Criminalization of the Nazism: Russian, foreign and international experience

Sergeeva Anzhelika Anatol'evna PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (Branch) All-Russian State University of Justice 190000, Russia, Saint Petersburg, Baskov lane, 16 lokhi@yandex.ru Other publications by this author     Gorbatova Marina Anatol'evna PhD in Law Associate Professor of the Department of Criminal Law and Criminal Procedure, St. Petersburg Institute (branch) of the All-Russian State Prosecutor University 190000, Russia, Saint Petersburg region, Saint Petersburg, Baskov Lane, 16 lokhi@rambler.ru Gurev Mikhail Sergeevich PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (Branch) All-Russian State University of Justice 199034, Russia, Saint Petersburg region, Saint Petersburg, 10th line V.O., 19 lokhi@rambler.ru Other publications by this author     Kirillova Yana Maksimovna PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (branch) of the All-Russian State University of Justice 190000, Russia, St. Petersburg, Baskov Lane, 16 lokhi@rambler.ru Other publications by this author     Lototskii Anton Sergeevich Senior Lecturer, Department of Criminal Law and Procedure, St. Petersburg Institute (branch) of the All-Russian State University of Justice 190000, Russia, St. Petersburg, Baskov Lane, 16 lokhi@rambler.ru Other publications by this author     Pyatkova Oksana Vladimirovna PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (branch) of the All-Russian State University of Justice 190000, Russia, St. Petersburg, Baskov Lane, 16 lokhi@rambler.ru Other publications by this author

Feizullaev Firudin Makhramali Ogly PhD in Law Associate Professor, Department of Criminal Law and Procedure, St. Petersburg Institute (branch) of the All-Russian State University of Justice 190000, Russia, St. Petersburg, Baskov Lane, 16 lokhi@rambler.ru Other publications by this author

The criminalization of manifestations of the ideology of Nazism in Russian legislation has gone through a rather long evolutionary path. Based on twenty years of experience in applying the provisions of the Federal Law "On Countering Extremist Activity" dated July 25, 2002 No. 114-FZ, it is possible to analyze the main stages of recognizing it as socially dangerous and summarize some results of improving anti-extremist legislation. In the modern period, this has scientific relevance, and most importantly, practical significance, since the relevant criminal law prohibitions are endowed with a complex structure that is not completely clear to law enforcement officers. 

In the period 2002-2007, the constitution of legislation on countering extremist activities took place, and an integral part of this process was, on the one hand, the formation of an expanded concept of hatred or enmity in the structure of motivation for extremist crimes, and on the other, the gradual leveling of manifestations of the ideology of Nazism in the structure of extremism. The leveling was manifested in the fact that due to the formation of a broad approach to understanding extremist activity, there was actually a "blurring" of manifestations of the ideology of Nazism in the list of acts constituting extremist activity. Researchers also pay attention to the chaotic nature of improving legislation in terms of criminalizing extremist activity ^{[1, p. 33]}.

In Russian criminal law science, the concept of extremist activity has received scientific understanding in a broad plane. Definitions of the term "extremism" itself range from adherence to radical views and ideas, combined with a willingness to defend them by any means, including violent ones ^{[2, p. 11]}, to a system of views, ideas and actions that differ from the generally accepted ones ^{[3, p. 3-17]}. A number of researchers tend to define extremist activity based on the provisions of the Shanghai Convention on Combating Terrorism, Separatism and Extremism (concluded in Shanghai, China, on June 15, 2001, ratified by Federal Law No. 3-FZ of January 10, 2003), and consider its essence to be aimed at undermining the foundations of the existing state-political building ^{[4, p. 20]}.

In the context of criminalization of extremist activity, it can be noted that when the law "On Countering Extremist Activity" was adopted, the provisions of Articles 280 and 282 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) underwent some transformation. In the first, the type of public appeals was clarified – not to forcibly change the constitutional order, but to carry out extremist activities, i.e. there was an expansion of the scope of application of the norm. The understanding of the second as a whole remained unchanged, but responsibility for the organization of an extremist community and the organization of the activities of an extremist organization was separately established (Articles 282.1, 282.2 of the Criminal Code of the Russian Federation). The legislator also gave a slightly different definition of extremist crimes from the text of the law "On Countering Extremist activities", referring to them only art. 148, 149, 213, 214, 243, 244, 280, 282 The Criminal Code OF the Russian Federation. It should be noted that the assessment of manifestations of the ideology of Nazism completely fell out of the sphere of criminal law regulation at that time. In other words, the conduct of extremist activities and the commission of extremist crimes could be equally dictated by the approval of the ideology of Nazism, or not at all connected with it. Thus, when adopting legislation on countering extremist activities, a dual situation developed: in fact, recognizing manifestations of the ideology of Nazism as an integral part of extremism, the legislator did not criminalize them separately.

In 2003, the Shanghai Convention on Combating Terrorism, Separatism and Extremism narrowed the concept of extremist activity to the point that the key concepts of hatred, hostility, and xenophobia actually fell out of it. Article 1 of the Convention stipulates that extremism is an act aimed at forcibly seizing power or forcibly retaining power, as well as forcibly changing the constitutional order of the State, as well as violent encroachment on public safety, including organizing or participating in illegal armed formations for the above purposes, and being prosecuted. It should be noted that although Russia is a party to the convention, the understanding of extremist activity in Russian legislation has not fully accepted such a definition.

The Federal Law "On Amendments to Articles 1 and 15 of the Federal Law "On Countering Extremist Activity" dated July 27, 2006 No. 148-FZ amended the normative understanding of extremist activity by including a number of new positions in its content. Firstly, the main component of extremism - the activities of public associations, other organizations, the media and individuals – has received a relatively new focus. Firstly, to forcibly change the constitutional order, seize power, and undermine the security of the state. Secondly, to carry out terrorist activities and create armed formations. Thirdly, to incite national, racial, religious discord, or social discord related to violence or calls for it, humiliation of national dignity, propaganda of national exclusivity, violation of human rights and freedoms, damage to his life, health, property in connection with their beliefs, nationality or other affiliation. Fourthly, to commit crimes against government officials. Fifth, the creation and dissemination of extremist materials. There was no expansion of the list of other components of extremism, and propaganda and public demonstration of elements of Nazi paraphernalia remained isolated from other extremist activities. Based on this, it can be noted that the current legislation on countering extremist activities lays down an approach according to which extremism implies an encroachment on state institutions (and as such, criminal liability against members of extremist organizations or communities is still provided for), and only secondarily – encroachments related to ethnic, confessional and other hatred or enmity. At the same time, in the basic definition of extremism, the external manifestations of the ideology of Nazism were not reflected. The use of this approach allowed some authors to reveal the legal nature of extremist activity in the context of encroachment on institutions of state power ^{[5, p. 7]}.

It should be noted that in the legislation of a number of foreign countries and in some international legal documents, the issue of criminalization of manifestations of the ideology of Nazism has received a more detailed resolution.

Thus, in 1945, the Statute of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries was adopted, whose jurisdiction extended to such actions as crimes against peace, war crimes, crimes against humanity. Their characterization in the context of the subject of the tribunal's activities allows us to conclude that at that time all of the above was equated to a manifestation of the ideology of Nazism. Later, for objective reasons, the concept of manifestations of the ideology of Nazism narrowed. Although, by virtue of the provisions of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948), the UN Convention on the Protection of Civilian Persons in Time of War (1949), the UN Convention on the Inapplicability of the Statute of Limitations to War Crimes and Crimes against Humanity (1968), the prosecution of those responsible for these acts perhaps until now. On the basis of the International Covenant on Civil and Political Rights (1966) and the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the international community has developed a framework for countering "hate crimes", including manifestations of the ideology of Nazism. In fact, the same technique is used in the federal law "On Countering extremist activity." The practice of the European Court of Human Rights contributed, as some authors believe, to the adoption by the European Union in 2008 of a framework decision on crimes based on racism and xenophobia ^{[6, pp. 157-169]}. At the same time, the international community recognizes that hate crimes are committed not only with a special motive, but also have special consequences for both the victim and other persons with related characteristics ^{[7, p. 20]}.

Separately, it is necessary to mention some resolutions of the UN General Assembly, on the basis of which in a number of states (including Russia) the process of criminalization of manifestations of the ideology of Nazism has intensified and acquired a new vector. The criminal prosecution of persons guilty of war and other crimes committed during the Second World War has not exhausted the problem of preventing manifestations of the ideology of Nazism, including in its new, modernized forms. As a result, in 1967, the UN General Assembly resolution condemned any ideology, including Nazism, based on racial intolerance and terror, as a gross violation of human rights and fundamental freedoms, as well as the principles and purposes of the UN Charter. The adoption of this resolution makes it possible to note the fact that the international community recognizes the inadmissibility of any manifestations of the ideology of Nazism.

Further, in 1980, the UN General Assembly resolution, adopted against the background of the intensification of the activities of groups and organizations promoting totalitarian forms of ideology and practice, including the ideology of Nazism, recommended that all states pay special attention to the activities of such entities and create effective legal instruments to counter them. In 2014, at the initiative of the Russian Federation, a UN General Assembly resolution was adopted, according to which the glorification of Nazism was recognized as unacceptable, as well as specific manifestations of the ideology of Nazism (commemorative processions, desecration or destruction of monuments, "glorification in any form" of the Nazi movement) were mentioned. These resolutions are of a recommendatory nature, but, firstly, they express a generally accepted attitude towards manifestations of the ideology of Nazism, and secondly, they are generally reflected in national legislation.    

The approach to the definition of hate crimes, which has been formed in the legislation of European States and the practice of the European Court of Human Rights, basically contains such a category as "prejudice". In the interpretation of European human rights structures, it implies hostility motivated by a "protected attribute", which can be nationality, racial, religious or gender affiliation, sexual orientation. In fact, extremist activity in this context is identified with a negative attitude towards people who are endowed with any special characteristics and are a minority in society.

The global and regional human rights systems have developed basic recommendations for countering hate crimes. Thus, the UN Convention on the Elimination of All Forms of Racial Discrimination (1965) requires the acceding States to establish responsibility for crimes motivated by racism and xenophobia (Article 6). Article 20 of the International Covenant on Civil and Political Rights stipulates the requirement to criminalize incitement to discrimination, hostility or violence motivated by racial, national or religious hatred. In 2012, the Rabat Action Plan was adopted to prohibit Propaganda of National, Racial or Religious Hatred that constitutes incitement to discrimination, hostility or violence, and this document establishes the international legal basis for recognizing speech as the language of hostility. In total, it sets out six criteria, and their range is quite wide: from the context and the oratorical intention to the likelihood of the implementation of the appeal contained in the statement. At the same time, it is recommended to assess the potential risk of harm in court. 

The legislation of foreign countries regarding the criminalization of manifestations of the ideology of Nazism can be differentiated into two blocks.

The first of them includes the establishment of criminal liability for the commission of hate crimes or enmity, which imply not only violence, racism or xenophobia, but may also be associated with the ideology of Nazism. Thus, § 283 of the Criminal Code of Austria establishes responsibility for pitting groups of the population, and § 130 of the Criminal Code of Germany – harassment of groups of the population; the legislation of a number of CIS countries (Azerbaijan, Armenia, Kazakhstan, Kyrgyzstan, Uzbekistan, Tajikistan) contain a norm related to Article 282 of the Criminal Code of the Russian Federation, providing for responsibility for inciting national, racial, religious hatred or enmity. Article 151 of the Criminal Code of the Republic of Estonia uses the more general category of "incitement to social hostility", while within the meaning of the criminal law norm under consideration, the source of hostility may be racial, national, religious or any other hostility.

The second block explicitly names individual manifestations of the ideology of Nazism or considers it as a specific type of crimes committed by members of extremist neo-Nazi organizations. For example, Article 151a of the Criminal Code of Croatia punishes for praising fascist, Nazi and other totalitarian states and ideologies or inciting racism and xenophobia. In turn, in the Criminal Code of the Czech Republic, the same article establishes responsibility for denying crimes or justifying Nazi or Communist genocide or other crimes of Nazis and Communists. The use of this formulation is highly politicized, but in general it is based on the condemnation of the regime established after World War II with the support of the USSR in the Czech Republic (in 1995, the Czech Republic adopted the law "On the Illegality of the Communist regime and on resistance to it", on the basis of which lustration and criminal prosecution of individuals guilty of violations were carried out human rights ^{[8, pp. 64-69]}).  

Of particular note is the practice of criminalizing denial of the Holocaust or other crimes against humanity committed by the Nazis. These acts are punishable in many European countries (Austria, Germany, Liechtenstein, Luxembourg, etc.), and the legality of establishing criminal liability for them has been confirmed by the European Court of Human Rights, which some researchers consider unfounded ^{[9, pp. 76-85]}. However, in the context of the above-mentioned trend of introducing the construction "belittling the role of the USSR" into the Russian criminal law, the following can be concluded. Of course, the category of "diminution" has no legal justification and is devoid of legal certainty. It is possible that limiting the limits of criminal punishability of an act only by denying, belittling or approving Nazi crimes does not fully correspond to the goals of criminal responsibility, therefore, it is more practical to use a more general formulation (facts of genocide, established facts of crimes against humanity, etc.). However, for European countries, the specification of the sphere of denial (belittlement) precisely through the prism of the ideology of Nazism has historical validity, since other crimes against humanity committed on ideological, national or other grounds (the Armenian Genocide, the genocide in Rwanda, etc.) did not affect in most cases either the territory or the population of European countries.  

In the current version of the Criminal Code of the Russian Federation, a separate group of extremist crimes includes acts associated with the expression of a tolerant attitude towards the ideology of Nazism. Responsibility for their commission comes under Articles 282.4, 354.1 of the Criminal Code of the Russian Federation. The criminal law prohibition in this case is based on the need to prosecute persons who express commitment to Nazi ideas and their dissemination.

By virtue of Article 282.4 of the Criminal Code of the Russian Federation, propaganda or public display of Nazi symbols and paraphernalia, similar objects confusingly similar to it, symbols and paraphernalia of extremist organizations, as well as other symbols or paraphernalia prohibited by federal laws are punishable. The provisions of Articles 282.4 of the Criminal Code of the Russian Federation create artificial competition with other norms establishing responsibility for extremist crimes (first of all, with Articles 282, 282.1 of the Criminal Code of the Russian Federation). It seems that in the future (and this composition appeared in the Criminal Code of the Russian Federation only in July 2022) explanations will be required both on the differentiation of these crimes and on their combined qualification.

The composition of the rehabilitation of Nazism (Article 354.1 of the Criminal Code of the Russian Federation) has existed since 2014, but the content of the criminal law ban is somewhat overloaded with evaluative signs, which acts as an obstacle to the formation of uniform law enforcement practice.

Due to these shortcomings, effective law enforcement becomes difficult, as a result of which the public danger of spreading the ideology of Nazism remains underestimated, which requires the legislator to make promising adjustments to both norms, as already discussed in the legal doctrine ^{[10, pp. 5-7; 11, pp. 111-112]}. 

In conclusion, it seems necessary to draw the following conclusions. Firstly, the anti-extremist legislation of Russia today is characterized by sufficient completeness, and a considerable part of it is reflected in the norms of the Criminal Code of the Russian Federation. Secondly, the differentiation of individual extremist crimes is difficult due to the terminological and substantive overlap that occurs in terms of criminal law prohibitions. Thirdly, the criminalization of manifestations of the ideology of Nazism in Russian legislation had some common features with international and foreign experience in legal regulation, but at the same time, the Russian legislator placed considerable emphasis on evaluative signs, which may complicate effective law enforcement.