Commentary to Art. 343 Criminal Code
1. The objective side is a violation of the rules of service for the protection of public order and ensuring public safety, established by the charters approved by Decree of the President of the Russian Federation of November 10, 2007 N 1495 “On approval of general military regulations of the Armed Forces of the Russian Federation”, and other regulatory legal acts.
2. The act will be considered completed from the moment of causing harm to the rights and legitimate interests of citizens. Harm can be expressed in beatings, causing minor harm to the victim’s health, humiliation of his honor and dignity, destruction or damage to property, etc.
3. From the subjective side, a crime can be committed either intentionally or through negligence.
4. The subject of the crime is a military serviceman who is part of a military detachment for the protection of public order and ensuring public safety.
5. The qualifying feature is the infliction of grave consequences by this act, which may include the negligent infliction of death or harm to the health of the victim, destruction or damage to particularly valuable property, etc.
Article 343. Customs escort
1. Customs authorities use customs escort in order to ensure the transportation of goods under customs control across the customs territory of the Union.
2. Customs escort consists of escorting vehicles transporting goods under customs control or vehicles under customs control.
3. Customs escort is carried out by officials of customs authorities or organizations determined in accordance with the legislation of the Member States.
4. Customs authorities have the right to use customs escort:
1) when transporting goods in accordance with the customs procedure of customs transit in the following cases:
failure to provide, in accordance with Article 146 of this Code, security for the fulfillment of the obligation to pay import customs duties, taxes, special, anti-dumping, countervailing duties, or provision of security for the fulfillment of such obligation in an amount less than the amount determined in accordance with Article 146 of this Code;
repeated failure by the carrier to fulfill obligations when transporting goods in accordance with the customs procedure of customs transit, which was established by decisions on bringing into administrative liability that have entered into legal force, if at least one of these decisions is not executed;
failure by the carrier to fulfill, within the established period, the obligation to pay import customs duties, taxes, special, anti-dumping, countervailing duties in accordance with Article 153 of this Code;
other cases when signs of non-compliance with international treaties and acts constituting the law of the Union and (or) the legislation of the Member States are identified;
2) when transporting foreign goods under customs control, when, in accordance with this Code, such goods can be transported through the customs territory of the Union without being placed under the customs procedure of customs transit.
5. The provisions of paragraph five of subparagraph 1 of paragraph 4 of this article do not apply if the declarant of goods placed under the customs procedure of customs transit is an authorized economic operator holding a certificate of the first or third type.
6. If the customs authority makes a decision to use customs escort, the customs authority informs the carrier about such a decision and organizes customs escort no later than 24 hours from the moment such a decision is made.
7. When customs escort of vehicles through the territory of only one Member State, the procedure for organizing customs escort is established by the legislation of that Member State.
8. When customs escort of vehicles through the territories of two or more Member States, the procedure for organizing customs escort is determined by an international treaty within the Union.
9. For the purposes of applying the paragraph of the third subparagraph 1 of paragraph 4 of this article, the exchange of information on decisions that have entered into legal force on bringing the carrier to administrative responsibility for failure to fulfill his obligations when transporting goods in accordance with the customs procedure of customs transit and their implementation is carried out in accordance with an international treaty within the Union.
Second commentary to Art. 343 of the Criminal Code of the Russian Federation
1. According to clause 1, part 1, art. 2 of the Federal Law “On the National Guard Troops of the Russian Federation”, one of the most important tasks of the National Guard troops is participation in maintaining public order and ensuring public safety.
2. Violation of the rules of service for the protection of public order and ensuring public safety can be expressed in actions that humiliate the honor and dignity of citizens, their unjustified detention, etc.
3. Cases of humiliation of the honor and dignity of citizens, their unjustified detention, deprivation or restriction of other rights and freedoms fall under the characteristics of Part 1 of the commented article. Grave consequences (Part 2) should be recognized as the infliction of harm dangerous to the life or health of citizens as a result of the illegal use of physical force, special means and service weapons.
4. From the subjective side, the crime is committed intentionally. The guilt of the subject in relation to the grave consequences of his actions (Part 2) is possible both in the form of intent and negligence.
5. The subject of the crime is a military serviceman who is part of a military detachment for the protection of public order and ensuring public safety.
Commentary on Article 343 of the Civil Code of the Russian Federation
1. Paragraph 1 of the commented article establishes the rule for the maintenance and insurance of pledged property. The responsibility for proper storage and maintenance of property is assigned to the parties to the collateral relationship (the pledgor or the pledgee) and is subject to the rule of Art. 210 GK. In addition to these obligations, the commented article establishes the requirement to insure the pledged property for its full value. If the value of the property exceeds the amount of the claim secured by the pledge, then insurance is allowed for an amount not lower than the amount of the claim secured by the pledge. The pledgor, who transferred the pledged property to the pledgee, also received the right to check the actual pledged property using documents. The Civil Code has expanded the responsibilities of secured creditors who hold the property. They are obliged not only to provide all documentation to the debtors, but also to allow them into the premises where the pledged property is located. If the secured creditor carries out extensive collateral transactions, then simultaneously fulfilling these obligations in relation to many debtors may become burdensome for it.
2. Paragraph 3 of the commented article is not consistent with its paragraphs 1, 2. Both of them define the obligations and rights that equally belong to both the pledgor and the pledgee. However, clause 3 provides for the consequences of violation of obligations only for the pledgor: the right to demand early termination of the pledge is given only to him.
This, however, does not mean that in the event of violations committed by the pledgor himself, there are no consequences and the pledgee does not receive any rights. These rights are established by another article of the same paragraph, namely paragraph 2 of Art. 351 Civil Code.
Article 343 of the Criminal Code: what is considered pornography?
lawyer, April 18, 2019
Article 343 of the Criminal Code establishes criminal liability for the production or storage for the purpose of distribution or advertising, or the distribution, advertising, broadcast or public display of pornographic materials or items of a pornographic nature. Such actions are punishable by community service, or a fine, or correctional labor for up to two years, or arrest. For the same actions committed by a group of persons by prior conspiracy, or by an organized group or using a telecommunications network (in particular, the Internet), as well as for the demonstration of pornography by an adult to a minor, part two of this article establishes only one punishment - imprisonment for a term of two to four years. For child pornography, Article 343-1 of the Criminal Code establishes even stricter liability.
To determine whether a particular item is pornographic in nature, the criminal prosecution authority commissions an appropriate examination. However, there is still no objective answer to the main question - what is considered pornography?
In paragraph 2 of the Instructions on the procedure for the production, reproduction, display, rental, sale and advertising of erotic products, products containing elements of eroticism, violence and cruelty, products on sexuality education and sex education, as well as products for sexual purposes, approved by a resolution of the Ministry of Culture of the Republic of Belarus dated 05/08/2007 No. 18, contains the following definition of pornography: “vulgar-naturalistic, disgustingly cynical, obscene recording of sexual intercourse, self-directed, deliberate demonstration of mostly naked genitals, anti-aesthetic scenes of sexual intercourse, sexual perversions, sketches from nature that do not correspond moral criteria, insult the honor and dignity of the individual, placing it on the level of manifestations of animal instincts.” This definition is replete with evaluative definitions and even emotionally charged vocabulary, and therefore cannot be considered scientific and objective.
In paragraph 2 of the Regulations on the Republican Expert Commission for the Prevention of Propaganda of Pornography, Violence and Cruelty, approved by Resolution of the Council of Ministers of the Republic of Belarus dated October 22, 2008 No. 1571, there is a definition of pornographic materials or items of a pornographic nature depicting a minor. They are understood as a type of pornographic materials or items of a pornographic nature, which includes materials or items containing any image or description of a child (i.e., an individual under the age of eighteen years) or perceived as an image or description of a child or an adult, imitating a child committing real or simulated acts of a sexual nature or taking part in the commission or imitation of such acts, or a realistic image, including those created using animation or electronic technology, of a child committing or participating in the commission of acts of a sexual nature, and equally any depiction or description of a child's genitals for sexual purposes.
The two above definitions guided the Republican Expert Commission on the Prevention of Propaganda of Pornography, Violence and Cruelty, which carried out an examination of pornographic materials until July 2022. Now such an examination is carried out by the State Committee for Forensic Expertise. For this purpose, a cultural examination department was created and 11 state forensic experts were trained. According to the chairman of the State Committee for Economic Examination Andrei Shved, such a step will completely eliminate any subjectivity in assessments. However, the situation has not fundamentally improved, since now the definition of pornographic materials, which is the basis for criminal prosecution, is known only to cultural experts and has not been published anywhere. Moreover, the methodology for conducting the examination of such materials is still being tested, which suggests that the creation of the cultural examination sector at the State Committee for Social Security was hasty and insufficiently prepared, and the definition of pornography has not yet been established and may change in the future.
So, according to the answer from the State Committee for Economic Examination, currently pornographic are considered materials and objects that do not have cultural value, containing a naturalistic image (aimed mainly at stimulating sexual arousal or sexual release) of anatomical details of the external genitalia of a person (with the exception of objects for sexual purposes ) or interactions and manipulations with the genitals or anus.
The main characteristic of pornography, according to this definition, is the lack of cultural value. This criterion does not cause any criticism, since it is what distinguishes pornography from erotica and only an expert in the field of cultural studies can establish its presence. At the same time, it is not entirely clear why the criminal prosecution body needs an expert’s opinion to establish other criteria, which an official can certify by a routine examination of the relevant item. In practice, to identify child pornography, the question of the presence of an image of a person in the prepubertal (early pubertal) period of development is also brought up for examination. It seems that determining whether pornographic material contains a minor should not be within the competence of a cultural expert.
The next criterion for pornography is the presence of a naturalistic image. The Criminal Code of the Republic of Belarus provides that objects of a pornographic nature can be not only films, videos or images, but also printed publications. In some scientific definitions, pornography includes not only visual works, but also verbal descriptions, which makes it possible to recognize not only photos and videos, but also audio or texts as pornographic. In this case, the definition of Belarusian culturologists uses a restrictive interpretation of the criminal law norm and removes any textual information from the scope of Articles 343 and 343-1.
But further wording of the definition raises concerns. Thus, an image of anatomical details of the structure of the genital organs will not be considered pornography only if it is placed on sexual objects - in other words, on the products of sex shops. But what about photo and video images of a scientific or medical nature? To differentiate them, one could use the following criterion of pornography: “aimed at stimulating sexual arousal or sexual release.” However, in the definition of GCSE this criterion has a reservation - “basically”. In addition, the definition of Belarusian cultural experts does not even provide for the obligatory fixation of attention on the genitals - simply placing them in the frame is enough. With such vague formulations, a video of a humorous nature or photographs from a nudist beach can be considered pornography, if desired, and the demonstration of photographs of naked children that are in any family album can easily become the distribution of child pornography.
Based on the above, it seems necessary:
1) clarify the definition regarding the classification of images of genital organs as pornography, excluding the unreasonable classification of materials and objects that are clearly not intended to stimulate sexual arousal or sexual release;
2) consolidate the legal definition of pornographic materials and objects in the Criminal Code;
3) submit for cultural examination only questions of a cultural nature.
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