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DOI: http://dx.doi.org/10.20534/EJLPS-17-2-40-42
Gasanova Luiza Rashidovna, Postgraduate of the 4th Year of the Law Faculty of Dagestanian State University, Russian Federation, Makhachkala City E-mail: luiza.kurbanova.88@mail.ru
Production and distribution of materials that contain appeals to the performance of terrorist activity or justification of terrorism in the Russian Federation
Abstract: Such a characteristic of the objective side of public appeals to terrorist activities as publicity is examined in detail in this article. An attempt is made to define the concept of publicity, as well as to establish its upper and lower quantitative boundaries with the aim to facilitate practical application of Art. 2052 of the Criminal Code of the Russian Federation.
Key words: publicity, terrorist activities, justification of terrorism, appeals to terrorist activities.
It is known that public appeals to the performance performance of terrorist activity, should be estimat-
of terrorist activity and public justification of terrorism represent the objective side of the crime, which is stipulated by the article 205.2 of the RF Criminal Code. However, we think that the objective side of this crime can be presented both by distribution and (or) production of materials that contain appeals to terrorist activity or justification of terrorism (with their subsequent distribution). The designation of the mentioned actions as alternative ones, which represent the objective side of the crime concerned, will automatically solve the issue that arises while determining the subject of the crime, which is stipulated by part 1 of the article 205.2 of the RF Criminal Code and was committed in complicity, and also the crime, which is stipulated by part 2 of article 205.2 of the RF Criminal Code, concerning the matter of who is the author of the material, which contains the signs of crime stipulated by the article 205.2 of the RF Criminal Code; who is the material distributor, editor-in-chief of the publication that released such materials and who is the owner of the news aggregator or blogger that authorized their publication.
So, A. V. Brilliantov thinks that actions of the author of the material, which contains appeals to the
ed as actions of an accomplice [4, P. 450]. Z. A. Shib-zukhov holds an opinion that the author of such materials in this case "should be condemned as an accomplice of the crime... " [5, P. 118-122]. We agree with the latter opinion, because otherwise the role of the author of an article will be too underestimated. Disposition of the article 205.2 of the RF Criminal Code says nothing about the distribution of corresponding appeals. This suggests that text writing or preparation of any materials, which contain signs of the crime considered, represent one of the stages of its objective side, and, consequently, the creator of such materials is an accomplice of the crime together with a person, who is engaged in their distribution. Also the preventive function of the article 205.2 of the RF Criminal Code will not be enough efficient in this case, because the punishment for complicity will be less strict, which alleviates the guilt of almost the main "plotter" of the crime, while he/she deserves a more severe punishment.
A similar situation occurs during commission of the qualified composition of this crime — commission of this act with the use of mass media or electronic and information-telecommunication
Production and distribution of materials that contain appeals to the performance of terrorist activity.
networks, including "Internet". However, here we deal with the matter of qualification of the actions, performed by the author of article (material) and the person, who gave the relevant permission for publication or broadcasting.
Various scientists in the field of criminal law have different views on this issue. For example, A. V. Bril-liantov says: "In this case, giving permission for publication will be regarded as commission of the objective side of a crime... The actions of the author of the material should be regarded as actions of an accomplice" [4, P. 451]. V. I. Radchenko suggests in his turn: "The heads of the mass media agency, that published corresponding materials, bear responsibility as accomplices in commission of the crime" [3] Z. A. Shibzukhov also regards the actions ofboth persons as "joint participation in commission of the crime" [5].
If the relevant material (text, articles, etc.) was absent, there would be nothing to distribute, and, therefore, the crime would not be committed. That is, production of relevant material is a part of the objective side of public appeals to the performance of terrorist activity or public justification of terrorism with the use of mass media or electronic and information-telecommunication networks, including "Internet". It means that the author of the material, which contains public appeals to the performance of terrorist activities, is the crime committer, and the person, who gave permission for publication of the relevant material, is an accomplice.
In accordance with paragraph 1, item 20 of the Resolution of Plenum of the RF Supreme Court "About some questions of court practice on criminal cases about terrorist-oriented crimes": "public appeals to the performance of terrorist activity (part 1 of the article 205.2 of the RF Criminal Code) should be regarded as a completed crime from the moment of the public proclamation (distribution) of at least one appeal regardless of the fact whether it was possible to encourage other citizens to perform terrorist activities or not". That is, directly the
distribution of materials, as well as their proclamation, which contain appeals to the performance of terrorist activity or justification of terrorism, is designated as criminal; however there is no word about production of such materials. However, we think that if all possible acts, which represent the objective side of this crime, were enumerated in part 1 of article 205.2 of the RF Criminal Code, there would be much less controversial issues in practical application of this article.
It should be noted that the judicial-investigative practice, regarding the editor-in-chief of the printed periodic publication, in which the materials of criminal character according to the article 205.2 of the RF Criminal Code were published, as crime committer, estimates the role of author of such materials quite ambiguously. Let us consider the following examples from practical experience:
Mukhin Yu. I., being editor-in-chief of the newspaper "Duel", included the article by Dubrov "Death to Russia!" into the edition No. 27 as of July 4, 2006 and authorized it for publication with subsequent replication and distribution on the territory of Russia and thus made public appeals to the extremist activities.
Mukhin Yu. I. was condemned by the sentence of Savelovsky district court of Moscow City as of June 18, 2009 under part 2 of the article 280 of the RF Criminal Code.
In this example, the court, having absolutely fairly convicted the newspaper's editor-in-chief as the crime committer, provided no criminal-legal assessment of the article author's actions. However, in our view, the role of article author is huge, because he / she is exactly the one, who appeals to readers. If the author's actions did not take place, the crime would not be committed.
Here is the next example:
The court established that in the period from February to April 2006 the newspaper "Provintsialnye vesti" (Provincial news) with Shmakov. V. as editor-in-chief published the articles by Dilmukhametov A. in the edition No.1 (276) for April, 2006, in the edition No. 5
(280) for April, 2006 and in the edition No. 6 (281) for April, 2006, which according to the psychological-linguistic expertise contain public appeals to the performance of extremist activities, active non-observance of legal requirements of authorities' representatives, which encourage citizens to perform forcible changes of the fundamentals of the constitutional system and violation of integrity of the Russian Federation, the violent seizure of authoritative powers of the President of the Republic of Bashkortostan.
By the sentence of Kirovsky district court in Ufa city Shmakov V. and Dilmukhametov A. were found guilty of commission of the crimes, which are stipulated by part 2 of the article 280 and part 3 of the article 212 of the RF Criminal Code.
In this example the court fairly convicted both the author of articles, which contained appeals to the
performance of extremist activity (including terrorist), and the newspaper's editor-in-chief, who gave permission for their publication, as accomplices of the crime.
Considering the ambiguous position of executors of law on this matter, we think that designation of distribution and production of materials that contain appeals to the performance of terrorist activity or justification of terrorism in part 1 of the article 205.2 of the RF Criminal Code as independent actions, which represent the objective side of this crime, will not only alleviate the practical application of this article and clarify the examined situation, but also will strengthen the preventive function of this article, thanks to the fact that it will eliminate the possibility of avoiding the criminal responsibility of persons, who are actually guilty.
References:
1. The Council of Europe Convention on the prevention of terrorism, adopted in Warsaw on May 16, - 2005 // Legislative Assembly of the Russian Federation. - 2009. - No. 20. - Article 2393.
2. Criminal Code of the Russian Federation as ofJune 13, - 1996. - No. 63. - Federal Law // Legislative Assembly of the Russian Federation. - 2003. - No.25. - Article 2954.
3. Comments on the Criminal Code of the Russian Federation (Editor-in-chief V. M. Lebedev) - the 9th edition, revised and updated. - M: publishing house "Yurait", - 2010.
4. Russian Criminal Law. Special part: manua l / edited by I. E. Zvecharovsky - M.: Norma: INFRARA - M, -2010. - P. 450-451.
5. Shibzukhov Z. A. Criminal liability for public appeals to the performance of terrorist activity or public justification of terrorism: Thesis... of candidate ofjuridical science - M, - 2012. - P. 118-122.
6. The Resolution of Plenum of the RF Supreme Court as of February 9, - 2012. - No. 1 "About some questions of court practice on criminal cases about terrorist-oriented crimes" // Legal-reference system "Consultant Plus".
