There are many examples of genocide in history. The definition itself was introduced into legislation in 1933. Then it meant committing an act of aggression against persons belonging to a specific ethnic, racial, religious group, as well as its historical and cultural values.
However, this was officially recognized as a crime only after World War II. The relevant legislative acts were signed by the UN.
The Criminal Code considers genocide a criminal offense in Article 357.
The definition of genocide under this article is as follows: actions that are aimed at the total or partial destruction of a national, ethnic, racial or religious group.
Among the methods of exterminating a people are not only murder and causing serious harm to health. Genocide will also be considered any action that is aimed at reducing the number of people: taking away children, any means of reducing the birth rate, creating unbearable living conditions.
Since 1946, genocide has been recognized as an international criminal crime. It refers to crimes of a special category of gravity, for which capital punishment is provided. And since most countries have abolished the death penalty, the maximum that a criminal faces is life imprisonment.
Composition of the crime, subject and object
Since there are several ways to commit such a crime, its composition may also vary. Thus, murder will have a material element of a crime, and coercion to give away one’s child somewhere will have a formal element.
The following are considered to be the general elements of a crime:
- Killing or causing serious harm to a group of people.
- Violent obstruction of the birth of children. These may be sets of laws that prohibit people from having more than one child, or from getting married; compulsory medical procedures that lead to termination of pregnancy and inability to conceive a baby.
- Forcing the transfer of children to other families who belong to a different ethnic, national, racial or religious group.
- Forced relocation, the creation of unbearable living conditions in places where a group of people have settled.
The object of the crime will be:
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- Race.
- Ethnic group.
- Nationality.
- Religion.
The objective side of the crime will include the commission of a crime against a national, ethnic, racial, or religious group.
An important point: a criminal act even against one person can be recognized as genocide if during the investigation it is established that such actions were intended against a group of people.
The subject of a crime can be any individual with legal capacity who has reached the age of 16. If a state is held responsible for such a crime, the case will be considered by the International Court of Justice.
Article 357. Genocide
“Review of the practice of the Constitutional Court of the Russian Federation for 2017” Criminal cases charging women with crimes under part four of article 210, part five of article 228.1, part four of article 229.1, articles 277, 295, 317 and 357 of the Criminal Code of the Russian Federation, if judicial hearings on these criminal cases have not been scheduled at the time the Resolution enters into force; they are subject to consideration by the supreme court of the republic, a regional, regional or other court of equal level, and, at the request of the accused, by a court composed of a judge of such a court and a panel of twelve jurors. The jurisdiction and composition of the court in criminal cases, court hearings for which at the specified time have already been scheduled for consideration, are not subject to change, including within the framework and as a result of their consideration in the appeal, cassation and supervisory procedures.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 20, 2018 N 127-APU18-12
By the verdict of the same court dated December 26, 2008, Krasnobryzhiy was convicted under Part 2 of Art. 289 of the Criminal Code of Ukraine (illegal possession of a vehicle, committed repeatedly) to 5 years 6 months of imprisonment, under Art. , part 2 art. 289 of the Criminal Code of Ukraine (attempted unlawful possession of a vehicle, committed repeatedly) to 5 years in prison, under Part 3 of Art. 357 of the Criminal Code of Ukraine (illegal acquisition by any means of a passport or other important personal document) to 3 months of arrest.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 18, 2018 N 127-UD18-16
By the verdict of the Simferopol District Court of the Autonomous Republic of Crimea dated December 9, 2013, Asanov was acquitted under Part 3 of Art. , part 3 art. 146 of the Criminal Code of Ukraine and for the totality of crimes provided for in Part 3 of Art. , clauses 6, 9, 12, 13, part 2, art. 115, part 1 art. , part 3 art. , paragraphs 3, 6, 9, 12, 13, part 2, art. 115, part 1 art. , part 3 art. 146, part 3 art. , part 3 art. , part 2 art. 146, part 3 art. , part 3 art. 146, part 3 art. 146, part 5 art. 185, part 1 art. , part 4 art. 187, part 4 art. 187, part 3 art. , part 4 art. 187, part 3 art. , part 1 art. , part 3 art. 190, part 4 art. 190, part 3 art. , part 4 art. 190, part 3 art. , part 2 art. , part 3 art. 357, part 3 art. , part 3 art. 357, part 3 art. , part 3 art. 357, part 3 art. , part 3 art. 358, part 3 art. , part 1 art. 358, part 3 art. , part 3 art. 358, part 3 art. , part 4 art. 358, part 3 art. , part 4 art. 358 of the Criminal Code of Ukraine, sentenced to life imprisonment with confiscation of property, on the basis of Part 2 of Art. The Criminal Code of Ukraine, together with the sentence of August 4, 2005, is to life imprisonment with confiscation of property.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 31, 2017 N 117-APU17-2
Yurchenko D.A., ..., convicted on August 2, 2010 by the Nakhimovsky District Court of Sevastopol under Part 2 of Art. 186, part 3 art. 186, part 3 art. 357 of the Criminal Code of Ukraine to 5 years 6 months in prison, released from prison on October 3, 2014 after serving the sentence;
Determination of the Constitutional Court of the Russian Federation dated September 27, 2018 N 2225-O
In order to implement its prerogatives, the federal legislator classified criminal cases of crimes specified in paragraph 1 of part three of Article 31 of the Code of Criminal Procedure of the Russian Federation, with the exception of criminal cases of crimes provided for in part five of Article 131, part five of Article 132, part six of Article 134, part one Article 212, Articles 275, 276, 278, 279 and 281 of the Criminal Procedure Code of the Russian Federation, to the substantive jurisdiction of the supreme courts of republics, regional, regional and equal courts authorized in accordance with paragraph 2 of part two of Article 30 of the Criminal Procedure Code of the Russian Federation to consider criminal cases as part of judges and jury panels. In paragraph 1 of part three of article 31 of the Code of Criminal Procedure of the Russian Federation, in particular, criminal cases of crimes provided for in part two of article 105, as well as part five of article 131, part five of article 132, part six of article 134, part five of article 228.1, part fourth article 229.1, article 277, part three of article 281, articles 295, 317 and 357 of the Criminal Code of the Russian Federation; This list, however, excludes cases in which, in accordance with the provisions of the criminal law, life imprisonment or the death penalty cannot be imposed as the most severe form of punishment.
Resolution of the Constitutional Court of the Russian Federation dated 06.06.2017 N 15-P
1. According to paragraph 1 of part three of Article 31 of the Code of Criminal Procedure of the Russian Federation as amended by Federal Law of May 5, 2014 N 130-FZ (taking into account the amendments made by Federal Law of March 8, 2015 N 47-FZ) to the supreme court of the republic, regional or regional court, court of a federal city, court of an autonomous region, court of an autonomous district, district (naval) military court have jurisdiction over, in particular, criminal cases of crimes provided for in part two of Article 105, part five of Article 131, part five of Article 132, part six of Article 134, part four of article 210, part five of article 228.1, part four of article 229.1, article 277, part three of article 281, articles 295, 317 and 357 of the Criminal Code of the Russian Federation, with the exception of criminal cases in which, in accordance with the provisions of the Criminal Code of the Russian Federation The most severe form of punishment cannot be life imprisonment or the death penalty.
Resolution of the Constitutional Court of the Russian Federation dated May 11, 2017 N 13-P
1. According to paragraph 1 of part three of Article 31 of the Code of Criminal Procedure of the Russian Federation as amended by the Federal Law of May 5, 2014 N 130-FZ (taking into account the amendments introduced by the Federal Law of March 8, 2015 N 47-FZ), the supreme court of the republic, regional or a regional court, a court of a federal city, a court of an autonomous region, a court of an autonomous district, a district (naval) military court have jurisdiction over, in particular, criminal cases of crimes provided for in part two of Article 105, part five of Article 131, part five of Article 132, part six article 134, part four of article 210, part five of article 228.1, part four of article 229.1, article 277, part three of article 281, articles 295, 317 and 357 of the Criminal Code of the Russian Federation, with the exception of criminal cases in which, in accordance with the provisions of the Criminal Code of the Russian Federation The Federation cannot impose life imprisonment or the death penalty as the most severe form of punishment. At the same time, the possibility of considering criminal cases within the jurisdiction of the supreme court of the republic, a regional, regional or other court of equal level, by a court with the participation of jurors is determined on the basis of paragraph 2 of part two of Article 30 of the Code of Criminal Procedure of the Russian Federation, according to which the court of first instance, at the request of the accused, considers composed of a judge of a federal court of general jurisdiction and a panel of twelve jurors, criminal cases of crimes specified in paragraph 1 of part three of Article 31 of this Code (with the exception of a number of crimes provided for in Articles 131, 132, 134, 212, 275, 276, 278 , 279 and 281 of the Criminal Code of the Russian Federation).
Resolution of the Constitutional Court of the Russian Federation dated March 16, 2017 N 7-P
According to the Federal Law of June 23, 2016 N 190-FZ “On amendments to the Criminal Procedure Code of the Russian Federation in connection with the expansion of the use of the institution of jurors,” part two of Article 30 of the Code of Criminal Procedure of the Russian Federation was supplemented with clause 2.1, introducing a composition of the court that is new to domestic legislation , namely a judge of the district court, a garrison military court and a panel of six jurors. The jurisdiction of the court in this composition includes the consideration, at the request of the accused, of criminal cases of crimes provided for in the second part of Article 105, Articles 277, 295, 317 and 357 of the Criminal Code of the Russian Federation, for which, in accordance with the criminal law, the most severe form of punishment cannot be life imprisonment or the death penalty are imposed, as well as criminal cases for crimes provided for in part one of Article 105 and part four of Article 111 of this Code. The above provision of the criminal procedure law comes into force on June 1, 2022 (Part 2 of Article 2 of the Federal Law of June 23, 2016 N 190-FZ).
Determination of the Constitutional Court of the Russian Federation dated October 24, 2019 N 2727-O
According to Article 3 of the Federal Law “On Administrative Supervision of Persons Released from Places of Imprisonment,” administrative supervision is established in relation to persons released or released from places of imprisonment and who have an outstanding or unexpunged conviction for committing a serious or especially serious crime, a crime in case of repeat crimes , an intentional crime against a minor, two or more crimes provided for in part one of Article 228, Article 228.3, part one of Article 231 and part one of Article 234.1 of the Criminal Code of the Russian Federation, as well as having an outstanding or unexpunged conviction for committing a crime against sexual integrity and sexual freedom a minor, committing a crime during a dangerous or especially dangerous recidivism of crimes, committing a grave or especially grave crime provided for in paragraph “l” of the second part of Article 105, paragraph “e” of the second part of Article 111, paragraph “h” of the second part of Article 117, part of the fourth article 150 (in the case of a crime motivated by political, ideological, racial, national or religious hatred or enmity, or motivated by hatred or enmity against any social group), Articles 205 - 205.5, 206, 208, 211, 220, 221, 277 - 279, 282 - 282.3, 295, 317, 357, 360 and 361 of the Criminal Code of the Russian Federation, commission of a crime while under administrative supervision, for which this person was sentenced to imprisonment and sent to the place of serving the sentence. Imposed administrative restrictions include the prohibition of staying in certain places, visiting places of mass and other events and participating in such events, staying outside a residential or other premises that is the place of residence or stay of a supervised person at a certain time of day, traveling outside the territory established by the court, as well as mandatory attendance from one to four times a month to the internal affairs body at the place of residence, stay or actual location of the person under supervision for registration (Article 4 of the Federal Law “On Administrative Supervision of Persons Released from Places of Imprisonment”).
Cassation ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated January 30, 2019 N 51-КГ18-16
Part one of Article 173.1 of the Criminal Executive Code of the Russian Federation determines that in relation to an adult person released from prison, if this person has served a sentence for committing a crime with a dangerous or especially dangerous recidivism, or for committing a crime against sexual integrity and sexual freedom a minor, or for committing a grave or especially grave crime provided for in paragraph “l” of the second part of Article 105, paragraph “e” of the second part of Article 111, paragraph “h” of the second part of Article 117, part four of Article 150 (in case of committing a crime based on political, ideological, racial, national or religious hatred or enmity or based on hatred or enmity towards any social group), Articles 205 - 205.5, 206, 208, 211, 220, 221, 277 - 279, 282 - 282.3, 295, 317, 357, 360 and 361 of the Criminal Code of the Russian Federation, or for committing a crime while under administrative supervision, for which this person was sentenced to imprisonment and sent to the place of serving the sentence, the court establishes administrative supervision in accordance with federal law.
Determination of the Constitutional Court of the Russian Federation dated April 25, 2019 N 1183-O
According to Article 3 of the Federal Law “On Administrative Supervision of Persons Released from Places of Imprisonment,” administrative supervision is established in relation to persons released or released from places of imprisonment and who have an outstanding or unexpunged conviction for committing a serious or especially serious crime, a crime in case of repeat crimes , an intentional crime against a minor, two or more crimes provided for in part one of Article 228, Article 228.3, part one of Article 231 and part one of Article 234.1 of the Criminal Code of the Russian Federation, as well as having an outstanding or unexpunged conviction for committing a crime against sexual integrity and sexual freedom a minor, committing a crime during a dangerous or especially dangerous recidivism of crimes, committing a grave or especially grave crime provided for in paragraph “l” of the second part of Article 105, paragraph “e” of the second part of Article 111, paragraph “h” of the second part of Article 117, part of the fourth article 150 (in the case of a crime motivated by political, ideological, racial, national or religious hatred or enmity, or motivated by hatred or enmity against any social group), Articles 205 - 205.5, 206, 208, 211, 220, 221, 277 - 279, 282 - 282.3, 295, 317, 357, 360 and 361 of the Criminal Code of the Russian Federation, commission of a crime while under administrative supervision, for which this person was sentenced to imprisonment and sent to the place of serving the sentence. Imposed administrative restrictions include the prohibition of staying in certain places, visiting places of mass and other events and participating in such events, staying outside a residential or other premises that is the place of residence or stay of a supervised person at a certain time of day, traveling outside the territory established by the court, as well as mandatory attendance from one to four times a month to the internal affairs body at the place of residence, stay or actual location of the person under supervision for registration (Article 4 of the Federal Law “On Administrative Supervision of Persons Released from Places of Imprisonment”).
Judicial practice under the article
In modern judicial practice, there are very few cases specifically under the article of genocide. If there are cases where a detainee is accused of committing criminal acts against people united by a racial or religious component, he is charged with extremism
Among the latest known cases that exist in open judicial practice, in 2001, a mass murder of non-indigenous people was committed in the Chechen Republic.
Why does the court choose the article “extremism” and not “genocide”, even when there are signs of a second crime? This is also due to political reasons: recognition that such actions were committed on the territory of a state can lead to international conflicts, sanctions and even military action.
