Prohibition of the glorification of the crimes condemned by the verdict of the International Military Tribunal of the European Axis Countries: problems of interpretation and law enforcement

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 preservation of historical memory, according to the Constitution of the Russian Federation, is one of the main directions of our state's policy. In the context of a difficult international political situation, the flourishing of neo-Nazi ideology, formations based on it and propagandizing it, the presence of article 354.1 "Rehabilitation of Nazism" in the criminal legislation of the Russian Federation is a necessary tool for countering crimes against the peace and security of mankind. In the Russian doctrine, attention is paid to these issues in the works of Egorova N.A., Yu.S. Zharikov, A.Yu. Ivanov, A.G. Kibalnik, R.S. Tsvetkov. 

The approval of crimes established by the verdict of the International Military Tribunal for the Trial and War Criminals (hereinafter referred to as the Ministry of Internal Affairs) of the European Axis countries is one of the elements of the objective side of Part 1 of Article 354.1 of the Criminal Code of the Russian Federation. Criminalization of this act is due to the fact that glorification of Nazi ideology, belittling the horror of the crimes specified in the sentences of the Ministry of Internal Affairs, can lead to distortion of historical truth and distortion of understanding of the events of the Great Patriotic War, to "... the possibility of legally legalizing crimes committed by the regime of Nazi Germany under a plausible pretext ..." ^{[4, p. 59]}. In actions aimed at approving such crimes, "there is a phenomenon that "disorients" the perception of the phenomenon of Nazism" (Verdict of the Supreme Court of the Karachay-Cherkess Republic dated 08/17/2021 in case No. 2-8/21).

The definition of this act is not fixed in Russian normative legal acts. By "approval" it is customary to understand "encouragement" of something, "praise", recognition as permissible, correct. In this regard, it is possible to reveal the content of the act through the concept of "justification", which is fixed in the note to Article 205.2 of the Criminal Code of the Russian Federation.  The synonymy of the above terms is also indicated by judicial practice. Thus, the Supreme Court of the Republic of Crimea, in the descriptive and motivational part of the verdict, indicated that the placement of photographs in the form of emblems of units of the SS troops, swastikas, as well as the phrase "Thank you grandfather for trying", based on the operative part of the expert opinion, "... contain signs of justification (approval) of the activities of units of the SS troops" (The verdict of the Supreme Court of the Republic of Crimea dated 10/30/2015 in the case 1-25/2015).

Due to the absence of a reference to Article 354.1 of the Criminal Code in this note, however, its use is difficult. In part 2 of Article 3 of the Criminal Code of the Russian Federation, the thesis is fixed on the inadmissibility of analogy of the criminal law in pursuance of the principle of legality of criminal law. The analogy of law is understood as the application of general principles and meaning of legislation or general principles of law to a public attitude that is not regulated by a specific legal norm, if there is no norm regulating similar relations that can be applied to fill the gap ^{[6, p. 423]}. The extension of the meaning of the concept of "justification" given by the legislator to the phenomenon of "approval of Nazi crimes", therefore, according to the letter of the law, will violate the principle of legality. Identical provisions are contained in Resolution No. 1 of the Plenum of the Supreme Court of the Russian Federation dated 09.02.2012 "On certain issues of judicial practice in criminal cases of terrorist crimes". In our opinion, for the effective and correct application of this norm, it is necessary to develop the concept of approval of relevant acts, using the note to Article 205.2 of the Criminal Code of the Russian Federation. It seems appropriate to define the approval of the crimes indicated in the verdict of the Ministry of Internal Affairs as a public recognition of the ideology of Nazism, as well as the acts committed by the Nazis and recognized as criminal by the verdict of the Nuremberg Tribunal, as correct, in need of support and imitation. In our opinion, in order to consolidate such definitions, it is necessary to develop a separate Resolution of the Plenum of the Supreme Court of the Russian Federation on the rehabilitation of Nazism.

The approval of crimes specified in the sentences of the Ministry of Internal Affairs is characterized only by active actions. They can be expressed in statements, reposts, comments in support of the Nazi regime, drawings (swastikas), etc. By its design, the corpus delicti enshrined in part 1 of Article 354.1 of the Criminal Code of the Russian Federation is designed according to the type of formal, therefore, this act will be considered completed from the moment of expressing or expressing approval in public, regardless of whether the subject achieves the goal, if any. Publicity involves addressing a wide range of people through the "absence of a private character" ^{[3, p. 496]}, that is, outside the framework of a personal conversation or correspondence. We share the point of view of A.G. Kibalnik and A.Y. Ivanov, who do not consider the "personification" of persons among whom the act is committed in relation to the subject of the crime to be fundamental in determining publicity ^{[4, p. 60]}.

The correct interpretation of this feature is necessary for the correct qualification of the crime as completed. For example, the Supreme Court of the Republic of Tatarstan recognized the attempt to post a photo of Adolf Hitler on the Immortal Regiment Online platform as an attempt to rehabilitate Nazism, referring to the final blocking of the application and non-presentation of the image during the action (Verdict of the Supreme Court of the Republic of Tatarstan dated 02.12.2020 in case No. 2-25/2020). The court of first instance, however, did not take into account the formal construction of this corpus delicti and the fact that the moderators considered the application for publication of the photo, which indicates the public expression of "their position on the possibility of placing a photo of a Nazi criminal ... on a par with the participants in the war ..." (Appeal verdict of 07/19/2021 in case No. 55-521/202). At the same time, when submitting an application for posting a photo of Adolf Hitler on the Immortal Regiment Online website, M.B. El-Ayoubi was reliably aware that photos and information about veterans of the Great Patriotic War and home front workers opposing the Nazi invaders and their accomplices were posted on this site. M.B. El-Ayoubi was also reliably aware that A. Hitler was a Nazi criminal, which was confirmed by the verdict of the International Military Tribunal.

At the same time, when submitting an application for posting a photo of Adolf Hitler on the Immortal Regiment Online website, M.B. El-Ayoubi was reliably aware that photos and information about veterans of the Great Patriotic War and home front workers opposing the Nazi invaders and their accomplices were posted on this site. M.B. El-Ayoubi was also reliably aware that A. Hitler was a Nazi criminal, which was confirmed by the verdict of the International Military Tribunal (Definition of the Criminal Court of the Supreme Court of the Russian Federation dated June 8, 2021 N 11-UDP21-19-A4).

It is indicated that when deciding on the qualification of actions as an attempt, the court of first instance proceeded from the fact that Kruglov did not complete the actions to post a photo of A. Hitler on the Immortal Regiment Online website due to circumstances beyond his control in connection with the blocking of applications by moderators. The court of appeal, leaving the decision of the court of first instance unchanged, pointed out that the rehabilitation of Nazism belongs to the group of "information crimes" related to the transfer of certain information from one subject to another, and the very fact that the convicted person posted an application with the image of A. Hitler on the Immortal Regiment of Russia website is not related to achieving a criminal result, expressed in bringing his approval of the crimes established by the verdict of the International Military Tribunal to the attention of an unlimited number of persons (publicly approved) during the broadcast of the Immortal Regiment campaign on the Internet (Definition of the Criminal Code of the Supreme Court of the Russian Federation dated May 18, 2021 N 80-UDP21-3-A4).

Thus, based on the factual circumstances of the convicted person's deed established by the court, it follows that by sending a photo image of A. Hitler to an unlimited number of people using the Internet for public demonstration, M.B. El-Ayoubi openly, that is, publicly expressed his position on the possibility of posting a photo of the Nazi criminal Adolf Hitler along with war participants and workers the rear, who fought during the Second World War against Nazi Germany.

There are discussions in science regarding the need to consolidate the goal as part of a crime, provided for in part 1 of Article 354.1 of the Criminal Code of the Russian Federation, as a constructive feature. Thus, there is a point of view according to which the lack of indication of the goals and motives of the commission of this act allows it to be interpreted excessively broadly and held accountable for expressing a subjective opinion ^{[2, p. 881]}. According to part 3 of Article 55 of the Constitution of the Russian Federation, constitutional rights and freedoms may be restricted only to the extent necessary to protect the constitutional foundations, including to ensure the security of the state and the protection of its constitutional system. We believe that committing the crimes established by the Nuremberg Tribunal without a specific purpose does not reduce the degree of public danger of such an act and not only does not limit the principle of freedom of speech, but also constitutes its abuse ^{[1, p. 1073]}.

 Another problem that arises when applying Part 1 of Article 3541 of the Criminal Code of the Russian Federation is the criminalization of the approval of crimes specified in the sentences of the Ministry of Internal Affairs only for the countries of the European axis. Accordingly, based on the literal interpretation of the norm, this includes only the denial of the facts established by the verdict of the Nuremberg Tribunal. In our opinion, such a narrowing is unacceptable, since other tribunals, whose sentences are also of great importance for preserving historical memory and combating the revival of Nazi ideology, remain ignored – these are, first of all, the Tokyo Tribunal and the Tribunal for the Far East (Khabarovsk trial).

The memory of the defenders of the Fatherland and the protection of historical truth are the constitutional values of the citizens of the Russian Federation ^{[5, pp. 29-32]}. 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 that will consolidate the basic definitions regarding the considered corpus delicti and the moment of its completion. In particular, it is advisable to develop a definition of the concept of "approval of crimes specified in the sentences of the Ministry of Internal Affairs", which will mean a public statement recognizing the ideology and practice of Nazism as correct, in need of support and imitation. In this regard, the problem of studying and improving the norm on criminal liability for the rehabilitation of Nazism is a particularly urgent task, the solution of which is an important prerequisite for the preservation of peace and security of mankind.