CC BY
16
Serebrennikova A. V.,
Doctor of law, Professor of criminal law and criminology Moscow state University. M. V. Lomonosov
Russia, Moscow Lebedev M. V.
Postgraduate student, Department of criminal law and criminology Moscow state University M. V. Lomonosov, Russia, Moscow DOI: 10.24411/2520-6990-2019-10697 SOCIAL AND LEGAL ISSUES OF ASSESSING THE JUSTICE, ADEQUACY AND EFFECTIVENESS OF PUNISHMENTS FOR A TERRORIST ACT AND OTHER CRIMES RELATED TO TERRORIST
ACTIVITIES (RUSSIAN ENFORCEMENT)
Abstract:
In the 1990s and early 2000s, against the backdrop of high terrorist activity, when "regrettably, terrorism entered the everyday life of Russian society", the possibility and, often, the need to apply the death penalty to terrorists was widely discussed in the literature. This was argued by the fact that "such criminals cannot be corrected and punished, because there is no punishment commensurate with their guilt". Russian authors wrote about the impossibility of re-educating terrorists with long periods of imprisonment: "it would never occur to anyone to lock a poisonous snake into a cage in the hope that in fifteen years it will turn into, say, a snake or a May bug!" [1]. International practice, such as the fight against the RAF [2]_or the IRA, generally confirms this position. Death sentences to terrorists who staged bombings in the Minsk metro strengthened the position of supporters of this position, although they were sharply criticized in Europe [3].
Keywords: international law; international criminal law; terrorism; responsibility; terrorist activity.
In Russia, the only terrorist who participated in the seizure of a school in Beslan on September 1, 2004, N. Kulaev, was sentenced by the Supreme Court of North Ossetia to life imprisonment in 2006. The public prosecutor formally demanded the death penalty for the accused, which in the conditions of a moratorium was replaced by the maximum possible punishment.
Kulaev did not plead guilty, stating that he had been at the school against his will, but the court found his guilt proved and the terrorist was convicted on the totality of acts: a terrorist act, murder, banditry, assault on the life of a law enforcement officer, hostage-taking, illegal possession, wearing, acquisition of weapons, ammunition and explosives [4].
Also in 2007, the Moscow city court sentenced to life imprisonment three defendants in the case of terrorist attacks in the Moscow metro at the Paveletskaya and Rizhskaya stations in February and August 2004. [5] The defendants were found guilty of terrorism, murder, forgery of documents, illegal possession and storage of explosives and weapons, their production, as well as the organization of a criminal community. Also, the court decided to recover over 6 million rubles from the convicts in the form of moral compensation. It is important that the injured party was satisfied with the punishment. [6].
The quality of investigations and sentences in cases of terrorist attacks is actively criticized in the Russian press and the legal community. In particular, this concerns the investigation of the terrorist attack in the St. Petersburg metro [7].
At the same time, in a number of cases, initially qualified under terrorist articles, the courts pronounce acquittals. Thus, the cassation ruling of the Kuybyshev-sky District Court of St. Petersburg dated July 28, 2010
upheld the acquittal against L., who was accused by the preliminary investigation body of attempting to commit public justification of terrorism, that is, committing intentional acts directly aimed at publicly justifying terrorism committed using the media. However, the crime was not brought to an end, due to circumstances beyond his control. The accusation was based on the testimony of witnesses that L. had a real opportunity to distribute the newspaper "Trudovaya Gatehina", in which, according to the prosecution, there were extremist materials. L. did not deny the intention to distribute the newspaper. The court concluded that L. was only charged with attempting to distribute the newspaper. Moreover, the hypothetical presence of a real possibility of distributing the newspaper, and even the intention to distribute, did not indicate that L. was distributing something. In addition, having studied the article in No. 80 of the newspaper "Trudovaya Gatchina" for 2008, it did not see in it a public justification of terrorism, i.e. recognition of the practice and ideology of terrorism as correct and needing support. Thus, the courts of the first and second instances came to the conclusion that L. could not be found guilty of an offense incriminated to him, since the court did not establish the facts that the author recognized the ideology and practice of terrorism as correct and needing imitation [8].
In recent years, sentences under analyzed articles are mostly related to virtual activity. The guilt is established through comprehensive psychological and linguistic examinations of posts on social networks and the texts of articles in which experts see not only public calls for terrorist activities, but also the transmission of the author's mindsets on such activities, as well as statements justifying terrorist activities. Thus, the actions of guilty parties are qualified under Part 1 of Art.
205-2 of the Criminal Code, as public calls for terrorist activities and public justification of terrorism [9].
Sentences on the provision of financial services to support the activities of illegal armed groups (IAG), the acquisition of firearms and components for the manufacture of home-made bombs for the subsequent commission of serious and especially serious crimes, including terrorist acts, are also widespread. In this part, the courts qualify acts under Article 205.1 of Part 1 of the Criminal Code as financing of terrorism [10].
The most important socio-legal issue of assessing the justice, adequacy and effectiveness of punishments for a terrorist act and other crimes related to terrorist activities in Russian law enforcement is maintaining a public list of convicts for extremism and terrorism of the Federal Financial Monitoring Service, which includes over 7 thousand people previously convicted or suspected of extremist and terrorist articles, whose bank accounts are blocked, and cash, with the exception of pensions, allowances and minimum salary, are frozen.
A list is being maintained to prevent the financing of terrorism. According to official statistics, the list is able to identify and neutralize terrorist groups. Human rights activists criticize Rosfinmonitoring and special services for (not frequent) putting in the list bloggers, journalists, activists, etc. [11] The persons mentioned in the list practically cannot legally find a job.
In the Russian Federation, convicts for crimes of a terrorist and extremist nature are usually held in correctional facilities of strict and special regimes. In 20132018, in the institutions of the penal system (hereinafter
- the penal system institutions) of the Russian Federation, there were, on average, 1,270 people convicted of the analyzed crimes. The general trend shows an increase in the number of convicts (in 2013 - 949, in 2018
- 1702 people.) [12]. Basically, people from the North Caucasus (Dagestan - about 40%, Chechnya - more than 25%), Karachay-Cherkessia - about 6%) and Kabardino-Balkaria are serving a sentence for committing the analyzed crimes. [13].
Most convicts are unemployed or lacking a specific occupation, but with a relatively high educational level, i.e. have no lower than secondary education, which may indicate that they committed crimes deliberately. Repeat offenders make up more than 5% of the total number of convicted for terrorist crimes, about 30% - committed crimes as part of a group.
The staff of the FSIN Federal Penal Enforcement Service notes that the people convicted of terrorist crimes are kept in prisons aloof because the criminal world is hostile to them. Its representatives unsuccessfully try to draw them into their informal groups, imposing their traditions and life according to the code of criminals.
Those convicted of extremism and terrorism, for their ideological reasons, do not seek high informal authority in the criminal environment, but unite in informal groups in accordance with their views, interests, national or religious affiliation, engage in self-training, monitor events in the world and country, actively write out newspapers and magazines, correspond with their associates and supporters, establish contacts with them,
keep in touch with relatives, constantly monitor the observance of their rights and freedom by employees of the administration of correctional institutions, they actively use through them the media and capabilities of the Internet to organize flows of mass appeals in their interests, use the legal opportunities available to them to appeal their actions to supervisory authorities, the prosecutor's office or in court, while simultaneously declaring about the unwillingness to comply with the requirements of the administration staff, as they consider them to be representatives of the state, which, in their opinion, condemned them illegally. The refusal to fulfill the legal requirements of the administration staff of correctional institutions leads, as a rule, to penalties for convicts, placement in a punishment cell, cell-type premises, and subsequently to transfer by court decision to prison conditions of serving a sentence for violation of the established procedure for serving sentences in correctional facilities of general, strict or special regime.
There are no professionals specially trained in the penal institutions to conduct a dialogue with this category of prisoners, as well as their friends and relatives.
Serving a sentence is not the single measure of the state. It is important to establish mandatory administrative supervision of persons who are being released or having been released from places of deprivation of liberty, who have an outstanding or unexpunged criminal record for committing grave and especially grave crimes of a terrorist and extremist nature.
The main purpose of administrative restrictions on a supervised person is to prevent the continuation of unlawful activities, the resumption and establishment of criminal and other ties, and the possibility of committing offenses at a certain time and in certain places. Given the high degree of danger to society and the state of such convicts, for conducting individual preventive work it is advisable to establish administrative supervision without additional conditions, including in the process of serving their sentences regardless of their behavior. In essence, it is a question of creating, following the model of the United States, a probation service [14] within the framework of restorative justice mechanisms for the social and psychological support of persons released from prison.
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