Доклад на русском языке: Законопроект «без подвоха». Как статья 267 УК стала «митинговой»
After the protest actions on January 23 and 31, 2021 in support of Alexei Navalny, at least 23 people became involved in cases initiated under Article 267 of the Criminal Code on «blocking transport communications». More often, only Article 318 of the Criminal Code on the use of force against a representative of the authorities was used (we told about it in detail earlier).
The application of Article 267 to the participants of the protests became possible from January 10, 2021 — it was then that the changes in the Criminal Code initiated by the deputy from United Russia Dmitry Vyatkin began to take effect. In December 2020, during the rapid consideration of the bill in the State Duma, Vyatkin assured that the article would not affect the protesters. In the first months of 2021, more cases of «blocking transport communications» were initiated than in the previous ten years.
Until recently, Article 267 of the Criminal Code provided for punishment only for putting out of commission transport vehicles or communications, or for blocking roads if this led to serious harm to human health or major damage.
The Article was applied in exceptional cases. According to the data of the Judicial Department of the Supreme Court, processed in the framework of the project Dostoevsky.io, from 2009 to 2020, 16 people were convicted under this article. Three more cases were dismissed for reconciliation of the parties. We found the texts of some of the verdicts.
After the protests on January 23 and 31, cases under the first part of Article 267 of the Criminal Code were initiated in at least six regions. Most of the suspects, eleven people, were in Primorsky Krai, where a criminal case was initiated on the day of the demonstration; nine persons of interest in the Chelyabinsk region; two, presumably, in St. Petersburg; at least one in Moscow. In addition, the media reported similar cases in Samara and Bryansk. As of May 18, no information was given about the accused in these cases. Chelyabinsk cases are connected to the demonstration on January 31, the rest are connected to the demonstration on January 23.
In Vladivostok, according to the Investigative Committee, unidentified persons from the local Navalny office and its coordinator, Ekaterina Vedernikova (Ostapenko) persuaded residents to block the city’s road network via the Internet. Among the accused is Alexey Gasyuk, who allegedly colluded with them, being present at the demonstration on January 23 on Svetlanskaya Street. The charge alleges that Gasyuk was in a mass gathering of people who held hands and obstructed traffic. According to the investigation, Gasyuk prevented the ambulance crew from getting to a seriously ill person, and also by his aggressive behavior created a «real threat to the safety of citizens» and «a real threat of damage to property worth RUB 50,000 <… > located in the store L’Etoile». A similar charge was brought against another resident of Vladivostok. The resolution stated that the roles were assigned to «unidentified persons». According to it, they were supposed to provoke the people to go out on the roadway. The lawyer from OVD-Info Polina Sidelnikova, representing Gasyuk, noted that on the video recordings provided by the investigators, it is clear that the authorities have blocked the road even before the protesters had gone out to the roadway.
In Moscow, Gleb Maryasov, a member of the Libertarian Party of Russia and a «Civil Society» activist, was accused of planning, together with «unidentified persons», on January 23 to direct people to the roadway, which led to a threat to their safety. According to the investigation, Maryasov’s actions obstructed the movement of three buses, which allegedly could lead to " their damage, especially in the case of ensuing road accidents, that could cause harm to health or death of individuals.» The damage to Mosgortrans was estimated at 1.2 million rubles. Maryasov himself stressed that the parts of the accusation contradict each other: if the buses have stopped moving, they would not have been able to harm people.
Subsequently, the Moscow Metro was added to the list of victims. It estimated the damage from the additional load on the weekend at 1.5 million rubles. The victims are also two bus drivers who, according to the indictment, "really feared for their lives and health, for the lives of passengers <...>, as well as for the property — the bus." Maryasov was detained on the way out of the special detention center after a 30-day administrative arrest on charges of organizing an uncoordinated action (Article 20.2 of the Administrative Code) for the same events. He noted that according to the Constitution, he cannot be convicted again. As a preventive measure, Maryasova was banned from undertaking certain actions: he was forbidden to leave the apartment from 20:00 to 08:00, to use the Internet without the permission of the investigator, to attend rallies and mass events.
On the day of the action on April 21, the portal «Bryansk Today», with reference to the regional department of the Ministry of Internal Affairs, reported about the case initiated on the eve of the protests on January 23. «The protesters gave in to the appeals of provocateurs and swarmed to the roadway.» «As a result, the movement was blocked on several central streets, " the note says. The publication «Bryansk. NEWS» described these events as following: «On January 23, the first rally of supporters of the opposition leader Alexei Navalny took place this year.» It was announced on Lenin Square, but the police closed off the square. The participants of the rally walk, which was not coordinated with the authorities, decided to move to the Mound of Immortality. People tried to walk on the sidewalks, but on the causeway, between the office of Rostelecom and the House of Life, in the middle of a sidewalk a tractor was «forgotten». «Citizens had no choice but to jump down on the roadway to get around it».
In November-December 2020, several restraining bills were introduced to the State Duma, which included, among other things, new restrictions on public events.
Among them, there were the amendments to Article 267 of the Criminal Code, which were submitted to the State Duma by Dmitry Vyatkin on December 16. The amendments were adopted swiftly, despite criticism from the Supreme Court. On December 22, the State Duma adopted the bill in the first reading: it was supported by 296 Members of Duma and 85 voted against it. On the next day, December 23, the law was adopted immediately in the second and in the final, third, reading. It was approved by the Federation Council on December 25 and signed by the President on December 30. The Article came into effect in a new version as of January 10, 2021.
This is how it became possible to punish for deliberate «obstruction of the movement of vehicles and pedestrians» if this action created a threat to life, health, and safety of citizens, or property damage. The new version of the Article included ambiguous wording, and its effect was significantly expanded:
The first part of Article 267 of the Criminal Code now provides for punishment in the form of a fine from 100 to 300 thousand rubles, up to 240 hours of compulsory work, and up to a year of hard labor or imprisonment. The second and third parts of the article in the new version envisage a more severe punishment for the same actions that resulted in negligent infliction of minor or moderate harm to health.
Protests are often associated with the blocking of traffic. Road blockage can be a deliberate action to draw attention to a problem or to prevent certain actions, such as preventing the passage of garbage trucks or construction machinery. But it is often caused by the actions of the authorities that block or restrict the movement of protesters. And obstruction of the pedestrian traffic is also possible if protest participants are staying on the sidewalks.
Even before the amendment of Article 267 of the Criminal Code, alleged interference with the pedestrian and transport traffic during protests became a reason to prosecute their participants. At least four articles of the Code of Administrative Offences were used for this purpose:
Articles 20.2 and 20.2.2 of the Administrative Code are the most common «protest» articles. Their use is not necessarily associated with traffic interference, the reason may be, for example, damage to the lawn, violation of sanitary rules, or the «non-approved» status of the event.
Part 6.1, included in Article 20.2 of the Administrative Code in 2014, is now one of the most common charges following the protest actions. By March 4, the websites of Russian courts published information about more than 3,200 cases under Part 6.1 of this article, which were submitted to the courts since January 17, 2021 — since the beginning of mass demonstrations in January-February 2021. This article was also actively applied in 2020 to the protesters in Khabarovsk who defended the former governor Sergei Furgal. In St. Petersburg, reports were massively drawn up on the participants of the protests of January-February 2021 using the first part of Article 20.2.2 of the Administrative Code: according to the joint press service of the courts of St. Petersburg on February 24, more than one and a half thousand such cases were received.
Articles 12.30 and 20.18 of the Administrative Code are less frequently used against participants of public events and, unlike the other two, do not provide for punishment in the form of administrative arrest.
Nevertheless, the participants of the protests have also been charged with interfering with the traffic flow of transport or pedestrians under these articles.
Moreover, in addition to article 267 of the Criminal Code, there are known cases of at least two more criminal articles being applied in similar circumstances:
Cases under these articles were initiated in the wake of the January 23, 2021 protest in Izhevsk.
Apart from administrative and criminal cases, there is a risk of civil lawsuits that may be brought against the alleged organizers.
During the discussion of the bill in the State Duma, the deputies who opposed the amendments (among them ― Oleg Shein, Olga Alimova, Sergey Ivanov, Igor Molyakov, Alexey Kurinny), linked them with the fight against the oppositional protests. It was suggested that the reason to introduce the amendments was the summer mass protests in Belarus and the demonstrations in Khabarovsk that had been going on for six months at that time.
«If this law had been implemented, say, a few months ago, how many people, in your opinion, would it be right to initiate criminal proceedings against in the hero-city of Khabarovsk?» — Oleg Shein, a deputy from the Fair Russia faction, asked the authors of the bill.
The chairman of the State Duma, Vyacheslav Volodin of United Russia, answered Oleg Shein’s question: «Colleagues, first of all, this question is wrongly addressed, and secondly — it is beside the point».
Moreover, the deputies have repeatedly requested that the bill’s author provide facts confirming the need to introduce the amendments. However, neither during the discussion nor in the explanatory note to the bill, in which the initiators of the amendments usually explain their necessity, Vyatkin could not present these facts. In its statement regarding the proposed bill, the Russian Supreme Court stressed out that the initiator had not provided any reasoned justification, nor «any objective data indicating the insufficiency of the existing legal regulation», which is per se a violation of the regulations.
«This bill does not address any hot-button issues as they say when something has happened and we make the draft law, » commented the author of the draft Dmitry Vyatkin during the consideration of the amendments in the first reading. «This bill has been developed for quite a long time. Everything is being introduced at once just because the autumn session ends, there are no other reasons for that. We need to do that so that we can continue working on other draft laws. There is no hidden agenda, believe me. It is a purely legal issue. We are just filling a legal gap, nothing more.»
Even the devastating statement of the Russian Supreme Court, which noted that the «negligent infliction of minor bodily harm does not constitute a criminal offense under the effective legislation» did not prevent from adopting the law. In addition, the Russian Supreme Court recalled that earlier Article 267 of the Russian Criminal Code established criminal liability for causing moderate bodily harm by negligence. In December 2003, the respective actions were decriminalized within the framework of the reform on the humanization of the criminal legislation. «Currently, it is being criminalized back only because there have been Khabarovsk protests, Minsk protests, » said Sergei Ivanov, a deputy from the LDPR, at the discussion in the first reading. «These repressive laws are made solely because they are afraid that we, God forbid, will have the same situation as in Belarus.»
«It is clear that all this is aimed either at stopping of those who organize certain actions, gather together, express their opinion, or at having an additional preventive impact on them. But the laws, that you adopted earlier, actually deprived [people — OVD-Info] of the right to legally, publicly gather <…> and express their point of view, ” concluded the deputy from the Communist Party of the Russian Federation Alexey Kurinny when considering the bill in the final reading.
In its statement to Vyatkin’s bill, the Russian Supreme Court noted that the actions on blocking transport communications indicated in the said bill should entail the administrative liability (Article 20.18 of the Administrative Code) and the need for their criminalization has not been proven.
The author of the bill, in his turn, argued that the administrative and criminal liability will be sufficiently differentiated since the presence of intent is required to initiate a prosecution under criminal law. «Naturally, violations of traffic rules, violations of the rules of construction and installation works, loading and unloading of goods, and so on, and so on, which also led, for example, to the blocking of overpasses, bridges, sidewalks and other communication routes, they will be qualified according to the relevant norms of the Code of Administrative Offenses <…> and they will not entail criminal liability, » Vyatkin said during the discussion of the amendments in the first reading. «Any person who just stood in the middle of the road, made it with intent, as a thinking being, ” said Oleg Shein, a deputy from the Just Russia Party. «We even have a biological species called homo sapiens.»
The deputies that opposed the bill also noted the vagueness of the wording and expressed fears that the new edition of this article of the Russian Criminal Code could be easily applied when persecuting the participants of street actions (instead of bringing them to administrative liability).
Vyatkin replied: «Colleagues, for understanding, that is just for the purity of relations. In our country, violations of the procedure for holding public mass events, such as rallies, marches, demonstrations, which led to the closure of communications, roads, and so on, are qualified under clause 6 of Article 20.2. But this is a completely different matter, it is an administrative liability. If we are talking about a deliberate blocking that caused bodily harm, it is a completely different thing. What do the rallies have to do with it?»
Although the author of the law assured that the amendments to Article 267 of the Criminal Code do not relate to public events and blocking of transport communications, the relevant administrative articles (articles 20.18, 20.2.2 of the Administrative Code and part 3 of Article 20.2) in December 2020 were adjusted with the words «if these actions do not contain a criminal offense».
A month later, the police, warning people against participating in the protest campaign, began to remind them of possible criminal liability under Article 267 of the Criminal Code.
Thus, the amendments to article 267 of the Criminal Code not only did not solve the previously existing issue of qualifying the same actions under different articles that significantly differ in the severity of penalties, but aggravated them: the range of articles has become wider, clear boundaries between them are still not made, and the choice of sanctions is left to the law enforcement officer.
The ground for imposing the criminal liability under the first part of Article 267 of the Criminal Code in the new version, is that the action «does pose a threat to the life, health, and safety of citizens or the threat of destruction or damage to the property of individuals and (or) legal entities». The blurry concept of «threat» has replaced the much more measurable concept of «causing serious harm to human health or causing major damage». From what moment the threat comes, what it is expressed in, how serious and inescapable it shall be — the legislator does not specify. This confusion is compounded by the fact that the legislation distinguishes between the concepts of a «threat to life and health» and a «real threat to life and health», and also mentions «direct threat».
In court documents, the concept of «threat to life and health» is often used for dangerous structures and devices, collapsing buildings, poorly functioning elevators, violation of fire safety rules, and since 2020 — also in numerous cases for violation of high-alert regime (under Article 20.6.1 of the Administrative Code)
In the context of public events, there are no clear criteria by which we could distinguish a situation that poses a threat to the life and health of citizens from a situation that does not pose such a threat. This entails a lack of a clear mechanism of proof. As a result, law enforcement state authorities can abuse ambiguity, perceiving it as an opportunity to prove nothing at all.
The courts have not yet passed sentences under the first part of Article 267 of the Criminal Code in the new version, but we can turn to the practice on the article with similar constituent elements of the crime. The Constitutional Court in its ruling on the complaint of Ildar Dadin, who became the first person convicted under Article 212.1 of the Criminal Code on «repeated» violations of the procedure for holding an action, stated that for criminal liability to occur under this article, a person’s actions must entail at least «a threat of harm to the health of citizens, property of individuals or legal entities, the environment, public order». But in subsequent cases, for example, with Konstantin Kotov or Yulia Galyamina, neither the Investigative Committee nor the court considered it necessary to prove the existence of such threat, limiting themselves only to mentioning the presence of harm or the threat of harm.
Thus, to the arsenal of law enforcement agencies, there is another article has been added that allows bringing a person to criminal liability without the need to prove the criminality of its actions.
The amendments did not solve the problem of the lack of responsibility for the counteractions of the authorities, which often lead to restrictions on the movement of both transport and protesting people.
During the early 2021 protests, police restricted traffic in various cities.
In none of these cases did the authorities justify the need to block traffic and were not held accountable for the interference with traffic and pedestrians. Although such proposals are already being voiced:
«Assemblies are as legitimate uses of public space as commercial activity or the movement of vehicular and pedestrian traffic», the OSCE / ODIHR Guidelines on Freedom of Peaceful Assembly state, citing the position of the Special Rapporteur on Freedom of Speech of the Inter-American Commission on Human Rights and the decisions of the European Court of Human Rights.
In general, the ECHR leaves the Council of Europe states with relatively broad limits for the legal assessment of road closures by protesters:
In the case of Kudrevicius and Others v. Lithuania» (Complaint no. 37 553/05) The European Court of Justice dealt with a case in which protesting farmers blocked the highway between Vilnius and Klaipeda in Lithuania for two days. As a result, they were brought to criminal responsibility with a penalty of 60 days ' arrest. The case has led to a legal dispute within the European Court of Human Rights itself. Initially, the ECHR concluded that the application of criminal sanctions requires special justification, since in the case of a peaceful rally, in principle, the use of criminal punishment should not be allowed. The Chamber of the European Court of Justice concluded that the Lithuanian authorities applied disproportionate punishment to the protesters and violated Article 11 of the Convention. Later, the Grand Chamber of the ECHR reviewed this decision. The new ruling said that the protesters' deliberate and serious violation of the legitimate activities of others could be considered «reprehensible.» According to the case-law of the ECHR, «reprehensible actions» on the part of specific demonstrators deprive them of the protection provided for in article 11 of the European Convention. Therefore, the appointment of even a criminal penalty is justified. At the same time, the ECHR clarified that «reprehensible actions» do not deprive the entire assembly of legitimacy, if it is peaceful.
On August 15, 2009, Zoltan Kertveieshshi intended to hold a protest in front of the Budapest prison. He sent a notice to the Budapest Police Department in advance and was refused. According to the decision of the police, the demonstration would significantly hinder the passage of transport to shops on nearby streets, to local landfills, and to the prison itself. In the case of Kertvejeschi v. Hungary (complaint no. 7871/10), the ECHR found a violation of article 11 and concluded that «the authorities prohibited the demonstration on the basis of traffic safety considerations only. In doing so, they failed to achieve a fair balance between the rights to freedom of assembly and freedom of movement» (Kertvejessi v. Hungary, complaint no.7871/10, 4 April 2016, para. 29).
The United Nations takes a more unambiguous position.
Thus, the criminalization of short-term and insignificant obstacles to the movement of pedestrians and vehicles and the practice of applying Article 267 of the Criminal Code is incompatible with the requirements of international law.
To improve the situation, it is necessary to change the laws: to specify the composition of several administrative and criminal articles, to exclude vague concepts and criminal liability for actions without real negative consequences, to eliminate discriminatory attitudes towards participants in public events.
As an urgent measure, even before the legislation changes, it is necessary to adjust the law enforcement practice and restore the rights of the victims.
In addition, the authorities must publicly report if they block sidewalks and roads during public events, as well as justify the measures taken. The actions of the authorities and their influence on the course of actions should be assessed by the court when considering specific cases on the participants and organizers of assemblies.