Rehabilitation of Nazism in Russian Legislation: Historical and Legal Analysis

Bagandova Leila Zakirovna ORCID: 0000-0001-5060-9015 Leading Specialist of the Scientific and Organizational Department of the Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Moscow, Znamenka str., 10, room 207 leyla.bagandova@mail.ru Other publications by this author

The collapse of the Soviet Union, the pro-Western policy of politicians in 1985-1990, aimed at a sharp liberalization of public life, had their consequences. As of March 28, 2023, the Ministry of Justice of the Russian Federation has included 62 extremist movements in the list of organizations whose activities are prohibited on the territory of the Russian Federation, a number of which directly propagandize neo-Nazi concepts: "People's Socialist Initiative", "Misanthropic division", "Ukrainian Insurgent Army" (UPA), etc.

There have been repeated attempts in Russia to pass laws prohibiting the rehabilitation of Nazism. In 1997, two bills were submitted to the State Duma: the first "On the prohibition of propaganda of fascism in the Russian Federation" was devoted directly to the prohibition of propaganda of fascism, but it did not propose to criminalize the manifestations of such propaganda, and the second concerned the need to amend the Criminal Code of the Russian Federation regarding the consolidation of a new norm on the prevention of public use of Nazi symbols (Resolution Moscow City Duma of October 15, 1997 No. 73 "On the Legislative Initiative of the Moscow City Duma "On the draft Federal Law "On Amendments to the Criminal Code of the Russian Federation""). These bills, for all their relevance, however, were withdrawn by the subject of the legislative initiative.

 Attempts to criminalize the rehabilitation of Nazism after the adoption of the law on extremist activity have not stopped. Thus, in 2009, a draft Federal law was developed "On countering the rehabilitation of Nazism, Nazi criminals and their accomplices in the newly Independent States on the territory of the former USSR," and in 2013 — "On the inadmissibility of actions to rehabilitate Nazism, glorification of Nazi criminals and their accomplices, denial of the Holocaust." Only in 2014, Article 354.1 "Rehabilitation of Nazism" appeared in the Criminal Code of the Russian Federation. Many theorists agree that neo-Nazi activity is a factor of significant political influence, however, at the same time, the criminal situation in the state as a whole may depend on it, since Nazism calls for violence.

The processes of the revival of Nazism in Russia did not begin simultaneously. The authors put forward versions that the reasons could be the poverty of a significant part of the population, the poor work of law enforcement agencies in the 1990s, the lack of democratic traditions throughout the historical path in Russia, the proximity of the provisions of Nazism and communism, etc. ^{[1, p. 184-188]}. We do not agree with all the existing doctrinal hypotheses, and therefore it seems necessary for us to independently identify and consider the prerequisites for the development of Nazism in Russia.

1. The sharply emerging ideological diversity led to the so-called "ideological permissiveness", in which ultra-right parties appeared in the political arena, propagandizing fascist and Nazi doctrines in their programs. One of the first such organizations was the national patriotic front "Memory", which turned from a historical and cultural movement of public activists into a radical anti-Semitic and xenophobic organization by the mid-1990s. Later, another ultra–right party, the Russian National Unity, emerged from it. The leader of the political association argued that the Russian nation is a consequence of the Aryan civilization, about the centuries–old struggle against the Semites and the "world Jewish conspiracy". Among the radical neo-Nazi organizations using terrorist methods of struggle were skinhead groups: "Legion "Werewolf" (liquidated in 1996), "Schultz-88" (liquidated in 2006), "White Wolves" (liquidated in 2008-2010), "New Order" (ceased to exist), "Russian Goal" (ceased to exist), etc.

2.                 The fall of the communist regime caused a kind of political vacuum, and society did not know how to dispose of it. The absolutization of human rights and freedoms, the policy of restructuring and building a new, different from the Soviet way of life happened too abruptly, people did not understand what was happening and interpreted everything in their own way. We share the position of Yu.V. Golik, who argues that the sharp absolutization of human rights and freedoms in Russia in the 1990s, against the background of their absence in such a volume in earlier periods of history, led to permissiveness, anarchy and a surge in crime, which supporters of ultra-right movements took advantage of.

3. The sharp deterioration of the socio-economic situation of Russian citizens in the 1990s increased the popularity of radical parties among the population of the country. The liberalization of the economy led to the fact that many segments of society lost their former social status and income: according to a survey conducted in early 1992, more than half of the population were dissatisfied with their lives, suffered from stress and considered their future uncertain ^{[5, pp. 64-65]}. The economic situation in the state led to the devaluation of a person as biological and social organism, as well as the principles and foundations of society. Western researchers noted that the socio-economic situation in Russia after the collapse of the USSR until the early 2000s had many similarities with the state of Germany in the period after World War I, which largely influenced the leadership of National Socialism in the Reichstag and the success of A. Hitler ^{[6, pp. 355-368]}. In this regard, the economic crisis of the 1990s had a serious impact on the dynamics of the development of public relations, including the growth of neo-Nazi movements.

4.                 Paying insufficient attention to the preservation of historical memory. The policy of liberalizing society after the collapse of the USSR was aimed at building a new society, and therefore the Soviet legacy was a thing of the past. The upbringing of a sense of patriotism in the younger generation was no longer fundamental for the state authorities, educational programs no longer meet the requirements of objective and multifaceted education. The consequence of the "educational anarchy" is that young people have not received an idea of basic values. The cultural and moral decline among young people was also influenced by the fact of the publication of Soviet secret documents, which reflected information about losses, tactical mistakes of military leaders, the relationship between Germany and the USSR in the pre-war period, but the low level of legal awareness and political literacy did not allow for an objective analysis and assessment of the events of that era. In fact, the widespread and unquestionable nationalist and Nazi ideas became quite attractive in the minds of the younger generation, since through them young people considered it possible to realize themselves. The ideological and educational vacuum did not allow them to realize the correctness of the chanted postulates. Thus, the ignoring by the state after the collapse of the USSR of the issues of education of young people, the upbringing of correct values and patriotism in them became a reason for joining the ultra-right movements.

The above reasons, in our opinion, should be considered as interrelated and mutually conditioning prerequisites for the development of neo-Nazi sentiments in Russia. It is important that at present the mistakes of the past are taken into account and are being corrected. Thus, it has become mandatory in schools to listen to the Anthem of the Russian Federation before the start of the school day, and every Monday class hours are held "Conversations about the main thing", which tells about Russia, the foundations of the constitutional system, public holidays, etc., lessons on military history are approved by a separate course. In addition, the President signed a decree on the creation of the youth movement "Big Change", the idea of which is similar to the concept of Soviet pioneer.

The appearance of the norm on the rehabilitation of Nazism in Russian legislation has also led to a number of questions regarding its correct interpretation and enforcement. The first problem highlighted by theorists is the name of the norm. The legal definition of the combination "rehabilitation of Nazism" is not fixed in Russian normative legal acts, respectively, it is unclear what the legislator meant by this. Separately, the term "rehabilitation" is contained in the criminal procedure legislation of the Russian Federation and means "the procedure for restoring the rights and freedoms of a person unreasonably or unlawfully subjected to criminal prosecution, and compensation for the harm caused to him." Scientists express the point of view that only a specific person can be rehabilitated, but not a phenomenon, and it is necessary to replace the name of the norm with "justification of Nazism" ^{[4, p. 47]}. In our opinion, this statement is not entirely true. The term "rehabilitation" should be interpreted broadly, it is general and all-encompassing in relation to the concepts of "justification", "approval", "denial" and "restoration", therefore, the name of the norm is not as such a defect of the legislator's legal technique and fully corresponds to its content. In our opinion, the rehabilitation of Nazism should be understood as activities aimed at justifying and restoring Nazi ideology in society, as well as approving and denying crimes committed by Nazi criminals during World War II and established by the verdicts of the International Military Tribunals in Nuremberg, Tokyo and Khabarovsk.

Criminalization of denial of the facts established by the Nuremberg Tribunal is one of the most controversial issues raised when discussing the rehabilitation of Nazism. It seems to us that the establishment of criminal liability for an action of this kind is an important and necessary step by the legislator, and we do not support the opinion that this violates the provisions of Article 29 of the Constitution of the Russian Federation on guarantees of freedom of speech in the Russian Federation, since Part 2 of this norm explicitly prescribes the prevention of such propaganda and agitation that incites hatred or enmity and establishes superiority on a number of grounds ^{[2, p. 170-174]}. By virtue of the position of the Constitutional Court of the Russian Federation, the legislation is designed to prevent the manifestation of Nazism in any form (Definition of the Constitutional Court of the Russian Federation dated 23.10.2014 No. 2480-O "on refusal to accept for consideration the complaint of citizen Murashov Vladimir Alekseevich for violation of his constitutional rights by Article 6 of the Federal Law "On perpetuating the victory of the Soviet people in The Great Patriotic War of 1941-1945", Article 1 of the Federal Law "On Countering Extremist Activity" and Article 20.3 of the Code of Administrative Offences of the Russian Federation"). The ECHR has repeatedly expressed the position that the justification of Nazism does not fall within the scope of the principle and freedom of speech, and in the case of Lehideux and Isorni v. France indicated that the denial of "clearly established historical facts — such as the Holocaust — is not subject to protection" under the ECHR and is an abuse of law. It also seems right to us to agree with the thesis that "it is necessary to correctly define the boundary between freedom of speech and information arbitrariness" ^{[3, p. 44]}, otherwise there is a risk of encroachment on public information security by spreading destructive information.

Another problem that arises when applying part 1 of Article 354.1 of the Criminal Code of the Russian Federation is the criminalization of the denial of sentences of the International Military Tribunal of the European Axis countries only for the countries of the European axis. Based on the literal interpretation of the norm, only denial of facts, approval of crimes established and convicted by the verdict of the Nuremberg Tribunal falls under its action. In our opinion, such a narrowing is unacceptable, since other tribunals, whose sentences are also extremely important for preserving historical memory and combating the revival of Nazi ideology, remain ignored. These include, first of all, the Tokyo Tribunal, which proved that Japan was waging an aggressive war against a number of countries, including the USSR, and the Far East Tribunal (Khabarovsk Trial), which became unique – it was the first trial in world history in which persons who were preparing a war using weapons of mass destruction were convicted. defeats.

An interesting and debatable question is about such a qualifying feature of this corpus delicti as the artificial creation of evidence for the prosecution. These include the creation, production of obviously unreliable evidence and distortion of reliable evidence by making changes to it. Thus, this qualifying feature can be considered a particular manifestation of Article 303 of the Criminal Code of the Russian Federation. The meaning of tougher penalties for this act is that it can serve as a basis for illegal criminal prosecution. The moment of the end of the act in question is the inclusion of falsified evidence of the prosecution in the criminal case, since it is at this moment that the information acquires evidentiary value. The discussion lies in the fact that only falsification of the evidence of the prosecution is criminalized, although there may also be falsification of information in favor of the acquittal of a person. In our opinion, any falsification of evidence is a socially dangerous act, in this regard, we consider it right to exclude the word "charges" from part 2 of Article 354.1, so that this qualifying feature is considered more broadly.

The Strategy for Countering Extremism in the Russian Federation until 2025, approved by Presidential Decree No. 344 of 29.05.2020 "On approving the Strategy for Countering Extremism in the Russian Federation until 2025" contains provisions that the revival of the ideas of Nazism poses a real threat to modern Russia. Criminological features of the phenomenon of rehabilitation of Nazism are considered in the only special monographic work of P.V. Golovnenkov, G.A. Esakov, I.M. Matskevich and U. Hellman devoted to the peculiarities of modern radical neo-Nazi movements and organizations in Germany, Russia and in some other countries. Currently, there are two special monographs in the Russian science of criminal law on the rehabilitation of Nazism as a crime against the peace and security of mankind. This in itself indicates the insufficiency of scientific development of this problem from the point of view of theoretical research of criminal law. In our opinion, in order to more effectively counter the threat of the revival and rehabilitation of Nazism, it is necessary to develop and adopt a Federal law, or a resolution of the Plenum of the Supreme Court of the Russian Federation, in which the basic definitions will be fixed and the concept of "rehabilitation" regarding the considered corpus delicti will be disclosed. Thus, despite the fact that the norm on the rehabilitation of Nazism is not perfect from the point of view of its legislative regulation, its presence in the criminal legislation of the Russian Federation is an important prerequisite for the preservation of historical memory and information-healthy society as a whole.