Distinguishing the rehabilitation of Nazism from related crimes: theory and practice

Bagandova Leila Zakirovna ORCID: 0000-0001-5060-9015 Junior Researcher of the Scientific and Organizational Department; Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Moscow, Znamenka str., 10, room 207 leyla.bagandova@mail.ru Other publications by this author

In the preamble to the Constitution of the Russian Federation, the basic values of its adoption by the multinational people of the Russian Federation are named, in particular, honoring the memory of ancestors who transmitted love and respect for the Fatherland, faith in goodness and justice (The Constitution of the Russian Federation (adopted by popular vote on 12.12.1993 with amendments approved during the all-Russian vote on 07/01/2020) // Rossiyskaya Gazeta, 2020 No. 144(8198). In pursuance of the above provision, in 2014, a new corpus delicti "Rehabilitation of Nazism" appeared in Russian criminal legislation. The relevance of this study is determined by the realities of the complex international economic and political situation, the gross falsification of historical facts and the rewriting of history, when the presence of this composition in the criminal legislation of the Russian Federation is an important way to counter crimes against the peace and security of mankind. In the presence of a number of related crimes, it seems necessary to develop criteria for their differentiation for a more correct application of the criminal law. L.V. Inogamova-Hegai, A.Y. Ivanov ^[1], E.N. Trikoz ^[2], A.G. Kibalnik ^[3], A.A. Turyshev ^[4], C.V. Rozenko ^[5] and others also dealt with this problem.

The appearance of the norm on the rehabilitation of Nazism in criminal legislation has caused a lot of controversy. The point of view has been expressed in the literature that the norm in question is superfluous and "is an example of excessive competition of criminal law norms" ^{[6, p. 16]}, since the listed acts are already provided for by other norms of the current Criminal Code devoted to extremist activity.

The acts provided for in part 1 of Article 3541 of the Criminal Code of the Russian Federation should be distinguished from the provisions of Article 282 of the Criminal Code of the Russian Federation. These types of crimes should be considered related, since Nazism is a manifestation of extremism and has a common legal nature with it ^{[7, pp. 586-589]}, and they are also similar in form of expression. The doctrine contains the position that despite the similarity, these norms cannot be considered as general and special, although acts of rehabilitation of Nazism are still capable of inciting hatred or enmity, as well as humiliating human dignity on the basis of belonging to a particular social group. Acts of rehabilitation of Nazism may also call for hostile actions against groups of people united on the grounds of race, nationality, language, and origin.

The authors, who adhere to this point of view, propose to qualify an act that simultaneously contains the features of Articles 282 and 3541 of the Criminal Code of the Russian Federation for a set of crimes. At the same time, the final qualification of actions that fall under the signs of rehabilitation of Nazism "will largely depend on the conclusion of a forensic linguistic examination, which will either establish linguistic and psychological signs of inciting national discord, inciting hostility and hatred, humiliating the dignity of a group of persons singled out on a certain basis, or come to the opposite conclusions" ^{[8, p. 122-123]}.

Previously, the prevailing opinion was that support or denial of Nazi crimes in itself contains signs of inciting hatred and hostility and humiliation of the dignity of the Jewish people. This view should have changed with the consolidation of norms in the Criminal Code specifically qualifying such behavior as a crime. So, if a person approves of Nazi crimes without subsequently expressing an opinion about belonging to a certain group (for example, on ethnic or religious grounds), then this act should be qualified under Article 3541 of the Criminal Code of the Russian Federation. If, in addition to approving a Nazi crime, a negative characteristic of the group is expressed on specific grounds, the deed must be additionally qualified under Article 282 of the Criminal Code of the Russian Federation (if committed repeatedly, or for the first time according to qualifying compositions). At the same time, for the correct action of the Criminal Code, it is necessary "to pay attention to the degree of an affirmative opposite assessment of the criminal facts established in the verdict of the Nuremberg trial in accordance with the concepts of denial and recognition in the psychological sphere, if the act simultaneously contains signs of the corpus delicti provided for in Articles 282 and 3541 of the Criminal Code." The same applies to "grounds for public criticism of the verdict of the Nuremberg trials and the activities of the Soviet Union during World War II on grounds of gender, social, racial, national, religious, linguistic affiliation or attitude to religion."

Having analyzed the above positions, we came to the conclusion that their adherents believe that in cases where acts of rehabilitation of Nazism "by themselves" contain signs of acts specified in "extremist" articles 280 and 282 of the Criminal Code of the Russian Federation, they should always be qualified according to the totality of crimes. However, it seems wrong for us to accept such a qualification. Nazism, in our opinion, is a manifestation of extremism, since, according to Article 1, extremism as a phenomenon includes, among other things, propaganda of exclusivity and superiority, or inferiority of a person on certain grounds, as well as the dissemination and propaganda of Nazi materials (See: Federal Law No. 114-FZ of 07/25/2002 (as amended on 12/28/2022) "On countering extremist activities" // Federal Law of the Russian Federation, 2002. No. 30, Article 3031.). We share the position of N. M. Chudin, who considers this crime as a kind of extremism with an increased level of public danger ^{[9, pp. 576-583]}.

Consequently, the rehabilitation of Nazism itself contains signs of expressing a negative assessment on certain discriminatory grounds or towards a particular social group. It seems that it is advisable to consider the norm provided for in part 1 of Article 3541 of the Criminal Code of the Russian Federation as special to part 1 of Article 282 of the Criminal Code of the Russian Federation. Thus, Nazism is the most dangerous manifestation of extremism, and any action to revive it "automatically" contains signs of incitement to hatred or enmity, as well as humiliation of human dignity on the grounds listed in part 1 of Article 282 of the Criminal Code of the Russian Federation. That is why in this case an ideal combination of crimes is impossible, otherwise the principle of justice of the criminal law will be violated.

If a person "additionally", that is, "separately" from the act of rehabilitation of Nazism, carries out extremist activities, for example, by publishing nationalist records and photographs on his page, then the act should be additionally qualified under Article 282 of the Criminal Code of the Russian Federation, if the person has already been brought to administrative responsibility for similar acts. This approach seems appropriate, since in this case there will be a real set of crimes provided for in Articles 282 and 3541 of the Criminal Code of the Russian Federation. Thus, a person committed actions aimed at inciting hatred and enmity, humiliating the dignity of a group of persons on the basis of nationality, committed using the Internet information and telecommunications network, by posting on his page on the Vkontakte social network lyrics containing phrases humiliating a certain social group. The same person on the same page publicly posted a text with the headline: "The myth that Hitler wanted to kill all Slavs," which contains linguistic and psychological signs of justification for the ideology of fascism (Nazism), as well as denial of the facts established by the verdict of the International Military Tribunal and approval of crimes established by the verdict of the Nuremberg Tribunal. The Supreme Court of the Republic of Crimea qualified actions under Part 1 of Article 282 of the Criminal Code of the Russian Federation and part 1 of Article 3541 of the Criminal Code of the Russian Federation (See: Verdict of the Supreme Court of the Republic of Crimea dated 08/02/2017 in case No. 1-18/17 // SPS "ConsultantPlus".).

When distinguishing Article 282 of the Criminal Code of the Russian Federation from part 1 of Article 3541 of the Criminal Code of the Russian Federation, attention should also be paid to the fact that the objective side of the latter norm is more concretized and expressed by certain actions. Article 3541 is also limited to the conclusions of the Nuremberg Tribunal. Thus, any activity carried out in support of fascists who were not convicted in Nuremberg and whose crimes were not reflected in the verdict of the Ministry of Internal Affairs should be qualified under Article 282 of the Criminal Code of the Russian Federation. According to the same article, actions to support Nazism (fascism) should be qualified, if such support was not expressed by directly denying the facts of the verdict of the Ministry of Internal Affairs or approving the crimes indicated there. Thus, according to part 1 of Article 282 of the Criminal Code of the Russian Federation, a person was convicted who copied 7 videos containing linguistic signs of propaganda of Nazism (fascism) to his page on the Vkontakte social network (See: Verdict of the Cheremushkinsky District Court of Moscow dated 05/25/2016 in case No. 1-201/2016 // SPS "ConsultantPlus".). In this regard, we share the position that Article 282 of the Criminal Code of the Russian Federation "applies to a wider range of public relations ..." ^{[10, pp. 213-214]}.

Another distinctive feature of Article 282 of the Criminal Code of the Russian Federation is the fact that in relation to the acts provided for in part 1 of this norm, an administrative prejudice has been introduced – a person will be brought to criminal responsibility only in case of repeated commission of similar acts within a year. Article 3541 of the Criminal Code of the Russian Federation does not contain such reservations.

Otherwise, in our opinion, it is advisable to resolve the issue of the combined qualification of the rehabilitation of Nazism with public calls for extremist activities. According to the provisions of the resolution of the Plenum of the Supreme Court of the Russian Federation, public appeals should be understood as an appeal, expressed both orally and in writing, to other persons in order to encourage them to carry out extremist activities (See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/28/2011 No. 11 "On Judicial practice in criminal cases on crimes of extremist orientation" // SPS "ConsultantPlus".). The combined qualification of Articles 280 and 3541 of the Criminal Code of the Russian Federation is possible both in the case of a real set of crimes and an ideal one. Thus, according to the totality of these norms, it is necessary to evaluate the actions of a person who in one post denies or approves the Holocaust of the Jewish population and calls for the resumption of such a policy in the form of various kinds of persecution.

The issue of distinguishing Part 1 of Article 20.3 of the Administrative Code of the Russian Federation and 2824 of the Criminal Code of the Russian Federation from part 1 of Article 3541 of the Criminal Code of the Russian Federation is noteworthy, since the definitions of acts are very similar to each other. The difficulty of qualification lies in the fact that actions can simultaneously fall within the framework of propaganda or public demonstration of Nazi symbols or paraphernalia, as well as under the framework of approval of crimes established in the verdict of the Ministry of Internal Affairs. The objective side of the corpus delicti provided for in part 1 of Article 2824 of the Criminal Code of the Russian Federation is characterized by two alternatively specified actions – propaganda and public demonstration. There is no definition of the concept of "propaganda" in Russian legislation, except for the concept of "propaganda of terrorism", despite the existence of a number of norms prohibiting one or another of its types. The word "propaganda" comes from the Latin "propaganda" and means "what should be spread" (See: Ushakov D.N. Explanatory Dictionary [Electronic resource] // URL: https://ushakovdictionary.ru/word.php?wordid=60241 (date of appeal – 01.10.2022). In judicial practice, it is customary to understand a public demonstration as "public display, display, the depiction of Nazi attributes and symbols similar to Nazi attributes or symbols to the extent of confusion, as well as any other actions that make the attributes and symbols in question similar to Nazi attributes or symbols to the extent of confusion, accessible to the perception of other persons, which, of course, includes the demonstration of a tattoo located on such a part of the body ..., which is available for viewing to an indefinite circle of persons" (Resolution of the Seventh Court of Cassation of General Jurisdiction dated 10/30/2020 no. 16-3644/2020 // SPS "ConsultantPlus".), "as well as any other actions that make the attributes and symbols in question accessible to other persons, including through publication in the media" (Decision Moscow City Court in case no. 7-12212/2020 // SPS "ConsultantPlus".).

Thus, the Supreme Court of the Republic of Crimea qualified the posting on the information and telecommunications network "Internet" of a post consisting of a text with a photo of German soldiers in uniform from the period of World War II and the title "15 SS combat rules...", and another publication - text and photographs of stylized emblems of units of a number of units of the "SS" and German swastikas and the headline "A little information about how many Russians fought on the German side. As they say: "Thanks to my grandfather for trying!"" according to part 1 of Article 3541 of the Criminal Code of the Russian Federation (Verdict of the Supreme Court of the Republic of Crimea dated 10/30/2015 in case No. 1-25/2015 // SPS "ConsultantPlus".). In another case, when a person publicly demonstrated fascist symbols on the VKontakte social group page belonging to him, namely the swastika, while not being critical in choosing his post (publication) in the information space and personal content, the court concluded that in this case it is necessary to apply the norms of administrative legislation (See: The decision of the Moscow City Court of 30.09.2020 in case no.7-11519/2020 // SPS "ConsultantPlus".). Based on the analysis of judicial practice, we came to the conclusion that the distinction between these acts is the form of expression of approval. If there are positive comments on the posted Nazi symbols, Article 3541 of the Criminal Code of the Russian Federation is subject to application, and if the appropriate attributes are shown empty, Article 20.3 of the Administrative Code of the Russian Federation, if repeated, i.e. if there is administrative responsibility for any act provided for in Article 20.3 of the Administrative Code of the Russian Federation – part 1 of Article 2824 of the Criminal Code of the Russian Federation.

The dissemination of deliberately false information about the activities of the USSR during the Second World War or veterans of the Second World War in literature is often compared to such an act as slander. In the case of the first act, this comparison, in our opinion, is not entirely correct, since defamation is carried out against an individual, and the state cannot act as a victim. In relation to the second act, a distinction must be made on the basis of the object of the crime, such as the victim. According to part 1 of Article 3541 of the Criminal Code of the Russian Federation, the victim is a veteran of the Great Patriotic War. Veterans of the Great Patriotic War are persons who took part in combat operations to protect the Fatherland or provide military units of the active army in combat areas; persons who served in the military or worked in the rear during the Great Patriotic War of 1941-1945 (hereinafter referred to as the period of the Great Patriotic War) for at least six months, excluding the period of work in the temporarily occupied territories of the USSR, or awarded orders or medals of the USSR for service and selfless work during the Great Patriotic War.

The legal status of WWII veterans is fixed in Federal Law No. 5-FZ dated 12.01.1995 "On Veterans". These include:

1) participants of the Great Patriotic War:

a) military personnel, including those discharged into the reserve (retired), who served in military service (including pupils of military units and jung) or temporarily stayed in military units, headquarters and institutions that were part of the active army during the civil War, the period of the Great Patriotic War or the period of other combat operations to protect the Fatherland, and also, partisans and members of underground organizations operating during the Civil War or the Great Patriotic War in the temporarily occupied territories of the USSR;

b) military personnel, including those discharged into the reserve (retired), persons of the rank and file and commanding staff of internal affairs bodies and state security bodies who served in cities during the Great Patriotic War, participation in the defense of which is counted in the length of service for the appointment of pensions on preferential terms established for military personnel of military units of the active army;

c) persons of the civilian staff of the army and navy, troops and internal affairs bodies, state security bodies who held regular positions in military units, headquarters and institutions that were part of the active army during the Great Patriotic War, or who were in cities during the specified period, participation in the defense of which is counted in the length of service for the appointment of pensions on preferential terms established for military personnel of military units of the active army;

d) intelligence and counterintelligence officers who performed special tasks during the Great Patriotic War in military units that were part of the active army, behind enemy lines or on the territories of other states;

e) employees of enterprises and military facilities, people's commissariats, departments transferred during the Great Patriotic War to the position of persons in the ranks of the Red Army and who performed tasks in the interests of the army and navy within the rear borders of active fronts or operational zones of active fleets, as well as employees of institutions and organizations (including institutions and cultural and art organizations), correspondents of central newspapers, magazines, TASS, Sovinformburo and radio, cameramen of the Central Studio of Documentary Films (newsreels) sent to the army during the Great Patriotic War;

f) military personnel, including those discharged into the reserve (retired), members of the rank and file and commanding staff of internal affairs bodies and state security bodies, fighters and commanders of fighter battalions, platoons and people's protection detachments who took part in combat operations to combat enemy landings and combat operations together with military units that were part of the composition of the active army during the Great Patriotic War, as well as those who took part in combat operations to eliminate the nationalist underground in the territories of Ukraine, Belarus, Lithuania, Latvia and Estonia in the period from January 1, 1944 to December 31, 1951. Persons who took part in combat trawling operations in units that were not part of the active fleet during the Great Patriotic War, as well as those involved by the organizations of the Osoaviakhim of the USSR and local authorities in demining territories and facilities, collecting ammunition and military equipment in the period from June 22, 1941 to May 9, 1945;

g) persons who took part in hostilities against Nazi Germany and its allies as part of partisan detachments, underground groups, and other anti-fascist formations during the Great Patriotic War in the territories of other states;

h) military personnel, including those discharged into the reserve (retired), who served in military units, institutions, military educational institutions that were not part of the active army, in the period from June 22, 1941 to September 3, 1945 for at least six months; military personnel awarded orders or medals of the USSR for service during the specified period;

i) persons awarded the medal "For the Defense of Leningrad", disabled since childhood as a result of injury, contusion or mutilation associated with combat operations during the Great Patriotic War of 1941-1945;

2) persons who worked at air defense facilities, local air defense, on the construction of defensive structures, naval bases, airfields and other military facilities within the rear borders of active fronts, operational zones of active fleets, on frontline sections of railways and highways; crew members of the transport fleet ships interned at the beginning of the Great Patriotic War wars in ports of other States;

3) persons awarded the badge "Resident of besieged Leningrad", persons awarded the badge "Resident of besieged Sevastopol";

4) persons who worked in the rear during the period from June 22, 1941 to May 9, 1945 for at least six months, excluding the period of work in the temporarily occupied territories of the USSR; persons awarded orders or medals of the USSR for selfless work during the Great Patriotic War (See: Federal Law No. 5 dated January 12, 1995-Federal Law "On Veterans" // Collection of legislation of the Russian Federation, 1995. No. 3, Article 168.).

In 2021, the legislator designed a new corpus delicti, enshrined in Article 2434 of the Criminal Code of the Russian Federation, criminalizing the destruction or damage of military graves, monuments, obelisks, other memorial structures or objects perpetuating the memory of those who died defending the Fatherland or its interests, or dedicated to the days of military glory of Russia. Here, the distinction can be made by subject: in the case of article 2434, the subject of the crime is military graves, memorial structures, monuments dedicated to those who died defending the Fatherland or days of military glory. In paragraph "b" of part 2 of Article 2434 of the Criminal Code of the Russian Federation, the subject of the crime is even more specified: These are the above types of monuments directly dedicated to the Great Patriotic War and the defenders who proved themselves there. Such items may not be symbols of military glory, the legislator did not provide such a condition in the disposition of the norm. Therefore, in our opinion, if such a monument is equated to a symbol of military glory, then the act should be qualified under part 3 of Article 3541 of the Criminal Code of the Russian Federation, if not - under Article 2434 of the Criminal Code of the Russian Federation (if there is a purpose discussed below). So, according to paragraph "b" of part 2 of Article 2434, a person was convicted who committed the arson of the memorial wreath "Star" in the Eternal Flame of the memorial "In Memory of the fallen Kurov soldiers" (The verdict of the Orekhovo-Zuyevsky City Court of the Moscow Region dated 08/29/2022 in case No. 1-705/2022 // SPS "ConsultantPlus".).

The objective sides of the crimes are also different: in Article 2434 of the Criminal Code of the Russian Federation, this is destruction or damage, i.e. termination of existence and harm, at the same time, part 3 of Article 3541 of the Criminal Code contains another action — desecration, which means humiliation, mockery and the intention to tarnish (Explanatory Dictionary of S. I. Ozhegov // URL: https://slovarozhegova.ru/word.php?wordid=21359 (date of application: 12.12.2022). According to data from judicial practice, desecration can be understood as lighting cigarettes from symbols of military glory (Cassation definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 03/26/2024 No. 12-UD24-1-A4 // SPS "ConsultantPlus"), cooking using the objects in question (Cassation definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation Court of the Russian Federation No. 31-UD22-5-A4 dated 03.03.2022 // SPS "ConsultantPlus"), coloring symbols of military glory and drawing on them, including using computer programs (Appellate ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 05.06.2019 No. 16-APU19-5 // SPS "ConsultantPlus"). The elements of the crime under consideration also differ on the subjective side. In the disposition of part 1 of Article 2434, the purpose — causing damage to the historical and cultural significance of objects - is highlighted as a constructive sign of the corpus delicti, and in part 3 of Article 3541 of the Criminal Code of the Russian Federation, the purpose is optional.

When considering the issue of competition between Article 214 of the Criminal Code of the Russian Federation and part 3 of Article 3541 of the Criminal Code, in our opinion, it is necessary to pay attention to the object of the crime, in particular, to such an element as an object: in case of vandalism, these are absolutely any structures, and in the case of part 3 of Article 3541 — only symbols of military glory. Consequently, these articles compete with each other as general and special norms.

The preservation of historical memory is one of the main directions of our state's policy, the memory of the defenders of the Fatherland and the protection of historical truth are constitutional values ^[11]. The President of the Russian Federation has repeatedly stressed the importance of the lessons of the past for a confident step into the future. The legislator follows this trend: in 2021, amendments were made to Article 3541 of the Criminal Code of the Russian Federation, a new corpus delicti was introduced, provided for in Article 2434 of the Criminal Code of the Russian Federation, etc. Innovations in the criminal law have created a number of problems in theory and law enforcement. When qualifying the rehabilitation of Nazism, it may be difficult to distinguish this crime from actions aimed at inciting hatred or enmity, as well as humiliation of human dignity (Article 282 of the Criminal Code of the Russian Federation). In essence, Article 3541 of the Criminal Code of the Russian Federation is a special norm for Article 282 of the Criminal Code of the Russian Federation and is subject to independent imputation. When distinguishing articles 20.3 of the Administrative Code of the Russian Federation, 2824 and 3541 of the Criminal Code of the Russian Federation, it is necessary to pay attention to the form of expression of approval of Nazi crimes. In our opinion, in order to implement more effective criminal legal protection, it is necessary to develop a resolution of the Plenum of the Supreme Court of the Russian Federation, which would reflect and resolve problematic issues of corpus delicti today, as well as fix the main definitions, the absence of which makes it difficult to correctly apply the norm. In this regard, the problem of studying and improving the norm on criminal liability for the rehabilitation of Nazism is a particularly urgent task, the solution of which is an important prerequisite for the safe existence of both individual demographic groups of people and the whole of humanity as a whole.