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Monday, October 24, 2016

Instructions for the informer: in the “Spring package” is hidden another bomb

“Anti-terrorism package” of laws from day to day can be signed by the President. A product of the collective creativity of the Security Council, the Deputy of the state Duma Spring and Senator Ozerov contained so many odious things that remained almost unnoticed the suggestion to add to article of the criminal code “failure to report a crime.” It is formulated so that the charge it will be possible to get even for what just surfing the web.

photo: Alex geldings

A similar article existed in the USSR law “On criminal responsibility for state crimes” and the Penal code. Operated both papers until the entry into force of the criminal code 1997. Only the list of crimes for failure to report which was punished before, was broader and the sanctions tougher.

In all the Union republics could get up to three years of imprisonment, if not reported that someone changes the Homeland, engaged in espionage, terrorism, involved in anti-Soviet organizations, or printing fake money.

And in the Russian Republic to go to prison and for failure to report murder, rape, robbery, theft of state property or weapons, hijacking, drug trafficking and radioactive substances, and even about what someone received or gave a bribe.

The authors of the bill, which last week approved by the Federation Council, copied the legislation of the Soviet period only partially.

Article 205.6 involves criminal liability for non-reporting of crimes by the so-called “terrorist” articles of the seizure of hostages, hijacking aircraft or vessel or railway part, on unlawful handling of radioactive substances and about the crimes connected with authority: the attempt on the life of the public figure, violent seizure or retention of power, armed rebellion by attacking people or institutions that enjoy international protection. The minimum penalty for failure to report a crime, the penalty to 100 thousand rubles, the maximum is imprisonment for one year.

The secret is under threat

Under the new law, from liability for misprision of felony is waived for spouses and close relatives. Not surprising, because otherwise it would be a violation of the 51 articles of the Constitution.

Interestingly, the Criminal code of the RSFSR was one exception: do not report the crimes could the priests, if they learn about them in confession.

On the one hand, to prescribe such subtleties in “anti-terrorist package” made no sense. In theory, the same 51 article I of the Constitution says that the exemption from the duty to testify may be established by Federal law.

The mystery of confession, for example, are protected by the law “On freedom of conscience and religious associations, trade secret law trade secret and attorney-client privilege by the law on advocacy. And in the article 36 of the Criminal procedure code outlines the range of persons who can give testimony: judges, jurors, lawyers, Ministers, state Duma deputies and senators, officials of the tax authority.

On the other hand, in practice these norms are not always respected. “The lawyer, even if he learns something new, is not obliged to inform the consequence, it follows from the code of criminal procedure, says lawyer Sergei adamsin. But if this information wants to get prompt service or the investigator, they will conduct a search of a lawyer, this is not a rare practice.

So, according to the Commission on the protection of the rights of lawyers, in the last two months, the searches took place at the three lawyers. And to Nikita Tarasov and Marina, Midges police raided without a prior court decision, despite the fact that according to the decision of the constitutional court is the only basis for the search of the lawyer (in the judgement of the constitutional court referred to its exceptional necessary). According to Midges, the investigators of the RCDS and field investigators of management of FSB searched legal files of its clients and photographed them on the phone.

“For example, the suspect tells the lawyer that worked with such a person,” explains adamsin. — If an online service or the investigators during the search he received these data, they can hit the people about whom said the suspect”. It turns out that these people may prosecute for failure to report.

Authenticity is at the mercy of

The main problem of the rule of not informing much of that is left to the mercy of the enforcers. From the text of the article implies that the penalty for not informing about people who are “known information” are preparing, committing or have committed a crime. At first glance, everything is clear, and the second — there are questions. What is “preparing a crime” and “known information”? How this will be applied in practice?

Sergey adamsin notes that the concept of “preparation for a crime” is vague and difficult to prove. But the definition, at least in some form exists in the Criminal code (article 30 of the criminal code).

The concept is “known information” can be interpreted in different ways. No explanation in the law there, so we can only guess what is meant by the legislators.

According to the lawyer Dmitry Dinze, there can be two interpretations. Can refer to either information that is simply known, for example, that a terrorist attack. Then the prison gets everyone who the attack was seen and not reported it.

Or refers to information on the reliability of which the man knew, but still didn’t report it to law enforcement. Then the prison gets only those who knew exactly what the attack or what happened is a terrorist attack, and, despite the “known information”, did not report it. “That’s different”, — said Dinze.

As a result can prove that any reliable information? Or that the citizen something authentically know and not reported?

That person knew about the crime, you can say, for example, some evidence in his apartment or information taken from a technical or billing: you can see who, when and where called by the user.

“When Billings best result, they apply them — said adamsin. — Akhmetov, for example, billing says he was in St. Petersburg, not in Moscow, they this billing does not take into account”. According to investigators, during a gathering in support of Navalny on July 18, 2013 at the Manege square, Mr Akhmetov, “the policeman grabbed by the shoulder straps”. The investigation has refused to attach to the case file a notarized Protocol of inspection of the laptop which proves that on 18 July 2013 at 20.00 Akhmetov talked to my mother on Skype in St Petersburg. The arrest, according to investigators, occurred at 19.50 in Moscow.

“Let’s see how to act these rules when using our C-enforcers, — says Sergey adamsin. — Before to accept the law, it was necessary to solve the issue of trust in law enforcement and their professionalism. I because of what the enemy is in immature hands to give such a weapon? Because it can shoot in the arm and in the leg and in the face of him who gave and him who just happened to be passing”.

In what situations you can get under the law

To make it clearer what constitutes a new article of the Criminal code, I simulated a few situations and asked experts to assess how they could work article on “failure”.

Situation 1. Failure to report vs. false message

Let’s say you are riding in the bus and hear the military talking on the phone that he was going to blow something up in the square. You don’t know that he was joking or speaking seriously. Call the police and report the crime. After many checks, it turns out that the military interacted with the brother, it still was not a good joke. What’s next?

“Here I do not see, — says Sergey adamsin. In such cases, law enforcement practice perfected.” According to the lawyer, most likely the consequence will establish that you are “honestly mistaken”, and let go of the world you didn’t know that this message is false.

But you can get there in another article — “false report about an act of terrorism” (207 criminal code). So, in early June, Moscow police announced the arrest of a taxi driver, who told that he heard from his passengers about the explosion, which is at one of the stations. During the inspection, this information was not confirmed, and were detained the driver. The man was released under recognizance not to leave, and now he faces action from the penalty to 200 thousand rubles up to three years of imprisonment. According to police, the story of the explosion at the railway station the taxi driver was up for a joke, his message was false.

Situation 2. You witness

One of the most high-profile trials related to terrorism — the case of Ukrainian filmmaker Oleg Sentsov and anarchist Alexander Kolchenko. According to the indictment in April 2014, Sentsov was created in Crimea a terrorist community, whose members had committed two terrorist attacks in Simferopol: the arson of the doors of the office of the Russian community of Crimea and the Windows of the local branch of “United Russia”, and also prepared the bombings of the Lenin monument and the Eternal flame.

It is noteworthy that the original case of arson was opened under article “Deliberate destruction or damage of property” and then reclassified heavier — terrorism.

For example, you saw how to light up a building or someone lights it, but didn’t report it to law enforcement. What’s next?

You can go under the heading of not informing about the crime. “We are now all working, — said the lawyer Dmitry Dinze. Under various articles down the crazy accusations and actions.” The lawyer believes that the new Criminal code is very convenient for the operatives and investigators to recruit people who will work on the investigation. In other words, before the man could refuse to be a witness for the prosecution, and now he could accept under the threat of criminal prosecution.

Situation 3. Sit down the entire Internet?

Under the article on terrorism can be accessed over the Internet activities. In the report of information-analytical center “Sova” has information about four such cases.

For example, Muscovite Vyacheslav Shabanov 2013 m was sentenced to 3 years and 4 months imprisonment for the systematic publication of texts and videos aimed at incitement against non-Muslims and containing appeals to terrorist activities.

And Maria Shabalin was sentenced to 5.5 years for fundraising to help the under arrest “Mujahid” and posting videos of relevant content.

Suppose you saw a transcript Shabanova or Shabalino or without a second thought left it under review and to anybody did not tell about this. What’s next?

Maybe you will fall under the heading of failure, and maybe not. “Where did the ordinary citizen know that some post promotes terrorism? — says head of information-analytical center “Sova” Alexander Verkhovsky. — Nobody really knows what should be punished according to the articles of statements, including at 205.2, and that — no.

“Here is an interesting moment,” said Sergei adamsin. — Say you saw the post on which criminal case is brought. Saw it all, and all must report. It turns out this kitchen of the Soviet period: someone managed to run first and report, and all the rest — the whole Internet going down for medonos”.

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