Case law on criminal cases in accordance with Article 205.1 and 205.2 of the Criminal Code of the Russian Federation (on materials of the Southern District Military Court)

Chuklina Elena Research Fellow, Federal Research Centre the Southern Scientific Centre of the Russian Academy of Sciences 346800, Russia, Rostovskaya oblast', selo Chaltyr', ul. Patkanyana, 87 a die_sehnsucht@mail.ru Other publications by this author

The turn of the XX-XXI centuries was marked by the intensification of terrorist activities in various regions of the world, which required the development of response measures. Thus, a number of international legal acts have been adopted in the field of countering terrorism, in particular, the international Convention for the suppression of the financing of terrorism of 1999, ^[1] the Shanghai Convention on combating terrorism, separatism and extremism of 2001, ^[2] the OSCE Charter on preventing and combating terrorism of 2002, ^[3] the Council of Europe Convention on the prevention of terrorism of 2005 ^[4].

Russia also experienced a surge in terrorist activity during this period: in 1997, 32 crimes under article 205 of the criminal code of the Russian Federation "terrorism" were registered, while in 2002 the number of such facts reached 360, in 2003-561 ^[5]. The current situation has led to the modification of the system of anti-terrorist measures, including at the legislative level. The ratification of the Council of Europe Convention on the prevention of terrorism in 2005 and the adoption of Federal law No. 35-FZ dated 06.03.2006 (ed. from 18.04.2018) "on countering terrorism" ^[6] led to significant changes in the Special part of the criminal code of the Russian Federation. In particular, the name of article 205 of the criminal code of the Russian Federation "terrorism" was changed to "Terrorist act", the disposition and sanction of the norm were edited: only one purpose of a terrorist act is provided, namely, the impact on decision-making by authorities or international organizations; the signs of socially dangerous actions were expanded (intimidation of the population, creating a danger of human death) ^[7].

It should be noted that the number of so-called "anti-terrorist" criminal law norms is increasing. Thus, in 2013, article 205.3 "passing training for the purpose of carrying out terrorist activities", article 205.4 "Organizing a terrorist community and participating in it", article 205.5 "Organizing the activities of a terrorist organization and participating in the activities of such an organization" were introduced ^[8]. In 2016, criminal liability was established for failure to report to the authorized authorities about a person (persons) who, according to reliable information, is preparing, committing or has committed at least one of the crimes provided for by art. 205, 205.1, 205.2, 205.3, 205.4, 205.5, 206, 208, 211, 220, 221, 277, 278, 279, 360 and 361 of the criminal code ^[9].

Due to the introduction of new structures, the number of registered terrorist crimes has increased sharply since 2014: 661 acts were registered in 2013, while 1,128 and 1,538 were registered in 2014 and 2015, respectively. The maximum rate was recorded in 2016 and amounted to 2227 crimes. However, in 2017-2018, there was a decrease in the number of registered crimes of a terrorist nature, which is largely due to increased anti-terrorist activities in connection with the preparation and holding of the Presidential elections of the Russian Federation and the world Cup ^[10].

At the moment, the anti-terrorist» criminal law norms include the norms provided for in articles 205, 205.1 – 205.6, 206, 208, 211, 220 – 226.1, 277 – 279, 360 and 361 of the criminal code of the Russian Federation ^[11].

This study is intended to analyze the sentences for crimes under articles 205.1 and 205.2 of the criminal code of the Russian Federation, due to the fact that the introduction of the norms expressed in them caused sharp criticism of the scientific community. To identify the specifics of judicial practice on these crimes, it seems necessary to analyze the following: socio-demographic characteristics of the convicted person (gender, age, place of birth, marital status); criminal record; the essence of the offense; criminal conspiracy; the sentence.

According to the Judicial Department of the Supreme court of the Russian Federation, the number of persons convicted under article 205.1 – 205.2 of the criminal code of the Russian Federation in 2014 was 21, in 2015, 2016, 2017 and 2018. – 55, 88, 171 and 206, respectively, for 6 months of 2019, 96 persons were convicted ^[12].

The analysis was based on 113 sentences handed down by the Southern district military court between 2014 and 2018. The southern district military court considers cases of terrorist crimes committed on the territory of 15 subjects of the southern and North Caucasus Federal districts, as well as the republics of Armenia, Abkhazia and South Ossetia at the location of Russian troops, military formations and bodies.^[1]

The representativeness of the result of the analysis of sentences of this court, in particular, stems from the fact that according to the General Prosecutor of the Russian Federation the maximum number of reported crimes of a terrorist nature have, as a rule, Dagestan, Chechen Republic, Kabardino-Balkar Republic and Republic of Ingushetia.

The essence of the scientists 'claims to the wording of the norm provided for in article 205.1 of the criminal code of the Russian Federation" Assistance to terrorist activities " is reduced to three aspects: 1) the term "assistance" used in the title of the article does not cover the concept of "involvement" in the Commission of crimes;2) this norm duplicates the norms of the General part of the criminal code of the Russian Federation on complicity; 3) the sanctions for involvement and aiding are disproportionate to the public danger of the act (in the first case, insufficiently severe, in the second, excessive) ^[13].

Regarding the first comment, we should agree on the title of the article and its content, since the concept of "assistance" means the active participation, support of another person in the process of any activity ^[14]. Involvement always precedes such activity, or in the case of unsuccessful involvement, the activity is not carried out at all.

Whether the other two criticisms are true can be verified by analyzing the jurisprudence on the relevant norms.

First of all, it should be noted that all those convicted under article 205.1 of the criminal code of the Russian Federation were charged with part 1 of this article. Consequently, it is not possible to analyze the practice of applying the rules on complicity and organization of crimes.

However, the lack of practice to some extent characterizes the norms expressed in part 3 and part 4 of article 205.1 of the criminal code on the negative side. Thus, in legal science, there is an opinion that the non-application of a norm or its very rare application indicates its insolvency and uselessness ^[15]; ^[16]. At the same time, most scientists who have studied these norms consider it necessary to exclude them from the Special part of the criminal code of the Russian Federation, since criminal liability for aiding and organizing terrorist crimes is fully and proportionately implemented within part 3 and part 5 of article 33 of the criminal code of the Russian Federation ^[17]; ^[18].

The study of sentences under part 1 of article 205.1 of the criminal code of the Russian Federation showed that of the 64 convicted, 62 are men and 2 are women. The age groups of convicted persons (the age at the time of conviction) were distributed as follows: from 18 to 24 years – 20 persons, from 25 to 30 years – 20 persons, from 31 to 40 years – 18 persons, from 41 to 55 years-6 persons.

The place of birth of convicted persons under this article is mainly represented by the Republic of Dagestan (20 persons) and the Chechen Republic (16 persons). Eight of the convicted persons are natives of Tajikistan (5) and Kyrgyzstan (3), Uzbekistan (1) and Kazakhstan (1), but at the time of the crime they lived in the Chechen Republic, the Moscow region, Rostov-on-don, Krasnodar, Adygea, Astrakhan and Dagestan. Four of the convicted persons were born in the Stavropol territory, three in the Karachay-Cherkess Republic and the Volgograd region, and two in Kabardino-Balkaria and the Rostov region. Among the convicts are also natives of North Ossetia-Alania, Kalmykia, Astrakhan, and Ukraine (one person each).

34 persons of various age categories at the time of conviction had secondary General education, 11 persons received only basic General education, 11 persons received secondary vocational education, 7 persons with higher education are represented, and the only convict without education.

The study of the marital status of persons convicted under part 1 of article 205.1 of the criminal code showed that 31 men are single and 2 women are not married, 23 persons have one or two children, and 8 persons have 3 or more children. At the same time, most of the convicts are not employed (36 people), six are registered as students of educational institutions. The occupation of employed persons is diverse, ranging from a pediatrician to a design engineer.

Of the 64 persons brought to justice under article 205.1 of the criminal code, 53 people do not have a criminal record. The rest have outstanding and outstanding criminal records for crimes related to illegal trafficking of weapons, ammunition, explosives and explosive devices; participation in an illegal armed formation (hereinafter referred to as "NVF"), criminal community; illegal drug trafficking; theft of property; incitement to hatred or hostility.

Among the crimes committed, such acts as the transfer of funds to persons traveling to Syria to join the terrorist organization "Islamic state"(hereinafter referred to as "is"), for various needs of the is or its participants, as well as inducement to join and recruit individuals to the is and cells of other terrorist organizations.

It should be noted that only 29 persons under part 1 of article 205.1 of the criminal code of the Russian Federation are charged with a crime without being combined with other criminal acts. Of these, 17 convicts committed financing of terrorist activities (in the previous version of the criminal code of the Russian Federation, financing was provided for in part 1 of article 205.1 of the criminal code). All the convicts were given real imprisonment: the minimum – 2 years in a General regime colony, the maximum – 8 years in a General regime colony. In other cases (except two where the person was also accused of illegal turnover of narcotic drugs) an offence under part 1 of article 205.1 of the criminal code, was charged in conjunction with other terrorist offences, namely participation or attempted participation in illegal armed groups (part 2 of article 208), the organization of activities and participation in the activities of a terrorist organisation (article 205.5 of the criminal code); illicit manufacturing and trafficking in firearms, ammunition, explosives and explosive devices (art 222, 222.1, 223.1 of the criminal code), the attempted violent seizure of power (part 1 of article 30, article 278 of the criminal code), encroachment on life of law enforcement officer (article 317 of the criminal code). Here, on the contrary, the crime mainly consisted in inducing individuals to join and recruit for terrorist organizations. The minimum sentence imposed for a set of crimes was 5 years of imprisonment with serving in a General regime colony, the maximum-16 years of strict regime and 1 year of restriction of freedom.

Thus, based on the judicial practice of the southern district military court, the crime under article 205.1 of the criminal code is committed, as a rule, by men aged 19 to 40 years, natives of Dagestan and the Chechen Republic, non-defendants who have received secondary General, secondary vocational or basic General education. The involvement of persons in the Commission of crimes of a terrorist nature is carried out by persons who are members of the NWF and terrorist organizations, in order to find new participants. Financing is most often committed by individuals who are not part of the NDF and terrorist organizations, who transfer money in the amount of 1 thousand rubles to 157 thousand rubles for the purchase of weapons, ammunition, equipment, food, transport and medical expenses.

As you know, the special part of criminal liability for forms of incitement to carry out terrorist activities (in particular, recruitment) is related to the obligation of the Russian Federation to comply with the requirements of article 6 of the Council of Europe Convention on the prevention of terrorism 2005. From the analysis of judicial practice under article 205.1 of the criminal code of the Russian Federation, it is clear that most of the imputed acts are recruitment to terrorist organizations. In the absence of a special norm, recruitment would entail criminal liability with reference to part 4 of article 33 of the criminal code only if the person being recruited joined a terrorist organization. With the introduction of part 1 of article 205.1 of the criminal code of the Russian Federation, criminal liability also comes for unsuccessful involvement, which allows you to stop at an earlier stage the activities of recruiters and other persons engaged in searching for new members of the NDF and terrorist organizations.

Regarding the financing of terrorist activities, the analysis of judicial practice has shown that funds were allocated not for the Commission of a specific crime (a terrorist act, violent seizure of power, etc.), but in General for various needs of a terrorist organization, its divisions or individual participants. In the absence of part 1.1 of article 205.1 of the criminal code of the Russian Federation (in the previous version of the criminal code of the Russian Federation – part 1), the transfer of funds would entail criminal liability with reference to part 5 of article 33 of the criminal code only if the person's intent to Finance a specific crime is established, when he knows the perpetrators, place, time of Commission. Introduction of part 1 (currently part 1.1) of article 205.1 of the criminal code of the Russian Federation allows to bring to criminal responsibility persons in fact for any form of material support for terrorist activities and its participants. This rule is intended not only to restrict terrorist organizations in funds for the purchase of weapons, ammunition, equipment, transport, etc., but also to reduce the attractiveness of joining such organizations for those who are motivated by self-interest.

It is important to note that when imposing a sentence, the court took into account, in addition to mitigating and aggravating circumstances and personality characteristics, the amount of money transferred, the number of persons involved in the Commission of the crime, as well as the result of such involvement. Thus, the court ensured the proportionality and fair differentiation of punishment.

So, for example, for the transfer of 1 thousand rubles to a person who is serving in Syria in order to join the NWF, the court appointed the convicted person 2 years of imprisonment in a General regime colony. The criminal case was considered with the application of a special procedure, as mitigating circumstances were taken into account, provided for in article 61 of the criminal code of the Russian Federation.

To the convicted person who transferred 152 149 rubles to the needs of the IG, the court appointed 8 years of imprisonment with serving in a General regime colony. At the same time, mitigating circumstances were recognized as bringing to criminal responsibility for the first time, positive characteristics, the presence of dependent minor children and a spouse, the state of health of parents and one of the children.

Unsuccessful inducement to join the NWF in Syria resulted in a sentence of 2 years in a penal colony. For involvement, which ended with the entry of four persons into the is, the court appointed 4 years in a General regime colony. The amount of the imposed punishment was affected by the consideration of mitigating circumstances provided for in article 61 of the criminal code of the Russian Federation, as well as consideration of the case using a special procedure.

Thus, the analysis of court practice demonstrates the appropriateness of the allocation of the Special part of the criminal code of norms prohibiting the involvement in the Commission of terrorist crimes and terrorist financing due to the insufficient provisions of the General part of the criminal code to ensure early prevention of such crimes.

Turning to consider the jurisprudence on article 205.2 of the criminal code, it should be noted that the ban on propaganda and justification of terrorism is solely the initiative of the Russian legislator, as international acts provided for the establishment of responsibility only for public incitement ^[19]. At the same time, public calls for criminal activity, justification, and propaganda of terrorism require an assessment approach in each case.

In this regard, let us turn to the analysis of sentences imposed for crimes under article 205.2 of the criminal code of the Russian Federation.

In total, 55 men and 7 women were convicted under article 205.2 of the criminal code of the Russian Federation, of which one person was convicted at the age of 17, 25 persons aged 18 to 24, 23 persons aged 25 to 30, 8 persons aged 31 to 39, and 5 persons aged 40 to 55. Most of the convicted persons are natives of Dagestan (40 people). The remaining persons were born in Kabardino-Balkar Republic (5), Karachay-Cherkess Republic (4), Chechen Republic (3), Rostov region (2), Ingushetia, Stavropol territory, North Ossetia, Zabaykalsky territory, Volgograd, Samara, Ukraine (1 person each).

Of the 62 persons convicted under article 205.2 of the criminal code, 19 have basic General education, 17 have General secondary education, 13 have higher education, 12 have vocational secondary education, and only one person without any education. At the same time, 36 persons are not officially employed. Regarding the marital status, it is established that 37 convicted men and 3 women are not married, 8 persons have 1-2 children in care, 6 persons have 3 children and 3 persons have 4 or more children.

Most of the persons convicted under this article do not have a criminal record (54 persons). The number of crimes for which the convicts set the 8 record: public appeals to implementation of extremist activities (article 280 of the criminal code), inciting hatred or enmity (part 1 of article 282 of the criminal code), violence against a representative of authorities (article 318 of the criminal code), illicit trafficking in narcotic drugs on a large scale (part 2 of article 228 of the criminal code of the Russian Federation), deliberate causing of heavy harm to health, entailed death (part 4 of article 111 of the criminal code), crimes against property (articles 158, 161 and 167 of the criminal code).

Since the crime under article 205.2 of the criminal code of the Russian Federation refers to crimes with a formal composition, the subjective side can only be expressed by direct intent. In our opinion, the most accurate explanation of the establishment of the subjective side of the crime is given In the resolution of the Plenum of the Supreme court of the Russian Federation dated 09.02.2012 No. 1 "on certain issues of judicial practice in criminal cases of terrorist crimes" regarding the justification of terrorism. Paragraph 20 States that the crime is considered to be over "from the moment the person speaks, in which he declares that the ideology and practice of terrorism are correct and worthy of support and imitation".

For example, in one of the criminal cases, an Imam of a mosque was brought to justice under article 205.2 of the criminal code, who, when performing the funeral rites of a person liquidated by law enforcement agencies, expressed words of support for the activities of the deceased, who during his lifetime committed crimes against the authorities and law enforcement. In this situation, the public nature of statements made deliberately and with the desire to influence the opinion of people in the mosque about the correctness of armed resistance to law enforcement officials is obvious.

it Should be noted that in 59 cases, the modus operandi was the posting of Internet videos, songs, photos, text messages containing subject to assessment for law enforcement officials to criminal liability materials. In view of the fact that the above-mentioned resolution does not contain explanations about the rules for classifying crimes committed by posting videos, photographs and text in social networks, forums and other Internet resources (not related to the media), we offer our own views on these issues.

Thus, written statements or voice messages that clearly encourage and support the ideology and practice of terrorism, such as words of approval posted on the Internet under a video or photo depicting the preparation or Commission of a terrorist act or other terrorist-related crimes, should be considered as justification for terrorism.

Public calls to carry out terrorist activities should be recognized as saving on your personal page in a social network only those materials that contain words (voiced or subtitles, if it is a video) that explicitly and directly call using imperative verbs to commit crimes provided for in the second note to article 205.2 of the criminal code of the Russian Federation. However, in each case, the linguistic expertise of the materials must confirm the unambiguity and direction of the appeals.

With the introduction of terrorism propaganda as an alternative action in article 205.2 of the criminal code of the Russian Federation ^[20] at first glance, it seems that any act of dissemination of relevant information, including its storage on a personal page accessible only to friends, can be considered as criminal propaganda on formal grounds.

At the same time, the definition of "propaganda of terrorism" uses the term "activity", which in explanatory dictionaries is interpreted as "work, the systematic use of one's forces in any area", "the process of active interaction of the subject with the object" ^[21]. In the legal literature also divided the action and activities on the basis of singularity and multiplicity, forming long-lasting nature of their actions ^[22].

Therefore, a single posting of video, photo, and other materials, even if they contain information about the attractiveness or permissibility of terrorist activities, does not apply to criminal propaganda of terrorism. We believe that it is appropriate to provide in the resolution of the Plenum of the Supreme court of the Russian Federation dated 09.02.2012 No. 1 criteria for classifying the dissemination of relevant information as criminal propaganda of terrorism. Such criteria include the number of times that the information is distributed (for example, posting it on a social network, forum, or other Internet site at least three times; managing a group dedicated to the relevant topic), the number of copies of the media (leaflets, letters, articles), and the size of the audience (for example, the number of viewers of a live broadcast on Instagram, or listeners to a lecture).

In addition, it seems necessary, in addition to the dissemination of materials and information, to consider their production as propaganda for terrorism. In fact, the distributor acts as an intermediary between the bearer of the ideology of terrorism and the audience. The problem of non-punishability of authors of materials containing in one form or another support for the ideology of terrorism was also raised in the doctrine of criminal law ^[23].

Activities aimed at supporting and justifying the ideology of terrorism and instilling a tolerant attitude of the population towards terrorist crimes constitute a significant threat to both society and the state. Therefore, a strong response, including criminal law, requires not only the dissemination, but also the creation of propaganda materials. In this regard, we suggest that note 1.1 to article 205.2 of the criminal code of the Russian Federation be amended as follows: "in this article, terrorist propaganda is understood as the production and (or) dissemination of materials and (or) information aimed at forming a person's ideology of terrorism, belief in its attractiveness, or an idea of the permissibility of carrying out terrorist activities".

It also draws attention to the fact that in the studied sentences, qualification under article 205.2 of the criminal code of the Russian Federation without combination with other crimes occurs only in relation to 17 persons. The totality of the crime provided for in article 280 of the criminal code of the Russian Federation "Public calls to carry out extremist activities" is established in 21 cases, the totality of the crime provided for in article 282 of the criminal code of the Russian Federation "Incitement of hatred or enmity, as well as humiliation of human dignity" in 35 cases. However, as follows from article 1 of Federal law No. 114-FZ of 25.07.2002 On countering extremist activities, public justification of terrorism and other terrorist activities are considered manifestations of extremism. Consequently, the norm of article 205.2 of the criminal code will be special in relation to the norms of article 280 and 282 of the criminal code, therefore, in force of the rules on competition rules is subject only to the qualification under article 205.2 of the criminal code and additional qualification under article 280 and 282 of the criminal code is not required.

The exception will be the situation when, for example, a person has posted several materials for public viewing, some of which contain public calls for terrorist activities, and some are devoted to the promotion of racial superiority. In this case, qualification should be carried out for multiple offenses, under article 205.2 of the criminal code and article 282 of the criminal code”. These provisions should be fixed in the resolution of the Plenum of the Supreme court of the Russian Federation.

Finally, it should be said that, as can be seen from the analysis of judicial practice, the vast majority of convicts are represented by non-convicted citizens aged 17 to 30 years, some of whom have a job and family, while others are in a state of uncertainty both in their personal life and in their attitude to state power. At the same time, 32 convicts were sentenced to imprisonment in a settlement colony, and 6 persons were sentenced to serve their sentences in a General regime colony. A fine as the main punishment was imposed on 13 convicted persons. The use of criminal repression against such citizens will not always contribute to their correction, given the existing problem of re-socialization of former convicts in the country and the growing popularity of criminal subculture among the population.

In this regard, it is necessary to strengthen measures to counter the spread of the ideology of terrorism that are not related to criminal law, namely, moderation (censorship) of material posted in social networks and forums. Thus, Roskomnadzor has achieved significant success in blocking pornographic materials in social networks ^[24]. The implementation of such measures requires close cooperation between Roskomnadzor employees and the administration of social networks, and an increase in the number of moderators who will be properly instructed in what content belongs to materials containing public calls to carry out terrorist activities, justification and propaganda of terrorism.

Thus, the study made it possible to draw several conclusions: 1. Mainly under article 205.1 of the criminal code to the criminal responsibility of involved men aged 19 to 40 years, the natives of Dagestan and the Chechen Republic, criminal record, had completed secondary General, secondary vocational or General education; 2. A large share of imputed under article 205.1 of the criminal code of acts is the recruitment to a terrorist organization members of such organizations; 3. The allocation of the Special part of criminal liability for involvement in the Commission of terrorist crimes is appropriate and necessary in helping curb the activities of recruiters at an early stage in cases of inconclusive engagement; 4. Funding is committed by persons not members of the illegal armed groups and terrorist organizations through the transfer of funds to the various needs of organizations and their members; 5. Introduction part 1 of article 205.1 of the criminal code allowed prosecution of individuals for any form of material support for terrorist activities and its members, which should prevent the terrorist organizations from acquiring weapons, ammunition, equipment, transport, etc., as well as the reduction of persons entering their ranks from selfish motive; 6. Convicted under article 205.2 of the criminal code is mostly comprised of citizens criminal record at the age of 17 to 30 years, made a posting on the personal page in social network materials which contain public calls to terrorist activity, justify or propagandize terrorism; 7. In the Resolution of Plenum of the Supreme court of the Russian Federation of 09.02.2012 No. 1 “About some questions of court practice on criminal cases about crimes of a terrorist orientation” it is recommended to include criteria for attributing acts to dissemination activities promoting terrorism materials (multiplicity, number of instances of media, the size of the audience). 8. Along with the dissemination of materials and information, the promotion of terrorism should be considered as the production of relevant materials in order to counteract the formation of a tolerant or approving attitude towards the terrorist crimes; 9. It is recommended to include in the Resolution of Plenum of the Supreme court of the Russian Federation of 09.02.2012 № 1 indications concerning the inadmissibility of additional qualifications public appeals to terrorist activity, justify and promote terrorism under article 280 and 282 of the criminal code, because the named offences are a type of extremist activity; 10. Counteracting the spread of the ideology of terrorism is advisable to implement measures of moderation of content posted in social networks.

The publication was prepared in the framework of the implementation of the PFI of the RAS Presidium no. 20 "New challenges of the Earth's climate system", no.gr. of the AAAA-A18-118011990322-1 project.

^[1] Due to the requirement of the southern district military court to restrict the publication of information from sentences, the date and number of sentences are not specified.