Navalny opened a formula for avoiding criminal punishment
By blogger Alexei Navalny, by personal example, he demonstrated a lacuna in the enforcement of the article of the Criminal Code of the Russian Federation 212.1: "Repeated violation of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picket." With the right mathematical calculation, the violator can avoid criminal punishment, which deprives this law of effective force.
Article 212.1 of the Criminal Code (CC) entered into force in summer 2014. It is designed to prevent intentional provocations of citizens to clashes with law enforcement agencies and other forms of destabilization of the situation in the country.
During the duration of this article, Ildar Dadin was sentenced to three years in a general regime colony for taking part in four protest actions in 2014. Later, the Supreme Court reversed the verdict, since the criminal case against the activist was initiated before the decisions on three administrative cases came into force.
If it were not for this violation of the procedural norm, then an ordinary activist would have spent at least two years in detention, despite the fact that he did not take any part in organizing uncoordinated actions dangerous for the society.
At the same time, against Navalny, who over the past six months three times called for people to take to the streets en masse in different cities and go on confrontation with law enforcement agencies, no one has yet initiated a similar criminal case. Although under the law he could well face (even without taking into account the two conditional sentences in his asset) to 5 years in prison.
Luck or calculation
What is the reason for such "luck"? If you do not take into account the version of the help of those in power - in the exact mathematical calculation.
Recall that March 26 of Navalny refused the offer of the Moscow authorities to hold a rally in Sokolniki or in Marino. As a result of his call to go to Tverskaya mass riots occurred with the participation of supporters of the opposition. Most Navalny was fined 20 thousands of rubles, but four participants of the provocation organized by him became defendants in criminal cases. Only in Moscow more than a thousand victims of this obviously illegal appeal were detained.
12 June Navalny at the last moment refused to hold an agreed rally on Sakharov Avenue and again called on supporters to go to Tverskaya, where thousands of events were planned on that day in honor of Russia Day. As a result, Navalny received an administrative arrest on 30 days for violation of the 20.2 article of the Code on Administrative Offenses of the Russian Federation. And a few dozen participants in the clashes with the participants of the peaceful holiday were in jail.
Finally, in September, 2017, Navalny took the initiative to hold a series of regional meetings in Russian cities. Almost all of them were agreed by the authorities. Navalny had a choice from 9 cities where rallies were authorized this weekend, and 12 cities were next.
Nevertheless, Navalny focused on the only illegal events. On September 27, he posted a video where he called for an unsanctioned rally in St. Petersburg. And the next day, special attention was paid to Nizhny Novgorod, urging everyone to go out in this city for a prohibited action. Given that the local authorities had nothing against the holding of Navalny rallies, they only offered to move the event to a different location.
Interestingly, the creator of FBK chose deliberately impossible addresses to hold its shares: in St. Petersburg, he wanted to speak at the Field of Mars, where after June 12 no civilian events were allowed, and in Nizhny Novgorod he chose Markin Square, although he should have known that at this time it is held "Festival of Culture, Sport and Tourism."
So, for half a year, Navalny organizes illegal rallies three times, but the case against him according to the Criminal Code of the RF 212.1, specially adopted to avoid such cases, is not initiated. Why? A fundamental role is played by the interpretation of the concept of "repeatedly."
Article 212.1 of the Criminal Code says: "Violation of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picket, if this act was committed repeatedly, is punished with a fine of from six hundred thousand to one million rubles or in the amount of wages or other income a convict for a period of two to three years, either by compulsory labor for up to four hundred and eighty hours, or by corrective labor for a period of one to two years, or by forced labor for up to five years, l for imprisonment for the same period. "
The note states: a repeated violation is considered to be that committed by a person who has already been prosecuted under Article 20.2 of the Administrative Code of the RF. The decision of the Constitutional Court explains: repeatedly - this is when a violation is allowed by a person "previously brought to administrative responsibility more than twice within one hundred and eighty days on the basis of the same article."
But Navalny has 26 days passed since the first violation of this year, 29 March, and until the third, 188 September. It turns out that exactly after the six months prescribed by law expired, Navalny began to provoke people into new clashes with law enforcement agencies, while at the same time almost without risking criminal prosecution (the only threat to him could be a personal presence, for example, in Nizhny Novgorod during the rally, but Navalny happily escaped her due to extremely timely detention).
Lawyer Alexander Arutyunov believes that Navalny slyly adjusted to the article 212.1 of the Criminal Code of the Russian Federation. “The court, according to Navalny’s calculations, cannot be held criminally liable because it is an administrative offense. There will be no criminal liability outside the 180-day period, now he always has a new countdown. The person has just cleverly adjusted to this law, he knows and does it consciously. But the law is the law, it is necessary either to change something, or to leave everything as it is, but then Navalny will do the same thing every time, ”said RAPSI Arutyunov.
Conflict or provocation
Another interesting fact is that this formula might not work. After all, Navalny over the past six months had one more administrative punishment for the same article of the 20.2 Code of Administrative Offenses of the Russian Federation: in August he was fined for “Saturday” 8-9 of July. However, the judges explained that if damage was not caused as a result of the violations, such a violation was not taken into account when determining the possibility of criminal punishment. Thus, Navalny’s administrative punishment has not yet become a criminal one only because no one has claimed the damage inflicted by his illegal actions, which is rather strange in the context of the conversation about his alleged political persecution.
This filigree calculation, which allows to commit de facto criminal offenses, but remaining within the framework of administrative legislation, became the second most important innovation of Navalny, demonstrating failures in the work of our law-enforcement practice.
Another unique case was the award of two suspended sentences in a row. Recall 30 December 2014 of the year Navalny was sentenced to 3,5 years of probation in the case of the "Main Subscription Agency." At the same time, his brother Oleg received a real sentence, although this was his first accusation, and Alexey a year earlier, 16 of October 2013, had already been sentenced to five years conditionally in the case of Kirovles. It is unnecessary to clarify that the whole essence of the conditional sentence is precisely to make it real in a relapse.
The reason for this phenomenon has not yet been fully clarified by the responsible authorities. Moreover, the legal paradox was aggravated by the issuance of Navalny international passport with two conditional terms, which directly contradicts the practice of the Russian judicial system.
Now these two legal conflicts can be combined into one legal precedent, which deserves special study, since it threatens to violate the practice of law enforcement in our country. The fact is that according to the Criminal Code, if the conditionally convicted person commits an administrative offense, the court may, upon the proposal of the prosecutor's office, extend the probationary period. If the offenses are systematic, conditional deprivation of liberty can be replaced by real. And in this case, the term calculation of "systematic nature" is not limited to half a year. Accordingly, an acute legal question arises about the reasons why the court does not apply this provision to Navalny.
“Navalny obviously takes into account the requirements of the law and deliberately provokes power, checking how much she has the determination to turn his suspended sentence into a real one. Here, Akhmatova’s words are recalled:“ What biography is made to our redhead, ”commented lawyer Alexey Melnikov.
Moreover, on the Navalnogov page on Twitter, there are illegal appeals that fit in the 180-day period. The situation is aggravated by the fact that in parallel with appeals to go for illegal actions, Navalny spreads information misleading right-minded people - that the law supposedly allows gathering for uncoordinated meetings. Such statements, which are ignored by the court, are not only a dangerous provocation for honest citizens, but also a discredit of law and the judiciary in public opinion.
Law or policy
“This is a deliberate provocation. If he is not deprived of his liberty, he came to the conclusion that the patience of power is infinite. In the situation with“ Kirovles ”, any other person would have long been sawing trees in colonies or an awl mittens, but not Navalny. He is testing for himself the degree of his permissiveness and, to some extent, the weakness of power. In his case, this alignment confirms his strength. If he is held criminally liable in the current situation, this will provoke an international reaction in which no one will figure out whether he is guilty or not. at all They traditionally pity those who sit and forget what a person has done. This situation is worse for him, but the dividends for him are large, because then he becomes famous and a halo of a martyr. So any move of power is beneficial for him: they don’t delay - great , arresting is also good, "says Melnikov.
However, experts express the opinion that the targeted, consistently illegal actions of Navalny were initially focused on the reaction of not Russian, but European institutions. It is important to note that appeals to go to uncoordinated meetings and statements about their own intention to visit the banned rally appeared just a few days after the decision of the Committee of Ministers of the Council of Europe regarding the execution of the ECHR decision on the complaint of Navalny and Peter Ofitserov.
Experts draw attention to the unprecedentedly accelerated procedure for the consideration of this case, which can be regarded as an intention on the eve of the presidential elections in Russia to file criminal offenses of Navalny in the form of political persecution. To consolidate this promise, of course, new episodes of "persecution" are needed.
That is why the choice of uncoordinated venues and loud statements about the intention to visit them are much more convenient than professional performance at authorized rallies. The provocation oriented towards European institutions is more effective than political work and the conviction of citizens that they are right. Unfortunately, the main damage in this case is inflicted on the Russian legal system and the legal consciousness of citizens.
"Remember how many times he has already violated the rules that allowed his conditional deadline to be converted into a real one? Set! But no one does that. Perhaps for political reasons. I think he will start taking active steps closer to the presidential election and then to assert that he is not allowed to take part in the elections. This is a very clever provocation. Here Navalny sets the agenda, and the authorities cautiously react to his actions, trying not to give him an extra aura of martyrdom. That’s always such a “liberal” Waste "- concluded Melnikov.
Regarding whether to take into account the political context of this stories and Navalny’s attempt to create a conflict between the Russian legal system and European institutions, advocate Vladimir Alexandrov expressed his opinion to the RAPSI:
“I don’t follow Mr Navalny’s adventures in the political sphere, but from a legal point of view I can say the following: if the court has reason to count Navalny’s three administrative offenses in six months, also bearing in mind his two suspended sentences, then of course he should to be held criminally liable. In general, for practicing lawyers, the situation does not look very decent: hundreds of people, with significantly fewer grounds for criminal prosecution or serving real punishment, are in the colonies. It creates the conditions under which this gentleman feels so "calm and secure" raises questions. We all know well that the key public complaint about the Russian law enforcement and judicial systems is selectivity in making decisions and sentences. The current situation with Navalny Unfortunately, this selectivity confirms, "- said Alexandrov.
Article 212.1 of the Criminal Code (CC) entered into force in summer 2014. It is designed to prevent intentional provocations of citizens to clashes with law enforcement agencies and other forms of destabilization of the situation in the country.
During the duration of this article, Ildar Dadin was sentenced to three years in a general regime colony for taking part in four protest actions in 2014. Later, the Supreme Court reversed the verdict, since the criminal case against the activist was initiated before the decisions on three administrative cases came into force.
If it were not for this violation of the procedural norm, then an ordinary activist would have spent at least two years in detention, despite the fact that he did not take any part in organizing uncoordinated actions dangerous for the society.
At the same time, against Navalny, who over the past six months three times called for people to take to the streets en masse in different cities and go on confrontation with law enforcement agencies, no one has yet initiated a similar criminal case. Although under the law he could well face (even without taking into account the two conditional sentences in his asset) to 5 years in prison.
Luck or calculation
What is the reason for such "luck"? If you do not take into account the version of the help of those in power - in the exact mathematical calculation.
Recall that March 26 of Navalny refused the offer of the Moscow authorities to hold a rally in Sokolniki or in Marino. As a result of his call to go to Tverskaya mass riots occurred with the participation of supporters of the opposition. Most Navalny was fined 20 thousands of rubles, but four participants of the provocation organized by him became defendants in criminal cases. Only in Moscow more than a thousand victims of this obviously illegal appeal were detained.
12 June Navalny at the last moment refused to hold an agreed rally on Sakharov Avenue and again called on supporters to go to Tverskaya, where thousands of events were planned on that day in honor of Russia Day. As a result, Navalny received an administrative arrest on 30 days for violation of the 20.2 article of the Code on Administrative Offenses of the Russian Federation. And a few dozen participants in the clashes with the participants of the peaceful holiday were in jail.
Finally, in September, 2017, Navalny took the initiative to hold a series of regional meetings in Russian cities. Almost all of them were agreed by the authorities. Navalny had a choice from 9 cities where rallies were authorized this weekend, and 12 cities were next.
Nevertheless, Navalny focused on the only illegal events. On September 27, he posted a video where he called for an unsanctioned rally in St. Petersburg. And the next day, special attention was paid to Nizhny Novgorod, urging everyone to go out in this city for a prohibited action. Given that the local authorities had nothing against the holding of Navalny rallies, they only offered to move the event to a different location.
Interestingly, the creator of FBK chose deliberately impossible addresses to hold its shares: in St. Petersburg, he wanted to speak at the Field of Mars, where after June 12 no civilian events were allowed, and in Nizhny Novgorod he chose Markin Square, although he should have known that at this time it is held "Festival of Culture, Sport and Tourism."
So, for half a year, Navalny organizes illegal rallies three times, but the case against him according to the Criminal Code of the RF 212.1, specially adopted to avoid such cases, is not initiated. Why? A fundamental role is played by the interpretation of the concept of "repeatedly."
Article 212.1 of the Criminal Code says: "Violation of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picket, if this act was committed repeatedly, is punished with a fine of from six hundred thousand to one million rubles or in the amount of wages or other income a convict for a period of two to three years, either by compulsory labor for up to four hundred and eighty hours, or by corrective labor for a period of one to two years, or by forced labor for up to five years, l for imprisonment for the same period. "
The note states: a repeated violation is considered to be that committed by a person who has already been prosecuted under Article 20.2 of the Administrative Code of the RF. The decision of the Constitutional Court explains: repeatedly - this is when a violation is allowed by a person "previously brought to administrative responsibility more than twice within one hundred and eighty days on the basis of the same article."
But Navalny has 26 days passed since the first violation of this year, 29 March, and until the third, 188 September. It turns out that exactly after the six months prescribed by law expired, Navalny began to provoke people into new clashes with law enforcement agencies, while at the same time almost without risking criminal prosecution (the only threat to him could be a personal presence, for example, in Nizhny Novgorod during the rally, but Navalny happily escaped her due to extremely timely detention).
Lawyer Alexander Arutyunov believes that Navalny slyly adjusted to the article 212.1 of the Criminal Code of the Russian Federation. “The court, according to Navalny’s calculations, cannot be held criminally liable because it is an administrative offense. There will be no criminal liability outside the 180-day period, now he always has a new countdown. The person has just cleverly adjusted to this law, he knows and does it consciously. But the law is the law, it is necessary either to change something, or to leave everything as it is, but then Navalny will do the same thing every time, ”said RAPSI Arutyunov.
Conflict or provocation
Another interesting fact is that this formula might not work. After all, Navalny over the past six months had one more administrative punishment for the same article of the 20.2 Code of Administrative Offenses of the Russian Federation: in August he was fined for “Saturday” 8-9 of July. However, the judges explained that if damage was not caused as a result of the violations, such a violation was not taken into account when determining the possibility of criminal punishment. Thus, Navalny’s administrative punishment has not yet become a criminal one only because no one has claimed the damage inflicted by his illegal actions, which is rather strange in the context of the conversation about his alleged political persecution.
This filigree calculation, which allows to commit de facto criminal offenses, but remaining within the framework of administrative legislation, became the second most important innovation of Navalny, demonstrating failures in the work of our law-enforcement practice.
Another unique case was the award of two suspended sentences in a row. Recall 30 December 2014 of the year Navalny was sentenced to 3,5 years of probation in the case of the "Main Subscription Agency." At the same time, his brother Oleg received a real sentence, although this was his first accusation, and Alexey a year earlier, 16 of October 2013, had already been sentenced to five years conditionally in the case of Kirovles. It is unnecessary to clarify that the whole essence of the conditional sentence is precisely to make it real in a relapse.
The reason for this phenomenon has not yet been fully clarified by the responsible authorities. Moreover, the legal paradox was aggravated by the issuance of Navalny international passport with two conditional terms, which directly contradicts the practice of the Russian judicial system.
Now these two legal conflicts can be combined into one legal precedent, which deserves special study, since it threatens to violate the practice of law enforcement in our country. The fact is that according to the Criminal Code, if the conditionally convicted person commits an administrative offense, the court may, upon the proposal of the prosecutor's office, extend the probationary period. If the offenses are systematic, conditional deprivation of liberty can be replaced by real. And in this case, the term calculation of "systematic nature" is not limited to half a year. Accordingly, an acute legal question arises about the reasons why the court does not apply this provision to Navalny.
“Navalny obviously takes into account the requirements of the law and deliberately provokes power, checking how much she has the determination to turn his suspended sentence into a real one. Here, Akhmatova’s words are recalled:“ What biography is made to our redhead, ”commented lawyer Alexey Melnikov.
Moreover, on the Navalnogov page on Twitter, there are illegal appeals that fit in the 180-day period. The situation is aggravated by the fact that in parallel with appeals to go for illegal actions, Navalny spreads information misleading right-minded people - that the law supposedly allows gathering for uncoordinated meetings. Such statements, which are ignored by the court, are not only a dangerous provocation for honest citizens, but also a discredit of law and the judiciary in public opinion.
Law or policy
“This is a deliberate provocation. If he is not deprived of his liberty, he came to the conclusion that the patience of power is infinite. In the situation with“ Kirovles ”, any other person would have long been sawing trees in colonies or an awl mittens, but not Navalny. He is testing for himself the degree of his permissiveness and, to some extent, the weakness of power. In his case, this alignment confirms his strength. If he is held criminally liable in the current situation, this will provoke an international reaction in which no one will figure out whether he is guilty or not. at all They traditionally pity those who sit and forget what a person has done. This situation is worse for him, but the dividends for him are large, because then he becomes famous and a halo of a martyr. So any move of power is beneficial for him: they don’t delay - great , arresting is also good, "says Melnikov.
However, experts express the opinion that the targeted, consistently illegal actions of Navalny were initially focused on the reaction of not Russian, but European institutions. It is important to note that appeals to go to uncoordinated meetings and statements about their own intention to visit the banned rally appeared just a few days after the decision of the Committee of Ministers of the Council of Europe regarding the execution of the ECHR decision on the complaint of Navalny and Peter Ofitserov.
Experts draw attention to the unprecedentedly accelerated procedure for the consideration of this case, which can be regarded as an intention on the eve of the presidential elections in Russia to file criminal offenses of Navalny in the form of political persecution. To consolidate this promise, of course, new episodes of "persecution" are needed.
That is why the choice of uncoordinated venues and loud statements about the intention to visit them are much more convenient than professional performance at authorized rallies. The provocation oriented towards European institutions is more effective than political work and the conviction of citizens that they are right. Unfortunately, the main damage in this case is inflicted on the Russian legal system and the legal consciousness of citizens.
"Remember how many times he has already violated the rules that allowed his conditional deadline to be converted into a real one? Set! But no one does that. Perhaps for political reasons. I think he will start taking active steps closer to the presidential election and then to assert that he is not allowed to take part in the elections. This is a very clever provocation. Here Navalny sets the agenda, and the authorities cautiously react to his actions, trying not to give him an extra aura of martyrdom. That’s always such a “liberal” Waste "- concluded Melnikov.
Regarding whether to take into account the political context of this stories and Navalny’s attempt to create a conflict between the Russian legal system and European institutions, advocate Vladimir Alexandrov expressed his opinion to the RAPSI:
“I don’t follow Mr Navalny’s adventures in the political sphere, but from a legal point of view I can say the following: if the court has reason to count Navalny’s three administrative offenses in six months, also bearing in mind his two suspended sentences, then of course he should to be held criminally liable. In general, for practicing lawyers, the situation does not look very decent: hundreds of people, with significantly fewer grounds for criminal prosecution or serving real punishment, are in the colonies. It creates the conditions under which this gentleman feels so "calm and secure" raises questions. We all know well that the key public complaint about the Russian law enforcement and judicial systems is selectivity in making decisions and sentences. The current situation with Navalny Unfortunately, this selectivity confirms, "- said Alexandrov.
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