Art. 280 of the Criminal Code of the Russian Federation establishes a public call for extremist activity as a criminal offense. This offense is dangerous because it is committed against the safety of the state. Its scale can be so great that it threatens the stable life of the entire society.
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Punishment
As stated in Part 1 of Art. 280 of the Criminal Code of the Russian Federation, for public calls for extremist actions, those responsible may face:
- Monetary recovery from 100 to 300 thousand rubles. or equal to salary (other income) for 1-2 years.
- Up to 3 years of forced labor.
- 4-6 months arrest.
- Up to 4 years in prison with a ban on holding positions or carrying out activities established by the judge for also 4 years.
If a crime is committed using the media, the Internet or other information and telecommunication systems, the perpetrators may be sentenced to forced labor or imprisonment. The term of punishment under Part 2 of Art. 280 of the Criminal Code of the Russian Federation – up to 5 years. In addition to the main sanction, a ban on holding positions or conducting activities determined by the court may be imposed for a period of up to 3 years.
Grounds for liability
Sanctions under Art. 280 of the Criminal Code of the Russian Federation are established on the basis of the provisions of Articles 13 (Part 5), 14 and 29 of the Constitution.
Current legislation prohibits any propaganda of social, religious, racial, linguistic, or national superiority. At the same time, the provisions of Russian law act in close connection with international legal acts. The latter, in particular, should include:
- Covenant on Political and Civil Rights.
- Convention on the Elimination of Racial Discrimination in All Forms.
- Declaration of the UN General Assembly on the Elimination of Discrimination and Intolerance on the Basis of Belief or Religion.
- Convention for the Protection of Freedoms and Human Rights.
- Shanghai Convention on Combating Separatism, Terrorism and Extremism.
In furtherance of the provisions of the Constitution and international legal documents ratified by the Russian Federation, the Criminal Code enshrines a ban on public calls for extremist actions. Art. 280 of the Criminal Code of the Russian Federation establishes punishments not for any actions, but only for those that are addressed to an indefinite number of persons.
Taking into account the above, the provisions of the norm in question cannot be qualified as inconsistent with the Constitution and incompatible with the right to free expression of one’s opinion.
Comments on Article 280 of the Criminal Code of the Russian Federation
The legal basis for the liability provided for in the norm in question is the provisions of Articles 13, 14, 29 of the Constitution.
When introducing Article 280 into the Criminal Code of the Russian Federation, the legislator was guided, among other things, by the provisions prohibiting the propaganda of racial, national, linguistic, social and other superiority, and the norms of international legal acts. In particular, the provisions of the Universal Declaration of Human Rights of 1948, the Covenant of 1966, the Declaration of the UN General Assembly of 1981, the Convention on the Elimination of Racial Discrimination in Any Form of 1965, the Convention for the Protection of Fundamental Freedoms and Human Rights from 1950, Shanghai Convention against Extremism, Separatism and Terrorism of 2001
Analyzing Article 280 of the Criminal Code of the Russian Federation with comments from the Constitutional Court on the constitutionality of its provisions, the following can be noted. The court draws attention to the fact that the Constitution of the Russian Federation guarantees freedom of speech and thought to everyone, prohibiting at the same time agitation, propaganda, inciting hatred or enmity on racial, national and other grounds.
Developing constitutional provisions and provisions of international documents, Article 280 of the Criminal Code of the Russian Federation specifies prohibitions, establishing responsibility not for any actions, but for those committed publicly and aimed at an indefinite number of subjects. It follows from this that the provisions of this norm cannot be considered as contrary to constitutional guarantees.
Features of terminology
In the note to Art. 280.1 of the Criminal Code of the Russian Federation reveals the concept of crimes of an extremist nature.
They are considered acts committed based on ideological, national, political, religious, racial hatred or hostility towards any social group.
The design of the disposition of this norm is blanket (referring to other legal norms). In this regard, to form a clear idea of the concept, you should refer to the provisions of Federal Law No. 114.
This regulatory act establishes that extremism is the activity of religious, public associations, other organizations, the media, individuals related to the planning, organization, preparation, and commission of acts, the purpose of which is:
- violent change of the constitutional order, violating the integrity and undermining the security of the state;
- appropriation/seizure of power;
- creation of illegal armed groups (illegal armed groups);
- terrorist activities;
- inciting racial, religious, national hatred, social hatred;
- humiliation of national dignity.
Extremism is also considered to be organizing mass riots, committing acts of vandalism, hooliganism, in connection with religious, national and other hatred or hostility towards a particular social group. Public display and propaganda of fascist symbols, paraphernalia, financing of extremist actions or other assistance in their implementation is considered a crime.
Public calls and incitement to commit a crime:
an attempt at differentiation.
Rostokinsky Alexander Vladimirovich,
Associate Professor at Moscow City Pedagogical University.
Among crimes of an extremist nature, as they are defined by the new edition of Article 282.1 of the Criminal Code of the Russian Federation,[1] an important place is occupied by the acts provided for in Article 280 of the Criminal Code of the Russian Federation. Public appeals are a way of spreading and inciting enmity and hatred towards representatives of various social groups, confessions, political movements, nationalities, etc., a means of escalating various conflicts and involving groups of citizens in the commission of illegal actions. The actual actions are provocative and inflammatory. Therefore, it seems interesting to compare the acts provided for in Article 280 of the Criminal Code of the Russian Federation with the norms of Part 4 of Article 33 of the Criminal Code of the Russian Federation on incitement to commit crimes.
According to N.F. Kuznetsova, the instigator is an “intellectual accomplice. He instills the idea of the benefit, expediency, and necessity of committing a crime in another person (the perpetrator), thereby inclining him to commit a criminal act. Declension methods can be very diverse. Some of them name Article 33 of the Criminal Code of the Russian Federation: persuasion, bribery, threats.”[2] A Yu.I. Krasikov emphasizes that incitement is only possible to commit a specific crime... It cannot be recognized as incitement to a crime if appeals, persuasion, advice do not contain motives for encroaching on a specific object. General calls to commit a crime that are not addressed to a specific person are not a crime; they can be considered a crime only if, in accordance with the criminal law, they contain signs of an independent crime.”[3]
These include crimes provided for in Articles 150 and 280 of the Criminal Code of the Russian Federation. In the first case, the legislator establishes a special objective sign, the minor age of the addressee of incitement, in the second - the method of incitement, publicity, i.e. the addressee is the public. The public nature of some action by G.G. Krivolapov characterizes it as being committed directly in the presence of third parties (in the case of their oral form - i.e. actions of A.R.) or with the expectation that other persons will become familiar with them (in the case of their written form).[4]
Obviously, as in other cases of violation of public order, “publicity” is expressed in the fact that as a result of the commission of an act, material traces remain accessible to the perception of an unlimited circle of people. Therefore, a similar display of other graphic and audiovisual materials, for example, on the Internet, should be equated to written materials presented, at least tacitly, but in a place accessible for perception and familiarization. This creates conditions for individuals to commit more serious crimes motivated by hostility and hatred.
Thus, it was under the influence of information contained in Internet publications that A. Koptsev decided to attack the synagogue located on Bolshaya Bronnaya Street (Moscow). On January 11, 2006, during evening prayer, he entered the building and began inflicting random blows on those gathered with the knife he had on him. Seven victims were hospitalized, four of them with serious injuries.[5]
It should be noted that in addition to extremist propaganda, there are other types of incitement provided for in the articles of the Special Part of the Criminal Code of the Russian Federation: public calls for terrorist activities or public justification of terrorism (Article 205.1 of the Criminal Code); calls for active disobedience to the legal demands of government officials and for mass riots, as well as calls for violence against citizens (Part 3 of Article 212 of the Criminal Code); public calls to unleash an aggressive war (Article 354 of the Criminal Code of the Russian Federation); inducement to consume narcotic drugs or psychotropic substances (Article 230 of the Criminal Code of the Russian Federation), as well as some others.
In these cases, there is also a specific disclosure of information that contributes to the formation of a certain circle of people, i.e. public, motives for committing crimes. To bring the perpetrator to justice, it is not at all necessary that, under the influence of such information (intellectual) influence, third parties, or at least one person, committed crimes. And it is almost impossible to reliably establish such a connection in every case.
For example, the Karachayevsky City Court considered a criminal case on charges of gr. Shailieva K.A. in the commission of crimes provided for in Part 1 of Article 280 and Part 1 of Article 282 of the Criminal Code of the Russian Federation. The court found that Shailiev K.A. from 1998 to March 2001, he was an activist, and since 1999, the head of the religious association “Muslim Society No. 3” (recognized by the court as an extremist organization). Activists of this society, by order of Shailiev K.A. publicly promoted the exclusivity and superiority of Muslims over the rest of the population of the Karachay-Cherkess Republic and the entire North Caucasus region, publicly called for a war against the non-Muslim population with the aim of enslaving them...
The first head of this organization was from 1997. A. Gochiyaev, now wanted for committing terrorist acts in Moscow and Volgodonsk, and of the members of this society, 19 people were brought to criminal responsibility for committing serious and especially serious crimes, and 9 of them for participation in an illegal armed group.[6 ]
Consequently, it is possible to distinguish between general or universal incitement, which can occur when committing any crime, except for those specifically provided for by the articles of the Special Part of the Criminal Code of the Russian Federation, as well as special incitement, which is provided for by these articles as a completed crime. The basis for distinguishing the latter is the increased social danger of the instigator’s actions themselves, creating the danger of causing harm in the future.
But the variety of approaches used by the legislator to construct the elements of specific incitement objectively makes it difficult to distinguish them not only from incitement to commit specific crimes, but also from each other. The above fully applies to the current version of Article 280 of the Criminal Code of the Russian Federation.[7]
Thus, the list of crimes covered by the concept of “terrorist activity” is enshrined in Art. 205 and 205.1 of the Criminal Code of the Russian Federation, while the concept of “extremist activity” is enshrined in another regulatory act, in Article 1 of the Federal Law “On Combating Extremist Activities”, which, in its own right,
turn, does not contain a return reference to the Criminal Code of the Russian Federation, only casually lists the signs of extremism (extremist activity).[8]
Among the acts named by the Federal Law there are both criminal and non-criminal, administratively punishable, in particular, those expressed in propaganda and public display of Nazi (confusingly similar to Nazi) symbols or paraphernalia. However, calls to commit administratively punishable acts cannot be prosecuted under criminal law.
Further, the legislator calls, as a form of extremism, the public deliberately false accusation of a person holding a public office of committing during the performance of his official duties the acts specified in this article and which are crimes. This norm is truly unique, since it indicates a simple lack of understanding by the legislator of the essence of the social danger of the act.
If a public servant is deliberately falsely accused of murder, this is slander, and even then in the case of public dissemination of fabrications. If false accusations are made of preventing citizens from exercising their voting rights (regardless of the motives for the crime! - A.R.), then extremism will take place in the actions of the slanderers. And if the attackers accuse the unfortunate official of going or going to work in Nazi clothes, etc. symbolism, then extremism in their actions is excluded. Carrying something is not criminal. Where is the logic?
Finally, we cannot ignore the competition of legal norms, which is completely unacceptable in matters of establishing the grounds for criminal liability. In accordance with clause 1) of Article 1 of the Federal Law “On Combating Extremist Activities,” extremism is the public justification of terrorism and other terrorist activities. Consequently, public calls to commit terrorism are not only a crime provided for in Article 205.2 of the Criminal Code of the Russian Federation, but also a crime provided for in Article 280 of the Criminal Code of the Russian Federation. So to speak, in reserve...
The current version of Article 280 of the Criminal Code of the Russian Federation, obviously, does not allow us to find a solution to these issues, since it allows for a broad interpretation of the scope of the criminal law prohibition.
It seems to the author that a simpler way out of this situation is to abandon the reference statement of the normative material of Article 280 of the Criminal Code of the Russian Federation with the listing of specific crimes in it, public calls for the commission of which form an independent crime. In all other cases, especially when calling for the commission of grave and especially grave crimes is published, it is necessary to apply the general norms of Part 4 of Article 33 and Article 34 of the Criminal Code of the Russian Federation on liability for incitement.
In particular, at present, according to these norms, the responsibility of persons who incited or publicly called for the commission of the most dangerous violent attacks against the state and the order of government is determined: the murder of a statesman or public figure (Article 277), the violent seizure of power or the forcible retention of power ( Art. 278), armed rebellion (Art. 279), sabotage (Art. 281), encroachment on the life of a person administering justice or preliminary investigation (Art. 295), violent actions against these persons (Part 4 of Art. 296) , encroachment on the life of a law enforcement officer (Article 317), use of violence against a government official (Article 318), disruption of the activities of institutions that ensure isolation from society (Part 3 of Article 321); as well as all conventional crimes (except for those provided for in Articles 354 and 360 of the Criminal Code of the Russian Federation), provided for by Chapter 29 of the Criminal Code of the Russian Federation. Today, only calls to commit acts provided for in Articles 277-279 and 360 of the Criminal Code of the Russian Federation are recognized as terrorist propaganda.
Therefore, a necessary measure seems to be the criminalization in Article 354 of the Criminal Code of the Russian Federation of public calls (possibly also public justification for their commission - A.R.) to commit any crimes provided for in Chapter 34 of the Criminal Code of the Russian Federation. On the one hand, the scope of application of the general rules on incitement is already limited both by the rules of Article 354 and by a number of other rules of the Special Part of the Criminal Code. On the other hand, the criminalization of public calls for encroachment on one generic object in the norms of various chapters of the Criminal Code of the Russian Federation disorganizes the system of protection of the public goods in question.
It turns out that calls to commit a crime under Article 360 of the Criminal Code (Assault on persons or institutions enjoying international protection) are prosecuted under Article 205.2 and infringe on public safety; calls for unleashing (but not planning, preparing or waging! - A.R.) an aggressive war (Article 353 of the Criminal Code of the Russian Federation) - as encroaching on the peace and security of mankind - under Article 354 of the Criminal Code. At the same time, calls for genocide (Article 357 of the Criminal Code of the Russian Federation), obviously, should be qualified under Article 280 of the Criminal Code as acts encroaching on the security of the state and the constitutional order. This approach seems completely unacceptable, since within its framework the social danger of one action (1), initiating another action (2), manifests itself not in different spheres, but in one sphere, in the one in which, according to the intention of the perpetrator, the consequences of the initiated action should arise actions (2).
Based on the above, one should distinguish between general (universal) incitement, which can occur when committing any crime, except for those specifically provided for in the articles of the Special Part of the Criminal Code of the Russian Federation, as well as special incitement, which is provided for in these articles. Such incitement is recognized as a completed crime from the moment the actions described in the dispositions of the relevant articles are committed.
To exclude conflicts of laws, the disposition of the norm of Article 280 of the Criminal Code of the Russian Federation must be formulated in the same way as Article 205.1 of the Criminal Code of the Russian Federation, i.e. by listing the crimes that pose the greatest danger to the state (constitutional) system, public administration, justice, and public safety. In this case, it will be necessary to resolve the issue of the validity of the presence of this article in Chapter 29 “Crimes against the foundations of the constitutional order and security of the state.”
In another norm, it is advisable to provide for criminal liability for committing public calls for the commission of any crime against the peace and security of mankind, provided for in Chapter 34 of the Criminal Code of the Russian Federation.
Received by the editor on December 19, 2007.
Features of judicial practice under Art. 280 of the Criminal Code of the Russian Federation
When considering cases, the issue of publicity of the perpetrators’ appeals must be decided taking into account the method, place, situation and other circumstances of the commission of the act.
It is necessary to understand the variety of ways and means that criminals can use. For example, public calls should be considered:
- Addressing people in a public place, at a meeting, demonstration, rally.
- Distribution of leaflets.
- Placing advertisements on the Internet (on blogs, websites, in open access diaries).
- Hanging out propaganda posters.
- Dissemination of messages via email.
In each individual case, it must be established, among other things, that the public accepted the appeals directed at it.
Arbitrage practice
In their work, courts must be guided not only by federal legislation, but also by Resolution of the Supreme Court of the Russian Federation of June 28, 2011 No. 11. It provides an explanation of the concepts of the Criminal Code and the rules for applying the norms.
Judicial practice regarding extremist activities is heterogeneous.
To resolve a case, the judge must consider the following factors:
- Place of occurrence.
- Way.
- The situation in a country, a certain place and society.
In 2015, a political activist was sentenced to 2 years in a penal colony for several reasons. Including for a positive attitude towards the desire of some Russian citizens to “join Ukraine.” The opinion expressed by the judge was recognized as an inducement to change the constitutional order through violence. The political situation in society played a major role in the decision.
It is often very difficult to distinguish between the elements of Article 280 and other related crimes. For example, in a video posted in the public domain, they say that Asians oppress Europeans, want to destroy them, and kill people just for their light skin color. Then the punishment will follow according to the sanction of norm 282. But if the result is said to be the need to unite and start killing Asians, the act will be considered as a call to extremism.
Currently, more than 90% of convictions are for posting on the Internet, including copying someone else's posts on a user's personal page.
Specific qualifications
Composition of the act provided for in Art. 280 of the Criminal Code of the Russian Federation is considered formal. The crime is completed at the moment of public dissemination (proclamation) of at least one message. In this case, the fact of achieving or not achieving the goal does not matter. In other words, conversion may not encourage other people to engage in extremist activities.
Reproduction, production, storage of materials for their subsequent use for propaganda purposes does not entail liability. In accordance with Art. 30 of the Criminal Code, the stage of preparation for the act is not punishable. A similar rule applies in cases of preparation for an attack using the media.
If public appeals led to mass riots or armed rebellions, the actions of the perpetrators are qualified in conjunction with Articles 212 and 279 of the Criminal Code.
Subjective part
The act provided for in Article 280 is committed intentionally. In this case, the intent has a direct focus.
The culprit understands the illegality of his calls, but wants to express them.
To establish a motive, it is necessary to take into account the duration of interpersonal relationships between the criminal and the victim, the presence/absence of conflicts not related to ideological, national and other views, or belonging to any social or religious group.
Delimitation of Art. 280 and 282 of the Criminal Code of the Russian Federation
The norm in question provides for sanctions only for public calls for extremist actions.
If there is a dissemination to an indefinite number of subjects of information justifying the need to commit unlawful actions against other persons on the basis of religion, race, nationality, etc., or information justifying such behavior, such acts fall under Article 282 of the Criminal Code if there are other signs of the composition of this crimes.
It is necessary to distinguish between statements that assert the need to commit illegal actions (Article 282) and calls for them (Article 280). The latter are regarded as a type of action whose purpose is to incite hatred.
For example, a video has been posted on the Internet claiming that representatives of one race are universally oppressed by representatives of another, that the latter have chosen a course to destroy and eradicate the former, and the crimes committed by them have exclusively racial overtones. In this case, there are signs of the composition provided for in Article 282.
If, in conclusion, this video contains a call to unite to destroy other people, then there are signs of Art. 280. The construction of the crime provides for actions covered by Article 282. Accordingly, the posting of such a video is qualified only under Art. 280.
As for public calls for terrorist activities, then, by virtue of the provisions of part three of Article 17 of the Criminal Code, such actions do not fall under the norm in question, but under part 1 or 2 of Art. 205.2 (as applicable).
Limitation of acts
In practice, difficulties often arise when qualifying actions under Articles 280 and 282 of the Criminal Code of the Russian Federation. These two crimes must be distinguished according to the following criteria.
According to the norm in question, punishment is imposed only for public calls for extremism. Public dissemination of information justifying the need to carry out illegal activities in relation to citizens of a different race, religious affiliation, nationality, etc., or information justifying it, is qualified under Article 282.
It is necessary to differentiate between statements that affirm the need to commit illegal actions (Article 282) and calls for their commission (Article 280). In the latter case, they speak of a type of activity aimed at inciting hatred.
Let’s say there is a video posted on the Internet that proves the fact of oppression of people belonging to another race by members of one race, and provides examples of the destruction and extermination of people, and the commission of particularly serious acts. In such a situation, there are signs of Article 282.
If at the conclusion of the video message the conclusion is expressed that it is necessary to unite against oppressive persons and start killing them, then Art. 280. Additionally, such an act is not qualified under Article 282.
