Moscow: +7 495 234 4959 Saint Petersburg: +7 812 740 5823 London: +44 (0) 7384 418877

Statements made by Alexey Dobrynin to the article ‘The Amendment to Reverse the Trend: Experts Comment on Humanization of Article 282 of the Criminal Code’. RAPSI, 15 November 2018

Presidential amendments to Article 282 of the Criminal Code will no longer give the opportunity for law enforcement agencies to ‘crank out’ criminal cases for incitement of hatred or hostility, as well as for humiliation of human dignity, while allowing the principle of inevitability of punishment to be observed, experts interviewed by RAPSI say.

Early June, during ‘Live broadcast nationwide phone-in’ a deputy Sergey Shargunov, a member of the All-Russia’s People Front, addressed the President with a proposal to revise the practice of using Article 282 of the Criminal Code of the Russian Federation. In mid-September, following the assignment of the head of state, the All-Russia’s People Front presented a report on the law enforcement practice of the concepts of ‘extremist community’ and ‘extremist crime’, prepared by all concerned, including representatives of the scientific and legal community, Prosecutor General’s Office, Supreme Court, Human Rights Council and journalists. On study, Putin took the initiative to introduce administrative prejudice, i.e. partial decriminalization of Article 282 §1 of the Criminal Code of the Russian Federation.

Filter of the criminal justice system

The senior partner of the lawyer’s office Koblev and Partners, lawyer Kirill Belsky calls for a positive assessment of the presidential amendments that establish administrative prejudice for the so-called ‘repost cases’. ‘First, such a law, frightening the criminality of an act, will let those convicted who are mostly not evil people at all, leave the prisons. For another thing, I am very impressed with the humanistic approach, where a person who violated the law for the first time ever is subjected to administrative punishment, and will be held criminally liable only after committing the second and further offence. This is a kind of filter that protects a person whose actions were neither socially dangerous, nor entailing serious consequences, against the millstone of the criminal system. Often such actions are done merely because of ignorance of the law and misunderstanding of threatening responsibility. If such a person violates the law once again, then probably he may be dangerous for society, and criminal law mechanisms should come into effect,’ Belsky believes.

Dmitry Palatov, a lawyer of the Moscow Bar Association Barshchevsky and Partners, treated the decision to partially decriminalize Article 282 of the Criminal Code of the Russian Federation as the right and humane one. The expert also believes that most people commit the actions indicated in this article, absolutely thoughtlessly. ‘Many people are just not aware of negative consequences they could entail, namely a conviction. The above offence walks a delicate line between a misdeed and extremism, that is, the point when criminals turn from unacceptable public statements and demonstrations of hostility or hatred to active actions that can undermine the state system and public safety. And then, of course, administrative responsibility will become out of question. However, if the first offense is meant, which is not so dangerous for the society, then, from the perspective of justice and humanism, it is inexpedient to immediately bring an offender to criminal responsibility. To go with administrative punishment would be enough,’ Palatov stated. According to the lawyer, sentences regularly passed by courts for posting photographs, pictures or just someone’s inscriptions containing hatred or threats are often unacceptable and baseless.’

Decriminalization based on the inevitability principle

Ilya Matiev, a lawyer of Leontyev and Partners Lawyer’s office is sure that the bill submitted by the President continues the state policy on changing the negative practice of bringing to justice for crimes under Article 282 of the Criminal Code of the Russian Federation. ‘In September of this year, the Supreme Court of the Russian Federation has introduced amendments to the judicial practice by completing the Resolution of 2011 with new points to bring persons to justice; with the legislative level finally involved. In general, I believe that the amendments made by the President can change the previously established trend. The fact that if an offense is committed for the first time the responsibility passes from the criminal plane to the administrative one is certainly a positive tendency. Thus, law enforcement agencies will be unable to ‘crank out’ criminal cases under Article 282 of the Criminal Code of the Russian Federation,’ said Matiev, adding that the adoption of this bill should have a positive impact on the accused, defendants and those already convicted under this article, since after the amendments take effect, convictions should be overturned.

Nikolai Ibrayev, a member of the Association of Russian Lawyers, the President of the Eurasian Law firm agrees with the proposal to decriminalize Article 282 of the Criminal Code of the Russian Federation for several reasons, ‘Analysis of law enforcement practice demonstrates that criminal prosecution for the acts under the first part of Article 282 is not always justified. Decriminalization does not imply a complete exemption from liability, administrative proceedings will be instituted if a crime under Article 282 has been committed once and it does not jeopardize the fundamentals of the constitutional system and state security. However, if Article 282 was offended twice a year, a criminal case will be initiated. This implies that the principle of inevitability of punishment will be respected,’ Ibraev said.

Anton Baumstein, a member of the Association of Russian Lawyers, ‘utterly and completely’ supports the president’s decision, recalling that this issue has long been on the agenda of the legal scientific community.

‘I believe that this solution is aimed not only at humanization of the criminal legislation of the Russian Federation. Very often, those convicted under the Article were prosecuted unreasonably. Their acts show either no or insignificant nature and level of public danger. But formally, the disposition of Article 282 of the Criminal Code of the Russian Federation gave the grounds for bringing these persons to criminal responsibility. I hope that the Federal Assembly will support the President’s positive and timely initiative,’ said Baumstein.

Barrier to repressions

Lawyer Alexei Melnikov welcomes the initiative of the head of state, as he always supports decriminalization of such ‘elastic’ elements of crime, which can be arbitrarily interpreted by law enforcement officials. ‘The Article is very biased, which is bad in the environment involved. It wouldn’t be distressing if we could be sure of the court impartiality, but this is not always the case. At the same time, we shouldn’t forget that there are real cases of incitement of hatred and hostility, and then it is a crime, of course. Applying criminal punishment in the case of the repeated commission of an act is reasonable, although I cannot but admit that sometimes the first committed acts can be so rude that one time is enough for punishment. The proposed reforms do not answer the question of what will happen if, at the first distribution, these actions lead to dire consequences. For example, an article may appear in the press urging to beat and expel, and someone will read and take it as a guide for action, while we will simply fine this author. If these considerations are also reflected in the Article, then, undoubtedly, the very idea of decriminalizing the use of the article on completely ridiculous reasons is a very correct decision. This is a serious limitation on the way of repression against any people who express their opinions tactlessly, not intended to commit a crime. I unequivocally support the president’, Melnikov concluded.

Yevgeny Rosenblat, a lawyer of the law firm YUST ‘can hear’ ‘notes of humanization’ in the bill, but he is apprehensive about overestimation of the changes.

‘There is a side-step technique in boxing. Generally, this is a step to the side, followed by a hard blow. Here, I have a feeling of a side step. At least, two concerns should be considered: firstly, anyone can be brought to administrative responsibility for harmless pictures, memes, or reposts, which is also unpleasant. Secondly, nothing prevents a law enforcement officer from being even more consistent in their actions, I mean, first, to bring the Internet user to administrative responsibility by running the ‘minimum program’ and then to convict of a criminal crime. Formally, to implement the above scenario, it is enough that the prospective subject of a crime posts two pictures, two memes, two reposts or any combination of the same – the only thing that matter is more than one object. The way I see it, the ground for abuses by law enforcement officers still persists,’ Rosenblat says.

The expert believes that one should be guided by the explanations given by the Plenum of the Supreme Court of the Russian Federation in Decree No. 11 of June 28, 2011 ‘On Judicial Practice in Criminal Cases of Extremist Crimes’. ‘In particular, criticism of political organizations, ideological and religious associations, political, ideological or religious convictions, national or religious customs should not in itself be regarded as an action aimed at inciting hatred or hostility. Do not forget the provisions of Article 14 §2 of the Criminal Code of the Russian Federation, according to which an action (omission) is not a crime, although formally it shows signs of some act provided for by the Criminal Code, but due to its insignificance being not a public danger. Freedom of thought and speech is still one of the main constitutional guarantees,’ said the agency’s source.

Alexey Dobrynin, advocate and partner of the Pen & Paper Attorneys-at-Law, believes that any decriminalization features things that are working well, and the amendments proposed by the President are no exception. ‘This is the right step, given the vicious judicial practice under the above elements of crime, when practically any blogger who ‘reposted’ a picture was attracted under Article 282 §1 of the Criminal Code of the Russian Federation, not even paying attention to the subscript he or she made under this photo. While such a subscript law enforcement agencies or the court turn a blind eye might often exclude the very element of crime. Now, pursuant to the draft law, it will be possible to charge a troublemaker with a criminal offence for actions aimed at inciting hatred or hostility only provided that the subject was brought to administrative responsibility during the last year for the same offense. By the way, Article 116.1 of the Criminal Code (assault) has been amended in a similar manner.

Thus, the legislator intends to establish administrative prejudice as the basis for criminal prosecution. But from the standpoint of the criminal law theory, this trend is wrong. Repeated offenses subject to administrative responsibility must entail a stricter, but, here, administrative responsibility,’ Dobrynin believes.

Aleksey Dobrynin, partner, head of the attorneys at law Pen & Paper criminal-legal practice