” But "amikus", that is, the initiative conclusions of learned lawyers who were not involved in the case, did not oblige the judges to change anything in their positions: they did not ask for bread and most often simply remained in the folders of cases. How did they prevent Professor Zorkin?

“A silent reproach” - I see here a sign of the rudimentary professional shame of lawyers - the main haters of law in today's Russia, which, unlike the “law” (according to Lenin), should protect human rights and freedoms before the “Leviathan” of the state.