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Tuesday, March 20, 2018

Dading will be released, but “Dudinsky” article will continue to plant

The constitutional court declared article of the Criminal code, which for 2.5 years convicted Ildar Dading not inconsistent with the Constitution, but written so disgusting that it allows for unconstitutional application. Case Dading will be reviewed. Lawyers for the activist called the decision “good.”

photo: Alex geldings

In August 2016 the complaint to the constitutional court was filed by Ildar Dading from the colony. He argued that article 212.1 of the criminal code, which allows for any “repeated” (3 times in six months) violation of the procedure of organizing or holding any mass actions or fined for the sum from 600 thousand roubles to 1 million roubles, or sentenced to compulsory, penal or forced labor, and even put behind bars for up to 5 years, contrary to the 11 articles of the Constitution. The basis for excitation of criminal case against the Dading were three fine of 10-15 thousand rubles for participation in the two pickets and a rally on Manezh square. The rally was peaceful, but inconsistent.

“The case of the Dading” the constitutional court considered on 24 January 2017. By February 10 the decision of 43 pages was ready: the Chairman of the COP Valery Zorkin read it almost two hours.

Main conclusion is that the legislator had the right to introduce criminal liability for citizens who repeatedly administratively punished for violating the rules of organizing and holding mass events. Article 212.1 of the Criminal code will remain, and it is, in the opinion of the judges constitutional.

In decision KS it is recalled that in recent years the criminal code has several articles with the so-called “administrative collateral estoppel”, the punishment for the fact that the citizen has violated the Code of administrative offences, were punished for it, but not corrected. Criminal liability, for example, threatening drivers, deprived of rights for drunk driving, but continued to insist on their right to drive drunk, repeatedly committed the beatings, the repeated penetration of the protected object, repeated petty theft…

But at the same time the decision of the constitutional court refers to the significant restrictions of the scope of article 212.1.

First, to bring a case it is possible only in case if the repeated violation of order of holding a picket or rally caused or could really cause harm to human health or damage anyone’s property threatened public safety. If the violation was “purely formal”, it could not be viewed “as representing criminal social danger”.

The judges drew attention to the article 212.1 of the criminal code threatens three of any administrative penalties received under article 20.2 of the administrative code, which consists of 8 parts, and it they are talking about violations of varying severity — from simple participation in uncoordinated action or organization of such action in close proximity to a nuclear installation. And punishments in the administrative code different from 10-15 thousand rubles fine to 30 days in jail and millions in fines.

Second, now taking advantage of the carelessness of the text of the article, law enforcement agencies and courts believe that to find a person guilty even in that case, if the courts ‘ decisions on administrative penalties appealed against and has not yet entered into force. “That this interpretation in the Dading adhered to by all involved courts,” said the COP, “at odds” with the constitutional principle of presumption of innocence.

Third, court decisions in administrative cases “cannot have an undeniable character” in criminal proceedings, especially because administrative proceedings are often considered without a lawyer.

Finally, from the solution of KS, it follows that to be deprived of liberty under article 212.1 is possible only in cases, if the violation of the rules of the stock caused “substantial harm to the protected constitutional values.” By the way, according to the severity of repeated violation of any rules of the meeting equated to murder the mother of a newborn, incitement to suicide, violence against a representative of authorities, the arbitrariness with violence, although for other crimes with administrative preclusion maximum punishment, as a rule, or related to, the detention or the maximum period not to exceed 1-4 years.

Court decision “cannot be the attitude of a person to the government policy and critical of his relationship to the actions of the authorities. All citizens are equal regardless of political or ideological beliefs,” the judge.

A new understanding of article 212.1 of the criminal code is mandatory for all authorities. The Federal legislator is entitled to amend the text of the article changes, the practical effect of the Foundation of criminal responsibility and punishment. Judicial decisions in respect of Ildar Dading at variance with the interpretation of the COP, “subject to revision” reads the verdict.

The lawyer Kseniya Kostromina, one of the representatives Ildar Dading, so appreciated in conversation with journalists the decision, the COP: “It’s not exactly lose — I would even say that the court’s decision is good.”

Now Dading case is before the Supreme court. In the revision of the given decision, the COP, the chance to be released from the activist good: he was sentenced to imprisonment for three violations provided for by part 5 of article 20.2 of the administrative code, which punishes violation of the procedure of holding of shares that is not associated with causing any harm or damage.


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