Materials / Media Laws - 2022 / Plenum of the RF Armed Forces - resolutions / Plenum of the Armed Forces - cases on extremism
PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION
RESOLUTION
dated June 28, 2011 N 11
ABOUT JUDICIAL PRACTICE
ON CRIMINAL CASES ABOUT CRIMES
EXTREMIST ORIENTATION
The Constitution of the Russian Federation proclaims a person, his rights and freedoms to be the highest value, and their recognition, observance and protection as the responsibility of the state (Article 2) and establishes that the rights and freedoms of man and citizen can be limited by federal law only in proportion to constitutionally significant goals (Article 55 ).
The Russian Federation recognizes ideological and political diversity and multi-party systems; no ideology can be established as state or mandatory. It is prohibited to create and operate public associations whose goals or actions are aimed at violently changing the foundations of the constitutional order and violating the integrity of the Russian Federation, undermining the security of the state, creating armed groups, inciting social, racial, national and religious hatred (Article 13 of the Constitution of the Russian Federation).
According to the Constitution of the Russian Federation, the state guarantees equality of rights and freedoms of man and citizen, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances; Any form of restriction of the rights of citizens on grounds of social, racial, national, linguistic or religious affiliation is prohibited (Article 19).
The Constitution of the Russian Federation, while guaranteeing freedom of thought and speech, prohibits propaganda or agitation that incites social, racial, national or religious hatred and enmity, propaganda of social, racial, national, religious or linguistic superiority (Article 29).
International legal standards in the field of human rights, while proclaiming the right of every person to freedom of expression, at the same time provide that any speech in favor of national, racial or religious hatred, constituting incitement to discrimination, hostility or violence; all dissemination of ideas based on racial superiority or hatred, all incitement to racial discrimination, as well as all acts of violence or incitement to such acts directed against any race or group of persons of a different color or ethnic origin, providing any assistance for the carrying out of racist activities, including its financing; All discrimination on the basis of religion or belief must be prohibited by law (Universal Declaration of Human Rights of 10 December 1948, International Covenant on Civil and Political Rights of 16 December 1966, International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, Declaration UN General Assembly of November 25, 1981 on the elimination of all forms of intolerance and discrimination based on religion or belief, Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950).
The Shanghai Convention on Combating Terrorism, Separatism and Extremism of June 15, 2001 stipulates that terrorism, separatism and extremism, regardless of their motives, cannot be justified under any circumstances, and persons guilty of committing such acts must be held accountable in accordance with the law.
In the interests of implementing these constitutional prohibitions and fulfilling international obligations, the Criminal Code of the Russian Federation provides for liability for committing crimes of an extremist nature.
In order to ensure the unity of judicial practice in criminal cases of extremist crimes, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation,
decides:
1. When considering criminal cases of extremist crimes, courts should ensure, on the one hand, the protection of public interests (the foundations of the constitutional order, integrity and security of the Russian Federation), and on the other, the protection of the rights and freedoms of man and citizen guaranteed by the Constitution of the Russian Federation - freedom conscience and religion, freedom of thought, speech, mass information, the right to freely seek, receive, transmit, produce and disseminate information in any legal way, the right to assemble peacefully, without weapons, to hold meetings, rallies and demonstrations, marches and picketing.
2. Based on the provisions of Note 2 to Article 282.1 of the Criminal Code of the Russian Federation, crimes of an extremist nature include crimes committed on the grounds of political, ideological, racial, national or religious hatred or enmity, or on grounds of hatred or enmity against any social group, provided for relevant articles of the Special Part of the Criminal Code of the Russian Federation (for example, articles 280, 282, 282.1, 282.2 of the Criminal Code of the Russian Federation, paragraph “l” of part 2 of article 105, paragraph “e” of part 2 of article 111, paragraph “b” of part 1 of article 213 of the Criminal Code of the Russian Federation ), as well as other crimes committed for the specified reasons, which, in accordance with paragraph “e” of part 1 of Article 63 of the Criminal Code of the Russian Federation, are recognized as an aggravating circumstance.
3. When conducting criminal proceedings on crimes of an extremist nature, courts must keep in mind that, according to paragraph 2 of part 1 of Article 73 of the Code of Criminal Procedure of the Russian Federation, the motives for committing these crimes must be proven.
Qualification of crimes against life and health committed on the grounds of political, ideological, racial, national or religious hatred or enmity, or on grounds of hatred or enmity against any social group, under paragraph “l” of Part 2 of Article 105, or under paragraph “ e" of Part 2 of Article 111, or under paragraph "e" of Part 2 of Article 112, or under paragraph "b" of Part 2 of Article 115, or under paragraph "b" of Part 2 of Article 116 of the Criminal Code of the Russian Federation excludes the possibility of simultaneous qualification of the offense under other points specified parts of these articles that provide for a different motive or purpose of the crime (for example, from hooligan motives).
Crimes committed on the grounds of political, ideological, racial, national or religious hatred or enmity, or on grounds of hatred or enmity against any social group, should be distinguished from crimes committed on the basis of personal hostile relations. To correctly establish the motive for the crime, one should take into account, in particular, the duration of the interpersonal relationship between the defendant and the victim, the presence of conflicts with him that are not related to national, religious, ideological, political views, belonging to a particular race or social group.
4. Public appeals (Article 280 of the Criminal Code of the Russian Federation) should be understood as appeals expressed in any form (oral, written, using technical means, public information and telecommunication networks, including the Internet) to other persons with the aim of inducing them to carry out extremist activities .
When establishing the direction of appeals, it is necessary to take into account the provisions of the Federal Law of July 25, 2002 N 114-FZ “On Combating Extremist Activities.”
The issue of publicity of appeals must be resolved by the courts, taking into account the place, method, situation and other circumstances of the case (appeals to a group of people in public places, at meetings, rallies, demonstrations, distribution of leaflets, hanging posters, posting an appeal in public information and telecommunication networks, including the Internet, for example on websites, blogs or forums, disseminating appeals by sending out electronic messages, etc.).
The crime is considered completed from the moment of public proclamation (dissemination) of at least one appeal, regardless of whether it was possible to induce other citizens to carry out extremist activities or not.
5. Draw the attention of the courts to the fact that Article 280 of the Criminal Code of the Russian Federation provides for liability only for public calls for extremist activities. Public dissemination of information that justifies the need to commit illegal actions against persons on the basis of race, nationality, religious affiliation, etc., or information justifying such activities, should be qualified under Article 282 of the Criminal Code of the Russian Federation if there are other signs of this crime.
Public calls for terrorist activities, by virtue of the requirements of Part 3 of Article 17 of the Criminal Code of the Russian Federation, are subject to qualification not under Article 280 of the Criminal Code of the Russian Federation, but, depending on the circumstances of the case, under Part 1 or Part 2 of Article 205.2 of the Criminal Code of the Russian Federation.
6. When deciding on the use of the media (Part 2 of Article 280 and Article 282 of the Criminal Code of the Russian Federation), courts should take into account the provisions of the Law of the Russian Federation of December 27, 1991 N 2124-1 “On the Mass Media” (with subsequent amendments).
7. Actions aimed at inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons on the basis of gender, race, nationality, language, origin, attitude to religion or membership in any social group, entail criminal liability under Part 1 Article 282 of the Criminal Code of the Russian Federation only if they were committed publicly or using the media (for example, speaking at meetings, rallies, distributing leaflets, posters, posting relevant information in magazines, brochures, books, in public information and telecommunication networks , including the Internet, and other similar actions, including those designed for subsequent familiarization with information of other persons).
Actions aimed at inciting hatred or enmity should be understood, in particular, as statements justifying and (or) asserting the need for genocide, mass repression, deportations, or committing other illegal actions, including the use of violence, against representatives of any nation , race, adherents of a particular religion and other groups of persons. Criticism of political organizations, ideological and religious associations, political, ideological or religious beliefs, national or religious customs should not in itself be considered as an action aimed at inciting hatred or hostility.
When determining that acts committed against officials (professional politicians) were actions aimed at humiliating the dignity of a person or group of persons, courts must take into account the provisions of Articles 3 and 4 of the Declaration on Freedom of Political Discussion in the Media, adopted by the Committee of Ministers of the Council of Europe on February 12, 2004 , and the practice of the European Court of Human Rights, according to which political figures seeking to gain public opinion thereby agree to become the object of public political discussion and criticism in the media; Public officials may be subject to criticism in the media regarding the manner in which they carry out their duties, as this is necessary to ensure that they exercise their powers transparently and responsibly. Criticism in the media of officials (professional politicians), their actions and beliefs should not in itself be considered in all cases as an action aimed at humiliating the dignity of a person or group of persons, since in relation to these persons the limits of permissible criticism are wider than in relation to individuals.
The crime provided for in Part 1 of Article 282 of the Criminal Code of the Russian Federation is considered completed from the moment of committing at least one action aimed at inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons on the basis of their belonging to a certain gender, race, nationality, language or depending from origin, attitude to religion, belonging to any social group.
8. The crime provided for in Article 282 of the Criminal Code of the Russian Federation is committed only with direct intent and with the aim of inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons on the basis of gender, race, nationality, language, origin, attitude to religion, affiliation -or social group.
The question of whether the mass distribution of extremist materials included in the published federal list of extremist materials is a crime under Article 282 of the Criminal Code of the Russian Federation or an administrative offense (Article 20.29 of the Code of Administrative Offenses of the Russian Federation) must be resolved depending on the direction of intent of the person distributing these materials.
In the case when a person distributes extremist materials included in the published federal list of extremist materials with the aim of inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons on the basis of gender, race, nationality, language, origin, attitude to religion, as well as belonging to any social group, what he has done should entail criminal liability under Article 282 of the Criminal Code of the Russian Federation.
It is not a crime under Article 282 of the Criminal Code of the Russian Federation to express judgments and inferences that use the facts of interethnic, interfaith or other social relations in scientific or political discussions and texts and do not pursue the goal of inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons based on characteristics gender, race, nationality, language, origin, attitude to religion, membership in any social group.
9. In contrast to the violent crimes against life and health provided for in Chapter 16 of the Criminal Code of the Russian Federation, committed for reasons of political, ideological, racial, national or religious hatred or enmity, or for reasons of hatred or enmity against any social group (clause “ l" of Part 2 of Article 105, paragraph "e" of Part 2 of Article 111, paragraph "f" of Part 2 of Article 112, paragraph "b" of Part 2 of Article 115, paragraph "b" of Part 2 of Article 116, paragraph "h" of Part 2 of Article 117 of the Criminal Code of the Russian Federation), violence used in the commission of a crime under Article 282 of the Criminal Code of the Russian Federation is not only an expression of hatred towards a specific victim, but is also aimed at achieving a special goal - inciting hatred or enmity in other people (which, for example, may evidence of the use in public places in the presence of strangers of violence against the victim(s) on the basis of belonging to a particular race or nationality, accompanied by racist or nationalist statements).
10. Persons using their official position include, in particular, officials who have the characteristics provided for in Note 1 to Article 285 of the Criminal Code of the Russian Federation, state or municipal employees who are not officials, as well as other persons who meet the requirements provided for in the note 1 to Article 201 of the Criminal Code of the Russian Federation.
Use of official position (clause “b” of part 2 of article 282 and part 3 of article 282.1 of the Criminal Code of the Russian Federation) is expressed not only in the deliberate use by the above persons of their official powers, but also in exerting influence, based on the significance and authority of the position they occupy, on other persons in for the purpose of committing actions aimed, in particular, at inciting hatred or enmity, as well as at humiliating the dignity of a person or group of persons on the basis of gender, race, nationality, language, origin, attitude to religion, as well as membership in any social group .
11. In cases of vandalism, destruction or damage to historical and cultural monuments, desecration of the bodies of the dead and their burial places based on political, ideological, racial, national or religious hatred or enmity, or on grounds of hatred or enmity against any social group the act is qualified accordingly under Articles 214, 243 or 244 of the Criminal Code of the Russian Federation. If, along with these acts, actions provided for in Article 282 of the Criminal Code of the Russian Federation were committed (for example, if inscriptions or drawings of the corresponding content were applied to monuments, nationalist slogans were expressed in the presence of strangers), the act is qualified as a set of crimes provided for, respectively, in Articles 214, 243 or 244 of the Criminal Code RF and Article 282 of the Criminal Code of the Russian Federation.
12. An extremist community (Article 282.1 of the Criminal Code of the Russian Federation) should be understood as a stable group of people who have united in advance to prepare or commit one or more crimes of an extremist nature, characterized by the presence of an organizer (leader), stability of the composition, and coordination of the actions of its participants in order to implement general criminal intentions. Moreover, an extremist community may consist of structural units (parts).
To recognize an organized group as an extremist community, a preliminary court decision on the ban or liquidation of a public or religious association or other organization in connection with the implementation of extremist activities is not required.
A structural unit (part) of an extremist community is a functionally and (or) territorially isolated group, consisting of two or more individuals (including the leader of this group), which carries out criminal activities within the framework and in accordance with the goals of the extremist community. Such structural units (units) can not only commit individual crimes of an extremist nature, but also perform other tasks to ensure the functioning of the extremist community (for example, providing the community with weapons and other items used as weapons, producing leaflets, literature and other materials of an extremist nature) .
An association of organizers, leaders or other representatives of parts or structural units of an extremist community is created for the purpose of developing plans and (or) creating conditions for the commission of extremist crimes.
13. Explain to the courts that criminal liability under Article 282.1 of the Criminal Code of the Russian Federation for the creation of an extremist community, leadership of it (its part or structural units included in such a community) or participation in it occurs in cases where the organizers, leaders and participants of this community are united by intent to prepare or commit extremist crimes when they are aware of the general goals of the functioning of such a community and their belonging to it.
14. Criminal liability for the creation of an extremist community (Part 1 of Article 282.1 of the Criminal Code of the Russian Federation) begins from the moment of the actual formation of the specified community, that is, from the moment of association of several persons for the purpose of preparing or committing crimes of an extremist nature and carrying out deliberate actions aimed at creating conditions for committing crimes of an extremist nature or indicating the readiness of an extremist community to realize their criminal intentions, regardless of whether the participants of such a community committed a planned crime of an extremist nature. The readiness of the extremist community to commit these crimes can be evidenced, for example, by reaching an agreement on the use of violence in public places against persons on the basis of belonging (or not belonging) to a certain gender, race, nationality, language, social group, depending on origin, attitude to religion.
Under Part 1 of Article 282.1 of the Criminal Code of the Russian Federation, actions that led to the formation of stable connections between these persons for the purpose of jointly developing plans and (or) creating conditions for the commission of crimes of an extremist nature are qualified as the creation of an association of organizers, leaders or other representatives of parts or structural divisions of an extremist community. .
15. Under the leadership of an extremist community, its part or structural units included in such a community, Article 282.1 of the Criminal Code of the Russian Federation should be understood as the exercise of management functions in relation to the extremist community, its part or structural units, as well as its individual participants, as in the commission of specific crimes of an extremist nature, and when ensuring the activities of the extremist community.
Such leadership can be expressed, in particular, in the development of general plans for the activities of the extremist community, in preparation for the commission of specific crimes of an extremist nature, in the commission of other actions aimed at achieving the goals set by the extremist community or the units included in its structure when they were created (for example, in the distribution of roles between members of the community, in organizing logistics, in developing methods of committing crimes, in taking security measures against members of the extremist community).
16. Participation in an extremist community (Part 2 of Article 282.1 of the Criminal Code of the Russian Federation) should be understood as participation in such a community and participation in preparation for the commission of one or more crimes of an extremist nature and (or) the direct commission of these crimes, as well as the performance by a person of functional responsibilities for ensuring the activities of such a community (financing, supplying information, maintaining documentation, etc.).
A crime in the form of a person’s participation in an extremist community is considered completed from the moment the preparation for committing an extremist crime begins or the commission of at least one of these crimes or other specific actions to ensure the activities of the extremist community.
17. When a participant in an extremist community commits a specific crime, his actions must be qualified according to the totality of crimes provided for in Part 2 of Article 282.1 of the Criminal Code of the Russian Federation and the corresponding part (clause) of the article of the Criminal Code of the Russian Federation, taking into account the qualifying attribute “organized group”. If the corpus delicti of a crime committed by a person does not include, as a qualifying feature, its commission by an organized group, then the person’s actions are subject to qualification under Part 2 of Article 282.1 of the Criminal Code of the Russian Federation and the corresponding part (clause) of the article of the Criminal Code of the Russian Federation, which provides for the qualifying feature of “a group of persons by prior conspiracy.” , and in its absence - on the basis of “group of persons”.
If the crime committed by a person does not include, as a qualifying feature, its commission by an organized group, a group of persons by prior conspiracy, or a group of persons, the person’s actions must be qualified under Part 2 of Article 282.1 of the Criminal Code of the Russian Federation and the corresponding article of the Criminal Code of the Russian Federation. At the same time, the commission of a specific crime by participants in an extremist community as part of an organized group in accordance with paragraph “c” of Part 1 of Article 63 of the Criminal Code of the Russian Federation is recognized as an aggravating circumstance.
18. Subjects of crimes provided for in Article 282.1 of the Criminal Code of the Russian Federation may be persons who have reached the age of sixteen. Persons aged 14 to 16 years who have committed specific crimes together with members of the extremist community are subject to criminal liability only for those crimes for which liability is provided for by law from the age of fourteen (Article 20 of the Criminal Code of the Russian Federation).
19. In accordance with Article 1 of the Federal Law “On Combating Extremist Activities,” terrorist activity is a type of extremist activity (extremism). Taking this into account, when considering cases of crimes under Article 282.2 of the Criminal Code of the Russian Federation, public or religious associations or other organizations in respect of which the court has made a decision to liquidate or prohibit activities that have entered into legal force in connection with the implementation of extremist activities should include organizations , indicated in special lists (lists) in accordance with Article 9 of the Federal Law “On Combating Extremist Activities” and Article 24 of the Federal Law of March 6, 2006 N 35-FZ “On Countering Terrorism”.
Please draw the attention of the courts that in accordance with the orders of the Government of the Russian Federation dated October 15, 2007 N 1420-r and July 14, 2006 N 1014-r, such lists (lists) are subject to official publication in the Rossiyskaya Gazeta.
20. The organization of activities of a public or religious association or other organization in respect of which the court has made a decision to liquidate or prohibit activities that have entered into legal force in connection with the implementation of extremist activities (Part 1 of Article 282.2 of the Criminal Code of the Russian Federation) should be understood as actions of an organizational nature aimed at to continue or resume illegal activities of a prohibited organization (for example, convening meetings, organizing the recruitment of new members, processions, using bank accounts, unless this is related to the liquidation procedure).
Participation in the activities of an extremist organization (Part 2 of Article 282.2 of the Criminal Code of the Russian Federation) is understood as the commission by a person of deliberate actions aimed at achieving the goals of an extremist organization (conducting conversations to promote the activities of a banned organization, recruiting new participants, direct participation in ongoing events, etc. ).
When an organizer (leader) or participant of an extremist organization commits a specific crime, his actions are subject to qualification according to the totality of crimes provided for in Part 1 or Part 2 of Article 282.2 of the Criminal Code of the Russian Federation and the corresponding article of the Criminal Code of the Russian Federation.
21. When deciding on the distinction between the crimes provided for in Article 282.2 of the Criminal Code of the Russian Federation and the administrative offense provided for in Article 20.28 of the Code of Administrative Offenses of the Russian Federation, it is necessary to take into account that the organization of activities and participation in the activities of a public or religious association in respect of which a legally binding decision to suspend its activities entail administrative liability, and the commission of these actions in the presence of a decision to liquidate or ban the activities of a public or religious association that has entered into legal force in connection with its carrying out extremist activities entails criminal liability.
22. In accordance with the note to Article 282.2 of the Criminal Code of the Russian Federation, a person who voluntarily ceased participation in the activities of a public or religious association or other organization in respect of which the court made a decision on liquidation or prohibition of activities that has entered into legal force in connection with the implementation of extremist activities, is exempt from criminal liability, unless his actions contain another crime.
On judicial practice in criminal cases of extremist crimes
September 27
The Plenum of the Supreme Court announced a new resolution that relates to the criminal sphere. We were talking about crimes that related to extremist trends.
The Supreme Court clarified that when making decisions on holding citizens accountable for their actions, namely for disseminating information on extremist topics, it is necessary to determine the person’s intent and his goal, which must be either hostile or hateful. Seek advice from our criminal defense lawyer if you have a similar problem or are accused of a different crime.
It is important to note that especially in the publication by a responsible legal entity on the global network or on any other information resource, namely on its own page on a social network or on the page of another person, any material (text, video, audiovisual, graphic) that was created directly by this person, focusing on the fact that in the past such information was recognized by the court as extremist, the violation should be classified under Article 282 of the Criminal Code. But such a classification only works if the court found that the person who disseminated the information on the global network was aware that he was breaking the law. In addition, the court must establish the following: whether the person in any way intended to start a conflict, develop hatred or humiliate another person, whether he desecrated other races. If a person spoke negatively about the origin or religious views of a segment of the population, then he should be punished in accordance with the Criminal Code of the Russian Federation.
ATTENTION: watch a video about defending the rights of the accused by a lawyer and subscribe to our YouTube channel, you will have access to free legal assistance from a lawyer through comments on the video.
When determining whether there was premeditation or whether a negative goal was set by the person who is being condemned, all facts should be considered as an attempt to humiliate the dignity of a person by posting negative information on the global network or in any other means of mass communication. The court is obliged to consider all aspects and circumstances that prompted the accused to take such actions, take into account what information was posted on the Internet, study its context and comments. Separately, it is necessary to analyze how quickly views were gained after publication. To make a full decision, the judge must check whether there have been previous prosecutions and attempts at extremist propaganda. You need to pay close attention to all these points
Author of the article: © lawyer, managing partner of the law firm “Katsailidi and Partners” A.V. Katsaylidi
Share
